Court File and Parties

Court File No.: FS-24-00040682-0000
Date: 2025-05-05
Ontario Superior Court of Justice

Between:
Heidi Makela, Applicant
– and –
Kory Guenette, Respondent

Appearances:
Godfrey Okundaye, lawyer for the Applicant
Kory Guenette, self-represented

Heard: May 1, 2025

Endorsement

Justice Robert Diamond

Overview

[1] On May 1, 2025, a long motion attendance proceeded before me. That hearing was the culmination of several prior court attendances, all of which originated from an urgent motion brought by the applicant seeking that the parties’ son (“M”, currently 12 years of age) be returned to her in Toronto, as the respondent had (at that time) unilaterally retained M with him in Verner, Ontario in contravention of the parties’ ad hoc parenting schedule.

[2] I heard the applicant’s original motion on an urgent basis on November 22, 2024. Since then, and as matters developed through those subsequent court attendances (to be described in greater detail hereinafter), the ultimate issue for this Court’s determination became: with whom M should primarily reside on an interim, go forward basis?

[3] Even though the respondent did not technically bring a formal cross-motion seeking an order that M primarily reside with him in Verner, Ontario, the issue as framed above was front and center before this Court and needed to be resolved.

[4] For the reasons which follow, I find that on an interim basis, it is in M’s best interests to reside primarily with the respondent in Verner, Ontario.

Summary of Relevant Historical Facts

[5] The applicant and the respondent were never married, but cohabited between 2010-2021. They are both approximately 40 years of age. M was born on December 5, 2012.

[6] During their relationship, the parties resided in two rental apartments in Brampton, Ontario and Mississauga, Ontario.

[7] The applicant submits that she was and continues to be M’s primary caregiver “at all material times”.

[8] At some point shortly after the parties separated, M began primarily residing with the applicant. Ultimately, the applicant began a new relationship with a third party named Victor (“V”), and the respondent and V began cohabiting together in Toronto, Ontario.

[9] For several years, the respondent exercised parenting time with M in Verner, Ontario on a monthly basis every Friday after school to Sunday evening as agreed upon by the parties, with pick-ups and drop offs taking place at the Highway 400 and Highway 9 intersection.

[10] On or about November 4, 2024, the applicant received a call to attend M’s school as M had been involved in a physical altercation with another student that resulted in minor injuries to both M and the other student. The school counsellor advised the applicant that M had also picked up a mallet and began hitting the wall while whispering to himself certain remarks including ideation of harming other students.

[11] There was a dispute between the parties as to whether the respondent would (at that time) provide his consent for M to undergo a psychological assessment. In any event, the respondent picked up M for his regular weekend parenting time on November 15, 2024 with M scheduled to be returned to the applicant on November 17, 2024.

[12] According to the respondent, during that weekend he learned from M that V had allegedly physically assaulted M on previous occasions, which the respondent understood at that time to have been a significant, contributing factor to what the parties collectively described as M’s “meltdown” at school.

[13] As a result, the respondent unilaterally chose not to return M back to the applicant’s care. The respondent advised the applicant that he had reported the abuse incident to the Catholic Children’s Aid Society (“CCAS”) and the police, and he was keeping M with him on their joint advice.

[14] As stated, the applicant’s urgent motion (on notice to the respondent) proceeded before me on November 22, 2024. While no formal sworn responding affidavit was filed by the respondent at that time, he provided counsel for the applicant and the Court with a summary of his position together with various supporting documents from third parties.

[15] In reviewing those supporting documents, I found that there was some evidence from independent third parties supporting the respondent’s position. At the same time, this Court was obviously live to the fact that there were two vastly divergent and competing narratives tendered by the parties, and further evidence was required. I expressed to both parties a particular desire for them to secure evidence from any and all independent third parties (detective constables, CCAS caseworkers, principals/counsellors from M’s public schools, etc.) to assist this Court’s with its task of making a decision in M’s best interests.

[16] I released an Endorsement that day ordering that M remain with the respondent in Verner, Ontario on an interim and without prejudice basis, with daily video calls and weekend, in person parenting time between M and the applicant. The applicant’s motion was adjourned to proceed before me on December 10, 2024 once further evidence was obtained by the parties and filed with the Court. Of note, the applicant’s in person parenting time with M was to take place at the residence of the applicant’s sister in Toronto, as I ordered that V not be present during any of those visits between M and the applicant.

