Court File and Parties
COURT FILE NO.: FS-24-00041897-0000 DATE: 20241217 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Courtney James Dupont-Goode, Applicant AND: Noshina Ashmeade, Respondent
BEFORE: Justice M. Sharma
COUNSEL: Wafa Khan, for the Applicant Omar Rambhajan, for the Respondent
HEARD: December 10, 2024
Endorsement
1The Applicant father brings this motion for primary parenting time on weekdays of the parties’ two children, KA (aged 7) and KI (aged 5), with the Respondent mother having parenting time on the weekend, an order for interim child support, payment of s. 7 expenses, and costs. The full particulars of the relief are set out in his Notice of Motion.
2The Respondent brings a cross-motion. She seeks a dismissal of the Applicant’s motion, declaratory orders that the Applicant is a perpetrator “of the tort of family violence”, and “the tort of ‘battered women’s syndrome’”, an order that the Applicant’s parenting time be limited to supervised daytime visits, an order that the Respondent be given sole decision-making, and orders regarding child support, imputation of income, and s. 7 expenses.
3Rhinelander J. heard a recent case conference in this case. She only granted leave for a motion on interim parenting time and child support. She did not grant leave for decision-making and therefore, I decline to consider this relief.
4I dismiss the relief the Respondent seeks for declaratory orders that the Applicant is a perpetrator of the tort of family violence and the tort of battered women’s syndrome. The Ontario Court of Appeal has held that there is no tort of family violence: Ahluwalia v. Ahulwalia, 2023 ONCA 476. While this decision has been appealed to the Supreme Court of Canada, the Court of Appeal’s conclusion has not been overturned.
5Battered women’s syndrome is a psychological condition; it is not a tort recognized in law in Ontario. Respondent’s counsel was unable to point to authority to suggest otherwise.
6Furthermore, if there were a tort remedy, this relief would have to be pled in the Respondent’s Answer, and Respondent’s counsel advised neither tort was pled in her Answer. Even if a proper tort were pled, it would be highly unusual to make declaratory orders regarding tortious liability at a 1-hour motion. To make such a declaration would require viva voce evidence and would usually only be given following trial.
7The Applicant seeks to strike multiple paragraphs from the Respondent’s affidavit because they are (a) scandalous and intended to prejudice or embarrass the Applicant on issues that are not relevant to the issues on this motion; (b) contain opinion evidence; (c) contain law and legal argument; (d) contain hearsay evidence.
8I agree that many paragraphs in the Respondent’s affidavit include allegations that are irrelevant to this motion, are scandalous, contain opinion evidence of third parties, contain law and argument, or constitute hearsay. This is a one-hour motion. I decline to dissect and provide reasons for each offensive paragraph.
9The Respondent’s affidavit and factum also does not comply with the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice (“Practice Direction”), which requires that all affidavits and factums be double-spaced. They were all single spaced.
10Given the frequency with which improper motion materials are filed in family proceedings, it is worth reminding counsel in this case and the profession more generally of what is appropriate in support of a family motion.
a. A Notice of Motion should succinctly set out the relief sought and may cite the statutory basis for the relief. However, it is not appropriate to recopy the text of rules or statutory provisions or cite and re-copy portions of caselaw within a Notice of Motion. b. Evidence on a motion may be given by way of affidavit or other admissible evidence in writing, a transcript of questions and answers from questioning under rule 20 of the Family Law Rules, or with the court’s permission, oral evidence: R. 14(17) Family Law Rules. c. An affidavit should contain only relevant facts that are material to the issues raised in the motion. The inclusion of facts that are irrelevant or not material to the issues to be decided constitutes poor advocacy. It distracts the judge from the issues to be decided, consumes limited affidavit space, and raises costs unnecessarily for both parties. The insertion of irrelevant, scandalous and immaterial facts suggests to a judge that a litigant is more concerned about maligning the opposing party than meeting the prescribed legal test for the relief sought. It creates an irrelevant distraction. d. An affidavit should contain detailed facts in support of an allegation or position taken on the motion. For example, it is not sufficient to state the opposing party engaged in family violence, without providing detailed facts of the alleged family violence. e. An affidavit should not plead the law, contain argument, or cite legal authorities or authoritative texts. These matters should be in a factum. f. An affidavit must contain admissible evidence. In certain circumstances, limited hearsay evidence may be found to be admissible and given weight by the presiding judge where it is necessary to receive such evidence and where such evidence has indicia of reliability, or where another exception to the rule against hearsay evidence applies. However, a party’s affidavit should not rely significantly on hearsay evidence as the basis to support or refute allegations. Affidavits from individuals with firsthand knowledge of the information should be filed, and if necessary, leave should be sought to file additional affidavits than are permitted under the Court’s Practice Direction. g. In family cases, opinions of doctors, teachers, Children’s Aid Society (“CAS”) workers, or therapists are often relevant to the outcome of a case. Their opinions should not be in the text of a party’s affidavit, nor should reports with opinions from such professionals be attached as exhibits to an affidavit. It is also not proper to include within an affidavit text of a published report or other external sources from purported experts where their opinions are expressed.
