COURT FILE NO.: FC-20-1808
DATE: 2024/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kyle Edgar John Ritchie-Rock
Applicant
– and –
Lacie Nicole Jarvis
Respondent
Self-Represented
Sonya Notturno, for the Respondent
HEARD: November 28-30, 2022, December 1-2, 2022, January 9, 2023, February 1, 2023 and April 14, 2023.
REASONS FOR DECISION
LABROSSE J.
OVERVIEW
[1] The trial of this matter began on November 28, 2022 and proceeded for five days during which the court heard evidence from four witnesses: the applicant father, the respondent mother, the father’s fiancée, and the mother's boyfriend.
[2] The child who is the subject of this application is C.A.R. She was six years old at trial.
[3] At the conclusion of the evidence, it was agreed that the court could not finalize its decision as a result of an ongoing investigation by the Ottawa Children's Aid Society. On February 1, 2023, the parties returned before the court and a Statement of Agreed Facts was filed summarizing the results of the CAS investigation and providing an update on the father's personal circumstances as a result of the end of his relationship with his fiancée. The SAF also addressed the issue of the father's living arrangements, how he was in the process of seeking a permanent residence and that, in the meantime, he would be residing with his brother in the south end of Ottawa.
[4] As a result in the change of the father's circumstances, the court is left in a difficult position of assessing the merits of the father’s parenting plan when it was based on a joint plan with his fiancée. It was also difficult to assess the father’s proposed parenting plan at a time when the father did not have a permanent residence and the child’s long-term travelling arrangements were unknown.
[5] In the time since the parties argued in April 2023, the father has had time to find permanent living arrangements and provide more certainty to his parenting plan. The mother was also in school taking a law clerk program and as such, she may also benefit from the opportunity to update the court on her circumstances.
[6] Accordingly, this decision must focus on the issue of decision making for the child in the context of some uncertainty surrounding the father's circumstances. In terms of the parenting schedule, it becomes very challenging for the court to assess the father's request for a 50-50 parenting schedule when it is unknown to the court if the father’s living arrangements will realistically accommodate such a schedule.
[7] For the reasons set out herein, the court has determined that it is in the best interests of the child that both parents maintain some decision making for the child and that each parent retain ultimate decision-making authority over certain aspects of the child’s life in the form of a parallel parenting arrangement. Given the likelihood that one or the other parent will exclude the other from meaningful consultation, it is important for both parents to have decision-making authority so that they can be consulted and that only in the event of dispute will one party have the authority to decide a matter.
[8] In terms of a parenting schedule, the court must maintain the current schedule that is in place and assess through updated evidence how the parties are doing with that schedule, how the transportation arrangements are working, if they are equitable, and if the father's living arrangements favour an expansion to his parenting time. Unless the parties can agree otherwise, these issues will be addressed in a further appearance with the court to be set as soon as possible.
BACKGROUND
[9] The parties met in 2015 while both were working at Walmart. At the time, the mother had two children from a previous relationship whom she sees on a bi-weekly basis. The parties resided together from May 2016 until April 15, 2017. Their only child, C.A.R., was born in 2016. The parties were never married. At the time of separation, the mother went to reside in a shelter with the child and in August 2017 moved into her current home in Westboro. That home is located in proximity to the Tunney’s Pasture transit station.
[10] Following separation, the father continued to reside in the same apartment. The father and his then-fiancée, Christine Tait, met in March 2018 and they moved in together three months later in the Beacon Hill area. At the time of trial, they were living in a residence in the area of Highway 417 and Innes Road.
[11] On November 3, 2017, the parties entered into Minutes of Settlement whereby they agreed that the father was to have the child one week from Friday to Tuesday and then the next week from Sunday to Tuesday. That agreement is relevant to decision making as the parties agreed that they would have meaningful consultation on any major decision but in case of disagreement, the mother’s decision would prevail. The decision-making agreement never changed leading up to trial.
[12] As a result of the COVID-19 pandemic and the suspension of in-person learning, the parties entered into Minutes of Settlement dated March 31, 2020 which contemplated an alternate week on week off parenting schedule. By agreement dated June 1, 2020, the parties entered into an agreement titled “Parental Agreement Shared 50/50 Custody” which provided further specification to the co-parenting arrangement.
[13] On September 25, 2020, the mother withheld the child and claimed that as a result of the COVID-19 pandemic it was too risky for the child to attend at the father's home because the father’s youngest child was attending daycare. At this time the mother's eldest children continued to attend school and continued bi-weekly visits.
[14] On November 17, 2020, the father commenced proceedings seeking sole custody of the child and granting access to the mother. The parties then entered into negotiations and arrived at a temporary without prejudice agreement set out in the order of Doyle J. dated December 16, 2020. That order provided for a Christmas schedule and set the father’s parenting time at every other weekend from Friday at 6:00 p.m. to Sunday at 4:00 p.m. Exchanges took place at Tunney’s Pasture. The Ottawa Police was to enforce the order.
[15] At a case conference on April 9, 2021, the parties reached a consent agreement before MacKinnon J. which amongst other things provided for the following:
a. The appointment of the Office of the Children's Lawyer;
b. Disclosure from the CAS;
c. Child support payable by the father commencing April 1, 2021 in the amount of $151 per month based on an annual income of $18,838; and
d. The father's parenting time was changed to alternate weekends from Friday at 4:00 p.m. through Sunday at 6:00 p.m. commencing Friday, April 9, 2021. The father was also to have two phone calls each week on Tuesdays and Thursdays at 6:45 p.m. If the father provided a suitable device for the child to use for FaceTime or other form of video calls, these calls would replace the telephone call.
[16] The OCL accepted the file and appointed a clinical investigator. On October 29, 2021, the clinical investigator discontinued the OCL report but it was agreed by the parties that the content of the report could be considered by the court. She could not complete the report because she could not observe the mother interacting with the child at an observation visit and the mother's boyfriend refused to participate in the investigation and to sign any consents.
[17] On January 11, 2022, the father brought a motion before Shelston J. seeking joint decision-making authority and a week about parenting schedule. That motion was dismissed and it was ordered that the temporary order of MacKinnon J. dated April 9, 2021 remain in effect. However, there was a slight change to the father's parenting time as his alternate weekend parenting time was to commence on Friday after school and end when he returned the child to the mother's residence by 6:00 p.m. every second Sunday. The father was ordered to pay $1,500 in costs.
