CITATION: J.M.M. v. C.R.M, 2025 ONSC 3067
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.M.M
Applicant
– and –
C.R.M.
Respondent
J.M.M
Applicant
– and –
C.R.M.
Respondent
Alisa Williams for the Applicant
The Respondent self-represented
Amended Judgment: May 30, 2025
The last sentence of Paragraph [701] has been deleted.
Paragraph [715] has been amended.
Order: Paragraph 31 has been deleted.
The Honourable Madam Justice Deborah L. Chappel
REASONS FOR JUDGMENT
PART 1: INTRODUCTION
1The Applicant J.M.M. and the Respondent C.R.M. were married on September 5, 2014, after having cohabited for four years. Their son C.M.M. was born in 2016, and he is the only child of their relationship. In these Reasons for Judgment, I will refer to the Applicant as “the father,” the Respondent as “the mother” and C.M.M. either by his initials or as “the child.” The parties separated on January 8, 2018 and have not yet divorced. Since that time, the family has lived under the bleak cloud of recurrent Child Protection investigations with the Catholic Children’s Aid Society of Hamilton (“the Society), lengthy Child Protection court proceedings, and ongoing Family Law litigation since September 2021. By all accounts based on outward appearances, C.M.M. has navigated the storm generated by his parents’ separation and ensuing events reasonably well. However, as I will elaborate upon, he has struggled internally due to his love for both of his parents and divided family loyalties, inappropriate influence by the mother over the past 6 years, his subjection to numerous interviews by police and Child Protection officials, and instability respecting his parenting arrangements flowing from the destructive family dynamics that have characterized his life to date. As I will discuss, C.M.M. is at serious risk of suffering irreparable emotional harm unless these dynamics are resolved and a parenting plan is immediately implemented that makes his safety and wellbeing the number one priority.
2The parties were embroiled in a protracted Child Protection case with the Society that lasted from April 2019 until June 7, 2021. The father commenced the application currently before the court soon after those proceedings ended, on September 3, 2021, and the mother served and filed an Answer and Claim dated October 18, 2021. On January 31, 2024, Brown J. granted a final order on consent of the parties addressing the issues of holiday and special occasion parenting time, communications between the parties and travel issues pertaining to C.M.M. On December 31, 2024, Kril J. granted a final order on consent of both parties in the context of a mid-trial settlement conference addressing the issues of retroactive and ongoing contribution to the child’s section 7 expenses.
3The parties’ positions respecting the outstanding issues changed from the outset of these proceedings, and in fact, I granted them both leave to amend their respecting pleadings during the trial. Ultimately, the issues to be determined at trial were as follows:
Should the parties be granted a divorce?
Have there been any material changes in C.M.M.’s circumstances since January 31, 2024 relevant to his best interests which satisfy the threshold test for varying the parenting terms of that order?
If the threshold test for varying the January 31, 2024 order has been satisfied, what changes should be made to that order in C.M.M.’s best interests?
What decision-making responsibility and other parenting time terms are currently in C.M.M.’s best interests?
Should the mother’s parenting time be supervised, and if so, what form of supervision is in C.M.M.’s best interests?
Should the mother be ordered to undergo a psychological and/or psychiatric assessment pursuant to either section 30 of the Children’s Law Reform Act, R.S.O., 1990, c. C-12, amended (the “CLRA”), section 105 of the Courts of Justice Act, R.S.O. 1990, c. C- 43, as amended, or both Acts?
Should any terms of the parenting order made in this proceeding be subject to a review, rather than requiring a Motion to Change Final Order to vary the terms?
Is the mother entitled to retroactive child support from the father for C.M.M. pursuant to the Tables under the Federal Child Support Guidelines, SOR/97-175, as amended (“the Guidelines”)?
If the answer to question #8 is yes:
a) What is the appropriate commencement date for the mother’s retroactive child support claim;
b) How much retroactive child support should the father have paid to the mother; and
c) Should the father be granted a credit against any retroactive amount owing on account of any payments that he made directly to the mother or indirectly to third parties on the mother’s behalf for the support of C.M.M. following the parties’ separation?
Is the father entitled to retroactive child support from the mother for C.M.M. pursuant to the Tables?
If the answer to question 10 is yes:
a) What is the appropriate commencement date for the father’s retroactive child support claim;
b) How much retroactive child support should the mother have paid the father;
c) Should the regular Table amount for any retroactive entitlement be reduced based on undue hardship or any other ground; and
d) Should the mother be granted a credit against any retroactive amount owing on account of any payments that she has made to the father for the support of C.M.M.?
Is the father entitled to ongoing child support from the mother for C.M.M. pursuant to the Tables?
If the answer to question 12 is yes:
a) What is the amount of his monthly child support entitlement on an ongoing basis under the Tables; and
b) Should the regular Table amount be reduced based on hardship or any other ground?
- Does the mother owe the father an equalization payment pursuant to the Family Law Act, R.S.O. 1990, c. F-3, as amended, and if so:
a) What is the amount owed;
b) Are there any grounds for an unequal division of the parties’ net family properties; or alternatively
c) Are there any other grounds for denying the father the payment?
Did the father gift a portion of his share of the net proceeds from the sale of the matrimonial home to the mother, or did he simply transfer her those funds to allow her to purchase her home, with the intention that they would be accounted for as part of the overall settlement of the financial issues between the parties?
If the father did not gift a portion of his share of the net proceeds from the sale of the matrimonial home to the mother, should the mother be required to reimburse him for those funds?
Is the mother entitled to spousal support from the father?
If the answer to question #17 is yes:
a) Should the mother be permitted to advance a retroactive spousal support claim, and if the answer is yes, what is the appropriate commencement date for the mother’s retroactive spousal support claim;
b) Should the father be imputed income for the purposes of the spousal support analysis?
c) What is the appropriate quantum of spousal support that the father should have paid the mother to date;
d) Should the father be granted a credit against any spousal support owing to the mother on account of payments that he made either directly to the mother or indirectly to third parties on her behalf for her support; and
e) Does the mother remain entitled to spousal support, and if so, what is the appropriate quantum and duration for ongoing spousal support?
4For the reasons that follow, by way of general overview, I have determined as follows:
The names of the parties, the child and all non-professional witnesses should be initialized, and several exhibits should be sealed to protect the privacy interests of the parties and C.M.M.
There have been material changes in C.M.M.’s circumstances since January 31, 2024 which satisfy the threshold test for varying the parenting terms of that order.
The father shall have sole decision-making responsibility respecting C.M.M.
The mother shall have supervised parenting time with C.M.M. The supervision shall be carried out by a professional supervised parenting time agency to be agreed upon in advance in writing between the parties. The supervised parenting time may be virtual and/or in person but shall be no more than twice per week in total, regardless of its form.
It is in C.M.M.’s best interests that the parenting time terms of my order be subject to a review, provided that a review may not occur before December 1, 2026.
I am ordering that the mother undergo an updated psychiatric assessment and a psychological assessment. The sum of $10,000.00 shall be released to the mother from the total net proceeds from the sale of her former home located on Upper Gage Avenue (“the Upper Gage Property) currently being held in trust by Dudzik Barristers and Solicitors, to ensure that she has funds to obtain the psychiatric and psychological assessment through private retainers if necessary rather than through public funding.
There are no grounds for imputing income to the father based on deliberate unemployment or under-employment.
The mother is required to pay the father an equalization payment of $4,593.23. There is no basis for reducing or denying him this payment on any grounds.
The mother received the sum of $13,035.68 from the father’s share of the net proceeds from the sale of matrimonial home. The father did not intend this to be a gift, but rather expected that the amount would be credited to him as part of the ultimate settlement of all financial issues. This amount should be credited towards the retroactive spousal support that the father owes to the mother.
The mother was entitled to the Table amount of child support for the period spanning from January 8, 2018 until March 31, 2019. However, the father has been entitled to the Table amount of child support from the mother since May 3, 2019. After setting off their respective obligations to each other, the mother owes the father retroactive child support in the amount of $17,528.00 up to and including May 31, 2025.
The mother is required to pay the father ongoing child support in the amount of $403.00 per month commencing June 1, 2025.
The mother has not established that her child support obligations to the father should be reduced based on undue hardship or any other grounds.
The mother is entitled to spousal support, and she should be permitted to advance this claim as of January 1, 2018. However, the father has fully satisfied his spousal support obligation through direct payments to her, and indirect payments made to third parties on her behalf for her support. Accordingly, there shall be no retroactive or ongoing spousal support payable by the father.
5I emphasize at the outset of these Reasons that the trial of this matter was extremely long and challenging. It lasted 54 days. The length and difficulties with the trial process were attributable primarily to the mother’s failure to properly prepare, the need to repeatedly accommodate her so that she could advance her case properly, her pursuit of new claims that had not been advanced prior to trial and the duration of her own evidence. The mother was granted indulgence after indulgence throughout this trial to ensure that she felt fully heard. The father and his counsel Ms. Williams were exceedingly generous and accommodating in either consenting to or not opposing the many extensions of time and other indulgences that I granted her throughout the trial. The documentary evidence adduced at trial by both parties was extremely comprehensive and voluminous. It included all of the parties’ medical records from 2013 onward, all of C.M.M.’s medical records, all of the Society’s notes and records, police occurrence reports involving the parties, two massive binders of documentation respecting the family from Healthy Babies Healthy Children (“HBHC”), and all of the parties’ text messages and App Close messages to each other from the fall of 2017 onward. I have meticulously reviewed and considered every page of the voluminous documentary evidence adduced at trial. While it is not possible to summarize every aspect of the documentary and oral evidence adduced, I have taken it all into consideration in reaching my decisions on the issues.
