COURT FILE NO.: FS-19-0008197
DATE: 20240125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.J.W.
Applicant
– and –
K.F.
Respondent
Paul Riley, for the Applicant
Alexander Novak, for the Respondent
HEARD: October 30-31, November 1-3, 6, 14-16, 2023
PUBLICATION BAN
THIS CASE INVOLVES ALLEGATIONS OF CHILD SEXUAL ABUSE. WHILE CHILD PROTECTION PROCEEDINGS HAVE NOT BEEN INITIATED, IT IS CONSISTENT WITH THE STATUTORY OBJECTIVES UNDERLYING S. 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, C. 14, SCHED. 1, AND S. 486.4 OF THE CRIMINAL CODE, RSC, 1985, C. C-46, THAT A PUBLICATION BAN ISSUE RESTRICTING PUBLICATION OF INFORMATION THAT MAY IDENTIFY THE CHILD.
ACCORDINGLY, A PUBLICATION BAN ORDER IN THIS CASE IS MADE, PROHIBITING PUBLISHING OR MAKING PUBLIC INFORMATION THAT HAS THE EFFECT OF IDENTIFYING: (1) THE CHILD WHO IS THE SUBJECT OF THIS FAMILY LAW PROCEEDING; AND (2) THE CHILD’S PARENTS OR A MEMBER OF THE CHILD’S FAMILY. THE CHILD’S NAME, HIS PARENTS’ NAMES, AND ANY FAMILY MEMBER’S NAME HAVE BEEN INITIALIZED IN THIS JUDGMENT.
Justice m. sharma
Introduction
[1] This Judgment concludes a 10-day trial. The issues deal primarily with parenting issues related to the parties’ now 6-year-old son, child support and spousal support. At trial, the Respondent advised she no longer sought an Order to relocate with the child. I describe the issues more precisely below.
[2] What happened in this case has been tragic. I begin with an overview of facts. It is longer than usual but necessary given the lengthy history and to frame the issues. Next, I identify the legal issues to be determined, followed by my assessment of credibility and analysis of the legal issues.
Overview
[3] The Applicant, J.J.W. (the “Father”) met the Respondent, M.F. (the “Mother”) in 2012 while he was working in Washington, D.C. on a temporary work permit. At the time, he was a nurse working in the field of infectious disease. He is a Canadian citizen. The Mother was an occupational therapist and an American citizen.
[4] In 2013, the parties moved in together. They were married in Toronto on August 17, 2013. For the first two years of their marriage, they continued to reside in Washington, D.C.
[5] In April 2016, the parties moved to Toronto. Around this time, the Mother obtained her permanent residency allowing her to work in Canada. The Father, at the time, was completing a PhD at the University of Toronto in public health policy. The Mother said their move to Toronto was temporary. The Father said it was permanent.
[6] The Father is employed as a public health consultant with a multi-national company where he provides advice to governments internationally on infectious disease. He primarily works remotely from home.
[7] The Mother, upon her move to Toronto, took steps to become licensed to work as an occupational therapist in Ontario. She successfully completed her licensing exam. There were periods when the Mother returned to the USA to work. Her evidence, however, was that to become licensed in Canada, she had to have worked a certain number of hours prior to her licence being issued to meet a currency requirement. At the time of trial, she had not met her currency requirement. As an alternative to pursuing her currency requirement, she would have to return to school in Canada.
[8] Both parties gave evidence of verbal and physical abuse, and coercive control exerted by the other. Prior to moving to Toronto, both parties acknowledged they would argue. Their arguments grew after they moved to Toronto. In November 2016, while the Father was working abroad and the Mother was in Toronto, parties engaged in several days of abusive text messaging. In December 2016, parties travelled to Montreal for New Year’s Eve. There, they had an argument that led to physical violence.
[9] In October 2017, the parties’ child, G, was born. The parties continued to argue.
1^st^ CAST Investigation
[10] On January 30, 2018, parties met with a couples’ therapist, Ms. Sarah Nobel. Following this meeting, Ms. Nobel contacted the Children’s Aid Society of Toronto (“CAST”). Ms. Nobel reported to CAST that she had met with the parties, that they reported to her name calling, yelling, and threats, and a recent incident where the Father choked and spat on the Mother.
[11] Ms. Christina Borges from CAST was assigned. On February 3, 2018, she visited the parties at home. There is a dispute as to whether Ms. Borges accurately recorded an admission allegedly made by the Father about putting his hands around the Mother’s throat and spitting on her. Ultimately, Ms. Borges, in consultation with her supervisor concluded that emotional harm to the child due to exposure to partner violence was not verified because the alleged historical partner violence occurred prior to G’s birth, and because the parties did not engage in arguments that would put G at risk.
1^st^ Criminal Charges
[12] On January 28, 2019, the Father was home taking care of G while the Mother was out for the evening. When the Mother returned, the parties argued. The Father states that the Mother was drunk, became “hysterical”, took G and locked herself in a room. The Mother says that she had to barricade herself in a room. At around 2 a.m., the Father called the Police to seek help. When the Police interviewed the Mother, she reported the alleged choking incident and a death threat from 2018, and a further death threat from that day. The Father was charged with one count of assault and one count of uttering a death threat from the alleged incident in 2018, and a further count of uttering a death threat from the early morning of January 29, 2019. Conditions of the Father’s release did not limit his ability to have parenting time with G.
2^nd^ CAST Investigation
[13] The second CAST investigation was launched because of the Police charging the Father on January 29, 2019. Ms. Rayna Morris-Cullin was assigned to investigate potential emotional harm / exposure to conflict by the child.
[14] On or about February 21, 2019, CAST concluded its investigation. CAST verified that the child had been exposed to emotional harm and conflict because both parties acknowledged being in verbal disputes that the child witnessed. CAST closed the file as the parties were living apart and managing their differences, and there were no further child protection concerns.
Family Proceeding Launched
[15] Following the criminal charges being laid, the Father’s lawyer arranged parenting time for the Father on February 12-13, 2019, but the Mother did not arrive at the designated transition location with the child. The Mother had taken the child to Michigan for six weeks, without notice to the Father. The Father, through his lawyer and police officials in Canada and Michigan, attempted to locate the Mother and the child. Michigan Police ultimately found the Mother with the child in Michigan. The Mother returned to Toronto voluntarily.
[16] The Father initiated this family Application on May 27, 2019.
[17] Parties worked out an arrangement for the Father to have regular parenting time.
[18] On August 21, 2019, despite the 2^nd^ CAST investigation being closed, the Mother’s counselor contacted CAST to ask that this case be reopened and to “view it as a case of violence against women”. According to the CAST note, the counselor reported to CAST that the Mother had noticed “significant behavioural issues” and was questioning the Father’s parenting because the child’s behaviours were worse when he came back from spending time with the Father. The counselor also reported that the Father is a marijuana user and has mental health concerns.
[19] On or around October 17, 2019, parties signed Minutes of Settlement that settled on an interim and without prejudice basis a parenting schedule which saw the child spend five overnights with the Father over a two-week period, plus holiday time. This was subject, however, to review following a report from CAST on the recent allegations from the Mother’s counselor.
[20] On October 23, 2019, Ms. Morris-Cullen concluded her investigation of whether the child was exposed to emotional harm or conflict, and the Father’s capacity to parent. As part of her investigation, the Mother reported that she was worried about the Father’s parenting, that the child was clingy, had temper tantrums, showed anger towards a family cat, and returned to her from the Father with a bad odour as if he was not clean.
[21] Ms. Morris-Cullen also met with the Father, who did not report any of the same behavioural concerns when the child was in his care. He admitted to Ms. Morris-Cullen of smoking marijuana socially, but never while caregiving or before his parenting time. He denied current mental health struggles but acknowledged prior work-related stress.
[22] Ms. Morris-Cullen concluded that she was not able to accurately assess the reason for the difficulties the child was experiencing when in the Mother’s care, and that his temper tantrums could be a product of his age (two years-old at the time) and a sense of frustration for not being able to accurately express himself. As with her prior investigation, she concluded that the child is likely being exposed to the emotional impact of the parties’ separation and did not verify any concerns about the Father’s capacity to parent. The 2^nd^ CAST file was again closed.
Spousal Support / Child Support Motion – November 13, 2020
[23] On or about November 13, 2020, parties settled on consent a motion brought by the Mother for child and spousal support. Pursuant to the Order of Hood J., the Father was to pay $2,660 per month in spousal support commencing November 15, 2020, and pay child support in the amount of $1,044 per month, commencing November 15, 2020.
[24] At trial, there was no argument that the Father had not adhered to this or subsequent court ordered support obligations.
1^st^ Criminal Trial – Uttering Death Threat in January 2019
[25] Ultimately, the Crown withdrew the two charges of assault and uttering threats from the alleged events in 2018. The remaining charge, of uttering a death threat in January 2019, proceeded to trial.
[26] On December 3, 2019, the criminal trial was heard. Moore J. of the Ontario Court of Justice found the Father was not guilty of uttering a death threat.
Conferences before Shore J.
[27] On March 1, 2021, Shore J. presided over a settlement conference where parties reached a final agreement on property issues, namely that the Father would pay the Mother $52,500 in satisfaction of property issues arising from the breakdown of their relationship, and the Father would also pay $1,206 in monthly child support, and $3,323 in temporary monthly spousal support. The remaining issues for trial were the potential relocation of the Mother with the child to Washington D.C., and the residential schedule of the child.
[28] On July 9, 2021, and August 3, 2021, parties had further attendances before Shore J. The August 3, 2021 Endorsement indicated, in part: “The parties continue to make progress but have not reached a resolution of parenting and spousal support issues.”
August 9, 2021 Settlement (in principle) of Family Proceeding
[29] On August 9, 2021, parties appeared before Shore J. for a Trial Management Conference (“TMC”). The Endorsement indicated that parties had settled all outstanding issues but needed time to amend their agreement/consent order. Shore J. ordered that if parties had not signed an agreement or consent order by September 10, 2021, a further TMC was to be scheduled.
2^nd^ Criminal Charge and 3^rd^ CAST Investigation
[30] On July 29, 2021, prior to the case conference with Shore J. on August 9, 2021, the Mother’s lawyer sent a letter to the Father’s lawyer. The letter reported that the child had recently described to the Mother a “feather tickle game” the child played with the Father, and when the child asked the Father to stop, he would continue touching him “everywhere on his body” and that this made the child feel “yucky”. The letter also reported that in one instance, the child reported he was proud because he told the Father to stop, and that “this time” he did not touch the child’s privates. The child is reported to have said that when “his daddy touches his penis his penis gets ‘big’”. At the time of the alleged incidents, G was three and a half years old.
[31] While the July 29, 2021 letter from the Mother’s counsel alluded to both lawyers’ professional obligations to report “alarming disclosure” from the child, the Mother’s lawyer in her letter did not “necessarily suggest” CAST be involved. Rather, the letter suggested that the child begin play therapy. It asked the Father to consent to play therapy, which would also be beneficial to address the child’s behavioural issues.
[32] The Father testified that he did not fully understand the letter. He understood it as a threat to report these allegations to CAST, which he states were false, if he would not consent to play therapy.
[33] On Saturday August 7, 2021, the child’s maternal grandmother, PK, contacted CAST to report physical and sexual harm to the child. The CAST note records that the Mother was contacted by phone the same day at 4:19 p.m., and that she had advised the CAST worker that the Father’s next scheduled parenting time with the child was on August 9, 2021 at 5:00 p.m., and that they also had a case conference with a family court judge on August 9, 2021.
[34] Two days later, on August 9, 2021 at 12 noon, parties had their conference before Shore J. where parties settled all issues in this case, including parenting.
[35] Later in my Judgment, I describe in greater detail the events of August 9, 2021. For the purpose of this overview, the child was interviewed by Det. Constable (“DC”) Michael Agostinho of the Toronto Police. The interview was observed by a new case worker at CAST, Ms. Carrie Hoffelner. Following those interviews and some investigation by DC Agostinho, DC Agostinho reported to Ms. Hoffelner on August 10, 2021 that he will likely not lay any charges. Immediately thereafter, according to the CAST note, Ms. Hoffelner left a voicemail message with the Mother asking to meet with her again the next day on August 11, 2021. Ms. Hoffelner testified that the purpose of this meeting was for safety planning for the child when in the Father’s care, unrelated to the criminal investigation and consistent with CAST’s child protection mandate.
[36] On August 11, 2021, when the child was interviewed a second time, although the first by Ms. Hoffelner, the child provided additional details of the alleged sexual abuse that was not reported by the child during his prior interview with DC Agostinho on August 9, 2021. Because of this new disclosure, DC Agostinho then conducted a further interview of the child. As a result of the new details of abuse disclosed by the child, the police charged the Father with sexual assault, sexual interference and invitation to sexual touching of a child. He surrendered himself into custody on August 12, 2021.
[37] The Father has not seen his son since.
[38] The Father has consistently denied all allegations of inappropriately touching his son. At trial, his evidence was that the Mother’s family or others, intentionally or unintentionally, raised the possibility with the child that the innocent “tickle feather” game was sexual in nature. This resulted in a false narrative in the child’s mind. Or he argues that the Mother, CAST and, in particular, Ms. Hoffelner from CAST, intentionally or unintentionally, suggested to the child and convinced the child that sexual behaviour had occurred when, in fact, it did not.
Continued Family Proceedings
[39] On September 2, 2021, Monahan J. (as he then was) heard an urgent motion brought by the Father for a resumption of the parenting schedule that had been in place prior to the criminal charges, and an Order that the Mother not be permitted to travel outside Canada with G. The Mother brought a cross-motion, seeking a dismissal of the Father’s motion, an Order for sole decision-making, and leave to travel to the USA with G.
[40] On September 8, 2021, Monahan J. released reasons. Among the Orders made, Monahan J. denied the Father a resumption of his parenting time with G, but he did permit the Father to have parenting time in accordance with bail conditions. He permitted the Mother to travel to the USA for a time-limited purpose on 30-days notice to the Father, but he did not permit the Mother to travel to the USA for work purposes due to concerns the Mother may seek to establish a new status quo.
[41] On September 13, 2021, parties appeared before Shore J. for a trial management conference. At this appearance, parties consented to an Order for the Father to have supervised parenting time with the child for four hours each week. The parenting time was not to occur at CAST’s offices or a supervision centre. Notably, the Order granting the Father parenting time was subject to the approval of CAST to ensure CAST had no safety concerns with the supervision terms.
[42] The Father took prompt steps to arrange private supervision services, in accordance with the Order made by Shore J.
[43] On November 12, 2021, Ms. Hoffelner on behalf of CAST wrote to the parties advising that the allegation of sexual harm to G had been verified. It set out conditions under which supervised parenting time could occur. Those conditions included a psychosexual assessment of the Father and resolution of the criminal charges. The letter acknowledged that the Court issued an order permitting access under certain conditions, but at this time, CAST concluded there was no emotionally safe way to support the Father’s access to the child.
[44] The evidence at trial was that the Father, eager to have the psychosexual assessment conducted so that he could resume parenting time with G, even if it were supervised, sought to have the psychosexual assessment performed by CAMH. However, the Father discovered that CAMH would only perform such an assessment for those convicted of sexual offences involving a child. CAMH, therefore, would not do such an assessment. Even if the Father were acquitted, CAMH would still not perform the testing because it would not conduct such an assessment for parenting purposes. The Father reported this to CAST and inquired if there were other ways to have the psychosexual assessment done by another provider, but CAST would not waive this condition nor recommend another assessor. As such, the Father has not had any parenting time with G since the charges were laid on August 11, 2021.
2^nd^ Criminal Trial
[45] On February 24, 2023, Hogan J. of the Ontario Court of Justice released reasons for judgment, finding the Father not guilty of any of the charges relating to sexual abuse of the child.
[46] When the decision was released, the Father was out of the country.
4^th^ CAST Investigation
[47] Notwithstanding the Father’s absence from the country, and on the same day Hogan J.’s decision was released, at least two individuals called CAST. They reported that because the Father no longer had criminal conditions restricting his access to the Mother or the child, they worried that the Father would take unilateral steps to resume his parenting time.
