Court File and Parties

COURT FILE NO.: FC-23-1762 DATE: 2024/10/02

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

KAITLIN CLARE PIASKOSKI Applicant – and – JAMES ROSS PIASKOSKI Respondent

Counsel: Katherine Cooligan, for the applicant Elisabeth Amy Sheppard, for the respondent

HEARD: March 28, 2024 (Originally heard) September 2024 (Re-heard)

Reasons for Decision

AUDET J.

[1] The main issue in this motion is parenting. At the outset of the hearing, the parties were able to resolve a number of issues, including ongoing child support and s. 7 expenses, the need for a s. 30 parenting assessment, exclusive possession of the matrimonial home, and some parenting provisions having to do with communication, changes of residence, etc. The applicant mother (“the mother”) also agrees that supervision of the respondent father’s (“the father”) parenting time is no longer required. A copy of the approved draft order is attached to my decision as Schedule “A”, and I ask the parties to incorporate those terms in the parenting and child support order that I make today, so that there is only one interim order in place instead of two.

[2] The issues to be decided by the court, in light of the above, are the following:

• Interim decision-making responsibility;
• Interim parenting schedule; and
• Retroactive child support from the date of the parties’ separation to April 1, 2024.

The Orders Sought by Each Party

[3] The father seeks an order for shared parenting of the parties’ two children, in accordance with a 2-2-5-5 schedule, after three phases of gradually increasing parenting time. He takes the position that it would be premature for the court to make a temporary decision-making responsibility order. In the alternative, he seeks an order granting both parents joint decision-making responsibility, with the mother having final decision after a meaningful consultation process has taken place, and exclusive of the children’s residence or choice of school which would require both parents’ consent. Finally, he asks that the issue of retroactive child support be deferred to the trial judge so that his post-separation contributions towards the home expenses and supervised access costs can be considered and set-off against arrears.

[4] The mother seeks an order granting her interim sole decision-making responsibility for the children, as well as primary care pending trial. She is prepared to agree to a gradual increase of the father’s parenting time with the children over a period of 12 weeks, which would ultimately provide the father with every other weekend from Friday to Sunday, as well as every Wednesday evenings from after school to 7:30 p.m.

[5] Both parties have also suggested a holiday schedule.

Background

[6] The parties are the parents of two children, M.P., born June 13, 2013 (aged 11) and R.P., born April 3, 2015 (aged 9). The parties began their relationship in 2000, married on September 4, 2010, and began living together after marriage. They separated on August 3, 2023, after an altercation which took place the previous day between the mother, the father and the maternal grandfather, while the parties were staying at the maternal grandparents’ cottage with the children.

[7] On August 3, 2023, following the events of the previous day during which the police became involved, the father was criminally charged with two counts of assaults against the mother as well as one charge of unlawful confinement in relation to events which took place in 2016 and in 2021. At some point during the month of November 2023, he was charged with one more count of assault as a result of the events which took place on August 2, 2023.

[8] There was no contact or parenting time between the father and the children from August 3, 2023, until December 23, 2023, even though the Children’s Aid Society was prepared to facilitate same until they ceased to be involved in October 2023. In December 2023, the parties finally reached an agreement on supervised parenting time through the Brayden Centre. The father states that, while he strongly objected to the need for supervision, by that time he was desperate to reunite with the children, and for that sole reason agreed to the mother's terms on a temporary and without prejudice basis.

[9] By the time this motion was heard, the father had limited parenting time with the children 2-3 times per week, not including any overnights, supervised by a professional supervisor.

Parenting

[10] Any parenting order must be made in accordance with the best interests of the children. The only test is the best interests of the children. Primary consideration shall be given to the children's physical, emotional, and psychological safety, security, and well-being. Section 16 of the Divorce Act, RSC 1985, c. 3 (2nd Supp.) (“the Divorce Act”) sets out a non-exhaustive list of factors that the court must consider that relate to the circumstances of a child. Pursuant to s. 16(6), in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with their best interests.

The Parties’ Allegations

[11] The mother alleges that there was significant verbal, physical and financial abuse in the parties’ relationship, which has been captured in her journaling over the years as a pattern of coercive financial control and dominance. She also alleges that over the years following the parties’ separation, the father drank excessively which became a significant issue that the parties attempted to address in couple’s counselling prior to the parties’ separation.

[12] The father acknowledges that the parties’ relationship was not perfect and at times they had disagreements during which both yelled and swore at each other, called each other names, ignored each other, said hurtful things to each other, made decisions without consulting the other, locked each other out of spaces or devices, and have reacted to each other in unhealthy ways. However, he says that both parties engaged in these unhealthy behaviors.