Instead, the purported expert who is expressing an opinion should prepare their own affidavits. If expert opinion evidence is to be relied upon, it must be provided by an expert and the requirements under rule 20.1 of the Family Law Rules must be met. It is not common to have expert opinion evidence on a motion; expert opinion evidence is most often relied upon at trial where their opinion can be tested under cross-examination. If opinion evidence is to be admitted on a motion, leave should be sought for the admission of an affidavit of an expert.
However, where an exhibit is a business record that merely records an act, transaction, occurrence or event (and not an opinion), it may be attached to an affidavit as an exhibit: Evidence Act, RSO 1990, c. E.23, s. 35. Examples include a child’s attendance record maintained by a school, work or employment records, and records maintained by a CAS that records facts or observations of a CAS worker. See Catholic Children’s Aid Society of Toronto v. L. (J.), 2003 ONCJ 57514, at paras. 10-11; Dworakowski v. Dworakowski, 2022 ONSC 7209, at para. 52. h. Only necessary, relevant and material exhibits should be attached to an affidavit. The exhibit must be legible. The text of the affidavit that references the exhibit should explain specifically what the exhibit is intended to demonstrate. i. Counsel have a duty not to mislead the Court. When attaching extracts of text or email messages as exhibits, counsel should carefully consider if several pages of text/email messages, rather than a single page, should be included as an exhibit to ensure the context in which the message was sent and received is properly understood by the Court. A single page of text/email messages, with only one statement being relied upon by a litigant, may be insufficient to reach a factual conclusion or inference if the context in which the message was sent and received is not readily understood, or if only a single page of the text/email message is entered. Counsel may also consider, within the text of the affidavit, explaining the context in which the message was sent or received. If not readily apparent, the text message should make clear who is saying what. j. It is a best practice to hyperlink exhibits within an affidavit to permit a judge to review and consider exhibits efficiently. Hyperlinks allow judges to quickly look at the exhibit while reading the text of the affidavit, and then return to where they left off in the affidavit. k. Font, spacing and page limits prescribed in the Practice Direction must be followed. l. It is improper to attach as an exhibit to an affidavit an affidavit of a different person to overcome the restriction in the Practice Direction that only one primary affidavit may be filed for a motion or cross-motion. m. It is poor advocacy to repeat the parties’ full names each time a party is referenced in an affidavit. If an Affidavit is sworn by a party, they should refer to themselves in the first person (i.e., “I” or “me”), rather than the third person (i.e., “The Respondent, Noshina Ashmeade” or “she”). Use of the third person suggests that the words in the affidavit are not facts sworn by an affiant, but legal argument of the lawyer who prepared it. n. An affidavit should be reviewed by a party’s lawyer for proper spelling and grammar prior to the party swearing an affidavit. While minor errors will rarely impact the outcome of a motion, the improper use of grammar can raise questions about what the affiant intended by the words used. o. It is improper to mention the substantive contents of an Offer to Settle when the substance of the Offer is the subject of the motion. Nor is it proper to refer to discussions at a case conference, settlement conference or trial management conference, including opinions expressed by a previous judge involved in the case. p. Factums should be laser-focussed. In numbered paragraphs and in an organized manner with subheadings, they should: i. Identify the relief that is sought as set out in the Notice of Motion; ii. Provide a brief factual background of the case that is relevant to the motion; iii. Identify the issues to be decided on the motion; iv. Identify the legal test to be applied, including any factors, and with reference to the relevant statutory authority and caselaw; v. Pinpoint the paragraphs within the affidavit evidence that establish the facts relevant to the legal test to be applied. Parties should not simply cut and paste an affidavit into a factum. The facts should be synthesized and applied to the legal test; and vi. Conclude by explaining how the legal test has been met and what orders should be granted.
11All of the above problems were present in the Respondent’s motion material, including her affidavits and her factum (although she did hyperlink exhibits). Some were present in the Applicant’s affidavit. I have only considered evidence that was properly before me.
Brief Background
12Parties are not married. The evidence of their relationship is disputed, although the following may be fairly said for the purposes of this interim motion and based on the evidence before me.
13The parties started a relationship in or around December 2014. They lived together in an apartment. While there were periods when their relationship ended, and possibly lengthy periods in the interval between May 2017 to March 2024, by March 2024 the Applicant had vacated the premises in which he lived with the Respondent.
14The parties have two children, KA (aged 7) and KI (aged 5). They both attend school in Scarborough proximate to the apartment in which the parties lived. A child from the Respondent’s prior relationship also lived with the parties.
15The Applicant lives with his girlfriend, Tiffany, in Pickering, which is approximately a 10-15 drive to the children’s school.
16The Applicant runs his own landscaping business. He says his hours are flexible and that he can accommodate a regular weekday parenting schedule. He further states that Tiffany can assist with parenting responsibilities.