[17] Approximately 24 hours after the release of my November 22, 2024 Endorsement, the respondent was charged by the applicant with, inter alia, historical sexual assault, assault and domestic violence. The respondent was arrested and incarcerated over that weekend. As a result, the applicant arranged for an attendance in To Be Spoken to Court (“TBST”) on Monday, November 25, 2024 to seek an urgent order varying my interim Endorsement and permitting the applicant to retrieve M from Verner, Ontario and bring him back to her sister’s home in Toronto, Ontario.

[18] During the TBST attendance before Justice Kraft, her Honour instructed her court registrar to try and contact the respondent by telephone. The registrar’s efforts were successful, as the respondent advised the Court that he was being returned to Verner, Ontario after being released from custody. As a result, Justice Kraft concluded that M was safe, and continued the terms of my November 22, 2024 Endorsement.

[19] On December 10, 2024, the applicant’s motion was scheduled to proceed before me. Some additional, independent evidence from third parties was obtained (mostly due to the respondent’s efforts). That evidence included:

• an email from an active detective constable that referenced speaking with M and being advised by M of a desire to no longer reside with the applicant;
• CCAS file notes referencing a November 5, 2024 phone call between the CCAS caseworker and the principal of M’s public school. Those notes disclosed M’s November 4, 2024 “meltdown”, and M advising the principal that he does not like the applicant and prefers to be with the respondent; and,
• a mental health assessment report from a session between a professional recently retained by the respondent and M. The professional noted that M was very upset “when people did not believe him when he talked about the applicant’s partner and how he was treated by him”.

[20] At that time, I concluded that there was sufficient evidence in the record before this Court to warrant the appointment of the Office of the Children’s Lawyer (“OCL”) for the purpose of conducting and preparing a Voice of the Child (“VOC”) report. I adjourned the motion to be heard by me on January 21, 2025, and permitted the parties to file additional affidavit material, stressing that the Court was still very interested in independent, reliable evidence from third parties.

[21] I further decided to return M back to Toronto on a without prejudice basis to primarily reside with his aunt (the applicant’s sister) as, in my view, he needed the stability of returning to school halfway through the year. At the conclusion of my December 10, 2024 Endorsement, I held as follows:

“The issue then becomes what to do with the amended status quo imposed on an interim, interim and without prejudice basis in my original Endorsement. During today’s hearing, and in response to the Court’s inquiries as to whether M could remain with the applicant in the absence of her partner (again, on an interim and without prejudice basis), the applicant confirmed that pending further agreement between the parties or court Order, she would agree to live exclusively and without her partner at either her own home (ie. her partner would vacate the home for now) or with her sister (who had been accommodating the visits pursuant to the terms of my original Endorsement).

Accordingly, and with a view to balancing the interests of the parties as parents with the best interests of M, I am fashioning an interim order designed to create a reasonably acceptable solution to a difficult problem. I am thus ordering the following on a further interim and without prejudice basis:

1. M shall reside with the respondent for the balance of this week, and then be returned to Toronto after school on December 13, 2024 to reside with the applicant on the condition that the applicant’s partner not be present, at either the applicant’s home or the home of the applicant’s sister.
2. M shall thereafter attend John G. Althouse public school in person pending further court order or agreement between the parties.
3. M shall remain with the applicant in Toronto in accordance with the above terms until the morning of December 25, 2024 when M shall be returned to the respondent in Verner, Ontario until January 5, 2025 when M shall be returned to Toronto to reside with the applicant and attend John G. Althouse public school in person, all in accordance with the above terms.
4. The parties shall use best efforts to arrange for daily video calls (Facetime, Zoom or some other similar platform) between M and the other parent, and shall not be present during those video calls between M and the other parent.
5. The respondent shall have parenting time with M in Verner, Ontario for the weekend of January 17 (after school) to January 19 (by 8 pm), 2025.
6. All pick up/drop offs between the parties referenced above shall take place at the Highway 400/Highway 9 exit as the parties have historically arranged.”

[22] Regrettably, very little independent evidence from third party sources was obtained by the parties leading up to the January 21, 2025 appearance. The OCL had yet to respond to my request that it meet with M for a VOC report. The CCAS had yet to produce the balance of its internal notes and records. As a result, I continued the parenting schedule set out in my December 10, 2024 Endorsement, and adjourned the motion to proceed before me on March 11, 2025. I did note that there was one additional document obtained from the CCAS that provided a summary of an interview between the CCAS caseworker and M held on December 19, 2024. According to that summary, M was upset to be back with the applicant and complained about being scolded and treated badly by the applicant.