[48] The first caller was a Boost Child and Youth Advocacy Worker. She reported to CAST that the Mother feared that the Father or his sister (who lived in Calgary) would show up at the Mother’s home and try to take the child. The second was DC Agostinho. From the CAST note, it records him as reporting to CAST that “he wanted to make CAS aware and believes that [the Father] will feel vindicated as he was not found guilty. He advised that [the Mother] is quite worried about this ruling and what [ the Father] may do.”
[49] Ms. Jenna Burnett was assigned to this fourth CAST investigation. On May 30, 2023, the investigation was closed with a finding that sexual harm to the child was verified, and that there have been no changes in circumstances that would mitigate the potential risk of further sexual, psychological and physical harm to the child if he had contact with his Father. It recommended a trauma assessment that would inform a safety plan for future contact.
Trauma Assessment
[50] Parties and CAST agreed to have Ms. Shiona Robertson conduct a trauma assessment of the child. She is a social worker and completed a masters in counselling in psychology, with 23 years experience. In her work, she often deals with children in the context of child abuse allegations and reunification. Ms. Robertson completed a report following her assessment of G and gave evidence at trial.
[51] Ms. Robertson’s assessment was not a parenting assessment. She did not seek to assess the allegations of parental alienation, or the truthfulness of the allegations made by the child. Ms. Robertson gave evidence at trial. She assessed the child as having a low level of trauma, lacking symptoms. She ruled out more serious developmental trauma. She said the trauma could be a product of the alleged abuse, of potentially being told to make the abuse allegations, or of being exposed to the parties’ conflict.
[52] Parties agreed mid-trial to adopt her recommendations. A mid-trial Order was made implementing the recommendations. The mid-trial Order required G to commence play therapy with Ms. Robertson immediately. After three sessions, or such further sessions as Ms. Robertson deems necessary to develop a rapport with the child and to prepare him for a reunification process, Ms. Robertson will assess the child’s needs with the expectation that the reunification process as recommended by Ms. Robertson will unfold. The reunification process would see 4-way sessions occurring, with the child and Ms. Robertson, and the Father and his therapist, Ms. Colleen Kamps. Ms. Kamps also gave evidence at trial.
[53] The Father was concerned about the role of the CAST in the reunification process, arguing they have not been independent or objective. The Mother did not want CAST to be restricted in their involvement. As part of my mid-trial Order, I ordered on a temporary and without prejudice basis that CAST not interfere or hinder the reunification process and that they are to remain at arms-length at all times.
ISSUES
[54] The issues in this case, as raised by the parties in their pleadings, and as adjusted based on the parties’ submissions at trial may be stated as follows:
A. Parenting
What parenting orders should be made with respect to the child (parenting time, communications, decision-making, mobility)?
What orders, if any, should be made restricting or requiring the involvement of the CAST or Police to carry out any parenting orders made?
B. Financial Orders
What are the parties’ incomes for support purposes?
What amount of child support should be payable by whom, and whether a retroactive award of child support should be made, either to the Applicant or the Respondent?
What orders, incidental to support, should be made (e.g., maintenance of medical, health and dental benefits for the child, life insurance)?
Is the Respondent entitled to spousal support, and if so, in what amount and for which duration?
C. Other Orders
What mobility restrictions, if any, should be in place?
Has the Father established facts to support the tort of malicious prosecution, and if so, what damages should be awarded?
Should a preservation order or accounting be ordered?
Should an order issue restraining one party from annoying, harassing or molesting the other, and restraining them from being within 100 metres of the other?
Should a Divorce issue?
Credibility
[55] Before turning to the issues, I provide an assessment of the key witness’ credibility.
[56] The Court must consider many factors when assessing credibility. It must do its best to articulate “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events": R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20.
[57] The Court may accept some, none or all of a witness’ evidence: R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 per L’Heureux-Dubé J. (in dissent in the result) at p. 318; R v. Cunsolo, 2011 ONSC 1349 at para 228.
[58] The assessment of credibility is a “holistic undertaking, incapable of precise formulation”: Dunford v. Hamel, [2018] ONSC 3427 at para. 20. However, certain factors are often relied upon in undertaking an assessment of credibility, as listed more fully in McBennett v. Danis, 2021 ONSC 3610 at para. 41:
a. inconsistencies in the evidence, which may exist between a witness’ evidence and various other things – the evidence of other credible witnesses, the documentary evidence, or the witness’ previous evidence;
b. whether a witness has a motive to deceive;
c. whether the evidence is inherently improbable and implausible? Is it “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?" (Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at at p. 357);
d. Whether a witness is straightforward or “evasive, strategic, hesitant or biased”; and
e. Whether a witness is able to make concessions or gives self-serving evidence.
The Father
[59] I begin with the Applicant. I found the Father to be a highly credible and reliable witness.
[60] The Father was organized, straightforward and precise in giving his testimony. His answers were inherently logical, plausible within the context of events that were happening at the time, and consistent with the documentary evidence in this case. When his testimony was inconsistent with a note recorded by CAST, notably the alleged choking and spitting incident, he provided a plausible explanation as to why the CAST note may not have been accurate. I found no other instances of inconsistencies with his testimony.
[61] At times, he was defensive and argumentative during his cross-examination. He explained, however, that he felt that he was being re-tried on charges for which he had already been acquitted, and that he had already taken responsibility in his examination in chief for certain mistakes he made, notably instances of verbal abuse and physical violence. He was emotional at times, particularly when testifying about the last time he saw his son – some 830 days prior to trial. He was otherwise forthright and not hesitant in answering questions.
[62] The Father made concessions. He admitted in chief and while cross-examined that he inappropriately engaged in abusive text messaging with the Mother while he was in South Africa from November 15 to 17, 2016. He testified that he takes responsibility for the words he used and that it was a mistake. He explained the circumstances around these text messages. He also admitted to slapping the Mother when the parties were in Montreal in December 2016 for New Years’ Eve, however this was in response to her hitting him with a remote control. He also admitted that there were other instances when the parties engaged in verbal abuse.
[63] While he was angry at times, I did not find this created a motive to deceive the court. The Father believed that he and his son have been a victim of the Mother’s false criminal accusations, and that the Mother has responsibility for letting or encouraging either her family or CAST sexualize an innocent game with the child. Notwithstanding what he believes the Mother may have done or may have been responsible for, he testified that he does not blame the Mother and that he did not wish to attack her. Rather, he places primary blame on Ms. Hoffelner at CAST.
The Mother
[64] The Mother’s testimony, on its own, left a general impression of being credible. She explained the positions she was taking and events that were plausible based on the events or circumstances unfolding at the time.
[65] Much of her testimony focussed on coercive control and abuse she endured. It was possible for the Mother to provide important corroborating evidence, but she did not do so.
[66] For example, she testified about frequent text messages sent by the Father that were abusive in nature, not unlike the messages sent by the Father in November of 2016. In fact, she testified that she had years of such text messages. However, she failed to introduce any evidence of those text messages.
[67] She also testified that at a medical appointment at Mt. Sinai Hospital, a physician asked the Mother, while the Father was not in the room, whether the Mother was a victim of human trafficking. She stated that this was because the doctor “did not have a good feeling about what was going on in the relationship and what [the Father] was asking and how he was trying to control the situation in the hospital room, and [the Mother] was the patient who was there, and [the doctor] did not want him anywhere near the situation.” However, the Mother did not call the doctor to testify about what the doctor had observed. She said that she also had texts of the Father being upset after he was removed from the hospital room, but she did not introduce those text messages.
[68] There was other critical evidence that the Mother alluded to at trial that was not introduced into evidence. She testified that on July 16, 2021, while videorecording the child outdoors on a boardwalk, the child spontaneously recounted some of the allegations of him being improperly touched by the Father. However, that video evidence was not introduced as evidence.
[69] Her evidence suggested that she took unreasonable positions in this litigation. For example, she testified that when the parties disagreed on third party professionals to become involved in this case, she objected to the Father proposing the names of three individuals and having her select one of the names proposed. She testified that she wanted a voice, and this process denied her a voice. However, she did not provide evidence of times when she proposed the names of three individuals for the Father to select. It is neither unreasonable nor uncommon for disputing parents to settle disputes about the selection of professionals by one party proposing the names of three professionals and the other selecting one.
[70] Some of her evidence was not plausible. For example, she testified that she had taken national registration exams in 2017 that would allow her to work as an occupational therapist in Ontario. However, she then testified that because the parties never intended to stay in Canada, she never pursued obtaining her licence by completing her currency requirement. It is unclear why an individual would complete exams to be licenced to work in Canada if there was never an intention to remain in Canada.
[71] Some of her testimony was misleading or inconsistent with records. On August 9, 2021, when parties appeared before Shore J., the Mother testified that she had agreed to a 50/50 shared parenting schedule on a week about basis. This is consistent with Shore J.’s Endorsement of the same day stating parties had settled all issues. The Mother acknowledged that this was after her lawyer had written to the Father’s lawyer on July 29, 2021 raising concerns about the child’s disclosure of abuse. The Mother testified that the issue of this disclosure was raised with Shore J. during a breakout room discussion at that case conference, and that Shore J. responded that it would be the responsibility of the child’s play therapist to raise any additional disclosure from the child. The Mother further testified that while at the case conference on August 9, 2021, she received a text message from CAST asking for a safety planning meeting with the child that same day. I find the Mother’s testimony on these issues was misleading or false.
[72] First, the discussions she had at the conference are privileged. Even if I were to admit her assertion that she advised Shore J. at a case conference on August 9, 2021 (or possibly the prior conference on August 3, 2021) about the child’s disclosure, I reject any suggestion that she was transparent in the family court proceedings with respect to the CAST investigation. The CAST note on Saturday August 7, 2021 states that the Mother had reported to the CAST worker during a telephone call at 4:19 p.m. that “there is a court date on Monday @ 9am and that the family court judge is aware of [G’s] disclosure.” This documentary evidence shows the Mother was clearly aware and had been involved in the CAST investigation prior to the August 9, 2021 case conference when parenting issues were settled with Shore J.
[73] I reject any assertion that Shore J. was advised of the CAST investigation when the settlement was reached. In her Endorsement of July 12, 2023 at a motion, Shore J. wrote:
“On August 7, 2021, two days prior to the conference [on August 9, 2021], the Mother made a complaint to CAS, concerned that her son has been sexually assaulted by the Father. She said nothing at the conference, when the settlement was reached.”
[74] Parties agreed that the case conference before Shore J. on August 9, 2021 was held at 12 noon. The CAST note from this date records that Ms. Hoffelner spoke with the Mother at 10:40 a.m., prior to the attendance before Shore J. According to Ms. Hoffelner’s notes, the Mother is reported to have said to Ms. Hoffelner the following:
“he is supposed to see him today at 5
she doesn’t have a car, taxi is possible
she doesn’t know how long court will be
she was worried
she said her son was sick
he called 911 on her claiming that her son was being abused and neglected
he will say I’m in violation of the custody order
she says this has to be addressed
it is peculiar timing, she doesn’t know what is true and what isn’t
she wants him to tell his truth
contact info shared
taxi for 2:30 at her place [address] in front of the building”
[75] This confirms the Mother was aware, prior to the case conference before Shore J., that she would be bringing the child to CAST later that day by taxi. Her testimony, that she learned during the case conference by way of text message that she was to bring the child to CAST for a safety planning meeting, was clearly false. Up until trial, the Mother had been seeking to relocate to the USA with the child. The way in which she was engaging CAST, while at the same time, settling parenting issues in this Court, suggests improper motives.
[76] The Mother did make some concessions. For example, she admitted to attacking the Father in Montreal, consistent with the Father’s testimony.
[77] However, she made no concessions with respect to the Father’s capacity to parent. She made minimal concessions of participating or instigating any arguments with the Father. In her testimony, she did not deny some factual claims made by the Father, such as her throwing dishes in the home. Her testimony in chief was focussed primarily on attacking the Father.
[78] She refused to concede that the child’s recounting of the allegations, given his age, may not have been accurate. On cross-examination, when confronted with the inconsistent testimony of the child at the second criminal trial around his reports of sexual abuse or as reported to CAST or the Police, the Mother acknowledged that she will never know whether the Father engaged in the sexual abuse, but regardless, she believed her son. Given the inconsistencies, her admitted lack of direct knowledge as to what actually occurred, and the child’s age of three and a half when the events allegedly occurred, I questioned whether her reasoning was informed by logic or her emotions. I also questioned whether she participated knowingly or unknowingly in developing her son’s narrative.
[79] For these reasons, and despite her otherwise compelling testimony, I am not satisfied with the truthfulness or reliability of the Mother’s evidence.
Ms. Carrie Hoffelner & Ms. Jenna Burnett
[80] Ms. Hoffelner testified at trial. She provided helpful evidence with respect to CAST processes, and the two interviews with the child on August 9 and 11, 2021. However, I found some of her evidence to be defensive or difficult to understand. Ms. Hoffelner was on bereavement leave during the trial due to a death in her family. I viewed her evidence from the perspective of someone who was grieving, which may have impacted the quality of her testimony.
[81] Ms. Burnett also testified. Her evidence was focussed on events that followed the Father’s acquittal of sexual offences involving his son.
[82] As I discuss later in my reasons, I am concerned about the positions Ms. Hoffelner, Ms. Burnett and CAST took with respect to the objectivity of their investigations, and positions they took that impacted this family litigation. While I appreciate the statutory mandate of CAST, I was not persuaded that Ms. Hoffelner, Ms. Burnett and CAST sufficiently considered positions other than those advanced by the Mother or those who advocated on her behalf. In particular, no explanation was provided as to why CAST imposed the condition that the Father have a psychosexual assessment by CAMH before supervised parenting time could occur, when CAST and Ms. Hoffelner was specifically advised that such an assessment would not be possible. The condition was impossible for the Father to meet and ought not have been made by CAST if they knew it was impossible for him to meet. No explanation was provided by Ms. Hoffelner as to why this condition was not removed. For all these reasons, I was left questioning the objectivity of their evidence at trial.
DC Agostinho
[83] I found DC Agostinho to be candid and forthright in giving his evidence. On cross-examination, he admitted in hindsight how he should have questioned the Mother about potential coaching of the child. Like Ms. Hoffelner and Ms. Burnett, I questioned his objectivity. Following the Father’s acquittal of the sexual offences involving G, he called CAST after speaking with the Mother. He called to report that, following the Father’s acquittal, he believed the Father “will feel vindicated” and that the Mother was worried what the Father might do. These actions, by an investigating officer and following an acquittal, suggest that he lacked objectivity and was aligned with the Mother. If DC Agostinho had reasonable and probable grounds to suspect the Father would engage in a potential crime of child abduction following his acquittal, he ought to have exercised his authority as a police officer rather than rely on his position as a police officer to influence CAST’s investigation.
ANALYSIS OF ISSUES
A. PARENTING ORDERS
Issue 1: What parenting schedule should be ordered?
[84] In making a parenting order, the Court shall only take into consideration the best interests of the child: Divorce Act, RSC 1985, c. 3 (2^nd^ Supp.), s. 16(1). The Court must consider all factors related to the circumstances of the child, including those factors in s. 16(3) of the Divorce Act, giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, s. 16(3).
[85] In considering the best interests of the child factors, I begin with the allegations of family violence, and in particular, the allegation that the Father perpetrated sexual violence against the child.
Family Violence
[86] In considering family violence in this case, I am mindful that domestic violence allegations are notoriously difficult to prove. Direct or indirect exposure to family violence can have significant impact on the lives of children: Barendregt v. Grebliunas, 2022 SCC 22 at paras. 143 – 144. An assessment of the allegations must be grounded in the judge’s assessment of all the evidence in a case.
[87] I have explained why I found the Father’s testimony to be credible and reliable. He vehemently denied inappropriate touching of his son of a sexual nature. His evidence was that he had purchased a craft set for the child around Thanksgiving that included a feather. He denied ever referring to it as a tickler, but he admitted to playing with his son with the feather and that the feather was used to tickle him on his cheeks, nose and toes. He encouraged his son to take items from his house to the Mother’s home. In October 2020, he dropped off his son with the Mother with the feather.
