NEWMARKET COURT FILE NO.: FC-20-238-01
DATE: 20241007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
F.H.
Applicant mother
– and –
M.S.
Respondent father
Constance Nielsen, for the Applicant mother
On his own behalf
HEARD: August 20, 21, 22, 2024 and September 6 and 24, 2024
Justice Alex Finlayson
PART I: OVERVIEW
[1] The parties were married on May 31, 2011. They have three children, twelve year-old twins named Z. and A., and R., age 8. [^1]
[2] The parties separated on June 17, 2019. They are divorced by Order of Jarvis J. dated March 13, 2023.
[3] Negotiations were already well underway, when the mother commenced an Application in this Court on February 6, 2020, claiming a divorce, various parenting orders, an equalization of net family property, and child and spousal support. The parenting issues, property and spousal support settled on March 6, 2020, when the parties entered into Minutes of Settlement. Those Minutes were later incorporated into the Final Order of MacPherson J. dated August 31, 2020.
[4] Notably, both parties were represented throughout much of the negotiations. They exchanged disclosure, and prepared net family property statements. But the father would later act on his own at the time of the settlement.
[5] The settlement confirmed the status quo of the mother being the children’s primary parent. It also provided that the father would pay a lump sum of $160,000.00 on account of equalization and spousal support. The Minutes of Settlement are silent respecting child support, however.
[6] The resolution of the child support claim should have been straightforward. Except for some minor adjustments that the mother now seeks at trial to account for rent she says he earned from renting out a room in his home, the father has earned employment income as a T4 salaried employee in all years since the separation, although he was temporarily unemployed at the time of the Minutes of Settlement. If child support wasn’t going to settle, then there should have been a focused trial on child support only.
[7] But instead, the mother tried to obtain a divorce not too long after the Minutes were signed and the Final Order was granted. The Court adjourned the divorce, as reasonable arrangements for child support were not in place. This case morphed into a high conflict parenting dispute. In addition to the conflict about child support, the dispute has revolved around the father’s disdain for the fact that the mother has a new partner. He has severely mistreated the mother, often in the presence of the children. The father has even recruited the maternal grandparents into the conflict. They have turned against their own daughter, also due to their disapproval of the mother’s new partner. The maternal grandfather testified at this trial, against his own daughter.
[8] Soon after the Minutes were signed, and as the parenting conflict began to spiral out of control, Children and Family Services for York Region (the “Society”) became involved, initially because the father made a false complaint that the mother was “drugging” the children (i.e., she was occasionally administering melatonin to help the children sleep after they would not settle in after weekend visits with the father). The Society would later verify parental conflict, and physical discipline by the father. The father then complained about the Society, and demanded that the Society assign a “male” worker. The police have also been contacted a number of times, by both sides.
[9] After months of mistreatment and vile verbal and written attacks by the father, interspersed with him harassing the mother to reconcile, and after an unnecessary dramatic incident at a summer camp, the mother cancelled six of the father’s weekend visits, over the course of about three months, between July and October of 2023. She demanded that the father stop mistreating her this way, and that he agree not to physically discipline the children. The father would not agree. This set the stage for some kind of driving chase on Highway 404, involving the father, the mother’s new partner, the children, a false allegation of “abduction”, and several OPP police officers.
[10] The parties then returned before this Court in October of 2023. Jarvis J. cautioned the mother, that the father’s parenting time was to resume. But leave was also given to both parties, to bring Motions to Change the Final Order of August 31, 2020. Consequently, the outstanding child support issues, and the freshly issued Motion to Change and Response, would be heard together at this trial.
[11] The father launched his Motion to Change first, on October 18, 2023. In so doing, he not only sought an equal shared parenting regime, but he also decided to mount an ill-conceived challenge to the parties’ property and spousal support settlement, basically saying that the mother’s lawyer “tricked” him. The father now says that the $160,000.00 amount that he paid on account of equalization and spousal support, was really for child support. Of course, were the father’s position to be adopted, that would mean that equalization and spousal support would need to be dealt with a fresh, and not just fall by the way side, something that the father did not seem to appreciate. He only seemed to want the property calculations re-done.
[12] As I just indicated, the father asks for orders that “custody shall be shared 50/50”, in a week about schedule. He is asking for various orders respecting communication, and parental conduct, also.
[13] Although he resisted paying child support throughout, the father now says that he is prepared to calculate child support starting in January of 2020, based on a full time job that he has had with “Intero Integrity” (formerly known as PipeTel), but he wants credit for $200.00 per week in cash that he claims to have paid the mother (for 30 months between April of 2020 and September of 2022), and he seeks a further credit for e-transfers of $300.00, that he says he sent her for 2 years.
[14] This now seems to be in addition to the fact that he paid the $160,000.00, contrary to the approach he previously took. So in the end it seems he would have the Court undertake a new equalization calculation, afresh, but revalue various assets and debts, and credit him with a portion of withdrawals that he says amount to $35,795.00, that the mother made from a bank account over a two year period prior to the separation. The father characterized his ask that the Court to re-do property, as a request for a “fair division” of his house, gold, furniture, tools and equipment”, plus some sort of allocation for the fact that the mother made these cash withdrawals. His proposed terms say nothing about spousal support though, to which the mother may have been entitled to more of, but for the settlement.
[15] Finally, the father wants the Court to Order the mother, and her new partner, to put $25,000.00 in trust for the children to use towards their future education, as a result of their “breaching the court order 6 times, and denying my access to the kids which is the result on terrorizing myself and the children and the oppression I face with my children.”
[16] In her Response to Motion to Change dated March 13, 2024, the mother asks the Court to change the parenting terms, to address the conflict that has been occurring since the Final Order, to protect the children. She sought to add into the mix at this trial, a summary judgment motion, to dispose of the father’s challenge to the equalization and spousal support settlement. I declined to hear a summary judgment motion, in addition to what had become the trial of two different proceedings. I directed the parties just to proceed with a trial on all issues. Regardless of the process employed, there is no merit to the father’s challenge to the property and support terms in the Minutes of Settlement, and the Final Order.
[17] The mother revised her proposed draft Order sought by the end of this trial. The mother seeks sole decision-making for the children, and an order clarifying the pick-up and drop off times and location, when the father has parenting time. But her primary position is that for the next six months, the father’s parenting time should be supervised pending his completion of parenting programing. She wants him to participate in the Brayden Nurturing Parent Program, to address child maltreatment. In the alternative, the mother seeks an order giving her the discretion to cancel the father’s visits, if he continues to act out. But her attempts to impose something like that (unilaterally) in the past, turned out badly.
[18] Regarding the outstanding financial claims (from the original Application), in addition to seeking the dismissal of the father’s ill conceived claim to set aside the property and spousal support terms in the Minutes and the Final Order, the mother seeks retroactive child support of $94,355.65, covering the period of time between the date of separation, and September 30, 2024. This sum excludes additional amounts of child support that she says should be ordered, based on the imputation of some rental income, for a two-year period between May of 2022 and June of 2024. She seeks ongoing child support of $1,722.00 per month, based on his 2023 annual income of $81,614.00, less union dues of $141, plus some rental income for the first six months in 2024.[^2] The mother also asks for an order that the father share certain child care and therapy expenses that she incurred for the children in 2021 and 2023, pursuant to section 7 of the Federal Child Support Guidelines, S.O.R./97-175, as amended (the “Guidelines”), as well as that he share section 7 expenses on a go forward basis.
[19] This is my Judgment respecting the remaining child support issues raised in the mother’s Application, respecting the competing requests to vary the parenting terms in the Final Order of MacPherson J. dated August 31, 2020, and respecting the father’s request for a do-over of the parties’ property and spousal support settlement.
[20] In the result, I find the father has engaged in physical discipline of the children. I find that the children have been exposed to emotional harm from the parental conflict. I find that the father has mistreated the mother in a fashion that amounts to family violence. I find the mistreatment of the mother has adversely impacted the children.
[21] The father needs to change his attitude and beliefs. He comments and actions, which are laden with an utter disrespect for the mother, have exposed what appear to be deeply held views.
[22] The Court is concerned for the children’s well-being. The Court intends to order a modified version of the mother’s proposal. In my view, the children’s best interests require a solution that involves the father’s parenting time being curtailed. He needs coaching and education about how to behave differently as a parent, and how to treat his former spouse, who is of course the mother of the children and their primary parent. He needs therapy about parenting after a separation, and about his family violence.
[23] I find that the father also needs to pay a proper amount of child support. The Court is making a retroactive order to the date of the parties’ separation, as asked by the mother. The Court is also ordering the parties to share the few section 7 expenses that the mother could afford in the past, which she has claimed. The retroactive order will be based on all of the sources of the father’s incomes in the relevant years. However, in determining the father’s income for those years, I find the record to be lacking for the Court to impute rental income to the father, as asked by the mother.
[24] The prospective order will be based on the father’s 2023 income, not a projected income that omits a second source of employment income. The father quit a job, that he had for some time, on the cusp of this trial starting. His explanation, that he no longer needed to work there because he obtained a mortgage, is not credible. He obtained that mortgage two years earlier, yet he continued to maintain two jobs, until July of 2024, the month before this trial began. The father now owes significant arrears as a result of this Court’s Judgment, and he will have expenses associated with the programming and therapy that the Court is ordering. So while he may not need a second job to qualify for the mortgage any longer, the arrears need to be paid and the father needs to engage in that programming and therapy in a timely way. I am prepared to make a repayment order, and to delay its start in the children’s best interests, if he commits to making the programming and therapy a priority.
[25] In quantifying the arrears owing, the father shall receive a credit for the amounts he paid, either directly to the mother via e-transfer, or through the Family Responsibility Office pursuant to a temporary Order of this Court. He did not prove the cash that he said he paid to the mother.
[26] Finally, the father’s request that the Court revisit the parties’ final settlement of equalization and spousal support was little more than a thinly veiled attempt to oppose child support, yet again. It is dismissed. There is no merit to the request to set aside the Minutes and the Final Order on actual legal grounds, such as pursuant to section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3, as amended.
PART II: BACKGROUND
A. Additional Facts About the Parties
[27] The mother has been marginalized in her relationships since a young age. This particular marriage was a second marriage for her. She deposed that when she was 16 years old, her parents began to find someone to marry her. At 18, she was arranged to be married to someone who was 10 years her senior.
[28] The mother says that she was never legally married to that person, and that she became “used goods”. After that first relationship ended, the mother’s parents arranged for her to have a “proper marriage” to someone else, who would “accept her circumstances”.
[29] The mother says she was remarried to the father, her first cousin, within three months of the end of her first relationship. The paternal grandfather, whom the father called to testify, claimed that these decisions were the mother’s. As I explain later, the grandfather lacks credibility; I don’t accept this evidence.
[30] I formed the impression during this trial, that despite her challenging life circumstances, the mother is a hard working woman, who is very concerned about and dedicated to her children. For instance, the mother did not complete any formal education after high school, initially. The mother then obtained a business administration certificate from a college during the marriage; she also took a “laser tech course”, but never worked in the cosmetic industry. The father claimed credit for this further education, saying he paid for it. The grandfather testified about how the father encouraged the mother to get a driver’s license, a statement that the father also repeated.
[31] The mother was a stay-at-home parent, in part. For a time after the marriage, the family lived in Alberta. The mother worked to support the father while he waited for his permanent residence status.
[32] The father is an engineer who used to work in the oil and gas industry in Libya. He holds a Bachelors’ degree in Engineering. He began to work in the oil and gas industry in Alberta after he was able to work in Canada. At some point after that the family returned to Ontario. The father continued to work in Alberta, though. He travelled back and forth. The mother obtained a part-time job at Seneca College, after the family returned to Ontario.
[33] The father was let go from the Alberta oil company in about 2018, because of “massive” layoffs in the industry. After that, he studied for and obtained a certificate in project management at the University of Toronto.
[34] The father eventually obtained employment in Ontario in February of 2019, with a company known as PipeTel Technologies (the company is now known as Intero Integrity Services Canada Ltd.). According to an employment letter dated May 14, 2024, which the father tendered at this trial, he has worked there since February 25, 2019, although it appears he was temporarily unemployed when the parties signed the Minutes of Settlement in March of 2020, and this contributed to the circumstances explaining why the Minutes did not deal with child support.
[35] The employment letter says that the father works on a full-time basis of 40 hours per week. His gross base salary is $66,120.00 at Intero. However, the father’s income has exceeded this, since he has maintained additional jobs in all of the years in issue, up to the recent decision to quit his second job that he had at Humber River Health hospital in July of 2024, just before this trial started.
[36] Following the separation, the mother returned to live with her parents at first. The father was inconsistent in visiting with the children. The mother could not rely on him. So she relied on her parents to help her care for the children, while she worked at a number of jobs, and while she returned to school, to study nursing.
[37] After the mother chose a new partner, whom neither the maternal grandparents nor the father approve of (it is said that she “disobeyed her parents”), the grandparents stopped helping her care for the children. The father would later insert himself into this rift between the mother and her parents, as part of the pattern of behaviour that he engaged in, which has exacerbated the conflict.
[38] The mother went on to qualify to become a nurse in the fall of 2022, or in early 2023. Prior to that, she worked at Seneca College as indicated already, plus she obtained other jobs, such as at a nursing home, and in a hospital. She did shift work at nights or when the children were in school, to work to support the children without proper child support, and to complete her education. According to the mother’s affidavit sworn October 10, 2023, the father apparently told the children that the mother “cheated” on her nursing exam, and that she is not really a nurse.
[39] Both parties are now in new relationships. Again, the mother’s new relationship has been the genesis of much conflict between the mother and the father, and the source of much tension between the mother and her parents.
[40] The mother’s new partner is Salaheddin Borghei-Razavi.[^3] According to his trial affidavit sworn May 8, 2024, Salah is a real estate lawyer in New York. He spends his time in both New York and Ontario.
[41] Salah and the mother met on an online dating app. They began communicating in June of 2022. They met in person for the first time in September of 2022. Salah had already been travelling to Ontario several times each year even before he met the mother, as he has family in the Greater Toronto Area.
[42] At first, Salah did not stay over at the mother’s home when the children were present. That changed in February of 2023, after Salah was introduced to them at the mother’s graduation from her nursing program. Salah is able to work remotely, so he now spends more of his time in Ontario, rather than in New York.[^4] When in Ontario, Salah now resides with the mother and the children.
[43] It seems that Salah has developed a positive relationship with the children. He referred to himself as the children’s “bonus guardian”. One of the father’s issues expressed during this trial seems to be a belief that Salah is trying to replace him.
[44] The father has now married a person named Assma, in or around mid-June of 2024. The father introduced the children to Assma around the time of his re-marriage.
[45] The father described his relationship with Assma and with the children as “perfect”. Unlike the mother’s relationship with Salah, which the father and the grandfather very much put in issue, I was otherwise told very little about the father’s new spouse. I note that although the father criticized the mother’s “values”, in particular by accusing her of not being “islamically divorced” from him several times during this history of this matter (and during this trial), he chose to re-marry, I gather while also not having yet obtained a religious divorce.
[46] The maternal grandparents, whom the mother at one point turned to for help post-separation, have turned against their own daughter. They do not approve of this new relationship. The father inserted himself into this dynamic, and now has the grandparents aligned with him. He even called the maternal grandfather to testify against the mother at this trial.
[47] The relationship between the mother and the grandparents has now deteriorated to the point that the grandparents are refusing to see or help care for the grandchildren, although the father has decided to involve the grandfather during his parenting time. For instance, the grandfather has called the mother both “disobedient” and “a liar”. The grandmother, whom did not testify, has nevertheless come to the mother’s home uninvited, left her a note, and banged on the door while screaming and yelling. She left the mother a hostile voicemail message during this trial, which was then played in Court. The father asserted during closing submissions, that the latter was just “woman talking about each other” and had nothing to do with him. For reasons that will be explained later, I disagree.
[48] Two other friends or extended family members of the grandfather’s, were in the body of the Court on the first day of this trial. Although I made a witness exclusion order and warned all in the body of the Court as to its meaning, the witness exclusion order was then breached. When the grandfather later testified, he admitted to having spoken to one of those persons about the goings on in Court, on the first day of this trial. Multiple phone calls between the grandfather and the father had also been placed, although it was not established that the two discussed anything substantive about what had already happened in Court.
B. Additional Facts About the Children
[49] As set out at the outset of this Judgment, A. and Z. are twins, who are the older siblings of R. R. is hearing impaired. The father told the children a made up story that the mother tried to “abort” R., and that is why he is hearing impaired. That the other parent would do this was upsetting to the mother, and frankly it was upsetting for the Court to hear.
[50] The mother testified about the children in loving terms. She described each of the boys’ personalities. She also described that R. is proud and open about the fact that he has a disability.