[23] The applicant’s motion came back before me on March 13, 2025. The Court was advised by the parties that the OCL refused to engage itself due to the stated grounds of “insufficient time to prepare the VOC report”. After discussing the matter further with the parties, and mindful of the fact that additional CCAS notes were only recently obtained by the respondent, I permitted one final adjournment of the applicant’s motion and urged the OCL to accept this Court’s direction that a VOC report be prepared in the circumstances. I continued the interim, without prejudice parenting schedule, and adjourned the matter to be finally heard during the long motion attendance before me on May 1, 2025.

The Independent Evidence Filed on this Motion

[24] Not surprisingly, it is difficult (if not impossible) for the parties to agree upon any pertinent facts. Their respective narratives are quite divergent. Fortunately, the adjournments described above finally bore fruit as a VOC report was obtained, and the Court was able to examine and assess the CCAS notes in detail.

[25] In summary, both the CCAS notes and the VOC report are substantively consistent with the position taken by the respondent from the outset of the applicant’s motion.

[26] To begin, the CCAS notes span a period of September 2023 to April 2025. Focusing upon those notes which post-date the “meltdown” at M’s school, the CCAS caseworkers noted down, inter alia, the following:

• M was unhappy being back in Toronto and did not feel that he had a connection with the applicant and the peers in the community. M wanted to return with the respondent and had no desire to mend his relationship with the applicant.
• M did not appear to be happy at the applicant’s home and told the CCAS worker several times that he prefers the respondent’s home.
• The school worried about M’s emotional state should he continue to reside in Toronto “against his will”. If M remained in the applicant’s care against his will, it was suspected that this would further impact M and his mental health.
• According to M, V is aggressive when he is drinking, and M reported three incidents where V pushed him out of the way and/or into the ground.
• According to M, the applicant and V are verbally abusive and often speak negatively of the respondent, calling him names and not treating him well.
• M is scared to go home and be left alone with V, and is afraid that the applicant and V will retaliate against him and that the applicant will hate him.
• M stated that he only wants to live with the respondent, even if V was not in the picture; and
• The applicant always tells M that the respondent is a bad person, and she keeps M away from the respondent for long periods of time. The applicant talks bad about the respondent, and M is forced to call the respondent a bad person by the applicant.

[27] The CCAS notes, lifted from various sources, included discussions with M, detective constables and school employees, and paint a picture that M is potentially suffering from emotional abuse while with the applicant, and physical abuse at the hands of V.

[28] According to the CCAS notes, M describes being under significant pressure by the applicant to stay with her in Toronto, as she continuously badmouths the respondent to M.

[29] On April 16, 2025, the OCL released its VOC report prepared by the OCL clinician (a registered social worker), which is replete with requests from M to no longer reside with the applicant.

[30] The first interview took place at the applicant’s home. M was not living there at the time, as he was residing with his aunt in accordance with this Court’s order. A second interview subsequently took place at the respondent’s home.

[31] Prior to the first interview commencing, M expressed concern that the applicant could be listening in on the interview, and M went to the basement to look in on the applicant. When he returned, M advised the clinician that he felt better and more secure as he was assured that the applicant was not listening to their conversation. After the first interview, the applicant asked M why he went to the basement, and then asked M if she could trust him and if he loved her. M said that they had argued, and the applicant told M that he did not love her.

[32] M was more relaxed during that second interview. Both the respondent and M’s grandfather were outside during the clinician’s visit.

[33] A summary of the OCL report is as follows:

