Ontario Superior Court of Justice

Court File No.: FC-19-2190
Date: 2025/02/21

BETWEEN:
Ilhan Hassan, Applicant
and
Curtis Jones, Respondent

Applicant: Self-Represented
Respondent: Self-Represented

Heard: January 29-31, February 1-3, 2024; Trial reopened and further evidence heard August 29, 2024

Reasons for Judgment
Blishen J.

Introduction

[1] This case focuses on what parenting order is in the best interests of two young children, Yasmine (nine) and Nasir (six), who have been residing with both parents in an equal shared parenting arrangement since September 2020. Child Support (CS) and Equalization of Net Family Property (NFP) were also issues. Equalization was resolved.

[2] The parties have been embroiled in a high conflict dispute over parenting since separation in May 2019, exacerbated by their very different personalities and parenting styles.

[3] The Report of the OCL completed in April 2020 described Ms. Hassan as kind, gentle, nurturing, loving and very attentive towards the children. She is also described as being extremely protective and hypervigilant resulting in a refusal to allow Mr. Jones time alone with the children. Her extreme distrust of Mr. Jones resulted in a steadfast desire to have primary residence of both children with minimal access to their father. That position changed over time, but her hypervigilance and lack of trust did not.

[4] Mr. Jones was described as similarly kind, gentle, nurturing, loving and attentive towards his children. However, he was also observed to be highly reactionary and defensive when discussing the family situation and unable to communicate with the mother in a respectful manner. Mr. Jones’ behaviour during the trial confirms these observations. It was Mr. Jones’ position then as it was at trial that he should be able to share parenting of the children without restrictions.

[5] The OCL concluded the parents were unable to cooperate and communicate in an amicable and effective manner with respect to their children. Unfortunately, that inability persisted up to and during the trial.

[6] The trial took place over five days ending in February 2024. Given new previously undiscoverable evidence, permission was granted to reopen the trial and further evidence was heard on August 29, 2024.

[7] This case is a good example of the challenges faced by the court, including the trial judge, when two litigants embroiled in a five-year-long high conflict parenting dispute, represent themselves.

[8] Over the five years since separation in May 2019, the parties had 15 court appearances before eight different judges – five procedural motions, four motions, one adjourned motion, one case conference (CC), one settlement conference (SC) and three trial management conferences (TMC). After the trial concluded in February 2024, there were two further procedural motions requesting urgent motion dates, both of which were refused.

[9] Despite detailed instructions by experienced SC and TMC judges, including links to resources for self-represented parties, provision of written guides for self-represented parties and detailed instructions regarding uploading materials to CaseLines (CL), the trial began with no trial record, no pleadings on CL, no separate trial bundle on CL and literally hundreds of documents mostly consisting of text communications between the parties, most without labelling or dates. No up-to-date financial statements (FS) were provided by the parties, nor any recent Notices of Assessment or Tax Returns.

[10] In Ilaslan v. Poirier, 2024 CarswellOnt 699 (S.C.J.), Audet, J. was confronted with a very similar situation. She states at paras. 5 and 6:

[5] This trial proceeded with two self-represented litigants who, with no legal training, struggled to focus on what was relevant to the legal issues before the Court, as opposed to what appeared relevant to them on a personal basis. In that context, cross-examination became an opportunity for them to prolong their decades-long spousal conflict, re-victimize each other, and vent once more all the wrongs they felt they had suffered at the hands of each other (relevant or not) in a different forum.

[6] There is something very wrong about our adversarial system when it becomes the only option available to self-represented litigants to resolve their family disputes.

[11] Justice Audet concludes at para 9:

[9] Our adversarial system, no matter how much effort we devote to making it user-friendly, is not suited for self-represented litigants. The resources available within our judicial system, including judicial resources, are stretched way too thin to leave it to the Court to sort out extremely important family issues with self-represented litigants who have no legal training, and most of whom are unable to present their case in any meaningful way in the context of what is a very complex and rule-driven adversarial process.

[12] I would add to those comments that the difficulties faced by self-represented litigants and by extension the courts, have been exacerbated by the expectation that the pleadings, financial statements, net family property statements and other required documents will be appropriately drafted and uploaded to the electronic court file and in addition, any documents to be referred to at trial be uploaded to CaseLines, now CaseCentre, the Ontario document sharing platform, to be accessed by the judge. This can be a difficult task for a self-represented party even after detailed instructions have been provided, as was the case for Ms. Hassan and Mr. Jones.

Background Facts

[13] Both parents testified at trial. No other witnesses were called. Both parties also filed numerous text, email and Instagram exchanges which primarily served to highlight the conflict between them.

[14] Based on the evidence I make the following findings of fact.

