COURT FILE NO.: 5062/22
DATE: 2024-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T. W.
Applicant
– and –
C. B.
Respondent
Self Represented
Dhiren R. Chohan, for the Respondent
HEARD: July 15-19, 2024
VARPIO J
REASONS FOR JUDGMENT
OVERVIEW
[1] The applicant (the “Mother”) and the respondent (the “Father”) come to court involved in a dispute regarding their shared daughter (the “Daughter”). While they agree to share decision-making, they disagree on as to where she should live.
[2] The Daughter has always lived in Sault Ste. Marie. The Father would like to move the Daughter to Hornepayne so that she can enjoy a stable environment without being unduly burdened by the Mother’s mental health struggles.
[3] For her part, the Mother wants the Daughter to stay in Sault Ste. Marie where the Mother has a stable job, a support network and where the Daughter has always resided. The Mother submits that her mental health issues have largely been resolved and that her mental health has not impacted the Daughter.
[4] Both parties agree that child support will be informed by the Daughter’s residency. The Mother also seeks spousal support.
[5] For the following reasons, I hereby order that the Daughter shall move to Hornepayne and I will decide the remaining issues at a subsequent hearing.
FACTS
The Undisputed Facts
[6] The Mother and Father were married in 2013. They lived in Sault Ste. Marie, Ontario where the Mother works as an Early Childhood Educator for the Huron District Catholic School Board at St. Basil’s School. She has adult twins (a boy and a girl) from a previous relationship, but those children reside with their biological father in Chapleau. One of those twins testified for the Father in these proceedings.
[7] The Daughter was born in 2014. She suffers from health issues. She was diagnosed with Juvenile Idiopathic Arthritis and Uveitis. These diagnoses require the Daughter to take serious medication.
[8] The Father works for CN Rail as a Steel Bridge Foreman. Between 2014 and the date of separation in January of 2021, the Mother and Father continued a routine whereby the Father would be away for eight days, and then back for six. The relationship was tumultuous, with both parties alleging that the marriage suffered from emotional trauma, financial strain, and physical conflict.
[9] During the time the Father was away for work, the Mother cared for the Daughter by herself. When the Father returned from work, the parties disagree as to who took primary responsibility for raising the Daughter. The Father testified that he was primarily responsible while the mother took time for herself. The Mother testified that both parents shared the responsibility. For the purposes of this decision, I need not resolve this dispute.
[10] On New Year’s Eve 2020/21, the Mother and Father attended the Mother’s parents where the maternal grandfather referred to the Father using a homophobic slur. This placed considerable strain on the relationship and, in January 2021, the parties separated. The separation proved acrimonious. The Mother remained in the matrimonial home while the Father found other accommodations. Post-separation, the parties attended counselling, but the counselling ended in failure.
[11] The Daughter largely stayed with the Mother post-separation. The Father would see the Daughter every other weekend. The parties allege that the other’s negative behaviour continued during this time.
[12] In September 2021, the Mother and Father attended a wedding as friends (the “Wedding Incident”). At some point, the Mother went through the Father’s phone and discovered messages that the Father had sent to another woman. A fight ensued. The parties’ recollection of this event will be examined later in these reasons.
[13] The Father moved in with a woman in 2021. The Father ultimately left that residence.
[14] At some point during the separation, the Father took a stress leave from work. He was prescribed medication for his malady but did not take the medication. He did not feel that he needed same. He subsequently returned to work.
[15] During Easter 2022 (the “Easter Incident”), the parties had another major conflict. They attended a hockey game and, at some point, the Mother poured beer on the Father. The conflict continued and, on Easter Sunday, the Mother sent text messages to the Father which stated:
Answer your fucken phone now
I’ve just reported my vehicle stolen.
