Court File and Parties

COURT FILE NO.: FC-23-328 DATE: 2024/05/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark SHELDON, Applicant AND: Tashina SERAPHIM, Respondent

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Debora Lyons, for the Applicant Jennifer Long and Kat Campbell, for the Respondent

HEARD: May 1, 2024

Reasons on Motion

Scope & Materials

1This is the Respondent Mother’s urgent motion seeking a restraining order and a change to the existing parenting terms, namely that the children be placed in her primary care and that the Applicant Father’s parenting time take place at a supervised access facility.

2I refer to the parties and to Maternal Grandparents by their relationship to the children. Note that the parties (and the children) refer to Maternal Grandfather as “Pa.”

3The family is currently governed by the Temporary, Without Prejudice Endorsement and Restraining Order made by Justice Tweedie on April 15, 2024. Underlying that document is the Temporary Order of Justice Madsen (as she then was [1]) dated December 13, 2023 (the “Madsen Order”), which arises from Minutes of Settlement signed December 8, 2023. The parties had only one child when the Madsen Order was made. The Madsen Order provides that Father’s parenting time runs from Tuesdays at noon through to Fridays at 2:30 p.m. every week, with a specified public exchange location. It includes a prohibition on derogatory remarks; the use of Our Family Wizard or counsel as the exclusive mechanism for communication; and the Father’s enrolment in a specific anger management program.

4The following materials were reviewed for this motion:

a. Mother’s Notice of Motion dated April 12, 2024; b. Mother’s Affidavit dated April 12, 2024; c. Father’s Responding Affidavit dated April 23, 2024; d. Mother’s Reply Affidavit dated April 25, 2024; e. Mother’s Summary of Law; f. Parties’ Form 35.1 Affidavits; g. Orders and Endorsements made to date; and h. Confirmations.

5At the outset of the hearing, we addressed Ms. Lyons’ submissions regarding certain content of Mother’s Reply Affidavit which she argued was not properly before the court as reply. Ms. Long did not oppose the removal of some portions; I gave oral reasons regarding each remaining item and thus there is no need to address them here. I confirm that I have not relied upon any content that was excised.

6Further, Ms. Lyons argued that the Court ought not to rely upon any content of communications from Father pre-dating the Madsen Order. I disagree, however out of an abundance of fairness to Father, I do not incorporate any communications before December 8th into my analysis [2]. For clarity, Our Family Wizard was instituted as a communications tool by the Madsen Order, and thus all messages from that platform are included.

7Finally, Ms. Lyons submits that any findings made by Justice Tweedie cannot be binding upon this Court as they were made on an ex parte basis. While I am not convinced that this is the state of the law, I agree that it is in the best interests of the children for this motion to be heard afresh, and thus I have not based my reasons on findings previously made by Justice Tweedie.

Parties’ Positions

8Mother asks that both children remain in her primary care, with Father’s parenting time to take place at a supervised access centre on such exact terms and with such frequency and duration as can be arranged with that agency. She asks that the Temporary Without Prejudice Restraining Order made by Justice Tweedie continue pending further Order of the Court.

9Father seeks a reinstatement of his parenting time as set out in the Madsen Order. To that, he seeks to add one hour of time with Levi at each end of his parenting time with London, which time would take place at the exchange location (or otherwise within Waterloo Region). He agrees that exchanges should no longer take place between the parties and suggests a supervised access centre. Finally, he suggests that the parties be subject to a mutual Restraining Order.

Summary of Conclusions

10The factual conclusions that I reach regarding Father are almost exclusively based upon documents that he authored. I conclude that Father’s anger is either symptomatic of, or is causing, serious mental health issues that threaten the welfare of the children and of Mother. I conclude that Mother and London have experienced family violence in the form of emotional and psychological abuse and coercive control at Father’s hands. I conclude that Father’s instability is escalating, such that the safety of two very young children may be at risk.