[18] On January 31, 2022, Williams J. granted a consent order following a 14B motion adjusting the father's child support based on his then estimated annual income of $16,344.64, commencing on November 1, 2021.
[19] In February 2022, the parties agreed to expand the father’s parenting time to three weekends per month and that arrangement continued until the trial and likely beyond.
[20] At the commencement of trial, the parties submitted a Final Order on consent dealing with child support, travel and mobility, summer and holiday time. These provisions are to be incorporated into the Final Order from the trial.
[21] The parties also filed Exhibit #36 which is a partial consent Final Order. It is the draft Final Order sought by the mother and incorporates the provisions of the Final Order filed on consent. The father has confirmed that he consents with the content of the mother’s draft Final Order with the exception of paras. 1-3, 10-13 and 24 which deal with decision making, the regular parenting schedule and costs. Those are the issues that remain to be decided in this trial.
EVIDENCE ON KEY ISSUES
[22] At the time of trial, the father was 33 years of age. He met his then-fiancée Ms. Tait in March 2018. They are the parents of a child born in 2019.
[23] The mother was also 33 years of age at the time of the trial. She met her current partner, Joshua Guest, in 2019. They have one child, M.G., born in 2021. The mother has two children from a previous relationship who were 11.5 and 8 years of age.
[24] Between November 28 and December 2, 2022 the court heard evidence from the applicant father, Ms. Tait, the respondent mother, and Mr. Guest. In addition to their viva voce evidence there were affidavits filed by Ms. Tait’s parents, Lindsay and Peter Bell.
[25] The evidence of the parties principally touched upon the following themes:
a. Circumstances of the relationship and the break-up;
b. The various agreements in respect of co-parenting;
c. The unilateral termination of the shared parenting regime;
d. Evidence about maintaining proper medical care for the child;
e. Instability at the mother’s home; and
f. The role of both parties’ partners.
The Relationship
[26] The father describes the start of the relationship as being positive. After two months of being a couple, the mother was pregnant and both were happy at the start. The mother had doubts about continuing with the pregnancy, but the father was strongly opposed to an abortion. The mother chose to continue her pregnancy and moved in with the father. They relocated to Ottawa. The father was working for Walmart in Ottawa and was taking more shifts to make more money. The father claims that the mother was exhibiting signs of jealousy and accusing him of cheating. Consequently, he was required to stop taking overtime.
[27] Following C.A.R.’s birth, the conflicts continued and they had many arguments surrounding smoking, pets and the apartment where they lived. The father claims that the mother did not like that he would call his own mother for advice. The father claims to have been doing the cleaning while the mother accused him of doing everything or nothing. As of the date of C.A.R.’s birth, the father describes the time they spent together as mostly conflict-filled and negative. The father was still working full time from 11:00 p.m. to 7:00 a.m. and then would need to sleep after work and this caused friction in the couple. The father claimed that the only time he could parent was when the mother went to the store, out to smoke or to call her friends.
[28] According to the mother, the period following C.A.R.’s birth was categorized as time with a typical newborn. She was solely responsible for taking care of C.A.R. because she did not work. Most of the parenting fell to her and she felt overwhelmed, stressed, unappreciated and angry that her relationship with the father was falling apart. She did the dishes, meals, laundry and then had her older children to care for every second weekend. She tried sharing her feelings with the father who told her that she was depressed and needed professional help.
[29] In April 2017, the mother left the relationship on the basis that it was necessary in order for her and the father to stop fighting and putting their animosity onto their daughter. She felt belittled every time she voiced a concern. She moved into her current home in Westboro in August 2017 and has resided there ever since.
[30] The father claims that at times during the relationship, the mother would threaten to leave with the child. She would blame him for their problems and never apologized for her own actions. On April 15, 2017, she decided to go see her family in Rockland and said she needed time over the weekend. When Monday came around, she did not return and the father called the CAS and police who suggested that the mother may simply need time before coming back. After a week the father requested a wellness check and the father learned that the mother was staying at her sister's place and was not coming back. The father claimed that she was not welcome in her sister's house and that she was then required to go to a women's shelter with C.A.R.
[31] At this time, the mother claimed that the father was mentally and physically abusing her she got a place in the women's shelter. She claimed to have been told not to contact her alleged abuser.
[32] In contrast to the mother’s evidence of domestic violence, the father pointed to a photograph taken by the mother in or about the time of separation with the father’s apartment building behind her suggesting that there were no issues of violence between the parties and that the mother was certainly not afraid of the father. The father testified that in June 2017, the mother was sending him explicit photographs of herself and that when dropping C.A.R. off at his apartment, she wanted to stay with them.
[33] The mother claimed that the photograph of her in front of the father’s apartment had nothing to do with the father but that she was there visiting other friends who lived in the building. There were no details of who the friends were.
[34] The mother testified that the separation should have happened sooner than it did, but she had nowhere else to go. She denied that she entered a women’s shelter on false pretenses and claimed that he affected her mental health and that she would simply try to avoid conflict. She had no choice but to go to a women's shelter because she had no independent friends in Ottawa (only mutual friends with the father). The mother claimed that domestic violence was applicable in her case but it was not physical; she claimed that the father hurt her emotionally and verbally and he caused her to doubt her own sanity. He would tell her that she needed to consult with doctors because she was the problem.
[35] The mother describes C.A.R. as a very kind child who loves to colour and sing. She is an intelligent child with some issues surrounding her effort. An after-care program has helped her become more sociable. She loves her sisters and stepsisters and is a big hugger. She is a practical joker.
Co-parenting
[36] In May 2017 the parties agreed to certain terms for their separation and a 2-2-3 parenting time split with pick up and drop off locations which varied at first but then became the Billings Bridge Shopping Centre followed by the Rideau Centre.
[37] When exchanges started in May 2017, the mother states that they went well and there were few issues when both parents did the exchanges. The parties exchanged clothing with the mother sending what the child needed to the father. At some point, the mother stated that the father decided that he did not need to be present for exchanges. She claimed that it was always someone different but only referred to Ms. Tait or Ms. Bell. During COVID-19, the exchanges were in the front lobby of her apartment, but the father did not agree to continue with this and wanted the exchanges at the Tunney’s Pasture bus terminal.
[38] As the level of conflict between the parties increased, it appears that the parties were unable to cooperate or even share clothing for C.A.R. They had to strip her down in the bus terminal and each party retained their winter clothing for the child. This has continued with exchanges now at school whereby the child has two sets of everything.