• M explained that during the parties’ relationship, he often stayed in his room because his parents “argued and argued and argued and argued”, and while they did not have physical fights, he witnessed many of those arguments.
• After the parties separated, M lived with the respondent near Sturgeon Falls for approximately two weeks and was then informed that the applicant’s father (whom M had never met) was diagnosed with cancer so M agreed to stay with the applicant temporarily until his grandfather passed away with a view to returning to live with the respondent.
• According to M, he subsequently realized that he was not going to be returning to the respondent’s home because “the applicant didn’t agree”.
• Over time, M’s parenting time with the respondent was reduced.
• M liked when the applicant treats him kindly and sometimes with respect, and when she gives him space. M described his relationship with the applicant as “confusing and upsetting” because the applicant can be kind to him, but when no one is around she gets upset with him and yells at him.
• M described the applicant as having told M several times that the respondent lies to him, is not a good person, is a deadbeat, and cannot be trusted.
• The applicant gets mad at him for any reasons she can find, most often for reasons related to the respondent.
• Anytime M tries to talk with the applicant about the respondent and how he wants to live with the respondent, he gets into trouble with the applicant. Specifically, the applicant grounds him and tells him that the respondent is a terrible person. It is obvious to M that the applicant hates the respondent.
• A few times, the applicant told M that the respondent did not love him. On another occasion, he was forced by the applicant and V to say aloud that the respondent was a terrible person.
• M says that the applicant is “guilt-tripping him” because M wants to live with the respondent and because he loves the respondent more.
• When the applicant says bad things about the respondent to M, it makes M feel angry, sad, depressed, anxious and annoyed. It also makes him feel that the applicant does not care about M’s feelings.
• M does not talk about his feelings in therapy because he has learned that the applicant will “be mad at him and use what he says as a weapon”.
• While there are times when V has done nice things for him, anytime M mentions the word “dad”, V badmouths the respondent, calling him a deadbeat and a terrible person. V also tells M that the respondent does not love him, and makes M say out loud that the respondent is a bad person.
• M has been called a liar by V “just like the respondent”.
• There have been times when M felt unsafe around V, and he has been physically harmed by V in the past. V has shoved M to the floor and forced him to say that the respondent is a terrible person.
• After accidently bumping into V, M was allegedly shoved by V to the ground and given a “little slap on his left cheek”.
• The applicant told M that she does not believe the incidents with V happened and accused M of lying. M is upset that the applicant believes V over him.
• M is concerned that V could follow through on threats and physically hurt him, and M does not want V in his life anymore.
• M does not want to live with the applicant because she toys with him and his relationship with the respondent, and uses him “as though he is a puppet”.
• M said that his relationship with the respondent is amazing because the respondent will not yell at him for no reason and does not want to upset him. The respondent helps him, hangs out with him and takes care of him. M believes he would have a better life with the respondent, both mentally and physically.
• When M is in Verner, Ontario, he lives with the respondent, his new wife and his two stepbrothers on a farm with many animals. M advises that he has a nice relationship with the respondent’s new wife and they have a lot of things in common. He also has good relationships with his two stepbrothers.

[34] Subsequent to the VOC report, additional CCAS notes were obtained and produced by the respondent. According to those notes:

• After the applicant received the OCL report, she blamed M and was disappointed and upset with him. This caused M to be quite upset at school.
• M was told by the applicant that he does not love her, and he should hate the respondent.
• M does not share his thoughts with many people as he does not want to get into trouble with the applicant as he is constantly told by her that he is a liar.
• M believes the applicant feels M is a terrible person because he wants to live with the respondent.

Decision

[35] In the recent decision of T.R. v. S.G., 2025 ONCJ 224, Justice Sherr set out a helpful summary of the factors to be taken into account by the Court in determining the best interests of a child, and in particular when assessing parenting time for a child:

“Subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act) set out factors for the court to consider in determining a child’s best interests. The court has considered the relevant factors in those subsections in this decision.

Section 28 of the Act sets out the types of parenting orders the court can make.

The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. 27. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young, [1993] 4 S.C.R. 3; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: Armstrong v. Coupland, 2023 ONSC 5451; N.D. v. R.K., 2020 ONCJ 266.

In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; Seyad v. Pathan, 2022 ONCJ 501; Mulik v. McFarlane, 2023 ONCJ 148.

A party's failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, supra; I.A. v. I.G., 2023 ONCJ 523.

Denigrating your spouse in front of a child fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v. Baker, 2022 ONSC 4235.

Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, supra; El Khatib v. Noun, 2023 ONSC 1667.”

[36] A VOC report is never binding upon the Court. As stated by Justice Des Rosiers in Monga v. Monga, 2024 ONSC 709, a VOC report is not the voice of the Court, but only one element to consider in assessing the best interest of the child.

[37] As held by the Court of Appeal for Ontario in J.N. v. C.G., 2023 ONCA 77, it is settled that when determining how much weight to give a child’s wishes, a Court must consider:

1. Whether the parents are able to provide adequate care.
2. How clear and unambivalent the wishes of the child are.
3. How informed the expression is.
4. The age of the child.
5. The child’s maturity level.
6. The strength of the wish.
7. How long they have expressed their preference.
8. The practicalities of the situation.
9. Parental influences.
10. Overall context, and
11. The circumstances of the preference from the child’s point of view.