11For the reasons set out below, the Restraining Order will continue and Father’s parenting time will take place with both children for at least two hours weekly, to be fully supervised either at Child and Parent Place or through a privately-retained service such as Brayden Supervision. All costs associated with supervision shall be borne by Father.

Undisputed Facts

12Neither party provided basic background information in his or her evidence on motion. The following details are presented in the pleadings and are uncontested:

a. The parties started cohabiting on January 1, 2013 and were married on September 15, 2018. b. Their eldest son, London Hendrix Sheldon (“London”) was born on February 27, 2021. He is three. c. The parties separated on August 8, 2023. Mother was pregnant with their second child. d. Their younger son, Levi William Sheldon (“Levi”) was born on March 6, 2024. He is just approaching two months of age. e. Post-separation, Mother moved in with her parents and continues to reside with them in Ayr, Ontario. f. Father currently resides with his Mother in Barrie, Ontario. g. For a period of 69 days post-separation, there was no in-person contact between Father and London (although some videocalls took place).

Parties’ Evidence and Credibility

Father

13Father is disrespectful, mocking, angry, manipulative and abusive in the numerous Our Family Wizard emails submitted by Mother. His erudition in this regard is impressive: it is rare that this court reads such a volume of derogatory vitriol that is largely devoid of profanity. His melodrama is remarkable, in one example, he writes (paragraph spacing in original):

Now I know why you're wanting to bring your kids to the police station with you.

So you can get comfortable in your new environment.

I will be pushing for the maximum sentencing.

And I will be involving child services going forward, regardless of how this plays out.

14Referring to Maternal Grandfather, he writes: “Get that filth away from my children immediately.” And about Mother and both Maternal Grandparents: “My kids aren't safe with you. And they sure as hell aren't safe with your ignorant adopted father and your unintelligent mother.”

15Three days before Levi is born, he writes to Mother the message that is attached in full as Appendix “A” hereto. The following excerpts demonstrate Father’s view of Mother and his intentions regarding future conversations with the children:

The regret surrounding you in my life is immense. You are the worst thing to happen to me. You'd be the worst thing to happen to any man.

But here's the thing period my children will know every action you have taken to limit their relationship with me. The hurt you have caused. They will know you physically hit me during our relationship. That you are a domestic abuser. They will know you illegally stole London for 69 days. That you are a kidnapper. They will know you didn't allow me in the hospital for the birth of my child. They will know you are in contempt of court twice in three months. They will know you chose not to work so that they didn't have financial support from their mother. They will know everything.

You are a vile, reprehensible woman who does not care about the health, safety and well-being of her children.

You are exactly who your parents are.

16Examples of Father’s hyperbole abound. He fixates on his absence from Levi’s birth with the following statement: “The Respondent Mother did not allow for skin-to-skin between father and son, which is recommended by every single child health group in the world.” He concludes: “This has all been done intentionally to cause extreme pain on my end and to ensure a bond is broken with my newborn son from Day 1.” Regarding his position on parenting time, he writes [sic]: “Every single child services group or Children's Health group in the world advocate for a 2-year-old to spend at least one overnight with each parent every week after separation/divorce.”

17Further, Father is certain of his victimhood; he escalates Maternal Grandmother’s presence at exchanges into an intentional act of persecution by Mother. Note that in the following excerpt, by “my space,” Father is referring to the parking lot of a Tim Horton’s Restaurant.

This will be used against you in court next week. You have made it clear you are using her to try and intimidate me. To threaten me. To make me uncomfortable. To bully and silence. You are weaponizing your mother and your child against me. You are doing this to provoke me. You are doing this to make me feel uncomfortable and unsafe. I will act accordingly if I see her in my space on Friday.