17The Respondent is not working full-time. She is taking online courses between 4:30 pm and 9:30 pm, Monday to Friday, and she is a contracted employee at two jobs with flexible hours.
18After the Applicant moved out of the parties’ apartment, the Applicant has been seeking to have time with the parties’ children. This is not disputed. Nor is it disputed that the Respondent has refused to permit the Applicant to have regular parenting time with the child, although at the case conference before Rhinelander J., the Respondent did agree to the Applicant spending alternating weekends with the children from Friday afternoon to Sunday at 5:00 pm. This is the current parenting schedule. The Applicant seeks to have the children reside with him during the week, and with the Respondent on weekends.
19The Respondent opposes additional parenting time and argues the Applicant’s parenting time should be supervised and restricted to daytime visits, without overnights.
20Both parties allege family violence as a significant factor for their requested schedules. The Respondent also alleges that the reason why the Applicant seeks most of the parenting time is to secure a child support order in his favour. The Applicant hurls the same accusation at the Respondent.
21On April 7, 2024, the Applicant’s Application was issued.
22On April 23, 2024, the Applicant was charged with sexual assault and assault where the Respondent is the alleged victim. The charges are pending. I was advised by counsel that it is as a condition of the Applicant’s pre-trial release that he not have direct or indirect communication with the Respondent, but this condition is subject to a Family Court order.
23After separation, there have been difficulties in communicating due to the criminal undertaking. The Respondent’s mother, Angela Lewis, has been involved in facilitating transitions and communications. Suffice it to say, it has not gone smoothly.
24In addition, since March 2024, the children have required medical intervention. The Applicant alleges that he has asked for medical information with respect to the children, which request was denied. Instead, the Applicant was advised to obtain information directly from medical care providers. This fact was also not disputed.
25Parties appeared before Rhinelander J. in November 2024 at the first case conference, where leave for this motion was granted and an Order for OCL involvement was made. Parties have confirmed that the OCL Order was served on the OCL, but the OCL has not yet confirmed it will assist this family, and as such, it has not initiated intake or an investigation under s. 112 of the Courts of Justice Act.
Issues
26I now turn to the issues in this case, namely:
a. What interim parenting time order should be made? b. What amount of interim child support should be paid and by whom? c. What cost order, if any, should be made.
Issue 1: What interim parenting orders should be made in this case?
27As parties are not married, the governing legislation is the Children’s Law Reform Act, RSO 1990, c C. 12 (“CLRA”). S. 28(1)(ii) permits this Court to grant an order for parenting time, and s. 28(1)(c) authorizes any additional orders the Court considers necessary.
28In making a parenting order, the court shall only take into account the best interests of the child: s. 24(1) CLRA. In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, and in so doing, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s. 24(2) CLRA.
29Factors related to the best interests of the child include those listed in s. 24(3) of the CLRA. I review these factors based on the best available evidence before me.
30In assessing these factors, the only evidence was from the parties. There was no independent and objective evidence from the OCL or other parenting assessor of what is best for these children, nor was there expert evidence of what is best for children of this age.
31In the absence of such evidence, I refer to the AFCC-Ontario Parenting Plan Guide, (“Guide”) as independent and objective evidence of what is best for children. The Guide has been relied upon by other judges of this Court in determining parenting schedules that are in a child’s interest based on the child’s age and developmental stage: see Hatab v. Abuhatab, 2022 ONSC 1560; Czyzewski v. Fabro, 2022 ONSC 4883; McBennet v Davis, 2021 ONSC 3610; Dworakowski v. Dworakowski, 2022 ONSC 7209. As stated by Chappel J. in McBennet at para. 92:
The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.
32Age. The children are 5 and 7. Given their age and stage of development, I find that they require a measure of stability. However, they are not so young that they cannot withstand periods away from their primary caregiver.
33For a 5-year-old, if one parent had primary responsibility for care of the child, the other parent should have a step-up plan of care, and one or two overnights a week may be appropriate. A 7-year-old can more easily understand and manage differences in parenting styles and should generally have very significant involvement with both parents. A schedule of two to seven nights in a two-week cycle may be appropriate.
34Nature and strength of bond with parents and family members. The Applicant provided evidence of the children having a close relationship with him. He further gave evidence, albeit hearsay, that the children have said they do not understand why they have nearly two-week (11-day) absences from their father. He says he was involved with their daily living – bathing, changing and early childcare, and when he was working full-time, he would make efforts to be around them.
35The Respondent has not led much evidence of her bond with the children. She says that prior to 2023, the Applicant did not express any interest in the care and upbringing of the children, and that he did not participate in their lives. The Respondent acknowledged, however, that this changed in 2023. She said that this is related to an apparent plan by the Applicant to avoid child support or to receive child support from the Applicant. She states that the children are fearful of their father.