[13] He further alleges that the mother’s report of historical events to the police after the altercation of August 2, which led to criminal charges being laid against him, was part of her strategy to gain an advantage following the parties’ separation, which had been contemplated by them for a long time. To support his, he points to the fact that the original criminal charges laid against him in August 2023 resulted from historical events which allegedly occurred in 2016 and 2021. Additionally, he indicates that the additional charge laid against him, which related to the events of August 2 themselves, was laid the day after the mother found out for the first time that he was seeking joint parenting of the children in this proceeding. Following notice of this, the mother attended the police station and an additional charge was laid against him.

[14] The father alleges that he had a very difficult time coping with the mother's controlling, manipulative, angry and jealous behavior. He says this was exhausting for both the children and him, so they learned to avoid certain topics with the mother for peace and to avoid upsetting her.

[15] The father further alleges that a central issue in the parties’ marriage was the mother’s anxious attachment to the children. He states that once the children were born, the mother changed and significantly withdrew from her friends, reduced socializing (including all overnight trips which she previously enjoyed) and maintaining her personal bonds. He says that the parties were in couple’s therapy on and off for over three years on this issue, sometimes seeing their therapist on an urgent basis. According to the father, this has led to the mother gradually favouring her own parents as caregivers for the children, and slowly excluding all others, including the father’s extended family members.

[16] The mother explains that what was seen by the paternal family members as control and exclusion on her part was in fact her resisting to the overarching involvement of the paternal family in their lives with little to no boundaries. She states that the paternal grandmother's expectations of her adult children and their families to be excessively dependent on, and committed to, her caused significant issues in the parties’ marriage and is not the way she wanted to live in her marriage and raise her children. This is why she gradually took her distance from them. From her perspective, the paternal family’s closeness borderlines on unhealthy co-dependence which she does not want for her children. This, she says, resulted in the paternal family demonizing her and shunning her, including in the presence of the children.

[17] Despite this, the mother agrees that the children were very close to their paternal family before the separation, something she says she strongly encouraged and promoted, but that since the parties’ separation, all her efforts to ensure meaningful contact between the children and their paternal grandparents, aunt, uncle and cousins (with whom they were very close) have been ignored by them.

[18] Finally, the mother alleges that she was the primary breadwinner until 2014 when the father became a firefighter, and the decision was made that she would remain home to care for their young child. She states that she has been the children's primary caregiver since their births, including giving up her career to become a stay-at-home mother from 2013-2020. She says that after she returned to work in September 2020 (because otherwise the father advised he would divorce her), she remained the children's primary caregiver.

[19] The mother testified that the father worked excessive amounts of overtime between April 2014 and October 2020, in addition to taking care of side businesses, because he was more focused on earning money and paying off the two mortgages on their home than spending time as a family. She states that dedicating time to the needs of the children were his last priority, and that during his down time he favoured spending days at a time watching television while drinking and smoking marijuana.

[20] The father completely denies the mother’s allegations and takes the position that he was equally involved with the children during each phase of their development, creating a very strong bond between them. He says that as a firefighter who works 7-8 days a month (24-hour shifts), he spent a significant amount of time caring for the children on a regular basis. He points to the fact that the mother never raised any concerns about his parenting prior to August 3, 2023, and would often boast to others (including in many social media posts, which she has since deleted) that he was loving and hands-on father.

Analysis

[21] In the context of my decision, I have considered all the best interest factors listed in s. 16 of the Divorce Act. However, there are two key factors in this case upon which the mother relies to support her position that she should have primary care and sole decision-making responsibility for the children, which require a more focussed attention: the presence of family violence perpetrated by the father against her and the children (or at least one of them), and her role as the children’s primary caregiver throughout the parties’ relationship.

[22] This is why, for the purpose of the interim decision I am required to make, I have focussed more extensively on these two factors.

Family Violence

[23] I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22). The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)). Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person. In the case of a child, family violence includes the direct or indirect exposure to such conduct.

[24] Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse. Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence. For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

a) Making numerous unsubstantiated allegations against the other party; b) Unilaterally changing court-ordered parenting time terms without justification; and, c) Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 184).

[25] Assessing the credibility of family violence allegations presents significant challenges. Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:

179 The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

180 Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage.

[26] These challenges are multiplied when the court is required to assess the veracity of family violence allegations in the context of interim motions based on untested written evidence in the form of affidavits, the content of which – let’s be frank – is often extensively reviewed and tailored by counsel to meet the needs of the case.

[27] While some of the allegations which led to criminal accusations being laid against the father in this case are historical in nature, it does not make them irrelevant. Similarly, the fact that criminal charges were laid or that a party pled guilty to lesser charges does not necessarily mean that criminal conduct has indeed occurred. There may be many reasons why an accused chooses to plead guilty to a charge (including a lesser charge and/or in exchange for a reduced sentence) rather than to go through a full-blown criminal trial (lack of financial resources, inability to work or travel while charges are pending, the stress that these types of proceedings causes to a person and the associated negative impact on one’s mental health, etc.).