6I also highlight at this point that these Reasons for Judgment are very detailed and lengthy, and that there is a sound basis for my attention to the particulars in this case. Unfortunately, the outcome of this trial is such that future Family Law litigation is a certainty. The parties have been involved in mediation and litigation since 2018, and throughout that time, the father and his family members have been the target of constant complaints and allegations by the mother. Many of those complaints were very historical and were not relevant to the current situation. Of the remaining allegations, the vast majority of them have not been substantiated. It is critical for the purposes of the future litigation that is bound to occur in this case that comprehensive findings of fact be made now on all the issues that have been raised to date, so that the parties and the court can move forward with a focus on the future, rather than incurring more time and expense on rehashing events of the past. Based on my findings in this case, I am fairly certain that the mother will attempt to raise historical events, complaints and concerns in any future litigation. It is critical that she not be permitted to do so, and the hope is that the detailed history and findings in these Reasons will provide any judge dealing with this case in the future with a solid foundation for blocking such efforts on her part. In addition, as I have indicated, I am making an order requiring the mother to undergo comprehensive psychological and psychiatric assessments, and to follow through with any recommendations flowing from the assessments. These are critical expectations that should be satisfied before any consideration is given to allowing her unsupervised parenting time with C.M.M. It is imperative that the assessors obtain a comprehensive review of the background in this case to assist them in properly diagnosing the mother and formulating appropriate treatment recommendations, as there are longstanding concerns about the mother’s mental health and clear patterns of behaviour on her part that will likely be relevant to the assessment process.
PART 2: INITIALIZATION AND SEALING OF EXHIBITS
7During the trial, I solicited the parties’ positions on whether the names of the parties, the child, and all non-professional witnesses should be initialled in these Reasons for Judgment to safeguard their privacy interests. I also sought their position on whether certain exhibits should be sealed, specifically: child protection records, endorsements and orders respecting the family, exhibits that reference the family’s involvement with child protection professionals, materials which include sensitive information about the parties’ and C.M.M.’s mental and physical health, and photographs of C.M.M. and video recordings that the mother took of him during which he made statements about alleged sexual abuse by the paternal grandfather W.M. and the paternal grandmother L.M. In these Reasons for Judgment, I will refer to W.M. as the grandfather and L.M. as the grandmother. The parties both consented to these protective measures.
8In M.A.B. v. M.G.C., 2022 ONSC 7207 (S.C.J.), I outlined in detail the principles that apply in determining whether an order restricting the operation of the open courts principle, including sealing orders and orders authorizing initialization of names in Reasons for Judgment, is appropriate. I have considered those principles in determining whether an order should issue for the initialization of names and the sealing of the exhibits referred to above. I conclude that the test for granting these orders has been satisfied for the following reasons:
As I have indicated, this family was involved in lengthy child protection proceedings. Initialization of their names and the names of any other individuals closely associated with them is in my view necessary in order to comply with section 8(7) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, which provides that “[n]o person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.”
As I will discuss in further detail in these Reasons for Judgment, the facts of this case involve highly personal and sensitive information about the parties, the child and many extended family members. With respect to the mother, she was involved with child protection authorities as a child, due to allegations by her stepmother that her father had sexually assaulted her. The evidence demonstrates that she has an extensive history of mental health challenges. She has undergone several mental health assessments and received several psychiatric diagnoses. There is also highly personal and sensitive information about the father’s history, including details about previous alcohol consumption problems and periods of blackouts when he drank. The mother has made allegations against the father of sexual abuse and negligent supervision and parenting of C.M.M., including claims involving nutritional neglect. She has also made horrific allegations of sexual abuse by the grandmother and the grandfather towards C.M.M., physical abuse by the grandmother, and general neglect by both grandparents in caring for the child. She has claimed that both grandparents are alcoholics and that they have mental health problems. Furthermore, she has asserted that the paternal uncle D.M, who I will refer to as “the uncle” in these Reasons, attempted to lure C.M.M. for a sexual purpose. As I will address in these Reasons, none of the mother’s allegations against the father and his family members have been verified or substantiated on the evidence.
The photographs and recordings of C.M.M. are highly personal and sensitive as well. Some of them involve him making statements about alleged sexual abuse and expose various parts of his body, including his buttocks and chest.
I am satisfied that the public airing of the information described above in an identifying fashion could cause significant mental and emotional harm to the parties, the child and the extended family members.
The information involves highly personal, intimate and sensitive details about the experiences of C.M.M., the parties and the extended family members. The publication of this information would in my view constitute a serious affront to all of their dignity, and to the personal reputations of the parties and the family members in the community. The allegations against the father and the grandparents have caused them significant trauma, and given that they have not been substantiated on the evidence, the concern about an attack upon their dignity is particularly compelling. For all of these reasons, I conclude that the protection of the privacy interests of C.M.M., the parties and the extended family members is an important public interest, and that publicly identifying them would actually present a serious risk to that interest.
C.M.M.’s young age renders him particularly vulnerable and susceptible to harm from the public disclosure of his private and sensitive information, and the protection of his privacy is therefore also particularly important.
Initializing the names of extended family members, friends and all non-professional witnesses is in my view necessary, since failing to do so would in all likelihood result in the identification of the parties, the child and the extended family members against whom the mother has made allegations.
There are in my view no less constraining measures on court openness that would be sufficient to prevent the risk to the privacy interests at stake. As I emphasized in M.A.B., initialization is a minimal intrusion upon the open courts principle.
The restrictions that I am imposing on court openness will not limit the ability of the press or members of the public generally to report and comment on the case, to understand the important issues and to gain insight into the operations of the court. Accordingly, I find that the benefits of the measures that I am taking to restrict court openness far outweigh any potential negative effects.
I do not consider it necessary to give notice to the media before making the orders for initialization and sealing of specific exhibits. Initialization represents a limited restriction on openness, and I find that the use of initials and the limited sealing order that I am making respecting only images and recordings of C.M.M. would not impede in any material way upon public comment or debate on the issues in this case.
PART 3: CREDIBILITY AND RELIABILITY ASSESSMENT
9In this case, there were serious discrepancies in the evidence on many critical issues between the mother on the one hand, and the father and the grandparents on the other. I discuss my general observations of them and my assessment of their credibility and reliability in much more detail in addressing the evidence in these Reasons, but I summarize some of my general impressions at this point.
10I turn first to the law respecting the assessment of credibility and reliability, which I reviewed in detail in Khan v. Khan, 2024 ONSC 4045 (S.C.J.), at paragraphs 6 to 8. The concepts of credibility and reliability are related but distinct. Shergill J. provided an excellent description of the differences in Lawson v. Hartt, 2022 BCSC 2087 (S.C.), as follows:
9 Credibility and reliability are related but distinct concepts. Reliability relates to the accuracy of the testimony of a witness. It engages consideration of the ability of a witness to accurately observe, recall, and recount the events in issue. Credibility centers on the honesty of the witness. It involves an assessment of the trustworthiness of their evidence, based on their veracity or sincerity: Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296, leave to appeal to SCC ref'd, [2012] S.C.C.A. No. 392 (7 March 2013).
10 A witness who is not telling the truth is not providing reliable evidence. However, the reverse is not the case - a credible witness may still give unreliable evidence: R. v. H.C., 2009 ONCA 56 at para. 41, referencing R. v. Morrissey, [1995] O.J. No. 639 (QL) at para. 33,1995 CanLII 3498 (O.N.C.A.).
11Sometimes an honest witness will be trying their best to tell the truth, and will believe the truth of what they are relating, but nevertheless be mistaken in their recollection: H.C. at para. 43.
11Assessing the credibility and reliability of witnesses is not an exact science; rather, it is a challenging and holistic undertaking, the outcome of which is often difficult to explain in precise terms (R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20). The complexity of the task is heightened by the fact that the judge is not required by law to believe or disbelieve a witness' testimony in its entirety. On the contrary, they may accept none, part or all of a witness' evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.)](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996452125&pubNum=0005156&originatingDoc=I2946568404874597e0540021280d7cce&refType=IC&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))[, at para. ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996452125&pubNum=0005156&originatingDoc=I2946568404874597e0540021280d7cce&refType=IC&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))[93](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996452125&pubNum=0005156&originatingDoc=I2946568404874597e0540021280d7cce&refType=IC&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)); R. v. Boutros, 2018 ONCA 275 (C.A.)). Notwithstanding these challenges, the caselaw has identified numerous factors as being helpful in weighing and assessing the credibility and reliability of witnesses. These considerations include the following:
Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at para. 23; R. v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21).
Was there a logical flow to the evidence?
Were there inconsistencies between the witness' testimony and the documentary evidence?
Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
Is there other independent evidence that confirms or contradicts the witness' testimony?
Did the witness have an interest in the outcome, or were they personally connected to either party?
Did the witness have a motive to deceive, fabricate evidence or embellish upon it?
Did the witness have the opportunity and ability to observe the factual matters about which they testified?
Did they have a sufficient power of recollection to provide the court with an accurate account?
Were there any external suggestions made at any time that may have altered the witness’ memory?
Did the evidence appear to be inherently improbable and implausible? In this regard, the question is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9).
Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
Where appropriate, was the witness capable of making concessions not favourable to their position, or were they generally self-serving?
Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah, 2002 NSCA 99 (C.A.), at paras. 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng,, 2004 BCCA 464 (C.A.), at paras. 53-54).
