Ontario Superior Court of Justice
Court File No.: FC1627/18-02
Date: February 18, 2025
Family Court
Between:
R.L.
Applicant
(Holly Watson, for the Applicant)
and
B.M.
Respondent
(Self-represented)
(Eric Vallillee, amicus curiae)
Heard: September 11, 12, 13, 16 and 17, October 2, and December 9, 10, 11, 12, and 18, 2024
Judge: B. Tobin
Reasons for Judgment
Introduction
[1] The parties want to change the order of Mitrow J. dated January 29, 2019. This order, made on consent, provided that the parties have joint custody (now decision-making responsibility) of their child. The child was to maintain his primary residence with the applicant (“mother”). The respondent (“father”) was to have reasonable access (now parenting time) every weekend. The mother could have weekend parenting time after giving the father one week notice of her request.
[2] The parties agree that since the Mitrow J. order was made, there has been a material change in circumstances that affects the best interests of the child.
[3] The mother claims that the parties are not able to effectively communicate about the child, and that she has been and continues to be the victim of the father’s family violence.
[4] The father claims that the mother has mental health problems that affect her ability to care for the child, and that he has been the victim of the mother’s family violence.
[5] Both parties want sole decision-making responsibility with respect to the child.
[6] The mother asks that the father’s parenting time be supervised.
[7] The father asks that the mother have parenting time on alternate weekends.
[8] The issue of child support will also be addressed having regard to the Court’s decision on parenting time.
Representation
[9] Throughout this 11-day trial, the mother was represented by counsel and the father was not. In Cicciarella v. Cicciarella, 2009 CarswellOnt. 3972 (Ont. Div. Ct.), the Court summarized the principles to be considered when an unrepresented litigant is before the Court, as follows:
[45] … in a trial where one party is represented by counsel and the other is not, a trial judge must balance the issues of fairness and be mindful of both parties. In doing so, a trial judge should exercise restraint and should maintain impartiality. While a trial judge may wish to exercise some leeway in procedural matters to the self-represented litigant, he or she must never become an advocate for the self-represented litigant. Finally, a trial judge must not allow assistance to a self-represented litigant to result in the represented side’s rights being overridden.
[10] More recently, in Gaynor v. Cruz Belliard, 2024 ONSC 1661, Madsen J., as she then was, stated at para. 37: “Ultimately, the test is whether both parties have a full, fair and impartial ear of the court—an opportunity for full answer and defense. What that balance looks like will vary from case to case based on the issues for determination and the sophistication and legal knowledge of the self-represented individual.”
[11] These cases instruct the Court to conduct a procedurally flexible hearing, but one that is fair to both parties. The unrepresented litigant must be given an opportunity to be heard in an effective fashion. The other party must not be prejudiced by any leeway given. See also Family Law Rules, O. Reg. 114/99, 2(3)(a) and (b).
[12] In this case, the Court explained to the father the process and procedures to be followed and the legal tests to be applied regarding issues of procedure, evidence, and substantive matters. For example, the Court explained how statements of third parties, including that of the child, may be introduced in evidence and for what purpose. The Court also reminded the father from time to time about the requirements of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). The father accepted this help, often after explaining that he “had not done this before.” The father was granted leeway to refer to a 105-page summary that had been prepared for him by counsel to ensure that he was able to give all the evidence he wanted to, and he was also permitted to refer to exhibits that he wanted introduced.
[13] Counsel for the mother did not object to the assistance given to the father.
Facts and Chronology of Events
[14] The mother is now 34 years old. The father is now 40 years old.
[15] The parties began living together in 2015. At that time, they were living in Alberta.
[16] [In … 2017], their son [S.] (the “child”) was born.
[17] While residing in Alberta, the mother experienced some mental health problems. She also experienced family violence from the father and observed his anger control problems with third parties. Details of these circumstances and events will be addressed later in these reasons.
[18] On November 17, 2017, the parties and child moved to Sarnia. The father was to take over his father’s company. The mother wanted to be close to her family and friends and “support system.”