ANSWER YOUR FUCKEN PJJ HI
KNE
PHONE NOW
Your truck is here. What should I get done to it
You better come get your daughter done
Now
How bad do you want [name of daughter]
You want her. You better fucken answer
You are done. Do you need new tires
Cause you will after I’m done
Who should I message. Michele
Michelle
Khaila? Cristina? Kim?
ANSWER THE PHONE BEFORE I KILL US BOYH
I WILL AND IM NOT JOKING
UOU BETTER ANSWER THE PHONE
WHEN I CALL
That’s how important she is eh?????
I guess if you can send her off with someone else’s kid so you can fuck the mother
Answer or else
I’m not joking
Answer the fucken phone
I will do it
Answer the fucking phone
Last chance
Last fucking chance
She’s sleeping and she will never know
Is this what you want to do
It’s all on you for not answering
Dead. You are dead
ANSWER your fucking phone or I mean it
Answer your phone.
[16] The next day, the Father called the authorities and CAS intervened. CAS allowed the Mother supervised access while the investigation ensued. A safety plan was put in place. The Father took the Daughter to Hornepayne for a funeral shortly after the Easter Incident and, rather than returning home with the Daughter, he enrolled her in school in Hornepayne so as to be near his family. The Father advised authorities and the Mother of this change shortly after the fact. The Child performed well at school in Hornepayne, although the sample size for the Daughter’s performance was quite short, approximately 40 days.
[17] On June 8, 2022, CAS advised the parties that the Mother’s mental health had improved such that CAS would cease to be involved in the file. In late June 2022, prior to the end of the school year, the Mother went to Hornepayne and returned the Daughter to Sault Ste. Marie. She did not advise the Daughter, the Hornepayne school, the authorities, or the Father that she was retrieving the Daughter.
[18] On September 12, 2022, the Mother commenced the instant application. On October 9, 2022, the Mother secured an order whereby the Daughter lived with the Mother. The Father received reasonable parenting time on reasonable notice.
[19] Between October 2022 and March 2023, the Father had no parenting time with the Daughter.
[20] Over the course of the past school year, the Daughter has missed a number of school days. Over 60 such absences were listed on the Daughter’s report card.
[21] In January 2024, the Daughter called the police after the Mother and her adult twin son had a heated argument (the “January Incident”). The police were called. The Daughter and the adult twin son spent the night with the maternal grandmother.
The Evidence in General
[22] The Mother and Father filed affidavits that constituted the majority of their evidence-in-chief. Both parties then testified briefly in-chief and were subject to cross-examination. The Mother is the applicant in the instant proceedings and she testified first. Her evidence, however, was largely a response to the Father’s affidavit evidence. As such, I will deal with the Father’s case first in these reasons.
The Father’s Evidence
[23] The Father testified that the Mother suffers from declining mental health issues and that she drinks to excess while on medication. He described the Wedding Incident as a situation where the Mother became jealous and began hitting the Father and throwing things at him. He filed a picture of a bloody pillow to corroborate his version of events. He also indicated that the Mother would punch and throw things at him in front of the Daughter.
[24] The Mother’s declining mental health issues caused her to become more aggressive and manipulative. The Father recounted instances where the Mother engaged in such activities.
[25] The Father also testified that the Mother had post-separation relationships with individuals he described as known criminals: A.G. and B.W. The Father filed newspaper articles that described the arrests of these two individuals. A.G. was arrested for drug-related issues, including possession for the purpose of trafficking, in February 2022. B.W. was arrested for crimes of violence at a later time.
[26] The Mother sought to control the Father, as per the Father, by involving the Father with CAS. On December 29, 2021, the Mother called CAS to report that the Father was not adequately parenting the Daughter. When the Daughter was in the care of the Father, the Daughter slept in a bed with a 10-year-old boy. This boy was the child of the woman that the Father was living with. The Father testified that sleeping arrangements were changed and the file was closed.
