Court File and Parties

COURT FILE NO.: FC-21-1214- 00 DATE: 20241104 CORRECTED DATE: 20241113

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID JAMES MORRISON Applicant – and – JADE TAMARRA HARPER Respondent

SELF-REPRESENTED, Applicant JULIA MOOTE, for the Respondent

HEARD: [May 31, June 03-07, 17, 18, 19, 21, 2024]

REASONS FOR JUDGMENT

Corrected Reasons for Judgement: The text of the original Reasons for Judgement was corrected on November 13th, 2024 and the description of the correction is appended.

KAY J. OVERVIEW

[1] The parties, Mr. Morrison and Ms. Harper, bring the matter before the court for a determination of a number of issues arising from their common-law relationship.

[2] The primary issues before the court are: 1) the parenting terms for the child, S., born May 14, 2018; and 2) Ms. Harper’s claim for child support, including for periods before the trial.

[3] The trial was heard over ten days during the June trial sittings. The parties provided written submissions.

SUMMARY OF ORDERS MADE

[4] For the reasons that follow, I am making the following Orders on the issues in dispute:

1. S.’s primary residence shall be with Ms. Harper.
2. S. shall have parenting time with Mr. Morrison as follows: Mr. Morrison shall have overnight parenting time with S. in accordance with Justice Finlayson’s order dated January 16th, 2024, with the following minor amendment: on one of the midweek Wednesday visits, S. shall be in Mr. Morrison’s care from pick up after school or daycare on Wednesday afternoon to drop off on Thursday morning at school or daycare. With respect to the remaining parenting time schedule, pursuant to section 112 of the Courts of Justice Act, RSO 1990, c C.43, the court is adopting the recommendations of the report of the Office of the Children’s Lawyer, dated November 29th, 2022 (“the OCL Report”), as found in paragraphs 5-10 of the recommendation section of the report with the following amendment: S. shall spend the first two consecutive weeks of the summer with Mr. Morrison but shall spend the intervening weekend with Ms. Harper from Friday at 4:00 P.M. (pick up by Ms. Harper at Mr. Morrison's residence or other location as agreed between the parties in writing) to Sunday evening at 6:00 P.M. (drop off by Ms. Harper at Mr. Morrison's residence or other location as agreed between the parties in writing). a. Ms. Harper will have decision-making over S.’s education; Mr. Morrison will have decision-making regarding health and medical decisions. b. Mr. Morrison post-application arrears of child support are hereby set at $4,514.00, payable at a rate of $75.00 per month until paid in full. c. Mr. Morrison will pay ongoing child support in the sum of $1,111.00 per month based on an income of $125,446.00. I am including Mr. Morrison’s non-taxable benefits as income only because he adduced no evidence to indicate benefits reason and purpose. I am leaving the issue of his non-taxable benefits for review in future years if Mr. Morrison can provide evidence to the degree and extent that the above noted benefits are incurred for the purpose of carrying out his employment duties.

BACKGROUND FACTS

[5] Mr. David Morrison and Ms. Jade Harper began their relationship in August of 2016. Mr. Morrison and Ms. Harper moved in together in March of 2017. S., the subject child of these proceedings, was born on May 14th, 2018.

[6] Towards the end of the relationship, Mr. Morrison, and Ms. Harper experienced increasing conflict in their relationship. Among the causes of the conflict between the parties was Mr. Morrison's alcohol misuse. In an attempt to salvage the relationship, Mr. Morrison sought treatment for his substance misuse at Pinewood Addiction Services. In addition to this, both parties attempted marriage counselling. Despite these efforts, the relationship ended, and the parties separated on October 3rd, 2020.

[7] Following their separation, Mr. Morrison's parenting time with S. was every other weekend from Thursday evening after daycare to Monday morning drop off at daycare. The following week, Mr. Morrison had S. in his care from Wednesday after daycare to Thursday morning drop off at daycare. This parenting schedule amounted to 5 overnights in a 14-day period.

[8] The parenting schedule continued until March of 2021, when Mr. Morrison’s parenting time with S. was reduced such that S. was returned to Ms. Harper's care on Sunday evening rather than being dropped off at daycare on Monday morning by Mr. Morrison.

[9] Mr. Morrison acknowledged in his evidence in chief, as well as in his interview with Ms. Weldon, the OCL clinician who prepared the OCL Report, that he consented to this change in the parenting schedule but states that he did so reluctantly to avoid conflict.

[10] On June 30th, 2021, the parties signed a Partial Separation Agreement for joint decision-making as well as other financial issues, the latter of which are not the subject of this trial. The Partial Separation Agreement was silent about parenting time; however, it did address the issue of child support.

[11] The Partial Separation Agreement included a without prejudice provision regarding child support. The provision provided that the quantum of child support payable by Mr. Morrison to Ms. Harper be less than the Child Support Guidelines, O. Reg. 391/97, Table amount that would have been payable based on his income at the time.

[12] Based on the amount of child support that was agreed to, it appears that the parties agreed to set off the child support payments, which would be consistent with an equal shared parenting schedule between the parties.

[13] Sometime in August of 2021, settlement negotiations between the parties broke down, and Mr. Morrison commenced an application wherein he requested that he and Ms. Harper have equal parenting time with S.

[14] To that point, the primary dispute between the parties was whether S. should have equal parenting time with both her parents or whether she should have primary residence with Ms. Harper, with Mr. Morrison having significant but more limited parenting time.

[15] Mr. Morrison maintains that while they were together both he and Ms. Harper equally cared for S., and that it was always the parties’ intention to implement a shared parenting plan. Ms. Harper takes the position that she never agreed to a shared parenting plan, and that she had always been S.’s primary caregiver.

[16] The parenting arrangement that had been in place since March of 2021, ended on October 28th, 2021, when Ms. Harper unilaterally, and without bringing the matter before the court for judicial consideration (even though she was represented by Ms. Moote at that time), withheld S. from her father for at least 43 days following her report to the Children's Aid Society about concerns she had about S. in Mr. Morrison’s care.

[17] Ms. Harper reported to the Children’s Aid Society concerns about Mr. Morrison’s alleged substance misuse and mental health, alleged lack of supervision of S., alleged neglect of S., and the alleged risk of S. being subject to sexual abuse by either Mr. Morrison or a member of his family.

[18] The Children's Aid Society conducted its investigation and took the position that the parenting arrangement should not be changed and concluded that none of the above allegations were verified. On November 8, 2021, Ms. Harper was notified of the results of the Society’s investigation, namely, that they had no concerns about S. being in Mr. Morrison’s care and that their file was being closed. Notwithstanding the Children's Aid Society's position, Ms. Harper continued to deny Mr. Morrison overnight parenting time with S.

[19] Ms. Harper’s refusal to allow S. overnight parenting time with Mr. Morrison only ended when Mr. Morrison’s motion for a shared parenting arrangement was heard by Rowsell J. on May 19th, 2022, who ordered the reinstatement of S.’s overnight time with her father.

[20] Ms. Harper’s unilateral actions in October 2021 led to numerous court appearances, particularly with respect to Mr. Morrison's parenting time, the history of which I will outline below.

LITIGATION HISTORY

[21] As noted earlier, Mr. Morrison commenced his application in August of 2021.

[22] As mentioned, Ms. Harper withheld S. from parenting time with her father for at least 43 consecutive days. It is worth noting, that Ms. Harper continued to oppose S. having overnight parenting time with her father up to and including Rowsell J.’s Order of May 19th, 2022 (“the Rowsell Order”), where S.’s overnight visits with her father were reinstated.

[23] Rowsell J. also requested the involvement of the OCL at the same time.

[24] As a result of Ms. Harper's unilateral actions in October of 2021, Mr. Morrison brought an ex-parte motion for shared parenting time on November 12th, 2021. This motion was dismissed by Leef J. who noted in her endorsement that while the motion did not meet the threshold for an ex-parte motion, she urged the parties to make arrangements for parenting time.

[25] On December 13th, 2021, the matter returned before Nicholson J., at which time Mr. Morrison, on a without prejudice basis consented to an order of six hours of parenting time every Saturday. Mr. Morrison has maintained throughout the proceedings that he agreed to these terms as he believed that it was the only way for him to see S.