[15] The parties met in 2009 and were married June 3, 2012. They have two children, Yasmine, now nine, and Nasir, six.

[16] The relationship was characterized by many disagreements and arguments often focused on Ms. Hassan’s distrust of Mr. Jones’ parents and family members. She believed they were following her and had bugged the home.

[17] Mr. Jones worked full time as a personal support worker for adults with special needs at Ottawa Carleton Life Skills organization. Ms. Hassan was home with the children. She arranged and took them to appointments, play dates and was responsible for the housework. Mr. Jones assisted at night after he got home from work.

[18] Ms. Hassan left the family home with the children and went to live with her sister on May 11, 2019, a few days after what she perceived was a sexually inappropriate incident between Yasmine and her father.

[19] The incident was fully investigated by the Police, Children’s Aid Society (CAS) and the child was physically examined at the Children’s Hospital of Eastern Ontario. Mr. Jones submitted to two polygraph tests. No charges were laid, and the CAS closed the file.

[20] Mr. Jones had almost daily visits with the children supervised by their mother. The frequency and duration of visits were controlled by her. There would often be arguments in front of the children.

[21] On October 18, 2019, after the Police and CAS investigation concluded, Mr. Jones acted unilaterally and removed Yasmine from Woodroffe Public School where she was attending junior kindergarten and brought her to his parents’ home in Cumberland where he was residing. Ms. Hassan called the police, but they did not intervene as the child was safe in the care of her father. There was no court order or separation agreement at that time.

[22] The next day Mr. Jones and Yasmine ran into Ms. Hassan and her sister at Walmart which led to a verbal and physical altercation. The Police were called. Mr. Jones left with Yasmine and kept her in his care. Nasir remained in the care of his mother.

[23] Ms. Hassan filed an Application on November 13, 2019, requesting orders for parenting time and decision making, child and spousal support, possession of the home and equalization of net family property. Mr. Jones filed an Answer requesting the same relief.

[24] There was communication between the parties and with counsel. Mr. Jones wanted a 50/50 time sharing arrangement. Ms. Hassan objected as she was still breast-feeding Nasir and felt both children should be in her primary care. She made offers which were not accepted. Mr. Jones had no parenting time with Nasir and Ms. Hassan had no parenting time with Yasmine. Both parties were entrenched in their positions.

[25] A Case Conference was held on November 27, 2019. The issues were discussed with the focus on parenting. On consent an order was made for a referral to the Office of the Children’s Lawyer (OCL), disclosure and release of Ottawa Police records.

[26] The OCL accepted the referral, and a report was provided to the court dated April 30, 2020, recommending the father have primary residence and decision-making responsibility for Yasmine and the mother for Nasir, with a detailed graduated parenting arrangement ultimately resulting in an equal shared parenting schedule. In addition, each parent was to have some time alone with each of the children.

[27] Ms. Hassan did not agree with the OCL recommendations and was concerned that some of the information provided to the investigator by Mr. Jones was not verified. No Dispute was ever filed.

[28] The parties could not agree, and permission was granted for an urgent motion in early June 2020 on the basis that the mother had not seen her daughter in over six months and the father had not seen his son, nor had the children seen each other. To that point the only parenting time each parent had with the child not in their care was through daily FaceTime calls. Despite recommendations by the clinical investigator from the OCL and negotiations between the parties, there was no agreed upon parenting arrangement. There was also an outstanding issue of the school Yasmine should attend in September 2020.

[29] The urgent motion did not proceed. On June 8, 2020, the parties, who were both represented by counsel at that time, signed Partial Interim Minutes of Settlement agreeing to begin parenting time as recommended by the OCL with adjustments to prevent the separation of the children. Exchanges were to take place at the maternal grandmother’s home, unless otherwise agreed. The motion to determine Yasmine’s school proceeded on June 12, 2020. There was no agreement on decision making.

[30] After over six months the children were able to reside together, and each parent was able to spend time with both children.

[31] On June 29, 2020, Justice M. Smith ordered Yasmine attend Robert Hopkins School close to the mother’s proposed residence with the maternal grandmother, with the exchanges to take place at the school and on the weekends at the maternal grandmother’s home.

[32] At the end of June Ms. Hassan advised Mr. Jones that her brother had tested positive for COVID-19, and she and the children might have had contact with him while he was contagious. She proposed the children remain in quarantine with her while awaiting test results or the regular shared parenting schedule continue with his home under quarantine as well. Mr. Jones wished to continue the regular schedule, however he then refused to return the children to their mother despite the fact Ms. Hassan and Yasmine tested negative. He wanted negative test results for all members of Ms. Hassan’s household and an agreement that she would comply with strict protocols for limiting exposure to other persons. Ms. Hassan was given permission for an urgent motion and on July 10, 2020, Justice MacEachern ordered the agreed upon parenting schedule be immediately reinstated. Ms. Hassan had not seen the children for two weeks.