[51] The mother described the routine that she has employed in her household. She testified that she runs a “tight ship”. She ensures that the children make their beds in the mornings, and that everyone has breakfast together. She talked about the children going out for walks together, with her.
[52] After the mother left the maternal grandparents’ home, she found new housing near the children’s school. She did not want to uproot them. She used the property and support settlement to buy this new housing, while working hard, and studying, to become a nurse.
[53] The mother testified that the children sometimes walk to school together, or she will drop them off, depending on the weather. The mother has not been able to afford much in terms of extracurricular activities for the children without proper child support, so she has looked for free or inexpensive programming for them. For instance, she testified that the children play basketball after school at the Magna Center. She has helped R. with speech therapy since he was 5 months old. The mother also testified about her nighttime routine for the children too. It involves, dinner, homework, evening snacks and family time.
[54] The father has criticized the mother for not putting the children in more activities, or for the clothing that they wear when they come on visits, as part of his narrative of an allegedly neglectful mother. To the extent that what he said was true about the activities or the clothing, his criticisms have been leveled with complete disregard to the financial circumstances that he contributed to, by not paying child support.
[55] The father’s inconsistency respecting participating in parenting time after the separation exacerbated the mother’s already difficult circumstances. She was left to be the primary parent, while trying to work and study, to obtain a better life for herself and the children, with inadequate financial support from the father. Indeed, it was not even initially clear that the father was going to remain in Ontario, as expressed in the body of the Minutes of Settlement and the Final Order, themselves. There are separate terms in those documents, in the event that the father would move away.
[56] The father’s parenting time did become more regular. He decided to stay and he obtained new housing here. The father says that he is now active with the children, when they are in his care. For instance, he says he has registered the children to participate in activities at the Magna Center, too. He also buys seasons passes to Canada’s Wonderland. One of the incidents of conflict between the parents occurred when the mother wanted to borrow these passes. The father would not share them.
[57] The father claims that he teaches “values” to the children. These kinds of statements have been made by the father multiple times, to contrast or criticize the mother for her alleged lack of “values” or morals. I find these statements, and particularly how these views of the father have manifested themselves in this case over time, to be concerning.
[58] Although he tried to claim otherwise at the trial, the father clearly disapproves of the mother’s new relationship. Throughout his written communications to her (and orally), the father has called the mother vile, demeaning and degrading names, many of a sexual nature. These views have been transmitted to the children, and at one point the mother’s relationship with the boys, and with A. in particular, suffered.
PART III: THE PRIOR PROCEEDINGS AND CERTAIN OTHER EVENTS THAT TRANSPIRED OUT OF COURT, DURING THESE PROCEEDINGS
A. The Assistance of Counsel, and the Disclosure Exchanged, During the Negotiations Leading up to the Minutes of Settlement dated March 6, 2020
[59] Although the parties signed the Minutes of Settlement just one month after the mother commenced the original proceeding, negotiations between the parties, with the assistance of counsel on both sides, had been going on for several months before that. While I am unable to find precisely on this record the date after the separation that those negotiations began, I find that they were certainly underway by the two months mark.
[60] The father was represented until about January 22, 2020. That is when the mother received a Notice of Change in Representation, and the father began acting on his own.
[61] Before that, disclosure had been exchanged. According to the mother’s disclosure chart (Ex. 52), on September 13, 2019, the mother provided a Financial Statement sworn September 13, 2019, her tax return for 2015, Notices of Assessment for 2016 to 2018, her tax return for 2018, current pay stubs, and various documentation to prove her assets and liabilities on the date of separation. On October 24, 2019, the father provided a Financial Statement sworn October 24, 2019, Notices of Assessment for 2016 to 2018, six pay stubs, and statements for his LIRA with Sunlife, including at the date of separation. The mother’s disclosure chart reveals that the parties continued to exchange more disclosure in November and December of 2019. More was provided in February of 2020, the month before the Minutes were signed, and after the father was no longer represented.
[62] There were also net family property statements from both parties. Notably, there was a dispute about the date of separation. The mother said it occurred in 2019, whereas the father was then taking the position that the separation was in 2016.[^5] Despite that discrepancy, the mother’s Net Family Property statement said that the father owed her an equalization payment of $148,592.46, whereas the father’s produced an equalization payment owing of $112,722.95.[^6]
B. The Terms of the Minutes of Settlement dated March 6, 2020
[63] As there was some question about whether the father intended to remain in Ontario at the time the parties signed the Minutes of Settlement, the parenting terms therein contain two different scenarios. In both scenarios, the mother would make final decisions, but there is a consultation process in the scenario in which the father remained in Ontario. The father did not move out of the jurisdiction, so I need only summarize the Ontario scenario.
[64] While the mother now seeks final decision-making at this trial, she already has a form of that as already indicated. In the Minutes, the parties agreed that if the father maintained an Ontario address for four weeks, in the event of a parental disagreement after a consultation process, the mother would decide (except respecting the children’s relocation). The requirement to consult has become problematic and unworkable, in light of the father’s subsequent behaviour and his family violence.
[65] Regarding parenting time, the Minutes provide that the children reside primarily with their mother. The father was to have parenting time on a two-week rotation. During week one, the father had parenting time on Fridays after school or 3:30 PM, until Sundays at 5:00 PM, and on week two, it was to occur on Fridays after school or 3:30 PM until Saturdays at noon. The parties later expanded this term on consent and on a de facto basis, such that the father has been having the children for the full weekend every weekend. The mother testified that has been the case for the past 1 ½ years or so.
[66] The Minutes provide that the father could take the children out of school early at 1 PM on Fridays during the school year, but not more than once every second weekend, to attend mosque services. This clause only applies provided the children are in grade 5 or under. And the father had to be in attendance at the mosque with them. There are separate terms respecting mosque attendance during Ramadan and during the summer school break. It is not clear to me how frequently the former term was exercised by the father. In any event, the twins are in grade 7 this year, and R. in grade 4. The former term no longer applies respecting the twins, and it expires for R. at the end of this school.
[67] The parties agreed that both could attend any of the children’s extra-curricular activities. They agreed to share holidays, such as “Christmas, New Years, etc. equitably and based on the children’s best interest”. The latter clause required the parties to agree on a yearly basis, failing which the regular parenting schedule would prevail.
[68] Finally, while the mother was permitted to obtain government documentation for the children, including passports, there are travel terms that require parental consent to travel with the children out of Canada in the Minutes. And there is a permanent police enforcement clause in the Minutes, and in the Final Order. Travel has also been a source of conflict in this case.
[69] Regarding property and spousal support, as already indicated, this resolved by way of the father paying a lump sum of $160,000.00 to the mother. I will have more to say later in this Judgment, about why this term was clearly final, and why there is no basis for the Minutes (and the Final Order) to be set aside.
C. The Request for a Divorce and the Father’s Non-Payment of Table Child Support
[70] It appears that this case then went somewhat dormant, at least for a short time, during which time there was no reasonable arrangement for child support in place. But that dormancy did not last long.
[71] In her affidavit for this trial sworn May 9, 2024, the mother says that following receipt of the Final Order of MacPherson J. dated August 31, 2020, she began acting on her own. She tried to obtain a divorce, but Himel J. rejected it on January 15, 2021, based on the lack of information regarding child support.[^7]
[72] In one of three affidavits that he swore on February 27, 2023, the father said that the parties had some kind of agreement to report to the Court that the father was paying child support of $300.00 [per month] so that the parties could get the divorce, although he was paying more than $300.00. Yet he has taken the position that the $160,000.00 amount in the Minutes was for child support, and so on that theory, would he be paying $300.00, or some other amount, or nothing at all?. In any event, later on in that same affidavit of February 27, 2023, the father says that the mother was “Okay with the $300 but since she realized that [he] know about her unreligious relationship, she got scared and she went to the lawyer to scare me”. This, apparently, is one of the mother’s motivations for seeking child support, according to the father.
[73] In his third affidavit of February 27, 2023, the father says something else about child support. There, he alleges that the mother asked him to leave the children with her “with full decision”, in exchange for which she would “[cancel] the court and forget about the child support”. He also accused her of planning to leave the country to live in the United States with her “boyfriend”.
[74] The mother agreed that the father paid child support of $300.00 per month at some point after the Minutes, but before Jarvis J.’s temporary child support Order. This is set out in more detail later, when I credit the father, for the actual payments he made that were proven during this trial, in the Court’s calculations of the retroactive child support the father owes. But she also testified that the father was inconsistent. She says she was constantly begging for him to pay. She says that sometimes he would hold child support over her as a method of control, saying that he would only give her child support if she behaved in a certain way. I accept her evidence.
[75] There appears to have been some further attempt by the mother to obtain a child support Order after this. On January 14, 2022, Kaufman J. released an Endorsement on a 14B Motion that the mother filed. While I have not seen the 14B Motion itself, in his Endorsement, Kaufman J. directed the mother to set out the amount of support she was seeking, and the basis of her calculations, with proof of section 7 expenses. He also directed the father to respond with various income documents and an updated sworn Financial Statement, failing which the mother could proceed by way of a 23C Affidavit for Uncontested Trial. Notably at this point, the father had not filed an Answer. He would later do so, on June 6, 2022. And in that subsequent Answer, the father raised issues relating to parenting, despite there being a Final Order in place.
[76] On June 20, 2022, Himel J. declined to grant a divorce, perhaps for the second time, as child support was not in place. After referring back to Kaufman J.’s Endorsement of January 14, 2022, she directed the parties to proceed to a case conference before a DRO.
D. The DRO Conference on December 12, 2022, the Parties’ Further Final Minutes of Settlement Respecting Parenting, and the Father’s First Attempt to Resile From that To Which He Had Just Agreed
[77] The parties went before a DRO on December 12, 2022. While it seems that there was no progress respecting child support, there was already conflict occurring in their parenting. So the parties entered into further Minutes of Settlement, directed at governing their behaviour and attempting to reduce the impact of that the parental conflict on the children. For example, in these new Minutes, which say they supplement those of March 6, 2020, the parties agreed to respect each other and the other’s privacy, and not to, “by any act, omission, innuendo, comment or otherwise, interfere with, criticize, harass, speak ill of the other, including the other’s parenting… family, friends, employment, lifestyle choices or other decisions/actions”. They agreed not to seek to influence others against the other party, or the children against the other party, and not to expose the children to adult conflict in their homes. They also agreed to limit their communications with each other to be in writing, and to concern the children only, in an “appropriate and respectful manner”.
[78] The father then immediately tried to resile from these Minutes of Settlement for some inexplicable reason. On December 16, 2022, Jarvis J. released an Endorsement, noting that the DRO had advised, that after these Minutes were signed, the father emailed her several times, saying that he wanted to resile. Jarvis J. granted the father until December 20, 2022, to file a document setting out the reasons why the Court should not incorporate these further Minutes of Settlement into an Order, failing which the mother could move on 14B Motion for an Order, accordingly. The apparent reason the father wanted to resile from terms whose essential purpose were just to require the parents to be respectful, and to prohibit either party from exposing the children to adult conflict, was that he alleged he had somehow been “tricked”.
E. The Father Alleged that the Mother Was “Drugging” the Children to the Society
[79] In January of 2023, shortly after the DRO appearance, but before the issue about the enforceability of these second set of Minutes was resolved, the father involved the Society.
[80] In her affidavits sworn October 10, 2023 and October 31, 2023, the mother says that the Society’s involvement began because the father contacted the Society to allege that she was “drugging” the children. This allegation about her “drugging” the children, pertained to the fact that the mother had given the children melatonin on occasion after visits with the father, to help them settle and sleep at night. The mother says that the Society investigated and had no concerns about her. The mother’s account of what happened was established at trial.
[81] The Society’s case notes relating to this complaint reveal that the father called the Society about this, unbeknownst to the mother, and without first discussing it with her. In addition to complaining about melatonin, he reported that according to the maternal grandfather, the mother was leaving the children with “babysitters or daycares”, to go out “partying”. The father claimed to believe the mother was giving the melatonin, so she could “go out.”
[82] But in her later investigation summary, the Society worker observed the children to be emotional and upset with the father, when at his home. The children shared with her, that the father was making negative comments about their mother. It was also reported to the Society that the children were aware about what was happening in Court. For instance, in her affidavit sworn October 10, 2023, the mother says that the father showed the children court documents, spoke negatively about her, and told the children that she had an abortion, alluded to earlier, all of which was borne out in the Society’s records.
[83] The Society worker described the situation as much calmer at the mother’s home. In the end, the Society did not have concerns about the mother’s caregiving skills. But the children reiterated that the father was talking poorly about the mother. The boys also reported that the father used physical discipline, which the father would go on to deny, and in reaction, accuse the mother of alienation.
[84] The Society worker verified a protection concern relating to the father’s physical discipline, because the twins disclosed that the father hit them when he was angry. The Society worker found this disclosure to be credible. The Society worker also had a concern about post separation conflict, based on the father’s conduct. The Society worker concluded that the children were in need of protection and made the decision to open an ongoing file. The father would later complain about the Society to the Child and Family Service Review Board, and demanded that a “male worker” be assigned.
F. The Case Conference Before Jarvis J. on March 3, 2023
[85] Next, there was a case conference before Jarvis J. on March 3, 2023. The next two Orders in the Trial Record are those of Jarvis J. dated March 3, 2023, arising out of that conference.
[86] First, Jarvis J. made a second Final Order incorporating the terms of the Minutes dated December 16, 2022 (i.e., the Minutes that the father had tried to resile from). He made a separate, temporary Order, providing that the father would pay temporary child support in the amount of $1,035.00 per month commencing January 1, 2023. This was based on the father’s 2022 income of $67,900.00. Jarvis J. declined to make an order for section 7 expenses that day. He otherwise directed the parties to exchange Requests for Information by March 17, 2023. The divorce was later granted on March 13, 2023 by Jarvis J., now that child support was in place.
[87] As of March 3, 2023, Jarvis J. confirmed in his Endorsement, that the only outstanding matter in this case, was child support. He noted that the father then believed that he was not required to pay anything for child support, but there was nothing in writing that relieved him from this. He went on to inform the father, that the Court had the power to disregard any arrangement between the parties respecting child support that was not a reasonable arrangement, anyway. And he further wrote that the Final Order of MacPherson J. dated August 31, 2020, represented a settlement of property and spousal support. He noted that the father was raising parenting issues, but that a Motion to Change was required, for that to be pursued, since the parenting issues were already finally resolved.
[88] Jarvis J. went on to encourage the father to obtain legal advice about his exposure to pay retroactive and prospective child support. Yet the father still came into this trial taking issue with the obligation to pay child support, and attempting to mount an attack on the Minutes of Settlement dated March 6, 2020 and the Final Order dated August 31, 2020, after having already tried, unsuccessfully, to resile from the Minutes of Settlement dated December 12, 2022.
[89] While the March 3, 2023 temporary Order states that child support is for all three children, the table amount for three children based on an income of $67,900.00 is $1,356.00, not $1,035.00. The Endorsement appears to contain a mistake. At this trial, the father added a new argument into the mix. He seemed to assert that the apparent mistake in the Endorsement, as to the amount of child support being incongruous with the number of children, had been brought to Jarvis J.’s attention, but Jarvis J. declined to change the Order. Therefore the issue had been resolved, according to the father.
[90] The father’s suggestion to this effect, was misplaced. Quite apart from the fact that the statement about the matter having been brought to Jarvis J.’s attention concerned discussions at a conference that are not reflected in an Endorsement, upon which I cannot rely, a trial court has jurisdiction to make a final child support Order, including for prior periods. Any final child support Order of this Court replaces an earlier temporary Order, and by extension, it will correct any mistake that may have been made. And notably, quite apart from the disconnect between the table support ordered and the number of children, the father’s Line 150 income for 2022 ended up being $30,000.00 higher than the sum upon which Jarvis J.’s temporary Order was based. This Court’s final Order will have the effect of correcting that too, now that the actual income for 2022 is known.
G. The Parental Conflict in the Spring and Summer of 2023
(1) The Birthday Party Incident
[91] On May 20, 2023, A. and Z. attended a birthday party of another child. A. got sick there and threw up. It is believed that he swallowed a volume of pool water.
[92] According to the mother, after learning of this, she called the father and told him to go pick the children up. She asked the father to bring A. to the hospital, where she was working that day. She felt she could “speed up the process” to get A. seen by a health care professional, when they arrived.
[93] It is common ground that the father took A. to the hospital. But the father then failed to inform the mother of this. The mother says he rejected her phone calls (which is another pattern of behaviour that the mother says the father engages in when the children are in his care). The mother said that at one point, she called Z., and learned that the father had left him in the car, while the father was already in the hospital with A.
(2) The Father’s Birthday
[94] As it happened, this incident occurred just before the father’s birthday (the father’s birthday is May 22, it fell on a Monday that year, which also happened to be the Victoria Day long weekend, and the children were already in the father’s care). So on Sunday, May 21, 2023, the mother sent the father an email, to simply ask him whether he wanted to keep the children until Monday evening that weekend. Apparently the children had told her that they wanted to remain with their father, for his birthday.