18Father attests that he “won an urgent motion against the Respondent Mother.” This is not true. On November 27, 2023, I dismissed his urgent motion for parenting time and demanding to be present at Levi’s birth so as to have “skin to skin contact.” On December 4, 2023, Justice Gordon held the urgent case conference that I had ordered. On December 13, 2023, Justice Madsen received the Temporary Minutes of Settlement dated December 8, 2023. On April 15, 2024, Justice Tweedie granted Mother’s requests on this motion on an interim without prejudice basis (i.e. supervised parenting time for Father and a Restraining Order). The suggestion that Father “won” any of these litigation events is incongruent with the results.

19Father is the centre of his own universe. He lacks any insight into his behaviours and projects blame exclusively onto Mother. He cannot understand why Mother would resist exchanges across the street in front of her residence when the exchange location was specifically negotiated in the Temporary Minutes of Settlement. He attests:

The Respondent Mother wants our relationship to be contentious. She needs our relationship to be contentious. That way she can justify her actions against me. She does something objectively wrong. I get mad at it. She tells the courts I'm a bad person for name calling.

20It is in no one’s interests for any further recitation of the vitriolic and accusatory content of Father’s affidavit to be undertaken here.

21It is, however, important to note that Father has no insight into reasonable developmental challenges with a three-year-old. He believes that London’s biting Mother’s breast, choking his cousin, grinding his teeth through the night and going several days without a bowel movement are normal for a “3-year-old who is developing.” He doesn’t deny telling London to “bite Mommy’s boob off” or to strike his grandparents in the face. In fact, he writes: “London bites my nipple. All the time. Because he wants to suck on my nipple and I tell him no, you can do that to his mother.”

22Further, he does not deny or explain the alienating behaviours described by Mother. Mother attests that, at exchanges, Father has told London not to come to her or touch her and has said “Go say hi to Tashina.” In response to Mother’s paragraph in this regard, Father denies that his behaviour causes stress to Mother and points to Mother’s attendance alone at the parenting exchange on March 5, 2024 as proof that she does not fear him. In the paragraph immediately following this statement, Father points to “photos of her half-naked pregnant body on Instagram” as evidence that Mother is “confident and happy with herself and her pregnancy.” He says that numerous unnamed people in his life agree that Mother posted this photo “to make me jealous.”

23In his Form 35.1 Affidavit, Father identifies that London has a nut allergy requiring an EpiPen or immediate hospitalization. He provided no other substantive information regarding London’s lifestyle in his household.

Mother

24Note that Father produced no messages from Mother. Therefore, despite counsel’s suggestion that the parties’ toxic communication was mutual, I draw an adverse inference against him that there are no vitriolic or contentions communications from Mother.

25Interestingly, Father’s review of Mother’s comments to him is positive (although he may not intend the court to see them in such a light). He attests that Mother thanked him for providing her with a lock of London’s hair from his first hair cut, and that she wrote [sic]: “thanks for giving me some. I know you're good at taking photos. Can you please send me some.” Regarding his “daily schedule for London,” Father credits Mother with writing “looks like there's lots of options to keep him entertained.”

26It was argued that Mother is the covert aggressor and was alienating London from Father for asking the child what Father had whispered to him at the exchange on March 29, 2024. Ms. Lyons uses this as the example in support of her argument that the difference between the parties is that Father is obvious in causing conflict but that Mother is “doing it in a way that masks her blameworthiness.” What counsel misses, however, is that Mother was physically bent down beside London when Father knelt and said quietly to the child: “remember what I said about Pa, ok.” She was present and heard the comment about which she later inquired. Father is not only planting seeds of doubt in London’s mind about the caregivers in Mother’s household, he is taking the opportunity of the exchanges to broadcast his efforts to Mother. To suggest that Mother is the blameworthy parent for asking London what Father had “said about Pa” is to lose all perspective on the parties’ relative culpability on both the issues of conflict and of alienating behaviours.

27It was further suggested that Mother has no insight on other stressors that could be causing London’s disturbed behaviours. It was specifically suggested that Levi’s birth could be one cause of London’s behaviours, however the behaviours were observed before Levi was born.