12Addressing my attention first to the mother, I had significant concerns regarding her overall credibility and reliability for many reasons which I will elaborate upon in much more detail in discussing particular aspects of her evidence. However, I provide a broad summary of my impressions at this point to provide a general backdrop for my analysis of her credibility and reliability on specific issues. One overriding concern is that the mother has a longstanding history of medically documented mental health difficulties which include behaviours that are highly relevant to her credibility and reliability. As I will elaborate upon, these behaviours include paranoid thoughts, exaggerating the seriousness of issues and concerns, manipulating the truth to further her own objectives, and being unable to properly perceive and process the meaning of statements, events and situations, resulting in distorted perceptions of reality. I have found that all of these problems have contributed to her allegations of abuse by the father, the grandparents and the uncle, which have not been substantiated. Examples of her distorted thinking including her wild, unsupported claims that the father, the grandparents and school officials were involved in a child sexual abuse, pornography and human trafficking ring, and that the father had stalked and tried to harm her by puncturing her car tires on several occasions. There was no evidence whatsoever to substantiate these claims at trial. I will discuss more examples of her distorted and exaggerated thought processes later in these Reasons in addressing the concerns about the mother’s mental health.
13In addition, the mother’s evidence at trial was in some important respects internally inconsistent. As one example of many was her statement early in the trial that she was experiencing difficulties managing the trial because she was suffering from irritable bowel syndrome, yet she later acknowledged that she had not in fact been diagnosed with this condition. Her medical records confirmed that she had not received any such diagnosis. Another example was that she spent much of her very lengthy examination in chief explaining in great detail her myriad of complaints about the grandparents, and asserted that just seeing them makes her skin crawl, yet she adamantly denied on cross examination that she disliked them.
14A third area of concern was that the mother’s evidence at trial was in many respects inconsistent with her statements made to various professionals prior to trial. Furthermore, her statements in the past to different professionals about significant events have been irreconcilable. For example, in regard to a domestic incident that occurred on November 20, 2017, she did not report to the police and the Child Protection workers involved at the time that the father had pushed her over. Furthermore, she called her counsellor at the Winterberry Medical Clinic (“the Winterberry Clinic”), Ms. Lauren Van Impe, on November 20, 2017 following the incident, and told her unequivocally that there had not been any physical abuse by the father. However, she has frequently claimed since that time, and alleged at trial, that the father pushed her on that occasion. On the other hand, she told a psychiatrist, Dr. Links, on May 9, 2018 that the father only pushed her once, during a domestic dispute on January 30, 2018. In contrast to that statement, she asserted to a Winterberry Clinic nurse, Ms. Crystal Troup, on May 10, 2022 that the only time the father pushed her was on November 21, 2017. Finally, at trial, she alleged in contrast to her statements to Dr. Links and Ms. Troup that the father also pushed her after a night of celebrating his 30^th^ birthday on April 9, 2011. There is no evidence that she advanced this allegation with any other professional prior to trial, and there is no mention of her having made this claim to the police officers who were involved with the parties on that date.
15The mother’s evidence and previous statements about the nature of her relationship with her first husband, D.Z., are equally incongruent. At trial, she complained that D.Z. drank too much and was emotionally negligent towards her, but she did not mention physical abuse. She also stated that their separation was amicable, and that D.Z. was fair and reasonable in settling their affairs. However, during a clinical interview with a psychiatrist, Dr. Sokolov, in February 2012, she described D.Z. as having been verbally abusive and physically threatening towards her. Similarly, in a letter to the Legal Aid Review Board dated May 21, 2024, she alleged that D.Z. was an abuser, and that he bullied her into a divorce settlement that was totally to his benefit. I will elaborate upon other inconsistencies at length in these Reasons, but these few examples alone highlight the magnitude of the concerns about the mother’s reliability and credibility on significant matters.
16The mother’s evidence at trial and statements to professionals on many major issues was also inconsistent with the documentary and other forms of evidence pertaining to those matters. The example of there being no mention of physical abuse by the father in the occurrence report completed on the father’s 30^th^ birthday highlights this problem, but there are many other examples, including without limitation the following:
During the first police investigation into the mother’s allegations of abuse, the police noted that certain recordings that she had provided to them did not portray what the mother insisted they showed.
In a similar vein, the mother claimed to the police on January 13, 2021 that she had a recording in which the father had threatened her life, but the police occurrence report relating to that claim indicated that she did not in fact have such a recording.
The mother advised Society worker Ms. Courtney Byrne in 2024 that she had a video recording of the father abusing her when C.M.M. was a baby, but she never in fact produced any such recording.
She alleged that C.M.M.’s allergy specialist, Dr. O’Hayon, had advised the parties that they could introduce lightly cooked eggs to C.M.M. without conducting an egg allergy challenge in his office, but Dr. O’Hayon’s records and the father’s testimony clearly establish that he did not do so.
In addition, she claimed that the police and the Society workers involved with her following the November 20, 2017 incident had told her that the father had been abusive, but the police and Society records do not reflect any such concerns about abusive conduct by the father on that occasion.
Turning to more recent examples, she adduced evidence about several e-transfers of money that her partner at the time, M.R., had allegedly transferred her to assist her and C.M.M. in her claim that she was in dire financial straits. However, only two of those alleged e-transfers showed up in the only bank account that she disclosed to the father and this court. This meant that she was either being dishonest about those transfers, or she failed to disclose another bank account to which the funds had been sent.
As another example, she claimed in an email to the Ministry of Community and Social Services dated April 12, 2024 that numerous politicians and law enforcement officials had deemed the family’s situation horrific and had questioned why C.M.M. remained in a ‘precarious situation” in the care of the father and the grandparents, yet there is no evidence whatsoever to support that broad claim.
She alleged in her May 21, 2024 letter to the Legal Aid Review Board that there was an ongoing investigation about possible sexual abuse by the paternal grandparents, and that she was unaware of the status of that inquiry, but the Society records reflect that she had been advised on March 1, 2024 that it would not be investigating further. She also alleged in that letter that she remained vulnerable and unable to represent herself due to a vertebral arterial dissection that she had suffered in 2015, yet she insisted at trial that she did not in fact suffer any long-term effects from that event, and the medical records of her neurologist, Dr. Silva, confirmed that point.
She testified that the father had never advised her of an important school advent event that was to occur on December 16, 2024, but the father adduced as evidence an email to her dated December 2, 2024 in which he had forwarded her the notice and advised her of the event.
17Of additional concern respecting the mother’s credibility, there were several occasions during which she either deceived or gave misleading information to the court. At Purge Court on August 26, 2024, she advised Pazaratz J. that she wanted an adjournment of the trial because Legal Aid had “dumped her” due to financial eligibility issues, and she was attempting to appeal that decision. As it turns out, however, she had retained a lawyer privately and had filed a Notice of Change in Representation on May 27, 2024, indicating that she would be representing herself. She requested an adjournment again a few days into the trial, which I denied. In my Reasons for Judgment on that motion, I highlighted the ways in which she had misled the court in her evidence and submissions. For instance, she had alleged that Legal Aid had mistreated her and delayed responding to her attempts to secure representation, when in fact she had been the one responsible for the delays. She also advised the court that the Winterberry Clinic had been uncooperative in providing her with medical records required to argue the motion, but as it turns out, she actually had the records in her possession but did not wish to produce them because she disagreed with some of their contents. She also relied on the fact that she had an upcoming appointment with her neurologist, Dr. Silva, and misled the court into believing that this appointment related to significant current medical issues that would support her adjournment request. However, that appointment was simply a routine, non-urgent annual follow-up in relation to the arterial dissection that she had suffered in 2015, and she was not experiencing any neurological challenges at the time.
18The mother’s demeanour and general presentation during cross examination raised additional significant concerns about her credibility and reliability. When questioned about evidence that did not support her case, she was often angry and evasive and digressed onto other issues that she felt were more favourable to her positions. I had to redirect her many times to answer questions put to her rather than wandering into territory that was more favourable to her. In addition, she did not acknowledge points that were not in her favour when she clearly should have based on the patently clear evidence on the issues. There were many instances when she either denied issues or feigned not being able to recall, only to acknowledge the issues upon further cross examination after being presented with undeniable evidence that supported the father’s case.
19Turning to the father, I found him to be extremely credible and reliable in all of his evidence. His testimony was internally consistent, and there were no inconsistencies between his trial evidence and previous statements that he made to third parties. There was also no evidence of him having made inconsistent statements about significant issues to third parties prior to trial. He was highly responsive, fair, measured and reasonable in giving his evidence. He fully acknowledged points that were not necessarily in his favour, and did not digress onto other matters when he was questioned on difficult issues. The mother questioned him repetitively and aggressively on many hotly contested and sensitive issues, yet he remained calm and respectful throughout. The father truly presented as an honest, reliable and genuine person whose sole motivation was to speak the truth and achieve a just and fair result in this case.
20Directing my focus to the grandparents, I also found them to be highly credible and reliable witnesses. There were no concerning inconsistencies in their testimony at trial, or between that testimony and other statements they made or the documentary evidence adduced at trial. They readily responded to difficult and highly sensitive questions that the mother put to them on cross examination calmly and respectfully and without trying to refocus the court’s attention to issues more favourable to the father’s case. This included extensive cross examination by the mother about her allegations that they had sexually abused C.M.M. The grandmother became very emotional during that questioning but did not respond with anger. I had no concerns about the grandparents trying to distort the truth or mislead the court in any way. Finally, the evidence of the grandparents was overall highly consistent, and was also compatible with that of the father.
21For all of these Reasons, where there were discrepancies between the mother’s evidence on the one hand, and that of the father and the grandparents on the other, I have favoured the evidence of the father and the grandparents over that of the mother. I did not have any concerns regarding the credibility and reliability of any other witnesses that the parties called at trial.