[88] The Father testified that he understood from the criminal trial that his son participated in a Zoom call with the Mother and her family where he showed those on the call the feather. During this call, the Father alleges that members of the Mother’s family sexualized the feather. The Mother’s evidence at this trial was consistent. She admitted that on this Zoom call, G introduced the feather as a “tickler”. The Mother’s brother responded in jest to the effect of “That’s what you tell your kid!” Then everyone laughed about it. The Mother acknowledged in cross-examination that her brother was inferring an adult meaning. The Mother later testified that she threw the feather in the garbage, after G disclosed the alleged sexual touching.
[89] The only other potential witness to the alleged sexual abuse was the child. However, all of the evidence from G is hearsay. At trial, it was received through what the child is alleged to have recounted to the Mother, DC Agostinho, and Ms. Hoffelner. The child also gave evidence at the criminal trial. There were no other witnesses of the alleged sexual abuse.
[90] Hearsay evidence of a child may be admitted for the truth of its content where the underlying principle behind the hearsay rule of necessity and reliability are met: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531.
[91] It is unusual and not desirous for a child to give direct evidence in a family proceeding. In this case, the child has already testified once at a criminal trial. He has also been questioned by the Police and CAST about the allegations on several occasions. Given the history of this case and the fact that the child has already testified at the prior criminal trial, it would likely have been traumatic for him to give evidence once again. Therefore, I find that it is necessary to rely on his prior testimony and other out of court statements.
[92] In assessing the reliability of what the child said previously about the alleged sexual assault, I find that what the child may have reported to the Mother is not reliable. The Mother had motive to deceive. She could have produced corroborating evidence in the nature of the video recording she took of the child in July 2021, but she did not adduce that evidence at trial. She could have made a complaint to CAST, if she had reason to believe the allegations, but she chose not to – instead, her mother did. This leads me to question the Mother’s motives. The allegations arose in the context of this highly contested family litigation. As I explain below, the child was also not consistent in what he reported.
[93] I also have reservations about the reliability of what the child reported to DC Agostinho and Ms. Hoffelner.
[94] When the child was interviewed by DC Agostinho on August 9, 2021, which was observed by Ms. Hoffelner, Ms. Hoffelner’s notes report the child said the following: his dad touches the child, after “the tickle feather game”; that “he needs to go to jail”; and that “mommy” said that the Father needs to go to jail. When asked if his dad touches his privates, which the child explains as parts of his body used “to go potty”, the child first says his dad touches him on his face and feet, but shortly after said “he touches me on my private” while they are in bed and while he is wearing his clothes. The child further stated the neighbors come when he screams for help.
[95] I do not find this account to be reliable evidence. First, when the child was asked to tell DC Agostinho about his Father, the conversation according to the CAST note prepared by Ms. Hoffelner was as follows:
“do you see daddy
tell me about daddy
ok
at my dad’s house dad touches me
he starts touching me and then after he does the tickle feather game
he touches me
he uses feathers for tickle game
he needs to go to jail
who said that
mommy…”
[96] The fact that this 3.5-year-old child, when asked about his Father, immediately launched into being touched by his Father and that his Mother told the child that his Father needs to go to jail suggests that the child was primed and influenced by the Mother. DC Agostinho, during his cross-examination, admitted that he could not recall asking the Mother about her conversation with G about the Father going to jail. DC Agostinho stated he kept the issue of possible coaching in the back of his mind, but that did not recall discussing with the Mother any possible coaching. He admitted on cross-examination that, in hindsight, it would have been an important question to ask the Mother.
[97] Second, the alleged touching that was reported was “over the clothes” and could have been very innocent, as part of normal play between G and his Father.
[98] Third, DC Agostinho investigated whether neighbours had responded to calls of the child screaming, as G had reported this to DC Agostinho. DC Agostinho, after contacting neighbours, testified that he was unable to find neighbours who would corroborate what the child had said. This was one of the factors DC Agostinho considered when he determined on August 10, 2021 that no charges were likely to be laid. I note, however, that the absence of corroboration is not a sufficient basis, on its own, to reject hearsay evidence: R. v. Khan, citing R. v. B. (G.), 1990 CanLII 7308 9SCC), [1990] 2 SCR 30 at p. 55.
[99] On August 11, 2021, the child’s recounting of the alleged sexual assault changed significantly. This was after DC Agostinho spoke with Ms. Hoffelner on August 10, 2021 to say that charges would not be laid. Ms. Hoffelner’s notes indicate that this was because DC Agostinho reported that (a) there was no corroboration with neighbours; (b) there were speech issues with the child; (c) that while the child was clear about his dad touching him, the child did not report him touching his Father, and (d) there was no touching reported underneath clothes.
[100] Ms. Hoffelner’s notes reveal that two minutes after this call with DC Agostinho on August 10, 2021, Ms. Hoffelner left a voicemail message with the Mother asking to see her and G on August 11, 2023. Ms. Hoffelner testified that the purpose of this meeting was to engage in safety planning. She explained that even though the criminal process would not be unfolding, she still had to conduct a safety assessment of the child.
[101] At the interview on August 11, 2021, the child reported more details of the alleged touching. Ms. Hoffelner testified that it is not CAST’s usual practice to audio or video record an interview with a child; it is the police who normally records interviews. Ms. Hoffelner said that she recorded in CAST’s note keeping system, minutes after her interview with the child, most questions and answers put to the child but not all.
[102] According to Ms. Hoffelner’s note, the child reported to Ms. Hoffelner on August 11, 2021 that (a) his dad touches the child’s penis and it gets big; (b) his dad touches his bum and then makes it hard; (c) his dad’s hand touches the child’s penis; and (d) his dad touches the child “through” the child’s clothes; and (e) his dad pulls his pants down and makes the child touch his dad’s penis.
[103] What is remarkable from this CAST note is that, in response to the second question put to the child, the child immediately launches into the allegation of sexual assault with the further particulars that were lacking in the initial interview with DC Agostinho. Ms. Hoffelner testified that she then stopped the interview, consistent with protocol, and reported the new details to her supervisor.
[104] On August 11, 2021, DC Agostinho, who had been working in the same building that day – the Child Youth and Advocacy Centre – was advised of the new allegations. He conducted his second interview of the child as a result of the new details reported by G to Ms. Hoffelner. Upon review of Ms. Hoffelner’s notes of DC Agostinho’s second interview, the child repeated some of the same details reported to Ms. Hoffelner earlier that day.
[105] I find that what the child reported to DC Agostinho and Ms. Hoffelner on August 11, 2021 was not reliable for the following reasons.
[106] First, both DC Agostinho and Ms. Hoffelner testified that they were alive to the possibility of G being coached. Both were aware from the August 9, 2021 interview that the Mother had told the child that the Father “needs to go to jail”. Ms. Hoffelner testified that the information G shared on August 11, 2021 was “very detailed for a child of his age”. Ms. Hoffelner left a voicemail message for the Mother on August 10, 2021. As this message was left two minutes after Ms. Hoffelner’s call with DC Agostinho, it is reasonable to logically infer that Ms. Hoffelner advised the Mother that charges would not be laid. It is possible she also explained the reasons why. Despite all of this, when the child promptly reported on August 11, 2021 further details of the alleged abuse filling in the precise evidentiary gaps identified by DC Aghostino, neither Ms. Hoffelner nor DC Agostinho questioned the Mother to assess whether coaching had occurred between August 9 and August 11, 2021.
[107] Second, on August 11, 2021, the child promptly reported to Ms. Hoffelner and DC Agostinho after the first question or two, of the new and significant details of abuse. This suggests the child was primed to provide these additional details. While I accept that Ms. Hoffelner did not record in her notes a verbatim recounting of her interview with G on August 11, 2021, her notes suggest that the child, without hesitation, promptly reported the missing details of the abuse.
[108] Similarly, the child promptly reported the further details when he was interviewed by DC Agostinho on August 11, 2021. The child’s interview with DC Agostinho was video recorded, but that recording was not introduced as evidence in the family trial. Hogan J., who did view this recording of the second interview with DC Agostinho, stated in her reasons at para. 12:
In G’s second interview on August 11, with DC Agostinho he was asked at the beginning of the interview, “Do you remember the most important thing when talking to a police officer – you do remember what that is, the rule? What is it? [G] immediately replied, “That my Dad touched me”. He then went on to state that his Dad touches his penis and makes it big and he keeps it in my bum and makes it hard. He stated at that point in the interview that when this happened his clothes were on but when his Dad touches his penis his Dad’s hand is inside his clothes. When asked by DC Agostinho to demonstrate for him what Daddy’s hand does he can’t do so and reverts to saying – “just touching”. When asked for more detail he at first says he is sitting when the touching happens but then states that his Dad makes him lay down. DC Agostinho then tells him that last time he didn’t say anything about “penis” and [G] answers that he did and then says his Mommy told him to tell about penis.
[109] Neither DC Agostinho nor Ms. Hoffelner, at the trial before me, offered evidence to suggest that that the child did not promptly report the additional details of abuse when he was interviewed on August 11, 2021. The fact that Hogan J. found, from the video evidence, that “Mommy told [DC Agostinho] to tell about penis” further supports a finding that the Mother influenced the child. All of this suggests the child had been primed by the Mother.
[110] Third, there is evidence to suggest that the Mother, intentionally or unintentionally, coached G. The Mother denied doing so. Although, she did give evidence that establishes she had communicated negative messages to G with respect to the Father, which may have contributed to or created G’s narrative. It is not disputed that she told G that if “someone” is touching G and that person does not stop, G should kick the person in the face. She also told G that people who touch a child’s privates should be in jail. The Mother’s testimony was that these were general messages communicated to G about anyone, and not directed at the Father. However, if these messages were communicated to G around the time of the disclosure, when the Mother was worried about potential sexual abuse and asking G questions about touching and the tickle feather game, one would expect G to make a connection to his Father. G told DC Agostinho and Ms. Hoffelner that the Mother told G that his daddy should go to jail. I find that the evidence establishes that that the Mother influenced the narrative that G reported to DC Agostinho and Ms. Hoffelner.
[111] Fourth, Hogan J., who did hear the child’s testimony during the criminal trial and after considering the legal principles for assessing a child’s evidence, rejected the child’s evidence. She concluded that the child’s evidence was inconsistent, that it changed fundamentally, and that the child was capable of making up a story: R. v. W., Reasons for Judgment, Hogan J., released February 24, 2023, paras. 41, 48 – 53.
[112] I asked counsel to provide authority as to whether I may rely on Hogan J.’s evidentiary findings, recognizing of course that different standards of proof apply to the ultimate issue of whether the Father engaged in sexual touching of his son in the criminal context (i.e., proof beyond a reasonable doubt) and in the family context (i.e., on a balance of probabilities). The Father’s counsel referred me to Malik v. Malik, 2019 ONSC 5959, and British Columbia (Atty. Gen.) v. Malik, 2011 SCC 18. The Mother’s counsel did not address this issue.
[113] The cases cited are not directly on point. They stand for the proposition that “a judgment of a prior civil or criminal case is admissible, if considered relevant, as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues”: see British Columbia (Atty. Gen.) v. Malik, 2011 SCC 18 at para. 7. In this case, the issue is whether Hogan J.’s evidentiary findings and conclusions with respect to the reliability of G’s evidence at the criminal trial should be afforded any weight because G did not testify at this family trial. This trial is not an interlocutory proceeding.
[114] I find that it is appropriate to admit and afford some weight to Hogan J.’s findings and conclusions with respect to her assessment of G’s evidence for the following reasons. The parties and the issues are the same. Hogan J. had better and more complete evidence than what was presented at this family trial. G testified at the criminal trial, but not the family trial. There was video evidence of interviews with G at the criminal trial, not entered as evidence in the family trial. The Mother had opportunity at this family trial to make argument or adduce other evidence that might result in me making a different evidentiary finding than Hogan J. with respect to the reliability of G’s evidence. She did not make new arguments, nor did she rely on new evidence. In fact, she relied on less evidence at the family trial than was presented at the criminal trial (e.g., she did not adduce the video recording of the child’s interview with DC Agostinho, or the video of the child on the boardwalk reporting inappropriate touching to the Mother).
[115] In British Columbia (Atty. Gen.) v. Malik, Binnie J. stated at para. 37:
The admissibility of prior civil or criminal judgments in subsequent civil proceedings, and the effect to be given to them, must be seen in the broader context of the need to promote efficiency in litigation and reduce its overall costs to the parties. The doctrines of res judicata, issue estoppel and abuse of process are all part of this larger judicial policy but they do not exhaust its potential.
[116] I find that an equally compelling judicial policy, like the need to promote efficiency in litigation and reduce costs to parties, is the need to avoid having a child testify twice. This, in my view, is a sufficient justification to admit prior evidentiary findings from a criminal judgment in a subsequent family trial, where the parties and the issues are the same or similar.
[117] For these reasons, I find that hearsay evidence of G, reporting inappropriate sexual touching by the Father to the Mother, DC Agostinho and Ms. Hoffelner, to be unreliable. There is strong evidence to suggest that the Mother had a role in what G reported to these individuals, and that she influenced what G reported to these officials. While I accept the child made the statements attributed to him, I am persuaded on a balance of probabilities that the statements were a product of G being influenced, either intentionally or unintentionally by the Mother or her family, to have G believe that innocent play by the Father was sexual in nature. As stated by Hogan J., I am also persuaded that the child was capable of making up a story. Even if I were not to admit or give weight to Hogan J.’s evidentiary findings, I would still conclude, on a balance of probabilities, that the alleged sexual touching did not occur. I prefer the reliable and credible evidence of the Father over the unreliable, hearsay evidence of G.
Other evidence of family violence
[118] I refer to the evidence of verbal and emotional abuse in chronological order.
[119] Parties admitted to having arguments prior to moving to Toronto in 2016. According to the Father, he and the Mother argued a lot. He saw the move to Toronto as being an opportunity for a fresh start in their relationship.
[120] In November 2016, when the Father was working out of the country, the parties engaged in a heated and abusive text message exchange. The Father was taken to the parties Whats’ App text messages from November 15, 2016 to November 17, 2016, when the Mother was contemplating having an abortion. He admitted in chief and while being cross-examined that this multi-day text message exchange with the Mother constituted significant verbal abuse directed by him towards the Mother. He explained, however, that while he fully respected the Mother’s right to choose to have an abortion, he was angry that the Mother was making this decision without hearing his views and without obtaining medical advice regarding fears the Mother had regarding her pregnancy.
[121] Having reviewed this text message exchange in its entirety, it does constitute significant verbal and emotional abuse by the Father against the Mother. The Mother also engaged in some abusive language, but it paled significantly in comparison to the abusive language used by the Father.
[122] The Mother testified that the verbal and emotional abuse was not isolated to this occasion. She stated it continued thereafter and was cyclical. She indicated she had years of similarly abusive text messages where the Father would say “fuck off”, “cunt”, and “you’re weak and pathetic”. However, she did not introduce any of those text messages into evidence.
[123] When the Mother was pregnant with G, the Father described the pregnancy as horrible for the Mother. He described the Mother as being very cruel, she would smash dishes, tell him to “fuck off”, and engage in name-calling. The Father admitted he was not blameless at this time, and that they both engaged in name-calling.
[124] When G was born, the parties continued to argue. This is confirmed in the CAST notes from February 2018. After the parties’ separated, there was one further incident when during a transition of the child at a Starbuck’s, the Father admitted to calling the Mother a bitch.
[125] On a balance of probabilities, I am satisfied that both parties engaged in verbal and emotional abuse, and that the parties’ continued to have oral disputes in front of G after he was born.
[126] Parties agree that there was at least one incident of physical violence but disagree on whether further incidents occurred.
[127] The Father’s testified that the only incident of physical violence occurred in Montreal at a hotel on New Year’s Eve in December 2016. He says the parties were intoxicated, had been arguing about the Mother’s recent abortion, and that the Mother hit the Father with a remote control. In response, the Father admitted to slapping the Mother. At trial, he admitted that this was inappropriate, and he expressed regret for his behaviour. He said he slept the rest of the night in the car.