[19] On April 25, 2018, the parties separated. The mother and child moved to London, where her mother (sometimes referred to as the “maternal grandmother”) and her friends lived. She separated from her husband because she did not want the child raised in an environment where the father had anger control issues. She saw its impact on the young child. It made him scream and cry.
[20] Following their separation, the mother began a court case that ended with the consent order made by Justice Mitrow. In addition to joint custody and regular parenting time, the Mitrow J. order provided for holiday parenting time and parenting-time exchanges.
[21] The father was ordered to pay child support of $359 per month based on his estimated income of $40,000 per year.
[22] The parties co-parented the child in accordance with the Mitrow J. order until the beginning of the pandemic in March 2020. At that time, the mother struggled with her mental health. She asked the father to care for the child for “a week or so”, so that she would be able to stabilize her health. He agreed and took the child into his care. The mother was able to see her doctor, who prescribed medication and counselling. This helped the mother.
[23] Approximately two weeks later, the mother was ready for the child to return home. The father suggested that she take another week. The mother thought that was okay. At the end of that week, the father told the mother that the child was not ever coming back to her. He claims the mother abandoned the child. I find that on the evidence, this is not a tenable conclusion to reach. This is the first time the father overheld the child contrary to court order.
[24] It was not until June 23, 2020, that the child returned to the mother’s care. On that day, the paternal grandmother was caring for the child. The mother removed the child from the father’s home and brought him to her home.
[25] The father contacted the police that day and represented to an officer that he “has full custody” [1] of the child. The police were shown the Mitrow J. order by the mother. Her home was seen by the police and described as “well kept, clean and spotless.” The police also observed that the child appeared in good spirits. “Nothing concerning was observed.”
[26] Subsequently, the father brought an urgent motion to have the child placed in his care. He was not successful, and he then withdrew his motion.
[27] Again, the parties were able to co-parent on the basis of the Mitrow J. order until July 2021.
[28] In July 2021, the mother’s lawyer wrote to the father requesting information about his income.
[29] That summer, beginning on July 29 until August 9, 2021, the father had extended parenting time with the child. He took the child on his annual trip to Sault Ste. Marie. The child was to be returned to the mother’s care at the end of that trip. This would allow him to be ready to go to school in the fall. On August 9, 2021, the father messaged the mother that he would not return the child. This is the second time the father overheld the child contrary to court order.
[30] The mother caused the police to become involved. When the police did investigate, the father was observed by a police officer to be “cantankerous and agitated.” He claimed the child was unsafe with the mother.
[31] On August 31, 2021, Korpan J., on the return of an urgent motion, ordered the father to return the child to the mother before September 2, 2021. The father’s parenting time was suspended until September 10, 2021.
[32] The mother began the proceedings that are now before the court by a Motion to Change issued September 21, 2021.
September 12, 2021, Parenting Time Exchange Incident
[33] On September 12, 2021, there was a parenting time exchange between the parties. It was the first one following the suspension of the father’s parenting time pursuant to the order of Korpan J. referred to above. It was to take place at a Tim Hortons’ parking lot in Strathroy. This incident was a significant one that was referred to many times by the father in his evidence. It will be reviewed in detail in these reasons because of its importance.
[34] The father’s evidence is that the mother assaulted him during the exchange. He produced in evidence (Exhibit 15) an 11-second video. The father claims this video shows that the mother assaulted him.
[35] According to the father, the incident began when he saw the mother drag “his” child across the parking lot and throw him into the side of her car door. It was at this point that the father began his video recording. His evidence is also that the mother walked up to him and confronted him, and she punched him in the face. She continued to punch him in the face and choke him. The mother did all of this while the child was 15 feet away, and according to the father, “no one seems to care.”