36In terms of the Respondent’s role, she said that she breastfed the children until they were 1 ½ years old. She said that her mother, Ms. Lewis, would often care for the children at night when the Respondent was exhausted. In the spring of 2020 when the Covid pandemic started, the Respondent stated that Ms. Lewis would care for all three children while the Respondent was working full-time, and they would have breakfast, lunch and dinner with her until they were retrieved by the Respondent and brought home in the evening. Ms. Lewis continues to facilitate pick-ups and drop-offs at school. On weekends, when the Respondent is not working, she stated she plans activities with the children. She said the children are doing well due to her efforts to support, love and provide for them.
37On a balance of probabilities, and for the purposes of an interim motion, I am satisfied that the children have a close and loving bond with the Respondent and with their maternal grandmother, and that they also have one with the Applicant. The Respondent has admitted that at least since 2023, the Applicant has been more interested and involved in the lives of the children.
38Parent’s willingness to support development and maintenance of child’s relationship with the other and ability and willingness to cooperate. I find that the Respondent has not been supportive of the child’s relationship with the Applicant, and she has not been willing to cooperate with him.
39There have been efforts by the Applicant that appear to be reasonable and sensible in the circumstances to work with the Respondent around parenting time and exchanging of information about the children. They have been met with resistance or a lack of response from the Respondent.
40The evidence is that she has not acted reasonably with respect to the Applicant’s parenting time. From April to October 2024, he was only permitted by the Respondent to spend weekends with them, from Friday after school to Sunday. Even during his current parenting time, the Respondent or Ms. Lewis, refused modest extensions of his parenting time when the children have attended events with their father (i.e., Canada’s Wonderland, a birthday party). She refused to permit the Applicant to care for the children while they were on holidays or over the Thanksgiving weekend. She refused to give consent for the Applicant to take the children out for lunch during their lunch break at school. On the Applicant’s weekend, he alleges the Respondent took the children out of school on Fridays, resulting in the Applicant not being able to pick them up from this neutral location. She has refused to provide necessary medical information about the children. She refused to permit the Applicant’s girlfriend, Tiffany, to facilitate with transitions, and instead called the police when Tiffany contacted her about this issue, arguing it was a breach of the non-communication undertaking.
41Ms. Lewis’ involvement as a third party to assist with transitions has not helped. The Applicant’s evidence is that Ms. Lewis acts in a manner that increases conflict in front of the children. There was no affidavit evidence from Ms. Lewis attesting to what happened at transitions. I decline to consider Ms. Lewis’ affidavit attached as an exhibit to the Respondent’s affidavit.
42None of this is in the children’s best interests.
43History of care of the children. There is a dispute as to the history of care of the child, particularly when they were younger, as noted earlier. Parties also dispute the extent to which the Applicant attended parent teacher interviews or school events. The Applicant attached video evidence of the children at a Christmas concert, which he says he recorded.
44Regardless of these disputed facts, the Respondent has acknowledged that the Applicant was involved in the care of the children since 2023. In October 2023, the Respondent was in a car accident and was injured. Her evidence suggests that the Applicant assumed a greater role caring for the children as a result. The Applicant states he was home helping the Respondent and the children after her injury. However, the Respondent says that his assumption of greater care of the children arose from a plan by him and Tiffany to escape the Applicant’s financial responsibility for the children.
45Regardless of the intent, it appears that at least for more than a year, the Applicant has been regularly caring for the children and that he has been willing to do so.
46There is no direct evidence of the children’s views and preferences. They are both young and such evidence would be given little weight in any event. What the parties have identified as the children’s wishes is hearsay, cannot be tested, and its reliability is suspect given the motives of the parties.
47Parties’ Heritage. The Applicant has Jamaican, Puerto Rican and Newfoundlander roots. He intends to raise the children with pride in their diverse backgrounds and will be mindful of the racial scrutiny endured by young black men when raising his son. The Respondent did not dispute this in her affidavit nor raise other cultural, linguistic or heritage considerations.
48Plans for children’s care. The Applicant states that he lives no more than 15 minutes from the children’s school. He says his work schedule is flexible to permit him to care for the children. He proposes to care for them during the weekdays after his return from work, with a mid-weekday spent with the Respondent from 8 am to 8am the following day. The Respondent would also have the children on alternating weekends from Friday after school to Monday return to school.
49He says he will have support from Tiffany who is also a mother. In addition, he will be supported by his grandmother, Tiffany’s parents, and friends.
50Upon the children’s return from school, he states he will care for the children on weeknight afternoons and evenings. He has a room for the children in his home with a bunkbed. He says he will ensure the children have regular contact with the Respondent, and with maternal and paternal extended family members.
51In Case Center, there is no Form 35.1 Affidavit from the Respondent speaking of her plan of care. From her affidavits filed, she works as a contractor/freelancer. She has online school from 4:30 pm to 9:30 pm on weekdays. Ms. Lewis has been principally involved in school pick-ups and drop-offs. Since 2020 with the arrival of the Covid pandemic, Ms. Lewis assumed feeding the children all their meals at her home and the Respondent would collect them at the end of the day. It is not clear whether this role by Ms. Lewis continues. It seems not. The evidence is consistent that by 2023 after the Respondent was in a car accident, the Applicant was involved in the daily care of the children at least until March 1, 2024, and then had regular care on weekends.