PART 4: BACKGROUND AND OVERVIEW OF SIGNIFICANT EVENTS
I. FAMILY AND EARLY LIFE BACKGROUNDS
A. The Father
22The father was born in April 1981, and he is therefore 44 years of age. He was adopted by the grandparents when he was four months old and was raised in Hamilton, Ontario. He has a younger brother, D.M., who was also adopted as an infant. I will refer to D.M. as “the paternal uncle” in these Reasons for Judgment. The father was 5 years old when D.M. became part of the family. The grandmother was a schoolteacher and is now retired. The grandfather was a firefighter and he is also retired. The father described having a happy and loving upbringing. He lived with his parents until the age of 20, when he moved to Toronto for work. He began to live with the grandparents again on January 8, 2018 after the parties’ separation, and he has continued to reside with them since that time. As I will discuss in further detail, the child C.M.M. has been residing primarily with him and the grandparents since May 3, 2019, when Donohue J. granted a temporary order placing him with the father subject to Society supervision.
23I find that the father and the grandparents have continued to have a strong, loving and supportive relationship. The father is also close with the paternal uncle, his wife and other extended family members. In recent years, he has connected with his biological mother and her family, and this has been a positive experience for him. The father had one brief relationship following the parties’ separation, but he did not cohabit with that woman. He testified that he has remained single since the end of that relationship because he wishes to focus entirely on raising C.M.M. and his work.
B. The Mother
24The mother was born in November 1978, and she is therefore 46 years old. She was born in Windsor, Ontario. She testified that her mother was highly intelligent and a very talented musician. Unfortunately, her mother suffered mental health problems and was eventually diagnosed with schizophrenia. The mother’s biological father had substance abuse problems, and there was family violence between the mother’s parents. The mother was placed in foster care as an infant and was eventually adopted by her paternal great aunt and her husband due to her parents’ challenges and their inability to meet her needs. The mother described a happy childhood with her adoptive parents and recalled having a strong, loving and supportive relationship with them. She gained 7 adoptive siblings through her adoptive parents, but 3 of them died in their 30’s. In addition, her adoptive mother also adopted her granddaughter, who then became an adoptive sister to the mother as well.
25Unfortunately, the mother’s adoptive mother died of cancer when she was only six years of age. The mother was traumatized by this event, and the adjustment to her death was rendered more challenging due to her father’s decision to remarry approximately four months after his wife’s passing. The mother described her stepmother as a harsh and overbearing woman. She claimed that the stepmother was emotionally and verbally abusive towards her and her father, and that her life changed dramatically after her father married her. Her childhood friend, N.M., testified at trial, and she shared the mother’s general impressions about the stepmother’s character and the change in the family dynamics after she came into the mother’s life. The mother described having witnessed several serious domestic disputes between her father and stepmother. She described being terrified during those episodes, and stated that she called the police for help on one occasion when her father and stepmother were throwing furniture at each other. She recalls her father being admitted to a substance abuse rehabilitation centre after that incident.
26When the mother was 9 years of age, her stepmother accused her father of sexually abusing her. The Children’s Aid Society in Windsor became involved and placed the mother in foster care during its investigation. The mother has refused to produce the records of that agency’s involvement with her family, but she adamantly denies having been sexually abused by her father. She testified that the stepmother walked into her bedroom to find her father rubbing her leg, as she was suffering from leg pain at the time, and the stepmother mistook this for sexual abuse. It is unknown whether the Windsor agency verified the sexual abuse allegation. However, at the end of the investigation, the mother was given the options of remaining in foster care, living with her biological parents or residing with her stepmother. She chose to live with her stepmother. She testified that life after that point while living with her stepmother was “bittersweet,” and “both good and not good.”
27The mother’s biological parents and her adoptive father are now deceased. The mother has developed a relationship with her younger biological brother. He suffers from schizophrenia, and the mother has assisted him in managing his illness and setting him up in a supportive living arrangement. As I will discuss in further detail later in these Reasons, the mother has also connected with other members of her biological family, and she and C.M.M. have participated in several extended family gatherings.
28The mother met her first husband, D.Z., when she was 17 years old and still living with her stepmother. She had applied for an Interior Design program at St. Clair College around that time and was looking forward to going to school, but she described having financial challenges due to her stepmother’s failure to assist her with her educational expenses. Her financial stress and general challenges increased soon after she met D.Z. because her stepmother announced that she was moving to a seniors’ living residence and could not take her with her. She was unable to pursue her Interior Design training due to this development D.Z. was living with his parents at the time, and his parents accepted the mother into their home. The mother described having a positive and supportive relationship with D.Z.’s parents. She lived with the Z family for six months, and then moved out on her own and obtained social assistance funding. She supplemented this income source by babysitting children, and she eventually secured a job with Radio Shack.
29The mother and D.Z. were married when the mother was 18 years of age. They began to cohabit in a home that D.Z. had purchased. The mother testified that she and D.Z. had many happy years together. She spoke at length about the lovely home that they shared and how she and D.Z. were widely admired for having achieved such a good lifestyle at such a young age. During her marriage to D.Z., she worked at Greenpeace, a dollar store and a nail salon. She described herself as being a highly talented and respected nail aesthetician, and painting intricate images including the Mona Lisa face on nails. She claimed that important high-ranking women came from all over the place for her to paint their nails. The mother eventually enrolled in a three-year Graphic Design program at St. Clair College, and claimed that she finished the program as one of the top ten students in her class.
30The mother’s relationship with D.Z. began to deteriorate while the mother was in college. The mother claimed that D.Z. began to frequent clubs with his friends and drink excessively, and that she had concerns about infidelity. The relationship deteriorated further after she became pregnant and D.Z. insisted that she obtain an abortion. In 2009, she experienced an extremely painful medical emergency when her ovarian artery ruptured. She felt that D.Z. was not supportive of her throughout her recovery.
31It was quite apparent during the trial that the mother continues to struggle in coping with the trauma of her early life. She became extremely emotional and teary at many points when discussing the events of her childhood and young adulthood, and she frequently described herself throughout the trial as being “a survivor.” She has also used this phrase to describe herself to the many professionals who she has been involved with throughout her life. As I will discuss later in these Reasons, the mother has engaged in extensive counselling at various periods in her life. However, it is my impression from her evidence and overall presentation at trial that she still struggles greatly in managing unresolved feelings of grief, abandonment, betrayal, anger and resentment as a result of her challenging early life experiences.
II. EDUCATIONAL AND PROFESSIONAL BACKGROUNDS
A. The Father
32The father obtained a diploma in Broadcasting and Telecommunications from Mohawk College in 2001. He obtained employment in this line of work at Rogers Media (“Rogers”) in Toronto soon after graduating from his program, and he continued to work with Rogers until May 8, 2020. The last position that he held with Rogers was as a National Media Integrated Playout Operator. His employment always involved shift work. The nature of his work was very fast-paced and stressful, and the commute added to his stress load. He was responsible for ensuring that programs and commercials ran as scheduled and that the sound and picture broadcast were of the appropriate quality. He was involved behind the scenes in very high-profile programming, including 3 Olympics, important sports programs, America’s Got Talent, The Bachelor, Breakfast Television and the last episode of The Price is Right. He continued to work throughout the pandemic, and this further increased his work-related stress levels.
33Unfortunately, the strain of the father’s work began to take a toll on his performance. As I will discuss in further detail, Rogers began to discipline him for mistakes that he made on the job as early as 2014, and in May 2020, he was finally let go from Rogers after making a mistake during the programming of The Bachelor. He enrolled in a Construction and Plumbing program at Mohawk College soon after he was terminated and focussed on training to become a plumber. His training to become a plumber is a 5-year process which requires him to apprentice for 9000 hours and to take 3 learning period programs. As of the completion of the trial, he was still working towards becoming a certified plumber and had completed several apprenticeship assignments. He expects to complete his certification sometime in late 2026.
B. The Mother
34The mother completed her 3-year Graphic Design program at St. Clair College and obtained her designation as a registered graphic designer in Ontario in 2011. After moving to Toronto in July 2010, she worked in retail at Herbal Magic and then at another business carrying out search engine optimization work. She secured a position as a Marketing Coordinator with JNE Consulting in approximately April 2012, and she continued in that position until February 2019. She worked for Xcel Source Corporation for a few months in 2019, and then did freelance work until August 2022, when she began to work for Lubecore. From the fall of 2021 until approximately April 2022, she completed a Coding Boot Camp program through the University of Toronto to upgrade and expand upon her skills. She has been working for Wheels Automotive Dealer Supplies Inc. (“Wheels Automotive”) since January 2023, but the evidence indicates that she did not work from August 2024 until the conclusion of the trial.
III. RELATIONSHIP BACKGROUND
35The parties met at a night club in 2010, when the mother was still married to D.Z. They were very attracted to each other and began to communicate regularly. D.Z. eventually found out about their communications, and he and the mother decided to separate. As I have indicated, at trial, the mother described her separation from D.Z. as being respectful, supportive and amicable. The mother moved from Windsor to Toronto in July 2010 to cohabit with the father.
36The parties shared the condominium residence with another male roommate until approximately February 2011, when they moved to another condominium in the Spadina area of Toronto. This living arrangement posed a challenge for the mother when she secured the position with JNE Consulting in April 2012, since that business was located in Stoney Creek. The parties worked around this problem by arranging with the grandparents for the mother to reside with them at their residence in Hamilton during her probationary period. The parties purchased a home in Mount Hope (“the matrimonial home”) after the mother successfully completed her probation period in July 2012, but it was a new build and therefore, they did not relocate to the home until October 2013. The mother continued to reside with the grandparents during the work week until that time. The move to Mount Hope in October 2013 resulted in the father having to do a lengthy commute to and from Toronto for work.
37Both parties identified several other stressors early on in their relationship. The mother testified that the father consumed excessive amounts of alcohol and that his behaviour became highly unpredictable and unreliable when he drank. The father described the mother as being emotionally dysregulated, often making suicidal comments and constantly putting him and members of his family down. He and the grandparents testified about several incidents when the mother became highly agitated over minor issues and created very uncomfortable scenes at family gatherings. As I will discuss in much more detail later in these Reasons, the evidence supports the parties’ descriptions of these problems during the early period of their relationship.