[95] Rather than saying yes and thank you, the father responded to the mother saying that he wanted to have the children on a 50-50 basis. He accused her of “playing a game” that she is “nice and generous”, and he went on to call her an “evil person”, among other things. He wrote about making a “fair settlement” and “wasting money on lawyers”. His email unnecessarily concluded with an attack on the mother, saying that “[y]ou live the life that suits your mentality”.
(3) The Summer Camp Incident on July 21, 2023
[96] On Thursday, July 20, 2023, the father sent the mother a message and asked to pick the children up a day early, to take them camping. The mother did not respond.
[97] It common ground that on July 21, 2023, the father picked R. up from daycare at noon, without the mother’s knowledge. He then tried to pick A. and Z. up from their summer camp.
[98] The mother learned about the father’s attempt to pick the children up early when she received a phone call, from someone at the summer camp, advising that A. and Z. did not want to go with their father.
[99] So the mother and Salah then drove to the summer camp, only for there to be a significant incident of conflict in the parking lot, with R. observing much of the whole affair from his father’s car.
[100] According to the mother, the father took out a phone to record her and Salah. The mother says the father called her a “junkie” in front of R. (something which he has also called her in writing). He then drove over to the police station with R., to report that the mother was “withholding” the children, even though technically speaking, it was not yet his parenting time under the governing Order.
[101] According to Salah’s affidavit sworn May 8, 2024, upon arrival at the summer camp, he approached the father and asked him to return R., but the father spoke to him “aggressively”. He says that he told the father that R. could hear his words, but the father told him that was “none of [his] business”. So he went back to the mother’s car, to reverse and leave. It was then that the father started to record him and the mother.
[102] Also according to Salah, the father then got out of his car and went to the passenger side door, where the mother was sitting. He banged on the window and opened the door. Salah got out to try to intervene, to protect the mother.
[103] The father had a photograph and a video of some of this incident that he sought to introduce at this trial. The point of these apparently, was to establish who was blocking whom, in the parking lot.
[104] According to Salah, he and the mother decided to leave R. with the father, and they went in to pick up the other two boys. He says that when they went into the summer camp, A. and Z. had their bags packed, and they were “teary-eyed”. He also says the camp counsellor was visibly upset. Apparently the father had already been inside, and created some kind of a scene.
[105] The situation at the parking lot ended with R. going with his father, and A. and Z. going home with the mother and Salah. When Salah, the mother and the two boys got home, the mother received a phone call from the police. Salah says he heard the police tell the mother that the father was at the police station accusing her of breaching a court order, to which the mother responded that the father’s time had not yet started. Eventually, A. and Z. were then taken to their father’s, for his weekend visit, although they arrived about 30 minutes late, due to the events of that day.
[106] There were a number of written communications between the parties tendered at this trial, in which they argued about what had happened on July 21, 2023. This entire sequence of events is illustrative of the dynamic between the two parents. The mother ought to have responded to the father’s request, and she didn’t. The father should not have responded in kind, by picking the children up early. The situation did not need to escalate in the parking lot like that, or require the police, or carry on over a few hours’ long period.
[107] This incident is a good example of why strict terms need to be put in place, to manage the situation that exists in this family.
H. The Mother’s Suspension of Some of the Father’s Parenting Time
[108] Salah says that he observed several escalations in the father’s behaviour after this incident, leading up to a significant and dangerous incident on October 6, 2023. The escalating behaviour included the father’s involvement of the maternal grandfather at some parenting exchanges, and the father and the grandfather coming to the mother’s home, too. And there was more police involvement.
[109] At this point, the mother was exasperated. She observed the children suffering. She decided that everyone needed a break. It is common ground that the mother did not allow the children to go on a total of six visits with their father, after the summer camp incident, up until the second return of this matter to Court, in October 2023. This was a breach of the Final Order of MacPherson J. dated August 31, 2020.
[110] The summer camp incident was the final straw for her. While she did not in the past suspend the father’s parenting time after other incidents of concern to her, the mother now felt the children were in a crisis. For instance, she explains (and the Society’s records confirm) that A. began bedwetting. Therefore, she kept the children for three weekends at first, being July 28, August 4, and August 11, 2023. And it was during this period, that the mother obtained a letter from the Society dated August 11, 2023, that she says included some concerning disclosures from the children.
[111] The children did resume seeing the father on September 29, 2023. In the interim, the matter returned before the Court on August 21, 2023 for a Settlement Conference, again before Jarvis J. In his Endorsement of this date, he noted that the father was now planning to start a Motion to Change the parenting terms, but that a trial should proceed during the November 2023 sittings on the support issues regardless. Jarvis J. put the matter over to October 17, 2023 for a Trial Scheduling Conference.
[112] A. then disclosed to the mother that the father had spit in his face during a bike ride. And the weekend following that, a dangerous incident on Highway 404 occurred.
I. The Highway Incident on October 6, 2023
[113] The mother was not prepared to allow the father to have his visit with the children on Thanksgiving weekend in 2023, having heard A.’s disclosure about being spat on. The mother required as preconditions to him seeing the children, that the father had to stop “badmouthing” her, stop “spitting on the children”, and stop “bringing her father around the kids”. These terms were later documented in the parties’ written communications.
[114] So on Friday, October 6, 2023, (i.e., the Friday of the Thanksgiving weekend), while she was at work, the mother sent Salah to pick the children up from school early at lunch, and keep them while the mother waited to hear if the father would agree to her terms. By 1 PM, the situation had escalated to the point that the father was following Salah and the children, as they drove south on Highway 404.
[115] According to Salah, the father followed him and the children onto the highway, and then sped in front of the car in which he and the children were driving. The father then applied the brakes in a dangerous fashion, causing them to have to pull over.
[116] This was followed soon thereafter by the involvement of the OPP. As this incident unfolded, the father had telephoned the police and told them that the children were being kidnapped. Although he first claimed not to know the identity of the driver, I find he knew full well that the children were with Salah. And I infer that he did not actually believe that the children were being kidnapped. He eventually admitted as much.
[117] The situation only de-escalated after the police spoke to the mother on the phone, with Salah and the children waiting in the car on the side of the highway. According to Salah’s account, when all was said and done, there were multiple police officers involved in this incident, but he was allowed to leave with the children. Salah said he saw the father arguing with the police as he and the children drove away.
J. The Trial Scheduling Conference Before Jarvis J. on October 17, 2023
[118] On October 10, 2023, seven days before the Trial Scheduling Conference, the matter came back before the Court early, on the father’s urgent motion to enforce the Final Order of MacPherson J. dated August 31, 2020. Himel J. put the matter over to Jarvis J., to determine what next steps would be put in place.
[119] On October 17, 2023, Jarvis J. held a partial Trial Scheduling Conference. While the Endorsement states that Jarvis J. reviewed the parties’ Trial Scheduling Endorsement Forms (the “TSEFs”) with them and circulated a revised version for discussion, after being made aware of the motion that came on before Himel J. on October 10, 2023 and the other recent, escalating events, and after learning that the mother now wished to change the parenting Order too, Jarvis J. changed his mind about the issues for this trial. He determined that the support trial would no longer proceed in isolation of the parenting dispute, especially since the father was now paying child support under the temporary Order, and as such there was less prejudice to the mother. Instead, Jarvis J. issued a number of procedural directions respecting the intended motions to change, he directed the Society to update the Court regarding its involvement with the family by letter, and he ordered the Society to otherwise release its file.
[120] Although it appears the mother was supposed to be the moving party in the new proceeding, the father launched his Motion to Change first, on October 18, 2023, the next day. Jarvis J. later made further procedural Orders on February 22, 2024, regarding the filing of the mother’s Response to Motion to Change, the scheduling of a DRO conference on March 6, 2024, the scheduling of a combined Settlement Conference and Trial Scheduling Conference on April 29, 2024, and regarding other related matters to get this matter trial ready.
[121] In his Endorsement of October 17, 2023, Jarvis J. admonished the parties to comply with existing Orders. He ordered that the parties were to communicate through Our Family Wizard or the Talking Parents App.
[122] According to her affidavit sworn May 9, 2024, the children have not missed a single weekend with the father since the visits resumed after the appearance before Jarvis J. on October 17, 2023. The mother tried to rehabilitate her prior breaches by agreeing further, that the father could have a full week with the children during the Christmas break, since the paternal grandparents were in town visiting. In so doing, the mother trusted the paternal grandmother to be a protective influence. But problems have continued to ensue.
[123] The father’s compliance and behaviour (before and after this appearance) is quite another matter. Later, I discuss the abusive messages that the father has sent to the mother throughout. And in regards to the expanded Christmas visit specifically, the mother asked the father to let her have twice daily phone calls with the children, since she had never been away from the children for that long. At first the father agreed. Then, he did not adhere to his agreement, attaching conditions to her ability to speak to the children that week.
K. The Final Trial Scheduling Conference Before Jarvis J. on April 29, 2024 and the Commencement of this Trial
[124] On April 29, 2024, Jarvis J. completed the TSEF with the parties, and placed the matter on the trial list. The matter was not reached during the spring 2024 sittings.
[125] There was then another 14B during the summer of 2024, to address additional trial directions. Although on July 18, 2024, Jarvis J. was prepared to grant the parties another attendance to address these issues, the request became moot as the trial commenced before me on August 20, 2024.
[126] This Court released a number of Endorsements during the trial relating to its conduct, which I need not summarize any further for the purposes of the analysis.
L. The Society’s File Closure
[127] The father was upset with the original child protection workers who had been involved in this matter. So he complained to the Child and Family Services Review Board. In his affidavit sworn May 9, 2024, the father says, with specific reference to his melatonin allegation, that “she changed her report and said it’s verified but not for long time, which is makes her reports not legit and not reliable”.
[128] It does not appear that the Child and Family Services Review Board ever adjudicated the father’s complaint. Rather, at a pre-hearing mediation or conference held on June 12, 2024, a deal was brokered and the father was given a “male worker”. According to a later letter from the Society dated July 30, 2024, sent to the parties soon before this trial started, the new male worker’s role was to review the file and undertake a reassessment of the child protection concerns, to determine whether the file needed to remain open.
[129] In the end, the Society decided to close its file with the new worker reaching conclusions, some of which appear to me to have been in conflict with other, relatively recent notations in the Society’s file.
PART IV: EVIDENTIARY ISSUES
[130] There are three preliminary evidentiary issues that came up during this trial, and which I address in this Judgment. The first two pertain to two lettered exhibits that the father sought to tender, the admissibility of which I indicated I would rule on in this Judgment. Exhibit A is a video that the father took of the mother, purporting to show her losing her temper towards the father. Exhibit B are bank statements upon which the father relies to argue that the mother depleted her bank account prior to the separation. This relates to his claim about the equalization payment.
[131] The father then created a third evidentiary issue, when he filed his written closing submissions. He made a number of statements that were not supported by the evidence called at this trial.
[132] Very little needs to be said about the disputed exhibits, or the father’s written closing submissions.
[133] In regards to Exhibit A, the Court adopts the analysis of Kurz J. in Van Ruyven v. Van Ruyven, 2021 ONSC 5963 in its entirety. Applying that decision to these facts, the father made the video in 2019, prior to the parties settling the parenting issues. The father admitted during this trial that the video was edited. The full version has never been supplied to the mother. It was surreptitiously made. And the mother asserted that the father used to gaslight her in the past, to get her upset. It was established that the father recorded the mother at other times, and those videos were not produced. This video is not an accurate reflection of events.
[134] Moreover, this particular edited and incomplete video (Ex. A) is both dated, and it is insufficiently probative of anything I must decide. The video is not admitted into evidence.
[135] In regards to Exhibit B, these bank statements also pre-date the property and support settlement. They were either already in the father’s possession, or they could have been obtained, prior to him signing the Minutes. Even were they to be admitted into evidence now, they would not impact the result. The father did not prove, by trying to tender these bank statements, that the mother improvidently depleted assets, by making withdrawals from her bank account in the years leading up to the separation. Family expenses were then being incurred. These bank statements are not admitted into evidence, either.
[136] In regard to the father’s written closing submissions, the father made reference to a number of facts that were either not proven at trial, or about which evidence was not called. Ms. Nielsen spent some time during her oral submissions, raising objections to numerous statements made therein. While I do not intend to rule on each and every one of her objections, I do not consider any statement of the father’s, that is not supported by properly adduced evidence.
PART V: PARENTING
A. Preliminary Issues
[137] There are also two preliminary issues regarding parenting. First, although the father’s Motion to Change and the mother’s Response to Motion to Change are framed as requests to vary the Final Order of MacPherson J. dated August 31, 2020, the relief sought in the motions, and the remedy that the Court intends to award, also implicates the subsequent Final Order of Jarvis J. dated March 3, 2023, that incorporated the further Minutes from the DRO appearance in December of 2022 into a Final Order of this Court. The Court’s order will either vary or incorporate aspects of both Orders into a single Order of this Court.
[138] Second, the issued Final Order of MacPherson J. dated August 31, 2020 is silent as to which piece of legislation it was made under. The issued Final Order of Jarvis J. dated March 3, 2023 incorrectly states that it was made under the Family Law Act. As both are parenting Orders, they could not have been made under the Family Law Act. Rather, they were either made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, or the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended.
[139] Since a divorce was claimed and later granted on March 13, 2023, I will apply the Divorce Act’s provisions to the parties’ parenting claims before the Court. Regardless, the result would be no different, if the Children’s Law Reform Act applied.
B. Application Legal Principles Concerning the Variation of a Final Parenting Order Made Under the Divorce Act
[140] A parenting order is defined in section 2(1) of the Divorce Act as an order made under section 16.1(1). Pursuant to section 16.1(1)(a), the Court may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by either or both spouses.[^8]
[141] However as two Final parenting Orders have already been made, section 17(1)(b) of the Divorce Act applies. It is the statutory authority for this Court to vary a parenting Order. Pursuant to section 17(5), before the Court varies a parenting Order, it must be satisfied that there has been a change in the circumstances of the child since the making of the order. This is a required threshold analysis before the Court can go on to consider the merits of the requests for new parenting Orders.
[142] Various, well-established principles govern a material change analysis: see Gordon v. Goertz, 1996 191 (S.C.C.); see L.M.P. v. L.S., 2001 SCC 64; see also Roloson v. Clyde, 2017 ONSC 3642. The approach is adapted somewhat when, as in this case, the previous Orders now sought to be varied, were made on consent.
[143] In particular, the Court must first be satisfied that there has been a change in circumstances since the making of the prior Order. The change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms. The focus is on the prior Order and the circumstances in which it was made.
[144] The change should represent a distinct departure from what the Court, or in the case of a consent Order, the parties could reasonably have anticipated. The Court may examine the consent Order to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation or not. The subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.
[145] Where the Court finds the material change threshold is met, the Court must embark upon a fresh inquiry into what is in the best interests of the children, having regard to all the relevant circumstances relating to the children’s needs and the ability of the respective parents to satisfy them. Any new, changed Order should also be proportionate, or limited to a variation that is justified by the changed circumstances.
C. The Material Changes in Circumstances
[146] In his Motion to Change, the father asserts that the fact that the mother works long hours and relies on others to care for the children when she is at work is a material change. He also says that at the time of the Final Order [of MacPherson J. dated August 31, 2020], he did not have a suitable residence. He relies on the fact that he now has a residence, coupled with the fact that the children are older, to seek to vary the governing Order(s). [^9]
[147] The mother by contrast, asserts that the extreme parental conflict, the father’s treatment of her, and the impact on the children, meet the threshold of change required.
[148] I do not accept that the mother’s work hours amount to a material change in circumstances. As I have already found, the mother was working hard at the time of the Final Order of MacPherson J. dated August 31, 2020, without much assistance from the father. The parties knew this at the time. They still agreed that the children would reside primarily with her.
[149] Following the separation, the father was content to agree to such a regime, when it suited his own needs. I also accept the mother’s evidence that he was inconsistent, and this made her job as the children’s primary parent, and her attempts to study and work, more challenging.
[150] Likewise, I have serious doubts that the father’s new residence amounts to a material change. Once again, the parties knew that the father did not have housing at the time they settled in 2020. They already contemplated, and in fact included, in both the Minutes of Settlement dated March 6, 2020, and in the Final Order of MacPherson J. dated August 31, 2020, two different regimes for both decision-making and parenting time, depending on whether the father remained in Ontario, or lived elsewhere. In other words, they contemplated that he might obtain a residence here, and then he did.