[39] As of May 2017, and until September 2020, the parties continued with different versions of a 50-50 parenting time split. Specifically, in March 2020 during the COVID-19 pandemic, the parties signed Minutes of Settlement and moved to a week-about parenting time schedule. It was specifically agreed that exchanges would be done by either Lindsay Bell or Peter Bell who would attend at the mother’s home.
[40] In April 2020, the mother developed pinworms. C.A.R. then stayed with the father and Ms. Tait for the next month.
[41] The parties signed a further Parental Agreement on June 1, 2020 which provided for a shared 50-50 parental schedule. During this time, the parties agreed that there would be no child support payable and each would be responsible for their own expenses. They would split any extra expenses.
[42] During the summer of 2020, the issue came up about C.A.R. telling lies. The father testified that he felt obligated to communicate to the mother what the child was saying in terms of physical discipline. However, the message was delivered by Ms. Tait and this clearly frustrated the mother. She felt that this was the type of issue that the parents should discuss directly.
[43] The communications between the parties worsened during the summer of 2020 (Exhibit #10). Mr. Guest became involved in sending aggressive messages to the father and provided his negative views about C.A.R. and her behaviour. The mother attempted to excuse Mr. Guest’s aggressive behaviour. By the end of August 2020, the father attempted to establish communication boundaries to avoid the abusive messages being sent by Mr. Guest to both the father and Ms. Tait.
Termination of Father’s Parenting Time
[44] On September 25, 2020, the mother withheld C.A.R. and refused to return her to a shared parenting regime. The mother raised issues surrounding COVID-19 and the fact that the father’s other child was attending daycare and this put C.A.R. at risk. During this same time, the mother’s two oldest children were in school full-time, and the mother was parenting them every second weekend. The father offered to remove his other child from the daycare but this did not resolve the issue and the mother denied the father’s request to see C.A.R. on her birthday. At trial, the mother stated that she regretted her decision to withhold C.A.R. from her parenting time with the father.
[45] As the father was unable to negotiate a renewal of his parenting time with C.A.R., he was required to commence this application on November 17, 2020. After the commencement of the litigation, the mother would then agree to a resumption of the father’s parenting time, but this was now limited to every second weekend from Friday at 6:00 p.m. to Sunday at 4:00 p.m. Exchanges were now taking place near the mother’s home at Tunney’s Pasture.
[46] The mother referred to some of the problematic behaviour from the father by referencing the dispute about where exchanges were taking place in December 2020 when the mother was 34 weeks pregnant. The father wanted exchanges to continue at Tunney’s Pasture. The mother had to get a letter from her family doctor for exchanges to move from the bus terminal to the mother’s house given the mother’s difficulties walking and the need to limit the new baby’s exposure to public places.
[47] In January 2021, the mother neglected to communicate with the father about how the parenting schedule may be affected by the birth of her child. The evidence was that she did reach out to the father of her two eldest children. Accordingly, when the father had not heard back from the mother during an extended period, he contacted the Ottawa Police and requested a wellness check. It was the mother’s evidence that the father should have understood that there would be a period of uncertainty at the time when her child with Mr. Guest was born. She took no responsibility for not having made arrangements in advance of the birth.
[48] In April 2021, MacKinnon J. made an order requesting the involvement of the OCL. As previously stated, a clinician was appointed in September 2021, but the OCL report was discontinued due to barriers encountered. Mr. Guest would not participate and refused to sign consents. The clinician indicated that e-mails were sent the mother and to Mr. Guest to proceed with the report and that they could decide who would be present. Neither the mother nor Mr. Guest responded and as such, the report was discontinued. It was also relevant that when the OCL advised the parties of the reason for the discontinuance the mother took no steps to rectify the situation, although she testified that she was not opposed to proceeding alone with C.A.R.
[49] Oddly, in his evidence, Mr. Guest stated that he was not aware that the OCL was seeking to have him sign consents. He also attributed his failure to respond to the fact that he has had broken phones. Mr. Guest’s evidence was that he only found out about the OCL asking for him to sign consents as part of his trial preparation. Later in the evidence, Mr. Guest testified that the mother was upset with him at the time of his refusal to participate with the OCL investigation and he explained that he would not give his CAS records to the OCL because it involved his biological daughter. In the e-mail to Mr. Guest dated July 29, 2021 (Exhibit #38), the OCL is clearly requesting that he sign a consent for CAS and police record checks. Mr. Guest then responded to this e-mail. Clearly, Mr. Guest was aware that consents were being requested.
[50] From December 2020 to February 2022, the father’s parenting time remained on alternate weekends. In February 2022, the parties agreed that the father would have a third weekend per month of parenting time and this arrangement has continued through the trial and beyond.
Instability at the Mother’s Home
[51] The father began seeing Christine Tait, a co-worker at Walmart in March 2018. The father testified that he did not disclose the relationship right away as a result of a fear of the mother’s reaction.
[52] The mother met Joshua Guest in March 2019. Both her and Mr. Guest have testified to their challenging relationship. The mother expressed a desire that someday Mr. Guest will play a parental role for C.A.R. but at this time both her and Mr. Guest are responsible to parent only their own biological children.
[53] The evidence of both parties suggests that parenting time from December 2020 until the commencement of trial in November 2022 is marked with inconsistency. The father testified about how the mother was at times happy to deal with Ms. Tait and her mother, Lindsay Bell, on issues surrounding C.A.R. and particularly in respect of pick-ups and drop-offs. At other times, the mother expressed frustrations about Ms. Tait’s role and how the father was not really involved. The mother found it challenging at times that she had to communicate through Ms. Tait although at other times appeared happy to do so.
[54] A recurring theme in the father’s evidence was how the mother complained about various behavioural issues that she was having with C.A.R. that were not present in his household with Ms. Tait. The father testified that C.A.R. was often wild and uncontrollable when she returned from the mother’s house. He noted that C.A.R. was self-harming by throwing herself to the ground and hitting herself. There were also challenges to get C.A.R. to eat full meals.
[55] The father spoke of how Ms. Tait and Ms. Bell would often drop C.A.R. off while he was working. When he was present, the mother would often make negative comments about his parenting and blame him for C.A.R.’s behavioural issues.