[28] In this case, I note that the father had no past history of aggression or violence prior to these charges being laid. A recently completed psychological assessment also ruled out any mental health issues or personality disorders, and concluded that the father demonstrated empathy, awareness and understanding.

[29] A parent who faces criminal charges in a parenting dispute faces a very difficult conundrum: while the complainant parent may provide a detailed account of alleged events which resulted in charges being laid, the accused parent in a criminal trial has an ongoing right to silence. The accused parent is also presumed innocent, and it is the Crown who bears the burden of proving guilt beyond a reasonable doubt. The accused parent often cannot fully respond to (or even address) the allegations in the family law context without potentially compromising their defence in the criminal matter. This Catch-22 situation for the accused parent is one that must be considered when assessing the evidence of the criminal allegation in the family law dispute (see C. v. C., 2024 ONSC 4319, at paras 65-78).

[30] This is what happened in this case. While the mother provided her version of the facts which led to charges being laid against the father, including her version of what took place between her, the maternal grandfather and the father on August 2, since these charges had not yet been tried by the time this motion was heard, the father was not in a position to provide his own version of he events and, as per his criminal counsel’s advice, was only able to deny the mother’s account of what took place, and advise that he was strongly defending those claims in criminal court.

[31] As a result of these charges being laid against the father, the Children’s Aid Society (“the CAS” or “the Society”) became involved, and in accordance with the criminal conditions in place, parenting time between the father and the children needed to be pre-approved by the CAS. Although the mother professed that she was always prepared to allow parenting time between them, and indeed took active steps for this to occur, a review of CAS records demonstrate that in practice, that was not the case. These records show that the father reached out many times and made significant efforts to get time with the children, but that the mother was not prepared to allow parenting time at that time. The father, therefore, was advised that the CAS could not impose any, and none occurred.

[32] It is telling that between August 3 until December 23, 2023, the children had no contact whatsoever with their father, not even telephone or video contact. The allegations of violence that are being made, even if true, would not in any way support a complete denial of parenting time as has been the case until late December.

[33] On September 19, 2023, the CAS closed its file and left it to the parties to sort out their parenting dispute before the Family Court. In its closing letter to the mother, the CAS worker states:

The Society became involved with your family after receiving a report from the police about domestic violence occurring by Mr. Piaskoski towards you, while your children were present. After meeting with your family, the Society has determined that its continued involvement is no longer necessary.

The Society has verified the allegation that the children were exposed to partner violence causing a risk that they could be physically or emotionally harmed. However, you have taken measures to ensure the children's safety as well as your own safety. It is the Society's expectation that you will continue to ensure that the children are not exposed to any further domestic violence. [my emphasis]

[34] In its letter to father, the CAS worker repeated the same, and added:

At this time, the Society is not taking a position with respect to you having access with your children and would not interfere with same. It is recommended that you and Ms. Piaskoski attend family court in order to deal with your custody and access issues going forward if you are unable to reach an agreement between yourselves. [my emphasis]

[35] It is to be noted that when one reads the CAS worker’s actual notes, it is clear that the risk of harm resulting from partner violence was verified, strictly, because criminal charges for assault were laid against the father.

[36] The parties’ marriage started to deteriorate more seriously at some point in 2020. There appears to be a number of reasons for this; the mounting discord between the parties and their respective in-laws; the father’s strong view that the mother should be returning to work now that both children were both in school full-time, which the mother did not agree with; the father’s increased discontent with what he viewed as the mother’s overprotective and controlling approach towards the children, and gradual exclusion of his own family from their lives; the mother’s discontent with what she viewed as the father spending more time either working or instead of spending that time with his own family. This resulted in significant conflict between the parties which did not improve despite the mother seeking individual counselling, and the parties’ attempt at couple’s counselling.

[37] By the summer of 2023, the parties were clearly contemplating a separation, or at least, one was clearly looming in the horizon. The relationship between the paternal and maternal sides of the family, which used to be very close, had also deteriorated.

[38] I accept on a temporary basis that there was significant conflict between the parties in the form of yelling, name calling, swearing at each other, and other such form of verbal abuse. I also accept that when they were fighting, the parties may have at times engaged in some pushing and shoving, locked each other out of spaces and taken each other’s devices in retaliation. Maybe the father was the only one engaging in this behavior, but maybe he was not.