[33] In August 2020, Ms. Hassan moved to her mother’s home to be closer to Yasmine’s school for senior kindergarten.

[34] By September 2020 the schedule had evolved into a 2/2/3 shared parenting arrangement which continued.

[35] Ms. Hassan became increasingly concerned about Nasir not wishing to go for parenting time with his father. Mr. Jones contacted the police in December 2020 when Nasir did not come for visits. The CAS was also involved. The conflict between the parties continued.

[36] On July 15, 2021, a consent order was made settling spousal support and child support arrears payable by Mr. Jones. Mr. Jones was also ordered to pay ongoing child support of $633.31 per month on an annual income of $42,654 for both children on a temporary basis to be adjusted by July 1st each year. The parties were to enroll in a high conflict parenting course. Each parent was to have two non-consecutive weeks of summer vacation commencing in 2022 with a mid-week visit with the other parent in 2022. Other orders were made disbursing funds held in trust from the sale of the matrimonial home.

[37] In August/September 2021, Mr. Jones moved with a new partner to Gatineau. Ms. Hassan expressed concern about his anger and was worried about how he was treating the children. In addition, he was not always following the parenting schedule. He was often late bringing the children back. Ms. Hassan called the police on several occasions.

[38] In March 2022, Mr. Jones and his partner broke up and he moved back to his parents’ home in Cumberland where he continues to reside. He lost his job in September 2022. He indicated he was overwhelmed and needed to take a break to get his mind straight. He did not immediately look for new employment but collected Employment Insurance. He stopped paying child support. He testified he saw therapists during this time. He provided no further information in this regard.

[39] Ms. Hassan continued to work as an educational assistant. She did not pursue the issue of child support, nor did Mr. Jones. No motions were brought.

[40] In the summer of 2022, despite reminders by Ms. Hassan, Mr. Jones did not comply with the court order for her to have mid-week visits on his weeks with the children. Ms. Hassan ultimately acquiesced and there were no mid-week visits for either party.

[41] There was further conflict regarding parenting time over Christmas as the temporary court order did not address Christmas holidays. Mr. Jones felt he should have some time over Christmas, as Ms. Hassan does not celebrate that holiday, but Ms. Hassan wanted to continue the regular schedule as per the court order.

[42] The difficulties in communication and cooperation persisted throughout 2023. Ms. Hassan continued to contact the police complaining about Mr. Jones overholding the children and issues of parenting. There were seven such complaints between January 2022 and July 2023 as confirmed by letter from the OPS dated July 6, 2023, including a complaint that Mr. Jones had caused a bruise on Nasir’s forearm in March 2023. The CAS was called but no action was taken.

[43] The conflict escalated to the point that at a TMC on June 5, 2023, Justice MacEachern indicated concern with Mr. Jones’ conduct and ordered a transcript of the conference, not to include settlement discussions. She noted he was angry, disrespectful, and profane towards the court and Ms. Hassan. Permission was granted for Ms. Hassan to bring an urgent motion to change the parenting schedule such that Mr. Jones’ parenting time would be supervised, given her concerns regarding Mr. Jones’ anger, mental health, and the safety of the children in his care.

[44] The urgent motion was heard July 17, 2023, and Justice Engelking denied Ms. Hassan’s request to make changes in the existing parenting arrangement pending trial.

[45] In her Endorsement, Justice Engelking made the following comments which are supported by both parents’ testimony at trial and in the text messages and email exchanges between the parties.

1. There are examples of both parents overholding the children after the June 8, 2020 agreement for brief periods of time.
2. Mr. Jones has difficulty communicating appropriately with Ms. Hassan including in front of the children at times which inevitably has an impact on them.
3. It is “exceedingly important” for the children that Mr. Jones learn to control himself and his anger in all settings, particularly in their presence.

[46] Mr. Jones was ordered to enroll in and complete an anger management course or specific counselling directed at learning to regulate anger. There was no evidence at trial that Mr. Jones had participated in an anger management program or had any such counselling.

[47] Two further TMCs were held dealing largely with procedural matters but as indicated above, the trial began with little or no regard to most of the instructions and assistance offered by several judges regarding trial preparation.

[48] When the trial recommenced August 29, 2024, the 2-2-3 parenting schedule continued. Mr. Jones’ circumstances had changed. He had obtained part time weekend employment as a support worker for adults at a group home, close to his parents’ residence where he continued to reside. He had also been hired as a school bus driver for three schools including the school the children attend. While he was training for the new positions Ms. Hassan agreed to take the children for some of his parenting time during the summer. The new positions were to begin in September.