[128] The Mother says there was more than one incident of physical abuse. She admitted that she had attacked him in Montreal by hitting his hand, and in response, the Father slapped her face with the back of his hand. She further testified that in January 2018, the Father had choked and spat on her, and that he wanted to smash her face in. The Father denies this further incident.
[129] To support her allegation of physical violence in 2018, the Mother relies on the CAST note from Ms. Borges from February 3, 2018 which was made after a home visit with the parties that day. The note reads:
“Along with [G] being born, [KF] and [JW] felt themselves distancing as their focus was on [G] and so they sought help from a couple therapist who reported them to CAS after one meeting. In this initial meeting with the therapist, the parties felt she wanted to focus on the worst of their marriage, much of which is historical. [JW] acknowledges that 2 years ago in Montreal, [JW] and [KF] were inebriated on New Years, got into a disagreement, and [JW] did put his hands around [KF’s] throat and spit on her. [JW] takes responsibility for this and has since been seeing a psychotherapist in Toronto, where he works on relationship issues….” [emphasis added]
[130] The Father denies that this is what he acknowledged to Ms. Borges. He denies ever putting his hands around the Mother’s throat, spitting on her, or ever threatening her. He states that when parties met with their therapist, he admitted to slapping the Mother, which was in response to the Mother hitting him with a remote control. This is the event that happened in Montreal. He states that this CAST note does not accurately reflect what he acknowledged, although the time period (i.e., New Years Eve 2016 in Montreal) is accurate.
[131] I am not persuaded, on a balance of probabilities, that the Father attempted to choke, spit on or threaten the Mother. I come to this finding for the following reasons.
[132] The CAST note is not clear as to whether the statement references what the Father acknowledged to Ms. Borges or what he is alleged to have acknowledged to their therapist, Ms. Nobel. The reference in the preceding sentence to “the initial meeting with the therapist” makes it confusing as to whether the next sentence is in reference to what the Father acknowledged to Ms. Borges or to Ms. Nobel. Neither Ms. Borges nor Ms. Nobel provided evidence at trial.
[133] According to both parties’ testimony, the CAST note about this second incident of physical violence is not accurate. The Father admits that he did report to Ms. Nobel, when asked about the worst thing that had happened during their marriage, about the fight with the remote control and the slap in Montreal on New Years in 2016. Then Ms. Nobel met with the Mother privately. Thereafter, Ms. Nobel called CAST.
[134] The Mother’s evidence is that the incident of choking and spitting was not in Montreal. She states it happened just before the parties went to see Ms. Nobel in January 2018. She was complaining about breastfeeding and in response, the Father said he wanted to smash her face in. She said he then followed her into the hallway and proceeded to strangle her up against the wall. The next day, she arranged for the parties to meet with Ms. Nobel. The Mother acknowledged that the parties each met separately with Ms. Nobel, but that the Mother described this incident to Ms. Nobel when both parties were in the room.
[135] The initial call from the Ms. Nobel to CAST, as recorded in the CAST note, states that the incident of choking and spitting happened just four weeks prior to the parties’ meeting with Ms. Nobel, not two years prior on New Year’s Eve in 2016 as recorded in Ms. Borges’ notes, and not “just shortly before Sarah Nobel was called”, as alleged by the Mother. While the CAST note is more consistent with the Mother’s testimony at trial, it remains unclear whether this version of events is what the Mother had reported to Ms. Nobel and not what the Father acknowledged to Ms. Nobel or Ms. Borges.
[136] As both parties state that the content of the CAST note is inaccurate – the Father denies the choking and spitting and the Mother says the timeframe and location are inaccurate – I do not find this CAST note to be reliable. Without hearing from Ms. Borges or Ms. Nobel, it is not possible to rely on the CAST note as corroborating one party’s version of events.
[137] There was a further incident reported by the Mother. On January 28, 2019, the night when the Father called the police and the police arrested the Father, for uttering a death threat that night, the Mother stated that she was bruised on her arms because of the Father grabbing her arms firmly. She testified that he did not hit her that night. I am not persuaded there was physical violence that evening. The police did not lay assault charges relating to events on January 28, 2019. The Mother testified that she had forensic photos taken of her bruises on January 30, 2019, but she only adduced her own photos – and not Police forensic photos of the bruises. No charges were laid. Even if the Father did hold the Mother’s arms firmly, it would appear to be a relatively minor incident of physical violence. It seems equally probable that the bruises related to her barricading herself in a room with G that night. The Mother testified that she did not even notice the bruises until the following morning.
[138] For these reasons, I find that both parties had engaged in physical violence, but they were minor and isolated incidents. Given the criminal trials that have occurred and the fact the parties are now separated, I am persuaded that future violence is unlikely to occur between the parties.
Coercive Control
[139] The Mother testified about a pattern of coercive control in the parties’ relationship. In Washington D.C., she said she wanted to spend time with her friends and workout, but the Father wanted her to spend more time with him, so she placated him. In Toronto, when G was born, she said she assumed primary care of the child and that the Father was not letting her take breaks. Her only break was when she went to Washington D.C. for a long weekend to work. She said that the Father told her that until she got a full-time job, parenting was her full-time job. She said the Father would frequently stay out until 2 a.m. after drinking and smoking cannabis all night. If she woke him up, he would get mad at her. She said the Father had a “hair trigger” temper. She would keep G in a baby carrier so that she could leave the home on a moment’s notice with the child to mitigate the child’s exposure to conflict.
[140] There was insufficient evidence, in my view, to support a finding that the Father exerted a pattern of coercive control over the Mother. When the Father was cross-examined, he was taken to a text message on January 25, 2019 where the Mother asked the Father for a break because she was having an anxiety attack. He testified that he did respond to her text by coming home and allowing her to take a break. He explained that he may have arrived 20 minutes late, but that he did provide her with a break that night and others. He also responded to the Mother’s claim that he engaged in conduct to isolate her. He explained that when G was very young, and because the Mother was breastfeeding, she needed to be around G more regularly. He denied attempting to limit her freedom. He explained that the parties had a parenting schedule in place, and that it was often on the Mother’s parenting time that the Father would receive text messages asking him to relieve her. I note that the night of January 28, 2019, which led to the charges being laid, the Mother was out with friends while the Father was home caring for the child. At the time, the child was one and a half years old. The Mother testified that prior to separation, the Mother would return to the USA to work while the Father cared for the child. This is inconsistent with the Mother’s testimony that the Father prevented her from working.
Impact of Family Violence on the Child
[141] The Mother and the Father both engaged in name-calling and arguments in the child’s presence prior to separation. Post-separation, the Mother also engaged in behaviours which support a finding that she negatively impacted the child’s views of his Father by what she has communicated to G. I turn to the issue of parental alienation next.
[142] The Father also admitted to yelling and name-calling in front of the child prior to separation. Post-separation, during a transition he admitted to calling the Mother a bitch in the child’s presence.
[143] At trial, the Father acknowledged the inappropriateness of this behaviour. His counsellor, Ms. Colleen Kamps, testified about the work the Father has been doing with her in managing his emotions. Consistent with the Father’s testimony, she indicated that the Father expressed to her that he wishes no harm to the Mother, or a desire to exclude her from G’s life. Rather, his focus has been on managing his emotions, and to remain hopeful of having time with his son again. She found him to be open and candid at their meetings. I am persuaded that to the extent the Father holds negative feelings towards the Mother, he recognizes that it is not in the child’s best interest to expose G to his anger or the parties’ conflict. I am not concerned the Father’s past inappropriate outbursts in front of G will reoccur.
Parental Alienation
[144] The Father alleges parental alienation by the Mother.
[145] Parental alienation has been described as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship.” Alfredo Ciarlariello v. Annina Iuele-Ciarlariello, 2014 ONSC 5097 at para. 3.
[146] The long-term harm of encouraging or allowing a child to reject a parent was stated succinctly by McGee J. in S. v. A., 2021 ONSC 6976, at para. 30:
Whether passively permitted or actively encouraged, a child who rejects a parent is parallelly empowered to reject other important people in his life. He is taught to avoid difficult feelings instead of how to cope with them and to work through them. He suffers an emotional impairment that deprives him not only of the love and protection of a parent, but of a wide array of complex social relationships.
[147] The effect is to seriously undermine the parent-child relationship, with negative consequences for the child.
[148] Parental alienation is a legal concept as opposed to a mental health diagnosis, which may be determined without expert evidence: A.M. v. C.H., 2019 ONCA 764 at para. 35; O.M. v. S.K., 2020 ONSC 3816.
[149] The test often cited for parental alienation, set out by McKinnon J. in Fielding v. Fielding, 2013 ONSC 5012, at paras 134-137, is met when the following four criteria are present:
a. There was a positive relationship with the targeted parent;
b. There is an absence of abuse by the targeted parent;
c. The alienating parent uses many of the alienating strategies; and
d. The child exhibits most of the alienated child behaviours.
[150] In this case, I am satisfied that G had a positive relationship with the Father. Based on the Father’s evidence, I am persuaded that he had a close, loving and affectionate relationship with G prior to August 2021, but since then, there has been no relationship. He described his work experience with children in the past working at SickKids hospital and overseas. During his parenting time with G, he would engage in crafts, take him to the aquarium and Blue Jays game, and had registered him in soccer. The Father witnessed G, enjoying his time with him, and described G as a “very fun, happy, laughing little boy.” The time he spent with his son was not insignificant. He had extended periods with his son, including some periods lasting a week or more, with overnights. The last time the Father saw G, G ran to his Mother and then returned to give his Father another hug. The Mother did not offer evidence to counter that a positive relationship existed. Therefore, the first prong of the test is met.
[151] For reasons given, I am satisfied that the Father did not sexually abuse the child. I am satisfied that the child, when he was around one and a half years old, had witnessed verbal arguments between the parties. In addition, I am satisfied G witnessed at least one occasion when the Father engaged in name-calling of the Mother during a transition at Starbuck’s. However, the evidence from Ms. Robertson is that the only reason G does not wish to see his Father at this time is because of the alleged inappropriate touching. I am satisfied nothing improper occurred. Therefore, the second prong of the test is met.
[152] In terms of the third and fourth prong, there are a list of factors, based on expert evidence in other cases, which can assist the court in determining whether alienating strategies or alienating behaviours exist: Fielding, supra at para 136 and 143; A.M. v. C.H., 2018 ONSC 6472 at paras 108 – 109. The list is lengthy and I will not repeat it all, except to identify whether such alienating strategies or behaviours have been found to exist in this case.
[153] In terms of alienating strategies, I find that the Mother has engaged in the following alienating strategies:
a. She has badmouthed the Father. She has told G that his Father should be in jail. This is what the child reported to DC Agostinho and Ms. Hoffelner.
b. The Mother created an impression that the Father was dangerous. She told him that he needed to go to jail. She encouraged the child to kick the Father in the face, rather than discuss with the Father that he disengage if the child says he no longer wished to play a game that involved touching.
c. The Mother has limited contact between G and the Father. Immediately after the Father’s first arrest, she left for the USA with G for several weeks. She did not bring G to a scheduled transition location. The Father had to engage a lawyer to locate the Mother and have her return with G. Thereafter, she made it difficult for the Father to exercise parenting time with G. Finally, on August 9, 2021, when she agreed to an equal parenting schedule, she failed to advise the Father or the Court of a CAST investigation that ultimately resulted in criminal charges and derailed the parenting plan to which the Mother had agreed.
d. The Mother has sought to distort comments of the child to justify accusations. When the child attended his second interview with DC Agostinho on August 11, 2021, the child told DC Agostinho that “Mommy” told G to tell DC Agostinho about “penis”. For reasons given, I am satisfied she influenced what the child reported. While I accept the Mother’s acknowledgement that she will never know whether there was abuse, her steadfast belief in what the child has reported was unreasonable after factoring in the child’s age, the inconsistencies in what he reported, the absence of corroborating evidence, and the child’s capacity to make up a story.
e. Through her actions, the Mother has demonstrated she does not believe the child has any need for a relationship with the Father. Following the Father’s second arrest, there was no effort on her part to try to resume a supervised parenting schedule, or even a telephone or video call between the child and his Father. She was aware of the impossible conditions imposed by CAST that would have prevented any sort of supervised parenting schedule with the Father, yet she did not advocate or seek to implement even a telephone or video call with him and the child.
Furthermore, after the Father was acquitted, rather than finding ways to permit a resumption of the parent-child relationship, she double-downed. She asked a Boost Worker and DC Agostinho to call CAST to report a concern for the child’s safety, although she had no information to suggest the Father would abscond with the child. In fact, the Father was out of the country in Asia for work when the decision acquitting the Father was released. The effect, if not the intent, was to further delay a resumption of the parent-child relationship.
She delayed Ms. Robertson commencing her work as a trauma assessor. Shore J., in her Endorsement on August 2, 2023, found that the Mother did not accept any of the first three dates offered for Ms. Robertson to commence her work with the child, notwithstanding a prior Order that she was to accept the first available date. And up until trial, she also sought to permanently relocate with the child to the USA, which would have had serious implications for the Father’s relationship with G.
These facts speak to the lack of importance the Mother placed in the child’s relationship with his Father, and her desire to delay the resumption of a parent-child relationship.
[154] In terms of indicia of the child experiencing alienating behaviour, the best and most recent evidence from the child is from Ms. Robertson. The focus of her assessment was on the child’s trauma. It did not opine on whether alienation occurred or what would be the most appropriate parenting plan. However, her report does speak to the child’s attitudes towards his Father. Ms. Robertson reported the following:
a. Rejection of the Father. The child was avoidant when discussing anything related to his Father. His facial expression would change, his jaw looked tense, he clenched his teeth and would became dysregulated. The child said he does not want to see his dad “because what he did”, although the child stated that what happened with his Father was not scary or frightening. When asked what he likes about his dad, the child responded, “don’t like anything.” When asked if there was anything else he doesn’t like about his dad, the child responded, “that he touched me.”
b. Child is ambivalent towards his dad. When asked to name members of his family, he did not name his Father. However, later the child confirmed that “dad likes me because he’s my family”. The child said he thinks about his dad a little of the time, as compared to other things he thinks about (Star Wars most of the time, then dinosaurs, science and space).
c. Child blames his dad. The child stated that he does not see his dad “because of what he done”. Later, he put a mark beside his dad’s name when asked who was to blame for what happened. However, the child, at a different point of the assessment indicated that he thought “nothing” should happen to the person who touched him.
[155] In my view, the test has been met for a finding of parental alienation. However, unlike other cases of parental alienation, where there is a pattern of intentional denigration by the alienating parent towards the targeted parent leading to the child being alienated from the targeted parent, this child’s perception of the Father in this case is from a single alleged incident. In the child’s mind, his reasons for not having a relationship with his Father are not “trivial, false or irrational.”
[156] Furthermore, while I am satisfied that the Mother had a role in influencing the child’s narrative, it is not a clear case of one parent intentionally belittling or demonizing the other to sever the parent-child relationship. On a balance of probabilities, what more likely appears to have happened is an overly concerned Mother or her family who either sexualized an innocent game in the child’s mind, or who repeatedly peppered the child with questions and suggestions that impacted the child’s narrative and reality. The result is an impression in the child’s mind that his father is bad and should be in jail. I am not persuaded there was a pattern of conduct on the part of the Mother to denigrate the Father to sever the parent-child relationship. Rather, I am satisfied that the Mother, as a result of her own irrational thinking and suggestive questions put to the child, had a reason for concern, albeit a concern that was unsupported by any evidence, to protect the child from the Father.
[157] For these reasons, while I find there is parental alienation, I am not persuaded it was done with malice. However, I do find her actions were unreasonable and irrational, and that she failed to place any importance on the relationship between the child and his Father, especially after the Father was acquitted.
[158] I am satisfied that the Mother assumed a greater role in the care of the child from birth until the parties separated in January 2019. This was largely because the child was being breastfed for the first several months, the Father was working, and the Mother was not. However, there were times prior to separation when the Father would care exclusively for the child, including overnights, while the Mother was working in the USA. The parties also had some form of informal parenting schedule prior to separation, which involved a sharing of parenting responsibilities.