[27] The Mother again called CAS in February 2022. On this occasion, the Mother complained of a video taken showing the Daughter left unattended in a car in a grocery store parking lot. The Father testified that he was outside the car when the video was taken. Although the CAS closed its files with no apparent concern, the Father testified that the CAS involvement ruined his relationship with the woman he was seeing at that time.
[28] During the “Easter Incident”, the Father and Mother argued about the Mother’s relationship with A.G. A.G. was arrested before Easter, and the Mother was aware of same. The Father testified that the Mother stated that she would have A.G. kill him. The Mother then sent the impugned texts.
[29] The Father was alarmed, and police were called the next morning. The police investigated and the Daughter was removed from the home. The Father and the CAS created a safety plan for the Daughter.
[30] In response to the Easter Incident, the Father took the Daughter to reside in Hornepayne. The Father has considerable family there. During May and June of 2022, the Daughter attended school in Hornepayne. The Father moved the Daughter to Hornepayne without telling the Mother ahead of time. He did, however, ensure that the Mother was aware of the Daughter’s whereabouts after having moved her.
[31] In late June of 2022, the Mother drove to Hornepayne with a friend and removed the Daughter from school and returned her to Sault Ste. Marie.
[32] The Father did not have a lawyer at this time and he testified that he signed an interim agreement for parenting time. This phenomenon led to the October 9, 2022 order. He testified that he consented to the order so as to ensure some level of stability. This situation remained the status quo prior to the hearing of the trial.
[33] The Father testified that the Mother then began a romantic relationship with B.W. The Father was concerned about the Daughter’s exposure to such a person given B.W.’s arrest for crimes of violence.
[34] The Father spoke with the Daughter during the January Incident. The Daughter indicated to the Father hat the Mother was in a conflict with her adult twin son such that the Daughter was concerned for her safety. As such, the Father told the Daughter to call police.
[35] The Father has maintained a strong relationship with the Mother’s adult twin children, especially with the adult twin daughter (“M. B.-W.”). The Father was in the twins’ lives from the ages of about five until 17 and the Father wants to maintain a good relationship with them.
[36] With respect to his stress leave, the Father testified that his return to work serves as the proof that he can handle parenting the Daughter full-time.
[37] The Father testified that he did not share adult information with the Daughter but that he would answer the Daughter’s questions when she asked.
[38] The Father was charged with drinking and driving in 2006 in Alberta but was never found guilty of a crime. His license was suspended for three days as a result of the arrest. The Father denied drinking with any regularity. He testified that having the Daughter caused him to grow up.
[39] The Father is a member of the Michipicoten First Nation (“MFN”).
[40] With respect to his plan going forward, the Father testified that he would like to move the Daughter to Hornepayne where she will enjoy much more stability than she enjoys with her Mother in Sault Ste. Marie. The Daughter would have her own room in a small house that is currently owned by the paternal grandfather. If the Father were to be successful in this trial, he would live in the house full-time and the Daughter and he would live upstairs in the finished portion of the house. Currently, the Daughter stays in a makeshift bedroom in the unfinished basement. The Father sleeps downstairs near the Daughter because the Daughter is afraid of being kidnapped.
[41] The Father plans to enrol the Daughter in English Catholic School. The Father testified that the Daughter has many cousins in Hornepayne and will be looked after. The Daughter’s medicine will be shipped to Hornepayne and the Father will ensure that the Daughter receives appropriate medical care.
[42] The Father’s employer will give him a steady nine-to-five job if he is successful in this trial.
M. B.-W.’s Evidence
[43] M. B.-W. testified that she is the Mother’s adult twin daughter. She is working in Chapleau in the social work field. She testified that post-separation, there was a change in the Mother’s mental health in that the Mother began drinking more regularly. The Mother has isolated herself from people in her life.
[44] The Mother and M. B.-W. had an argument after M.B.-W. liked a picture of the Daughter on Facebook. The argument occurred because the picture also included the Father and another woman.
[45] M. B.-W. and the Daughter are close.