[49] Mr. Jones’ plan when the children are with him on weekdays is for them to accompany him on the school bus from 6:30 AM until they are dropped off at school at 7:45 AM. He will pick them up after school at 2:30 PM on his route which ends at 4:45 PM. He organized both his hours at the group home and driving the school bus to fit the current 2-2-3 parenting schedule. He will not work at the group home on weekends the children are with him.

[50] Mr. Jones did not file an up-to-date Financial Statement nor provide any pay stubs from his new employment. He estimated he would earn approximately $1500/2 weeks driving the school bus and $800/2 weeks at the group home, approximately $5000 per month. He was unclear whether those amounts were net or gross.

[51] Ms. Hassan argues that the children being on the bus with him for such long periods of time is not in their best interests, particularly as she lives minutes away from the school.

[52] She also expressed significant concern about Mr. Jones’ inability to control his temper which was evident during the trial. From statements made to her by the children she is also concerned that the children are exposed to his anger towards her and to his outbursts at times during arguments with his parents. Although statements made by the children could not be admitted as to their truth, the state of mind of the children is of concern.

[53] There were many outbursts by Mr. Jones during both phases of the trial. As at the TMC with Justice MacEachern, Mr. Jones was rude, profane, and disrespectful mostly towards Ms. Hassan but also towards the court at times. Although he testified he has seen three therapists largely to cope with the high conflict situation and what he described as continual harassment by Ms. Hassan, he presented no independent corroborative evidence. In addition, there was no evidence he had enrolled in an anger management program or received counselling directed at learning to regulate anger as ordered by Justice Engelking on July 17, 2023.

Positions of the Parties

Parenting

[54] Ms. Hassan submitted a draft order at the end of the first stage of the trial requesting a form of shared decision making but with the ultimate decisions to be hers for health, education, and religion. For parenting time, she proposed two options. Her preferred option was for the children to have their primary residence with her with Mr. Jones to have a mid-week overnight visit and every second weekend Friday–Monday. If Mr. Jones accessed counselling for his anger issues, she would agree to continue the shared parenting time arrangement on a 2-3-2 basis or the current 2-2-3 basis.

[55] Mr. Jones argued the equal shared parenting arrangement should continue with joint decision making and a week on/week off parenting time schedule, and specified orders for holiday time during the summer, Christmas, Eid and March break.

Child Support

[56] Ms. Hassan’s position on child support changed several times during the trial. She acknowledged that Mr. Jones lost his job in September 2022 and was on Employment Insurance in 2023. Initially she did not request child support until he was employed. Later she requested income be imputed to him but was unclear as to a time frame. She then stated she wasn’t requesting any child support. However, after the trial re-commenced in late August 2024, she argued income should be imputed to Mr. Jones for 2023 and child support be calculated on that basis. She did not make any submissions as to the basis for imputing income or how child support should be calculated given the shared parenting time schedule.

[57] After losing his job in September 2022, Mr. Jones stopped paying child support. He collected Employment Insurance and did not obtain employment again until September 2024. He argued Ms. Hassan should have paid him child support until he obtained employment, but he was prepared to forgo an argument for retroactive child support.

[58] There was no evidence or argument by either party regarding special or extraordinary expenses.

Law and Analysis

Parenting

[59] As was emphasized to both parties throughout the trial, pursuant to s. 16(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp), as amended, the court’s sole consideration in making a parenting order is the best interests of the child or children.

[60] Section 16(2) indicates:

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[61] As noted in s. 16(3) all factors related to the circumstances of the child must be considered including:

• (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• (d) the history of care of the child;
• (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• (g) any plans for the child’s care;
• (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• (j) any family violence and its impact on, among other things,
  • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  • (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Family Violence

[62] Family violence is defined under s. 2 of the Divorce Act as:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[63] Based on some of the text and email exchanges, concerns about both parents’ arguments, outbursts, and anger in front of the children and Mr. Jones’ disrespectful and at times profane outbursts towards Ms. Hassan during the trial, I find there has been some family violence in this case.

[64] In considering the factors relating to family violence under s.16(4), I am unable to find there is family violence directed towards either of the children who I have no doubt both parents love dearly. However, I do find on a balance of probabilities a risk of emotional harm due to the children’s exposure to the ongoing conflict. Ms. Hassan’s hypervigilance and numerous calls to the police and/or CAS on matters such as a scratch on Nasir’s arm (March 2024), coupled with Mr. Jones’ verbal outbursts, anger, and disrespect towards their mother put the children at risk.

[65] The report of the OCL completed April 30, 2020, noted “the children have been exposed to the conflict between their parents… for quite some time” - when they were together, at supervised visits and “they continue to yell and belittle one another over the FaceTime calls” (visits).