[159] Shortly after separation, a parenting schedule was in place that had G spending approximately 35% of the time with the Father, and 65% of the time with the Mother. This included overnights. The Father testified that he worked from home and his hours were flexible, allowing him to be active in the parenting role. By the August 9, 2021 case conference with Shore J., parties agreed to an equal 50/50 week about parenting schedule, but it never materialized due to the second criminal charges.
[160] The Father had a close, loving and affectionate relationship with G prior to August 2021, but since then, there has been no relationship.
[161] I am also satisfied that G has a close and loving relationship with the Mother. While the Mother gave virtually no evidence of her relationship with G, other witnesses did. Ms. Y.K., a friend of the Mother, testified that she has a son around the same age as G, sees G and the Mother regularly, and has witnessed the Mother with G. Ms. Y.K. described the Mother as “a really good mother”, who was “caring and patient”. She testified about the emotional support she provides to G, and generally, how she cares for him. Similarly, G’s teacher, Ms. S. VB, testified. She testified that she witnessed no parenting concerns with the Mother. The child arrives and is picked upon time, is dressed appropriately, has a lunch packed, and she has no concerns with G at school.
Capacity to Parent
[162] In terms of the Father’s capacity to parent, a few concerns were raised by the Mother. She testified that G would often have a bad odour after returning from his Father’s home, and that his teeth were not properly brushed. She introduced photo evidence of plaque buildup on the child’s teeth. She also alleged that the Father was a regular cannabis user prior to separation, but she offered no evidence of the Father consuming cannabis post-separation or while the child was in his care.
[163] The Father admitted to smoking cannabis socially but never when he parents G. I accept the Father’s evidence on this point as being truthful because I found him credible. I am not persuaded that he would place the child at risk. The other parenting concerns are minor and could be properly addressed with communication protocols in place. The evidence was that from separation to August 2021, communication was largely through lawyers, and it would have been an expensive communication protocol for minor issues.
[164] The Mother also testified about behavioural concerns with the child post-separation when parties were sharing parenting time in the spring of 2020. Her evidence was that after spending time with the Father, he would return to the Mother and would be clingy with her, display aggressive behaviours, and had a fear of men, such as a friend’s husband or the Mother’s brother. The Mother’s lawyer wrote to the Father about these concerns, proposing play therapy. The Father stated he was not opposed to therapy, but he did not witness any of these behaviours while G was in his care. He wanted there first to be some assessment of what was causing these behaviours. The Mother’s friend, Ms. Y.K., testified to witnessing these behaviours before and after the child spent time with the Father.
[165] There is insufficient evidence to conclude that G’s behavioural issues were related to the Father’s capacity to parent. There was no assessment done at that time which would draw this link. At the time these behavioural issues were reported, G was two years old. These behaviours are not atypical for a child of that age. In fact, a CAST worker investigated these concerns and concluded that the behavioural issues may be a product of the child’s age and difficulties he experiences in expressing his feelings. The CAST file was closed.
[166] In terms of the Mother’s capacity to parent, I am not persuaded there are concerns other than the alienating concerns mentioned. The Father alluded to the possibility of the Mother having undiagnosed Factitious Disorder Imposed on Another (FDIA), formally known as Muchausen Syndrome by Proxy. His theory was that she ascribed ailments or symptoms to G that did not exist. There was no expert evidence of the Mother having this condition. However, I can see how the Father may have come to this conclusion if the Mother, through her words or actions, contributed to a fictional narrative in G’s mind that he was the victim of sexual abuse.
Parental Contact Principle
[167] Section 16(6) of the Divorce Act states that Courts shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. Given the Father’s history of parenting, his close and loving relationship with the child, and his capacity to parent, I am satisfied that it is in G’s best interests that he spend significant time with his Father. It is contrary to his best interests to be estranged from him.
Parties’ Capacity to Cooperate
[168] In terms of the parties’ capacity to communicate and cooperate, there are challenges. There is distrust between the parties. Between 2020 and 2021, the parties were able to co-parent, although it was constrained in part because they were primarily communicating through lawyers. From the Father’s perspective, due to the subsequent criminal charges, it is his position that the parties are now unable to communicate effectively in a co-parenting relationship. For this reason, he seeks sole decision-making so that he may stabilize his life and G’s life.
[169] From the Mother’s perspective, she appears to be willing to co-parent, provided that her voice is not silenced and she has some control. The control she seeks to exercise relates to spending time in Michigan with her family and G, scheduling medical appointments, being able to return to working as an Occupational Therapist, and being able to propose options for major decisions in G’s life rather than have the Father dictate them.
Child’s Cultural Upbringing and Heritage
[170] There is a dispute as to whether the child is an American citizen. Evidence was adduced showing that the child’s birth was registered with the United States government as being a birth abroad. The Father said further paperwork is necessary to determine whether the child is a US citizen, and that he wants the child to decide whether he becomes a US citizen.
[171] The Mother is of the view that this document establishes his US citizenship. For her, it is important that the child has USA citizenship because this is the Mother’s heritage.
[172] Whether the child is already an American citizen or should be made an American citizen is not a determination either party asked this Court to make, assuming it has the authority to do so.
[173] What is relevant for parenting is whether the child should be permitted to spend time with his family in the USA. The Father did not oppose this. In my view, the child should be permitted to spend time with his extended family, in Canada or the USA, and that he should be permitted to form close bonds with those extended family members.
Plan of Care for the Child
[174] Little evidence was given as to the parties’ plans of care for G. Neither filed current Form 35.1 Affidavits.
[175] The Father’s intention is to remain in Toronto. He expressed a desire to change G’s school. He has some family in the Toronto area (Brampton), and his sister lives in Alberta. His prior house arrest limited his social connections. His connections are mostly professional.
[176] Since the Mother had originally sought to relocate to the USA but abandoned that relief at trial until she knows what parenting orders will be made, her plan of care in Toronto is unclear. The evidence at trial is that she has some friends in Toronto. She is not currently working. In terms of the child’s school, the Mother would like G to remain in his current school for stability. She testified that she had mixed feelings about G spending time with the Father, but that she supported Ms. Robertson’s reunification plan provided that safeguards were in place to ensure G was safe.
Child’s Age and Need for Stability
[177] The child is now six. He was one and a half years old at separation, and three and a half when the allegations of abuse arose. He has not seen his Father in over two years. He has low-level trauma. He is performing well at school and has friends in the community.
[178] Given the child’s trauma and his age, I find there is a significant need for stability in a safe and nurturing environment.
[179] There is no expert evidence as to an appropriate parenting plan for the child.
Child’s Views
[180] The child’s views, given his age, have limited weight. The Court only has limited evidence of his views - he does not wish to spend time with his Father. His views are clear, but I decline to give any weight to his views. When there is a finding of parental alienation, little weight should be given to the child’s wishes: A.M. v. C.H., 2018 ONSC 6472 at para. 156.
Parenting Orders
[181] Having considered the above and all the evidence at trial, I find that it is in the child’s best interest, giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being, that the following parenting orders issue. I make orders relating to the parenting schedule, communications, and parental decision-making. I then provide reasons for the Orders made.
[182] I order the following parenting schedule:
- The child shall continue to engage in reunification therapy, as directed by Ms. Robertson. Ms. Robertson may terminate the therapy should she come to the view that it is no longer necessary, or if she recommends continued therapy with another therapist.
Regular Schedule
- The child’s regular residential schedule shall be as follows:
a. Effective February 1, 2024, the child shall reside with the Father:
i. Every Tuesday from after school pick-up to 7:30 p.m.; and
ii. Every Saturday from 10:00 a.m. to 5:00 p.m.
b. Effective March 1, 2024, the child shall reside with the Father:
i. Every Tuesday and Thursday, from after school pick-up to 7:30 p.m., except during the March Break from March 11 to 15, 2024, the child shall reside with the Father from Tuesday March 12, 2024 at 9:00 a.m. to Thursday March 14, 2024 at 6:00 p.m.; and
ii. Every Saturday from 10:00 a.m. to 5:00 p.m., except on March 30, 2024, the child shall reside with the Father overnight from Saturday March 30, 2024 at 10:00 a.m. until Sunday March 31, 2024 at 6:00 p.m. (for Easter weekend).
c. Effective April 1, 2024, the child shall reside with the Father:
i. Every Tuesday from after school pick-up to 7:30 p.m.; and
ii. Every Friday from after school pick up, overnight to Saturday at 6:00 p.m.
d. Effective June 1, 2024, the child shall reside with the Father:
i. Every Tuesday from after school pick-up to Wednesday morning drop-off at school.
ii. Every Friday from after school pick-up to Saturday at 6:00 p.m.
e. From the last day of school on June 28, 2024 to the return of school on September 3, 2024, the child shall reside with the Father:
i. From June 28, 2024 after school pick up to July 5, 2024 at 6:00 p.m.
ii. From July 12, 2024 at 6:00 p.m. to July 19, 2024 at 6:00 p.m.
iii. From July 26, 2024 at 6:00 p.m. to August 2, 2024 at 6:00 p.m.
iv. From August 9, 2024 at 6:00 p.m. to August 16, 2024 at 6:00 p.m.
v. From August 23, 2024 at 6:00 p.m. to August 30, 2024 at 6:00 p.m.
f. In the above schedule, the child shall reside with the Mother at times not indicated.
g. Effective September 3, 2024 and continuing thereafter, the child shall reside with the parties on a 2/2/5/5 schedule as follows:
i. With the Father every Monday from 9:00 a.m. to Wednesday at 9:00 a.m. (drop-off at school).
ii. With the Mother every Wednesday at 9:00 a.m. to Friday at 9:00 a.m. (drop-off at school).
iii. With each party on alternating Fridays from 9:00 a.m. to Monday at 9:00 a.m., with the child residing with the Father on the first alternating weekend commencing Friday September 6, 2024 to Monday September 9, 2024, which his usual Monday to Wednesday parenting time continuing to September 11, 2024.
h. The above phased-in schedule may be varied by agreement of the parties in writing. Alternatively, a phase may be delayed if Ms. Robertson advises the parties in advance in writing that the implementation of the next phase would be detrimental to G’s emotional or psychological well-being. Before delaying a phase, Ms. Robertson shall consider whether supports might be implemented during a phase (e.g., conducting reunification therapy during or around a scheduled phase), rather than delaying the phase. However, both parties and Ms. Robertson shall seek to implement the above phased-in schedule with only brief delays, if any. In the event of a disagreement, a summary determination shall be made by me. Parties shall request an urgent hearing before me, where I will review Ms. Robertson’s reasons in writing and hear submissions.
i. All transitions shall occur at the child’s school (or daycare), or if the child is not in daycare or school, at an agreed upon public location (e.g. coffee shop or gas station). It is the responsibility of the resident parent to drop-off the child.
j. If the child is ill and cannot attend school on a transition day, the resident parent shall contact the other parent as soon as possible. If the illness is mild, the transition shall occur at the scheduled time, however the drop-off shall occur at the non-resident parent’s home. If the illness is not mild, the resident parent shall make immediate arrangements for medical care of the child.
k. If the child is attending school and becomes ill or injured, the parent who has parenting time is responsible for picking up and caring for the child. The resident parent, however, may request the other parent to arrange for pick up and care of the child if the resident parent is unavailable.
l. Parties may arrange for babysitting or other care of the child during the day while it is their parenting time. If a parent is unable to spend an overnight with the child during their parenting time, they shall first seek to have the other parent care for the child before seeking an alternative caregiver.
Holiday Schedule
- The child’s holiday schedule overrides the regular parenting schedule. It may be altered only by court order or written agreement of the parties. The holiday schedule commences as of September 3, 2024.
a. Family Day: In even-numbered years, the child shall be with the Father from Friday at 9:00 a.m. of the Family Day Weekend, until Tuesday morning at 9:00 a.m. In odd-numbered years, the child will be with the Mother for this period.
b. March Break: In even-numbered years, the child shall be with the Mother on the Friday at 9:00 am before the March Break (according to the Toronto District School Board (“TDSB”) Elementary School calendar) at 9:00 am, until the following Friday at 9:00 am. In odd-numbered years, the child will be with the Father for this period.
c. Easter: In even-numbered years, the child shall be with the Father on the Easter weekend, commencing on Good Friday at 9:00 am, until Tuesday at 9:00 am (after Easter Monday). In odd-numbered years, the child will be with the Mother for this period.
d. Victoria Day: In even-numbered years, the child shall be with the Mother on the Victoria Day weekend, commencing on the Friday at 9:00 am until Tuesday at 9:00 a.m. following Victoria Day. In odd-numbered years, the child will be with the Father for this period.
e. Summer Vacation: The summer vacation period is 8 weeks. It commences the first Friday before the TDSB summer school closure starting in 2025. During this period, the parties shall each have one two-week block of vacation with the child, and two one-week blocks of vacation with the child.
In even-numbered years, the Father shall have the first two-weeks of summer vacation, commencing on the Friday of the last day of school at 9:00 am. and ending two weeks later on the Friday at 6:00 pm. This will be followed by:
the Mother having one week,
the Father having one week,
the Mother having two weeks,
the Father having one week, and
the Mother having one week.
In odd-numbered years, the schedule is reversed with the Mother having the first two-weeks of summer vacation.
All transitions shall occur on Fridays at 6:00 pm. Parties may agree to another division of summer vacation weeks or a different transition time.
The regular parenting schedule follows on the Friday of the last week of summer vacation period. For example, if the TDSB summer vacation is longer than 8 weeks (as it often is), then the regular parenting schedule governs the remaining weeks.
f. Labour Day: In even-numbered years, the child shall spend Labour Day weekend with the Mother, commencing on the Friday at 9:00 am until the beginning of school on Tuesday at 9:00 a.m. In odd-numbered years, the child will be with the Father for this period.
g. Thanksgiving: In even-numbered years, the child shall be with the Father on the Thanksgiving weekend, commencing on the Friday at 9:00 am until Tuesday at 9:00 a.m. following. In odd-numbered years, the child will be with the Mother for this period.
h. Christmas Break: In even-numbered years, the child shall reside with the Mother from the last day of school (according to the TDSB School calendar) at 9:00 a.m. until December 25 at 12:00 noon. The child will reside with the Father from December 25 at 12:00 noon until January 2 at 12:00 noon. The child will reside with the Mother from January 2 at 12:00 noon until the first day of school at 9:00 a.m. In odd numbered years, the child will be with the other parent for the periods specified.
i. Birthdays: The non-resident parent shall be entitled to spend 3 hours with the child on his birthday (i.e. December 20) from the hours of 10:00 a.m. to 1:00 p.m.
j. Mother’s Day / Father’s Day: The child shall reside with the Mother from 5:00 p.m. on the Saturday before Mother’s Day to the following Monday at 9:00 a.m. The child shall reside with the Father from 5:00 p.m. on the Saturday before Father’s Day to the following Monday at 9:00 a.m.
- If either party seeks to have additional or different holiday time, they shall write to the other party at least 30 days prior to the requested date and shall propose at least 3 options for how make-up parenting time for the other parent shall be afforded. The party receiving such a request shall not unreasonably deny the request.
[183] I make this parenting schedule order for the following reasons.
[184] The parties agreed before Shore J. that an equal shared parenting schedule would be made. It is presumed that when parties agreed to this schedule, they understood it to be in the child’s best interests. The allegations of sexual abuse, which I found have not been proven on a balance of probabilities, derailed implementation of the parties’ agreement. Subject to new material circumstances arising, the schedule the parties agreed to should be implemented.
[185] The child has not spent any time with his Father in over two years, and he is now reluctant to see his Father. The child now suffers from low level trauma. A need for stability in the young child’s life exists, given his young age, but there is an equally important objective of repairing the severed parent-child relationship. A swift phased-in schedule responds to both objectives.
[186] I decline to order a blackout period and parenting reversal due to the parental alienation. Such orders are appropriate when children who have been alienated are older, because it is more difficult to change the habits and thoughts an older child has with respect to a parent as a child gains agency: Epshtein v. Verzberger-Epshein, 2021 ONSC 7694 at paras 139 -141.