[46] M. B.-W. testified that B.W. was good to herself and to the Daughter.
[47] M. B.-W. refused to meet A.G., although she does not believe that A.G. and the Mother were ever in an “official” romantic relationship.
[48] Of all the people in M. B.-W.’s life, the Father is the most reliable. She remains close with the Father as a result.
CAS and MFN Evidence
Ms. Holly Syrette
[49] Ms. Holly Syrette is an intake supervisor with the MFN. In that role, she supervises MFN workers who operate in conjunction with the CAS to ensure that culturally appropriate responses to children in need are available. She testified that the Father is a member of the MFN and that the Daughter is an associate thereof. Accordingly, the Daughter is eligible to receive programming, benefits and funding through the MFN that include reimbursement for medical trips to London, Ontario, reimbursement for activities, and inclusion in culturally appropriate activities.
[50] Ms. Syrette was asked about specific conversations with the Daughter, as well as her opinions regarding the ultimate determination of the case. The background for those conversations was never fully put before the court (i.e., who was present, the conditions under which the statements were taken, etc.). Accordingly, I have an insufficient evidential basis to admit these conversations as per R. v. Khelawon, 2006 SCC 57.
[51] Ms. Syrette indicated that the MFN would be supportive of the Daughter living with the Father in Hornepayne. In cross-examination, however, Ms. Syrette conceded that MFN representatives did not look at the house in which the Daughter would live in Hornepayne. As such, I am concerned about the admissibility of Ms. Syrette’s opinion as it would not appear to be based upon fulsome evidence, and it may also usurp my role as the trier of fact (see White Burgess Lnagille Inman v. Abbot and Haliburton Co. 2015 SCC 23; and R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9). As such, I will afford that opinion no weight.
[52] The Mother questioned Ms. Syrette regarding the Mother’s perception that Ms. Syrette was in a conflict of interest as regards this file. I take nothing from that line of questioning since it disclosed no conflict of interest and since Ms. Syrette’s evidence is not determinative of any issue in this matter other than the fact that MFN will assist the Daughter in securing financial aid and other benefits, irrespective of where and with whom she lives.
Ms. Tara Fleet
[53] Ms. Fleet gave evidence regarding CAS files. For reasons given orally, I did not admit those files into evidence other than to indicate that the CAS gave the Mother a “54B” designation.
[54] With respect to the 54B designation, I do not know whose evidence was relied upon to make the determination or what metrics were used to generate this designation. Ergo, I give this designation no weight and do not rely upon it for any purpose.
The Mother’s Evidence
[55] The Mother testified that she is an Early Childhood Educator with the Huron District Catholic School Board. She has a university degree from Lake State University in Sault Ste. Marie, Michigan and she completed some teacher’s college, but did not finish the degree. She works at St. Basil’s School, where the Daughter also attends.
[56] The Mother gave evidence that she has suffered from depression and anxiety since she was a teenager. She has attended anger management counselling and psychotherapy, and takes medication to control her symptomology. The Mother denied that her mental health in any way affects her parenting.
[57] The Mother admitted to breast feeding the Daughter until the Daughter was 5 years old. The Mother also admitted to occasionally drinking and breast feeding, but did not see that phenomenon as a particular problem.
[58] With respect to post-separation matters, the Mother testified that she and the Daughter have a routine whereby the pair get up in the morning and attend the same school. They then leave to go home after school and the Daughter undertakes extra-curricular activities like horseback riding and gymnastics. It appears that MFN pays for many of these activities. The Daughter plays with friends, goes to the public library and does crafts. On weekends, the Daughter will have friends over, go to a friend’s house or otherwise have fun.
[59] At the September 2021 wedding, the Mother admitted to “snooping” through the Father’s phone so as to locate messages as between the Father and another woman. The Mother admitted that there was a physical incident and that the pair had “had a few drinks”.