[26] The next significant court appearance was a motion for shared parenting time brought by Mr. Morrison that was heard by Rowsell J. on May 19th, 2022. As a result of that motion, Rowsell J. ordered S.'s overnight visits with her father to every other weekend from Thursday after school until Sunday at 4:00 P.M. Weekends were to be extended in the event of a statutory holiday or PA Day.

[27] Mr. Morrison was to have additional parenting time with S. every Wednesday from 3:30 P.M. to 7:00 P.M. pick up at school or daycare and drop off at the mother's residence. It is noteworthy that the above noted order effectively reinstated the status quo that existed in March of 2021. As a result of Ms. Harper's unilateral action, S. was deprived of the parenting time she had with her father prior to October 2021, including overnights with her father, for a period of seven months.

[28] It is important to note the terms of the order, and several comments made by Rowsell J. in his endorsement of May 19, 2022. Despite the matter being scheduled for a one-hour motion, he reviewed voluminous materials filed by both parties in detail. Rowsell J. noted:

a. That the current limited daytime parenting time with Mr. Morrison were not in the child's best interest. b. That Mr. Morrison's 2/2/5 proposed shared parenting arrangement is not appropriate given the distance between the two parties' residences in that any shared arrangement would require too much time in transit. c. No findings were made at that time with respect to domestic violence allegations. d. That the mother in the future should not unilaterally alter the parenting arrangements and that any changes to the parenting arrangement ordered should be made either by agreement in writing or court order. e. That the child's residence should be with Ms. Harper. f. That Ms. Harper shall not move a greater distance away from Mr. Morrison's current residence. g. That the child shall not be enrolled in counselling absent a referral from her treating doctors or the consent of the parties. h. That Mr. Morrison shall pay child support of $910.00 per month commencing June 1st, 2022, based on his stated income of $100,000, retroactivity is preserved.

[29] Following Rowsell J.’s Order of May 19, 2022, there were several court appearances and 14B motions dealing primarily with preparing the case for trial.

[30] Mr. Morrison brought a motion before Nicholson J. on May 27, 2023, alleging Ms. Harper had breached the parenting time order both in person and virtual, as well as communication breaches which was dismissed.

[31] In addition, Ms. Harper brought a motion permitting her to move 2.7 kilometers from her parent’s residence to a new home. This motion was granted by Finlayson J. on July 10th, 2023.

[32] On January 16th, 2024, the parties appeared before Finlayson J. by way of 14b and filed minutes of settlement which further expanded Mr. Morrison’s alternate weekend parenting time with S. to Monday morning drop off at daycare/school. This order effectively restored the prior status quo with respect to parenting time that existed prior to March of 2021.

History of Reports to the CAS

[33] I will now set out the history of reports to the Children’s Aid Society (“CAS”) made by Ms. Harper. The CAS’s involvement in the case and its impact on the parenting arrangements plays an important role in the history of parenting time between the parties.

[34] Ms. Harper made two reports to the CAS. Ms. Harper's first report to the CAS was on November 4th, 2021, some two months after Mr. Morrison commenced his family court application. At that time Ms. Harper reported to the Kawartha Haliburton Children’s Aid Society (“KHCAS”) about concerns she had about S. being in Mr. Morrison’s care. Ms. Harper reported to the CAS concerns about Mr. Morrison’s alleged substance misuse and mental health, alleged lack of supervision of S., alleged neglect of S., and the alleged risk of S. being subject to sexual abuse by either Mr. Morrison or a member of his family.

[35] On November 8, 2021, Ms. Harper was notified of the results of the CAS investigation that they had no concerns about S. being in Mr. Morrison’s care and that their file was being closed. Ms. Harper rejected the KHCAS conclusions, asking that they suspend Mr. Morrison's parenting time, alleging that S.’s life was at risk in Mr. Morrison's care. As a result, for the following seven months S. had limited parenting time with her father restricted to a few hours a week and no overnights until Rowsell J’s order of May 19th, 2022.

[36] Ms. Harper's second report to the CAS was made to Durham CAS (“DCAS”) on or about October 5th, 2022, involving an allegation that the 12-year-old daughter of Mr. Morrison’s new partner sexually assaulted S. On that date, Ms. Harper brought S. to Lakeridge Health to be seen by the sexual assault clinic. Ms. Harper reported the sexual assault allegation to Durham Police as well as Durham CAS, relying on a 4-minute recording that she made during an interview with S. where the child apparently made the disclosure.

[37] Of note is that during the child's interviews with both the CAS, and subsequently with the OCL clinician, S. denied that the sexual assault ever occurred. Ms. Harper acknowledged that she hoped Durham CAS would suspend Mr. Morrison's parenting time. Ms. Harper's second report to the CAS occurred during the OCL’s investigation that was ordered by Rowsell J. on May 19th, 2022.

ISSUES

[38] The following issues are put before the court at this trial:

a. What parenting time schedule is in the best interests of the child, including a consideration of the claims of family violence? b. What should the decision-making regime be for the child? c. What is Mr. Morrison’s income for the purpose of child support? d. What Order for post-application, pre-trial child support should be made? e. What Order for ongoing child support should be made?

ISSUE 1: What should be the parenting time schedule for S., including a consideration of the claims of family violence?

Legal Framework

[39] In determining the parenting regime that is in a child’s best interests, the court must have regard to s. 24 of the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”). It is unnecessary to list all the best interest factors, but I have had regard for them and the principles from the jurisprudence, as I discuss further below.

[40] It is also important to note that the legislation no longer provides for a “maximum contact” principle. To be clear, there is no legislative presumption of equal parenting time, and this should not be a default position taken by the court. The CLRA states at s. 24 (6):

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

[41] As the legislation makes clear, the sole concern is the children’s best interests. Decisions on a parenting schedule should be made using an “evidence-based” approach, applying the principles in statutory law and the case law to the evidence that is before the court and the findings made by the court.

FAMILY VIOLENCE

Legal Principles

[42] Section 18 of the CLRA contains an expanded and detailed definition of “family violence”. The most recent amendments to the CLRA require the court to consider any acts which fall under the rubric of family violence when making decisions in the best interests of children.

[43] This new broader and more expansive definition of family violence recognizes the many forms it can take other than physical violence or the threat of physical violence. These forms include patterns of behavior that may be experienced by spouses and children as coercive and controlling.

[44] In Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561, leave to appeal granted, [2023] S.C.C.A. No. 529, the Court of Appeal identified the pervasive issue of family violence in domestic relationships. The court states at para. 1, “Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation.”

[45] The interplay of exactly how findings of family violence and its impact relates to how courts decide parenting issues continues to evolve. Since the introduction of the amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp), in March 2021, courts are statutorily required to take a hard look at allegations of family violence as an extremely important aspect of decision-making and parenting time cases.

[46] McGee J. articulated this interplay in S. v. A., 2021 ONSC 5976, 61 R.F.L. (8th) 45, at paras. 24-25 as follows:

“A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child’s best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child’s other parent.

Children must first and foremost be safe in their parents’ care. The Divorce Act amendments recognize this primal need in Section 16(2) by making a child’s physical, emotional, and psychological safety, security, and wellbeing the primary consideration. No conduct by a caregiving parent that deliberately undermines a child’s sense of safety or self should be sanctioned or permitted to continue.”

[47] In Barendregt v. Grebliunas, 2022 SCC 22, at para. 144, the Supreme Court of Canada has provided guidance to how lower courts are to treat evidentiary issues regarding family violence by noting that it is “notoriously difficult to prove” and that “proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.”

[48] Given the Court’s guidance in Barendregt on how family violence, if found, will be a significant factor with respect to parenting decisions, it is critical that trial courts treat such allegations extremely seriously. The findings of fact are significant for the best interests of the child but are also significant with respect to the person who is alleged to have committed the family violence.