38There was police involvement with the parties on two occasions during the early part of their relationship due to the issues they were experiencing. The first police intervention occurred on April 11, 2011, after the parties spent the night partying and drinking for the father’s 30^th^ birthday. The father called the police in the early hours of the morning on April 11, 2011 to report that the parties had had an argument, that the mother had threatened to commit suicide, and that she had run off and he could not locate her. He advised the police that she had been making suicidal comments since August of 2010. The police attended at the parties’ residence on Spadina Avenue and were able to locate the mother in a common area of the condominium building. The occurrence report indicates that both parents had been drinking excessively that evening. The mother admitted to having made suicidal comments, but denied actually feeling suicidal and claimed that she had made the comments as a tactic to frighten the father because she felt he was being emotionally abusive. There were no allegations of physical aggression made by either party, and no charges were laid.
39The police were involved with the parties again on March 8, 2014, after they had moved to the matrimonial home. The mother was out with friends at the time, but she called the police to report concerns that the father had been drinking excessively, that he had invited friends into the home, and that he could not get the friends to leave. The police did not take any action or lay any charges, so the mother reached out to the grandparents in the early hours of the morning to ask them to go check on the father. They declined to do so, as they did not feel that there was an emergency situation. The father acknowledged at trial that he was extremely intoxicated on that occasion and stated that he apologized profusely to the mother. The mother discussed her frustration about the father’s behaviour on that occasion with her family physician, Dr. Zizzo, on March 15, 2014, and relayed that she was unsure about remaining in the relationship. Dr. Zizzo referred her for counselling and prescribed her medication for her depression and anxiety.
40The parties also experienced significant conflict early on in their relationship due to the mother’s frequent expressions of concern about the behaviour of the grandparents. These sentiments marked the beginning of a longstanding animus on the part of the mother towards the grandparents, which is an important consideration in this case since C.M.M. has been living with the father at the home of the grandparents since May 3, 2019, and the grandparents have supported the father in caring for the child. The mother has repeatedly relayed the same laundry list of concerns about the grandparents to most of the professionals who have been involved with the family over the years, as if by rote. I am addressing these concerns in detail in these Reasons so that they may be finally laid to rest. Her complaints about the grandparents during the early period of the parties’ relationship included the following:
She complained that at one point, the grandfather called her a “government mule.” The grandfather testified at trial that he in fact stated on one occasion that she ate like a government mule, which he explained is a common expression that refers to a person’s liking for fine food. I accept the grandfather’s evidence on this issue and find that there was no malicious intent on his part to insult the mother. I find that this is one of the many examples of the mother’s difficulties in properly processing information and exaggerating the significance of what occurred.
The mother recalled an incident when she was living with the paternal grandparents, during which the grandparents allegedly scolded her after she came out of a shower wrapped in a bath towel, telling her that she had taken too much time. During a meeting with the Winterberry Clinic Nurse Practitioner Ms. Crystal Troup on May 10, 2022, the mother claimed that the grandmother spoke to her in a “seductive manner” while scolding her, suggesting that there were sexual undertones to the grandmother’s behaviour. The grandfather had no recollection of any such incident, but he acknowledged that he would not have been happy about anyone taking 45-minute showers. I conclude that even if the grandparents spoke to the mother about having an overly lengthy shower, it was well within their right to do so in their own home in circumstances where the mother was a long-time guest who was not contributing financially to the expenses. There is no evidence whatsoever to support the mother’s suggestion to Ms. Troup that the grandmother spoke seductively to her. Moreover, this event had no bearing whatsoever on the parenting issues to be decided, and the mother’s constant discussion about it with professionals over the years is an example of her inappropriate perseveration on historical events that have no bearing on current situations.
The mother described another incident that she claimed occurred while she was living with the grandparents, during which she allegedly heard the grandfather yell three times very loudly in a gruff voice “Suck my dick you cock-sucking bitch!” She claimed at trial that this behaviour made her fearful that she would be at risk of harm. The notes of the Nurse Practitioner Ms. Troup regarding her session with the mother on May 10, 2022 reflect that the mother discussed this incident with her, and stated that she felt she was at risk of being raped by the grandfather. At trial, the mother testified that she approached the grandfather during this incident to ask if he was all right, and that he responded that he was talking to God and that he was a devil worshipper. The grandfather stated that he had no recollection whatsoever of any such situation. He acknowledged that he talked to God, but denied ever having told the mother or anyone else that he was a devil worshipper. I accept the grandfather’s evidence over that of the mother regarding this allegation based on my overall impressions about their credibility and reliability. While the mother may have observed the grandfather talking to God out loud at some point, this does not in my view raise any concerns about him or his ability to assist in caring for C.M.M. There is no other evidence of the grandfather having ever engaged in this type of alleged erratic behaviour, or of any mental health concerns respecting him.
The mother also described an incident that allegedly occurred at the grandparents’ dinner table, during which the grandfather supposedly stated in a loud and gruff voice that he should have pushed his sister-in-law over a cliff when he had the chance. The grandfather denied having ever made such a comment. I note, however, that even if he had made such a comment in frustration many years ago, it has little to no bearing on the parenting issues that must be decided in this case.
Finally, the mother advised Society worker Ms. Courtney Byrne in 2024 and reiterated at trial that when she looks back on the events that led up to her living with the grandparents starting in 2012, she believes that she may have been sexually lured and groomed by the father and the grandparents. When she was cross examined on this notion, she embarked upon a disjointed and irrational discussion about criminals often appearing to be normal, about various sexual jokes that the father had made in the past, and about concerns that the father had allegedly expressed at some point in the distant past about someone he knew having been involved in child pornography. I find unequivocally that there is no evidence whatsoever to support the mother’s theory that she was sexually lured by the father and the grandparents. This is one of many examples of what appear to be delusional and distorted thought processes on her part.
41Notwithstanding these early difficulties in their relationship, the parties were married on September 5, 2014. Unfortunately, the mother experienced another significant medical emergency on January 22, 2015, when she sustained a dissection of her left vertebral artery. She was hospitalized for two days at the Juravinski Hospital in Hamilton. The discharge summary of Dr. Visram dated January 24, 2015 indicates that the mother did not experience any neurological or other serious sequelae from this event. She did not require occupational or physical therapy, but she was referred to a neurologist, Dr. Silva, of the Hamilton General Hospital Stroke Prevention Unit for regular follow-up and monitoring. Dr. Silva ordered an MRI of the mother’s brain in early 2015, the results of which did not reveal any abnormalities. In a report dated September 11, 2015, Dr. Silva noted that the mother was doing well, and that she was not suffering any long-term symptoms as a result of this incident. Subsequent follow-up reports of Dr. Silva over the years, right up until August 2024, set out the same impressions regarding the mother’s recovery and clear neurological status.
IV. THE BIRTH OF C.M.M. AND INVOLVEMENT OF HEALTHY BABIES HEALTHY CHILDREN
42The mother became pregnant with C.M.M. in approximately December 2015. It was determined while she was pregnant that C.M.M. had a right aortic arch, which is a congenital heart condition where the aorta forms an arch on the right side of the chest instead of the left. This news caused the parties considerable anxiety, as it could not be determined until after C.M.M.’s birth whether this problem would cause him serious health challenges. C.M.M. was born healthy and without complications in September 2016. He was monitored by the McMaster Children’s Hospital Pediatric Cardiology Unit following his birth. By August 28, 2017, Dr. Almeida of that clinic determined that he did not have any concerning clinical symptoms relating to his condition, and that he did not require any follow-up treatment.
43The mother took a one-year maternity leave following C.M.M.’s birth, and the father continued to work on a full-time basis. However, I find that the father was very much involved in caring for C.M.M. when he was not working.
44The parties’ family physician, Dr. Zizzo, made a referral to the HBHC program on September 27, 2016. Both parties were cooperative with the program’s services, which included the support of a Family Home Visitor, Ms. Raimonda Goristhti, and a Public Health Nurse, Ms. Karen Ventresca. HBHC remained involved with the family until December 18, 2017. The mother was on maternity leave until September 2017, and therefore most of the home visits were with her. However, there were also visits with the father after the mother returned to work, on days when he was not working or was working the night shift. A careful review of the two large binders of records from HBHC reveals that the overall impressions of Ms. Goristhti and Ms. Ventresca regarding the parties’ parenting and interactions with C.M.M. were positive. It is clear from these records that although the mother was the child’s primary caregiver during her maternity leave, the father was nonetheless very involved in caring for him and carrying out daily household duties when he was not working. On January 17, 2017, the mother advised Ms. Ventresca that the father was a very good person, tries very hard and was a great father. Similarly, on July 31, 2017, she advised that the father was busy due to work, but that he was very supportive in helping at home.
45The parties followed through with most of the programs that the HBHC staff recommended to them. However, a review of the voluminous notes of the HBHC staff raised the following concerns:
The mother acknowledged during the early period of the agency’s involvement that she was having difficulty coping, that she felt to be at risk of suffering from post partum depression, and that she had trauma relating to her childhood that she needed to start working on.
The mother advised on March 16, 2017 that C.M.M. had fallen from a king size bed while in her care, that she would never forget this and that she would be much more careful in future.
The mother admitted on April 3, 2017 that she often became angry at the father, and that she had thrown water and toys towards him during her periods of rage. She relayed that she had gone to the Halton Centre to seek help with her anger issues, and that the centre had provided her with an anger management tool to assist her in regulating her emotions.