[187] In this case, G is young, and a blackout period and parenting reversal is not necessary. It may exacerbate his trauma and be contrary to his need for stability. This case is unlike others where a child needs to be removed from a continuous poisonous atmosphere of the alienating parent’s orbit, notwithstanding the emotional impact separation will cause to the child: K.K. v. M.M., 2021 ONSC 3975 at para. 750. Here, the alienating behaviour relates solely to the Mother’s influence around a single allegation of abuse. There is no evidence of other alienating behaviour. Furthermore, the child is undergoing reunification therapy to counteract the alienation. The Court has confidence in Ms. Robertson’s skills to ameliorate G’s trauma, and her combined efforts with Ms. Kamps and the Father to promote a mindset in the child that is conducive to reunification with the Father.
[188] For these reasons, I have decided to adopt a gradual but swift phased-in parenting schedule that is responsive to G’s age and need for stability. The parenting schedule ordered injects overnights within a couple of months. This, in my view, is necessary to give G opportunities to see his Father in a positive light, to counteract any negative messages he has received, and to mute opportunities by the Mother, whether intentional or not, to sabotage any progression in that relationship.
[189] I have given Ms. Robertson a role in determining whether implementation of a phase should be delayed briefly. She is best positioned to assess the child’s trauma and need for stability. However, it is the intention behind the Order that each of the phases shall be implemented and that delays, if any, are brief. Ms. Robertson shall consider whether, rather than briefly delaying implementation of a phase, other supports may be implemented (e.g., scheduling reunification therapy sessions immediately prior to and following the first overnight visit).
[190] There is no basis for any of the Father’s parenting time to be supervised.
[191] While parties had agreed in 2021 to a week about schedule, rather than the 2/2/5/5 schedule ordered, I chose to order the latter. This is because the child is six years old and has not had any contact with his Father for over two years. A seven-day absence from the Mother would run counter to his need for stability. On the other hand, a week about schedule may be preferred by the parties, particularly by the Mother for work-related reasons. However, I must only consider the best interests of the child when making parenting orders. I do not know when a week-about schedule would be appropriate for this child, but I am persuaded that a 2/2/5/5 schedule is appropriate based on the evidence I do have. The parties, by agreement, may opt for a week about schedule if they jointly determine it is in the child’s best interests, notwithstanding my Order.
[192] I have ordered week about parenting time in the summer, starting in the summer of 2024. I made this Order because summer vacation time is different than the regular schedule. It is assumed that the parties will make vacation plans, where the child will be amused and entertained by new activities and adventures. The summer vacation period also only lasts for 8-9 weeks. In my view, it is also necessary for the child to have periods of extended time with his Father to redevelop a relationship with him and extended family members. The child did enjoy periods of weeks of parenting time with his Father before the allegations of abuse arose. Furthermore, in my communications Order, I order the parties to allow the child to speak with the non-resident parent, which should support the child if he misses the other parent.
[193] An advantage of a 2/2/5/5 schedule, particularly for parents who have difficulty cooperating, is that it allows them to consistently schedule activities for the child on the same weeknights. Therefore, it reduces the potential for conflict as between the parties and promotes opportunities for children to be engaged in extra-curricular activities.
[194] The holiday schedule ordered is typical for separated parents. I have not included American holidays and I am mindful that the Mother has family in the USA. It is in the child’s best interest that he spend time with his extended family. For this reason, I have included that either party may ask for additional or different holiday time with the child, provided they provide three options as to how make-up parenting time will be afforded. The party receiving such a request may not unreasonably deny the request.
Communications
[195] I make the following communications orders:
Neither party shall criticize, denigrate, or disparage the other party or members of their extended family, either overtly or covertly, in any communication with the child or in the child’s presence. This includes suggesting to the child the other party has engaged in inappropriate or improper behaviour, or what consequences should be imposed on the other party for any alleged inappropriate behaviour.
Each party will advise others, including their extended families and friends, to maintain the same strict standards, refraining from criticizing, denigrating, disparaging the other party, or alleging inappropriate conduct by the other party, to or in front of the child.
Neither party shall speak with the child directly or indirectly about any issues related to child or spousal support, property or financial issues between them.
The parties shall not ask the child to relay information between them, nor shall they discuss parenting schedules or other contentious issues at transition times. Rather, parties shall communicate directly with one another about issues relating to parenting or other contentious issues in the manner as ordered.
The parties shall communicate by email but may communicate by text message or telephone in cases of emergency or last-minute scheduling matters. In all communications, the parents shall be polite, factual, child-focused, brief and respectful. Parties shall not send more than two emails per day, unless the circumstances make such communication necessary. Under no circumstances, shall parties engage in swearing, abusive or threatening communications with each other.
If requested by one party, both parties shall promptly begin using Our Family Wizard or other similar parenting communication application, instead of email.
The parties shall respond to non-urgent communications within 48 hours of receipt, and they shall respond to urgent communications as soon as possible. The parties shall check their emails/parenting application regularly.
The parties shall promptly communicate all medical information when the child is ill, including any symptoms noticed, any medications administered, and any treatments advised by a treating physician.
During a party’s parenting time, they have the right not to be interrupted with unnecessary email communication from the other party. For clarity, a party is not required to provide regular updates on the welfare of the child to the other party during a party’s parenting time. However, if the child is ill, they shall provide regular updates at least once a day.
The child shall be permitted to communicate with the non-resident party via telephone or video (e.g. FaceTime, WhatsApp) when the child asks to do so. In addition, during vacation weeks, the non-resident party shall have at least two telephone or video calls for every seven days the child is away from the non-resident party.
Should a party come to believe the other party has breached a term of this order, parties may request a case conference before me from the Family Trial Office to seek leave for a motion for contempt to be scheduled.
[196] These orders replace and vary the less comprehensive mid-trial order made with respect to the parties’ communications to the child. They are to be adhered to strictly. I have concluded that the Mother or her family had a role in creating a false narrative in the child’s mind with respect to the alleged abuse. For this reason, this communication order is more comprehensive and prohibits discussions about perceived inappropriate behaviour by the other party. Extended family members and friends are expected to comply with this communication restriction.
[197] I have provided for parties to communicate directly via email or, if a party requests, through a family communication app. This will address the costly process of communicating through lawyers. Given the prior history of verbal abuse and multiple abusive messages sent in a day, I have restricted the nature of the parties’ communication and its frequency. I have also imposed a duty to respond within 48 hours.
[198] It is in the child’s best interests that medical information be shared promptly, and that communications around emergency matters be dealt with by text or telephone.
Decision-Making Responsibility
[199] I make the following decision-making responsibility Orders:
Parties have authority to make day-to-day decisions for the child while in their care.
The Father shall exercise exclusive decision-making with respect to medical, dental, mental health supports, and all other health related decisions. However, at all times, he shall act on the advice and recommendations of the treating physician or health care provider. This does not restrict the Mother from recommending health care practitioners to the Father or taking the child to routine health appointments scheduled by the Father on her parenting time, nor does it restrict her from taking the child for emergency medical treatment, obtaining medical reports or information from treating health practitioners, or meeting with them. She may also reschedule routine medical appointments that fall on her parenting time, with notice to the Father. She shall also act on the advice and recommendations of the treating physician or health care provider.
The Mother shall exercise exclusive decision-making responsibility with respect to the child’s education, tutors and educational supports. However, the child shall remain enrolled in his current school for this academic year. Should the Mother seek to change schools, it shall be a school with the Toronto District School Board, and it shall be within a 10 km radius of the child’s current school. The Mother shall select schools that are relatively proximate to the Father. This does not restrict the Father from recommending to the Mother his views on the most appropriate school, educational supports or tutoring for the child, nor does it restrict his ability to participate in school events or parent-teacher interviews or to obtain information and report cards from the school. It also does not restrict the Father from engaging tutors or other educational supports on his own parenting time.
Both parties may enrol the child in extra-curricular activities during their parenting time. They may enrol the child in extra-curricular activities that fall on the other party’s parenting time with the other party’s consent, or if there is no consent, there will be no expectation on the other party to bring the child to the extra-curricular activity. In scheduling and bringing the child to extra-curricular activities, parties shall give age-appropriate weight to the child’s views and preferences.
Both parties may expose the child to different faith traditions. Neither party shall prevent the child from participating in a faith tradition. As the child matures, he may select a faith tradition to call his own.
Both parties may travel with the child to a country that is a signatory to the Hague Convention on International Child Abductions, upon providing 30 days notice with a full travel itinerary. Consent to travel shall not be unreasonably withheld, and the non-travelling parent shall provide a notarized travel consent letter. In the event of unexpected or emergency travel, parties shall not unreasonably withhold consent simply because less than 30 days notice was provided.
The Mother shall possess the child’s passport(s) and social insurance card. The Father shall possess the child’s birth certificate(s) and health card. Certified true copies of these documents will be exchanged between the parties. Originals shall be provided to the other party, upon request.
[200] I divide parenting decision-making because the parties are not able to communicate effectively or to work together in the best interests of the child. It is in the child’s interest that one party exercise decision-making over the areas identified.
[201] While I have granted exclusive decision-making in certain areas, I have continued to extend a limited role by one parent into the other parent’s exclusive area of decision-making. This is because it is not in the child’s best interest that a parent is entirely excluded. Both parties should attend regular medical appointments, parent-teacher interviews, and other school events. I recommend that parties alternate attending routine medical and dental appointments, but promptly keep the other parent apprised of the outcome of the appointment. I recommend that parties jointly attend parent-teacher interviews, if possible, with the teacher. I recommend that both parties attend school events so that the child can see that both of his parents are supporting him. I recommend that parties bring the child to extra-curricular events on their own parenting time, but that parties agree that both may attend certain, limited extra-curricular activities (e.g., end-of-season games or tournaments).
[202] Religion was not an issue in dispute. Both parties indicated being familiar with Buddhist faith traditions. It is in the child’s best interest to be exposed to other faith traditions until he can select one to follow, if he decides to do so.
[203] It is in the child’s best interest that he be permitted to travel, particularly to see extended family, whenever a party can make travel arrangements. Travel, however, shall only be to a country that is a signatory to the Hague Convention.
Mobility
[204] I make the following mobility restriction Order:
- The parties shall reside with the child in the City of Toronto.
[205] I make this Order because the Mother abandoned her request to relocate. The child has significant connections to Toronto. It is where he was born and the only place he has lived. He attends school in Toronto and has friends here. Because the child has experienced trauma, it would be disruptive to his need for stability to uproot him from the only place he has known to be home. Furthermore, it would disrupt the parenting schedule ordered if the Mother were to move the child a significant distance from his Father.
[206] I encourage parties to remain proximate to each other to minimize travelling distances between the child’s two homes. Travel time spent with a parent is not meaningful parenting time. I have not made an Order restricting the geographic distance between the parties. This is because both of their financial circumstances are precarious which may necessitate a move by one of them, and it would be unfair to force the other party to move to be within a proximate distance from where the first party moves. However, I have restricted the child’s new school, if any, to a 10 km radius of his current school. This should assist the parties in planning any future homes with minimal disruption. I urge the parties, should either decide to move, not to live in excess of 10 km from the other.
Issue 2: What orders, if any, should be made restricting or requiring the involvement of the CAST or Police to carry out any parenting orders made?
[207] The Father seeks an Order that would restrict CAST’s involvement in the future with respect to parenting orders made. I decline to do so. This is because I am not aware of any authority that would permit this Court to interfere with the statutory child protection mandate of a children’s aid society.
[208] I acknowledge the Father’s concerns. They have merit. I agree that the investigation undertaken by Ms. Hoffelner and Ms. Barnett were not objective. Ms. Hoffelner ignored indicia of the Mother influencing the child. Ms. Barnett, failed to communicate with the Father’s counsel with respect to her investigation. The evidence before me was that both of these CAST workers were unduly influenced by the Mother or those who she asked to advocate with CAST on her behalf. Furthermore, there was evidence of the Mother returning to CAST, either directly or through others, with new allegations that had no factual foundation.
[209] What was shocking to this Court, after a two-week trial and after receiving fulsome evidence from the parties and CAST workers with respect to the allegations of sexual abuse, was Ms. Hoffelner’s testimony that regardless of the outcome of this trial, CAST may still initiate child protection proceedings in this case. If there were a Unified Family Court in Toronto, early case management and the doctrines of res judicata and issue estoppel may put a swift end to such proceedings. As this court does not have first instance jurisdiction over child protection proceedings, a judge of the Ontario Court of Justice may be asked to adjudicate these same issues afresh. It would be inappropriate for me to comment on how a judge of the Ontario Court of Justice might deal with such an application. Should a child protection proceeding be launched by CAST involving the same allegations and which impact the parenting Orders made, parties may seek a case conference before me.
[210] Mid-trial, I made a temporary and without prejudice order that CAST shall not interfere or hinder the reunification process and shall remain at arms-length at all times. In my view, their role in reunification, given the Mother’s consent to the reunification process, is non-existent. The mid-trial Order shall remain in place as a Final Order. In my view, it is an Order, incidental to the parenting orders I have made in the best interests of the child. This Order does not interfere with the statutory authority of CAST. CAST may bring a motion before me if they seek to have this Order varied.
[211] The Father also seeks an Order that the Police, having jurisdiction where the child is found or believed to be located, shall deliver the child to him. I agree that police enforcement is necessary. There is significant distrust between the parties. There was evidence of the Mother, shortly after the parties separated, leaving Ontario and travelling to the USA with the child for weeks without the consent of the Father. It is in child’s best interest that a police enforcement clause be in place and be applicable to both parties.
[212] Therefore, I make the following Final Orders:
The Toronto Children’s Aid Society shall not interfere with or hinder the reunification process with respect to the child and the Father, as overseen by Ms. Shiona Robertson. CAST may bring a motion before me if they seek to have this Order varied.
The Toronto Police Service, and any other police service (provincially, nationally and internationally), having jurisdiction where the child is found or believed to be located, shall locate, apprehend and deliver the child to one of the parties upon that party’s request.
B. FINANCIAL ORDERS
Issue 3: What are the parties’ incomes for support purposes?
[213] There was no challenge at trial with respect to the Father’s income for support purposes. Based on his Financial Statements filed, his income for the following years was:
2019
$156,000
2020
$172,071 (includes a $12,006 discretionary bonus)
2021
$177,571
2022
$187,616
2023
$175,152 (estimated)
[214] The Mother’s income was not in dispute, although her capacity to earn an income was in dispute. Based on her Financial Statements filed, her income in Canadian dollars was:
2019
$48,604 (self-employment income)
2020
$29,722 (of which, $8,512 was from EI, based on February 23, 2021 Financial Statement)
2021
$32,520 (estimated based on February 23, 2021 Financial Statement, of which $2,660 monthly was spousal support)
2022
$40,000 (based on September 29, 2023 Financial Statement)
2023
$39,876 (exclusively from spousal support), based on September 29, 2023 Financial Statement
[215] The Father seeks to impute income to the Mother in an amount to be determined, comparable to her earning potential in Canada, and that such amount be applied for the purpose of retroactively calculating child and spousal support paid to her. The Mother has a BA in Fine Arts, and a BA and Master’s degree in occupational therapy from the Western Michigan University.
[216] The Father’s position is that the Mother is educated, has training and experience as an occupational therapist, she has not led sufficient evidence of her efforts to find other employment in Canada, and she has no health impediments preventing her from working.
[217] The Mother’s position is that she wants to return to work as an occupational therapist, a job in which she has training, skills and experience. To do so in Ontario, she needs her licence. Getting her licence has two components: (1) completion of a national registration examination, and (2) proving your currency requirement of having worked a certain number of hours as an occupational therapist within a certain timeframe. The Mother was returning to the United States to work when the child was young, but once COVID started in 2020, she could not return to the USA. Then, the Order of Monahan J. from September 8, 2021 prevented her from working in the USA. She was therefore unable to meet her currency requirement. She testified that now her choices are to return to school in Canada, or return to the USA to work a sufficient number of hours to meet her currency requirement.
[218] She also argued that an impediment to her returning to work in Ontario was the child’s age and that she was his sole caregiver since 2021. In September 2021, the child was registered in part-time preschool and started kindergarten in September 2022. She would have had to find a job that conforms to the Toronto District School Board’s hours and school schedule. She testified that she considered medical sales and pharmaceutical jobs, but they required overnight travel, and the Order of Monahan J. only permitted short-term/temporary caregivers.