28Mother attests that she is fearful for her own safety and that of both children. She provides examples of situations of escalating conflict. There is no credible evidence to suggest that she is misrepresenting her fear to the court.

29Father alleges that Mother intentionally thwarted his parenting time with Levi. Mother attests that she offered hour-long visits between Father and Levi on five dates after the child’s birth. Father attended for fifteen minutes on one occasion and thirty minutes on the second.

30In her Form 35.1 Affidavit, Mother attests that Father:

a. has yelled and sworn at London; b. has grabbed and kicked London’s toys away from him; c. has told London to “go away” and has ignored London’s attempt to seek his attention when angry with the child; d. lost his temper when London was tired and crying, he started yelling and swearing, got into the car and punched the dash and steering wheel while saying “fuck you, London; bitchass kid” with Mother and the child in the car; and e. has demonstrated serious incidents of road rage and distracted driving with Mother and London in the vehicle.

31Regarding London’s lifestyle in her care, Mother attests in her Form 35.1 Affidavit that:

a. Having previously worked part-time, she is now a full time parent as a result of Levi's birth; b. London attends daycare on Mondays and Fridays from approximately 9:00 AM to 3:00 PM; c. London is regularly cared for by his maternal grandparents; d. She takes London to the Cambridge library on a weekly basis where he regularly participates in Group classes; e. she takes London to the YMCA Early ON children's centre in Ayr on a weekly basis; f. She takes London to an indoor playground roughly monthly; and g. London attends soccer on Saturday mornings.

32Appreciating that both parties’ evidence will be subject to cross-examination at trial, at this stage and based on the materials before the Court, where the parties’ evidence regarding an event differs, I prefer Mother’s testimony.

Law & Discussion

33Two issues are at play here: the best interests of London and Levi vis-à-vis the parenting arrangements; and Mother’s request for a Restraining Order. However, we must first address the threshold for supporting a change to a Temporary Order that was made on consent.

(1) Material Change in Circumstances

34Is it necessary for Mother to demonstrate a material change in circumstances since Justice Madsen’s Temporary Order regarding parenting time was made on December 13, 2023? In my view, because of the nature and circumstances of the Temporary Order itself, it is not.

35The cases of Roloson v. Clyde, 2017 ONSC 3642; Goldman v. Kudelya, 2017 ONCA 300; and Litman v. Sherman, 2008 ONCA 485 all dealt with the determination of a material change in circumstances in the context of trials of high-conflict Motions to Change. They are thus distinguishable from the situation at bar, although I agree with their shared basic principle that consistent and persistent conflict pre- and post-Final Order cannot be a material change in circumstances.

36Here, Justice Madsen did not make factual findings, nor did Her Honour render a decision based on any review of the facts before her on that date. Her Honour accepted Minutes of Settlement filed by two parties represented by experienced counsel. Thus, any analysis of a potential change in the facts supporting the Madsen Order would be impossible, as there is no defined comparator. Simply stated, it is illogical to suggest that Mother must prove that factual circumstances exist today which are different from the situation in mid-December, as no facts were found by Justice Madsen at that time.

37With the greatest of respect, Justice Ricchetti is wrong in stating, at paragraph 22 of Greve v. Greve, 2011 ONSC 4996, that maintaining the status quo pending trial “becomes even more significant a principle when the parties consented to the present parenting arrangement.” Such a statement misapprehends the unique circumstances of a Temporary Order obtained on consent. Unlike the two situations described by Justice Mackinnon in Grant v. Turgeon, a consent order is neither a status quo de jure (having been adjudicated on the basis of facts before the court), nor a status quo de facto (having naturally developed over time). The terms of a consent order are a negotiated solution to a current problem. Both parties make concessions and hope for the best. While they may generally reflect practical realities, neither party has agreed to a set of facts, nor has a judge defined the evidentiary foundation upon which the agreed-upon terms are based. No assessment of the children’s best interests has been conducted. There are situations, such as this one, where post-Order behaviours escalate in a manner that was not anticipated. As Mother writes:

I did not anticipate that [Father’s] abuse would escalate to this extent nor that he would involve our son in his abusive behavior. I also did not anticipate that [Father’s] behavior would become so threatening and harassing that I would be forced to ask for a restraining order on an ex parte basis just months after signing the interim Minutes of Settlement.