52The Respondent says she assists the children with homework. She says that she works overnights to support the children, and when she does, the children are in the care of Ms. Lewis. The Respondent has enrolled the children in summer school and daycamps. She takes them to parks and participates in activities with them. It is assumed all of this will continue and that Ms. Lewis will continue to have a regular role in the lives of the children.
53Ability to meet the needs of the children. The Applicant alleged that when the children are in the Respondent’s care they are neglected, placed in front of a television and that the older 7-year-old child is required to cook meals for the younger child. He says that when the children come into his care, they are not clean. He alleges the Respondent does not bathe them regularly. He says the state of her apartment is not clean. He attached photos to his July 17, 2024 affidavit which demonstrate the state of uncleanliness, which he says is usual. The state of uncleanliness and disorder is remarkable and not appropriate for any child, although it is not evident when these photos were taken. They must have been taken before the Applicant’s arrest in April 2024, and may not represent the current state of the Respondent’s apartment.
54The Respondent’s affidavit, dated July 20, 2024, did not respond to this allegation, except she alleged the Applicant did not fix a screen in an apartment window, which she ultimately repaired. Therefore, it is more probable than not that the Respondent’s home remains in a state of uncleanliness and disorder.
55The Applicant stated that in his care, he and Tiffany will have the ability to care for the children in the well-maintained townhome in which they live. He says it is safe and clean. The children will have their own room. He has a flexible work schedule and will continue to cook and provide for them. He stated that he will engage in activities with them outdoors and with other children, and that he controls their screen time.
56The Respondent disputes allegations made against her by the Applicant. She acknowledged that the older child knows how to use an oven, but that she is supervised when she does so. She denied the allegation that KA sleeps on a chair; she stated the children sleep in a bunkbed in her home. She said that she will care for them as she has been their primary caregiver. She stated that without financial support from the Applicant, she has had to rely on Ms. Lewis for financial assistance. The absence of financial support from the Applicant may also be a factor related to the poor state of the Respondent’s apartment.
57She said that a CAS worker, who investigated a child welfare complaint allegedly made by the Applicant, had no concerns with the Respondent’s ability to parent the children and the file was closed. She said the CAS worker “applauded” the Respondent for having supportive family. This was hearsay and is an expression of opinion. There were no CAS records in evidence, which could have been admitted as business record, although any opinions would not be admissible.
58The Respondent did not explain how, given her online schooling from 4:30 pm to 9:30 pm on weeknights, she is able to care for the children after school. Therefore, it appears more likely than not that the children must care for themselves or are placed in front of a television for periods of time while the Respondent is attending school. The Respondent’s learning is online and presumably at home. The Respondent likely has breaks where she can briefly attend to the children’s needs.
59The best evidence before me on this motion is that the Applicant can care for the children in his home, and that the Respondent is challenged to do so and does not maintain her home in a manner suitable for children. However, she is supported by Ms. Lewis. It also appears to me that if the Respondent had greater financial means, including support, she would be better able to care for the children.
60Family Violence. The Applicant argued that the Respondent’s neglect of the children constitutes family violence. He also argued that the Respondent’s unreasonable rejection of the Applicant’s request for parenting time constitutes intentional estrangement and alienation between the Applicant and the children and is a form of family violence.
61The Applicant also alleges that due to the Respondent’s controlling behaviour, and notably her unreasonable limits on the Applicant’s parenting time, and her neglect of the children, she has engaged in emotional and psychological abuse of the children: B. v. W., 2022 ONSC 934. He also alleges because the Respondent has called the police for minor issues following the criminal charges against him, this is a form of psychological abuse: K.M. v. J.R., 2022 ONSC 111. He relies on the expansive definition of coercive and controlling behaviour in s. 24(4)(b) CLRA, as described by Chappel J. in V.K.G. v. I.G., 2023 ONSC 6329, at para. 117 to include behaviour,
“…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 and wellbeing….
…and where a party has engaged in behaviour that has had the effect of undermining the other parent’s authority or influence and alienating the child from that parent without justification.” [citations omitted].
62Finally, he stated that the Respondent’s current boyfriend has threatened the Applicant and that he maintains firearms. The Applicant is concerned about the children’s safety if the Respondent’s boyfriend is present with the children. The Respondent states that this person is no longer her boyfriend and that their relationship ended in 2022. The Applicant states this is false because the children tell him that they see him regularly when they spend time with the Respondent. I cannot discern based on the evidence whether the Respondent still spends time with this individual, but I am satisfied that this individual’s presence in the children’s life may raise a safety concern because of the text messages adduced by the Applicant which show the Respondent also expressed some concern about the individual.