[151] Even if I am mistaken, and the fact that the father now has a residence (or for that matter, the fact that the father now has a residence, combined with the fact that the children are now 4 years older), are material changes in circumstances, it does not automatically follow that the Court will order some kind of shared parenting arrangement, on a week about schedule, when the Court undertakes the best interests analysis that it must undertake.
[152] By contrast, I accept the mother’s position. I agree that the subsequent, significant parental conflict, which includes the father’s severe mistreatment of her (which I am also finding amounts to family violence) is a material change. It has adversely impacted the children.
D. Applicable Legal Principles Concerning the Children’s Best Interests
[153] Having found the material changes in circumstances that the mother asserts to have been established, I turn now to the analysis of the parenting issues on the merits. Orders respecting both decision-making and parenting time have been claimed by both parents.
[154] Decision-making responsibility is defined in section 2(1) of the Divorce Act as the responsibility for making significant decisions about a child’s wellbeing, including in respect of health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
[155] Parenting time means the time that a child of the marriage spends in the care of a person referred to in section 16.1(1), whether or not the child is psychically with that person during the entire time.
[156] Pursuant to section 16.1(4) of the Divorce Act, the Court may allocate parenting time or decision-making responsibility in accordance with sections 16.2 and 16.3, it may order terms respecting communication, and it may provide for any other matter that the Court considers appropriate. The Court may also make an order for a definite or indefinite period of time or until a specified event occurs, and it may impose terms and conditions, in accordance with section 16.1(5). The parties’ arguments engage each of these statutory provisions.
[157] The Court’s only focus must be on the best interests of the children in question: see section 16(1) of the Divorce Act. This Court is to consider all factors related to the circumstances of the children when determining best interests. Section 16(2) requires that when considering the factors in section 16(3), the Court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being.
[158] Section 16(3) of the Divorce Act requires the Court to consider all factors related to the children. There is a non-exhaustive list of eleven criteria in the section.
[159] Finally, pursuant to section 16(5) of the Divorce Act, the Court is not to take into consideration the past conduct of any person unless the conduct is relevant to the exercise of parenting time or decision-making responsibility. A similar prohibition exists in a variation case: see section 17(6). In this case, the father’s allegations about the mother’s “values” and alleged immorality, are irrelevant considerations that are captured by these statutory prohibitions, in my view. But there have been a multitude of other allegations about past parental behaviour in this case, which I do find to be relevant to the exercise of parenting time or decision-making.
E. Applicable Legal Principles Concerning Joint Decision-Making Responsibility
[160] As set out already, the mother already has final decision-making responsibility, but there is a consultation process that is to be engaged first, before she makes final decisions. The mother’s proposed draft Order would effectively remove that process.
[161] By asking that “custody” be shared “50/50”, I treat the father’s request as one for joint decision-making responsibility, thus removing the mother’s authority to make final decisions in the event of a disagreement, after following the consultation process.
[162] The legal principles applicable to joint decision-making are well known: see Kaplanis v. Kaplanis, 2005 1625 (Ont. C.A.): see also Roloson v. Clyde, 2017 ONSC 3642 ¶ 59 in which Justice Chappel provides a helpful list of factors to consider. In particular, it is well-known that joint decision-making is generally only appropriate in cases where there is evidence of historical and appropriate communication between the parents. Just because one parent professes an inability to communicate does not preclude an order joint decision-making. Nor is the standard of perfection required.
[163] Where there is poor communication, joint decision-making should not be ordered in the hopes that two parents’ communication will improve. There must be some evidence before the Court that, despite their differences, the parents are able to communicate effectively with one another. In this case before me, there is no such evidence.
[164] Sometimes, a court might order some form of joint decision-making, even in the face of parental conflict, where such an order is considered necessary to preserve the balance of power between the parents. This is particularly in cases where both parties are caring and competent parents, but where one party has been primarily responsible for the conflict. In this case before me, the father has been primarily responsible for the conflict, not the mother in whose primary care the children are, and who is empowered to make final decisions. This is not a situation where there needs to be some form of shared decision-making, to preserve the father’s ability to participate in the lives of the children.
[165] In short, joint decision-making of any kind has not, and will not work in this case. As I explain below, these parents’ abilities to communicate and co-operate is non-existent. Here, there has been some problematic behaviour on the part of the mother, but it has to be considered alongside and in context of the very problematic behaviour on the part of the father. Overall, the Court is concerned that any form of joint decision-making going forward is likely to inflame the parents’ conflict and expose the children to it. And that very much militates against such an Order: see S.S. v. S.K., 2013 ONCJ 432 ¶ 43.
[166] As such, the Court finds it must choose between one of the parents to decide. In this case, for the reasons that follow, the Court chooses the mother. That choice includes eliminating the consultation provisions that were put in place, in the March 6, 2020 Minutes and in the Final Order of MacPherson J. dated August 31, 2020, for the sake of the mother’s, and consequently the children’s emotional well-being.
F. Analysis Respecting the Children’s Best Interests
(1) The Children’s Needs and the Status Quo
[167] In regard to the factors in sections 16(3)(a) and (d) of the Divorce Act, there is no question that the parties agreed that the mother would be the children’s primary parent. That reality continues to be the situation to this day.
[168] Going forward, at a most basic level, these children need to have healthy relationships with their parents. They need to not be exposed to parental conflict. And they need not to hear others, like the father or the maternal grandparents, disparage their mother in vile and disgusting terms, which causes them stress.
[169] On the one hand, the Court in no way condones the mother breaching the Final Order of MacPherson J. dated August 31, 2020, by having withheld the children from the father for six visits during the summer and during the fall of 2023. The Court also finds that the mother contributed to the specific conflicts on July 21, 2023, by not responding to the father’s request for additional time the day before, and on October 6, 2023, by sending Salah to pick the children up early, pending confirmation from the father of her conditions for the Thanksgiving visit to occur.
[170] But I am equally not oblivious to the fact, that her improper actions, were undertaken in a certain context.
[171] The mother was exasperated. After years of abuse, this is how she felt it was best to respond. The mother felt the children were at harm. After all, there had already been a verification of physical discipline and emotional harm by the Society, and in the case of the October 2023 withholding leading to the highway incident, she had just been told that the father spat on A. So while on both occasions, the mother’s actions were not the proper way to have handled things, they caused a great and very inappropriate over-reaction by the father. His reaction on October 6, 2023 was particularly irresponsible; in fact it was outright dangerous.
[172] Somewhat ironically, the father has alleged, but did not prove, that the mother has engaged in parental alienation. At the same time, he himself has been engaging in a pattern of behaviour that is alienating in nature. While this has impacted the mother’s relationship with the children, and with A. in particular, he has just not succeeded yet in fracturing that relationship entirely. The Court needs to intervene, to put a stop to this, and to make sure that he does not succeed.
[173] Therefore, despite the Court’s disapproval of the mother’s triggering behaviour on July 20, 2023 and again on October 6, 2023, I nevertheless find in general, that the children are well cared for by her. I do not accept the father’s various accusations, that the mother has neglected the children, to go out “partying” or to pursue her new relationship. I find that she has made the children a priority. At the risk of repeating myself again, this included working hard, to ensure that the children’s financial needs were met, while not receiving adequate child support from the father.
(2) Family Violence
[174] Section 16(3)(j) of the Divorce Act provides that family violence and its impact on, among other things, the ability and willingness of any person who engaged in the violence to care for and meet the needs of the children, and the appropriateness of making an order that would require persons to cooperate on issues affecting the children, are factors related to the children’s circumstances in the best interests’ analysis.
[175] Family violence has always been relevant in the assessment of children’s best interests. It is now defined in section 2(1) of the Divorce Act. The definition is broad. It means any conduct, whether criminal or not, 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 the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct. The definition then includes a non-exhaustive list of nine kinds of behaviour that constitute family violence. The Court is not precluded from finding that other conduct fits within its meaning, too: see ¶ 27 of McLellan v. Birbilis, 2021 ONSC 7084. In this case, there is other conduct; there has been bullying behaviour over text message and the Talking Parents App, and the recruitment of the paternal grandparents to insult and harass the mother.
[176] In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court discussed that family violence can be difficult to prove. While that is very much so, in this case, a number of the examples outlined elsewhere in this Judgment, were patent, and not at all difficult to prove. A number of the father’s acts of family violence can be seen right in the father’s own written communications to the mother. In addition, he admitted to family violence, not even realizing that he had done so.
[177] So while the remainder of the evidence that I address next, is also relevant to the other best interests factors in section 16(3) of the Divorce Act, and to past conduct that is not prohibited by sections 16(5) and 17(6), the vast majority of that evidence also falls under the rubric of the Divorce Act’s family violence provisions. I intend to focus my analysis of the evidence under the rubric of the family violence provisions, as they are clearly one of the most prevalent features in this case.
[178] I find there have been a number of troubling patterns of behaviour by the father. They include his use of physical discipline on the children (hitting and pushing them, as verified by the Society). They include his disparaging the mother, including to the children. They include him involving other family members, to engage in his bad behaviour with him. In summary, the father’s communications with the mother, his comments to the children, and his recruitment of the paternal grandparents, amounts to both harassment, and psychological abuse, towards both the mother, and the children.
[179] The mother has also made out a case that the father has engaged in coercive control. I adopt and will apply, without needing to repeat it, Chappel J.’s definition of coercive and controlling behaviour, that is at ¶ 183 of M.A.B. v. M.G.C., 2022 ONSC 7207. The father’s approach to child support in this case, is a further example of his financial control.
[180] Even his own, written closing submission, reveals the financial element of his coercive control. In the very last paragraph, the father says, “I file Motion to Change on October 2023, to end this blackmailing by [the mother] about child support, and to do it the right way so both of us can live in peace and raise the kids in a healthy lovely environment”. The father was unable to explain to this Court during closing submissions, exactly how the mother has “blackmailed” him (apart from her request for child support in and of itself).
(3) The Father’s Verbal and Written Abuse of the Mother and His Denigration of Her to the Children
[181] The mother deposed in her affidavits tendered for this trial (and she testified about it as well), that the father has harassed her by text message and later in the Talking Parents App. She claimed he said things to her, like that she ruined the family, or that he hurled various sexually explicit expletives towards her.
[182] The mother testified that the father has harassed her by phone too, until she blocked him. For instance, the mother established during this trial, that he called her 23 times over the course of 11 hours, between December 29 and 30, 2022. The father admitted to this, but tried to justify his behaviour, because he was upset about the melatonin incident and the mother would not answer his calls.
[183] The mother testified that once she took steps to complete the divorce (which I separately note very much activated the child support dispute), and continuing after she re-partnered, things got worse. This exacerbation of the father’s mistreatment of her, was not just in respect of the way he communicates with her. She also said that the father has engaged in retaliatory behaviour, such as by not allowing the children to take her phone calls, when they were with him.
[184] I completely accept the mother’s evidence about the treatment to which she has been subjected by this father, and I consider that as part of the context that led to her actions on July 20, 2023, and on October 6, 2023.
[185] In particular:
(a) I completely accept what the mother has said in her affidavit sworn October 31, 2023, that the father’s written communications to her are abusive on the one hand, while he has also pleaded to get back together with her on the other hand, sometimes at the same time; and
(b) I completely accept that which she deposed in her affidavit of October 31, 2023, that the father has regularly denigrated her in front of the children, such as during parenting exchanges. I also completely accept that the father has denigrated her directly to the children, too. Examples include that the father has told the children to “get in the mother fucker’s car” during an exchange, and he said to the mother, in front of the children, that if she wanted money from him, she would have to “suck it for him”. Additional examples of his direct comments or actions to the children, although not necessarily during exchanges, have included him telling R., falsely, that he was born after a botched abortion, that the attempted abortion caused his hearing disability, and that he otherwise discussed the goings on in this litigation, with the children.
[186] I do not just rely on the mother’s say so. I will come back to both of these latter examples, with reference to the disclosure obtained from the Society. And the father’s own written materials presented at this trial, and his in-court testimony (while often irrelevant), very much revealed his attitude towards this mother.
[187] For example, in his affidavits of November 8, 2023 and May 9, 2024, the father alleged that the mother was charged with theft when working in a retail store in the past. Even if this were true (the mother denied it by the way), this pre-dated the Minutes of Settlement and is irrelevant past conduct within the meaning of sections 16(5) and 17(6) of the Divorce Act. The father nevertheless repeated this allegation in the affidavit of the maternal grandfather sworn May 8, 2024, that he obtained. Similarly, the father alleged that the mother called the police after she ran “with all gold and cash money” from her first husband, behaviour he says he repeated with her.
[188] Another example, is that the father has said that the children are now “confused” about their “values, culture, religion and faith, since [the mother] has “unmoral behaviour” without any concerns about the religion or culture”. The father repeated such statements further, when expressing his disdain for the mother’s new relationship. He said that “the whole thing is about values”, “religion”, and “faith and belief”. He went on to say that he did not know Salah, or that he was “good for kids”. He then testified that Salah comes from a “divorced family”, and that he wanted to “copy his scenario with my scenario”. There was certainly no evidence that the father tried to have a civil meeting with Salah, to get to know him, and to demonstrate to the children that the adults can get along in their interests.
[189] Further examples include that the father has alleged that the mother is a “bad mother” on numerous occasions. In the evidence he himself adduced at this trial specifically, the father claimed that the children had to get themselves ready for school alone and buy their own lunches. As said before, he criticized the mother for not having put the children in any sports program before 2023. He gave these examples of the mother’s “bad mothering”, even though he abdicated his own responsibilities after the separation, and without regard to his own, repeated and egregious behaviour in not paying child support. During closing submissions, the accused the mother of sending the children on visits, without underwear.
[190] The grandfather’s affidavit of May 8, 2024, which again the father obtained, makes more scurrilous allegations of poor mothering, such as when he asserts that the children started to wear glasses, because of the mother. According to him, she left the children for “long time using iPad” and this is the cause of their vision problems. Apparently, while the children have been wearing glasses for three years, the mother was “busy with her friends and parties all the time”. The father tried to then make similar, unproven arguments, during closing submissions. Neither the grandfather, (nor the father), are credible, or qualified to draw this conclusion (about the reason why the children needed glasses). The mother also took the children to get their eyes checked.
[191] As if his written material weren’t bad enough, in cross-examination, the father shockingly admitted to:
(a) having called the mother a prostitute. When asked about this further, he said “what do you expect” and “it is from her side too”;
(b) sending the mother text messages about her allegedly “banging men”;
(c) calling her “selfish”;
(d) calling her a “sex toy”, to which suggestion he responded that the mother had “cheated” on him;
(e) calling her “evil”, to which he responded that she wants child support, and why is she asking now, when she did not ask before?;
(f) calling her a “junkie”, which he said meant that she “used people”, and acted with a “fake personality”;
(g) referring to the mother as his “wife” in 2023, because they were not “islamically divorced”. He said there is “no grey” and “this is our religion”;[^10] and
(h) monitoring the mother’s whereabouts, because “she is using the kids and lying”. For instance the father claimed that the mother was telling the children that she was working, but really she want’s working.[^11]
[192] The father’s own written statements, that he authored to the mother, which otherwise confirm these sentiments, attitudes and beliefs, take his abusive mistreatment of the mother, to a whole other level.
[193] The parties initially communicated with each other in writing by text messages (and by phone until the mother blocked the father). The parties now communicate with the Talking Parents App. In August and September of 2023, the father was still objecting to using this App. On September 1, 2023, he wrote to the mother (and argued) that he did not “see the need” to use the App to communicate about the children. He went on to say that he wanted to keep the communication to a minimum, and that the mother should “unblock” him, and “stop over acting”. He then concluded his written communication to her with an insult, saying “Trust me talking to you or seeing you make me sick”.
[194] A number of the parties’ written communications were tendered at this trial, but they were voluminous. As such, the parties tendered charts identifying those which they wished the Court to review.
[195] I do not intend to summarize each and every one of these communications. Suffice it to say that the parties’ dynamic is unhealthy, and the mother’s description of the father’s mistreatment of her, was further borne out in these additional pieces of the evidence, as well.