[49] Finally, the CLRA does not define “coercive and controlling behaviour.” Such behaviour can take on many forms including in the realm of sexual matters, from restricting a person’s social contacts, to coercive financial control, and other areas. However, not all conflict is coercive and controlling. Some conflict in relationships, even conflict which involves name-calling, raised voices, and wholly inappropriate communications, may be undesirable, condemnable, and harmful to a child, but not coercive and controlling. Coercive and controlling behaviour will generally involve a power imbalance and the fear by one parent of the other parent that there will be consequences (financial, social, emotional, or physical) if the victim does not act in the way the abuser wants.

[50] As noted by Chappel J. in M. A. B. v. M.G.C., 2022 ONSC 7207, at para. 183:

”Coercive control in familial relations has many faces, and it is chameleon-like in the ways that it can evolve, transform, and ebb and flow over time. Further to the principles of legislative interpretation discussed above, the interpretation of the concept of “coercive and controlling behaviour” should be interpreted in a large and liberal manner that best ensures the attainment of the objects of the family violence provisions of the legislation, which is to protect and promote the safety and wellbeing of family members. To date, the caselaw reflects such a broad and purposive approach to the scope of this type of family violence. A general review of this caselaw indicates that “coercive” behaviour includes conduct that is threatening, intimidating or exerts inappropriate pressure on the other person. Behaviour is broadly being considered as “controlling” if its intent or effect is to inappropriately manage, direct, restrict, interfere with, undermine or manipulate any important aspect of the other person’s life, including their important relationships and their physical, emotional, intellectual, spiritual, social and financial autonomy or wellbeing.”

[51] Chappel J. sets out a number of examples of behaviours that may constitute instances of coercive and controlling behaviour, at para. 184:

“For the purposes of this case, it is important to highlight that the concept of a pattern of coercive and controlling behaviour encompasses the following types of behaviour:

1. Engaging in verbal abuse, yelling, name calling and insults (W.A.C. v. C.V.F.; McBennett; K.M. v. J.R.; S.S. v. R.S., 2021 ONSC 2137 (S.C.J.); Freitas v. Christopher, 2021 ONSC 2340 (S.C.J); M.N.B. v. J.M.B., 2022 ONSC 38 (S.C.J.));
2. Making numerous unsubstantiated allegations against the other party (Armstrong v. Coupland, 2021 ONSC 8186 (S.C.J.); I.S. v. J.W., 2021 ONSC 1194 (S.C.J.); K.M. v. J.R.; Ammar v. Smith, 2021 ONSC 3204 (S.C.J.));
3. Unilaterally changing court-ordered parenting time terms without justification (Armstrong); and
4. Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (E.V. v. V.-E., 2021 ONSC 7694 (S.C.J.); Ammar; I.S. v. J.W.; S.S.G. v. S.K.G., 2022 ABQB 130 (Q.B.), per Devlin J.).”

ANALYSIS OF THE EVIDENCE WITH RESPECT TO FAMILY VIOLENCE

[52] Both parties in this case have alleged that the other has engaged in coercive and controlling behaviour that has led to the breakdown in the capacity of the parties to communicate effectively as co-parents. Both parties say that this alleged behaviour should impact the court’s decision on the parenting regime.

[53] Communication between the parties, including communication through App Close, were tendered as evidence before the court. Much of the same material was reviewed by the OCL clinician in preparation for her report of November 2022.

[54] The OCL Report states as follows, “several professionals as well as App Close communications appear to confirm Miss Harper’s allegation about Mr. Morrison at times controlling and verbally aggressive behaviour.” It would therefore be reasonable for Ms. Harper to have experienced Mr. Morrison’s communication as abusive in its nature.

[55] In his evidence, Mr. Morrison acknowledged the inappropriateness of some of his communication in app close with Ms. Harper characterising them as “wrong”. Mr. Morrison conceded that he was ashamed of some of his communications, and that he made “bad choices”.

[56] In her direct evidence, and under cross examination, Ms. Harper acknowledged that she too communicated in an “inappropriate” manner at least half a dozen times with Mr. Morrison through App Close. Ms. Harper denied that such communications were abusive, but it is the court’s view that it would be reasonable for Mr. Morrison to have experienced the above communications as in fact abusive.

[57] Furthermore, under cross examination, Ms. Harper acknowledged the following:

a. She did not report any incidents of domestic violence to their couples’ counsellor, Dr. Waese. b. She did not report any incidents of domestic violence to Dr. Sorenson. c. She did not report incidents of domestic violence to Dr. Montgomery. d. She never reported any incidents of domestic violence to the police.

[58] In summarising the above facts, I wish to be very clear that I am alive to the “myths” surrounding domestic abuse and fully appreciate that not all victims disclose family violence for a myriad of reasons. By the same token, where coercive control is alleged, the existence of which by its definition relies on the state of mind of the victim, disclosure or lack thereof must form part of the evidentiary considerations.

[59] Ms. Harper also acknowledged under cross-examination that the incident on January 4, 2022, involving the letter did not amount to stalking or harassment.

[60] The OCL, as part of its s. 112 report to the court, gave important evidence during the trial about the allegations of family violence that have been raised in this trial, including:

a. None of the collaterals the OCL spoke to in preparation of her report, reported any incident or allegation of domestic violence (“DV”). b. That the OCL had no concerns of DV arising from the letter sent to the OCL by Ms. Harper’s therapist, Ms. Poon, regarding the therapists’ comments about Mr. Morrison being “narcissistic and using intimidation tactics”. c. That Dr. Sorenson had a positive experience with Mr. Morrison. d. That the OCL was of the view that both parties communicated badly with one another. e. That DCAS reported to the OCL concerns that Ms. Harper’s report to the agency may be motivated by either malice towards Mr. Morrison or her own mental health issue and the OCL shared a similar concern about Ms. Harper’s motives in making reports about Mr. Morrison to the CAS. f. That the OCL was very concerned about the nature of Ms. Harper’s audio recording of S. as the basis of Ms. Harper’s report to the CAS, police and Lakeridge Health Centre in October of 2022, and that her concerns, having heard the recording, was that S. was not sexually assaulted and that Ms. Harper was “leading” the conversation in the recording. g. At the time the Report was prepared, the OCL did not think that Ms. Harper was supportive of S.’s relationship with Mr. Morrison and that she had no such similar concerns about Mr. Morrison. h. That the OCL had concerns about Ms. Harper gatekeeping and alienating S. from her father, Mr. Morrison.

[61] In reviewing the totality of the evidence adduced in this case with respect to communication between the parties and in consideration of s. 18 of the CLRA, I am unable to find, on a balance of probabilities, that there was conduct which would fall into the definition of “family violence.” Instead, I find there was mutually inappropriate communications which were unacceptable and were to S.’s detriment.

[62] The evidence supports the conclusion that the relationship between the parties is hostile and fraught with conflict, animosity and mistrust, and that if it does not cease, will likely have an adverse impact on S.’s well-being.

[63] The parties are to be commended for acknowledging the inappropriateness of some of the communication between them. The parties are encouraged to continue to exercise self-awareness, caution, and self-regulation in their communication with one another going forward.

[64] Prior to the commencement of the trial, the parties were able to come to a consent with respect to communication protocols, and the resulting minutes of settlement will be incorporated into the final Order of the court. It is the court’s expectation that the agreed upon communication protocol will resolve the issue of communication, and similarly that the risk that it can become a vehicle for potential family violence will be reduced, this this will ultimately be in S. ’s long-term best interests.

Communication between Mr. Morrison and Ms. Harper’s counsel.

[65] I have reviewed all the communication between Mr. Morrison and Ms. Harper’s counsel adduced into evidence in this case. While it appears that the tone in much of these communications is combative and forceful, I am not able to conclude that they amounted to coercive and controlling behaviour by Mr. Morrison.

[66] I am, however, very concerned about Ms. Harper’s counsel communication with Mr. Morrison where she advised that her client would be withholding the child from Mr. Morrison pending the results of the CAS investigation. Such communication in the absence of a motion and the opportunity for judicial oversight of the concerns raised by the mother is entirely inappropriate. The court should not abide by such action in the future.

[67] At that time, the appropriate course of action by Ms. Harper’s counsel was to have brought the matter to court by way of a motion to have it determined based on proper evidence.