[39] It is revealing to read in the CAS’s records what the children had to say to the worker about what was going on in the home while the parties were together:

[M.P.] reported things to be good at home with her mom. She reported it was weird without her dad being in the home. She stated she worries and is scared when her mom and dad fight and yell at each other. She stated they have arguments over other family members. She stated that she and her brother go upstairs and she tries to comfort her parents. [M.P.] reports worrying about everyone’s feelings. She doesn't want her dad to feel sad because he cannot see her and her brother.

[R.P.] reported feeling safe at home. He reported he was missing his dad. He also reported that he worries about his mom and dad fighting and because his dad pushed his grandpa at the cottage.

[40] Based on the above, the conflict, verbal abuse and the physical altercations (pushing and shoving) do not appear to have been one-sided as the mother would want the court to believe. Ultimately, I am unable, based on the significantly contradictory evidence before me, to determine to which extent each party engaged in such behaviors.

[41] I acknowledge that the mother, during her individual therapy sessions with Ms. Berg during various periods in 2020, 2021 and 2023, reported her complaints about the father’s behaviors to her. However, it is very risky for the court to rely on a party’s own self-reported allegations found in their individual therapist’s notes and records as proof that these things actually happened. Ms. Berg in her report dated February 19, 2024, summarizing her involvement with the mother, makes this very point herself. She wrote:

As per the clinician's 'informed consent" document which is signed by all clients prior to their first session, ' ... no letters or reports will be written for litigation purposes.' As such, and because it falls outside the clinician's scope of practice, the clinician is unable to provide a "formal assessment', nor an 'opinion report' in any matter, and is only able to provide a summary of the client and clinicians body of psychotherapeutic work.

It was apparent early on in the client's work that she identified with/related to a significant number of dysfunctional dynamics. Due to the inherent limitations of individual therapy (in that the clinician is only able to work with one party in the dynamic), the client and clinician determined that couple therapy was likely highly indicated as early as session 1…[my emphasis]

[42] While the mother urges the court to consider the fact that Ms. Berg’s notes were made contemporaneously to her allegations, back in 2020 and 2021, it is important to remember that at the time the parties were already contemplating a separation. This, in addition to the comments I make below in relation to the mother’s surreptitious recordings of conversations between herself and the father (and the paternal grandmother) at that time, raises significant concerns as to the genuineness of the mother’s allegations to Ms. Berg at the same time.

[43] It is important at this juncture to note that there is no evidence before the court of any verbal or physical abuse toward the children by the father, other than one incident which is alleged by the mother. According to her, on January 7, 2021, R.P. reported to her having been roughly handled by his father (that he “threw him around”). To support this allegation, the mother relies on a surreptitious recording of a conversation between her and the father following this alleged event, and during which she says he admitted to throwing R.P. as an act of discipline and told the mother to call the police.

[44] For the same reasons as those set out in more detail below in relation to the various surreptitious recordings which the mother attempted to rely on in this motion, I find that recording highly suspicious. Further, there was obviously a significant context to what was said during that conversation which is clearly missing from the mother’s evidence. More about this below.

[45] I note that when the CAS was involved with this family immediately after the parties’ separation, the mother never brought this alleged event to the attention of the Society and, in addition, she specifically told the worker that the father was never abusive towards the children.

[46] The notes of the individuals who supervised the father’s parenting time during the months of December 2023 until this motion was heard, reveal clearly that the children have no fear of their father, they were excited to see him, they were very comfortable with him, there were lots of hugs and kissing between them, and they often asked to stay longer. The CAS notes confirm that the children missed their father very much, and they did not report any concerns that would support the mother’s allegations of abusive behavior by the father (aside from the parental conflict).

[47] While it is impossible for me to come to any clear conclusion about the mother’s allegations of excessive drinking on the part of the father, which are strongly denied by the father, I note that there is no evidence before me that the children ever mentioned this as a problem in their family. The mother does not appear to have brought this concern to the attention of the CAS when they were involved, and if she has, the CAS made it clear that they were not taking a position with respect to the father having parenting time with the children, and that they would not interfere with same.

[48] Finally, there is no evidence before me of any events during which the father’s alleged excessive drinking has ever placed the children at risk of harm. The only evidence of this being a concern comes from the mother herself, either in her therapist’s notes, or in one surreptitiously recorded conversation she had with the paternal grandmother, which will be discussed in more length below.

Admissibility of Surreptitious Recordings

[49] To support her allegations that she was the victim of family violence during the parties’ marriage, the mother sought to rely on audio and video recordings of conversations she had with the father and with the paternal grandmother in 2020, 2021 and 2023, which she recorded without their knowledge. The father objected to these recordings being introduced in evidence in this motion, on the basis that they were surreptitiously obtained and disclosed for the first time in the context of the mother’s responding affidavit in this motion.