[36] The mother’s evidence is that she and the maternal grandmother drove to the Tim Hortons in Strathroy to meet the father for the parenting-time exchange. He arrived an hour and a half late. He was driving his RV, which he had to park in a lot next to the Tim Hortons because it was too big for that lot. The mother saw the child. He was crying and saying he did not want to go. The father said to the mother, “He does not want to go.” She replied that he had school. The mother then picked up the child and took him to her car. The father followed and recorded the mother taking the child to her car. The child was still upset and crying. The child said he wanted to be with the father. The mother put him in the car seat. The father was still recording her. She said: “he was in my face.” The father then said to the mother, “he is my son you fucking bitch.” As the father was getting closer to the mother, she swatted the phone out of his hand. Then, he got inches from her face, yelling, and he raised his fist. With an open palm, she pushed his face away. He then clenched his fist as if he was going to hit her. The mother then said, “Go ahead and do it, and show everyone who you are.”
[37] At this point, the maternal grandmother intervened and put her arm between the parties. The maternal grandmother said to the father, “You will not touch my daughter,” and told the mother to get into the car.
[38] When the mother and maternal grandmother tried to leave in their car, the father and his partner, [B.P.], blocked their way. The maternal grandmother then called the police.
[39] The police did attend and investigated. No charges were laid, and the mother was told she was free to go. The father was upset, saying the police officers were sexist and it was gender discrimination that the mother was not charged. One of the officers followed the mother halfway to London, to make sure the father did not follow her.
[40] The uncontradicted evidence is that on this parenting-time exchange, the parties had a confrontation. The father was aggressive and angry towards the mother. The mother reacted by pushing the father away.
[41] The video, which the court examined many times, does not show the mother assaulting the father as he claims. For the first 8 seconds of the video clip, the father can be heard swearing at the mother. The mother tells him not to speak to her like that in front of the child. At 9 seconds, the picture is blurry but shows the father leaning away. The last 2 seconds do not show anything. The video is consistent with the mother’s evidence that she swatted away the phone. The maternal grandmother’s evidence is consistent with that of the mother.
[42] The father argues that he is not the party who is violent; rather, it is the mother who is violent. He asserts and is upset that he is not being treated fairly by the police who investigated the incident, the Children’s Aid Society (“CAS”) to whom he reported the incident, and the Children’s Lawyer’s clinician who prepared a s. 112 report.
[43] With respect, the court is not persuaded by the father’s contention that he has not been treated fairly. After viewing the video a number of times and reviewing the evidence given in this trial about the incident, it appears that it was the father who instigated the conflict. He did not help the mother make the parenting time transition as smooth as possible for the child. He made matters worse with his belligerent attitude towards the mother and self-serving use of his telephone video. I accept that the mother swatted the phone away and pushed the father to get him away from her. Both actions were understandable in the circumstances. It is also of some concern that the father stated that he videoed the events that occurred but produced in evidence only 11 seconds of video.
[44] After the events of September 12, 2021, the parenting relationship between the parties was without significant incident until September 19, 2022.
[Further sections continue as in the original, with appropriate subheaders for each major section, such as:]
- September 19, 2022, Incident
- The Children's Lawyer Agrees to Participate
- The Mother Amends Her Pleadings
- Evidence of [B.P.]
- Legal Considerations
- Application of Legal Principles
- Has There Been a Material Change in Circumstances?
- What Parenting Order is Now in the Child’s Best Interests?
- Position of the Parties
- Discussion
- Section 112 Investigation and Report
- Decision
- Decision-Making Responsibility
- Parenting Time
- Child Support
- Costs
Endnotes
[1] See Exhibit 37.
[2] See Exhibit 19, 14:26-minute video.
[3] Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3rd ed. (LexisNexis Canada, 2009), at p. 675; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence in Canada, 8th ed. (Toronto: Irwin Law, 2020), at p. 132.
[4] The Law of Evidence in Canada, 8th ed., at p. 132.
[5] D.A. Rollie Thompson, “The Cheshire Cat, or Just his Smile? Evidence Law in Child Protection” (2003) 21 Can Fam L.Q. 319.
[6] See The Law of Evidence, 8th ed., at p. 134.
Released: February 18, 2025
For the full text of the reasons, see the source decision.