Guidance for CAS Involvement in Cases

[68] I wish to digress at this point to provide what I hope to be helpful guidance in ensuring allegations to Children’s Aid Societies are dealt with in a manner that balances serious concerns for a child with the necessity for judicial oversight in any requested change to a standing parenting arrangement, whether in an Order or not.

[69] In family law cases that are ongoing, there are times when CAS get involved because of a complaint by a parent or a collateral dealing with the child.

[70] Often, because of a CAS investigation, an internal CAS “finding” will be made on whether there was a “child protection concern” that was “verified” as part of the investigation. It will generally be important to the court to know the result of the CAS investigation and to have the notes of its workers before it when making parenting decisions.

[71] However, it is important to make clear that the court is not bound to CAS findings or results of their investigations. CAS investigations follow different standards and protocols for how they treat various cases.

[72] Moreover, considering major institutional failures like those investigated as part of the Motherisk investigations, it is critical that courts look at the evidence of CAS workers with a respectful but critical eye and do not simply defer to their conclusions. The court cannot delegate any of its decision-making authority, including fact-finding, to third parties: See Official Guardian v. Strobridge, 18 OR (3d) 753.

[73] It is important to note that there are times when allegations are so serious that the CAS recommends the suspension of parenting time pending its investigation. There are also times when the CAS does not recommend such a step, but a party takes the position that the very fact of the CAS investigation coupled with the serious allegations means that to protect a child, parenting time should be suspended.

[74] These are inherently difficult situations for the parties and the CAS. But what is critical is that, in such situations, there be court oversight of any suspension of parenting time. To be clear, a CAS recommendation of a suspension of parenting time, even if made genuinely and in good faith, is insufficient to override an existing order for parenting time and should not be followed uncritically.

[75] I recognize that resources are spread thin and that access to a judge is sometimes extremely difficult.

[76] However, because of the impact of these critical junctures on both a child and the litigation itself, it is imperative that the matter is brought before the court on a timely basis for a judge to adjudicate the issue based on an evidentiary record.

[77] In stating the above, I wish to be clear that there are, of course, allegations of such a nature that, if founded, put a child at imminent risk of harm. In such a situation, in addition to notifying the Police of their concerns, a parent or CAS has either of two steps he/she can take: 1) Bring a without notice motion seeking to obtain a court order for the suspension of parenting time; or 2) The CAS can “apprehend” the child and bring a motion under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) to deal with the urgency of the situation.

[78] It may also be that the parties agree, or by necessity in rare circumstances, that there is an extremely short period of non-court sanctioned suspension of parenting time to allow for evidence to be fairly put before the court on a motion. Whether such a suspension is justified depends on the nature of the allegations and the evidence in support of them. But whatever the duration of that unilateral suspension, it must be short.

[79] The above recommendations are meant to ensure that when a parent follows proper protocols with respect to a suspension of parenting time, the parent is far less likely to be susceptible to the accusation of trying to gain an advantage in the litigation, as was unfortunately the case here.

Ms. Harper’s Withholding of S. viewed through the lens of family violence

[80] Returning to the case before me I begin by noting that I heard extensive evidence regarding Ms. Harper’s report to the CAS in October of 2021 and I have already referred to this incident earlier in my decision.

[81] The details and timing of Ms. Harper’s report to the CAS may be of probative value in viewing Ms. Harper’s conduct through the lens of s. 18 of the CLRA.

[82] As indicated, Mr. Morrison issued his application on August 21, 2021. To that point, Ms. Harper made no allegations about S. being at risk of harm in Mr. Morrison’s care, to the extent that she reported such concerns to the CAS. This would be for a period of almost a year from the date of separation on October 3, 2020. Moreover, Ms. Harper acknowledged in her evidence at trial that the Partial Separation Agreement aspired to a shared parenting arrangement. Ms. Harper made her report to the CAS in early November 2021, some two months after Mr. Morrison’s application to the court.

[83] In her evidence at trial Ms. Harper acknowledged the following facts during her testimony:

a. That the CAS never advised her to stop S. from seeing her father or to alter the parenting arrangement in any way. b. That she did not commence any motion, ex-parte or otherwise, to have the matter properly adjudicated by the court. c. That on November 8, 2021, the CAS had notified her that the CAS did not verify her allegations, and they were not taking a position on custody at that time, and that they were closing their file. d. That on November 10, 2021, she requested that the CAS not send the letter to Mr. Morrison of the CAS’ position set out in the above paragraph (3). e. That on November 18, 2021, the CAS advised her that they would not be halting Mr. Morrison’s access and to do so would be an abuse of their authority. f. That notwithstanding her awareness of the CAS’ position, she did not accept the results of the CAS investigation and that she continued to deny Mr. Morrison’s parenting with S. resulting in S. being deprived of seeing her father and sister for at least 43 days. g. She refused to allow Mr. Morrison overnight parenting time for approximately seven months until she was ordered to do so by Rowsell J. on May 19, 2022, after a contested motion.

[84] In reviewing the evidence relevant to the above noted incident of refusing Mr. Morrison’s parenting time, and on a balance of probabilities, I have concluded that Ms. Harper’s actions described in this section amounted to coercive and controlling behaviour likely intended to bring about an outcome favourable to her position with respect to S.'s residence and parenting time.

[85] By making this finding, it is not to say that in Ms. Harper’s mind she did not hold genuine concerns about S. in Mr. Morrison's care, instead it is to say that whatever her genuine concerns may have been they in no way justify her conduct, especially after she was notified that the CAS had no concerns about Mr. Morrison’s ability to care for S.

[86] It is to Ms. Harper’s credit that in her evidence at trial she acknowledged that she “owned her behaviour” in November of 2021 and that she should not have prevented S.’s parenting time with Mr. Morrison. However, this mitigating admission is of little effect given the harm caused to the parent-child relationship through what occurred.

Ms. Harper’s second report to the DCAS in November 2022 during the OCL conducting the court ordered s. 112 Report alleging that Mr. Morrison’s partner’s 12 year- old daughter sexually assaulted S. when S. was in Mr. Morrison’s care.

[87] Ms. Harper’s second report to the CAS occurred during the early half of October 2022, approximately between October 5th and 13th. This Report was made while the OCL was conducting its s. 112 investigation as ordered by Rowsell J. on May 19, 2022.

[88] Ms. Harper’s report to the CAS involved the allegation that Mr. Morrison’s partner’s 12-year-old daughter sexually assaulted S. while S. was in Mr. Morrison’s care. The basis for the allegation was a four-minute recording that Ms. Harper prepared with S.

[89] Ms. Harper took S. to Lakeridge Health Centre to have a physical examination to investigate the alleged incident, and she reported the alleged incident to DCAS and Durham Police Services. None of the above noted institutions verified the sexual assault allegations.

[90] S. was interviewed by the, CAS, and the OCL and consistently denied that she had been sexually mistreated at any time and certainly not by Mr. Morrison’s partner’s 12-year-old daughter. The CAS disclosure found in Exhibit #32, that was put to Ms. Harper in cross-examination, revealed that Ms. Harper’s questioning of S. during the 4-minute recording was “extremely leading and suggestive”. DCAS reported that during the recording, S. would agree with Ms. Harper followed by S. asking Ms. Harper if they could stop talking about it and watch a video.

[91] On October 20, 2022, DCAS spoke to Ms. Harper about their concerns about the way she spoke to S. in the video and that the sexual assault allegations were not verified and that there was no indication that S. had been sexually harmed.

[92] As noted earlier in my decision, the OCL, having interviewed S. separately regarding the alleged sexual assault allegation, as well as having listened to the four-minute recording came to the same conclusions as the DCAS. The OCL had identical concerns about Ms. Harper’s conduct throughout the incident as well as her motives for making the sexual assault allegations.

[93] Under cross-examination, Ms. Harper conceded that she had hoped that the DCAS would suspend Mr. Morrison’s parenting time with S. and that she had told Mr. Morrison that she intended to suspend his parenting time unless he agreed to her terms and conditions for S. being in Mr. Morrison’s care.

[94] It is of note that under cross-examination Ms. Harper maintains that something untoward occurred between S. and Mr. Morrison’s partner’s daughter, notwithstanding all evidence to the contrary and her own acknowledgement that S. has made no such allegations since.