[50] In Hameed v. Hameed, 2006 ONCJ 274, Justice Sherr had the following to say about surreptitiously recorded material, which he found to be inadmissible (at para. 11):

Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[51] Justice Sherr went on to quote Tatarchenko v. Tatarchenko, OJ No. 4685, wherein the Court expressed its concern about the reliability of surreptitiously recorded material:

(5) … There is a wide scope for potential abuse in this practice.

(6) The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this “evidence” convince me that it should be struck in its entirety and should not be before the court.

[52] However, in Scarlett v. Farrell, 2014 ONCJ 517, Justice Spence noted how conflicted the caselaw was on this sensitive issue, particularly when a child’s safety and well-being was at the heard of the court’s inquiry. He said:

Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court’s need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.

[53] In this case, I find that the circumstances surrounding the creation and production of the mother’s surreptitious recordings are highly suspicious. First, the mother’s report of what was said in these conversations is highly misleading, in my view. Second, the selective excerpts from these conversations upon which the mother relies to claim that the father or the paternal grandmother “admitted to”, “acknowledged” or “recognized” these problematic behaviors, are quoted completely out of context (when one reads the entire transcript of the conversation and listens to the tone in which these statements were made).

[54] For instance, the mother relies on the recording of a conversation she had with the paternal grandmother in September 2020, which she claims corroborates her allegation that the parties had agreed “the father would agree to stop drinking if the mother agreed to return to work full-time”. In this conversation which the mother initiated, and recorded from the start, she begins the conversation as follows (immediately after the initial greetings):

Mother: Well, Ross is at home drinking rum as per usual, you know, pouring his cupful of booze but there tends to be a pattern and I don't think I quite know everything that's been happening. So is there anything that you want to tell me? PGM: No, I don't have a clue. What are you thinking? I don't know. Nothing. Nothing. Mother: Okay. Because he told me he's not willing to do therapy anymore. He's choosing to go out for football tonight versus having another counselling session with me. He drank during our other one. I don't know, it just seems like there's a lot of pressure being put on him and I think during a time like this we don't always know everything that everybody else is going through. PGM: No, I know. I agree with that.

[55] And then the conversation goes on for a very long time during which the mother makes statements after statements, and the paternal grandmother – it appears – is simply trying to acknowledge the mother’s perspective and offer comfort and support.

[56] As a further example, here is another excerpt of that conversation:

Mother: Not that it was a secret or anything, just I hadn't seen you guys. But I get this new job and then I'm like, "Cool" okay. Ross has really been putting the pressure on me telling me that "Our marriage will be fine. Just go get a fucking job. Stop being so lazy. Stop being --- " you know, like not good, taking my phone away from me, locking me out of the house. PGM: I know it's --- Mother: It's abuse. Abuse, there's no other way to say it. I've had two therapists tell me it's abuse. So there's a lot going on in our family life right now. PGM: I understand that, I know that.

[57] The mother relies on these “acknowledgements” by the paternal grandmother as proof that the statements she puts to her during that conversation are true, which is in my view is very misleading.

[58] The same is true for much of the recorded conversations between the parties themselves which, in essence, consist of the mother making strong statements suggesting inappropriate conduct on the part of the father, and the father responding “yes whatever, sure Kaitlin, sure…” in an exasperated tone. For instance, the following conversation between the parties in February 2021:

M: Okay but do you not think that's going a little bit both ways. You haven't let me finish a single thought yet. F: I will interrupt you every single time, you're right, every single time. M: I'm saying if we're not going to go to camp I'm not going to have it be like today where you haven't refused to do anything to what, to make a point? To make it easier? Your wife asks for help the other day and what do you do? You lose it. Today do you recall sitting on the couch saying to me, "You're a fucking cunt. I wish I could punch you in the fucking face right now"? F: Sure, whatever you think Kaitlin, sure. M: No, not whatever I think. F: So you want to make this about that? M: Of course I do. F: You want to make it about that? M: Of course I do. That's a threat. F: In the middle of a fight -- that's not a threat. M: Of course it is, F: That's a threat? M: "I wish I could punch you in the fucking face right now, you cunt"; of course that's a threat. F: Okay, okay. Calling me an asshole is a threat so that's the same. M: No, it's not. F: Oh no? M: It's name calling, it's not a threat. It's not a threat of a physical threat. F: That's a threat saying (inaudible) M: Well, you have in the past. F: I have not punched you in the face. M: Not punched me in the face but you've gotten physical with me. You've locked --- Pardon? F: You've done the same thing. And you've never gotten physical? M: Like how so? Like trying to get my phone back after you took it away from me? F: No. M. Well, what? What physical are you talking about? You bruised my chest, do you not remember that? And now tonight you tell me that --- F: It's all lies. M: It's not lies. Did you bruise me in August? F: No. M: Yes, you did. You shoved me so hard I had a bruise on my chest. Tonight you told me, "You're a fucking cunt, I wish I could punch you in the fucking face". F: Whatever you think. M: Not "whatever you think", you said it. Admit it. F: That's not reality, Kaitlin.