63The Respondent also alleges family violence. Assault and sexual assault charges that were laid against the Applicant after he commenced this proceeding. The Respondent relies on Barendregt v. Grebliunas, 2022 SCC 22, at para. 143 for the following proposition:
“The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives…Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.” [citations omitted].
64I cannot make any temporary findings as to whether it is more likely than not that the Applicant engaged in the alleged assault or sexual assault, or what impact this has had on the Respondent’s mental and emotional health or on the children. This is because the Respondent provided no particulars about these allegations in her material, nor did she describe the impact they had on the children. To the extent that she relies on negative impacts on the children, she only refers to events after the Applicant resumed his parenting time.
65The Respondent alleges the Applicant engaged in financial coercion by not paying child support since March 2024 and because he unilaterally made a false claim to the Canada Revenue Agency (CRA) to have child tax and family benefits for KA and KI paid to him. On these allegations, I am satisfied that the Applicant made offers to pay child support, but the Respondent did not advise how much she needed. Nonetheless, it was incumbent on the Applicant to pay the Respondent child support, based on his income. I am also satisfied for the purposes of this motion that the Applicant unilaterally sought to have the child tax and family benefits paid to him, but that the CRA ultimately disagreed with the Applicant on September 11, 2024, after receiving evidence from Ms. Lewis and others that the children resided with the Respondent. This was evidenced in a letter from CRA to the Respondent on September 11, 2024. This constituted a form of financial abuse on the Respondent who clearly had need for support.
66The Respondent says the children have been exposed to issues and conflict in this case, and that the Applicant has been inciting fear in the children. She alleges that KA now wets her bed, and that KI pretended to shoot children at school. She says this behaviour was not present prior to these proceedings. These are minor conditions and for the purposes of a motion, it is not possible to determine whether they are related to the Applicant’s parenting of the children. According to the Respondent, KA is doing very well in school.
67The Respondent further alleges that KI injured himself and broke his clavicle while in the Applicant’s care one weekend. According to the Respondent, KI stated that Tiffany hurt him when she was swinging KI around. From this isolated incident, I do not conclude that the Applicant or Tiffany engaged in abusive behaviour. The Respondent’s evidence suggests the child was injured while playing with Tiffany. The injury was not so significant that the Respondent took the child to the hospital immediately. She took him there the following day when the broken clavicle was discovered. Children sometimes get injured while playing and parents and caregivers sometimes inadvertently hurt their children. There is insufficient evidence to find the injury was intentional.
68She alleges the Applicant was mentally, physically, and emotionally abusive to KE – the Respondent’s child from a previous relationship. Again, she provides no particulars of this abuse.
69She attaches a text message from the Respondent to Victoria Lewis, who has another child with the Applicant to demonstrate that the Applicant has a history of being abusive. However, this evidence ought to have come from Victoria Lewis. I cannot accept unsworn words used by Victoria Lewis in a text message to the Respondent as evidence on this motion.
70She alleges that the Applicant has involved the children in these proceedings and asked them to take positions. There may be truth to this allegation, but it is not possible to test it given the competing allegations.
71In conclusion, I am satisfied that the Respondent has engaged in emotional and psychological abuse of the children by refusing to permit them to spend time with the Applicant and by contacting the police on minor issues, and that the Applicant has engaged in financial abuse of the Respondent by not paying support to her and by unilaterally attempting to divert child and family tax benefits to him.
72Other proceedings. The only other known proceeding is the criminal charges against the Applicant. Those charges do not relate directly to the children. I have considered them earlier in my reasons.
Parenting Time Order
73After considering the above factors, and in giving primary consideration to the children’s physical, emotional and psychological safety, security and well-being, I make the following temporary parenting orders:
Regular Parenting Time
a. The children shall be in the care of the Respondent mother every Monday and Tuesday, from 8:30 a.m. on Monday to Wednesday morning at 8:30 a.m. or drop-off at school. b. The children shall be in the care of the Applicant father every Wednesday and Thursday, starting at 8:30 a.m. on Wednesday to Friday morning at 8:30 a.m. or drop-off at school. c. In addition, the children shall reside with their parents on alternating weekends, commencing at 8:30 a.m. on Friday to Monday morning at 8:30 a.m. or drop-off at school. d. During the parties’ parenting time, the parties shall bring their children to their school on the days that school is open, unless the child is ill or has a medical appointment and is unable to attend school. In which case, the parent who would otherwise have parenting time on that day shall be responsible for the child’s care. e. During the Christmas holiday break from school in 2024, the children shall reside: i. With the Applicant from after school on Friday December 20, 2024 until December 25 at 1:00 pm; ii. With the Respondent from December 25 at 1:00 pm until January 2, 2025 at 1:00 pm; and iii. With the Applicant from January 2, 2025 at 1:00 pm until the return to school on Monday January 6, 2025.