[95] In reviewing all of the relevant evidence pertaining to the October 22, 2022 sexual assault report to the Police and the DCAS, and when viewed in the context of Ms. Harper’s earlier report to the CAS in October of 2021 and her unilateral suspension of Mr. Morrison’s parenting time with S., I conclude on a balance of probabilities that Ms. Harper engaged in coercive and controlling behaviour towards Mr. Morrison in this instance.

OTHER INCIDENTS RELEVANT TO COERCIVE CONTROL

Various incidents where Ms. Harper withheld S. from her father for alleged health reasons

[96] Mr. Morrison in his evidence points to several incidents where his parenting time with S. was withheld due to S. being ill and unable to transition to Mr. Morrison due to said illness. I accept, for the most part, that Ms. Harper genuinely believed that S. was ill and that transitioning her for parenting time with Mr. Morrison was not in S. ’s best interest. However, the incident of June 23, 2022, suggests that Ms. Harper’s concerns for S.’s health was not always the only operative factor in her decisions regarding S.’s parenting time with her father.

[97] This incident involved Ms. Harper raising concerns about S.’s possible exposure to COVID-19 while in Mr. Morrison’s care. Mr. Morrison provided Ms. Harper with a reasonable assurance and response to her concern and yet Ms. Harper unilaterally withheld S. from her access time with her father due to her concerns. This incident raises concerns about Ms. Harper possibly using the pretext of a health concern to control Mr. Morrison’s parenting time with S. by unilaterally changing the court ordered parenting schedule.

Ms. Harper placing a tracking device in S.’s backpack in the spring of 2024 without notifying Mr. Morrison

[98] During cross-examination, Ms. Harper acknowledged that during the spring of 2024, she placed a tracking device in S. ’s backpack that she would take with her on her overnight visits with Mr. Morrison. The details of this incident are unclear as the events were elicited during cross-examination; however, what is clear from Ms. Harper’s own evidence is that she did not notify Mr. Morrison that she had done so, and that there was police involvement in this incident.

[99] Ms. Harper acknowledged that the police advised her that she should have notified the other parent that she was putting a tracking device into the child's backpack. It is concerning that Ms. Harper engaged in this conduct as recently as a few months ago, after the years of therapy she has undertaken to address the concerns about her behaviour that were highlighted in the OCL Report.

[100] Indeed, it raises questions about the efficacy of the therapeutic process she is currently engaged in with Ms. Poon.

THE EFFECT OF FINDINGS WITH RESPECT TO THE ISSUE OF FAMILY VIOLENCE ON THE PARENTING REGIME

[101] In view of all the evidence on a balance of probabilities and for the above reasons, I find that Ms. Harper engaged in coercive and controlling behaviour as contemplated by s.18 of the CLRA and that such actions have had an adverse impact on S.’s best interest, as set out in s. 24 (3) of the CLRA, with respect to her parenting time with her father Mr. Morrison.

[102] To summarize, while each party may have perceived the communication between them as abusive, on a balance of probabilities, I am unable to come to the conclusion that these communications rose to the level of family violence. However, I do find that Ms. Harper’s unilateral actions with respect to S. amount to coercive control within the meaning of the definition of family violence.

[103] Courts continue to grapple with how to apply findings, or lack thereof, to the parenting decisions before them. In this case, I find Ms. Harper’s coercive control weighs heavily towards protecting the relationship between S. and Mr. Morrison. I want to be clear that I only declined to order an equal parenting schedule because of logistical considerations that make shared parenting impractical, unfeasible and therefore inconsistent with S.’s best interests.

[104] Ms. Harper’s conduct, when considered together with her strengths as a parent and caregiver, should be evaluated through the lens of S.’s best interests.

[105] There is no question that S. experiences her time with her mother as positive and in a caring, loving environment. However, the positive time with her mother should not have the effect of diminishing Mr. Morrison’s role in S. ’s life as her father.

BEST INTERESTS FACTORS (OTHER THAN FAMILY VIOLENCE)

The Parties’ Intentions and Expectations for a Parenting Regime

[106] I accept Mr. Morrison’s evidence that from the date of separation, including the time when the Partial Separation Agreement was executed by the parties, that Mr. Morrison and Ms. Harper we're working towards a shared parenting time arrangement. Ms. Harper's evidence is that she never agreed to a shared parenting time arrangement, but neither did she deny that the parties were working towards that objective. The Partial Separation Agreement of June 30th, 2021, wherein the child support was determined based on the principle of set off, was presumably based on the premise that the parties were working towards a shared parenting plan.

[107] I did not find the mother's evidence on her understanding of the basis for the child support to be persuasive or credible. When asked regarding this issue her answer was evasive and she stated that she did not understand how the amount of child support was arrived at, notwithstanding the fact that she was represented by counsel and executed the agreement. In reviewing all the evidence as noted above, I find that up to the time that Ms. Harper arbitrarily and unilaterally withheld S. from her father that the parties were working towards a shared parenting arrangement.

The mother’s unilateral actions

[108] Any possibility of an equal shared parenting plan between Mr. Morrison and Ms. Harper were effectively pre-empted by Ms. Harper when she withheld S. from her father for at least 43 days and then denied S. meaningful parenting time with Mr. Morrison for seven months that S. was having prior to that time from the date of separation, until Ms. Harper was ordered by the court to stop withholding S.

[109] Whether or not a shared parenting arrangement would have been the best parenting arrangement for S. is unknowable; what is certain, however, is that Ms. Harper’s actions rendered that possibility null and void.

[110] Courts have long been very clear that “self-help remedies” should be roundly condemned and dissuaded. See Sain v Shahbazi, 2023 ONSC 5187, at para. 1. Where possible, by which I mean where the matter can come to court in sufficient time to remedy the situation in the child’s best interests, the court should generally try to restore the status-quo that was altered by the parent acting unilaterally.

[111] In this case, the trial has occurred long after the unilateral action by Ms. Harper. In addition, the current parenting time arrangement was arrived at by consent of the parties as per the Minutes of Settlement Endorsed by Finlayson J. on January 16, 2024, which effectively reinstated Mr. Morrison's parenting time as of March 2021.

[112] To Ms. Harper’s credit, in her evidence she assumed ownership of her actions during that time and acknowledged that she should not have acted as she did during the period of late October 2021 to December 2021.

[113] Moreover, since separation, S. has always resided with Ms. Harper for most of the time. Therefore, notwithstanding her unilateral actions, there had never in fact been a shared parenting schedule.

[114] From S.’s perspective, the possible hypothetical alternatives to her current parenting time arrangement have no bearing on how she experiences her day-to-day life with each parent; notwithstanding the fact that the catalyst for the current parenting arrangement was Ms. Harper’s unreasonable self-help actions. Therefore, Ms. Harper should be aware that the court will put significant weight on this issue with respect to the issue of costs. Costs, and in particular the category of costs under Rule 24, Family Law Rules, O. Reg. 114/99, of whether a party acted reasonably, is the primary tool the court must deploy to deter unilateral conduct when it is inappropriate to sanction the conduct through the parenting plan at the child’s expense. The mother’s professed remorse will be part of the overall consideration on how this issue relates to the issue of costs.

The s. 112 Report and the Evidence of the OCL

[115] I am mindful of the principle that the court must not delegate its authority to a third party, like an assessor. Likewise, a court is not required to accept the OCL’s recommendations. See Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721 at para. 20.

[116] I pause here, however, to note parenthetically that it is my view that a court’s use of any parenting assessment should depend on the relative informational advantage of the assessor to evidence. In other words, the assessor’s opinion is to be given less weight when the court hears direct evidence on the issue to which the opinion relates. To give an example, where an assessor is providing recommendations and evidence about the children’s views and preferences, the court will likely give more weight to these recommendations because the children do not actually testify. However, when an assessor is making a recommendation on decision-making based on evidence the court has heard directly, the assessor’s opinion about such a broad issue should not have as strong an influence on the court’s findings because the judge, and not the assessor, is ultimately tasked with determining decision-making.