[59] The mother relies on this conversation to prove that the father admitted to threatening her with a punch in the face, in addition to calling her a very demeaning name, which is not quite what happened here. Furthermore, in this recording, the father is frequently asking the mother to lower her tone so that the children cannot hear them.

[60] Finally, I question the motive behind the mother’s secret recording of these conversations. In her materials, the mother states that she began recording some of her interactions with the father in 2020 “in an attempt to confront the father about his behavior during marriage counselling”. However, it is not disputed that the father had no knowledge of these recordings until the mother filed them as exhibits to her affidavit today. This means that they were never in fact used for that stated purpose. Furthermore, if confronting the father with his inappropriate behavior was the goal of the recordings, why did the mother also record her conversation with her mother-in-law?

[61] As stated earlier, the parties’ relationship began to significantly deteriorate in 2020, and the parties were at that time contemplating the possibility of a separation. Based on all the above, I find the circumstances surrounding the production of these recordings highly suspicious and troubling, and as a result I gave them no weight whatsoever in the context of this interim motion. The trial judge will be in a much better position to assess their ultimate admissibility at trial, should the mother choose to rely on them, in the context of a voir dire where the context in which they were created can be tested.

Final Note on Some of the Evidence Presented by Both Parties

[62] While both parties relied on affidavits sworn by the various members of their respective families, given the significant discord between the two families at this point, it is very difficult to give much weight to what each family member has to say about their son, daughter, brother or sister, and about the other parent and their family members.

[63] I also give very little to no weight to the unsworn evidence of friends (in the form of letters attached as exhibits to a party’s affidavit), or from health practitioners who provide views and opinions on serious and highly contentious issues after having only heard one side of the story. I do give weight to the personal observations of therapists and health practitioners who contemporaneously recorded them in their notes and records. I do not give any weight to the parties’ own interpretation of what these notes and records mean or reveal.

The Care Provided by Both Parties to the Children During the Parties’ Relationship

[64] As stated earlier, the father is a firefighter who works seven or eight 24-hour shifts per month, in addition to any overtime he chooses to take on. The mother was a stay-at-home mother for six years, before she returned to work full-time as a sales representative for Shoe Box (medical testing for hearing). She works from home remotely.

[65] Given the parties’ work schedule, the children never had to attend before or after school daycare. I am not aware of any special needs that they may have at this time, and they are both involved in extracurricular activities. I find as a fact that they were very close to both their maternal and paternal families before the parties’ separation, and more particularly to their cousins on their father’s side.

[66] The parties’ evidence in relation to their involvement in the children’s day-to-day care is highly contradictory. However, I accept that as a full-time stay-at-home mother between 2014 and 2020, the mother took on more of the parenting responsibilities than the father. I accept that she was the one who took the lead and attended most of the children’s medical appointments, she did most of the volunteering at the children’s school, and she was heavily involved in their extracurricular activities, taking the lead in relation of their education and homework. I accept that during those years, the father was the family’s sole breadwinner, and he was more focussed on providing financially for his family, and maximizing his income by taking on extra shifts at work with the goal of paying up the two mortgages registered against the matrimonial home.

[67] I also accept, based on the evidence before me, that even after she resumed full-time work the mother continued to be primarily responsible for the children’s school and medical care. This was simply the continuation of the role she had assumed since the children were born, which was facilitated by the fact that she worked from home full-time once she resumed employment.

[68] This said, the father’s evidence is that until separation, he was fully involved in the children's lives, including participating in their morning and bedtime routines; preparing meals for them; taking them to their activities; coaching the son's hockey team; spotting the daughter during gymnastics training; volunteering on school field trips; and assisting them with online learning. On a temporary basis, I accept that, while he was the family’s primary breadwinner for many years, he was still an engaged and loving parent who devoted a lot of his free time caring for the children and meeting their day-to-day needs.

[69] In my view, the mother’s allegations of disengagement and limited involvement by the father in the children’s lives are difficult to reconcile with the deep, loving attachment shown by the children towards the father as witnessed by the access supervisors. While the court is deeply concerned about the allegations of family violence made by the mother against the father, which led to criminal charges being laid against him, the court is equally concerned about the father’s allegations of serious gatekeeping behaviors on the part of the mother.