Communication Orders
f. The parties shall communicate by text message, or if either party requests, through AppClose – a free parenting application. g. All communication shall be polite, respectful and shall only communicate facts in relation to the children. It shall be child-focussed. The parties shall not engage in accusations, use offensive language, or denigrate the other parent in their communication. h. The parties shall not harass, molest or annoy the other party. i. The parties shall immediately share all medical information and important educational information about the children. j. All communication shall be responded to within 48 hours, or in the case of a medical emergency involving the children or where a party will be unexpectedly late for a transition, they shall respond immediately. k. The parties shall not speak negatively to the children about the other party, nor shall they invite, encourage or permit others to do so. At all times, the parties shall seek to insulate and protect the children from coming to a negative view of the other party. l. The parties shall permit the children to call or videocall the other party, no more than once per day, when they are in the party’s care.
Transition Orders
m. Transitions shall occur at the children’s school, or if school is not open or the children are ill and cannot attend school, they shall occur in the parking lot of 43rd Division Police station. Once the Applicant’s criminal charges are disposed of, parties shall consider and agree upon a neutral transition location that is not a police station. n. Transitions, other than transitions that occur at school, shall be facilitated by the existing third-party facilitators currently used by the parties, or by the Applicant’s girlfriend, Tiffany. Parties may agree on additional third parties to facilitate transitions. Parties shall not unreasonably withhold their consent to use additional third-party facilitators. o. Ms. Angela Lewis, and any other person assisting with transitions, shall not engage in arguments or dismissive comments with the Applicant or Tiffany during transitions. All third-parties who assist with transitions shall facilitate transitions in a neutral manner that insulates the children from conflict.
Other Necessary Ancillary Orders
p. The parties shall jointly contact the children’s school and shall consent to the children receiving counselling through any program offered by the school or the Toronto District School Board. The purpose of the counselling is to respond to any immediate mental health challenges faced by the children. q. The parties shall alternate attending regular medical or dental appointments for the children, however, in the event of an emergency, the party who has care of the children shall immediately take them to an emergency room. Until the criminal charges are disposed of, the parties shall not both be present at medical appointments for the children. The parties shall immediately share with the other party any medical information with respect to the children following any medical or dental appointment. The parties shall follow the recommendations and treatments prescribed by the attending physician. r. The parties shall ensure the children’s OHIP card is placed in a secure location in the children’s backpacks which shall accompany the children during all transitions. s. The parties shall permit the children to bring with them any personal belongings of the children between homes. t. The parties shall facilitate the exchange of any necessary clothing items (e.g., winter boots, winter clothes, running shoes) during transitions to ensure the children have proper indoor and outdoor clothing for school and based on seasonal needs. u. The parties shall strictly comply with all orders made, unless they jointly agree to a change in writing, in advance. v. The children shall not be in a room with a person that either party knows to own a licensed or unlicensed firearm.
74I explain why I make several of these orders to the extent they are not immediately apparent.
75The children are entitled to spend as much time with each parent as is consistent with their best interests (s. 24(6) CLRA). The Respondent has not led sufficient evidence to support a finding that the children’s physical, emotional, psychological safety, security or well-being would be at risk in the Applicant’s care. She has not identified sufficient facts to support findings of this alleged harm, or of harm to herself. For the same reason, I decline to order the Applicant’s parenting time be supervised, as sought by the Respondent. The Applicant has a history of providing daily care to the children, at least from October 2023, if not before then.
76In contrast, I am satisfied that the Respondent’s withholding of the children from the Applicant is not in their best interests. Furthermore, I am concerned about the state of the Respondent’s apartment and her ability to care for the children. The evidence is that she participates in online schooling herself when the children are home from school, and that she works irregular hours and sometimes overnight. This challenges her ability to parent the children regularly. By giving the Applicant significant parenting time, it provides the Respondent an opportunity to better manage her home, to work and complete her online schooling while also affording the children with meaningful parenting time with their father. I also make financial support orders to assist the Respondent.
77Ms. Lewis, as the maternal grandmother, should continue to have meaningful time with the children. However, it should not be prioritized over the Applicant’s parenting time over his own children. With the equal parenting schedule ordered, Ms. Lewis can continue to have an important and meaningful role in the lives of the children.
78I have made orders that should put an end to any inappropriate conduct that has occurred at transitions.
79I have made communication orders as orders of this family court that supersede any communication restrictions in the criminal undertaking. I make this order because the children are young. It will be necessary for there to be somewhat regular communication between the parties for the sake of the children’s health and well-being. Communications through third parties has not reduced conflict – it has increased conflict between the parties. These parties cannot afford to communicate through lawyers.
80I have made orders around how the parties are to communicate. It is of critical importance, for the well-being of the children, that the parties’ communication be child-focussed. By that I mean that parties shall write their communication as if they were writing to a neutral professional, such as a teacher or a doctor, in a manner that is only seeking what is best for the children based on facts that they have observed or noticed. They should share as many relevant facts as they think are necessary. Communications should identify the issue, provide information about that issue, and propose options for how to address any child-related issue. When responding to communication, it is not sufficient to simply reject all possible solutions proposed. Instead, the party receiving the communication should propose further options to address the issue rather than simply reject or refuse to agree with what is proposed. Parties must respond to communication received.