[60] The Mother denied that she was physically abusive during or after the marriage. She testified that she did not hit the Father, but that she did thrown things at him, possibly a bucket. The Mother agreed that the Daughter was present when she threw the bucket at the Father.
[61] The Mother deposed that the Daughter reported to her that the Daughter shared a bed with a 10-year-old boy when she stayed with the Father. The Mother reported this to the CAS. The Daughter also reported that the Father would leave the Daughter in a grocery store parking lot unattended. The CAS closed its file as regards the Father shortly after it was opened.
[62] In oral testimony, the Mother looked at the texts that gave rise to the Easter Incident, and the Mother testified that when she thinks back, the texts were sent because it was a stressful and emotional time, with a lot going on. She suffered through a roller coaster of emotions. The Mother testified that she would never do anything to hurt the Daughter. She agreed in cross-examination that she had had two or three drinks during the evening when she sent the texts. She testified that A.G. was still in her life at that point, even though newspaper articles describing his arrest had been posted approximately two months prior to the Easter Incident.
[63] The Mother was never in a relationship with A.G., per se. The two were friends and had a romantic liaison but were never in a “relationship”. The Mother admitted that A.G. loaned her money. The Mother testified that she did not recall telling the Father that she would get A.G. to kill the Father. The Mother indicated that sometimes when she gets upset, she says things she does not mean.
[64] As for her relationship with B.W., the Mother testified that B.W. would never hurt the Daughter.
[65] The Mother testified that Father unilaterally moved the Daughter to Hornepayne without telling her ahead of time. Accordingly, and after speaking with counsel, the Mother drove to Hornepayne to bring the Daughter back to Sault Ste. Marie.
[66] The Mother was upset after noticing that M. B.-W. “liked” a Facebook picture that included the Father and another woman. She recalled telling her now-adult daughter to “just stop talking to me”. Although the Mother supports the fact that the Father and M. B.-W. have a good relationship, she felt as though the Father was turning M. B.-W. against the Mother.
[67] The Mother testified that she drinks alcohol on a regular basis, but that she only drinks a beer or two while cooking dinner or the like. This drinking occurs a couple of times per week.
[68] The Mother admitted that the Daughter called the police as a result of the January Incident, but deposed that the matter was not overly serious in so far as no charges were laid. The Mother remained calm during this episode while the other people involved overreacted.
[69] The Mother explained the Daughter’s seemingly high number of absences from school while in her care. The Daughter would have specialist appointments in London, Ontario, which caused some absences. The Mother also noted that attendance was taken both in the morning and the afternoon such that an absence would be counted twice on a report card.
[70] The Mother denied that the Daughter had nightmares in relation to a fear of being kidnapped. The mother agreed that the Daughter was concerned that there were monsters under her bed.
[71] The Mother testified that there were instances where the Father was violent as towards the Mother which involved slamming doors and holding her arm that caused bruising. There were a small number of such incidents.
POSITION OF THE PARTIES
[72] The Father submits that the Daughter’s best interests are such that the Daughter should reside with the Father in Hornepayne. The Mother would receive the following parenting time:
Every summer;
Every second weekend during the school year; and
Other specified holidays.
[73] The Mother testified that it is in Child’s best interests to maintain the current situation since the Daughter will need the Mother as the Daughter enters teenage years. Further, the Daughter’s routine and established pattern of life is with the Mother in Sault Ste. Marie. The Mother also testified that the Father engaged in parental alienation as regards M. B.-W. The Father engages in abusive conduct and the Daughter’s primary residence ought not therefore be with the Father.
ANALYSIS
Parenting Time and Mobility
Best Interests of the Daughter Generally
[74] Section 16 of the Divorce Act governs the imposition of parenting orders and the relocation of children. Sections 16(1) and 16(2) of the Divorce Act provide the general framework for the imposition of parenting orders:
Best interests of child
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.
Primary consideration
(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.