[196] For instance, in the text messages:
(a) On November 30, 2022, over the course of the first three pages of text messages that were filed (Ex 19), the mother asks the father to stop texting her, and expresses that she is scared. Throughout this exchange, the father talks about the mother going out to “get fucked” and he calls her a “liar”. He called the mother a “bitch”, too;
(b) On December 7, 2022, the father accused the mother of having left the children with him on her days off to go “fuck around”. He also told her that he would “take the kids away”, that she was not a “good mother”, that she was “blackmailing them” and that “Court is coming to save them” (referring to the children, I think);
(c) On December 23, 2022, the father accused the mother of “doing all this to get money and then go fuck around”. He went on to call her a “liar” (again) and accused her of “fucking having sex on the bed that [he] bought”;
(d) On January 8, 2023, the mother sent the father a message that the children wanted to talk to him. The father’s response, was that the mother was an “evil person”, “selfish all you think about is money”, “you are sick with money, you got divorced first time because you have money problems” and “I helped you and I supposed you with everything… but you are bad from inside.. hard to change”. When the mother “beg[ged]” the father to stop acting this way, the father responded “you are an evil mother”. Five days later when the mother sent a text message about wanting to speak to the children, the father responded “you are sick woman. I don’t want to hear your voice please stop”;
(e) On January 15, 2023, the father sarcastically responded to the mother’s claim that she was at work, saying “you have a special shift I guess coming from New York (referring to Salah, I think). You’re next level evil. Send me list what kids need for school this week.”;
(f) On February 12, 2023 the mother told the father that he was paying insufficient child support. The father responded “Give me 50/50 then it’s fair. I asked you to give me more time. You’re dad said it.. you are a money person and you did all this for money”. The father went on to complain about the financial settlement in the Minutes, claiming, as he has otherwise done throughout this proceeding, that the $160,000.00 amount was for child support;
(g) On April 26, 2023, after arguing about money, the father called the mother a “sadist”, a “fucking phyco path” and told her that “Islamically” she was still his wife. When the mother asked to speak to the children two days later on the telephone, the father responded “Fuck off”, and then he accused her of performing “prostitution front of the kids”. He also told her that he had “recorded” her; and
(h) The father attacked the mother again on May 21, 2023, calling her a “bitch/whore” in Arabic, a “junkie” and an “asshole” after the mother asked to speak to the children. This followed the birthday party incident and A.’s trip to the hospital. The children were still in the father’s care. I gather the mother was just trying to check in on the children’s well being.
[197] In the Talking Parents communications:
(a) Beginning on October 2, 2023, the mother wrote to the father about an upcoming visit, in particular because Z. was sick. While this was during the time that the mother had withheld the children from a number of visits, the father’s response was inappropriate and conflictual. On October 3, 2023, he told the mother that she obtained the first “CAS report by forcing kids to tell your shit story… you are sadist, and you are not a good mother. You are pretending taking care of them because you’re afraid”. The parties went on to argue about the involvement of the grandfather during the father’s parenting time;
(b) Between October 12, 2023 and October 14, 2023, the parties argued about what happened on the highway, on October 6, 2023. This particular exchange does not reflect well on either side in different respects. For instance, the mother accused the father of being a stalker, which did not help.[^12] But she also admonished the father that he had behaved dangerously, and she expressed her upset, about the fact that he called the police. She talked about the emotional impact on the children. The father responded and called the mother ‘stupid and crazy”, a “pathetic loser”, “psycho”;
(c) It was during this exchange, that the mother told the father in writing, that he had to agree to “no bad mouthing”, “no visiting [her] family”, and “no hitting or spitting”. The father denied that these things had happened, or that they would happen. And the argument between the two then continued, with the father telling the mother that he would go to the police again, and to the court if the mother doesn’t “stop this blackmailing”. The mother later told the father again, that he had to promise the children not to do the above three things;
(d) The father referred me to an exchange between the parties on February 28, 2024, wherein he asked to share the March Break. This particular reference does not help his case. The mother quickly responded with a proposal to split the week. She suggested his visit end at noon on a particular day. He then responded, and argued with her saying that the visit should end at 8 PM. This exchange then deteriorated into an argument. The mother asked to be able to telephone the children, and then the father said no. Eventually the parties agreed, but there was no need for this kind of back and forth;[^13] and
(e) The father also referred the Court to his other exchange with the mother of February 28, 2024, about A.’s therapy, referred to elsewhere in this Judgment. This exchange reflects poorly on him too, and reflects a lack of insight into his child’s needs. There, he said he was opposed to A. receiving the therapy that the mother had obtained for A.
[198] In summary, while there are some communications from the mother that reflect poorly on her, the vast majority of these are disgusting and vile attacks on the mother. There are also insults and references to the fact that the mother has a new partner. And sprinkled throughout some of the written communications, especially the earlier ones, are the father’s requests to reconcile, proximate in time to his attacks on her, as the mother maintained.
(4) The Father Involved the Maternal Grandfather Into this Dispute
[199] In her affidavit sworn October 31, 2023, the mother said that her parents initially supported her, after the separation from the father. However they have now turned against her, when she started dating her new partner. She says they do not approve of his background, which is different from their own. Consequently, the mother no longer enjoys a relationship with her parents, but the father now does.
[200] The mother went on to explain in that affidavit of October 31, 2023, that the father began inviting her parents to his parenting time. With the paternal grandfather sometimes present at these visits, the father and the grandfather have been discussing and undermining her often, to the children.
[201] The mother’s characterization of this particular family dynamic was very much common ground at this trial. For instance, it was not disputed that after she moved out of the grandparents’ home in 2020, into a home of her own, the grandparents continued to help her parent the children. But in or about October or November of 2022, the grandparents told the mother that they would no longer help her. According to the mother, the grandfather began to tell her to return to her relationship with the father, because he can “control you better than we can”.
[202] In her affidavit of May 9, 2024, the mother explained a particularly disturbing past event, caused by the father and the grandparents, with the children front and center. This particular day, she was at work. It was a Sunday. The children were with the father. But the mother was not going to finish work on time. So she asked the father to keep the children longer, until she finished work.
[203] The father, who has complained repeatedly about not having enough time with the children, decided to act out against the mother. Without notice or warning, the father pulled up to the grandparents’ home and left the children there. The mother learned about this from her own father, who called her angry, and told her to “come get your children”, saying “we are never watching them again”.
[204] In response, the mother begged her father to keep the children until the end of her shift. When she arrived, the children were outside the front door, as her parents yelled at her. She and the children were told that they were no longer welcome in the home. The grandparents slammed the door, and locked it. This had been done by the father and the grandparents, without any apparent regard for the impact on the three children, who had been thrust into the center of this.
[205] The father himself is very much aware, and has exploited this rupture between the grandparents and the mother, seemingly over the fact that they disapprove of her new partner, and because of his monetary dispute with the mother. In one of the three affidavits he swore on February 27, 2023, the father said that in December 2022 the grandmother cried to him that she had “lost control over [the mother]”. He said that the grandfather called him and apologized for “what they have done to [him]”, telling him that he is a “good man, but we had to stand with our daughter, finally they realized that she was lying on ever one including me”.
[206] The grandfather’s own affidavit sworn May 8, 2024, and his in court testimony too, for that matter, further corroborates the mother’s account of these difficult family dynamics, the grandparents’ mistreatment of her, and the father’s involvement in that. For instance, the grandfather himself testified that he told the mother that she divorced because she has “emotional issues” and that she was not able to make a decision. The grandfather said that after the mother left the home, he “never contacted her again”. Although the mother later sent her father a text and asked for “forgiveness” for some reason, the grandfather admitted that he did not respond to her attempted olive branch. She also asked him to please see the children through her, but he didn’t respond to that either, and he has continued to see the children through the father.
[207] In cross-examination, the grandfather testified that he was not surprised that the mother was not “islamically married”, and called her a “liar”. The grandfather otherwise said that “[the mother] made lies to convince us to get divorced from [the father], as I saw and I see now [the father] supported [the mother] with every thing, he paid for her first and second education, pushed her to drive and make driver license”. These are the same kind of statements that the father made to the Court, when talking about what he did for the mother during the marriage.
[208] The grandfather even claimed that the mother took the $160,000.00 that the father had paid her pursuant to the Minutes, and spent $20,000.00 of it during the first 5 months, on “brand names” like “Gucci”. The grandfather also said that the mother went to parties in the evenings, reviving again this narrative of the bad and neglectful mother.
[209] The grandmother, who was not called to testify, behaves no better than the grandfather. For example, she has come over to the mother’s house and screamed and yelled, in earshot of the children. She left the mother a note that referred to the mother a “bitch/whore” (in Arabic), and a “big liar”.
[210] Then, on Tuesday evening, August 20, 2024 (the evening after the first day of this trial ended), the mother received a voicemail message from the maternal grandmother. The voicemail message was played in Court. Although the message was left in Arabic, it was interpreted into English by an interpreter. During her message, the grandmother told the mother “Allah will destroy the floor beneath you” and “you will lose everything”. She went on to tell the mother “I want to bite you I want to cut you in pieces if I saw you I will cut you in pieces. She again called the mother a liar, and said she would “get punishment from Allah”. She also told the mother that she “lost everything because [she] disobeyed [her] parents”. This is the message that the father said had nothing to do with him, but I suspect this message too, had something to do with the violation of the witness exclusion order.
[211] In conclusion, I fully accept the mother’s description, in her earlier affidavit of October 10, 2023, that there are a great deal of “family and cultural issues at play in this case”. I accept her view, that her family feels that she has brought “shame upon them”, by ending her relationship with the father. I accept that they are acting out against her like this, because they disapprove of her new relationship. I also find that the father has contributed to getting the grandparents to turn against their daughter.
[212] In addition to the fact that the grandfather violated the witness exclusion order, I find his evidence is otherwise completely tainted by this. I find he is not credible. I find that the mother’s request that the children not be exposed to these people to be reasonable, unless through her, and under her own watch. I also find that father choosing to insert the grandparents into his dispute against the mother to be another example of his coercive and controlling behaviour.
(5) The Involvement of the Police
[213] The police have been called by both sides on numerous occasions. Police occurrence reports have been put before the Court. While the police reports detail what each has reported to the police about a number of the incidents otherwise described in this Judgment, they add little more to the analysis than what is otherwise elsewhere set out herein.
(6) The Society’s Involvement and Conclusions
[214] The mother initially intended to call child protection worker Amanda Spicker to testify at this trial, but Ms. Spicker is on a medical leave of absence. The father does not agree that Ms. Spicker would be a reliable witness in any event, given his complaint about her to the Child and Family Services Review Board.
[215] In the end, the parties agreed to rely on the case notes of the Society. Like respecting their written communications, the parties tendered even more voluminous records documenting the Society’s involvement with this family. But similarly, the parties each tendered charts of the specific notes and records that they wished the Court to review, and upon which they wished to rely.
[216] Once again, I do not intend to repeat everything to which the parties have referred the Court. Suffice it to say, the Society’s notes and records reveal more examples of the father’s family violence. I will however address the father’s initial complaint about the melatonin use, the Society’s finding that the father engaged in physical discipline, the Society’s concern about emotional harm, and the impact of all this upon the children.
[217] First, regarding the narrow issue of whether the mother actually administered melatonin, she readily admitted that she did, to both the Society and to the Court. Whether that was inappropriate, I do not know. At this trial, the mother testified that she administered melatonin on her doctor’s advice. No medical evidence was called. The father testified that the mother having done this is against a Health Canada directive, which I was also not given. But in any event, to the extent that this should or should not have been administered, about which I have no actual medical evidence, the mother is no longer giving the children melatonin. The issue is now resolved.
[218] More tellingly, the grandfather was involved in making this allegation. He was the one who supplied this information to the father in the first place, that the father then used to make the complaint. And while the father’s initial complaint to the Society was supposedly about the mother’s parenting skills, what came out of that first contact, were concerns about the father’s conduct, his treatment of the mother, and treatment of the children.
[219] Second, in regard to the physical discipline specifically, the twins disclosed to the Society, that the father had hit them in the past, when he was angry. Although the father has denied this and claims alienation, the Society found the children to have been credible in their disclosure. I accept that the father has used physical discipline (hitting and pushing). This is more context to explain why the mother acted the way she did, in the summer of 2023 and before Thanksgiving of 2023. Whether the father spit on A. just before Thanksgiving, I need not find. But I accept that this was reported to the mother, and she was afraid for the children’s safety.
[220] Third, in regard to the Society’s concern about post separation conflict and emotional harm upon the children, that concern included the fact that the father was discussing the mother, “adult issues” and this litigation with the children. His inappropriate conversations with the children included his discussion of the mother’s alleged abortion and its alleged impact on R.’s health. I have no hesitation finding that the father did these things on a balance of probabilities. The evidence is overwhelming.
[221] In regards to the abortion allegation specifically, I find that the father said these things to the children for a number of reasons. First, there is reference in the Society’s notes, to the children having been made aware of this, by the father. While the father has argued that the mother put the children up to this, or that they instead heard this from the mother and not him, I do not believe his theories. What is very notable in resolving this factual dispute about the source of this information to the children, is that the father himself had previously told the Court that the abortion occurred, and that the harm to R. happened as a result, all caused by the mother (although he tried to distance himself from this during cross-examination). As such, he either believes this to be true, or he lied to the Court in his sworn documents
[222] In particular, at paragraph 11 of one of his three February 27, 2023 affidavits, the father said that he “couldn’t figure out why” R. was born with a disability, and at the time [of his birth] he was “trusting her [meaning the mother’s] word”. But it was then put to the father in cross-examination, that the mother had not had an abortion, but rather she had a miscarriage in 2014. The father was asked whether he nevertheless believed the mother had an abortion, to which he responded, “I can’t say”, “I’m not a doctor” and “I wasn’t there”. And it was then that the father claimed, that he had not told the children about the abortion, but the children had overheard the mother accusing him of saying this.
[223] Ms. Nielsen then used the father’s own words in her cross-examination. At paragraph 10 of his earlier affidavit sworn June 6, 2022, the father very much said otherwise. There, he deposed that the mother “abused [him] emotionally, financially and physically since [he] came to Canada 2012 as she abused the kids and threatening me by using the kids while I was away in Alberta for work, she has done first abortion in 2014 and she tried again with R. resulting in his Deaf”. And when this was put to him, the father tried to deflect, now saying he was unsure how this is related to anything, referring it to the past.
[224] Why this is relevant, is because if a parent said such a thing to young children, and to R. in particular, then as far as I am concerned, it is psychological abuse. Such a statement can serve one purpose and one purpose only; it is designed to portray the mother in a bad and harm inducing light, and it is designed to damage the children’s relationship with the mother. It is also very hurtful to the child himself, who has the disability.
[225] And I have no hesitation in finding that the father did this. I do not even need to rely on children’s hearsay, although there are statements of such kind from the children in the Society’s file. In my view, in light of the father’s sworn statements and Ms. Nielsen’s cross-examination on this point, it is no stretch to conclude that he did in fact say such a thing to the children, and they in turn repeated this to the Society.
[226] But where the Court finds the Society’s notes and records to be the even more telling, is what they reveal about the impact of the parent’s conflict on the children.
(7) The Impact on the Children
[227] First of all, the mother has been impacted by the conflict. She has been subjected to the father’s abuse, and she lost her family support. It is in the children’s best interests that they have an emotionally healthy mother (their primary parent), not a mother who is being constantly victimized by the father and her parents.
[228] Second, the mother says the children have been very much impacted by all this, directly, especially after the father first involved the Society about the melatonin incident. Once again, the mother’s account to the Court is supported by the objective evidence in the Society’s files.
[229] In this regard, according to the mother’s affidavit of October 31, 2023, which evidence I also accept, A. in particular began having trouble in school after the father called the Society. In addition, the mother testified that after the melatonin complaint, A. looked at her with fear. She said that A. became extremely anxious, almost untrusting of her. She testified about one time that he reacted with fear, because he had a fever, and she tried to give him Tylenol. I find the father was behind instilling this fear in the children, that bad things might happen if the mother, who is a trained nurse, administers medication.
[230] The mother observed that A. began wetting the bed at home. He told her that he was getting “nervous and freezing”. The father himself reported that A. was wetting of the bed to the Society. This is reflected in their notes. The fact that A. began bedwetting is therefore common ground.
[231] There are a number of other case notes in the Society’s file, that document the children’s struggles throughout 2023. For instance, in a case note of October 11, 2023, there were reports of A. having nightmares, of waking up screaming, and of R. getting into fights at school.
(8) The Father’s Complaint to the Child and Family Services Review Board
[232] The Court is not fully aware about the substance of the father’s complaint to the Child and Family Services Review Board, nor why the deal to change workers was brokered at the pre-hearing conference before this tribunal. What the Court knows about this, mostly emanates from the Society’s subsequent file closing letter dated July 30, 2024.
[233] First, the closing letter does explain that there was the deal for a “male worker” to now be assigned, to review the situation, and to determine what should happen next. The closing letter explains the end result of this review process, was that the Society would be closing its file, less than 1 month before this trial.
[234] The reason for the file closure is because the children by this point, did not apparently provide “any information about any current protection concerns related to their care or treatment with either parent”. This conclusion was written even though less than a year earlier, the previous workers had verified two kinds of harm and determined that the children were in need of protection. Notably, this Court has now found the father engaged in several forms of significant family violence. And I am aware of almost no evidence, that the father had taken the necessary steps to address the Society’s previous concerns, that are now current and pressing concerns of the Court’s.
[235] Now the closing letter nevertheless did caution the parents, about the need to insulate the children from their “adult issues”. But such a caution had already undoubtedly been issued before. And while according to a case note of July 10, 2024, A. reported that the father was not talking about the mother any longer, just five days earlier on July 5, 2024, A. reported his fear that the father would be upset for telling the Society how he felt.