81A failure to abide by any Orders made may result in a motion for sanctions under rule 1(8) of the Family Law Rules, including the imposition of a fine, striking pleadings, and a cost order. Furthermore, parties may seek a motion for contempt if there is non-compliance with orders made, which may result in quasi-criminal sanctions of imprisonment or a fine.
82I have continued to require that non-school transitions occur at 43rd Division Police station. Transitions at police stations send the wrong message to children. However, until the criminal charges are disposed of, I continue to require transitions to occur at a police station out of an abundance of caution. When the charges are dealt with, parties shall consider another neutral venue that is not a police station for transitions.
83I have fixed a winter holiday schedule for 2024 so that the children can enjoy this holiday with both parents equally. I have not fixed a schedule for other holidays or school PA days. The regular schedule I have ordered will govern, unless the parties can agree in writing, in advance, on a different schedule for other holidays or PA days.
84I have not granted either party decision-making authority. This relief was not sought by the Applicant, but it was sought by the Respondent. It does not appear that there are immediate decisions that need to be made. The children shall continue attending the same school. There was no evidence of a need to make decisions around religion. With respect to medical decision-making, I have ordered the parties to follow any recommendations and treatments prescribed by a treating physician, and therefore, neither party effectively has decision-making authority over medical decisions. With respect to extra-curricular activities, parties may schedule activities that fall on their own parenting time.
Issue 2: What amount of interim child support should be paid and by whom?
85I make temporary child support orders.
86The focus of this one-hour motion was on parenting not on child support. Neither party earns a regular T4 income. Other than their financial statement, there was virtually no affidavit evidence that spoke about their respective incomes. I base my child support orders solely on their financial statements, which was the best evidence before me.
87On a temporary and without prejudice basis, I find the Respondent is entitled to table child support for two children from the Applicant from at least March 1, 2024 to December 31, 2024. The Applicant moved out of the Respondent’s apartment on March 1, 2024. For the month of December 2024, the children will have been in the Respondent’s care more than 40% of the time.
88I fix the Applicant’s 2024 income at $100,000 on a temporary basis and subject to further review. I use this amount because his reported annual income of $5,582 from his own Landscaping and Maintenance business is self-employment income and cannot be relied upon as a reliable indicator of his income for support purposes. It is not evident what personal expenses he deducts as business expenses (e.g., vehicle, meals, cell phone). Furthermore, his income of $5,582 could not possibly meet his yearly expenses, which he has identified as $103,047. $100,000 is income within a range that would allow him to meet most of his reported expenses annually.
89I fix the Respondent’s 2024 income at $50,000 on a temporary basis and subject to further review. This reflects what she identified as her current income in her financial statement. Some of this income is modest tip and bonus income ($445/month), which I have not grossed up. It is unclear whether her self-employment income as an Uber driver ($1,424/month) is taxable at source, and as such, I have not grossed it up either. She receives her other income from child tax and GST benefits of $965/month.
90I make the following orders:
a. The Applicant shall pay the Respondent retroactive table child support for the period of March 1, 2024 to December 31, 2024 in the monthly amount of $1,471 per month based on an annual income of $100,000 for the Applicant and for two children pursuant to the Child Support Guidelines. This results in a retroactive payment due to the Respondent in the amount of $14,710.00, which shall be paid within 30 days. b. Commencing January 1, 2025, the Applicant shall pay the Respondent set-off child support, pursuant to s. 9 of the Child Support Guidelines, in the amount of $755 per month, based on the following: i. The Applicant paying the Respondent $1,471 per month in table child support, based on an annual income of $100,000 for the Applicant and for two children pursuant to the Child Support Guidelines, and ii. The Respondent paying the Applicant $755 per month in table child support, based on an annual income of $50,000 for the Respondent and for two children pursuant to the Child Support Guidelines. c. The Respondent shall continue to receive all the child tax benefits and other government benefits for children, until further court order or the parties’ agreement otherwise. d. The parties shall share agree upon s. 7 expenses, which shall be shared on a proportionate basis with the Applicant paying 66% of any uninsured costs and the Respondent paying 33% of any uninsured costs.
91On a temporary basis, I have permitted the Respondent to continue to collect all child tax benefits and any other government benefits for children. Her financial position appears to be dire. I provide this as a temporary means to assist her in alleviating any immediate hardship. This provision is subject to review or the parties’ agreement otherwise.
Issue 3: What cost order should be made?
92Parties are scheduled to appear before me on December 18, 2024 at 1:00 pm to argue costs. A costs decision will be rendered once I hear cost submissions. Parties shall upload any Offers to Settle to Case Center so that I may consider them in advance of the hearing.
93Parties shall prepare a draft Order, approved as to form and content, that reflects the orders made.
Justice M. Sharma Date: December 17, 2024