[117] To state the above in a simple synthesized principle: the more of an evidentiary advantage the OCL (or some other third-party assessor) has in support of specific conclusions or recommendations, the more weight the evidence from the OCL should be given. I wish to make one final comment, in stating the above, I am not to be taken as indicating that the evidence, when there is an “evidentiary advantage”, should be accepted wholesale. The weight given to the evidence is still subject to the court determining credibility, including how the evidence holds up under cross-examination.

Distance is a significant factor in determining the parenting schedule

[118] Under s. 24 (3)(g) of the CLRA, the court is required to consider “any plans for the child’s care” in determining the parenting schedule. Here, the logistics of where the parties reside play a significant role in crafting a parenting plan that does not place an undue burden on the child.

[119] I note that the OCL Report recommended a shared parenting schedule. I am grateful to the OCL for its thoughtful views on the issue; however, I consider the recommendation of a shared parenting schedule to be of the kind described above where less weight is given to a specific recommendation because the court has now heard the evidence at trial.

[120] It is also important to note that the OCL in her evidence at trial acknowledged that at the time the report was prepared, the father was residing 20 kilometres closer to the mother's residence than he is today.

[121] Moreover, the OCL gave evidence at trial that as children get older travelling becomes more onerous for them. On May 19th, 2022, when the parties were living 20 kilometres closer to one another than they are today, Rowsell J. concluded that a shared parenting plan required too much time in transit and was inappropriate in this circumstance.

[122] While an interim determination is not binding on a trial judge, and while the trial judge must be given the evidence afresh, where an interim decision is sensible and based on objective evidence, like the distance between the parties, it is open to the court to rely on the interim decision’s conclusions and principles. See Borschel v. Borschel, 2021 ONSC 7843, at para. 9.

[123] It is uncontroverted that Mr. Morrison moved around 20 km further from S. in the summer of 2022, on his own volition, after the decision of Rowsell J. I am not faulting Mr. Morrison for this decision, as his other daughter resides in Peterborough, and he has a current partner who also resides in Peterborough. Nevertheless, whatever Mr. Morrison’s consideration, my sole concern must be S.’s best interests, and this has given further weight to the conclusion that an equal parenting arrangement does not accord with S.’s best interests.

[124] As such, I see no reason to depart from Rowsell J.’s conclusion particularly given that the distance between the parties is now considerably greater.

Conclusion

[125] For all the above reasons, I am ordering that S.’s primary residence remain with Ms. Harper. In consideration of the recommendations found in the OCL’s s. 112 report dated November 29th, 2022, and the parenting time schedule that was in place immediately after the date of separation, Mr. Morrison shall have overnight parenting time with S. on one of the midweek Wednesday visits from pick up after school or daycare on Wednesday afternoon to drop off on Thursday morning at school or daycare. This minor change to Finlayson J.’s order dated January 16th, 2024, is consistent with S.’s best interests.

[126] It should, however, be clear to both parties that in the future, if the distance between the parties’ residences becomes significantly shorter, this court would give serious consideration to implementing the parenting schedule in the OCL Report. If such a scenario should occur, the issue of S.’s parenting time schedule may be returned to the court for review.

[127] With respect to the remaining parenting time schedule, the court is adopting the recommendations of the OCL s. 112 report dated November 29th, 2022, as found in paragraphs 5-10 of the recommendation section of the report with the following amendment:

S. shall spend the first two consecutive weeks of the summer with Mr. Morrison but shall spend the intervening weekend with Ms. Harper from Friday at 4:00 P.M. (pick up by Ms. Harper at Mr. Morrison's residence or other location as agreed between the parties in writing) to Sunday evening at 6:00 P.M. (drop off by Ms. Harper at Mr. Morrison's residence or other location as agreed between the parties in writing). This additional week that S. will have with her father, her sister and her father's family will allow S. to further strengthen her bond and develop and nurture those relationships for the future.

[128] The only objection advanced by Ms. Harper is that the court’s consideration of domestic violence as required under the CLRA should lead it to the conclusion that a shared parenting schedule would somehow not be in S. ’s best interests. I disagree with this position as outlined in my discussion on the issue of family violence and its impact on this case. Moreover, Ms. Harper provided no further evidence or argument as to why the nature of the communication that she experienced as abusive should prevent S. from having as much time as she can with her sister, her father and her father's family and why doing so would not be in S. ’s best interest.

ISSUE 2: What Should the Decision-Making Regime be for S.?

Legal Principles

[129] Co-parenting is a high trust endeavour that requires a high degree of good faith between parents. Unfortunately, the usual cause and first casualty of a relationship is the breakdown of trust. This represents the single greatest challenge in resolving or adjudicating parenting regimes.

[130] It is for this reason that civility and respect, even in a difficult separation, are touchstone principles in the communication between parents who are raising children post-separation.

[131] If failing to make proper disclosure is the cancer of financial issues (Leskun v. Leskun, 2006 SCC 25, [2006] 1 SCR 920, at para. 34), and family violence is the cancer of domestic relationships (Ahluwalia at para. 43), incivility is the cancer of post-separation parenting.

[132] Courts should be extremely cautious about empowering a parent who has engaged in abusive, uncivil, and disrespectful communication, especially because this can be a sign of or foreshadow family violence.

[133] When the court becomes aware of such improper communications between parents, it may wish to consider strict terms regarding communications, making it clear that the court will consider monetary penalties under Rule 1(8) of the Family Law Rules when breached.

[134] I can do no better than Daudlin J. in the decision of S. C. v. M.S., 2024 ONCJ 371, at paras. 48-49, in summarizing the basic principles of how the court determines the appropriate decision-making responsibility regime, reproduced below:

(1) There must be evidence of historical communication between the parents and appropriate communication between them. (2) It can’t be ordered in the hope that it will improve their communication. (3) Just because both parents are fit does not mean that joint custody should be ordered. (4) The fact that one parent professes an inability to communicate does not preclude an order for joint custody. (5) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis. (6) The younger the child, the more important communication is.

[135] Moreover, Sherr J. outlined the criteria for parallel parenting in the case of K.H. v. T.K.R., 2013 ONCJ 418, at paras. 45-46. Sherr J. includes the context in which parallel-parenting orders have been made, particularly where “One parent is unjustifiably excluding the other from the children’s lives and can’t be trusted to exercise sole custody responsibly” (at para. 46).

[136] In addition, a court should not give lip-service to the primacy of the child’s best interests, but then make an order that reflects more of a concern for “even-handedness” with the litigants than ensuring decisions can be promptly and properly made in the child’s best interests.

[137] The principle in Kaplanis v. Kaplanis, 10 RFL (6th) 373 (ON CA), on the importance of evidence regarding the ability of parties to make decisions in the future regarding major decisions, is as binding and valid today as when it was made.

[138] I also note that, whether called “custody” or “decision-making”, such an order will, most of the time, create a sense of empowerment for the parent that receives sole decision-making on an issue. However, on the flip side, a joint decision-making order can also empower a parent who has been more concerned with “rights” than decisions in the child’s best interests.

[139] As I wrote with respect to the parenting schedule above, decision-making regimes should be crafted by applying the principles provided by the legislation and the jurisprudence to the facts as found by the court. The parents’ feelings or perceived rights must not play a role in how the court determines decision-making.

The Parties’ Positions

[140] The current status of decision-making responsibility is set out in Section 4.1 of the Partial Separation Agreement dated June 30, 2021, wherein the parties agreed to have joint decision-making responsibility.

[141] Ms. Harper's position is that due to the hostile nature of communication between the parties and given that she has maintained that she has always been S.’s primary caregiver that she should be granted sole decision-making responsibility.

[142] Ms. Harper’s position regarding decision-making responsibility accords with the OCL Report. The OCL maintained this position during cross examination, notwithstanding their concerns that: Ms. Harper was not supportive of S.’s parenting time with Mr. Morrison; the OCL had concerns about Ms. Harper engaging in gatekeeping and alienating behaviour; and the OCL continued to be concerned that there could be further CAS reports and withholding of parenting time by Ms. Harper.

[143] Under cross-examination, the OCL maintained that they did not think that giving Ms. Harper final decision-making responsibility for S. would prejudice Mr. Morrison’s parenting time with S. as she has demonstrated the capacity to make decisions that were in S.'s best interest.

