Ontario Superior Court of Justice

Court File No.: FS-19-8589
Date: 2025-03-17

Between:
Harry James Clarke, Applicant
and
Melissa Joy Denyes, Respondent

Applicant Counsel: Julie Stanchieri, David Rappaport
Respondent Counsel: Self-represented

Heard: October 28 – November 5, and November 26, 2024
Judge: Kerri Mathen

Introduction

[1] The Applicant, James Clarke (“James”), and Respondent, Melissa Denyes (“Melissa”), have two much loved children H., age 11, and E., age 9. James and Melissa have had a protracted dispute since 2018. They have been unable to resolve issues about relocation; parenting; decision-making; child support; section 7 expenses; retroactive support; spousal support; post-separation adjustments; life insurance; and costs.

[2] This is a high-conflict matter. The parties attended approximately twenty Conferences and litigated at least four motions. They have attended five mediations. While this trial decision was under reserve, the parties had an emergency motion just before Christmas. Another motion was filed on February 3, 2025.

[3] The heart of this case is about parenting time and decision-making. H. has special needs. In 2017, he was diagnosed with autism, an intellectual disability and ADHD. James and Melissa disagree profoundly on his best course of treatment, education, general supports and, even, his diagnosis. They also disagree about their daughter, E.

[4] Melissa seeks to relocate with the children to Nova Scotia at some future time. The main issues of the trial, among other things, are whether Melissa’s proposed relocation is in the children’s best interests; which parenting schedule is in the children’s best interests; and which decision-making regime is in the children’s best interests. Currently, the children reside primarily with Melissa and with James for three and a half hours on Tuesdays; alternate Thursdays overnight to Friday morning, and alternate weekends. This temporary parenting schedule, in place since 2023, results in James having 4 overnights out of every 14 days. James is seeking an equal time-sharing schedule. Both parents seek sole decision-making responsibility for the major decisions that impact the children.

Background

[5] James and Melissa, who never married, cohabited from 2012 to 2018. Their children were born, respectively, in 2014 and 2016.

[6] In 2022, James married a woman named Holly. They do not have children of their own.

[7] James is a former commercial marine officer. He currently works for the Ports Toronto Outer Harbour Marina, 7 am – 3 pm, Mondays through Fridays, from March through December. When the Marina is closed every winter, he is laid off. In 2023, he earned approximately $58,000. James also has an inheritance from his father who passed away in 2023, but it is still in process.

[8] Melissa works at Intact Insurance (“Intact”). Her 2023 T1 indicates an income of $189,895.53.

[9] H. was diagnosed with autism in 2017. In addition to his parents and stepmother, H. gets support from the following professionals:

• Bianca Bozelli, Board-Certified Behavioural Analyst (“BCBA”)
• Mary Bowden and Stephanie Weleschuk, speech therapists
• Erin Arnott, an Orton Gillingham tutor who also does Applied Behaviour Analysis (“ABA”) therapy
• Seema Pietrocarlo, ABA therapist
• Hartley Garfield, Pediatrician
• Dr. Langburt, Neurologist

[10] E. presents as neurotypical and does not have any current diagnoses.

[11] Alleging that Melissa was denying him meaningful parenting time, James started this litigation in 2019. James first secured overnights with the children in June 2020.

[12] Under an interim order issued by Justice Kraft on July 5, 2023 (“July 2023 Order”), James currently enjoys parenting time:

• Every Tuesday from 3:00 pm until 6:30 pm.
• In Week One, Thursday from 3:00 pm to Friday drop off at school.
• In Week Two, Thursday from 3:00 pm to Sunday at 4:00 pm.

[13] In November 2023, James won a motion to place H. in a special education class with partial integration at Secord Elementary School (“Secord”). H. moved to Secord from Pape Avenue Junior Public School (“Pape”) the following January. The placement at Secord followed two recommendations of the Identification, Placement and Review Committee (“IPRC”) of the Toronto District School Board (“TDSB”).

[14] Melissa resisted this placement, a fact discussed at length in these reasons. As a result, James brought a further motion and, in March 2024, Justice Sharma granted James temporary sole decision-making authority with respect to, among other things, H.’s education (“Sharma Order”).

[15] In 2023, Melissa secured $65,000 through the Ontario Autism Program (“OAP”) to meet H.’s core clinical needs. It appears that she is the only person who can access this funding, which is reviewed annually.

[16] Citing Toronto’s high cost of living, Melissa wishes to relocate to Windsor, Nova Scotia.