[236] Notably, there were also two reports to the contrary, as recently as during a visit to the father’s home on April 26, 2024. In regard to A., he expressed a concern about the manner in which the grandfather treated their mother. The father would later show no insight into this, and argue with the worker at a meeting on July 5, 2024, that the boys should only be concerned about how the grandfather treated the boys, not their mother.
[237] In regard to Z., he reported on April 26, 2024, that the father tells the boys what to say when the Society visits. Apparently the children had been instructed to say “everything is fine”, but Z. went on to express concern for his mother nonetheless.
[238] The letter also cautioned the parents not to discuss the proceeding going on in Court, as they had also been previously so cautioned, and which the father had been previously found to be doing. And while the Society would be closing its file, once again there was documentation that the father was also still doing this, relatively recently. For instance, when Ms. Spicker last interviewed on December 19, 2023, just about 7 months earlier, there was another such disclosure. And it was not just Ms. Spicker who documented this. At that visit at the father’s home on April 26, 2024 with the new worker, Z. said that the father was not “explicitly talking about their mother any more”, but he nevertheless said that the father did still ask them questions, and raised topics relating to this proceeding. Z. said he wanted to talk about fun stuff, but the father continued to bring up “adult issues”. Z. felt he would have a better relationship with his father, if the father talked about fun things. A. made a similar statement.
[239] Although it would now be closing its file, the Society’s closing letter indicated that the children reported still feeling “uneasy/nervous” about sharing their feelings with the father. This was also evident in the note from April 26, 2024, but now, this was not viewed to be a “child protection concern” any longer. Both boys said the father did not listen to their feelings.
[240] Finally, the closing letter recommended that the “parents refrain from all forms of physical discipline and to commit to using age-appropriate disciplinary strategies such as withholding privileges and talking out the problem in a calm manner”. After having previously verified the father’s use of physical discipline, it is not clear to me what if anything was done, to better educate the father about this.
[241] It is tempting for the Court to question the wisdom of having assigned a new worker to this file, but the Court was not a party to the mediation at the Child and Family Services Review Board, and what is done, is done. I will say that it is far too easy for an obstreperous litigant to launch complaints about professionals involved in the family justice system, when they are dissatisfied with the decisions that they make. This can very much have a chilling effect. And in this case, the father’s complaint seemed to this Court, to include an unfair complaint about a gender bias, against Ms. Spicker.
[242] It doesn’t go unnoticed by this Court, that throughout this trial, the father also made a number of complaints about Ms. Nielsen’s past conduct, too. Because he has called her competency and integrity into question, the Court wishes to indicate that it found Ms. Nielsen to be a superbly organized and effective advocate for her client. The Court found no evidence whatsoever that Ms. Nielsen behaved in any fashion, other than a professional one. She also very much assisted this Court with her organization and presentation, for which the Court is grateful.
G. Conclusions Respecting Family Violence and the Children’s Best Interests
[243] As a number of findings have now been made that the father engaged in family violence, section 16(4) directs the Court, when considering the impact of that family violence under section 16(3)(j), to consider a further list of factors. Those include the nature, seriousness and frequency of the violence and when it occurred, whether there was a pattern of coercive and controlling behaviour in relation to a family member, whether the violence was directed towards the child or whether the child was exposed, safety concerns, any preventative steps taken and “any other relevant factor”.
[244] In conclusion I find that:
(a) The family violence was serious and repetitive. The father has repeatedly engaged in his written and verbal attacks towards the mother since the separation;
(b) The father has engaged in coercive and controlling behaviour;
(c) The children have been exposed, both directly and indirectly, to the father’s mistreatment of the mother;
(d) The father recruited the paternal grandparents into the mix; and
(e) The children were the direct targets of the father’s physical discipline. The Court accepts the Society’s earlier verification of this.
H. The Remedial Options that Are in the Children’s Best Interests
(1) The Remedy Respecting Decision-Making
[245] I return to section 16(j)(ii) of the Divorce Act, which specifically directs me to consider the impact of family violence on the appropriateness of making an order that would require person in respect of whom the order would apply to cooperate on issues affecting the children. In my view, the analysis, findings and conclusions about family violence (and the other best interests factors) that I have just engaged in, very much reinforce the earlier conclusion that I made, that any form of joint decision-making, including if even just the requirement for the mother to consult with the father, is not appropriate.
[246] As such, there shall be an Order that the mother shall have final sole decision-making responsibility. The requirement to consult shall be eliminated. Additional terms related to her decision-making responsibility, parental communication, and conduct, will be set out below.
(2) The Remedy Respecting Parenting Time
[247] Pursuant to section 16(6) of the Divorce Act, in allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. How this provision is to be interpreted, was recently addressed by the Supreme Court in Barendregt v. Grebliunas, 2022 SCC 22 ¶ 133-135. Section 16(6) does not contain a presumption in favour of shared parenting arrangements, equal parenting time, or even regular access. Rather, the principle is only significant to the extent that it is in the children’s best interests; it does not detract from the best interests inquiry.
[248] So here, I turn to section 16(4)(g) of the Divorce Act. Even where the Court finds there has been family violence, if the person who has engaged in the family violence takes steps to prevent further family violence from occurring, and to improve their ability to care for and meet the needs of the child, that may be a positive or mitigating factor when it comes to ordering a remedy.
[249] Regrettably, I did not find the Society’s recommendations in closing the file to be particularly helpful when it comes to this factor. The most recent set of recommendations seem to have been written in general terms, with some disconnect to what has been transpiring. For instance, telling a parent who has been disparaging the other parent, and involving the children in that, to not do it again, when that parent had been repeatedly behaving like that, and probably had been previously so warned, is no solution.
[250] Quite apart from the disturbing attitude that he has displayed over time, the father did not even try to change his attitude during this trial. In some respects, he doubled down.
[251] I found more helpful the work of the earlier child welfare workers. For instance, according to the letter of Amanda Spicker dated August 11, 2023, the Society recommended that the parents engage in a program called One Family, Two Homes. And while Ms. Spicker further wrote that neither parent was to use physical discipline, similarly to what is in the closing letter, she also recommended that the parties should participate in a parenting program, like Triple P.
[252] The mother followed through immediately. Perhaps before this letter was even released, the mother indicated to the Society that she was trying to find services for A. She did in fact arrange for A. to obtain therapy, in about September of 2023. And what did the father do? He complained and objected.
[253] Beforehand, when the mother told the father that she was attending family therapy, he responded to her in writing, that he “did not think it’s a good idea”. In a later exchange between the parties over the Talking Parents App on February 28, 2024 about A.’s therapy in particular, the father told the mother to “stop sending A. to therapy”, saying that only the mother needed therapy, and to “stay away from them sick woman”. Needless to say, he has not contributed towards his share of the cost of A.’s therapy, yet.
[254] The mother also signed up for the One Family, Two Homes program that Ms. Spicker recommended. Upon completing the intake, she was redirected to the “Here to Help” program. The mother explained this was a program for mothers and children who had experienced abuse. During this trial, she testified how the program benefitted her and the children, and the improvements that she experienced.
[255] By contrast, the father did not follow Ms. Spicker’s recommendations. Now he did say that he took an online course about high conflict divorce. When I asked him specifically what he learned from it, his answer was “to keep the kids away from everything”, to take his time, not to react right away, and to walk away. While he told me these things, the lessons that he professed to have learned do not appear to have sunk in.
[256] The father otherwise claimed that he could not afford to register for the One Family, Two Homes program. But the Society responded to him, and said that he could pay just $10.00. Although he was then agreeable to doing this course apparently, and he even consented to being ordered to do so at the trial, the bottom line is that the father only signed up on September 3, 2024, after this trial was almost complete.
[257] I conclude the father lacked insight into his behaviour. His own solutions to ending the parental conflict reveal this. He told this Court that once it makes a new Order, there “won’t be anymore of this kind of thing”. But there are already two Final parenting Orders in place, the second of which is specifically directed at parental behaviour. And what did the father do after signing the Minutes upon which that second Order was based? He tried to resile. Then months later, he argued with the mother about using the Talking Parents App.
[258] Why should the Court take any solace in his statement that all will be better, once a new Order is made? Did the father really mean, that all will be better once the Court makes a new Order giving him what he wants (i.e., shared parenting and the financial remedy that he wants)?
[259] The mother proposes that the father should be ordered to go to the Brayden “Nurturing Parenting Program”. I have considered this and intend to order a modified version of her request.
[260] According to the brochure that the mother tendered, the Brayden Nurturing Parenting Program is based on research studies and it is designed for parents who have been identified as abusive and neglectful of school aged children. It is described as a “family-based program that assists parents to gain knowledge and direct skills in meeting their child’s emotional, physical, and developmental needs. The program’s orientation and strategies can be especially effective during the challenging time of separation and divorce.” The program uses an assessment tool to assess a parent’s skills, and involves one-on-one lessons, practice, and debriefing after the visit.
[261] In short, this program provides for supervised parenting time, with coaching and teaching. In order to enroll in this program, an intake needs to be completed. The intake fee is $350.00 plus HST and it is non-refundable. Visits cost $75.00 per hour, and there is a 3 hour minimum visit. If there is cooperation in the intake process, visits can begin as soon as in 5 to 7 days.
[262] There is some precedent for this Court ordering a parent to participate in this program. For example, Shore J. did it, in Alam v. Ahmed, 2019 ONSC 5028.
[263] But I do not intend to order the precise proposal that the mother made. The Court is not bound by either side’s positions (even consent positions), where it is of the view that they are not consistent with the children’s best interests: see A.M. v. C.H., 2019 ONCA 764 ¶ 29; see also Richardson v. Richardson, 2019 ONCA 983 ¶ 25-31. I find the mother’s proposal needs to be modified for a few reasons.
[264] The mother’s proposal only provides for supervised parenting time for the next little while. On the one hand, it is my view that the father needs to seriously change his attitude and in many respects, it is not up to the Court or the mother to teach him how to change his ways. As such, I seriously considered just ordering supervised parenting time, with or without the Brayden program, at all. However supervised parenting time is not normally a long-term solution. And for example, while the Brayden program is a supervised parenting program, I do note that in the Alam v. Ahmed case, the father there had never had any unsupervised parenting time, ever. He also admitted to being unable to care for the parties’ three children together, who had special needs. Those are not the facts of the case before me. While I do not intend to say that someone who currently has unsupervised parenting time cannot be ordered into supervision, the fact remains that father has had unsupervised parenting time for quite some time. And I did not have any evidence about how fully supervised visits would impact the children, for example I did not hear their views and preferences.
[265] So I then alternatively considered the mother’s second proposal, that she could have the discretion to cancel the father’s parenting time if he acts out. But that is not a proposal that the Court finds particularly attractive. The mother already tried this (unilaterally), to disastrous results. I have further concerns about the mother’s ability to control the father’s anger and outbursts. She should not be put in the position of trying to manage him any longer, especially in view of the family violence.
[266] In the end, I find there should be a hybrid approach of a few things. First, the father needs to complete the program that the Society recommended. Second, the father’s parenting time will not be fully supervised, but it will be curtailed, and there will be oversight of it, to try to limit the damage he can continue to do. In order for his time to be expanded again, he must complete the Brayden program, and participate in individual counselling. The onus will be on the father. There should not need to be another round of litigation once the father completes this programming and therapy. I will set out his parenting time in two phases, Phase One occurring before and during the programming and therapy, and Phase Two to kick in if he completes it and learns.
[267] So if the father decides to work hard to change his attitude, then his visits will expand as set out below, but not to the schedule that is currently in place. I do not find it appropriate for the father to have every weekend with the children. The intended, ultimate Phase Two Order, will ensure that the mother gets to enjoy weekend time with the children too, so that they can experience their new family unit with her, and with her partner.
[268] But I take the opportunity to caution the father, that if he does not immediately change his attitude and his mistreatment of the mother, and if there is any more harmful behaviour on this part, he runs the risk that the next time the parties are back in Court, he will be ordered into supervised parenting time on a longer-term basis. Non-compliance with the Court’s new Order shall amount to a material change.
(3) Parenting Time Exchanges
[269] In the past, both parties have agreed to have parenting exchanges occur in public locations. But these too have not been without incident.
[270] In addition to the mother’s evidence that the father was inconsistent, I heard evidence about a power struggle between the two parents over an exchange location. Last summer, a completely unnecessary back and forth went on between the parents about whether a particular exchange would take place at the Magna Center (which the mother wanted, based on what she said had been the practice for several weeks), or at the parking lot of the mall in Newmarket, outside of the Bay that the father wanted to reinstate (from which he said the mother had changed that location to the Magna Center in the first place).
[271] The parties’ ridiculous argument about this went on for several pages of their written communications. The mother finally capitulated, and met the father at the Bay, at 7 30 PM, several hours after the exchange was supposed to have taken place. The father won this power struggle. During closing submissions, when I asked him why he didn’t just go to the Magna Center, he debated with me. He basically maintained that it was unfair for the mother to just get her way.
[272] To remedy this kind of thing, I considered ordering exchanges at school, but I am not persuaded that the father’s alternating weekend time should be as long as from Friday to Monday, in either Phase One or Phase Two, to enable this to happen.
[273] Therefore, where it is not possible to use the school, the exchanges shall take place in a location of the mother’s choosing, which in this case means the Magna Center.
(4) Travel
[274] According to her affidavit sworn October 31, 2023, in June of 2023, the mother asked the father for his consent to take the children to Florida, during their summer break. The mother testified that her plan was to travel with the children, and Salah, to Jacksonville, to visit Salah’s mother, who lives there. Unsurprisingly, the father would not consent.
[275] The mother testified that the father offered various excuses, such as again calling her an unfit mother, and referring to the birthday party, at which A. had been sick. The mother testified that at one point, the father said that the mother could travel, if she entered into a settlement with him about child support, or if she agreed to give him money.
[276] On June 6, 2023, the mother sent the father an email confirming their discussion, that she had asked to travel, and that the father would only agree if she waived child support. Incredibly, the father responded to this, basically corroborating what the mother would later testify to during this trial. In his written response, the father alleged again, that the lump sum he paid was in lieu of child support. He went on to say that he did not trust the mother to travel with the children. He said to her that she was “not a good mother and you will never be”. He accused her of “using the kids to make money and to destroy [him] financially”. He also threatened to report her to the “norsing (sic.) association” for “drugging the kids with sleeping supplements”. Notably, all of this was in response to a simple request, to take the children on a road trip to Florida, during which trip she planned to take the children to Legoland.
[277] The mother then testified that the father later agreed she could travel. But this was reported to her by the children, who said that the father wanted to take them on a trip to Cuba.
[278] And although an earlier occasion respecting the mother’s travel did not also include the children’s travel, there was unnecessary controversy about this too. In advance of a certain weekend in November of 2022, the mother asked the father to look after the children. She wanted to go to New York with Salah for the weekend, but she was afraid of telling this to the father. She also did not want her parents to find out. So she did this secretly, and omitted to disclose her intended whereabouts, when asking the father to take the children.
[279] The father ended up caring for the children, and the mother ended up going away, but only for part of the weekend. She felt guilty for having kept her whereabouts a secret that weekend. She testified that this was the first time she had ever done something like this. She was so overcome with guilt and worry, that she came home early.
[280] During cross-examination, the father repeated his same complaint. He confronted the mother about the fact that she was not “Islamically married” when she went on this trip. He claimed to this Court, that this line of questioning was relevant to the “values” of the children, even though this was a trip that the children either were, or should have been unaware of. The fact that the mother had to cover up her whereabouts and then felt guilty about it is likely a symptom of the abuse that she has endured.
[281] The above written exchanges about the children’s travel, and the father’s inappropriate questions of the mother about her values consequent upon her desire to go on a weekend trip to New York with her partner, which so many other couples routinely do, are yet further examples of the father’s volatile nature, rigidity and abuse. This evidence too, very much illustrates why the mother will never be able to deal with the father, if he is given any power.
[282] The Court intends to award the mother the order she seeks respecting travel, namely to be able to travel with the children, without the father’s consent, so she can take them to places like a theme park in the United States, if she wishes. It needs to be made clear to all concerned, that she is under no obligation to get the father’s permission, if she in the future wants to travel out of Ontario with Salah, or with someone else, or all alone, with or without the children.
(5) Additional Findings Supporting the Remedies Being Ordered
[283] There is an additional factor, which segues into the financial issues that I deal with next, but which I first take into account here, in reaching these conclusions, about the parenting Orders that I find are in the children’s best interests.
[284] The father’s repeated objections to paying child support go to the very question of a parent’s ability and willingness to act in the best interest of the children. A parent cannot ignore the financial needs of the children and then ask a court to accept that they are capable of acting in the best interest of the children: see Cooley v. Cooley, 2024 ONSC 1133 ¶ 16.