[75] Section 16(3) lists non-exhaustive factors that a court can consider when making a parenting order:
Factors to be considered
(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.
[76] Section 16(4) of the Divorce Act discusses the impact that family violence has upon such orders:
Factors relating to family violence
(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.
[77] Sections 16(5) of the Divorce Act describes the proper use of past conduct in making any determination:
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
[78] Section 16(6) of the Divorce Act describes the principle regarding maximum contact with each parent:
Parenting time consistent with best interests of child
(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.
[79] With respect to relocation, section 16.9 of the Divorce Act governs the form of notices and other such procedural issues. Sections 16.92(1) and 16.92(2) of the Divorce Act outlines the non-exhaustive factors to be considered by the court in making such a relocation decision, and factors that may not be considered:
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Factor not to be considered
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
[80] Finally, section 16.92(3) describes the burden of proof in relocation cases:
Burden of proof — person who intends to relocate child
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Burden of proof — person who objects to relocation
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
Burden of proof — other cases
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
Application to This Case
Burden of Proof
[81] In this case, section 16.92(3) of the Divorce Act is applicable as the current parenting order does not mandate that the Daughter spend “substantially equal time” with both parents and the parent with whom the child “spends the vast majority of their time” is not looking to relocate. Accordingly, neither sections 16.92(1) nor 16.92(2) of the Divorce Act apply.
[82] Both parties therefore have the burden of proof that the relocation is or is not in the best interests of the Daughter.
The Best Interests
[83] In this case, it is in the Daughter’s best interests to relocate to Hornepayne with the Father. A number of factors lead me to this conclusion.
Parental Co-Operation
[84] The Mother submitted that the Father has engaged in a pattern of abuse and control whereby the Mother has been manipulated in this case.
[85] I disagree with that submission and find that the Mother has curtailed the Father’s ability to have a constructive relationship with the Daughter.
[86] First, the Father’s plan for parenting time with the Mother is relatively generous. By way of contrast, the Father did not see the Daughter for a six-month period in 2022/3. These factors suggest that the Mother has controlled the parenting situation and has deprived the Daughter of a consistent paternal presence.
[87] As will be discussed below, the Mother has also engaged in aggressive verbal and physical conduct such that she has been the person who was likely the aggressor in the relationship.
[88] Finally, the Father’s friends and family appear to be in Hornepayne and not Sault Ste. Marie where the Mother’s support network exists. If anyone has been isolated from their support network post-separation, contrary to the Mother’s submission, it is the Father.[^1]
[89] It is apparent, therefore, that the Mother has engaged in a pattern of abuse and control.
Child’s Needs / Emotional and Psychological Harm
[90] By far most important factor in this case is the Daughter’s need for emotional and psychological stability. An examination of the facts of this case reveal that many of the factors described in the Divorce Act regarding relocation and the best interests of the Daughter can be viewed through the lens of the Daughter’s emotional and psychological needs.
[91] In this case, the parties effectively concede that the other loves the Daughter. Of that, there is no question. The Mother clearly loves the Daughter as she has attempted to improve her own mental health in order to better care for the Daughter. The Father has also demonstrated his love for the Daughter by responding to the Daughter’s needs as best he can.
[92] My decision thus rests largely upon the stability afforded by both parenting plans as per s. 16(3)(a) of the Divorce Act and their impact upon other relevant considerations. With regard to the Father’s plan, it must be noted that the Father’s personal circumstances are acceptable, but require improvement. The Father took stress leave from work during his separation. He was prescribed medication but refused to take same. While his return to work suggests that his symptomology has improved, the Father must understand that parenting a teenager can be difficult, especially one with special needs. Accordingly, he must take the necessary steps to ensure that his mental health is sufficiently robust to care for the Daughter. I am satisfied that the Father is currently able to do so on a superficial level, but I have some concerns that the Father may not be sufficiently proactive in ensuring that his mental health is prepared for the road ahead.