[17] Melissa took a leave of absence from her job to focus on this trial. She represented herself. She conducted cross-examinations of the witnesses in a professional manner, including adducing evidence to support her claims. Melissa’s case in chief was less organized. She would start discussing one topic then shift to another one. She adduced plenty of evidence, but none about her financial claims. Her closing submissions relied on documents that she had not adduced into evidence. She stated that she did not understand that she needed to adduce things upon which she intended to rely for her own case, for example, her messages to James about section 7 expenses over the years. She thought she could merely upload them to Case Center. This statement is puzzling given that she did adduce copious evidence with respect to other witnesses. It is unclear why Melissa’s case in chief was less organized than her cross-examination, as she was clearly competent to do both. She was given ample opportunity to present her case.

Issues to be Decided

[18] The trial raised the following issues:

a. Should Melissa be permitted to relocate with the children to Nova Scotia or elsewhere?
b. What parenting schedule is in the best interests of the children?
c. Who should make decisions for the children?
d. What, if any, child support is payable, and should income be imputed to either party?
e. How should section 7 expenses be shared?
f. Does either party owe retroactive child support or section 7 expenses?
g. Is either party entitled to spousal support? If so, in what quantum or amount and for how long/what duration?
h. Does either party owe any post-separation adjustments?
i. Should the Court include any additional terms to ensure compliance with this Order?

[19] During the trial, the parties agreed that each would take out life insurance, payable to the other in trust for the children, to secure their child support obligations as ordered by this Court.

[20] Both parties referred to prior CAS reports that they believe cast the other in a negative light. None of these reports were verified by CAS. No CAS workers were called to testify. There is no evidence of concerns regarding abuse or neglect by either party. I therefore find these allegations of little use and will not deal with them further.

[21] At several points during the trial, and again in her closing submissions, Melissa requested that the court consider “family violence” when determining the best interests of the children. James denies that he has ever been violent or abusive.

[22] In her form 35.1 affidavit sworn on April 10, 2019, Melissa stated “none” in response to the question of whether she was aware of violence or abuse that the court should consider under section 24(4) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”). However, on an updated form dated October 14, 2024, she listed the involvement of the CAS noted just above.

[23] At trial, Melissa did not describe any events that qualify as family violence under either the Family Law Act or CLRA. She acknowledges that she is not bringing a “formal claim for family violence, personal injury, or conspiracy tort [sic]”.

[24] The court must always be alert to the possibility that family violence is or might be a factor. In this case, however, no evidence supports Melissa’s somewhat vague allusions.

Party Positions

[25] James believes that the ongoing litigation is highly detrimental for both children. He views Melissa as unreasonable on parenting time and decision-making; resistant to accepting views that deviate from her own; and defiant of or indifferent to court orders.

[26] James does not want Melissa to relocate with the children outside of Toronto. He seeks equal parenting time on a 2-2-5-5 schedule and sole decision-making responsibility. He wants monthly set-off child support from Melissa on an ongoing basis, and an order setting Melissa’s share of section 7 expenses at 70%. He wants retroactive section 7 expenses and post-separation adjustments. He wants to continue certain provisions in a prior court order issued by Justice Sharma. He seeks costs.

[27] James has provided exhaustive wording in relation to the above relief. He says the orders must be extremely specific and detailed to prevent Melissa from impeding or defying them.

[28] Melissa believes that James has used family resources to engage in litigation abuse. She believes that she best understands the children’s needs. She refuses to increase James’ parenting time. She argues that the current parenting schedule meets both children’s needs, and a change would be harmful to H. She wants sole decision-making responsibility.

[29] Melissa seeks permission to relocate the children “to a less expensive jurisdiction”. Based on an imputed income to James of $250,000 a year, she seeks retroactive and ongoing child and spousal support and section 7 expenses. She asks for an additional “$40,000 for H. for a period of 12 years starting May 1, 2025” to meet “special and extraordinary expenses.” She also seeks post-separation adjustments.

[30] In her closing submissions, Melissa asked the Court to “supersede all prior orders, including costs awards against her.” After the Court explained to her that prior costs awards can only be varied on appeal, and not through this trial, Melissa abandoned that argument. I will not address it further.

[31] James’ counsel objected to some of Melissa’s closing submissions on the basis that they introduced new evidence that had not been adduced at trial. Where necessary, I will deal with any evidentiary issues in Melissa’s presentation.

Brief Conclusion

[32] Melissa’s request for permission to relocate is dismissed. The parties shall have equal parenting time. It is in the children’s best interests that James exercise sole decision-making. Table child support will reflect Melissa’s 2023 income, and an imputed income to James though not at the level Melissa asked for. The parties will share equally in section 7 expenses. Melissa’s claims for ongoing support and post-separation adjustments are dismissed. James’ claims for retroactive section 7 expenses and post-separation adjustments are granted in part. I will add several provisions to my order to minimize the potential for further disruptive and expensive court proceedings.

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Released: March 17, 2025

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