[285] The mother’s pursuit of child support has clearly irritated the father. It underlies a great deal of the parental conflict.
[286] The history of this case has caused this Court very much to question whether the father’s pursuit of increased parenting time, wasn’t just another angle by which he was seeking to not pay, or to reduce his child support obligations.
PART VI: THE FATHER’S REQUEST TO SET ASIDE THE MINUTES OF SETTLEMENT AND THE CONSENT ORDER DATED AUGUST 31, 2020
[287] Although the father has not properly pleaded this, I am treating his challenge to the property and spousal support terms in the Minutes of Settlement and the Final Order, as a claim to set them aside.
[288] These claims are being dismissed for three reasons.
[289] First, I find the parties knew full well what they were agreeing to. A number of clauses in the Minutes, that confirm equalization and spousal support were finally resolved, are patent and clear.
[290] For example, the preamble to the Minutes, clearly states that the parties were settling “all issues of parenting, spousal support and property from the breakdown of their marriage on a final basis”.
[291] It is paragraph 21 of the Minutes specifically, that required the father to pay to the mother a lump of $160,000.00 from the sale proceeds of the matrimonial home (which was owned solely by him), with the balance of the net proceeds in the approximate amount of $53,309.18, plus accrued interest, going to him. Paragraph 21 clearly states that this payment represents a “final equalization and lump sum spousal support payment”. Paragraphs 22 and 23 go on to contain spousal support and property releases, effective upon payment of the aforementioned sum.
[292] Furthermore, in addition to the fact that the Minutes, and later MacPherson J.’s Order, say absolutely nothing about child support (and as such there is no basis to somehow treat the $160,000.00 amount as child support), the Court notes again, that parties had exchanged income disclosure, some documents about their assets and liabilities, and there were competing net ramily property statements exchanged. The Minutes themselves say four times across the preamble and three other paragraphs, that property and spousal support are finally resolved, not child support.
[293] Second, the father himself testified during his examination-in-chief, that there was some negotiation respecting the terms of the Minutes. For instance, he says that the negotiations started with a request for $180,000.00, but the parties landed at $160,000.00. Depending on whose Net Family Property statement prevailed,[^14] the mother, who was then without much by way of an income, received mostly property. Spousal support under this settlement would have been as little as $11,407.54 based on her calculation (i.e., $160,000.00 - $148,592.46), or $47,277.05, based on the father’s calculation (i.e., $160,000.00 - $112,722.95). Either way, the father obtained a spousal support release. This benefitted him.
[294] The father was ill advised to proceed with his challenge to the Minutes as some kind of defense against the pending child support claim. He risked opening up a real ‘can or worms’, for example had the Court been inclined to set the Minutes aside and recalculate the mother’s property and spousal support entitlements. According to her affidavit for this trial sworn May 9, 2024, the mother’s 2018 income was just $8,342.00. She was working on a part-time basis at Seneca college then, and she would continue to be the children’s primary parent under the Minutes. The father’s 2018 income was much higher. The father may have found himself facing a far more significant spousal support award.
[295] Third, the father has otherwise not proven any of the other grounds to set aside domestic contract, or a Consent Order, such as for example those available to him under section 56(4) of the Family Law Act.
[296] Consequently, I agree with the mother, that the father’s claim for a “fair division” of property, is res judicata. I find that child support has not been adjudicated. It remains a live outstanding issue from the mother’s original Application.
PART VII: CHILD SUPPORT
A. Applicable Legal Principles Concerning Retroactive Child Support and Section 7 Expenses
[297] As such, the Court’s jurisdiction to make a child support order and an order for section 7 expenses is contained in section 15.1 of the Divorce Act, and in the Guidelines, including section 7.
[298] The mother’s claim in her Application for child support and section 7 expenses is retroactive to the date of separation. Most of her claim, but for about 7 months between the date of separation on June 17, 2019, and the February 6, 2020 date of her Application, post-dates that formal notice given by her pleading.
[299] At ¶ 21-23 of MacKinnon v. MacKinnon, 2005 13191 (Ont. C.A.), the Ontario Court of Appeal held that post-application support is not retroactive support that usually requires a more robust retroactivity analysis. Rather, absent any unusual reason, where a person requests financial disclosure in preparation for the negotiation or litigation of a support claim and then proceeds reasonably to the disposition of the claim, she is entitled to prospective support from the date of notice that a claim is being pursued.
[300] But in Kerr v. Baranow, 2011 SCC 10, although writing about spousal support and not child support, Cromwell J. may have taken a different approach to this question. At ¶ 206, he wrote that he preferred “not to venture into the semantics of the word “retroactive”, but he nevertheless relied on relevant factors that “come into play where support is sought in relation to a period predating the Order”, just as Bastarache J. did when considering prior child support in D.B.S. v. S.R.G., 2006 SCC 37. Out of an abundance of caution, I will consider all of the mother’s claim for child support, not just the portion of which pre-dates the date of formal notice, through this lens.
[301] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court held that there is a presumption in favour of ordering retroactive child support to the date of effective notice, up to three years before formal notice. While here, I do not know precisely when effective notice was given, I do know that it was given soon after the separation. Earlier, I discussed that negotiations were underway no later than September 2019, when disclosure first started to be exchanged. I infer that the father was aware of the obligation to support the children almost immediately after the separation.
[302] At ¶ 114 of Colucci v. Colucci, 2021 SCC 24, the Supreme Court summarized the principles that apply when a recipient parent asks under section 17 of the Divorce Act to retroactively increase child support. As this is an original application and not a variation under section 17, I need not address the material change in circumstances threshold for the purposes of the mother’s child support claim, but the other factors cited by the Supreme Court remain. For example, the Court otherwise went on to hold that “the D.B.S. factors continue to guide [the exercise] of discretion, as described in Michel”.
[303] At ¶ 29 of Michel v. Graydon, 2020 SCC 24, the Court reiterated that D.B.S. v. S.R.G. requires the Court to consider the recipient parent’s delay, the payor parent’s conduct, the children’s circumstances, and whether any hardship would result from a retroactive award: see also D.B.S. v. S.R.G. ¶ 133.
[304] The same factors apply respecting the mother’s retroactive claims for section 7 expenses: see Simone v. Van Nuys, 2021 ONCJ 652 ¶ 148; see also Selig v. Smith, 2008 NSCA 54 ¶ 25, 26.
B. Analysis Concerning Retroactivity
[305] I find the mother is entitled to child support and section 7 expenses to the date of separation for a number of reasons.
[306] First, almost immediately after the separation, there were lawyers involved. The mother pursued the issue after the separation without delay.
[307] Second, regarding the negotiations resulting in the Minutes of Settlement dated March 6, 2020, the mother testified that the father pressured her during them. She also felt the children were under stress. She said he would not settle, if she was going to pursue child support. Notably, she had bought a townhouse for her and the children, in the same neighborhood so they could continue to go to the same school. While the mother felt that the father had not disclosed all of his assets at the time, she agreed to settle just equalization and spousal support.
[308] By contrast, in his affidavit sworn February 27, 2023, the father says that the mother agreed in the “separation agreement” not to ask for child support. The Minutes do not say this. He says that she was in contact with her lawyer, and although he asked her to document this, Ms. Nielsen refused. He now asserts this was some sort of plan or “trick”, to leave the Minutes silent regarding child support, so she could make the claim later. For the numerous reasons I have already articulated, I do not accept this version of events. And the fact remains, that by not settling child support, the mother was perfectly entitled to continue to pursue the claim, not ‘later on’ as a fresh or newly constituted claim, but rather an existing claim that was already pending.
[309] The maternal grandfather claims that his daughter agreed to take the $160,000.00 in the Minutes towards child support, too. Likewise, he accuses Ms. Nielsen of having advised her to do so, as some kind of “trick”, so the mother could just claim child support later. But the father’s intention, according to the grandfather, was to “give [the mother] money then bring the family together.” Put into the context of his subsequent, problematic conduct, this reveals an ulterior motive on the part of the father, not on the part of the mother.
[310] In regard to this statement about what Ms. Nielsen allegedly advised, quite apart from the fact that the grandfather appears to be trying to discuss alleged conversations between the mother and her lawyer, which would be protected by solicitor-client privilege (the inadmissibility of which I ruled on during this trial), I do not find that Ms. Nielsen did anything untoward. In any event, given the extent to which he (and the grandmother) have very clearly turned against his daughter for her alleged “lifestyle” choices, I do not trust as credible or accurate what I am being told by the grandfather about child support, either. He has an axe to grind. And even if what the grandfather said was true and accurate, that is not a defense for the father to the child support claim.
[311] Third, I find that the father engaged in blameworthy conduct. In particular:
(a) The mother wanted child support throughout, but the father would not agree. The father has a history of bullying the mother. She agreed to the Minutes that were silent as to child support, but she did not settle the claim;
(b) While the father wasn’t working temporarily in 2020, when the Minutes were signed, in 2020 as a whole, he earned income and had the capacity to pay child support;
(c) Himel J. made the father aware of the obligation to pay child support, when the mother attempted to proceed with the divorce;
(d) The mother made repeated requests for child support;
(e) Jarvis J. once again made the father aware of his obligation to pay child support on March 3, 2023, yet the father still proceeded to argue about child support, up to this trial;
(f) The father has taken legally untenable positions (i.e., that the monetary amounts in the Minutes of Settlement, despite their clear wording, were actually for child support, and that Jarvis J.’s temporary Order of March 3, 2023, is somehow binding on this Court);
(g) Even when there was finally a temporary Order put in place, the father’s alleged 2022 income upon which that Order was based, was understated and the father did not adjust it;
(h) The father filed a number of sworn financial statements, which were incomplete and misleading. He did not always disclose all of the sources of his income;
(i) For instance, on his Financial Statement sworn June 7, 2022, the father said he was employed at Lakeridge Hospital and currently earned $48,000.00, even though he has worked for PipeTel/Intero since February of 2019. As it turned out, that year, his Line 150 income exceeded $99,000.00. He would have known that his 2022 income was more than the amount upon which Jarvis J. based child support, when he made the temporary Order on March 3, 2023;
(j) On his Financial Statement sworn October 24, 2023, the father did the same thing, now in the reverse. This time, he said that he was employed by Intero only, and earned $60,923.00, but he did not report his other employment. And once again, his Line 150 income for 2023 was $81,614.00, over $20,000.00 higher than what he had said on the October 24, 2023 statement;
(k) On his Financial Statement sworn March 3, 2024, this time the father disclosed two jobs, but said his current income would be $68,880.00. While perhaps consistent with the employment letter from Intero dated May 14, 2024 that he tendered at this trial, that letter does not fully reveal all the sources of his income;
(l) The father then quit his second job in July of 2024, about one month before this trial;
(m) Throughout the entire period post-separation, the father didn’t pay what he ought to have paid. Instead, he very much contributed to this case spiraling into a high conflict parenting dispute;
(n) Rather than contributing to the cost of A.’s therapy, which the father was made aware of, and which A. clearly required, the father first expressed negative views about family therapy, and then in February of 2024, he demanded that the mother de-register A. from individual therapy; and
(o) As already indicated, the father himself even said that he launched him Motion to Change to stop the mother from “blackmailing him” regarding child support.
[312] Fourth, the children (and the mother) have experienced hardship. In particular, the mother was left after the separation to be the children’s primary parent, while she worked multiple jobs and studied to retrain. She relied on her parents for help, until they turned against her. She testified that she has not been able to afford much in terms of activities. She had to sell her care. She wasn’t able to save. She now has debt, and she owes legal fees. The father has also acknowledged the mother’s hardship, indirectly, through his criticisms of her about the activities and the clothing.
[313] Fifth, in regard to whether the father will experience hardship from a retroactive award, the Court should also be concerned about how a retroactive award might disturb the certainty that the father, as the child support payor, otherwise had respecting his legal obligations and the organization of his financial affairs. But this is not a heavy factor in this case. Everyone involved knew that child support was in issue here. This was reiterated by at least two judges during the prior proceedings. It can hardly be said that the father enjoyed any degree of certainty, pending the resolution of child support.
[314] Furthermore, the father himself was prepared to work multiple jobs when it suited his own financial interest. I do not find his explanation to be credible, that he only worked a second job to qualify for a mortgage, given that he continued in the second job for two years, until he quit it just before the start of this trial. I suspect, given his work history, that the father either will, or can, resume additional paid employment after this trial is over.
[315] Finally, any hardship to the father can be mitigated by ordering the award be paid over time. During closing submissions I asked the father to make submissions about this; he declined to do so at first. He eventually proposed $500.00 per month. Based on the quantum being ordered, at that rate it would take him over 16 years to pay the arrears. That is not reasonable.
[316] The mother’s counsel proposed that the child support be paid off in three years, based on an apparent FRO policy. In the absence of a contrary, reasonable submission, I considered this alternative. But even though the father created this situation by not paying what he ought to have paid when it was due, I am concerned that the monthly amount corresponding to a three year repayment, will be too high on the father’s income, even when he resumes a second job.
[317] I asked the father whether he could refinance his home, but he said he could not based on current interest rates. Whether or not this is true versus whether his answer reflected an unwillingness to do so, I do not know. He should look into it.
[318] As a reasonable mid point compromise, I am prepared to order the arrears be repaid at a rate of $1,000.00, which should result in the arrears being paid off at a time that R. is reaching adulthood. I am also prepared to delay the start date for the arrears, provided the father complies with the parenting terms. The Court is mindful that the programming and therapy that it is ordering, comes with a cost, and the Court does not wish to erect a financial barrier to the father completing the programming.
C. The Father’s Incomes Between 2019 and Present
[319] The father’s income tax returns and notices of assessment for 2019 to 2023 were filed in the mother’s Exhibit Book, as was his 2018 assessment. In addition, I directed the father to bring his T4s during this trial, so that I could have a clearer understanding of what jobs he held when.
[320] The father earned T4 income from Pipetel in all years between 2019 and 2023. This includes 2020, the year that the Minutes were signed, although I note that his tax return for 2020 also includes Employment Insurance, likely consistent with the other evidence I heard about his temporary unemployment around the time the Minutes of Settlement were signed..
[321] In 2020, the father also had additional jobs with a security company, Addeco Services, and with IS2 Workforce Solutions. He withdrew funds from an RRSP.
[322] In 2021, the father had additional employment with Magna Closures Inc. (Dortec), Cam-Slide, and Lakeridge Health.
[323] In 2022, the father had additional employment with Lakeridge Health and Humber River Health.
[324] In 2023, the father continued to have additional employment with Humber River Health. This continued into 2024 too, until he quit in July of 2024.
[325] At ¶ 63 of her affidavit for trial sworn May 9, 2024, the mother has set out the chart of incomes between 2019 and 2020. However her corresponding child support calculations use prior years’ incomes (for instance the 2019 calculations use 2018 income). I intend to use the actual incomes that the father earned in a given calendar year to calculate child support for that year. The incomes are otherwise accurately set out.
[326] The mother wishes to impute additional amounts to the father’s income in various years for rent that he collected relating to renting out a room in his home. Although it is agree that the father no longer does this because he remarried, the mother says that the father rented out a room in his house in the past. The mother tendered various listings that she found on the internet of room rentals in the area, and asks that the Court add to the father’s income between $700.00 and $800.00 per month for two years, between May of 2022 and June of 2024.
[327] During the trial the father denied renting out a room, but said he had friends stay there from time to time for free. He is now married to his new spouse. He also had his parents visit him for several months during the two year time frame argued for by the mother, so he argues that there would have been no space for a renter.
[328] I do not know where the truth lies here. The source of the information about the room rental rests on children’s hearsay. And I am not confident about the reliability (or thoroughness) of the internet print outs that the mother produced.
[329] Therefore, I decline to draw an adverse inference against the father. I will not impute any further income to him. Notably, in so doing, the father’s child support is already going to be based on him having multiple jobs. And in basing the father’s going forward child support on his 2023 tax return, that was a year that he had two jobs, as well.
D. The Quantification of Table Child Support
[330] Before crediting the father for the amounts he already paid directly to the mother, or through the FRO after Jarvis J.’s March 3, 2023 temporary Order (see below), I first find the father’s gross table child support obligation for the period between July 1, 2019 to October 1, 2024, was $114,378.00. The Court’s table child support calculations, are set out in the chart, here.
| Year | Income | Table Amount (Monthly) | Child Support (Annual) |
|---|---|---|---|
| 2019 | $57,821.00 | $1,144.00 | $6,864.00 (6 months only – July to December 2019) |
| 2020 | $104,210.00 | $1,986.00 | $23,832.00 |
| 2021 | $112,266.00 (net of Schedule III Adjustments) | $2,113.00 | $25,356.00 |
| 2022 | $99,154.57 (net of Schedule III Adjustments) | $1,907.00 | $22,884.00 |
| 2023 | $81,473.00 (net of Schedule III Adjustments) | $1,611.00 | $19,332.00 |
| 2024 (based on 2023) | $81,473.00 (net of Schedule III Adjustments) | $1,611.00 | $16,110.00 (10 months only – January to October, 2024) |
| TOTAL: | $114,378.00 |
E. The Quantification of Section 7 Expenses
[331] Regarding section 7 expenses, the mother only has receipts for child care expenses, after subsidy, of $622.44 in 2021, and child care expenses, after subsidy, of $2,520.00 in 2023. She incurred therapy expenses for A. of $1,200.00 in 2023, in addition.