[93] Further, the Father moved the Daughter to Hornepayne without telling anyone ahead of time. Although this was not done in the face of a court order (no court order existed at that time) and it was done in response to a highly-charged episode (the Easter Incident), the Father’s actions did not generate the needed level of communication to ensure that parental stability was at the forefront of the Father’s actions. Accordingly, the Father should do more to ensure that he creates a harmonious environment for the Daughter and the Mother, to the extent that same is possible.
[94] With that being stated, the Father effectively testified – and I accept – that he agreed to an order keeping the Daughter in Sault Ste. Marie on a temporary basis in order to ensure that the Daughter’s life remained stable and fairly free from conflict. Further, the Mother’s own adult daughter testified that the Father was the most reliable person in her life – including the Mother, M. B.-W.’s biological father, and M. B.-W.’s step-mother. I have no evidence that this testimony was a by-product of parental alienation and I do not accept the Mother’s submission to that effect. Rather, it was clear that M. B.-W. was providing her evidence as honestly as she could under difficult circumstances. Thus, I infer that the Father is a source of stability for the Daughter as well as for M. B.-W.
[95] I also accept that a move to Hornepayne would generate a stable environment for the Daughter. The Father would move into a house owned by his own father and the Daughter would have a room of her own, although I do not understand why the Daughter is currently in the basement. She would also be able to attend school in Hornepayne and would be surrounded by her paternal relatives. She would be a part of her Indigenous culture. In fact, I have no evidence to suggest that residing in Hornepayne would lead to any instability or non-nurturing stressors.
[96] The Father’s plan of care is, as a result, reasonably good but it needs improvement in regard to his commitment to communication and his commitment to his own mental health.
[97] As regards the Mother’s plan, the Mother raised good points about the Daughter’s needs and the benefits of remaining in the only community she has ever known. The Daughter has roots in this community. Her Mother and maternal family live here. The Daughter has friends and an established school routine. She is accustomed to her current situation and remaining in Sault Ste. Marie would not, therefore, upend her life.
[98] The Mother’s position, however, does not take adequate account of the trauma that living in Sault Ste. Marie has caused the Daughter. First, the Mother appears to drink alcohol on a consistent basis. I accept M. B.-W. and the Father’s evidence that the Mother drinks with some frequency. While not illegal, consistent alcohol ingestion by a parent is rarely, if ever, in a child’s best interests and the Mother’s alcohol use would appear to create instability in the Daughter’s life as evidenced by the semi-regular episodes where the Mother’s mental health becomes frayed. Although the Mother did not file any certificates proving successful completion of counselling and other programming, I accept that the Mother took programming that has helped her with her problems and that she has made progress. Indeed, CAS “cleared” the mother on June 8, 2022. The Mother is to be commended for the strides she has made.
[99] Nonetheless, I have concerns that traumatic episodes appear to occur while the Daughter is in the Mother’s care. The Mother testified that the January Incident was an overreaction and that police need not have been called. This seems to be a minimization by the Mother. It appears to have been accepted by everyone that the Mother and her adult twin son were engaged in a dispute that became heated while the Daughter was at home. These kinds of episodes can scar a child, irrespective of whether the Mother was the root of the problem.
[100] This concern is also highlighted by an examination of the Easter Incident. When confronted with the texts at the centre of the Easter Incident, the Mother indicated that she will say things when she is upset that she does not mean and that she would never hurt herself or the Daughter. This testimony fails to recognize that saying and/or texting threatening things, even if one does not believe the words, will have a direct or indirect traumatizing effect on a child. Simply indicating the “I didn’t mean it” seems to suggest that the Mother believes that her intentions are the dominant consideration as opposed to the impact that the words had on the Daughter.