Legal Principles
[219] Section 19 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) permits the Court to impute such income as it considers appropriate in the circumstances. S. 19(a) defines one such circumstance, namely when a spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage. S. 19(c) also allows for imputation when a spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada.
[220] “Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.” Drygala v. Pauli, 2002 CanLII 41868 (ON CA).
[221] When imputing income the court must answer the following questions set out in Drygala at para 23:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of the spouse’s reasonable educational needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[222] Intentional under employment occurs when a payor chooses to earn less than he or she is capable of earning; it is not necessary to find a specific intent to evade support obligations: Drygala at paras 24 to 36; Lawson v. Lawson, 2006 CanLII 26573 (ON CA) at para 36.
Analysis
[223] I am satisfied the Mother is intentionally unemployed.
[224] The Mother produced documentary evidence of job searches and applications, however, all of those applications are for health-related jobs with employers in the USA. They range in date from February 2021 to June 2023. She testified that some of the positions have been for USA insurance companies where working remotely would be possible.
[225] When cross-examined, the Mother admitted that she had no documentary evidence of applying for jobs with Canadian employers, however, she did testify that she has “an inside connection” with one company and another that operated in both Canada and the USA. On July 12, 2023, Shore J. ordered the Mother to provide proof of (a) all of her efforts to find employment here or in the USA, and (b) proof of requirements to be qualified as an occupational therapist in Ontario and efforts made to complete same from separation.
[226] It was unreasonable for the Mother to not search for work with Ontario employers, commensurate with her skills, training and education. It was inconsistent with her positive obligation to financially support the child and herself. I do not accept her evidence that her experience was only in the USA healthcare system. This is not a sufficient reason not to apply to other positions in Ontario based on her education, skills and education.
[227] I accept that there were periods up to September 2022 when the child was not in school full-time, and some of the jobs to which she applied involved travel. However, she provided no efforts to apply for jobs in Ontario that did not involve travel, after the child attended school full-time. Having “inside connections” at two potential Ontario employers is not sufficient to demonstrate an intention to be employed. There are Canadian insurance companies, like the ones to which the Mother applied in the USA, that insure the services of an occupational therapist. She provided no evidence of applying to those insurance companies.
[228] The Mother testified that she did not wish to pursue another Master’s degree in Canada, which would have been the other method of obtaining her occupational therapist licence in Ontario. Therefore, the pursuit of further education was not the reason for her intentional unemployment.
[229] What income should be reasonably imputed to the Mother? The imputation of income requires that there be a rational basis underlying the selection of a figure, grounded in the evidence: Drygala, at para 44.
[230] I consider the Mother’s childcare responsibilities and the Order of Monahan J. that prevented the Mother from working in the USA. Given her childcare responsibilities, no income should be imputed prior to September 2021. The child attended part-time pre-school in September 2021 and full-time kindergarten in September 2022. As many single parents, there were options for her to work, at least part-time as of September 2021 and full-time as of September 2022, and to arrange for the care of the child when she was working. Her friend, Ms. Y.K., testified that she has looked after the child.
[231] The Father produced no evidence of jobs the Mother could have applied for and obtained, based on her education, skills and experience. However, I take judicial notice of the fact that the minimum wage in Ontario as of October 2022 was $15.50 per hour, resulting in an annual salary of roughly $31,000. As of October 2023, minimum wage was $16.55 per hour, resulting in annual salary of roughly $33,000.
[232] I also consider that upon a 50/50 parenting schedule being implemented as agreed to at the settlement conference on August 9, 2021, there is evidence that the Mother’s annual income would have been $144,000 USD. At that point, the Mother testified that she hoped to return to working in the USA. She said she would have returned to a private practice for 10 days each month and would bill at $200 an hour. She testified that she would normally see five to six patients a day for one hour each. She further testified that she wants to return to working as an occupational therapist, rather than return to school. Based on this information, on the assumption that the Mother would return to USA 10 days per month to work once a 50/50 shared parenting schedule is in place, I find she has the potential to earn $144,000 USD annually or $12,000 monthly as self-employment income.
[233] For these reasons, I impute an income to the Mother of $15,000 annually as of September 2021, $31,000 as of September 2022, and $33,000 as of October 2023.
[234] Once the 50/50 parenting schedule is in place as of July 1, 2024, I impute to the Mother an income of $144,000 Canadian dollars (“CDN”), rather than $144,000 USD for the following reasons.
[235] First, I have decided to impute future annual income to the Mother as of July 1, 2024 to determine prospective support because the parties have been embroiled in litigation for years and it would be inconsistent with the primary objective of the Family Law Rules for the parties to come back to court in a mere few months to have support determined. The parties require certainty in their financial affairs, at least until 2025, to allow them to become settled following Judgment and to plan their affairs accordingly. The determination of the Mother’s future income is also grounded in her own testimony.
[236] The Mother’s expected income is likely valued at more than $144,000 CDN. Using recent conversion rates (1.3419), $144,000 USD equates to $193,226 CDN. In addition, it is self-employment income and therefore subject to a gross-up to ensure consistent treatment among spouses in similar circumstances: Riel v Holland, 2003 CanLII 3433 (ON CA), [2003] 232 D.L.R. (4th) 264 (Ont. C.A.) at paras. 33 to 34, citing Orser v Grant, [2000] O.J. No. 1429 (Ont. S.C.); see also Sarafinchin v. Sarafinchin, 2000 CanLII 22639 (ON SC), [2000] 189 D.L.R. (4th) 741(Ont. S.C.), at para. 63. Because no evidence of how this income from the USA would be taxed was presented, I have not considered tax implications.
[237] While the value is likely higher than $144,000 CDN, the Mother will have expenses associated with travel and accommodation to work in the USA. These can be significant. It may be that some of these expenses are tax deductible, but again, there was no evidence of this.
[238] For these reasons, I conclude that $144,000 CDN is an appropriate and fair income to impute to the Mother as of July 1, 2024.
Issue 4: What amount of child support should be payable by whom, and whether a retroactive award of child support should be made, either to the Father or the Mother, including s. 7 expenses?
[239] The Mother claims that the child support she has received since September 1, 2021 was based on the set-off formula under s. 9 of the Guidelines, but that since August 11, 2021, she has had exclusive care of the child. She seeks a retroactive payment from September 1, 2021, representing full-table child support.
[240] The Father argues that retroactive set-off remains appropriate. If primary care of the child were awarded to him, he sought full-table child support.
[241] As of March 2021, the Father has been paying $1,206 per month in child support to the Mother. He made all payments on time. This was pursuant to a temporary, consent Order reached before Shore J. on March 1, 2021, applying the set-off and using the Father’s 2020 income of $172,071 and the Mother’s imputed income of $30,000.
[242] I decline to make a retroactive award of child support from September 1, 2021 onwards in favour of the Mother for the following reasons.
[243] First, the Father’s income has not increased significantly since. The Mother’s income, as I have imputed it to be is also similar at $33,000.
[244] Second, while the Mother is presumptively entitled to full table support from September 1, 2021 because the child was not in the Father’s care since that date, I find it would constitute undue hardship for the Father to make a retroactive payment, pursuant to s. 10 of the Guidelines. In this case, the Father has spent extraordinary amounts in legal fees in defending two criminal trials and pursuing this family litigation simply to exercise parenting time with the child. In his most current Financial Statement, sworn September 29, 2023, he shows annual expenses exceeding his annual income by over $3,000. His daily banking accounts show modest balances under $100 or deficits. He carries debt in excess of $204,000, all of it in the form of credit card or line of credit debt. I am satisfied that the hardship is exceptional. From a review of the parties’ budgets, I cannot conclude that the Father’s standard of living markedly exceeds that of the Mother. They have similar debts and assets. I am satisfied that a retroactive payment is beyond the Father’s means.
[245] I make an Order adjusting the monthly child support the Father is to pay, commencing February 1, 2024 to reflect his 2023 income of $175,152. It is calculated on a full-table basis and fixed at $1,480.09 per month, pursuant to the Guidelines.
[246] Commencing July 1, 2024, when the child will reside with both parties on an equal basis, I order the set-off in table child support be paid, pursuant to s. 9 of the Guidelines. The starting point of a s. 9 analysis is the set-off in table child support. However, that does not end the analysis. The court must also look at the parties’ respective budgets relating to the care of the children, as well as a comparative analysis of the parties’ standards of living (i.e., the condition, means, needs, and other circumstances of each spouse): see Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.
[247] Parties have not filed respective budgets for the child. As mentioned earlier, from a review of the parties’ most recent Financial Statements, the parties’ standards of living do not appear to be markedly different. For these reasons, I find that the set-off formula shall apply.
[248] To determine the set-off, I rely on the best evidence of the Father’s most recent 2023 income, which I find is $175,152, resulting in child support owing of $1,480.09. As of July 1, 2024, I have imputed income to the Mother of $144,000, resulting in child support owing of $1,255.00. Therefore, the set-off monthly amount of child support owing by the Father to the Mother is $225.09.
[249] By June 1^st^ of each year, starting in 2025, the parties shall exchange full financial disclosure as required under the Guidelines and calculate the amount of child support they owe the other. The new set-off amount of child support shall be paid on July 1^st^ of each year.
[250] The Mother claims retroactive s. 7 expenses. However, as pointed out to the Mother’s counsel in closing submissions, there was no evidence of s.7 expenses adduced at trial. Accordingly, I decline to order retroactive s. 7 expenses.
[251] The Mother also argued that the Father retained from his insurer reimbursement of some dental expenses for the child which the Mother paid for up front. But again, the Mother did not adduce evidence of that expense, the amount submitted to the insurer, and the Father was not questioned on the amount he received from the insurer. Accordingly, I decline to grant this amount. However, parties should be expected to cooperate and promptly re-pay the other party proceeds of insurance received for insurable services paid for by the other party.
[252] There was some evidence of the child attending soccer classes in the past. There have and will be expenses incurred in relation to the services provided by Ms. Shiona Robertson. There may be other s. 7 expenses that arise in the future, such as the cost of extra-curricular activities, and possibly further counselling for the child. These costs should be paid for by the parties proportionately based on their respective incomes.
Child Support Orders
[253] I order that:
a. There shall be no retroactive adjustment of child support.
b. Commencing February 1, 2024, the Father shall pay the Mother full-table child support in the amount of $1,480.09 per month pursuant to the Guidelines for one child, based on the Father’s 2023 income of $175,152.
c. Commencing July 1, 2024, the Father shall pay the Mother child support of $1,480.09 per month, and the Mother shall pay the Father child support of $1,255.00 per month, both pursuant to the Guidelines for 1 child, resulting in set-off (or net) child support payable by the Father to the Mother of $225.09 per month.
d. By June 1 of each year and starting in 2025, the parties shall exchange full financial disclosure as required under the Guidelines and calculate the amount of child support they owe the other. The new set-off amount of child support shall be paid on July 1^st^ of each year.
e. S. 7 expenses in this case shall consist of (1) one extra-curricular activity selected by the Father; (2) one extra-curricular activity selected by the Mother; (3) such other extra-curricular activities as agreed upon by the parties; (4) up to two weeks of summer camp (one week on each party’s summer parenting schedule if that party elects to register the child in summer camp); (5) any uninsured medical, dental, optical, counselling or other health costs required for the child, which costs relate to services, equipment or treatment recommended by a health practitioner; and (6) such other expenses as agreed upon by the parties.
f. As of February 1, 2024, the parties combined incomes, as I have found them, totals $208,152 ($175,152 for the Father and $33,000 for the Mother). For s. 7 expenses incurred between February 1, 2024 and June 30, 2024, the Father shall pay 84%, and the Mother shall pay 16%, of s. 7 expenses.
g. As of July 1, 2024, the parties combined incomes, as I have found them, totals $319,152 ($175,152 for the Father and $144,000 for the Mother). For s. 7 expenses incurred between July 1, 2024 and June 30, 2025, the Father shall pay 54% and the Mother shall pay 46%, of s. 7 expenses.
h. Parties shall, within 30 days of receipt, promptly re-pay the other party from proceeds of insurance received for insurable services paid for by the other party.
Issue #5: What orders, incidental to support, should be made (e.g., maintenance of medical, health and dental benefits for the child, life insurance)?
[254] The Father seeks an Order that the Mother obtain and maintain extended medical, health and dental benefits for the child, and that she maintains the Father and child under any medical and extended health benefits that the Mother currently has or becomes entitled to through employment.
[255] The Mother has not specifically claimed similar relief in relation to the Father.
[256] I recognize that the Mother is not currently employed. She may soon become employed with an employer that provides extended medical, health and dental benefits, although she indicated that her intention was to resume working in a private practice.
[257] It is necessary to make orders incidental to child support, in the best interests of the child. At trial, there was evidence of the child requiring orthodontic care. There may be on-going mental health supports required for him. To the extent the parties have extended health insurance for the child or can have it made available through their employers, it is in the child’s best interest (and the parties) that he has extended insurance coverage.
[258] This Court has the authority, under s. 34(1)(k) of the Family Law Act, the Divorce Act, and s.12 of the Guidelines, to order a spouse to obtain a life insurance policy to secure an Order for the payment of support following the payer spouse’s death: Katz v. Katz, 2014 ONCA 606 paras. 67 to 73. However, to make such an Order, there must be evidence of the payor’s insurability and of the amount and cost of the available insurance. Furthermore, the amount of insurance should not exceed the amount of support likely to be payable over the duration of the support award: Katz, para. 74
[259] In this case, there was limited evidence with respect to life insurance, found solely in the parties’ respective Financial Statements. The Father appears to have a life insurance policy with Sunlife Insurance for $150,000, with the Mother as beneficiary, and with a monthly premium of $81.87. The Mother’s most recent Financial Statement discloses a term life insurance policy of $50,000 with RBC, in which the child appears to be the beneficiary, with a monthly premium of $75. From previous Financial Statements, it appears the Father was the beneficiary of this policy in the past.
[260] There was no evidence of the parties’ respective insurability, the amount of insurance that would be required to insure each party’s child support obligation to the other, and the cost of available insurance. However, I find I have sufficient evidence to make an Order for life insurance governing both parties. As both parties have life insurance, it would appear that both are insurable. While I do not have precise amounts to secure the other’s child support obligation, the Father has life insurance with a face value of $150,000 and it would appear that a policy of $150,000 could be covered at a monthly premiums under $90 based on the limited evidence I have. Since both parties will be earning similar amounts of income as of July 1, 2024, I find it is appropriate to secure both parties’ respective support obligations by life insurance policies with a face value of $150,000 each, with the other party designated as the irrevocable beneficiary. I make this Order effective December 1, 2024, to allow the Mother sufficient time to arrange for such a policy.
[261] In addition, under the Divorce Act, I make an Order that both parties’ respective child support obligation is binding on each party’s estate: Katz, at para. 22.
[262] I make the following orders incidental the parties’ respective child support obligations:
a. The parties shall make available, or continue to make available, extended health care coverage for the child available through their respective employers or future employers, if their current or future employers provide extended health coverage to children of employees.
b. Each party, effective December 1, 2024, shall maintain life insurance policies with a face value of $150,000 with the other party designated as the irrevocable beneficiary under the policy.
c. The parties’ respective child support obligations are binding on each party’s estate.
Issue #6: Is the Respondent entitled to spousal support, and if so, in what amount and for which duration?
[263] Subsection 15.2(1) of Divorce Act, R.S.C., 1985 c. 3 (2^nd^ Supp.) gives this court jurisdiction to make an order for spousal support. Subsections 15.2(4) and (6) set out the factors the Court shall apply when ordering spousal support.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[264] The Divorce Act contemplates compensatory support to “recognize and account for both the economic disadvantages incurred by the spouse who makes…sacrifices and the economic advantages conferred upon the other spouse”: Moge v. Moge 1992 CanLII 25 (SCC), [1992] 3 SCR 813 at para. 74. Compensatory support is “intended to deal with the economic consequences” following marriage breakdown: Moge at para. 43.