[144] I respectfully disagree with the OCL’s conclusions on this matter based on the findings I made earlier with respect to Ms. Harper’s coercive and controlling conduct and for the following additional reasons.

Ms. Harper’s decisions with respect to S.’s health that were not consistent with S.’s best interests

S.’s school absences

[145] In his evidence in chief, Mr. Morrison gave evidence about S.’s absences from school as follows:

a. 2022: 18 days absent b. 2023: 43 full day absent c. 2024: 21.5 days absent

[146] According to Mr. Morrison’s evidence most of the above noted absences were not supported by medical documentation. Mr. Morrison’s position with respect to decision-making responsibility was aligned with the OCL and Ms. Harper’s position up until the commencement of this trial, when he changed his position and was now requesting sole decision-making responsibility.

[147] Ms. Harper testified that all the above recorded absences were due to illness and followed the school board directives. While I accept Ms. Harper’s evidence that she may have genuinely believed that S. was too unwell to attend school due to either croup, bronchitis, and/or pneumonia, on the balance of probabilities, in the absence of corroborating medical documentation, I am unable to conclude that S.’s school absences were all due to her inability to attend for medical reasons.

Ms. Harper withholding S. from Mr. Morrison in June 2021 due to her concerns about COVID-19.

[148] I have referred to this incident earlier in my decision; however, for the purpose of the issue of decision-making responsibility, this event is an instance where Ms. Harper’s unilateral decision on an issue of health resulted in Mr. Morrison’s parenting time being withheld. It is of note that, according to Mr. Morrison’s uncontroverted evidence on this matter, Ms. Harper did not facilitate even a telephone or video call with Mr. Morrison during his scheduled parenting time.

Ms. Harper’s second CAS report and the allegation that S. had been sexually assaulted by the daughter of Mr. Morrison’s partner.

[149] I have also referred in detail to this incident earlier in my decision; however, for the purpose of the issue of decision-making responsibility, it is greatly concerning that Ms. Harper brought S. to Lakeridge Health Sexual Assault Centre. S. was subject to an invasive physical examination based on Ms. Harper’s unsubstantiated, hypothetical and speculative opinion about an alleged incident pertaining to S.’s health.

Ms. Harper’s belief that S. has illnesses that have not been diagnosed by qualified health professionals.

[150] Ms. Harper in her cross-examination gave evidence that she believed S. was allergic to cats, and this concern was relevant to S.’s parenting time with Mr. Morrison. Ms. Harper acknowledged that S. had never been tested for allergies.

Ms. Harper breastfeeding S. past the age of 5 years old.

[151] The parties do not seem to dispute that Ms. Harper did in fact breastfeed S. to the age of five, where the parties disagree is whether Dr. Godfrey recommended that this practice stop much earlier. I heard evidence from both parties on that issue and I did not find Ms. Harper’s evidence on the joint meeting with Dr. Godfrey on this issue either credible or convincing.

[152] I did, however, find Mr. Morrison’s account of the meeting believable wherein Dr. Godfrey recommended that Ms. Harper cease breastfeeding S. at such an advanced age. This incident raises concerns about Ms. Harper’s either ability or willingness to follow the recommendations of medical professionals regarding S.’s health and well-being.

Ms. Harper’s belief that S. requires counselling.

[153] Ms. Harper gave evidence that she believes S. requires either counselling or therapy to address issues that she believes are adversely impacting S.’s well-being. While Ms. Harper’s concerns are reasonable and parents should be commended for being proactive regarding their children’s mental health, there is a concern that too much intervention may be detrimental to a child’s natural development. The tension between these two considerations should be resolved with input from the relevant health care professional who can provide parents with specialized knowledge to help them arrive at the best decision for the child. During cross-examination, Ms. Harper acknowledged that she was unaware if any of S.’s health care professionals had ever recommended counselling for S.

[154] Given the level of hostility and animosity between the parties and their poor history of communication, and despite a hope that the consent regarding communication will allow matters to improve in the future, any notion of ongoing shared decision-making responsibility is simply unrealistic, unworkable and unfeasible at this time.

[155] For all the above reasons, I find that it would be in S. ’s best interest that Mr. Morrison and Ms. Harper have divided decision-making responsibility in accordance with the consultation protocol recommended by the OCL Report.

THE EFFECT OF FINDINGS OF FAMILY VIOLENCE ON THE DECISION-MAKING REGIME

[156] Once again, I am required to consider the findings, or lack thereof, as a consideration with respect to the decision-making regime.

[157] The actions by Ms. Harper during the course of the entire litigation of this matter weigh heavily on my conclusions regarding decision-making.

[158] The court always needs to ensure that any decision-making regime protects against a parent who acts as a gatekeeper and acts unilaterally to interfere with the parent-child relationship of the other parent.

[159] Given Ms. Harper’s unilateral actions, as well as my findings on the evidence with respect to specific health related decisions below, these all militate in favour of decision-making for health decisions being placed with Mr. Morrison.

CONCLUSION AND ORDER

[160] I have summarized above the relevant evidence from the parties that applies to decision-making.

[161] The evidence raises serious concerns about Ms. Harper conflating decision-making authority with unilaterally restricting parenting time.

[162] Mr. Morrison should have final decision-making authority with respect to health, and Ms. Harper should have final decision-making authority with respect to incidents of decision-making outside of health issues. Both parents are obligated to engage in consultation with the other parent before any of the above noted decisions are made.

ISSUE 3: What is Mr. Morrison’s Income for the Purpose of Child Support?

[162] The sole issue in dispute with respect to Mr. Morrison’s income relates to a non-taxable benefit of $7,800.00 from his employer, that he claims is respect to travel expenses.

[163] The most compelling analysis of the issue of whether non-taxable benefits should be included in Mr. Morrison’s income comes from the case of Calver v. Calver, 2014 ABCA 63, 569 AR 170.

[164] In that case, the Alberta Court of Appeal analyzed a similar non-taxable benefit and concluded that it should not be included in income. The court found as follows at para. 16,

…it would be inconsistent with the Guidelines to add a travel allowance to income when the Guidelines specifically authorize the deduction from income of travel expenses paid directly by an employee (Schedule 3, section 16(1)); and these amounts can be speculative since they may depend on the number of days away from home.

[165] In Webster v. Webster, 2014 BCSC 730, at para. 37, the court stated the synthesis of the principles as follows:

(a) generally, a living-out allowance paid for the recovery of work-related travel and living expenses will not be treated as income under the Guidelines; (b) living-out allowances are intended to compensate the recipient spouse for the extra costs associated with working away from home. (c) in all the cases where courts have excluded living-out allowances from the recipient spouse's Guideline income, there has been some evidence that the recipient actually incurred extra costs associated with working away from home, although the recipient was not required to account for the whole amount of the allowance; and (d) under s. 19(1) of the Guidelines, the court has a broad discretion to impute such amount of income to a spouse as it considers appropriate in the circumstances.

[166] It is worth noting that in C.C. v. B.M.C., 2023 ONCJ 617, at para. 8, the court likewise found that non-taxable benefits should not be included in income, although in that case the benefits in question were not related to travel.

[167] In my view, the proper approach to this issue is that the non-taxable benefit is presumptively not included in income, but only provided the payor provides some reasonable evidence to establish the amount of the expense incurred for the purpose of employment. The factor in (c) above from Webster is critical to this analysis. I parenthetically note that in the event there is evidence where the non-taxable benefit exceeds the actual amount incurred, it is my view the additional portion is essentially a “windfall” which should be included and grossed-up, as it amounts to a personal benefit.

[168] There was no evidence provided by Mr. Morrison regarding what actual expenses were incurred in carrying out his employment duties. As counsel for the mother points out in her submissions, there were multiple chances given to Mr. Morrison to account for the travel expenses and he failed to do so. I agree with the mother’s submission on this point.

[169] Therefore, I find Mr. Morrison’s income to be $125,479.00, which is his Line 15000 income plus the taxable benefit grossed up.

ISSUE 4: What Order for Retroactive Child Support Should be Made?