[56] An example of the lack of cooperation between the parties arose in August 2021 after MacKinnon J. had ordered that the father could provide a suitable tablet to communicate via FaceTime. The mother took the position that the use of a tablet was a reward for C.A.R. and that she had lost those privileges. She went so far as to state that C.A.R. had to earn her video calls with the father. Also, the mother’s text message to the father within Exhibit #13 demonstrates that the father’s video calls were inconvenient to the mother who always had to rush home to accommodate video calls as it was unfair to her and whomever she was with at the time. It was unclear if she was referring to Mr. Guest here. Accordingly, the mother decided to refuse the father’s tablet despite the order of MacKinnon J.
[57] There was a major incident on November 9, 2022 when Mr. Guest advised the father that the mother had taken C.A.R. to a crack house and that he would be taking the children away from her (Exhibit #14). A few hours later, Mr. Guest attempted to recant his message by saying that he was mistaken and overreacted. That text message was followed by a series of text exchanges between the father and Mr. Guest which were labelled “Josh’s Rant” (Exhibit #2).
[58] Josh’s Rant is made up of a series of text message exchanges between the father and Mr. Guest following the incident about the crack house. Within that series of text message exchanges, Mr. Guest states the following:
a. He reacted like an idiot when he believed that she had come out of a different door but that she actually went to a neighbour’s house;
b. He threatened the father to “[s]top coming at me on paper in court about my parenting”;
c. He stated that the father had committed a federal crime by extorting the mother by threatening to use nude photos of the mother;
d. He appears to have stated that eventually the mother will no longer be required to speak to the father;
e. He belittled the father for working for minimum wage;
f. He accused the father and Ms. Tait of being mentally ill;
g. He ridiculed the father’s attempts to settle the litigation;
h. He accused the father of not being a real man because he was seeking full custody;
i. He accused the father of not being able to hold an intellectual conversation;
j. He threatened to have the father arrested for photos that are claimed to be on the father’s phone;
k. He accused the father of a criminal infraction by requesting safety checks from the police;
l. He stated that he would call the father every name in the book every time he sees the father because there is nothing that can be done about it;
m. He stated that he was one million times the dad that the father could ever be;
n. He accused the father that if a robber would break into his house that he would be hiding in the bathroom and would not protect his family; and
o. He called the father numerous swear words in overall language that was completely inappropriate.
[59] These text messages extended over a three to four-hour period. The context is that the messages were sent two weeks before the commencement of trial during a time that the parties were ordered to only communicate by Our Family Wizard.
[60] At trial, the mother testified that she did not know that this was happening. However, Mr. Guest testified that during this time he told the mother that he was done tiptoeing around which suggested that she was aware.
[61] Overall, the evidence of both the mother and Mr. Guest about these messages and the incident involving the crack house were inconsistent. Mr. Guest stated that he saw the mother come out of a different residence. The mother testified that she did not have her phone and went to a neighbour’s house to call a friend for a pizza. Mr. Guest testified that he did not think that she ordered a pizza. The mother never attempted to reach out to the father to explain what happened.
[62] As a result of these messages, the father contacted the CAS and an investigation was opened. Ultimately, the CAS closed its file and identified certain strengths in the mother and that she had put a safety plan in place with Mr. Guest for conflict that includes one of them leaving the home if issues cannot be resolved quickly and in a way that ensures the children are not exposed to conflict. It was noted that the mother has left the home during instances of domestic violence but this also suggests that problems related to domestic violence are ongoing in the mother’s house.
[63] The evidence at trial revealed a number of occasions where either the Ottawa Police Service or the CAS were involved as a result of instances involving the mother being in conflict. Some of these incidents resulted in safety checks being requested by the father or complaints being made to the CAS. Those incidents include the following:
a. When the mother left with the child in April 2017 at the time of separation and did not advise the father of her whereabouts;
b. April 18, 2020 when the OPS attended at the mother’s home as a result of a commotion coming from the mother’s unit and a male person who was angry and talking loudly;
c. In January 2021 at the time of the birth of M.G. when the mother did not notify the father of how the parenting schedule may be affected by the birth of her new child;
d. On October 24, 2021, the mother’s friend is alleged to have made a call on behalf of the mother as a result of a physical domestic incident which was then denied by the mother and suggested that the children were with the father that day;
e. On December 15, 2021, the mother refused to allow the CAS to interview C.A.R. as a result of the October 2021 incident;
f. On August 31, 2022, the OPS was called in after the mother got into a verbal argument that morning. Both the mother and Mr. Guest suggested that this was as a result of a pocket call made in error; and
g. November 9, 2022 was the incident when Mr. Guest reported to the father that the mother had taken C.A.R. to a crack house and then proceeded to embark on his rant (Exhibit #2).
[64] In her evidence, the mother provided her explanation for what happened in these circumstances. In respect of the wellness checks, the mother attributed these to problems with technology and her phone when she cannot properly communicate with people. The mother agreed that most of the police involvement at the mother’s house involves incidents when both the mother and Mr. Guest are involved together. She was not persuasive when providing evidence about these various incidents.
Care for C.A.R.
[65] In terms of the care of professionals, the mother testified that she has always been the one to look after C.A.R.’s health-related issues. She states that she has attended most of the medical appointments.
[66] In 2019, she allowed Ms. Tait to attend with the father at a pediatrics referral with Dr. Myron. It was at this time that the doctor noted that the mother had maladaptive parenting styles with a fair bit of yelling. Dr. Myron also noted that C.A.R. behaved differently with the father and the father’s girlfriend.
[67] It was during this visit in 2019 that Dr. Myron asked the family to self-refer to Crossroads to address urgent in-home help for parent management training. It was described as a family with much chaos and poor parenting skills. In the medical notes which form part of Exhibit #5, Dr. Myron recommended that the child should go to the same daycare whether she was staying with the father or the mother. However, the mother was resistant to this suggestion as a result of lack of proximity to their residences.
[68] As for Dr. Myron’s recommendation that the family self-refer to the Crossroads program, neither party followed that recommended course. The father stated that he thought this was only directed to the mother because she was having problems with C.A.R. Although there may be some ambiguity in Dr. Myron’s words asking “the family to self-refer to Crossroads” it seems clear that the issue was directed to both the mother and the father as Dr. Myron took time with “the family” to contact Crossroads while at the appointment and this was certainly not directed only at one of the parents.
[69] However, the father testified that both he and Ms. Tait followed the Circle of Security eight-week parenting course. The mother never took a parenting course.