[66] Although there is no recent evidence of major arguments in front of the children, the conflict, lack of trust (Ms. Hassan) and lack of respect (Mr. Jones) continues. Both parents’ ability to cooperate on issues and to make decisions together in the children’s best interests is severely compromised. As stated by the OCL Investigator:

Joint custody cannot be recommended due to the lack of trust between parents, their inability to communicate in an effective and civil manner, their inability to mutually make decisions for the children and their inability to agree on a parenting plan for the children.

The evidence at trial supports that conclusion.

Other Best Interests Considerations

[67] In considering the other best interests factors listed under s. 16(3), it is important to note the only objective third party evidence in this case was the previously referred to April 30, 2020, report of the clinical investigator from the OCL, and the children’s report cards.

[68] Although it is now almost five years old, the OCL report is of assistance in considering the nature of the children’s relationships with their parents and other family members, the children’s needs, the ability of the parents to meet the needs of the children and their ability and willingness to communicate and cooperate. Some of those factors have been referred to above.

History of Care / The Children / Parents' Ability to Meet Needs

[69] When the parties separated, Yasmine had just turned four and Nasir was under two years old. Ms. Hassan had been their primary caregiver, but both parents were actively engaged with their children. Post separation, since September 2020, the parents have had equal parenting time on a 2-2-3 schedule.

[70] It was of note that in presenting their evidence at trial neither parent focused on their children’s personalities, likes/dislikes, activities, friends etc. Their focus was on undermining, finding fault and blaming one another.

[71] Ms. Hassan described the children as doing well in school, active, with lots of friends and involved in outside activities.

[72] Mr. Jones was more descriptive indicating Yasmine is a gorgeous, happy, enthusiastic easy-going child. She and Nasir are very close. He described Nasir as more assertive. He doesn’t hesitate to say what he wants. Both are loving and kind and have a “beautiful spirit”. They are involved in lots of activities – sports, singing, dancing and do well in school.

[73] Mr. Jones commented it was a miracle how well the children have weathered the separation and seem to be “pretty unphased”. This was the description of a loving attentive father but someone with little insight into the potential impact of the ongoing conflict on his children.

[74] The OCL Investigator made the following comments. At the time Yasmine was residing with her father and Nasir with his mother.

Yasmine presented as a smart, creative playful, independent and happy child. She appeared to be comfortable and at ease in her current living environment… Yasmine interacts well with all of her family members and enjoys the time she spends with her family, however, she expressed that she misses her mother, brother, aunt and cousins. It was evident that Yasmine is alert and sensitive to the tension and moods of her caregivers. Yasmine’s continued exposure to the parental conflict can be very damaging to her emotional, psychological and developmental well-being.

Nassir presented as happy, alert and attached to both parents, however, more so to his mother. He is at an age where he is starting to assert his independence but continues to depend on breastfeeding to be comforted.

Both children were observed to have a loving, affectionate and trusting relationship with both parents. As young children, Yasmine and Nasir are in need of guidance, stable living arrangements, structure and routine…

It is important for these parents to direct their focus to the needs of their children rather than exacerbating the relationship conflict. The children need to have strong and consistent relationships with both parents and should have the opportunity to spend frequent blocks of time with their mother and father.

[75] The end of year (June 2024) report cards regarding both children are very positive. Nasir who completed Senior Kindergarten, is described as “an active and contributing member to our classroom” who makes “excellent contributions to classroom discussions…” (Exhibit 37).

[76] Yasmine who completed Grade 3, was noted as “excellent” in 5 of 6 Learning Skills and Work Habits and received As or Bs in all subject areas. She was noted to be “a friendly and motivated student who…shows responsibility by maintaining a positive attitude towards learning and consistently gives her best in all that she does.” The teacher also noted “When Yasmine is involved in a conflict, she labels her emotions and quickly solves the issue at hand. It has been a pleasure working with Yasmine this year.” (Exhibit 36)

[77] The investigator observed no parenting concerns in either home and found both Ms. Hassan and Mr. Jones to be very loving, nurturing parents capable of meeting the daily needs of their children.

[78] She also noted Mr. Jones was living with his parents. The relationship of the children with their grandparents was noted to be a protective factor and important. Mr. Jones continues to live with his parents, although he indicated an interest in obtaining independent housing now that he has returned to work. Mr. Hassan has concerns that there is often arguing between Mr. Jones and his parents in front of the children, based on statements they have made to her.

[79] Ms. Hassan continues to reside with her mother and sister. She has no intention of moving. The relationship of the children with her extended family is equally important.