38Further, the Court of Appeal’s comment in Sypher v. Sypher that “interim orders are intended to cover a short period of time between the making of the order and trial” seems quaint in today’s climate of backlogged courts and overtaxed judicial resources. I note that this case is not actually applicable to parenting issues as the Court of Appeal was faced with a request to change interim spousal support and thus children’s best interests were not a paramount consideration.

39Similarly, Justice Murray’s comment at paragraph 49 of K.A.C. v. P.P., 2007 ONCJ 217 contemplates avoiding sequential and frequent residential changes because of “an impending trial” that is “right around the corner.” I note here that Justice Murray specifically found an “ agreement that, for most of the past two years, [the child] has been in the father’s care for three evenings a week.” Thus, that was a situation of status quo de facto, and therefore further distinguishable from the case at bar.

40This matter has not yet had a Settlement Conference. Assuming that the next date is a combined Settlement/Trial Management Conference, the earliest available dates are in August 2024, which would leave minimal time for trial preparation in advance of the September sittings. Trial is not “imminent” for this family; it would take place in September at the earliest, but would be more likely addressed in November, at least six months from now.

41If I am wrong, and the same approach is to be taken even where no facts have yet been determined, then this matter presents two clear and material changes in the family’s circumstances. Firstly, Father's behaviour is sufficiently worrisome for this court to intervene. His emotional instability and anger toward Mother are escalating. Further, Levi was not yet born when the Madsen Order was negotiated. Surely a new baby is a material change in the circumstances of the family as a whole and for London in particular. These factors demonstrate a “compelling or pressing reason to justify a change in [the] schedule before trial” as Justice Murray wrote; or a “compelling reason indicative of the necessity of a change to meet the children’s best interests” as stated by Justice Mackinnon.

42Either way, the fresh analysis of the best interests of these two children proceeds.

(2) Parenting Arrangements

43The parties were married, and thus the Divorce Act applies. Sections 16(1) through 16.6 are included at Appendix “B” hereto, excepting section 16.5 which deals with “contact orders” for persons other than spouses (i.e. persons other than the parents of the children), which is irrelevant here. I have reviewed all of the applicable factors gleaned from the legislation in reaching my conclusions in this matter.

44There is no need to rehash the facts set out above, almost all of which are based upon Father’s own written statements and affidavit evidence. I note that there was very little evidence provided regarding the actual living conditions for either of the children in Father’s household.

45Father is unable to discern between regularly challenging toddler behaviour and the effects of extreme stress and dysregulation. He is not even curious to determine the cause of any such behaviours; they are, in his view, exclusively Mother’s fault. He does not deny directly influencing London to reject or assault Mother and her parents. His responses to Mother’s allegations are concerning. (I cannot imagine why Father’s exposed nipples are in proximity to London’s face “all the time” such that London’s biting behaviour toward Mother should somehow be interpreted as normal.)

46Father has no insight into the impact of his anger on his family. He professes attendance at a well-reputed anger management group program but provides no documentary proof. The sole takeaway that he cites from this program is that “anger is a feeling we all have.” He has behaved in an abusive manner and engages in family violence in the form of emotional and psychological abuse and attempts at coercive control.