[70] In early 2021, the father noticed warts on C.A.R.’s feet. He identified this to the mother who was unaware. The father embarked on a treatment process to address the wart issue. Exhibit #21 contains a lengthy text message dated April 27, 2022 by the father to Dr. Langill describing the process that the father was taking in respect of the warts. The father was very involved in this treatment and provided guidance to the mother on January 4, 2022 about how to treat the warts.
[71] Exhibit #21 also includes text messages dated January 26 which address vaccination and other issues. There is no year associated with the text messages but the timing seems to suggest that it would be in 2021. Within this text message, the mother is seeking photo documentation of the father’s COVID-19 test results at a time when he tested positive. She then goes on to confirm that she accepts to have C.A.R. vaccinated as a result of the father’s strong desire that this be done. The mother goes on to state that she does not think that it was in the child’s best interest at that particular time to have her vaccinated as it was not mandatory for her age group for school or any other facility but that she will have it done. At one point, she claims that the reason it had not been done was because she had not planned for the travel costs. The mother also indicates that she had been vaccinated. At trial, the mother confirmed that she never did have C.A.R. vaccinated against COVID-19.
[72] The mother also goes on to state that the father was always able to seek out medical attention for the child during his own parenting time. The mother states that the father is not to attend any medical appointment for C.A.R. which also involves her other children. She states that she will book them separately going forward or ensure to allow the father to have his consultation time with the physician.
[73] Although not a direct medical issue, the January 26, 2021 text message also includes confirmation of the mother’s request that C.A.R.’s hair not be cut without the mother’s consent. Not even a trim – even if associated with lice. In the father’s message, he confirms that Ms. Tait had cut C.A.R.’s hair several times in the past. The father stated that he gave Ms. Tait the permission to do so. The mother then took the position that she no longer wanted Ms. Tait to cut C.A.R.’s hair and wanted it professionally done even though Ms. Tait was a hair stylist.
[74] In March 2020, the mother brought C.A.R. to a Speech-Language appointment at CHEO where she was assessed by a speech pathologist (Exhibit #33). The mother’s evidence was that although the First Words program was a suggested resource, she did not move forward with that program but focused on the tools provided by the speech pathologist.
[75] In the spring of 2020, the mother was diagnosed with pinworms and C.A.R. spent the next month living with the father.
Role of Partners – Ms. Tait
[76] The father testified about the daily routine within his home with Ms. Tait. That evidence demonstrated structure in the father’s home with Ms. Tait and they appeared to properly parent Ms. Tait’s daughter, the father’s other child and C.A.R. Ms. Tait appeared to provide much structure to the father’s life.
[77] At trial, the mother stated that she had no issue with the child being at the father’s home. However, as part of the OCL interview she was reported as saying that she had concerns that C.A.R. was being mentally, physically and emotionally abused at the father’s home. Also, she was being left in the care of Ms. Tait who suffered from mental health difficulties. The mother stated that the father and Ms. Tait had a toxic relationship and that this posed a risk to C.A.R.
[78] By the time of the OCL investigation, the mother was clearly of the view that Ms. Tait had overstepped her role as a stepparent. She allowed C.A.R. to start calling her “mommy” and this was clearly upsetting to the mother. In addition, the mother claimed that C.A.R. seemed to understand that this was upsetting to the mother.
[79] However, at trial Ms. Tait appeared to be the glue that kept things together in the father’s new family. She was the only one with her driver’s licence and together with her mother Lindsay Bell, they facilitated the exchanges on behalf of the father.
[80] As for her evidence at trial, she certainly appeared to be a strong person with a good head on her shoulders who provided much parenting support to the father. She also was able to play a parental role for C.A.R. and was a stepparent who C.A.R. appeared to like enough to call her “mommy”.
[81] When considering the role she played in text message exchanges, Ms. Tait often came off as the most rational of the participants. This was obvious in her various exchanges with Mr. Guest within Exhibit #10 when Ms. Tait maintains proper discussion with Mr. Guest who is out of control and demonstrating an inability to properly parent C.A.R. or play any parental role in her presence.
[82] Ms. Tait also testified to her role in assisting with the times when C.A.R. appeared to have lice and warts on her feet. She was also able to assist with haircuts for C.A.R. although later, the mother would criticize her for cutting C.A.R.’s hair. Ms. Tait testified that on at least two occasions, the mother consented that Ms. Tait cut C.A.R.’s hair.
[83] Ms. Tait testified that she clearly saw herself as a parental or motherly figure for C.A.R. She stated that she loved C.A.R. and has known her since she was 16 months old. She allowed C.A.R. to call her “mommy” and stated that this was okay because it was different than “mom” which C.A.R. called the mother. Ms. Tait felt that this was appropriate because C.A.R. was old enough to know who her true mother was and that Ms. Tait was a stepmother. Regardless, she expressed some regret about how the information came out to the mother about C.A.R. calling her “Mommy”.
[84] Ms. Tait testified that she has played a role in C.A.R.’s life in helping with hygiene, feeding, clothing and with some discipline in the form of timeouts. She stated that she plays these roles because she and the father are a team.
Role of Partners – Mr. Guest
[85] Turning to Joshua Grant, his role in the matters before the court are introduced at first through the text messages at Exhibit #2 and Exhibit #10. These communications portray Mr. Guest as a very aggressive individual who looks to intimidate the people he is dealing with. He appears to have a very short fuse and does not seem hesitant to suggest a willingness to resort to physical violence. Simply put, Mr. Guest comes off as a bully.
[86] The court was interested to see if his demeanour from the text message exchanges was possibly misleading and that he may prove himself as being different in his viva voce testimony. Unfortunately, he did not. Mr. Guest appears to be the same individual who is ranting, seemingly out-of-control to the father only two weeks before the trial. It was clear that he had no appreciation or care about how this could impact the mother’s claims at trial.
[87] Mr. Guest’s testimony at the trial demonstrated that he is a person with a very short fuse who is not reluctant to intimidate or even threaten those with whom he is in conflict. He readily admits that his relationship with the mother is “a bit all over the place” and that they are often in conflict and he needs to walk away from a situation.
[88] Mr. Guest wears his short fuse and temper as a badge of honour. He does not apologize for it. He spoke of his refusal to engage in the OCL clinical investigation and clearly did not have regard to the impact that it may have on the mother’s case. His evidence about why he did not receive communications from the clinical investigator lacked credibility. He was inconsistent in his evidence about knowing that the OCL wanted him to sign consents. When he wanted to distance himself from a communication that he ignored and did not want to acknowledge, he blamed it on broken phones, that he does look at his e-mails or that he does not open attachments that form part of e-mails. His entire evidence about his involvement with the OCL lacked credibility.