Ability to Cooperate, Impact of Conflict

[80] As noted in OCL Report, both parents present as “attentive, kind, gentle, nurturing, loving and protective” towards the children. However, as noted above, Ms. Hassan’s hypervigilance and inability to trust the father “significantly interferes with her ability to support the children’s relationship with their father.” Similarly, although Mr. Jones indicates support for the children’s relationship with their mother, “it was he who unilaterally removed Yasmine from the mother’s care without thought as it the impact that this would have on the mother-daughter relationship not to mention the child’s emotional well-being.”

[81] The lack of trust and conflict between the parties has not abated since the report of the OCL and continues to present a risk to the children’s mental and emotional health.

[82] The OCL Investigator also had concerns about the potential impact of negative feelings each parent has about the other on the children’s relationship with their parents.

[83] There is no evidence that either parent has engaged in the counselling recommended over four years ago by the OCL Investigator - for Ms. Hassan to assist in coping with her anxiety and hypervigilance and in not transferring her negative feelings regarding the father to the children, and for Mr. Jones to cope with his anxiety, the stress of the separation, his relationship with the mother and not transferring his negative feelings regarding the mother to the children.

[84] Mr. Jones indicated he had seen several therapists but there was no independent evidence as to who, when and the nature of the therapy.

[85] Despite the concerns of the investigator and the significant evidence of a lack of trust and an inability to cooperate or communicate respectfully, the children have had a 2-3-2 parenting schedule for the over four years and there is no recent evidence of either child refusing to go to visits with the other parent.

[86] Unfortunately, although the children are now nine and six years old, there was no evidence as to the children’s views and preferences.

Decision-Making

[87] In this case, pursuant to s. 16.3 of the Divorce Act, the court may make an order providing for decision-making responsibility or any aspect of that responsibility to either parent or to both parents.

There has never been an order regarding decision making in this case. The parties have attempted to make decisions jointly without either parent having the final say, which has resulted in ongoing conflict regarding school selection, holiday time - Christmas and summer, medical appointments, transportation to and attendance at extracurricular activities, and even whether children should attend school during snow day.

[88] The court has a wide discretion in formulating a framework for decision-making that promotes the best interests of the children, considering the unique circumstances of each case.

[89] The options include:

1. sole decision making in all areas to one parent,
2. joint decision making in all areas to both parents,
3. joint decision making in one or more areas, but sole decision making in one or more other areas to one parent,
4. sole decision making in separate, specified areas,
5. require the parents to engage in all reasonable efforts to make decisions jointly, failing which the court will designate which parent has final say in each area of decision making.

See: McBennett v. Danis, 2021 ONSC 3610

[90] Based on all the evidence, I find it contrary to the children’s best interests in this high conflict case to consider an order for joint decision-making responsibility in all or any areas. There has never been an ability to cooperate or communicate effectively for any period of time about any significant decisions. I find both parents responsible for this dynamic as outlined above.

[91] In determining an appropriate order in this case, I note the following:

1. Both parents are attentive, nurturing, and loving towards their children.
2. Both have strong ties with the children and since September 2020 have had an equal time-sharing parenting schedule under which the children have done well at school and in the community.
3. Both parents are able to meet the daily needs of their children.
4. At times both parents have difficulty placing the needs of the children above their own needs and interests.
5. Communication has been an ongoing problem. In particular, Mr. Jones demonstrates an ongoing lack of respect for Ms. Hassan and engages in angry outbursts both in messages and before the court regarding what he considers her harassment over many years.
6. Mr. Jones has at times failed to comply with court orders regarding parenting time. He has always wanted a flexible parenting arrangement which has not been possible given Ms. Hassan’s lack of trust. Despite her disagreement to changing court ordered parenting time, Mr. Jones has done what he felt was appropriate and at times overheld the children or did not return them on time. Although infrequent, Ms. Hassan has also overheld the children for brief periods of time.

[92] An order delineating specified area of decision making must be detailed and can be complex. I am not satisfied Mr. Jones would be able at this time to abide by its terms.

[93] In addition, given the history and pattern of parental conflict in this case which has now escalated to the point of Mr. Jones engaging in extremely disrespectful, angry behaviour and outbursts, an order granting each party specified areas of decision making will provide further areas for conflict which is not in the children’s best interests.

[94] Most major decisions have already been made. The children are well settled in their school. They are being raised in the Muslim faith although Mr. Jones wishes to have some parenting time at Christmas as his family is Christian which can and should be accommodated. They have a doctor and dentist. Both are enrolled in extracurricular activities which they enjoy. At this point in time there are not many major decisions to be made.

[95] Therefore, regarding any future medical, dental and educational decisions, Ms. Hassan will inform Mr. Jones, consult with him and attempt to make a joint decision, failing which she will have the final say.

[96] Decisions regarding extra curricular activities shall be shared as outlined below.