[38] Over the last six months, M’s life has been very unstable. Some of that instability has arisen due to this Court’s desire to “get it right” and search for independent evidence that cuts through the parties’ competing narratives. As recently as last week, M’s school principal (in Toronto) contacted the applicant to advise of concerns with M’s mental health and well-being, as M seems to have had “a lot on his mind” and was concerned about the “upcoming court date”. It is thus important that a disposition of the applicant’s motion be made, and M begin to experience stability, predictability and routine.

[39] In my view, the VOC report before this Court should be given considerable weight in the circumstances. M’s wishes have been clearly and unambiguously expressed since November 2024, and those wishes have been consistent. As a 12-year-old, while M is of moderate maturity, the strength of his wishes is somewhat profound. Those wishes are consistent, and having been allegedly assaulted and/or emotionally abused while living with the applicant, M’s wishes are objectively reasonable and understandable.

[40] The respondent did act unilaterally in mid-November 2024, and forced the applicant to issue this application and bring her urgent motion. However, on the record before this Court I find that the respondent’s actions were premised on securing M’s best interests, and not any attempt to take personal advantage of the information imparted to him by M.

[41] The applicant argues that the contents of the VOC report show the presence of coaching on the part of the respondent. While I cannot foreclose that argument for the ultimate trial of this proceeding, I do not find merit to the applicant’s position on the record before this Court. M’s wishes were expressed to detective constables, school principals and CCAS case workers, all at a time when M was primarily residing for years with the applicant, and only seeing the respondent intermittently at best. The degree of potential influence exercised by the respondent over M was limited at best, and there is no, direct, active evidence of it having even taken place.

[42] In my view, M’s views were independently formed, and not as a result of being asked to repeat what the respondent had allegedly told him. The applicant gave evidence that M has asked her why the respondent will be going to jail (presumably referencing the criminal charges). The applicant seeks to pin the respondent’s potential incarceration as the source of M’s current mental health issues. I disagree. M has been placed in an objectively untenable situation, and he is continuing to suffer from the pressure being placed upon him externally and internally.

[43] While V has not been criminally charged, there is enough evidence in the record before this Court to express concerns about M’s safety and well-being while in Toronto. Given that the applicant is still in a relationship with V, stickhandling around living arrangements in Toronto by having M reside with his aunt is clearly not in M’s best interests.

[44] Despite the applicant’s apparent concerns that M does not love her, it is clear to this Court that M does indeed love his mother, but is being suffocated from the pressure and potential emotional blackmail being placed upon him by the applicant.

[45] For these reasons, I find it is in M’s best interests to primarily reside with the respondent in Verner, Ontario on an interim basis. While I appreciate that it is quite late in the school year for a transfer at this stage, M’s current school principal has confirmed on several occasions that whatever resources were available to M in Toronto are not working, and further “meltdowns” are likely.

Order

[46] I thus make the following order:

a) Commencing Friday, May 9, 2024, M shall be driven by the applicant to the Parry Sound drop off location (as per my previous Endorsements) and commence residing primarily with the respondent in Verner, Ontario. This should give the respondent sufficient time to contact the local school in the respondent’s catchment area to prepare and arrange for an orderly transfer.

b) The respondent shall provide the applicant with daily video parenting time with M, to be arranged at a time as consistent as possible in the circumstances.

c) The applicant shall have in person parenting time with M every other weekend from Friday after school until Sunday evening at 7:00 pm in Toronto (either at the applicant’s residence or the applicant’s sister’s residence, and with V not present at either location), with pick up and drop off to take place in the Parry Sound location, all commencing the weekend of May 16, 2025; and

d) The parties shall arrange for an urgent case conference (likely on a Tuesday or Thursday at 12:00 pm or 2:00 pm), by zoom videoconference, before a different judge to address the upcoming summer parenting schedule, and the necessary steps to ensure that this matter proceeds to trial as efficiently as possible.

Costs

[47] If either party seeks costs of this motion, absent an agreement between them they may serve and file written costs, limited to 5 pages including a Bill of Costs in accordance with the following schedule:

a) The respondent shall serve his costs submissions within 10 business days of the release of this Endorsement; and

b) The applicant shall serve her responding costs submissions within 10 business days of the receipt of the applicant’s costs submissions.

Released: May 5, 2025

Justice Robert Diamond