[89] The things that Mr. Guest wrote about C.A.R. and others in Exhibits #2 and #10 leave this court with the impression that Mr. Guest should not be allowed to have any role in C.A.R.’s life and that he should not be allowed to have contact with the father. His role in this litigation has been nothing short of toxic and he has no appreciation of it.
[90] The mother has indicated in her evidence that she would like for Mr. Guest to have a parental role in C.A.R.’s life. She referred to him as C.A.R.’s stepdad to the clinical investigator. She then retracted this description during the trial. Mr. Guest’s ongoing presence in C.A.R.’s life casts a very large shadow on the mother’s decision-making ability. Clearly, a major issue is that they are both the parents of M.G. Otherwise, this court has not seen a shred of evidence that would suggest that Mr. Guest could ever play a positive or appropriate role in C.A.R.’s life.
[91] The manner in which he speaks of C.A.R. in his communications demonstrates that he has little affinity for the child and that he is unwilling to help the child through her behavioural challenges. I find that Mr. Guest’s conduct toward the child is unhealthy as it may have a serious and negative impact on this child.
APPLICABLE LAW
[92] There is no dispute that issues of parenting for unmarried couples must be decided while focusing on the best interest of the children. The relevant legislation is s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
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 the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
[93] In the present case, the issues before the court are decision making and parenting time. As such, the only relevant considerations are the best interests of the child: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
[94] The jurisprudence provides guidelines for the court in considering a joint decision-making regime as follows:
a. The parties do not need to consent to an order for joint decision making but before ordering joint decision making the court must have some evidence that the parties are able to communicate effectively with each other: Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.).
b. Simply relying on allegations of conflict will be insufficient to preclude a joint decision-making order. The analysis must address the nature, extent and frequency of conflict, and whether such conflict is likely to impact the well-being of the child. If the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ahead of their own, an order for joint decision making may be appropriate: Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.).
c. One parent cannot create problems with the other parent and then claim sole decision making on the basis of a lack of cooperation: Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.).
d. Where it is necessary to preserve the balance of power between the parties, particularly in cases were both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint decision making may be appropriate: Khairzad v. McFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436; Fraser v. Fraser, 2016 ONSC 4720.
[95] The parties have been inconsistent in their communication. It seems that when only the two parents are involved, things go better. When the partners are involved, there is more conflict. The evidence does not favour joint decision making. The evidence has revealed that both parents are at some risk of being excluded from decision-making. The risk is stronger that the father will be shut out given the presence of Mr. Guest with the mother.
[96] One option is to order joint decision making with parallel parenting. In Cox v. Down Stephen (2003), 2003 CanLII 18571 (ON CA), 47 R.F.L. (5th) 1 (Ont. C.A.), the Court of Appeal upheld a parallel parenting order, with terms giving decision-making responsibility respecting education to the mother, and decision making respecting the child’s physical health to the father, despite the long-standing history of conflict between the parties.
[97] In Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), the Court of Appeal upheld the trial judge’s decision to award joint decision making with a parallel parenting order in a high conflict situation and specifically stated the following at para. 26:
- Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 2002 CanLII 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.
[98] In V.K. v. T.S., 2011 ONSC 4305, Chappel J. discussed the concept of parallel parenting in the following paragraph:
79 Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child's best interests. There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child's life, over and above time sharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents' relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict. [Footnote omitted.]
[99] The courts have upheld parallel parenting orders where joint decision making was impracticable and unworkable: Cox; Andrade v. Kennelly (2006), 2006 CanLII 20845 (ON SC), 33 R.F.L. (6th) 125 (Ont. S.C.), aff’d 2007 ONCA 898, 46 R.F.L. (6th) 235; Ladisa; Trépanier v. Cadieux-Trépanier (2008), 2008 CanLII 3971 (ON SC), 49 R.F.L. (6th) 399 (Ont. S.C.); and Ursic. However, each case is decided on the particular facts and specific needs of the child.
[100] The issue of family violence has also been raised and identified as relevant to the parenting order that is before the court. When considering family violence as a factor under the best interests test, the CLRA directs the court to consider the following:
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
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 the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
[101] Finally, in terms of legislation, the court must keep in mind what was formerly known as the maximum contact provision. This provision has been modified as part of the recent amendments to the CLRA and now reads as follows:
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
[102] It has been established that “[t]he maximum contact principle does not necessarily require equal parenting time”: see Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13. Thus, there is no onus on a party to rebut a presumption of equal time.
ANALYSIS
[103] The circumstances in which the court must make this analysis have significantly changed since the conclusion of the trial. Throughout the trial of this matter, the father's position was put forward in the context of his relationship with Ms. Tait. Much of the approach taken by the father to parenting appeared to be influenced by Ms. Tait. To a minimum the father's parenting approach was supported by Ms. Tait. It is for this reason that the court has taken the time to review the evidence and distinguish the evidence in relation to the father as separate from the joint parenting position of the father and Ms. Tait.
[104] The analysis is easier to do without Ms. Tait for decision making than it is for parenting time. When I consider the decision to be made in terms of parenting time, I am simply unable to make a final decision at this point given the uncertainty of the father's circumstances at the time this case was argued in April 2023. This is because the court is of the view that the father’s parenting should expand but only if it can happen in a way that will not negatively impact C.A.R.’s daily schedule. As previously stated, the court hopes that the father is in a better position to offer a more long-term vision of his parenting time than he was in April 2023. It is hoped that a brief process may be undertaken in February 2024 whereby both parties will have the opportunity to update the court on the appropriate parenting schedule given the realities of their residential and work schedules.
[105] It should also be noted that at the time of trial the mother was in the process of completing a law clerk program which may also influence her availability in the context of parenting time and the realities of the parties’ lives must be updated for the court to attempt to put in place a long-term parenting schedule.
[106] Accordingly, the analysis of the best interests of the children is to be made principally in the context of decision-making ability and to a lesser extent the appropriate parenting plan for C.A.R. The long-term parenting schedule will be further determined once the court has received an update of the parties’ circumstances.