[265] There are several economic consequences of marriage or marriage breakdown. A common advantage is the ability of a spouse to earn an income, obtain promotions, and not be vacant from the labour force while the other spouse attends to childcare. A common disadvantage for the spouse remaining at home to care for children is loss of income, loss of seniority, inability to upgrade skills, and no access to benefits. These disadvantages may continue after marriage breakdown if one spouse continues to miss labour opportunities due to childcare. These economic advantages and disadvantages may also flow in marriages without children.
[266] The Divorce Act contemplates non-compensatory support where one spouse has need. Non-compensatory support recognizes that when spouses split, it is artificial to assume that “all separating couples can move cleanly from the mutual support status of marriage to the absolute independence of single life”: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 at para. 31. Non-compensatory support “places the burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state”: Bracklow, para. 31.
[267] The statutory requirement in s. 15.2(4) of the Divorce Act to consider the “condition, means, needs and other circumstances of each spouse” invites “an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” Bracklow, para. 40. Furthermore, the statutory requirement in s. 15.2(6)(c) to consider relieving economic disadvantages of marriage breakdown (contrast with economic disadvantages arising from the marriage in s. 15.2(6)(a)), is an explicit recognition of non-compensatory support: Bracklow para. 41.
[268] The court must consider all four objectives under s. 15.2(6) of the Divorce Act when spousal support is sought, no single objective is paramount: Moge; Bracklow, para. 35. Against this backdrop, the court must look at the “condition, means, needs and other circumstances of each spouse.”
[269] Where it is not possible “to determine the extent of the economic loss of a disadvantaged spouse…the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party”: Bracklow, para. 36, citing Ross v. Ross (1995), 1995 CanLII 6228 (NB CA), 168 N.B.R. (2d) 147 (C.A.) at para. 15.
[270] I am satisfied that the Mother is entitled to spousal support on both a compensatory and non-compensatory basis. Prior to separation, she was breastfeeding the child, had the bulk of childcare responsibilities while the Father was working, and she was not working regularly. I do acknowledge, however, that the Father was also regularly involved in caring for the child.
[271] I am also satisfied that she made a sacrifice moving to Toronto. She had a practice in the USA. In moving to Toronto, she needed a licence to continue working here in her profession. While she completed a national registration exam (and may have to repeat that exam now) to become licenced as an occupational therapist, she has not met her currency requirement – namely, proof of having recently worked a certain number of hours as an occupational therapist. While there were periods when she returned to the USA to work as an occupational therapist prior to and after the parties’ separation, the COVID pandemic along with the restriction in Monahan J.’s Order impacted her ability to work in the USA since the spring of 2000.
[272] In assessing the quantum and duration of spousal support, I must consider the condition, means, and needs of both spouses. I am persuaded that both parties have limited resources. For the Father, this is in large part because of the unfounded allegations of improper touching of the child and the resulting significant criminal and family legal fees he incurred by him. In addition, he is also paying child and spousal support. Had the 50/50 shared parenting arrangement been implemented as agreed upon by the parties in August 2021, his child support obligation would have been reduced and the Mother’s capacity to earn an income as an occupational therapist would have increased, reducing her entitlement to spousal support.
[273] For the Mother, she also has legal expenses from this family litigation and, as noted, she was restricted in her ability to earn an income as an occupational therapist in Ontario. However, the Mother has provided scant and limited job search efforts. I am not satisfied that she has exercised reasonable efforts to find employment commensurate with her education, skills and experience in Ontario. She had a positive obligation to promote her own economic self-sufficiency. Had there been evidence of jobs and salaries in Ontario that the Mother could have occupied based on her education, skills and experience, I would have considered imputing income to the Mother above minimum wage.
[274] Having said that, I am satisfied that the Father has the means to continue to pay spousal support for a brief period before he tackles his debt, and that the Mother has continued need for spousal support which I provide, again, for a brief period of time to allow the Mother to engage a plan to return to work. In my view, the Father should continue to make spousal support payments until July 1, 2024, with his final payment on July 1, 2024. This will coincide with the resumption of equal shared parenting time, and the Mother’s ability to earn regular income from the USA, if she so chooses.
[275] The Father has been supporting the Mother financially since separation in January 2019, either through the payment of rent and other expenses, or the payment of spousal support, which amounts have increased from $1,200 in February 2020, to $2500 in November 2020, and then to $3,323 since March 2021. Upon the termination of his spousal support obligation, the Father will have financially supported the Mother for 4.5 years. Their marriage was only 5 years.
[276] In terms of quantum of support, I order the Father to pay $3,121 in mid-range spousal support based on the attached DivorceMate calculations. I selected this amount because it roughly the same amount that the Mother has been accustomed to receiving. It is also the amount the Father has been accustomed to paying. I am satisfied that he can afford it for a few more months, although I recognize this order may delay him paying off his debts. A significant drop could jeopardize the Mother’s housing and ability to pay bills in the immediate short-term. It is slightly less than the interim amount the Father had most recently been paying to reflect the Court’s disapproval of the Mother’s lack of proof of her job efforts. It should provide sufficient income for her to continue paying her bills, while also planning for her return to the workforce. Between now and July, there will be periods when the child is in the Father’s care, allowing her to return to work for brief periods.
[277] Finally, I decline to make a retroactive adjustment to previous spousal support that has been paid by the Father. While I can appreciate the reasons why the Father would like to be credited for previous amounts, including his allegation that the Mother made false allegations about the Father regarding the child, this Court may not consider spousal misconduct when making a spousal support Order: Divorce Act, s. 15.2(5). I am satisfied that the Mother had need and continues to have need. She requires continued support for a few more months until she can re-establish herself in the workforce. A retroactive adjustment would be contrary to that objective. I can also appreciate why the Mother would like a retroactive increase to spousal support, at least to the date of trial. However, I am not persuaded the Father can afford that.
[278] After considering the totality of the circumstances of the parties in this case, I find this quantum and duration of spousal support satisfies both the compensatory and non-compensatory entitlement of the Mother under the Divorce Act.
[279] For these reasons, I Order:
a. The Father to make monthly and periodic spousal support payments to the Mother, fixed in the amount of $3,121 commencing February 1, 2024, which payments shall terminate on July 1, 2024.
b. There shall no be retroactive adjustment to spousal support payments already made.
C. OTHER ORDERS
Issue 7: What mobility restrictions, if any, should be in place?
[280] While requested in her pleadings, at trial the Mother was not seeking an Order to relocate with the child to the USA.
[281] Monahan J. did make an interim and temporary order with respect to the Mother’s mobility. For clarity, as of the date of the release of this Judgment, I find that the Mother is no longer bound by the restrictions in the Monahan J. Order preventing her from working in the USA while the child is in her care. The Order made by Monahan J. was temporary and intended to address a potential claim by the Mother of a new status quo. Now that parenting issues have been resolved, with the child residing with both parties in Ontario, there is no reason for the previous temporary Order to bind the Mother. Further, I find it is necessary to rescind this temporary Order to allow the Mother to make plans to resume working in the USA. Her income has been calculated on the assumption and on the only evidence before me that she would return to working in the USA when the child is not in her care. While this is not an invitation for the Mother to take the child out of school for extended periods to allow her to work in the USA, I accept that it may be necessary, until an equal shared parenting regime is in place, for the child to miss some school days to accommodate the Mother’s return to work.
[282] For certainty on this issue, I make a further Order that the child is habitually resident in Ontario and that this Court has jurisdiction over the child. The only evidence before me is that the child is a resident of Ontario, that he attends school and lives in Ontario, and that he has strong social connections in Ontario. As found previously, I am not satisfied that the parties’ intention to move to Toronto was temporary.
Issue 8: Has the Father established facts to support the tort of malicious prosecution, and if so, what damages should be awarded?
[283] To be successful in a civil claim of malicious prosecution, four necessary elements must be proved:
a. The proceedings must have been initiated by the defendant;
b. The proceedings must have terminated in favour of the plaintiff;
c. The absence of reasonable and probable cause;
d. Malice, or a primary purpose other than that of carrying the law into effect: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, citing J.G. Fleming, The Law of Torts (5^th^ ed. 1977) at p. 598. See also, A.T. v. J.D., [2013] O.J. No. 1785.
[284] In this case, I am not satisfied that the Father has pled or proven the necessary elements for the tort of malicious prosecution. Furthermore, he has not led sufficient evidence to establish damages. My reasons are as follows.
[285] In his Amended Application, in what appears to relate to the tort of malicious prosecution, he sought “An Order for the Respondent to pay the Applicant punitive damages, in an amount to be determined by this Honourable Court.”
[286] In his pleadings, he has not identified which proceedings the Mother has initiated (although he does reference two criminal trials and this family proceeding which he commenced), nor has he pled that the Mother initiated the proceedings without “reasonable and probable cause”. He has pled that the Mother’s “malicious and callous acts have irreputable[y] harm[ed]” the Father’s character and integrity.
[287] Even if I were satisfied that he has pled the elements of the tort with sufficient specificity, I am not satisfied he has proven the four elements.
[288] The first criminal charge of uttering a death threat was a product of the Father’s call to the Police, and the Police’s exercise of discretion after they spoke with the Mother. While it is arguable as to whether what the Mother reported to the Police “initiated” the first criminal proceeding, it was the Police who decided to initiate the criminal proceeding. There is insufficient evidence to suggest the Mother encouraged or pursued these charges with the Police for the purpose of having criminal charges laid, or for an improper purpose.
[289] With respect to the second criminal charges involving alleged sexual abuse of the child, the evidence from the CAST notes and from Ms. Hoffelner was that (a) the maternal grandmother reported the allegation to CAST; (b) the Mother was not sure whether the abuse had in fact taken place; and (c) the child provided information to the Police in response to the maternal grandmother’s call (d) after the Mother was advised that criminal charges would not be laid, the child was interviewed by CAST for safety planning purposes where further and more specific allegations were made and the child was then interviewed by the Police a second time; and (e) resulting criminal charges were then laid by the Police.
[290] Based on my previous findings, I am persuaded that it is more likely than not that the Mother influenced the child’s narrative to the Police. However, I am not persuaded that she did so with the intention of creating a false narrative in the child’s mind for the purpose of initiating a criminal prosecution, even though this was the ultimate effect. Rather, I am satisfied that it is more likely than not, through her questions and suggestions to the child or those of her family members, that the child created and reported a false narrative to the Police that was influenced by those questions and suggestions. In particular, I note in her August 9, 2021 call to Ms. Hoffelner, she stated “she doesn’t know what is true and what isn’t.” Furthermore, she did not approach the Police. It was CAST who referred this allegation to the Police, and it was the Police who ultimately laid charges. Even if the Mother had a hand in encouraging her mother to call CAST, I cannot conclude she did so with the purpose of initiating a criminal prosecution.
[291] For similar reasons, I am not persuaded that there was an absence of reasonable and probable grounds or that there was malice. The evidence was that the child discussed the tickle feather game with her extended family on a Zoom call, in which the game was sexualized. This led to further statements made by the Mother to the child that if someone, including the Father, touched the child without his permission, it was okay to say stop and to kick him in the face. The Mother also told the child that people should go to jail if they do not stop touching the child. These and further discussions with the child likely happened that informed his false narrative.
[292] The timing of the reporting to CAST is suspect as it was around the exact same time parties had settled parenting time. However, I cannot conclude the reporting to CAST of this concern was intended by the Mother to gain a collateral advantage in this family proceeding or was made with malice. I accept the Mother’s evidence that she did not know then or now whether what the child was saying was true. It would be contrary to public policy to apply this tort when a parent has some basis, particularly for a child as young as 3.5 years old, to believe a child may be the subject of sexual abuse.
[293] Finally, even if the elements of the tort were made out, the Father has not led sufficient evidence of his damages. He has not filed evidence of the precise legal expenses he has incurred. He has not lost wages or his employment. He has not had a loss of liberty. His counsellor gave brief testify about the emotional turmoil the Father has endured by not seeing his son, but she did not give evidence as an expert witness, nor did she testify as to any mental health diagnosis. She was a participant witness. The Father has not led evidence of others to demonstrate that his character and integrity have been impugned by these allegations. He was acquitted of the charges. Further and better evidence would be necessary to support the Father’s claim for damages.
[294] For these reasons, the Father’s malicious prosecution claim against the Mother is dismissed.
Issue 9: Should a preservation order or accounting be ordered against the Mother?
[295] This relief would only be necessary if the Mother were ordered to pay sums to the Father. In terms of the child and spousal support orders made, there is no basis upon which the Mother will owe the Father. The Father’s malicious prosecution claim is dismissed. Therefore, there is no legal basis to make these orders.
Issue 10: Should an order issue restraining one party from annoying, harassing or molesting the other, and restraining them from being within 100 metres of the other?
[296] Both parties seek a restraining / non-harassment order. I decline to make a restraining order; however, I do make an Order that the parties shall not annoy, harass or molest the other. My reasons are as follows.
[297] A restraining order may be made under s. 35 of the Children’s Law Reform Act and s. 46 of the Family Law Act. Under both sections, the applicant must demonstrate “reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody.”
[298] There is no evidence to suggest the Mother might harm the Father or the child. While the Father has subjective and objective fears that the Mother will improperly engage the Police and CAST, these are not safety concerns that would support a restraining order.
[299] There is also no factual basis to support a restraining order against the Father. At trial, the Mother testified about fears she had about what the Father might do, but her fears lacked particularity. For example, after the Father was acquitted of the child sexual abuse charges, the Mother influenced a worker at Boost and the Police to call CAST to report concerns that the Father might abduct with the child. Those concerns had no factual foundation. The Father was out of the country when the decision acquitting him was released. The Father had not had any direct contact with the Mother since separation, with the exception of an email in which he inadvertently copied the Mother, and a negative interaction during one transition. Restraining orders are serious and should not be ordered unless a clear case has been made out: Ciffolillo v. Niewelglowski, 2007 ONCJ 469. I am not satisfied the Mother has made a clear case or that she has demonstrated a connection between past events and the present situation.
[300] Perhaps more importantly for this family is that a restraining order is serious. It will likely appear if prospective employers conduct a criminal record (CPIC) search that could adversely impact a person’s ability to work and affect a person’s immigration status: F.K. v. M.C., 2017 ONCJ 181. In this case, the Father has endured disproportionate involvement in the criminal justice system than most people endure in a lifetime. He travels regularly and the parties’ finances depend on his income. For the Mother, she is a permanent resident in Canada and her future income will likely require travel to the USA. The consequences of a restraining order could be disastrous for their respective employments and travel.
[301] Finally, a restraining order would not be feasible with the parenting orders I have ordered.
[302] It is, however, appropriate to make an Order that neither party molest, annoy or harass the other. I have considered the verbal and physical abuse that has occurred in this case in the past, although following separation, there appears to have been a period during the parties’ brief shared parenting schedule when the conflict subsided. Nonetheless, a non-harassment order is justified to ensure that there is not conflict during transitions with the child and that parties can peacefully parent. The consequences of a breach of this Order can include a finding of contempt, imposition of a fine, and possibly revisiting a restraining order with its criminal consequences.
[303] Accordingly, I order that neither party shall molest, harass, or annoy the other.
Issue 11: Whether a divorce should be granted?
[304] The parties have been separated for over a year. Now that parenting, child support and equalization have been resolved or determined, a divorce may issue. Parties did not enter as an exhibit at trial their marriage certificate. I order the Father to file an Affidavit for Divorce, attaching the parties’ marriage certificate, along with a draft Order for Divorce by February 23, 2024. I will review the Affidavit and draft Order.
Costs
[305] Parties are encouraged to settle the issue of costs. If no settlement is achieved, parties may deliver written cost submissions not exceeding 5 pages double-spaced. They shall attach any Offers to Settle along with any other documents relevant to the issue of costs. The Father shall deliver his submissions by February 23, 2024; the Mother shall deliver her submissions by March 15, 2024. Reply submissions, if any, shall be delivered by March 29, 2024.
Justice Mohan Sharma
Released: January 25, 2024
Attach: DivorceMate Calculation
COURT FILE NO.: FS-19-0008197
DATE: 20240125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.W.
Applicant
– and –
K.F.
Respondent
REASONS FOR JUDGMENT
M. Sharma, J.
Released: January 25, 2024