[332] The mother’s income was $54,802.00 in 2021 and it was $77,779.36 in 2023. The percentages for sharing these amounts are 67% (father) and 33% (mother) in 2021, and 51% (father) and 49% (mother) in 2023.
[333] Therefore, I find the father owes the mother an additional amount for section 7 expenses of $417.03 for 2021(i.e., 67% of $622,44), and $1,897.20 for 2023 (i.e., 51% of $2,520.00 +$1,200.00 = $1,897.20). The total is $2,314.23 (i.e., $417.03 + $1,897.20).
F. Credits for the Amounts Previously Paid
[334] According to her affidavit sworn May 9, 2024, the mother admits that prior to the temporary child support Order of March 3, 2023, the father gave her e-transfers totaling $4,250.00. There is also a chart in the mother’s affidavit that details the dates of the transfers and the amounts.
[335] The father asserted that he made an additional e-transfer that is not captured in the mother’s accounting. However the mother tendered a bank statement at trial, to demonstrate that she never received the deposit.
[336] The mother also recalled that the father once gave her a $100 gift card for the Superstore. In addition, the father would, once or twice per month, send the children home with some food. Typically, she said it was a box with open food items in it from their weekend, for example an open package of croissants or an open cereal box.
[337] The father claims to have given the mother cash in addition to the e-transfers. Once again the grandfather was involved in giving evidence about this. In his affidavit, the grandfather claimed to have observed the father give the mother “money as support every weekend when he drop the kids off”. He said that amounted to $200 for “almost 3 years” plus groceries and clothes.
[338] The mother denies having ever received any cash from the father. Again, the father’s, and the grandfather’s evidence on this point, is not credible. It is also unlikely that the grandfather was present every weekend to observe this. In any event, although the e-transfers only amount to $4,250.00, the mother is prepared to round the amount of the father’s payments, prior to the March 3, 2023 Order, to $5,000.00. I find that to be a fair concession.
[339] There was a delay before the temporary child support Order began to be paid through the FRO. The mother admits that she received $6,040.35 in direct payments from the father, between May 2, 2023 and October 2, 2023, but this is already captured on the FRO Statement of Arrears (Ex 56). On November 8, 2023, the FRO applied a credit to the father of $6,040.00.
[340] The other payments he made through the FRO amount to 10 payments of $1,035.00 plus an additional payment of $200.00 on August 13, 2024. This is $10,550.00.
[341] On the assumption that he paid the $1,035.00 monthly amount owing to the mother pursuant to Jarvis J.’s temporary Order of March 3, 2023 for September and October as well, I find that the father is entitled to a credit of $17,260.00 (i.e., $5,000.00 + $10,550.00 + ($1,035.00 x 2)). If I am mistaken about the payments for September and October (which would post-date the last entry on the FRO Statement of Arrears tendered at this trial), an adjustment may be sought when the parties make costs submissions.
G. Conclusions Respecting Child Support and Section 7 Expenses
[342] In conclusion, I find the father owes the mother retroactive child support and section 7 expenses, for the period July 1, 2019 to October 1, 2024, of $99,432.23 (i.e., table child support $114,378.00 + section 7 expenses of $2,314.23, less credits of $17,260.00).
[343] The father may pay off the arrears at the rate of $1,000.00 per month, which will take about 9 years, or when R. turns 18. However I will delay the start date because of the programming and therapy. And if the father otherwise misses an arrears payment once the repayment schedule beings, then the full amount then owing will become fully due and payable.
[344] In addition, the father shall continue to pay child support in the amount of $1,611.00 per month commencing November 1, 2024, based on his 2023 income, and he shall pay 51% of section 7 expenses. I am ordering child support based on this level of income aware of the fact that the father quit his second job. To the extent that in 2024, the father’s income ends up being less than what he earned in 2023, the differential is being imputed to him.
PART VIII: ORDER
[345] Based on the foregoing, I make the following Orders:
PARENTING TERMS PURSUANT TO THE DIVORCE ACT
(a) Paragraphs 1 to 20 of the Final Order of MacPherson J. dated August 31, 2020, and the entire Final Order of Jarvis J. dated March 3, 2023 (respecting parenting) are replaced with this Order;
Decision-Making Responsibility and Primary Residence
(b) The mother shall have final sole decision-making responsibility for all three children of the marriage. The draft Order to be issued shall include their full names and dates of birth;
(c) The children shall reside primarily with the mother;
Access to Information
(d) Both parents shall have access to information respecting the children. They are entitled to make requests for information from any service providers involved with the children, including teachers, doctors, other health care professionals, care providers and so on;
The Father’s Parenting Time: Phase One
(e) Commencing Saturday, October 19, 2024 and on alternating weekends thereafter, the father shall have parenting time with the children from 1:00 PM on Saturdays until 5:00 PM on Sundays;
Terms of the Father’s Parenting Time During Phase One
(f) The father shall enrol in the Brayden Nurturing Parent program. When the father enrolls in the program, he may have the children in addition to the times set out above, starting instead on Saturday at 10:00 AM, to allow him to have an additional 3 hours of time on his alternating weekends, to receive coaching, education and feedback about his parenting;
(g) The father shall enrol in individual therapy with a social worker or a psychologist, who is trained to provide therapy to parents after a divorce, and who is aware of the dynamics involved with family violence. In the therapist’s discretion, he or she may involve the children. The frequency of the therapy shall be as directed by the therapist;
(h) The parties shall agree upon the therapist, failing which the Court shall name one. If the parties cannot agree within 30 days, 14B Motions may be submitted to my attention from each of parties, with his or her proposed therapists, their curriculum vitae, and the cost;
(i) A copy of this Judgment shall be provided to the Brayden Nurturing Parent Program, and to the therapist that is eventually selected;
(j) The father shall sign consents for the release of information to the mother from these services, and between the Brayden Nurturing Parent Program and the therapist. If the father fails to sign consents, this term shall be sufficient authority for the release of information and documentation, including notes and records from one service provider to the other, and to the mother;
(k) On consent, the father shall also complete the One Family, Two Homes Program, recommended to him by Amanda Spicker from Children and Family Services for York Region;
(l) The father shall be solely responsible for the cost of these programs and of the therapy being ordered;
The Father’s Parenting Time: Phase Two
(m) When the father provides a certificate of completion and a report disclosing his successful completion of the Brayden Nurturing Parent Program, a certificate of completion from the One Family Two Homes Program, and a report from the therapist, that reveals that the father has attended therapy sessions for at least 6 months, and that he has gained some insight into his behaviours that have been identified in this Judgment, the father’s parenting time may expand as set out below;
(n) The father shall have parenting time on alternate weekends from Friday after school or at 3:30 PM if the children are not in school, until Sunday at 5:00 PM;
(o) The father shall also have parenting time with the children on Wednesday after school or at 3:30 PM until Thursday morning return to school, or 10:00 AM if the children are not in school;
Holiday Time that Applies During Phase Two
(p) The children are residing primarily with the mother during Phase One and the father’s parenting time is limited. No further orders respecting holidays are required;
(q) When Phase Two applies, the parties shall alternate the March Break, with the mother having the children in one year, and the father having the children in another year. The mother may have the first March Break after Phase Two begins;
(r) Each parent shall have the children for one uninterrupted week in July, and one uninterrupted week in August. The mother may choose her weeks first, by May 1, and the father may choose his weeks thereafter;
Parenting Time Exchanges that Apply During Both Phases
(s) Exchanges shall take place at the children’s school where the parenting time provided for in this Order starts after school, or ends upon the return to school (for example during Phase Two). The parent having the child for the upcoming period of time shall do the pick up at school, and the drop off to school where applicable;
(t) Where a child is not in school due to a school closure or due the illness of that child, and/or for so long as Phase One applies, the exchanges shall take place in the parking lot of the Magna Center. The parties shall remain in their car and shall not interact with each other, while the children transition from one car to the next;
Parental Communication and Parental Behaviour that Apply Immediately and During Both Phases
(u) If any of the children require emergency medical care while with one parent, that parent shall promptly notify the other of an emergency;
(v) Except in the event of a medical emergency, in which case the parties may communicate by text or by phone, the parties shall communicate with each other about the children only using the Talking Parents App, and only on the terms set out below;
(w) Except in the event of a medical emergency, the parties’ communication shall be restricted to once per week. They shall keep their communications with each other brief, civil and child focused;
(x) The purpose of the communication is to inform the other parent of any updates about the children;
(y) The father is specifically prohibited from denigrating the mother, using foul language or sexualized language, making accusations against the mother, criticizing her parenting, or discussing her personal life and any new relationship in which she might be involved, in these written communications;
(z) The parties shall respect each other and each other’s privacy;
(aa) Neither parent shall, by any act, omission, innuendo, comment or otherwise, interfere with, criticize, harass, or speak ill of the other, including the other’s parenting of the three children. Nor shall they do so respecting the other’s family, friends, employment, lifestyle choices or other decisions/actions. This clause does not prevent the mother from raising valid parenting issues about the father, in view of the Court’s findings and the other terms of this Order, that require him to participate in parenting programming and therapy;
(bb) Neither parent shall seek to influence others, or the children, against the other parent;
(cc) Neither parent shall expose any of the children to adult conflict;
(dd) Neither parent shall use physical discipline;
Restriction on Grandparents Having Contact With the Children
(ee) Neither the father, nor anyone on his behalf, shall permit the maternal grandparents to have direct or indirect, written, telephone, electronic or in person contact with any of the children. If the maternal grandparents wish to see the children, they must do so through the mother;
Police Enforcement
(ff) As previously agreed to in the Minutes of Settlement dated March 6, 2020 and contained in the previous Final Order of August 31, 2020, there shall be a police enforcement Order, but it only pertains to enforcement for the return of the children to the mother;
(gg) Any police force having jurisdiction in an area where the police may be, are directed to locate, apprehend and deliver the children to the mother for the purposes of enforcing this Order;
Material Change in Circumstances
(hh) The father’s failure to adhere to any of the terms of this Judgment shall constitute a material change in circumstances;
Children’s Documents and Travel
(ii) The mother shall be the custodian of the children’s documents;
(jj) The mother may apply for or renew any of the children’s government documentation, including passports, without the consent of the father, and without requiring his signature on any of the forms;
(kk) The mother may travel with the children for vacations out of Ontario and Canada, without requiring the consent of the father. There shall be no requirement for her to obtain a travel consent before departing;
(ll) The father is prohibited from removing the children from Ontario without the consent of the mother;
CHILD SUPPORT PURSUANT TO THE DIVORCE ACT AND THE FEDERAL CHILD SUPPORT GUIDELINES
(mm) In full and final satisfaction of retroactive child support and section 7 expenses, up to and including October 1, 2024, the father shall pay to the mother the sum of $99,432.23;
(nn) If the father has not made the payments required by the previous temporary Order of Jarvis J. dated March 3, 2023, for the months September 1, 2024 and October 1, 2024, this may be brought to my attention in the written costs submissions, and I will consider making an adjustment to the lump sum provided for above;
(oo) Provided that by December 1, 2024, the father enrols in and is participating regularly in the Brayden Nurturing Parenting Program, and provided that the identity of the therapist is resolved and therapy has begun, and it is occurring regularly, the father may repay the retroactive child support at the rate of $1,000.00 per month, commencing December 1, 2025. That means that there shall be no repayment required for the next year, while he is in programming;
(pp) If the father fails to enrol in the Brayden Nurturing Parenting Program or if he fails to commence therapy by the deadline imposed above, then a 14B Motion may be directed to my attention by the mother, to move forward the commencement date of the repayment schedule;
(qq) Once the repayment schedule begins, if the father misses any payment by more than 7 days, the arrears then owing shall become fully due and payable;
(rr) Commencing on November 1, 2024, the father shall pay child support for the three children in the amount of $1,611.00 per month. This is based on his 2023 income of $81,473.00, net of Schedule III adjustments;
(ss) Commencing on November 1, 2024, the father shall pay 51% of the children’s special or extraordinary expenses pursuant to section 7 of the Federal Child Support Guidelines. The mother’s 49% share is based on her 2023 Line 150 income of $77,779.36;
(tt) The parties shall exchange his and her complete income tax returns and Notices of Assessment annually by June 1, commencing June 1, 2025. In the father’s case, he shall also provide the mother with copies of all of his T4s or other Tslips that demonstrate the number of jobs he had and the income he earned from those jobs, and any employment insurance income;
(uu) If either party seeks to change child support in the future, until the retroactive support ordered herein is paid off in full, the father’s child support and his share of section 7 expenses shall be based on the greater of his Line 150 income, net of any Schedule III adjustments, or the sum of $81,473.00 that he earned in 2023;
(vv) The mother shall continue to claim all tax benefits and credits for the children, as previously agreed in the Minutes of Settlement dated March 6, 2020;
DISMISSAL OF OTHER CLAIMS
(ww) Except for costs, all other outstanding claims raised in the Application and the Answer, and in the Motion to Change and the Response to Motion to Change, not otherwise dealt with, are hereby dismissed. This specifically includes the father’s challenge to the Minutes of Settlement dated March 6, 2020, incorporated into the Final Order of MacPherson J. dated August 31, 2020, regarding equalization and spousal support;
COSTS PURSUANT TO THE COURTS OF JUSTICE ACT AND THE FAMILY LAW RULES
(xx) The mother may file written submissions on costs, limited to no more than 5 pages double spaced, plus a Bill of Costs and copies of any Offers to Settle, by November 5, 2024. The mother need not file any case law, but she may provide citations for case law in her written submissions. The written submissions may also address the adjustment to the amount of retroactive support, if payments towards the temporary child support Order were not made in full on September 1, 2024 and on October 1, 2024;
(yy) The father may file written submissions on costs (and the narrow temporary support issue), subject to the same restrictions on length and accompanying documents, by December 5, 2024; and
OTHER
(zz) The mother’s counsel may take out this Order without the father’s approval as to form and content.
Justice Alex Finlayson
Released: October 7, 2024
NEWMARKET COURT FILE NO.: FC-20-238-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
F.H.
Applicant mother
– and –
M.S.
Respondent father
REASONS FOR JUDGMENT
Justice Alex Finlayson
Released: October 7, 2024
[^1]: This Judgment contains sensitive information about family violence, which includes the father’s mistreatment of the mother and the children. I have anonymized the names of the parties and the children, to protect the mother and the children, who are vulnerable.
[^2]: While it is disputed whether the father earned rental income before, it is common ground that the father is not earning any as of June of 2024, since he re-married around this time.
[^3]: The parties referred to this gentleman during this trial as “Salah”.
[^4]: Salah says he travels to New York twice a month for a few days to a week at a time.
[^5]: The mother is only claiming child support from her 2019 date of separation.
[^6]: The father’s Net Family Property statement had the end line equalization payment calculation deleted. In other words, it calculated the parties’ net family property only, but someone deleted the final calculation that showed he owed an equalization payment. Nonetheless, the father’s Net Family Property statement says that his net family property was $247,098.95, whereas the mother’s was $21,653.00. Carrying the calculation through to its conclusion, that produces the equalization payment of $112,722.95.
[^7]: The Endorsement of Himel J. that I was able to locate, is dated June 20, 2022, as discussed next. Perhaps there was an earlier Endorsement. Regardless, it does not really matter to my analysis now.
[^8]: “Spouse” includes a former spouse: see also the definition of “spouse” in section 2(1) of the Divorce Act.
[^9]: The father says this at paragraph 13(11) of his Motion to Change dated October 18, 2023. In making this statement, the father refers in error to the Final Order of March 3, 2023. That was the second Final Order respecting parental conduct that Jarvis J. granted. But the context of the paragraph that the father wrote though, is clearly referable to the Final Order of MacPherson J. dated August 31, 2020, not the later Order of Jarvis J.
[^10]: Yet the father re-married in June of 2024.
[^11]: The mother established that the father drove by her house or went to her work at times, to monitor her whereabouts.
[^12]: Although there has been evidence adduced at this trial about the father monitoring the mother.
[^13]: This message also illustrates how the father bullies the mother, and why restrictions need to be imposed. Simple matters turn into endless debates.
[^14]: The settlement represented a compromise between the two statements in any event.