Best Interests of the Child
[107] In arriving at my decision regarding the decision-making aspect for the child, I have considered the testimony of the parties, the exhibits filed and the jurisprudence. I have also considered the parties’ interaction with respect to issues of the child’s activities, health, interaction between the parties, historical decision making and the ability of the parties to communicate on important matters regarding their child.
[108] A major issue that comes out from the evidence at trial is that neither party was convincing in their ability to maintain a role for the other parent in the decision-making process if either is granted sole decision making. This is particularly the case with the mother and the potential that she will be involving Mr. Guest in a caregiving role. In such a circumstance, the evidence is clear by his own words that Mr. Guest will not work cooperatively with the father and the result will be that the father’s role will be marginalized and limited to that of an access parent who has no rights. I arrive at this conclusion in considering the very well-worded para. 10 of the mother’s draft order which states:
The biological parents shall consult each other on all major decisions relating to the child’s health, education and general well-being. The parent will send over OFW a message to the other parent with their position on a decision to be made and the other shall respond within 72 hours failing which the non-responding parent shall be deemed to agree. If, after meaningful consultation, the parties cannot reach a mutually agreeable decision, they will reach out to third party professionals such as doctors/teachers to assist them in the decision-making process. If, after meaningful consultation and considering the third party professional’s opinion, the parents cannot agree on a major decision relating to the health and general well-being of the child, the mother will continue to have final say.
[109] This provision for decision making is ideally drafted but I have significant concern that the mother would not respect it. This is with or without Mr. Guest playing a role in C.A.R.’s life. I also have concerns about the father who has at times acted in a unilateral way without due consideration to the mother’s wishes.
[110] In this regard the history of cooperation has been nothing short of inconsistent. Earlier on in the parenting process after separation, the parties were actually successful in negotiating the appropriate parenting schedule and to adjust it over time from 2017 until 2019. The most significant conflict began in 2019 and it is not a surprise that it coincides with the start of the relationship between the mother and Mr. Guest. That conflict then appears to have increased in 2020. When we look specifically at the behaviour of both the mother and father, it appears to the court that they have been greatly influenced by their respective partners and their ability to cooperate has been impacted by their new families.
[111] There is also evidence that the parties have been inconsistent in their approaches with respect to concessions that they make to the other party and areas where they choose to highlight discord. This is most evident in the mother's view on the role of Ms. Tait and how at times she has relied on Ms. Tait for support when it suits the mother and how at other times she has criticized the father for his lack of involvement in favour of Ms. Tait playing a bigger role. I believe that if the parties had kept matters between them and being able to solely deal with each other that much of the conflict that is present since 2019 would never have existed.
[112] To a certain extent, I cannot fault the parties for having been required to take into consideration various elements of their new families. At the time of trial, the mother had four children with three different fathers and the father had three children with two different mothers. Also, the father had no driver's licence and it is unclear if the mother had a vehicle for transportation. Adding to this, the parties agreed that they would not be utilizing public transportation and accordingly the challenges of having frequent parenting time exchanges can only lead to instability and likely conflict. It would have been so much simpler if the parties had been able to reside in proximity to each other in order to avoid the challenges with transportation and their children attending different schools.
[113] Notwithstanding all of these challenges, I am of the view that the parties have still been able to agree or work their way through the issues as they have arisen. Since the birth of the child, I find that the parties have been able to agree on many issues regarding their child such as:
a. The residential schedule prior to September 2020;
b. Having worked together through many medical issues such as obesity, warts, pinworms and challenges at school with behavioural issues; and
c. In preparation for the trial the parties agreed on financial issues and many issues surrounding vacation, holidays and schooling.
[114] The court is particularly alive to the stresses surrounding litigation and how the parties have made poor choices understanding that this matter would eventually be going to court and that they needed to prepare themselves for court. It is common for such pressures to dissipate post-trial at a time when the parties are no longer positioning themselves for litigation.
[115] As indicated to the parties at the conclusion of trial neither of them came out smelling like roses from the trial process. They have each made poor decisions such as the father's refusal to allow the mother to see C.A.R. on Mother's Day and the mother's refusal for the father to see C.A.R. on her birthday. These are choices which reflect poorly on the parties’ decision-making ability.
[116] There is then the obvious and unfortunate role played by Mr. Guest in these proceedings and how he has obviously impacted the mother's decision-making abilities.. As previously stated, the evidence before the court can only lead to the conclusion that Mr. Guest should have no parenting role with C.A.R. and this will obviously make things more difficult for the mother.
[117] I continue the best interest analysis by giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being. In this regard I am of the view that the father has been able to demonstrate the ability to provide for C.A.R.’s physical, emotional and psychological safety to an extent that is equal if not greater than the support provided by the mother. There is no doubt that the mother has had the child in her primary care since September 2020 although that was as a result of a unilateral change made by her. It was subsequently supported by the court. The father has been proactive in taking a parenting course in order to improve himself and when looking at the communications between the parties has demonstrated more ability to be child-focused in his exchanges. In this regard he obviously benefited from his relationship with Ms. Tait and her parenting skills.
[118] Conversely, the mother has received little or no support from Mr. Guest in terms of her ability to provide for the child's physical, emotional and psychological safety, security and well-being. Further, the evidence in relation to Mr. Guest can only point the court to the conclusion that he has a negative impact on the mother's ability to provide for the child as she must always be concerned about how Mr. Guest may react to different situations.
Needs of the Child
[119] The overall needs of the child are being met by the mother. In addition, the mother has demonstrated an ability at different times to rely on the father and Ms. Tait during challenging times and has accepted their support despite the level of conflict which has existed. Examples are seen as to how the mother relied on the father and his new family in relation to lice, pinworms and transportation.
[120] However, there was sufficient evidence at this trial to support the father's position that the actions of the child while under the care of the mother were not always the same as when she was in the care of the father and Ms. Tait. Would this change now that the father is alone to parent C.A.R.? I do not think so and I believe that the father has demonstrated an equal ability as the mother to meet the needs of the child.
Strength of the Child’s Relationships
[121] As of September 2020, I would have been of the view that both parents had succeeded in establishing very strong relationships with C.A.R. Once the mother unilaterally changed the parenting schedule, the father became more limited in his ability to be present on a day-to-day basis and it was clear that he relied on Ms. Tait to a great extent. There is, however, evidence to support that the father has a good bond with C.A.R.
[122] As for the mother, there were numerous examples of conflict between herself and C.A.R. which puts in question the strength of her relationship with the child.