[170] Ms. Harper seeks a child support recalculation from the date of the Partial Separation Agreement, from June 2021, and onward. For the following reasons, I will adjust support from the date of the Rowsell Order, May 19, 2022, but not from the date of the agreement.

[171] Ms. Harper’s position is essentially that the June 2021 Partial Separation Agreement was without prejudice and that in her answer, filed in response to Mr. Morrison’s application of August 30, 2021, she clearly pleaded a claim for the full Table amount from the Child Support Guidelines for child support based on her position that S.’s primary residence was with her.

[172] Mr. Morrison asks that I accept that the parties were working towards a shared-parenting plan and that it was intended that support be based on a set-off amount and not the full Table amount. In reviewing the Partial Separation Agreement of June 30th, 2021, wherein the child support was determined based on set-off (presumably based on a shared parenting plan), it is abundantly clear that the parties were working towards a shared parenting plan. In her evidence at trial, Ms. Harper acknowledged that the June 30, 2021, Partial Separation Agreement aspired to a shared parenting plan.

[173] In reviewing all the evidence as noted above, I find that up to the time that Ms. Harper arbitrarily and unilaterally withheld S. from her father that the parties were working towards a shared parenting arrangement.

[174] For the purpose of determining the appropriate amount of child support payable for the period starting from the execution of the Partial Separation Agreement in June 2021 and Rowsell J’s order of May 19, 2022, I make the following findings:

[175] Mr. Morrison was paying child support in the amount agreed to in the June 30, 2021, Partial Separation Agreement and that both parties had counsel when executing the above noted agreement.

[176] That to my knowledge, Ms. Harper never brought a motion for a temporary order on parenting time or for temporary child support.

[177] Ms. Harper adduced no evidence at trial that S. suffered any adverse material effect from the amount of child support that was being paid to and agreed to by the parties.

[178] Ms. Harper provided no evidence at trial that the amount of child support paid by Mr. Morrison up to the Rowsell Order dated May 19, 2022, was either inappropriate or inadequate or was contrary to S.’s best interests.

[179] Ms. Harper’s unilateral actions deprived S. of the opportunity to have the court determine if Ms. Harper’s move to Oshawa was in fact in S. ’s best interests, or whether a shared parenting time arrangement was in S. ’s best interests. It is possible that a court may have concluded that Ms. Harper’s move to Oshawa was in S. ’s best interest; however, due to Ms. Harper's actions, we will never know.

[182] Moreover, there is no question that Ms. Harper pre-empted the possibility of a shared parenting plan and predetermined the parenting schedule by withholding S. from her father for at least 43 days and then denying S. meaningful parenting time with her father, including overnights, for a period of seven months.

[183] In light of the above I find that the amount of child support payable by Mr. Morrison up to May 19, 2022, was appropriate and in accordance with S.’s best interest and therefore it would not be appropriate for the court to exercise its discretion under s. 56 (1.1) of the Family Law Act, R.S.O. 1990, c. F3, to vary the amount of child support agreed to under the separation agreement of June 2021.

[184] Although I am aware that post-application support is not “retroactive” support, I nonetheless exercise my discretion to ensure that Ms. Harper’s self-help remedies and unilateral actions are not rewarded. To do so might create an incentive for parents to flaunt the statutory requirements of the relevant legislation, rely on the chronic delay of having matters adjudicated in a timely manner due to limited judicial resources and then claim entitlement to support for the period the child was in the person’s care until a court can properly determine the issues.

[185] I further recognize that the agreement between the parties was “without prejudice.” However, it was also intended at the time that the parties were moving towards shared parenting and therefore, there was an offset of support.

[186] As such, it was only when there was a judicial determination of the parenting terms that an adjustment to support should take place.

[187] For these reasons, I decline to exercise my discretion to order retroactive support from the date of the Partial Separation Agreement until May 19th, 2022, which is the date of the Rowsell Order.

Child Support arrears post May 19, 2022

[188] There is also no question, that from the date of the Rowsell Order of May 19th, 2022, that Mr. Morrison should be paying full child support to Ms. Harper in accordance with his income as determined in accordance with the Child Support Guidelines.

[189] The court also accepts Ms. Harper's evidence with respect to the arrears owing as of June 2022 to June 2024. These calculations constituted part of Ms. Harper’s evidence in chief and were summarized in Schedule “C” submitted for closing arguments. In his evidence, Mr. Morrison did not contest the accuracy of the above calculations.

[190] Accordingly, the child support arrears owed by Mr. Morrison to Ms. Harper as of June 30th, 2024, are hereby set at $4,514.00. I accept Mr. Morrison's evidence that he incurs additional costs with respect to his other child Grace, as well as considerable costs in transporting S. to and from daycare and that these costs pose somewhat of a financial burden on Mr. Morrison.

[191] Given that I have discretion on the repayment of the arrears, and given these extra expenses, the arrears shall be paid back at a rate of $75.00 per month, commencing July 1, 2024, and on the first of each month thereafter. Of course, Mr. Morrison may pay back all the arrears earlier if he so chooses.

ISSUE 5: What Order for Ongoing Child Support should be made?

[192] Given that I have found Mr. Morrison’s income is $125,479.00, the Child Support Guidelines provide that ongoing support shall be $1,111.00 per month. This shall commence July 1, 2024, and is payable on the 1st of each month every month thereafter.

[193] For the purpose of expenses under section 7 of the Child Support Guidelines, Mr. Morrison’s income shall be $125,479.00 and Ms. Harper's income shall be set at $96,969.00.

[194] The parties shall exchange annual disclosure of the respective incomes in accordance with the Child Support Guidelines and adjust child support accordingly.

[195] I also order that for the first exchange of disclosure (by June 30, 2025), Mr. Morrison has the opportunity to provide backup documentation if he receives the travel benefit again. If it is reasonable and satisfactory, then the taxable benefit will be excluded from his income, as per the principles I have articulated above.

[196] If the parties are unable to do so on consent, the matter may be returned to court for review. However, I want to give a caution to both parties that they must act reasonably in negotiations over any child support variation. For example, if Mr. Morrison reasonably proves his travel benefit, it should not be counted in his income. There will be costs consequences for unreasonable behaviour on this issue; unreasonable behaviour has unfortunately marred the totality of these proceedings.

COSTS

[197] I encourage the parties to settle the issue of costs, especially in light of my comments earlier in this decision. On its face, I consider the decision to be a classic case of divided success. Moreover, I did not order shared parenting primarily because of the logistics issue; had the distance been shorter between the parties, the result likely would have been different. In the event there are offers to settle, or if the parties wish to try to persuade me of a request for costs, I will invite any party requesting costs to provide 3 pages of costs submissions, double-spaced, exclusive of offers to settle and bills of costs. A 3-page response is permitted by any party who opposes the costs sought by the other party. There will be no reply submissions. Any submissions with respect to costs must be filed no later than December 13th, 2024. If no materials are filed by the above noted date, there will be no order as to costs in this matter.

FINAL COMMENTS

[198] I hope both parents take to heart my comments throughout these reasons and I wish them much success in raising S. so that the relationship with each of her parents is special and highly valued.

The Honourable Justice G. Kay Released: November 4, 2024 Corrected Decision Released: November 13th, 2024

November 13, 2024 – Corrections:

1. Paragraph 3: the trial was heard over ten days (previously noted as nine) during the June trial sittings (previously noted as September).
2. Paragraph 17: “Ms. Harper reported to the children’s aid society concerns about Mr. Morrison’s (previously noted as “Mr. Harper’s”)
3. Paragraph 32: “by way of 14b” added.
4. Paragraph 37: “the police,” removed.
5. Paragraph 57 (a): “Dr. Wasea” corrected to “Dr. Waese”
6. Paragraph 90: “police” removed.
7. Paragraph 100: “Ms. Poone” corrected to “Ms. Poon.”
8. Paragraph’s 151 and 152: “Dr. Godfried” corrected to “Dr. Godfrey.”
9. Paragraph 197: “Any submissions with respect to costs must be filed no later than December 13th, 2024. If no materials are filed by the above noted date, there will be no order as to costs in this matter” added.