47Section 16(4)(b) specifically references “whether there is a pattern of coercive and controlling behavior in relation to a family member;” as a best interests consideration. In Barendregt v. Grebliunas, 2022 SCC 22 (at paragraphs 178 – 185), the majority of the Supreme Court of Canada agreed with the trial judge that controlling and overbearing acts and emotional abuse are properly considered in determining parenting arrangements. Exposure to conflict, both direct and indirect, has negative implications for the welfare of children. [3]

48Finally, Father alleges that Mother caused him Post-Traumatic Stress Disorder. This is an extremely serious and unpredictable mental health condition that requires careful treatment. Father provides no proof of this diagnosis but, presuming that he is being truthful, it is concerning that he provides no information regarding his treatment or prognosis. He alleges that limitations on his contact with London and Levi trigger him. This is very worrisome.

49I must conclude not only that parenting exchanges cannot take place between the parties, but further that London and Levi are not emotionally safe in Father’s unsupervised care.

50There is no credible evidence that Mother has made any decisions regarding the health or welfare of either child in a manner inconsistent with their best interests. It is absolutely clear that an order for joint decision-making would not be appropriate. In the circumstances, I find that it is important for Mother to have sole decision-making authority pending trial, which may be many months away.

51Having regard to the foregoing, I conclude that Father’s parenting time shall henceforth take place at a supervised access centre in Waterloo Region, with all associated costs to be borne by Father. Both children shall remain in Mother’s primary care, and she shall have temporary decision-making authority for them.

(3) Restraining Order

52Section 46 of the Family Law Act, R.S.O. 1990, c. F.3, as amended provides the authority for the Court to make a Restraining Order. The relevant sub-sections read:

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

53At paragraphs 28 through 30 of J.K. v. R.K., 2021 ONSC 1136, Mandhane, J. set out the test for a Restraining Order in the family law context concisely and with precision. The factors are as follows:

(a) there must be reasonable grounds for the applicant party to fear for his or her physical or psychological safety or that of a child in his or her care;

(b) the standard of “reasonable grounds” is lower than the civil “balance of probabilities” standard;

(c) in assessing the applicant party’s subjective fear, the order must only be granted where such fear has a “legitimate basis” such that there is a connection or association between the allegedly-frightening behaviours and the subjective fear; and

(d) the responding party’s liberty interest requires that such sanctions not be imposed lightly.

54It must also be remembered that a Restraining Order is a quasi-criminal sanction, and its breach becomes a criminal offence. The privacy and autonomy interests of a party being restrained cannot simply be ignored “just in case” there may be a potential for a future threat.

55Father conceded that a Restraining Order should be issued against him on the condition that it be made mutual. There is no credible evidence that he holds a subjective fear of Mother which has a legitimate basis grounded in frightening behaviours by her. In contrast, Mother’s fears have the legitimate basis of Father’s escalating toxic and emotional state, as shown by his behaviours and his warped interpretation of the situation as described in his own writings.

56In this matter, it is appropriate for a restraining order to be issued against Father on the terms as requested by Mother.

Costs

57Parameters for costs submissions are set out below.

Temporary Order

58Based on all of the foregoing, Temporary Order to issue:

1. per paragraphs 2 through 7 of Mother’s Notice of Motion, except that the phrase “An Order that” shall be removed from each paragraph and paragraph 6(a) shall be adjusted as follows:

(a) The Applicant Father, Mark Sheldon, shall have supervised parenting time with the children through Child & Parent Place (or such other supervised parenting centre as the parties may agree upon in writing through counsel) for not less than two hours weekly on such exact terms as can be arranged through that agency. Alternatively, the Applicant Father, Mark Sheldon, shall have supervised parenting time with the children through Brayden Supervision (or such other provider as the parties may agree upon in writing) on such exact terms as can be arranged with that agency. For clarity, the visits shall be supervised, Applicant Father, Mark Sheldon, is the Visiting Parent and the Respondent Mother, Tasha Jolene Seraphim, is the Residential Parent. The parties shall complete the necessary intake process within ten (10) days of the date of this Order. All costs associated with supervised parenting time shall be borne by the Applicant Father, Mark Sheldon.