[70] Considering the mother’s allegations against him, and without a court order requiring him to do so, the father voluntarily completed different programs in relation to anger management, substance issues and parenting (some of them 16-hour courses) as well as the six-week New Directions Program, and promptly provided confirmation of successful completion to the mother. He explains that he completed these courses as part of his ongoing efforts to resume contact with the children. In addition to this, the father has engaged in counselling to help him navigate through these difficult times and support him in putting the children’s best interest first. Due to the mother’s allegations of drug abuse, he underwent drug testing, all of which came back clear, to prove that he did not have any addiction issues.

[71] Despite all this, until December 2023 the mother was not prepared to allow meaningful, unsupervised contact between the children and their father. Between October and December 2023, once his criminal conditions were changed and parenting time could be negotiated directly between the parties (via counsel), the father proposed supervision by his mother, his sister, or Renew Supervision, but the mother refused. Correspondences between the parties’ counsel during these months make it clear that the mother was only prepared to allow minimal parenting time between the children and their father, coupled with a panoply of conditions, many of which were entirely unreasonable in my view (for instance, that the children were not to be separated and that the father was not to leave his house during his visits).

[72] The children have also been denied any meaningful contact with their paternal family members, including their cousins who are their own age, and with whom they were very, very close. The evidence in that regard is highly conflictual, and it is not possible for me to arrive at any conclusion as to whether it was mainly the father’s fault or the mother’s fault. What is very sad is that these children have been separated for way too long from family members with whom, both parties agree, they were very attached.

[73] At this stage in the proceeding, I am of the view that both parents are loving and capable parents and that the children should not be deprived of their right to have meaningful parenting time with both of their parents. Both parties live in Manotick, close to the children’s school and community. The mother remains in the matrimonial home at this time, and the children are obviously very comfortable in that home environment. The father currently resides in his parents’ home, which he indicates is large enough to allow for two families to reside in the space, with each child having their own bedroom. Once financial matters are sorted out between the parties, he intends to move into his own residence.

[74] There are only two reasons why I hesitate to implement an equal time-sharing schedule at this stage of the proceeding. First, there is a s. 30 assessment on the way which will give the court a much deeper and clearer understanding of the dysfunctional dynamics between the parties, as well as a better understanding of the children’s perspectives of past events, and their wishes and preferences in relation to their parents’ proposed parenting plans. Despite the highly conflictual evidence before me in relation to the existence of family violence, I nonetheless feel that a cautionary approach is warranted at this stage.

[75] Secondly, the children need stability. I do not wish to implement an interim parenting schedule which will change their primary residence (the family home in which they were raised) or their long-standing history of primary care (which was provided by their mother as the primary caregiver during the parties’ relationship, or at the very least until 2020).

[76] In my view, what is crucial at this time and on a temporary basis is to ensure that the children are given much greater and meaningful parenting time with their father and their paternal family, something I find they were unreasonably denied of since the parties’ separation.

[77] Having found no concerns whatsoever in relation to the father’s ability to care for these children, I see no reason for the gradual increase of parenting time to extend over a lengthy period of time, as sought by the mother.

[78] For all these reasons, I make the following interim order:

1. The father shall have the following parenting time with the children: a. Phase 1: Effective immediately, every Wednesday after school until 7:30 p.m. and every other weekend from Saturday at 9 a.m. to Sunday at 7:30 p.m. b. Phase 2: Commencing four weeks after the commencement of Phase 1: i. Week 1: on Wednesday after school or 4 p.m. to 7:30 p.m., and every other weekend from Friday after school or 4 p.m. to Monday morning at school or 9 a.m.; and Week 2: on Wednesday after school or 4 p.m. to Thursday morning at school or 9 a.m. c. Phase 3: Commencing four weeks after the commencement of Phase 2: i. Every Wednesday after school or 4pm to Thursday morning at school or 9 a.m.; and; ii. Every other weekend from Friday after school or 4 p.m. to Monday morning at school or 9 a.m..

2. If, between the time this motion was originally heard (March 28, 2024) and the time this decision is released, the parties have already increased the father’s parenting time, the parties shall immediately skip to the next phase set out above which constitutes an increase in his parenting time.

3. In establishing the next stage in the father’s parenting time, the parties shall take into consideration the father’s work schedule, which includes shift work, to ensure that his first weekend of parenting time does not fall on a weekend during which he is scheduled to work.

4. The above parenting schedule is premised on the father’s evidence that his employer is prepared to be flexible in establishing a work schedule which allows for the father to be present with the children on his parenting time (as opposed to the children being cared for by family members). As such, the mother shall be given first right of refusal if the father is required to work during his parenting time (this does not include a situation where family members are required to care for the children for an hour or two until the father gets back home from work or before he goes to work).

5. Exchanges shall be through school on a priority basis. If exchanges at school are not possible, the exchange shall be through third party family members as confirmed upon in writing 24 hours prior.