[101] The Mother also appears to make poor decisions as regards personal interactions. Her relationships with A.G. and B.W. had the potential to put the children at risk, given the men’s arrests for relatively serious offences. Every witness said that B.W. was good to the children and it appears that A.G. was largely absent from their lives. Accordingly, no harm appears to have been caused. However, one wonders if the Mother will continue to have friendships/relationships with those accused of serious criminality. Such further situations would put the Daughter at risk.
[102] I also accept that the Mother has a temper that, when fuelled by alcohol, can cause her to lash out physically and verbally at people. While the Mother may not be capable of inflicting serious physical harm, the psychological harm caused by such violent outbursts is difficult to overstate, even when they are not directed at the Daughter.
[103] These findings inform my view that the Mother likely told the Father that she would have A.G. kill him. It is apparent that the Mother does not take the power of her words seriously (especially when it comes to speaking with the Father) and that she undoubtedly threatened the Father when she was angry and possibly intoxicated. The Mother, therefore, has failed to communicate effectively with the Father.
[104] As such, I have no difficulty finding that the Mother’s alcohol use, decision-making and temperament have led to an unstable environment, and that these factors pose meaningful risks to the Daughter’s psychological and emotional well-being.
[105] This constellation of factors suggests that the Mother will likely do something in the future that will meaningfully upset the Daughter’s stability and psychological development. The Daughter already suffers from fears of being kidnapped and/or from monsters under her bed which, for a 10-year-old, seems to go beyond normal fears held by a youngster of that age. While these fears may yet disappear, one can imagine that further outbursts from the Mother (which is a meaningful risk in the circumstances) would worsen this situation.
[106] All told, the status quo presents significant risks for the Daughter’s emotional and psychological well-being because the Mother does not appear to adequately understand the nature of her conduct and its impact upon the Daughter.
[107] Moving to Hornepayne is not a “silver bullet” solution for the Daughter’s ills – she will have to wrestle with her own psychological issues, the Father must ensure appropriate medical treatment for the Daughter and the Father must manage his mental fortitude. Despite some concerns I have about uprooting the Daughter, I find that the move to Hornepayne is in the Daughter’s best interests since the Father’s proposed relocation will provide considerable stability to the Daughter – stability that is currently missing from the Daughter’s life as a result of living with the Mother.
CONCLUSION
[108] Given the foregoing, I hereby order that the Daughter’s primary residence shall be with the Father in Hornepayne commencing September 1, 2024. The Mother shall enjoy parenting time every summer, commencing two days after the last day of school and ending the Thursday prior to Labour Day. This permits the Father and Daughter the opportunity to organize the Daughter’s affairs such that the Daughter can move without too much disruption. The Father shall have one weekend of parenting time in each of July and August. The Father will advise the Mother of the selected weekends by April 1 of the same year. The father will select his weekends with a primary concern given to maximizing quality time as between the Mother and the Daughter.
[109] The Mother shall enjoy regular parenting time every other weekend between Labour Day and the last day of school commencing September 14, 2024.
[110] The Mother shall have parenting time on Mother’s Day weekend, while the Father shall have parenting time on Father’s Day weekend.
[111] The parents will organize travel and exchanges, failing which I will entertain submissions on same.
[112] The Mother shall have parenting time every March Break.
[113] The Mother and Father will alternate weeks for parenting time during the Christmas break, with the Mother having the first full week of the Christmas break in 2024, and the Father having the first full week in 2025. The parties will then rotate weeks every Christmas.
[114] The Mother will receive make-up time for lost parenting time as needed, provided such make-up time is reasonably sought.
[115] If the parties wish to argue regarding further exceptions, they are free to schedule time with me.
SUPPORT
[116] The parties will arrange a two-hour attendance before me to argue child support and spousal support.
Varpio J.
Released: August 7, 2024
COURT FILE NO.: 5062/22
DATE: 2024-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T. W.
- and –
C. B.
REASONS FOR JUDGMENT
Varpio J.
Released: August 7, 2024
[^1]: I do note, however, that the parties resided in Sault Ste. Marie during their marriage.