2. The Respondent Mother, Tasha Jolene Seraphim, is the successful party on this motion.

3. The Respondent, via counsel, shall serve and submit to the court written submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with a detailed Bill of Costs and any documents showing an attempt to avoid this motion by Friday, May 17, 2024. The Applicant, via counsel, shall serve and submit to court written submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with any documents showing an attempt to avoid this motion by Friday, May 24, 2024. There shall be no extensions to these deadlines. Submissions are to be directed to: Kitchener.SCJJA@ontario.ca. It is imperative that the covering emails indicate the in the subject line: (1) the court file number; (2) that these are costs submissions; and (3) that they are being sent to the attention of Justice Breithaupt Smith. The parties shall further ensure their costs submissions are filed with the Court through the Family Online Submissions Portal in the usual course.

J. BREITHAUPT SMITH, J. Date: May 8, 2024

E DocuSign Envelope ID: F7AA996E-14CD-4F9A-A6E5- 3BB7699C0E7B Sworn April 12, 2024, Generated: 04/03/2024 at 09:58 AM by TASHINA SERAPHIM

Number of messages: 1

A C T o m i m m e i z s o s i n o e n : e r A e m t c e . rica/Toronto Parents: TASHINA SERAPHIM, Mark Sheldon OurFamilyWizard ourfamilywizard.com info@ourfamilywizard.com (866) 755-9991

Child(ren): London Sheldon

Third Party:

Appendix "A" to Reasons on Motion of Breithaupt Smith, J.

Message 1 of 1 Sent: 04/03/2024 at 09:53 AM From: Mark Sheldon To: TASHINA SERAPHIM ( First Viewed: 04/03/2024 at 09:56 AM ) Subject: Your Life What you did yesterday was disgusting. There is no coming back from it. Your life is beyond pathetic. You are the exact individual I thought you were and you continue to prove it on a daily basis since separating. The regret surrounding you in my life is immense. You are the worst thing to happen to me. You’d be the worst thing to happen to any man. And that’s because you use and abuse. Turns out Joel made the right decision. I hope he’s happily married with her. But here’s the thing. My children will know every action you have taken to limit their relationship with me. The hurt you have caused. They will know you physically hit me during our relationship. That you are a domestic abuser. They will know you illegally stole London for 69 days. That you are a kidnapper. They will know you didn’t allow me in the hospital for the birth of my child. They will know you were in contempt of court twice in three months. They will know you chose not to work so that they didn’t have financial support from their mother. They will know everything. There’s no hiding behind your vicious actions anymore, Tashina. Especially so since separating. The law is going to catch up to you. And I am going to spend the rest of my life ensuring that happens. There are not enough bad words in the dictionary to describe you as a partner, individual and mother. The court system will know you are full of lies and deceit. They will know your family history of lies and deceit. You left our court ordered location and demanded I go somewhere you and your adopted father, were. What is wrong with you? Who in their right mind thinks that’s appropriate? Four days after your pitiful mother showed up again, against the courts advice. Seek help. And a new lawyer. I received two emergency alerts for my child from his daycare two weeks ago because of you. The police were coming to your house yesterday. The police came to your house in December. Can you process this? You are a vile, reprehensible woman who does not care about the health, safety and wellbeing of her children. You are exactly who your parents are. Page 1 of 1

Appendix “B” to Reasons on Motion of Breithaupt Smith, J. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Page: 2 Appendix “B” to Reasons on Motion of Breithaupt Smith, J. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)

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

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

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

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

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

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

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

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

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court 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.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Page: 3 Appendix “B” to Reasons on Motion of Breithaupt Smith, J. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

(7) The order may authorize or prohibit the relocation of the child.

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2 (1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

1Justice Madsen was appointed to the Court of Appeal on May 1, 2024. To avoid any confusion, I continue to refer to her in her capacity at the Unified Family Court at Kitchener for the balance of these reasons.

2Note that the Minutes of Settlement were signed December 8th and incorporated into the Madsen Order on December 13th.

3See also section 16(4)(c) of the Divorce Act.