The father reached out to a Public Health Nurse with HBHC, Ms. Lindsay Pys, on September 1, 2017 to relay concerns about the mother’s wellbeing and ask for help in ensuring that she was safe. He described that during the previous week, the mother had yelled at him frequently and expressed thoughts of self-harm. Ms. Pys provided the father with information about community resources, including 911 emergency services, the Crisis Outreach and Support Team (“COAST”) and the local Children’s Aid Societies.
The mother returned to work in September 2017, around the same time that the father began to have heightened concerns about her mental health. The HBHC records reveal that around this time, the mother also began to send lengthy messages to HBHC staff which were disjointed and rambling in nature, and in which she raised numerous concerns and grievances respecting the father and his family about historical events that had little to do with the agency’s role and the services that it was providing for the family. As one example, on September 25, 2017, the mother sent Ms. Ventresca such an email in which she detailed her concern about the state of the father’s home when she first moved in with him in 2010, including the fact that there was allegedly an ant problem in the home. In another message dated November 1, 2017, she spoke at length about her complaints respecting the paternal uncle and his partner, and claimed that she had seen a particular man at her doctor’s office who she felt was suspicious, so she was on “high alert.” She made numerous other comments that were highly convoluted and difficult to follow.
On October 18, 2017, the father expressed concerns during a home visit with HBHC staff that the mother sometimes became enraged and verbally abusive towards him, that this was causing him to feel depressed, and that he had lost 20 pounds due to stress during the previous two months. He expressed a commitment to remaining in the relationship but sought support about how to deal with these concerns.
The mother had complaints that the father was not supervising C.M.M. properly, that this had led to C.M.M. almost falling off a couch, and that the father was in particular insufficiently attentive in ensuring that the baby gates were shut properly.
When the file was closed in December 2017, the Public Health Nurse, Ms. Ventresca, noted that the mother had expressed difficulties coping at times, and had connected with COAST services when she was in distress. She documented her impression that the mother would benefit from ongoing support from mental health professionals.
V. DETERIORATION IN THE PARTIES’ RELATIONSHIP, SEPARATION AND INITIAL SOCIETY INTERVENTION IN NOVEMBER 2017
46The parties began to experience more serious challenges in their relationship in 2017. The mother claims that the grandparents caused issues and conflict in the parties’ relationship, that the father was emotionally and financially abusive, and that he did not properly supervise C.M.M. when the child was in his care. The father alleges that the mother was emotionally, verbally and physically abusive towards him during the marriage, that she did not trust him in parenting C.M.M., and that she fabricated concerns about the grandparents and other members of his family. He testified that he had significant concerns about the mother’s mental health during their relationship. I will discuss these concerns raised by both parties in much more depth in my analysis of the parenting issues. However, I will address the mother’s complaints about the grandparents and other paternal family members following C.M.M.’s birth at this stage, as they provide an important backdrop for assessing the credibility and reliability of the numerous allegations against them that she made following the parties’ separation. Again, the mother has repeated these accusations to many professionals over the years, as if by memory. They include the following:
She claimed that when the grandmother first saw C.M.M. after he came home from the hospital, she exclaimed that she could not wait to see him naked, and that the grandfather told her to hush up. The mother insinuated that there was a sexual undertone to this exchange. The grandmother explained at trial that she was anxious to inspect C.M.M. when she was first saw him, because everyone had experienced such high levels of anxiety during the pregnancy due to the diagnosis in utero of him suffering from a right aortic arch. I find that there was no sexual connotation to any comments that the grandmother may have made about wanting to see C.M.M.’s body following his birth.
The mother alleged that the grandparents fed C.M.M. something without her consent when he was 3 or 4 months old, and before he was consuming solids. She did not question the grandparents on this issue, but in any event, I conclude that it has little to no bearing on the issues to be determined at this point, more than 8 years later. Her constant focus on this alleged event despite the passage of time was one of many examples of her exaggerated preoccupation with very historical events that are of marginal relevance to the present.
The mother also stated that during a family event at the home of the grandfather’s sister-in-law in 2017, the grandfather became extremely intoxicated and allegedly told a young girl who was trying to do the splits to spread her legs further. She suggested that there was an inappropriate sexual connotation to the grandfather’s comments. The grandfather adamantly denies being intoxicated or having made such a comment on that occasion. I accept his evidence on this issue.
The mother testified that on one occasion when the grandparents were saying goodbye to C.M.M., the grandfather patted C.M.M.’s cheeks far too aggressively, and that this was abusive. I do not accept her evidence about this alleged incident as being reliable based on my very serious concerns about the mother’s exaggerated and distorted descriptions of events. While the grandfather may have patted C.M.M.’s cheeks, there is no credible evidence to suggest that he ever did so in an abusive manner.
In addition, the mother spoke at length about an incident that allegedly occurred during her baby shower, when she alleges that the paternal aunt walked an older child towards C.M.M. and let her “attack” his face. She also complained that the grandmother’s aunt fell asleep while holding C.M.M., and that this posed a risk to his safety. The grandmother testified that she was present for the entire time of this baby shower, and she insisted that neither of these alleged incidents occurred. Her recollection was that the mother insisted that nobody other than her aunt could hold C.M.M. during the shower, and that this is what in fact occurred. I found the grandmother to be a much more credible and reliable witness than the mother, and therefore I accept her version of what occurred at the shower. In any event, this is another example of how the mother has fixated over the years on alleged historical incidents that are not useful in addressing present circumstances. Neither the paternal aunt nor the grandmother’s aunt have ever been in a caregiving role to C.M.M., and there is no evidence to suggest that they ever have any extended unsupervised time with him.
Finally, the mother testified at great length about her complaints regarding the paternal uncle and his wife, and in particular, her feelings that they deliberately tried to overshadow her and the father and that the grandparents treated them more favourably. I find that this evidence had no relevance to the parenting issues to be decided at this time.
47The problems in the parties’ relationship culminated in a significant domestic incident between them in the matrimonial home on November 20, 2017. The parties gave diametrically opposed versions of the events of that day. The father claims that he returned home that night shortly after midnight after completing the night shift and found the kitchen floor to be littered with food and the stove covered with pots containing hardened food. He cleaned the kitchen, and then realized that he had to put on a laundry load of cloth diapers as there was only one clean one left. He did not get to bed until approximately 2:30 a.m., and then got up again at 5:00 a.m. to bring C.M.M. to the mother to feed him. In the morning, he began feeding C.M.M. breakfast, and he heard the mother chastising him from the upper level of the home for not talking to the child in response to his chattering. The father testified that he asked the mother to stop chastising him because he was tired after having to clean the kitchen and do the laundry. This response angered the mother, as she felt that he was criticizing her. According to the father, he then asked that she put water in the pots to make cleaning easier. This caused the mother to escalate further, so he went upstairs to finish the laundry. He claims that he then heard several loud bangs. He looked downstairs over the railing and saw C.M.M. standing at the bottom of the stairs, and the mother aggressively kicking a hole in the wall. He called 911 for assistance, but then hung up to focus on ensuring C.M.M.’s safety. On his way back downstairs, the mother became more agitated, and she threw a cup of water on him. He then began to video record the situation to protect himself from any accusations.
48The video recording that the father took during this incident was adduced as evidence at trial. In the recording, the mother is observed holding C.M.M. and yelling at the father, and the father states that he was simply asking for help. The mother swears at him angrily and yells about having done the laundry. She then spits at the father, screams at him very loudly calling him a “piece of shit” and abusive, tells him she hopes he will “fucking rot in hell,” and yells twice that she hates him. The father testified that the mother then packed C.M.M. into her car to take him to daycare. The 911 operator called him back within a few minutes, and he asked that a wellness check be carried out on the mother as he was very concerned about her presentation and mental health status.
49The mother claims that during this incident, the father criticized her unfairly for not doing enough around the house and brought up issues from the past. She testified that she tried to de-escalate the situation by asking him to move to an area of the house away from C.M.M. and trying to hug him. Her evidence was that the father then pushed her aggressively to the ground. The mother acknowledged that she yelled and spat at the father after that point, and that she kicked a hole in the wall.
50Having carefully considered the testimony of the parties, the police record regarding this incident, the Society and Winterberry Clinic records, and the text messages between the parties during this period, I accept the father’s version of the events over that of the mother. I reject the mother’s claim that the father pushed her on this occasion. I have already touched upon the overall inconsistencies respecting the mother’s allegations of physical aggression by the father. As I have already indicated with respect to this particular incident, the mother spoke with her counsellor, Ms. Van Impe, soon after the incident on November 20, 2017, and she assured Ms. Van Impe at that time that there had been no physical aggression on the part of the father. In addition, COAST provided a report respecting its intervention on that day to Dr. Zizzo, and that report does not make any mention of the mother having alleged physical abuse by the father. The report indicates that the mother was more concerned about the behaviour of the father and the grandparents than her own problematic behaviour during the incident and the negative impact of her outburst on C.M.M. The Society records and the occurrence report relating to the incident similarly reflect that the mother did not allege any physical aggression by the father at the time of this event. Furthermore, as I have noted, the mother told Dr. Links in May 2018 that the father had only been aggressive towards her once, during an incident that occurred in January 2018. Finally, the parties discussed the details of this incident in their text messages with each other on November 21, 2017 and again in mid January 2018, and the mother did not make any mention in those messages of the father having pushed her.
51The police and COAST officials attended the matrimonial home on November 20, 2017 further to the father’s call asking that a wellness check be carried out. The mother was upset but denied having any thoughts of suicide, self-harm, or a desire to harm others. It was agreed that she would contact the police if she felt she needed to find another place to live, but she denied feeling at risk with both parties remaining in the matrimonial home. The Society also became involved because the police and COAST sent them reports respecting their intervention with the family, but also because the mother called the Society herself to seek support.