[97] Day to day decisions will be made by the parent having charge of the children. The details of the order will be outlined below.

Parenting Time

[98] Pursuant to s. 16.2 of the Divorce Act:

Parenting time — schedule

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

[99] As noted above, a 2-2-3 shared parenting time schedule has been in place for over 4 years. Despite the conflict, lack of trust and lack of respect between their parents, the children are doing well at school and in the community.

[100] The recent school report cards (June 2024) indicate the children are thriving and in fact excelling both academically and in learning skills and work habits.

[101] As noted above there has been a significant recent change in Mr. Jones’ circumstances. He has obtained employment at a group home and driving a school bus. He arranged his hours so the 2-2-3 parenting schedule could continue. His school bus route includes the children’s school.

[102] Mr. Jones’ plan when the children are with him on weekdays is for them to accompany him on the school bus from 6:30 AM until they are dropped off at school at 7:45 AM. He will pick them up after school at 2:30 PM on his route which ends at 4:45 PM. He organized both his hours at the group home and driving the school bus to fit the current 2-2-3 parenting schedule. He will not work at the group home on weekends the children are with him.

[103] This schedule will necessitate the children getting up at approximately 5:30 AM and being on the school bus for approximately 3.5 hours a day.

[104] In addition, Mr. Jones indicated his desire to move out his parents’ home, hopefully by the end of 2024. His future living situation and residence is unclear.

[105] The considerations noted above with respect to decision-making apply as well to parenting time.

[106] I note the following:

1. Both parents are attentive, nurturing, and loving towards their children.
2. Both have strong ties with the children who benefit from the relationship with each parent and the extended families.
3. For over four years the parents have had an equal time-sharing parenting schedule under which the children have thrived at school and in the community.
4. Both parents are intelligent, capable, caring individuals able meet the daily physical needs of their children.
5. At times both parents have difficulty placing the needs of the children above their own needs and interests.
6. Sadly, the relationship between the parents continues to be high conflict which causes a risk to the emotional well being of the children. Mr. Jones demonstrates an extreme lack of respect for Ms. Hassan and engages in angry outbursts both in messages and before the court regarding what he considers her harassment over many years. Ms. Hassan does not trust Mr. Jones’ parenting and remains hypervigilant. She involves the police and CAS when she perceives any safety concerns regarding the children. The most recent being a scratch on Nasir’s arm.
7. Ms. Hassan’s living situation is stable. She has resided with her mother since August 2020 and has no plans to move. Mr. Jones’ living circumstances are less stable. He has resided with his parents since March 2022 but testified he plans to move.
8. Communication and contact between the parents continue to be fraught with disagreement and conflict.
9. When the children are with Mr. Jones during weekdays, they have to get up extremely early in the morning and be on a school bus for approximately 3.5 hours a day.

[107] Based on the above and all the evidence, I find that it is in the best interests of the children who benefit greatly from the relationship with each parent, to continue with a shared parenting time schedule. I also find it is in their best interests to adjust that schedule to minimize the number of exchanges and the communication/contact between the parents. I do not find it in the children’s best interests to be spending 3.5 hours a day every weekday on the school bus.

[108] Therefore, commencing the Saturday after March break, March 15, 2025, the children will be with Mr. Jones from Saturday at 2:30 PM until Tuesday when they are dropped off at school. He will remain the parent in charge of the children until the end of that school day when they will be picked up at school by Ms. Hassan who will have them in her care from 2:30 PM Tuesday to 2:30 PM Saturday.

[109] The details of the order will be outlined below.

Child Support

Evidence

[110] The positions of the parties on this issue were unclear as indicated above. In addition, the documentary evidence was difficult to locate in the CaseLines file and was not up to date. Neither party filed an up-to-date Financial Statement or Notices of Assessment. No tax returns were referred to.

[111] The following are the most relevant, trustworthy documents I was able to locate in the file. Most of these documents were not referred to or marked as Exhibits at trial. The parties' primary focus was on parenting and not child support.

Ms. Hassan

[112] Ms. Hassan works as an Educational Assistant for the School Board

1. 2022 Tax Summary – income $14,064.77
2. July 2023 sworn Financial Statement – income $22,043.40.

Mr. Jones

[113] Mr. Jones worked for Ottawa Carleton Life Skills program as a Developmental Services worker from March 2010 to September 2022.

1. 2019 Notice of Assessment – income $61,601.
2. July 15, 2021, Temporary Order for Mr. Jones to pay child support of $633.31 for the two children based on an annual income of $42,654.
3. 2021 Notice of Assessment – income $52,159.
4. 2022 Notice of Assessment – income $31,766. (Employment terminated September 2022).
5. January 29, 2024, Financial Statement showed an income on EI $700/month = $8,400.