[123] The court has certain questions surrounding how strong the bond is for either party as so much focus was placed by the parties on the conflict between each other and less time was spent providing evidence on each party's bond with the child.
[124] In the end, both parents appear to have an equal bond with the child.
Relationship with the Other Spouse
[125] The court has obvious concerns here. How will the parties act once the litigation process is completed? Will Mr. Guest continue to play a negative role with the father through his intimidation? Will he continue to intervene as the parties attempt to co-parent C.A.R.?
[126] Questions also lie as to how the father will be without the support of Ms. Tait and with the pressures of meeting the needs of his children who reside in different areas of the city. The father's need to rely on Uber in order to attend exchanges may be challenging in the long term. However, this is a factor that is more relevant to the parenting schedule than to the father's decision-making abilities.
[127] The court is encouraged by the mother's proposed wording for decision making in para. 10 of her draft order referenced above. The process set out will hopefully require the parties to have meaningful consultation on all issues, to resort to the professionals who surround them, and then to allow for a decision to be made. The obvious result is that neither parent should have the ability to make all the decisions.
[128] In this regard the evidence leads me to conclude that neither party should have sole decision-making ability for the child as there is a risk that the other will be completely excluded from the process. It will be challenging for the excluded parent to adjudicate instances of non-compliance with the terms of the final order. An excluded party will not be able to run to the court every time the other excludes them from the decision-making process. The only way to maintain a certain balance is for both parties to have decision-making authority in the context of parallel parenting.
[129] Accordingly, the court is of the view that it is only through a parallel parenting process that both parents will be motivated to follow the decision-making provisions of the final order and ensure to involve the other parent or risk being excluded themselves in other areas. I am of the view that a parallel parenting process will assist the parties in putting aside their animosity and encourage them to keep the other party involved.
Child’s Views
[130] It is clear from the evidence of both the mother and Mr. Guest that they sabotaged the OCL process and prevented an objective analysis being made of the parenting arrangement which was in C.A.R.'s best interest. I specifically reject the evidence of both the mother and Mr. Guest surrounding how the OCL process was discontinued. As only the mother is a party to this proceeding, the blame for the failure of following through with the OCL process lies solely at the feet of the mother.
[131] While the mother has obviously spent more time with C.A.R. since September 2020, the evidence leads me to conclude that the father has established a very strong bond with the child based upon the evidence of how she acts in his presence. With the support of Ms. Tait, he appeared to have greater parenting skills. The evidence is that there is more conflict between the mother and C.A.R. but that the mother has obviously been the primary caregiver leading up to the trial.
[132] On this issue I conclude that C.A.R. enjoys spending time with each parent and that she will benefit from having both parents actively involved in her life.
Family Violence
[133] The issue of family violence has found its way to the child’s life. However, I am not persuaded that the issue of family violence exists between the mother and the father. While there is some evidence of what transpired at the time leading up to their separation, this is now over six years ago and any issues of family violence do not appear to exist between the parties. When I consider the factors set out in s. 24(4) of the CLRA, I conclude that these factors are not present between the mother and father.
[134] Where the family violence is of concern to the court is within the mother's household and it will be incumbent upon the mother to shelter C.A.R. from conflict. The circumstances of Mr. Guest’s role in the mother's household need to be monitored going forward and may at some point be the subject of a motion to change. Had the father been in a position to offer more stability at the conclusion of this trial, the ultimate result may have been different. However, there is uncertainty for both the mother and the father and it will be important to monitor if the parents are able to protect C.A.R. from the significant conflict which existed leading up to trial.
Conclusion on Best Interests of the Child
[135] Although other factors under s. 24(3) of the CLRA are also applicable to the matters before the court, the above issues are the most applicable.
[136] I come to the conclusion that the father has demonstrated a greater ability to address C.A.R.'s medical and health issues and that he should have final decision-making ability in that area. Particularly, I note the evidence of the mother who had indicated her willingness to have C.A.R. vaccinated and that at some point she would have changed her mind despite having clearly indicated otherwise in her communications with the father. Furthermore, the mother has often turned towards the father and his then partner for assistance in regards to the lice, pinworms and warts. I am of the view that the father has demonstrated a greater ability to care for C.A.R.’s medical needs even if this was done with the support of Ms. Tait.
[137] Conversely, in terms of education, the mother has played the primary role given her proximity to C.A.R.’s school and her ability to be there on a more regular basis. The court was concerned with the father's desire to change C.A.R.’s school if he had sole decision making in the area of education and that a decision about a change of schooling needs to be made in the context of more than just proximity to a residence. Therefore, the mother will have final decision-making ability in this area.
[138] In terms of extracurricular activities, the court heard very little about how these decisions are made and what activities C.A.R. is involved in. While there was some evidence about how C.A.R. enjoys spending time with her extended families, there was little to no evidence at trial about what activities she actually engages in and what decision making needs to be made in regards to those activities. This is one of the problems with the fact that the parties focused almost solely on the conflict between them and very little on the day-to-day needs and activities of their child.
[139] Regardless, in the context of shared parenting, I am of the view that the mother should have final decision-making ability in terms of extracurricular activities and the financial abilities of the parties to afford such activities. Finally, the father should have final decision-making ability in regards to religious matters, when applicable.
[140] As for parenting time and as previously indicated, I am unable at this point to make a long-term decision on the proper parenting schedule. I require an update of the circumstances of the parties, their respective employment, ability to facilitate exchanges and an update on C.A.R.’s activities.
[141] Accordingly, the existing schedule whereby the father would have parenting time for three weekends per month shall continue. Unless the parties are able to agree on the proper parenting time schedule, the court will adjudicate that issue after each party has had an opportunity to provide a very focused update on their respective circumstances. Trial coordination will be asked to set up a Case Management Conference with the parties in order to determine how this process will play out.
CONCLUSION
[142] It is for these reasons that I conclude that there will be a parallel parenting regime. The parties will reword the draft final order to incorporate decision making consistent with the wording of para. 10 of the mother’s draft order for each of the areas of parallel parenting (medical, education, activities and religion). The existing parenting schedule will continue, and the trial will resume to allow for updated evidence to be focused on the appropriate parenting schedule, unless the parties can agree otherwise.
DISPOSITION
[143] At this point, I am unable to complete my final disposition. The parties will schedule a Case Management Conference with me to discuss the implementation of these conclusions and final steps in the trial.
Justice Marc R. Labrosse
Released: January 26, 2024