52The Society opened a file for ongoing service due to the nature of the concerns and C.M.M.’s young age and vulnerability. During the first meeting with the Society worker, Ms. Wendy Guiden, and the mother on November 23, 2017, the mother acknowledged that she had shown poor judgment in displaying her anger in C.M.M.’s presence but focussed primarily on concerns about the father and the grandparents. She spoke about the father’s excessive drinking and claimed that he was emotionally and financially abusive. She also presented Ms. Guiden with several photographs from the father’s childhood that she had taken from the father’s photo albums, which included pictures of the father naked by the swimming pool, a photograph of him and his young cousin naked in the bathtub, a photograph of the father urinating in a coffee tin and his young female cousin urinating at the side of a road, and a picture of the father riding a carousel wearing only shorts. The mother described the photographs as “creepy,” and stated she believed they were indicative that something sinister had happened to the children. Ms. Guiden and her supervisor, Ms. Cathy Neill, agreed during a subsequent supervision consultation on November 24, 2017 that the photographs did not raise any concerns regarding inappropriate behaviour on the part of the grandparents. During a subsequent contact between the mother and Ms. Guiden on December 13, 2017, the mother acknowledged that she had difficulty regulating her emotions, and that she had put holes in walls on previous occasions prior to C.M.M.’s birth. She advised that Dr. Zizzo had referred her to a psychiatrist for assessment because of these issues.
53During the initial Society intervention, the father relayed concerns to Ms. Guiden about the mother’s mental health following her vertebral artery dissection in January 2015. He described her as frequently experiencing anxiety and panic attacks, catastrophizing situations, exhibiting paranoid thinking, lashing out at him and his parents, and perseverating on incidents from the past. He also described her as trying to instigate him during arguments by telling him to hit her, and relayed concerns that she may make allegations of violence against him. In addition, he talked about the mother having many unjustified complaints about the grandparents, pressuring him to limit his and C.M.M.’s contact with his family members, and having irrational and embarrassing outbursts in front of family and friends.
54By mid December 2017, the Society concluded that it was inappropriate for both parties to remain in the home with C.M.M. having regard for the dynamics between them. The father therefore voluntarily left the matrimonial home on January 8, 2018 and began to reside with the grandparents. The parties have been separated with no reasonable prospect of reconciliation since that time. The mother remained in the matrimonial home until it sold on May 31, 2018, and C.M.M. remained in her primary care. The father had daytime parenting time as arranged between the parties, as the mother was still breastfeeding C.M.M. Initially, many of these visits occurred in the matrimonial home, with the mother also present. The parties became involved in Family Law mediation in an effort to resolve all of the legal issues between them in February 2018.
55The Society undertook an assessment of whether the grandparents’ home was appropriate for visits with C.M.M. During that evaluation process, the mother expressed her opposition to visits in their home, claiming that the grandparents were both “high functioning alcoholics.” The Society did not find any evidence to support the mother’s myriad of concerns about the grandparents, and it approved the father having regular visits in their home.
56During this early period of the Society’s involvement, the worker Ms. Guiden and her supervisor documented increasing concerns about the mother’s mental health. This was based on the mother’s perseveration on complaints about the grandparents, reports from C.M.M.’s daycare that the mother was difficult to communicate with, had made a complaint to government officials about the toys at the daycare, and was exhibiting odd behaviour in that setting, and the mother’s heightened and emotional responses when Ms. Guiden attempted to address issues with her. The Society decided to remain involved with the family following the separation and monitor for concerns about post-separation conflict.
57Unfortunately, another domestic incident occurred between the parties at the matrimonial home on January 30, 2018, when the father attended the home to visit with C.M.M. Again, the parties gave very different versions of what occurred on that date. I prefer the father’s description of the incident over that of the mother, as he was a more credible witness and his version of events accorded completely with the information documented in the Society’s records that were taken at that time. The evidence establishes that when the father entered the matrimonial home that day, he found the mother still sleeping so he changed C.M.M. and took him downstairs to feed him breakfast. The mother came downstairs and was enraged because the father did not close the sock drawer of C.M.M.’s dresser properly. The father recalled that the mother began screaming close to his face in such an angry state that she was spitting. He tried to walk away with C.M.M. to defuse the situation, but the mother grabbed him by the wrists and bit his back. The father asked her to stop, but she then dug her nails into one of his wrists again, so the father pushed her off him to stop the fight from escalating further and left with C.M.M. The mother told her counsellor at the time, Ms. Van Impe, during a session on the day of the incident that the argument started because she did not like the father’s choice of clothing for C.M.M. that day, and she admitted that she had grabbed the father and broken his skin with her nail during the ensuing physical wrangle. Ms. Van Impe contacted the Society that same day and relayed that the mother had minimized and laughed the incident off during her session with her. I find that this event was instigated by the mother’s physical aggression, and that the father’s decision to push the mother off him was aimed at protecting himself and allowing him to remove C.M.M. to safety without further conflict. Following this incident, the parties agreed that parenting time exchanges would occur at a local McDonald’s restaurant rather than at the matrimonial home. They later changed the exchange location to a local police station.
58The Society remained involved with the family throughout 2018 to monitor the situation and provide support. On February 26, 2018, Society worker Ms. Guiden, the new Family Services worker Ms. Manjit Kaur and Society supervisor Catherine Neill held a supervision and verification meeting. At that time, the Society verified risk of emotional harm to C.M.M. due to exposure to parental conflict and concerns about the mother’s mental health. It concluded that the mother was overly protective of C.M.M., and that “her mental health and past trauma impacts on her ability to regulate her emotions.” The agency also noted that the mother’s expectations of others in relation to C.M.M. were unrealistic.
59By late April 2018, both parents were experiencing significant stressors. The father was diagnosed with shingles in mid March 2018, and he was suffering from financial stress in managing the family expenses because the mother stopped contributing her pay to the joint account in November 2017. He was charged with impaired driving on April 1, 2018, and his licence was suspended. He pled guilty to this offence on May 24, 2018 and was sentenced to a fine of $1,200.00 and a prohibition from operating a motor vehicle for one year. However, he enrolled in the Back on Track program and took educational programming respecting drinking and driving, and this allowed him to resume driving with an interlock system commencing in August 2018. The mother alleged that the father drove his vehicle while his licence was suspended, but the evidence added at trial on this issue did not satisfy me that he did so.
60During this same time period, the mother remained in the matrimonial home and was struggling to manage the home, pack it up, prepare for a move after the house closing, work and care primarily for C.M.M. In addition, the parties were experiencing conflict around that time about the father obtaining items from the matrimonial home. The mother’s stress and coping difficulties reached a crisis level by April 30, 2018, when C.M.M. was suffering a bout of illness. On that date, the Society received a call form a social worker from McMaster University Medical Centre, who reported that the mother was at the hospital with C.M.M. and presented as highly emotional and overwhelmed. That same day, an Early Childhood Education worker with the Little Sprouts Daycare where C.M.M. attended, Ms. Emma Schram, also called the Society to report that the mother had presented as agitated with staff several times over minor issues, sounded overwhelmed and had threatened to kill herself during a telephone call with Ms. Schram. The mother also spoke to an assistant at her workplace on that day and threatened to commit suicide during that telephone conversation.
61Ms. Kaur connected with the mother on April 30, 2018, and the mother repeated her suicidal threat a third time. The mother’s workplace contacted COAST to request that a wellness check be carried out respecting the mother, and Ms. Kaur attended the mother’s home. Ms. Kaur testified as a witness at trial. I find that she struggled with her recollection of some of the facts due to the lengthy passage of time since her involvement, but that she was able to provide a credible and reliable account of her involvement with the assistance of her case-notes, which were all adduced as evidence on consent of the parties. Ms. Kaur confirmed after speaking with the mother that she was not in fact suicidal and implemented a safety plan with her. During Ms. Kaur’s home visit on April 30, 2018, the mother engaged in what was to become a consistent pattern of behaviour of raising constant allegations of concerns about the paternal grandparents, including concerns that had been previously addressed by professionals involved with the family. For instance, although Ms. Guiden had previously advised the mother that the photographs of the father and other children that she had shown her did not raise concerns, the mother showed these photographs to Ms. Kaur as well on April 30, 2018 and again claimed that they raised concerns about sexual impropriety by the grandparents. She also raised her other historical concerns about the grandparents which I have addressed, despite having already discussed them with Ms. Guiden. Her fixation on those issues during a period of high personal emotional crisis and stress demonstrated the extent of her determination to attack the grandparents at every possible opportunity. The mother made two more suicidal threats in text messages to Ms. Kaur on May 4, 2018, precipitating another COAST response to conduct a wellness check on her at the home.
62At trial, the mother blamed the deterioration in her mental health by the spring of 2018 primarily on the father. She alleged that he was emotionally abusive and neglectful by not providing sufficient support in maintaining the matrimonial home, and that she could not meet her various obligations because he was not caring for C.M.M. as much as he should have. I have carefully reviewed and considered all of the Society records, the text messages between the parties as well as the evidence of the parties relating to this time period, and I reject the mother’s allegations that the father was neglectful and unsupportive. On the contrary, I find that he was attentive and helpful in attending to household responsibilities, and that he took C.M.M. for visits as often as he could when he was not working and when the mother allowed him to. With respect to the matrimonial home, he shoveled snow on a regular basis, cleaned the swim spa, and was responsive to issues when the mother made inquiries about the home. In regard to C.M.M., it is clear from the text messages that the father was seeing the child regularly, that he wished to see him more often, but that the mother did not agree to him having additional parenting time. By mid April 2018, the father was having overnight visits with C.M.M. on weekends.