Holiday Parenting Schedule

6. During the holiday and summer vacation, the holiday schedule below shall override the regular schedule.

7. Christmas: For Christmas 2024 only, the parties shall follow the regular parenting schedule above, but they shall share Christmas and New Years’ Eve as follows: the father shall have the children in his care from 4 p.m. on December 23 to 4 p.m. on Christmas Day, and the mother shall have the children from 4 p.m. on Christmas Day onwards. The parties shall share New Year’s Eve and New Year’s Day in the same way, with the father having the children in his care from 4 p.m. on December 30 to 4 p.m. on January 1, and the mother having the children in her care from 4 p.m. on January 1 onward.

8. Thereafter, the Christmas Break shall be shared equally between the parties as follows: In odd numbered years, the children shall spend the first half of the Christmas school break with the mother, and the second half with the father. In even numbered years, the children shall spend the first half of the Christmas school break with the father, and the second half with the mother.

9. Statutory Holidays: Following the regular parenting schedule, the children shall remain with the resident parent until Tuesday morning at 9 a.m.

10. The children shall spend Mother's Day with the mother and Father's Day with the father from Sunday at noon to Monday morning at school (or 9 a.m.), regardless of the schedule.

11. March break: Shall be divided into two equal halves in accordance with the school schedule and run from the end of school until school resumes. In even years, the children shall spend the first half with the father and the second half with the mother. In odd years, the children shall spend the first half with the mother and the second half with the father. The schedule may be varied on written consent.

12. Summer vacation: Each parent may take up to 14 days of summer vacation with the children, provided that they give the other parent 30 days notice. In the event of a conflict of dates, the father shall have priority in even numbered years and the mother shall have priority in odd numbered years.

Decision-making Responsibility

[79] I am of the view that it is important and in the best interest of the children for the parties to have clarity over how important decisions related to the children will be made pending trial.

[80] I am also of the view that the interim order that the father is proposing at this stage of the proceeding strikes a reasonable balance between concerns over unilateral decisions being made by a parent, and the need to recognize the mother’s primary role in relation to the children’s health care and education.

[81] One addition that I feel is needed is ensuring that both parents’ consent is obtained before the children engage in any therapeutic services, including as to the choice of the counsellor and equal participation in any intake process.

[82] As a result, the following interim order is made:

1. Except for the decision-making areas specifically set out below, the parties shall make all major decisions (education, religion, medical, residency and activities) jointly and communicated through OFW by the parent seeking the decision, in accordance with the following consultation process: i. The reply to be delivered within 5 days. ii. Should no reply or feedback be received after 5 days, the parent may make the decision and inform the other parent. iii. This mechanism shall be flexible and not be rigidly used with the knowledge that the other parent is unavailable to reply (ex: on vacation, away for work). iv. If after meaningful written discussions, they cannot agree on the changes, the mother shall make the decision.

2. A change in the children’s residence which has an impact on the parenting time schedule above or on the children’s ability to continue to attend their current school, or a decision on the choice of the school that one of the children will attend in the future, shall be made jointly by the parents, failing which the court shall decide.

3. Neither parent is permitted to engage the children in therapeutic services without the other parent’s consent as to the type of therapy and the choice of therapist. Both parents shall have an equal opportunity to participate in any intake process.

Child Support

[83] The parties have settled the issue of ongoing child support. On the issue of retroactive child support for the period of August 2023 to March 2024, it is not disputed that the father owes the mother child support arrears of $12,960 on account of basic child support ($1,620 times 8 months).

[84] It is also not disputed that the father assumed some of the expenses related to the matrimonial home expenses during that period, while the mother had exclusive possession. The father takes the position that he contributed almost $7,500 towards household expenses, and the mother only acknowledges one of half of this amount (roughly).

[85] It is also not disputed that the father has assumed almost $5,000 in access supervision expenses between December 2023 and March 2024. He is taking the position that at least one half, if not all of these expenses, should be set-off against arrears. Finally, he points out to the fact that the mother has resided in the mortgage-free matrimonial home during this entire period, which should also be considered by the court when making a retroactive support order at this stage of the proceeding.

[86] I am not prepared to deduct from the father’s child support arrears any contributions made by him unless such contributions directly benefitted the children and contributed to their support. In this case, only the father’s contributions towards the children’s housing during the period in which arrears accrued will be deducted. Since the amount of the father’s contributions is disputed, I am deducting the amount of $5,500, which is the mid-point between the parties’ respective positions on this issue.

[87] As a result, and on an interim without prejudice basis, I find that the father owes $7,500 in child support arrears for the months of August 2023 to and including March 2024.

Madam Justice Julie Audet

Released: October 02, 2024