[114] When the trial reconvened in August 2024, Mr. Jones had obtained part time weekend employment as a support worker for adults at a group home, close to his parents’ residence and had also been hired as a school bus driver for 3 schools, both positions commencing September 2024. Mr. Jones did not file an up-to-date Financial Statement nor provide any documentation or pay stubs from his new employment. He estimated he would earn approximately $1500/2 weeks driving the school bus and $800/2 weeks at the group home. There are approximately 38 weeks in the school year so his income from driving the school bus would be $750 x 38 = $28,500. If he worked 50 weeks at the group home his income would be $20,000. Total annual income would be $48,500.

Law and Analysis

[115] As there has been and will continue to be a shared parenting time schedule for the children pursuant to s. 9 of the Federal Child Support Guidelines, SOR/97-175, as amended.

Shared parenting time

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[116] Neither party provided any evidence of increased costs of a shared parenting time schedule, which has been in effect for over four years.

[117] Both parties reside with their parents at this time and there was no evidence of any special or unusual considerations or circumstances of either spouse or the children.

[118] Therefore, I find it reasonable that child support payable be determined by taking into account the amounts set out in the applicable tables for each party.

[119] As noted above, Ms. Hassan now argues income should be imputed to Mr. Jones for 2023 and 2024 as he should have been able to obtain employment and retroactive child support should be calculated on that basis.

[120] Section 19(1)(a) of the Child Support Guidelines, O. Reg. 391/97 as amended states:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent’s or spouse’s property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[121] In this case I am not prepared to impute income to Mr. Jones for intentional underemployment or unemployment for the following reasons:

1. Mr. Jones’ job was terminated in September 2022, and he stopped paying child support. He did not leave his job voluntarily.
2. There is evidence that Mr. Jones was stressed and sought therapy.
3. There is no evidence that Ms. Hassan requested Mr. Jones continue to pay child support after he lost his job. She accepted the situation. Ms. Hassan did not pursue the issue of child support before the court and never brought a motion.
4. Although Ms. Hassan was working and the parties continued the shared parenting schedule, Mr. Jones did not request child support from Ms. Hassan. No motion was brought, and he did not pursue the issue of retroactive child support at trial.
5. Both parties were ordered to exchange T-4s, Notices of Assessment and Tax Returns by June 1st each year and make adjustments to child support by July 1st each year. There was no evidence that either party followed that court order. No adjustments were made and as noted, no requests were made to make any changes to the existing order either while Mr. Jones was working or after he lost his job.

[122] When Mr. Jones began his new employment in September 2024, there was an obligation to once again pay child support. It is not possible based on the evidence provided to accurately determine his income. However, based on his testimony, I am prepared to impute income to him of $48,500 annually.

[123] The most recent evidence of Ms. Hassan’s income was her July 2023 sworn FS indicating an income of $22,043.

[124] Therefore Mr. Jones is to pay Ms. Hassan child support for the two children in the amount of $732/month based on his annual income of $48,500. Ms. Hassan is to pay Mr. Jones child support for the two children in the amount of $337/month. The set off amount payable by Mr. Jones to Ms. Hassan is $395/month, commencing September 1, 2024.

[125] Mr. Jones is to pay outstanding retroactive child support of $395 x 6 months (September 2024 – February 2025) = $2,370 to Ms. Hassan within 60 days.

[126] Commencing March 1, 2025, and on the first of each month thereafter, Mr. Jones is to pay the set off amount of $395 per month to Ms. Hassan as child support for the two children.

[127] There will be a mandatory disclosure clause as outlined in the temporary order and child support is to be adjusted accordingly.

[128] Details will be outlined in the order below.

Conclusion

[129] Therefore, based on the evidence, legislation and jurisprudence, I make the final order attached below which of necessity in this high conflict case must be detailed and multi-directional.

Costs

[130] In this high conflict case on the issues of parenting and child support, Ms. Hassan was somewhat more successful on parenting and Mr. Jones on child support. Neither was completely successful on either issue.

[131] Both parties were self-represented. Neither party was well prepared, and neither was willing or perhaps more accurately able, to follow the directions provided by experienced judges at SCs and TMCs.

[132] The significant challenges faced by the court included, as noted above, the trial began with no trial record, no pleadings on caselines, no separate trial bundle on caselines and literally hundreds of documents mostly consisting of text communications between the parties most without labelling or dates. No up-to-date financial statement (FS) was provided by either party, nor any recent Notices of Assessment or Tax Returns.

[133] Both parties behaved unreasonably.

[134] I do not find this an appropriate case to order costs.

[135] There will be no costs payable by either party.

Blishen J.
Released: February 21, 2025