63The matrimonial home was sold on May 31, 2018, and the mother moved with C.M.M. to the Upper Gage property at that time. Soon after this move, the mother began a relationship with M.R., who resided in the Alliston area. Ms. Kaur’s evidence and case notes establish that by the fall of 2018, the father was caring for C.M.M. approximately half of the time (for 15 days in October 2018, and 18 days in November 2018). As of late February 2019, the Society’s records indicate that the father was still caring for C.M.M. approximately 50% of the time. However, the Society continued to have concerns about the mother’s coping abilities, her mental health and suicidal comments and her tendency to exaggerate and catastrophize situations. The mother had to go on stress leave from work due to her anxiety and her inability to juggle work and caring for C.M.M. The agency was satisfied that the father had learned his lesson about drinking and driving and that he had completed appropriate educational training about the dangers of such behaviour. The Society also felt as of early 2019 that both parties were competent in meeting C.M.M.’s instrumental needs.
VI. CONCERNS LEADING TO C.M.M.’S PLACEMENT IN FOSTER CARE: JANUARY TO APRIL 2019
64In early 2019, the parties continued to participate in Family Law mediation to resolve their differences, and the issue of the mother relocating with C.M.M. arose. Although the mother had only been dating M.R. since August 2018, she advised Ms. Kaur that her plan was to relocate to the Alliston area with C.M.M. to reside with him within a year. She advised Ms. Kaur on February 28, 2019 that she was determined to move, and that she would not allow the father to dictate where she could live with the child.
65Around the same time, the mother began to raise concerns about C.M.M. putting his hand in his diaper and playing with his penis, alleging that this began after a visit with the father. The daycare had also alerted the parties to this issue on January 15, 2019, but it did not identify this behaviour as a protection concern. The mother testified, and the Society records reflect, that she initially simply thought that C.M.M. was just becoming curious about his body. However, she reached out to Ms. Kaur for direction about whether this behaviour was normal. The father indicated that C.M.M. typically engaged in this behaviour when he needed to go to the bathroom. After consulting with Society supervisor Ms. Neill on January 18, 2019, Ms. Kaur advised the parties that this behaviour was quite normal for C.M.M.’s age and that it was not a cause for concern about inappropriate sexual activity having occurred.
66By late February 2019, the Society’s plan was to close its file shortly and allow the parties to finalize the parenting arrangements through Family Law mediation. I highlight that throughout these proceedings, the mother has characterized this plan as involving the Society closing the file “with me as C.M.M.’s primary caregiver.” However, as I have indicated, the Society’s records reflect that in fact, the parenting arrangements were more in the nature of a shared parenting time regime.
67The conflict between the parties about the mother’s desire to move with C.M.M. to the Alliston area persisted in 2019, and by March 2019 the parties advised Ms. Kaur that this appeared to be the major stumbling block to the resolution of the Family Law issues. It was against this backdrop that the mother began to make serious allegations of sexual abuse by the father and the grandparents. The mother went on a trip to the Dominican Republic with her partner at the time M.R. in early March 2019, and the father cared for C.M.M. during that time. The mother claims that upon her return, C.M.M. made statements to her on March 11, 2019 indicating that he had been sexually abused by the father and the grandfather. The mother’s text messages to Ms. Kaur setting out the details of these alleged disclosures are included in the Society’s records. In her messages dated March 11, 2019, the mother claimed that C.M.M. had shown her his penis and asked her to touch it or lick it. She asked him who told him to say that, and he allegedly responded “Daddy.” The mother also claimed that a couple of weeks earlier, C.M.M. had returned from the father’s home and was making “oral sex-like gestures” with his tongue. She stated that she asked C.M.M. at the time who had taught him to do that, and he had responded “Papa,” which is his name for the grandfather. The mother also reported that C.M.M. disclosed that the grandmother had told him to punch the mother. She sent Ms. Kaur a video recording of C.M.M. in the bathtub, in which she asked him who had told him to punch Mommy. Ms. Kaur noted that in the video, C.M.M. responded “Grandma because it’s funny.” The mother then showed him how to make a fist and asked who had shown him to make a fist. He did not identify anyone, but Ms. Kaur noted that he was laughing and happy during the video.
68On March 12, 2019, the mother sent another text to Ms. Kaur advising that C.M.M. had mentioned that the paternal uncle had taken him to the basement and presented him with a toy green monster truck and a toy car. She later explained that she believed he may have done so for a sinister motive to lure C.M.M. On March 13, 2019, the mother texted Ms. Kaur again and advised that she had decided to question C.M.M. about these various statements once again during the evening of March 12, 2019, and that she had recorded her discussions with him. She made two recordings that night, which were adduced as evidence at trial. The mother also claimed that whenever the father’s name came up, C.M.M. was putting his hands down his pants and playing with his penis. She alleged that this had happened again as she was taking the child to daycare that morning, and that C.M.M. had also disclosed while in the car on the way to daycare that the father had touched his “dinky” with his hand, which she felt may have referred to the father urinating. Finally, on March 13, 2019, the mother reported that she had taken another video recording of C.M.M. in the bathtub. She spoke about having tickled C.M.M. in the tub, and then recalled that the grandfather used to tickle a neighbourhood child who the grandparents cared for, suggesting that the manner in which he had done so was concerning and inappropriate.
69Ms. Kaur and another Society worker, Ms. Lisa Persad, attended at the mother’s home to interview C.M.M. about these numerous alleged statements by C.M.M. on March 13, 2019. Ms. Kaur documented that during the interview, the mother attempted to coach C.M.M. to tell the workers what he had allegedly disclosed to her over the past two days, but when the mother put these alleged statements to him, he did not acknowledge having made them. C.M.M. did not make any disclosures of abuse during the interview. Ms. Kaur consulted with her supervisor Ms. Neill on March 13, 2019, and they concluded that there was no evidence to support any of the mother’s concerns, including her concerns that C.M.M. had been sexually abused and lured. The Society concluded that C.M.M. could not accurately recall the events of the previous day, that the mother had coached him extensively in relation to these allegations, and that there was nothing in the recordings that she had made to suggest that anything inappropriate had occurred. The supervision case-note respecting the meeting between Ms. Kaur and Ms. Neill on March 13, 2019 reflects their assessment that the mother was hypersensitive to anything that could be construed as sexual in nature. In relation to the suggestion that the paternal uncle had lured C.M.M. with toys, the father explained that the uncle had taken C.M.M. aside and given him toys at a birthday celebration for his cousin, to make sure that he did not feel left out. With respect to the mother’s claim that the grandfather had shown C.M.M. how to make oral sex type gestures with his tongue, the father advised Ms. Kaur that the mother had also raised this concern with him. He had explained to the mother that he had taken C.M.M. to an aquarium, that C.M.M. had seen a snake sticking out his tongue, and that he had been imitating the snake since that time.
70Ms. Kaur advised the mother on March 13, 2019 that the Society was not verifying any protection concerns. She explained that the mother had inappropriately interrogated and coached C.M.M. during the various video and audio recordings that she had sent to the Society, and she directed her to cease engaging in such questioning with him again. Ms. Kaur recommended that she participate in a parenting program to assist in gaining a better understanding of children’s behaviours and what was considered normal for C.M.M.’s age.
71The two recordings that the mother made of her questioning of C.M.M. on March 12, 2019 were adduced as evidence at trial. I provide details about this recording, because they highlight how problematic the mother’s questioning was, yet she has nonetheless persisted to this day in relying on the child’s statements to prove that he was sexually abused. The first recording was clearly made mid-way through a conversation between the mother and C.M.M., and the questioning was indeed extremely leading and concerning. The mother is heard asking C.M.M. suggestively “and what about licking, who says lick the dinky.” The child responds in language that is extremely difficult to comprehend “Papa lick his dinky.” This statement is completely inconsistent with the mother’s report on March 11, 2019 that C.M.M. stated “daddy” licked his dinky. Moreover, the child’s statement “Papa lick his dinky” did not in any way implicate the grandfather in licking C.M.M.’s penis. The mother continues to press C.M.M., asking about the grandmother licking his dinky, and C.M.M. responds by stating something quite incomprehensible, but which sounds like “What’s Papa dinky.” The mother then questions C.M.M. about why he is talking about the grandfather’s dinky, and asks if he has seen it, again a very leading question. C.M.M. answered “yes.” She then posed another leading question, asking C.M.M. whether the grandfather asked him to touch it, to which C.M.M. simply responded “Papa bring presents.” The mother then poses another leading and highly suggestive question “For what? When you touch his dinky?” to which C.M.M. responded yes. The mother questions him about what he had to do to get a present, and C.M.M. made several statements that were completely incomprehensible due to his language limitations. She then continued to press him with questions about getting a present, and suggesting to him again that he had to lick somebody’s dinky to get a present. The recording reveals not only that the mother aggressively interrogated and coached C.M.M. in relation to sexual matters, but also that C.M.M. had very limited language skills at that time, which is to be expected given that he was only 2.5 years of age.
72The second recording that the mother made of her discussion with C.M.M. on March 12, 2019 again reveals that the mother engaged in an inappropriate interrogation of the child. C.M.M. is difficult to comprehend at the outset of the recording, but it sounds like he is yelling repeatedly “I cut it,” while laughing and coughing. The mother asked him who says that, and who talks like that, to which C.M.M. responds loudly “I cut your dinky,” which obviously makes no sense. However, the mother presses on, asking him who talks like that, and asking in particular “is this stuff you hear from Papa or Dad?” Again, many of C.M.M.’s statements are impossible to understand. It is clear that he did not have a sound comprehension of what he was saying and that his language skills were very limited. The mother claimed at trial that this recording was very scary to her, because it reminded her of the way she had allegedly heard the grandfather talking in the past. She expressed her concern to the Society in July 2019 that C.M.M. was talking “in a Satanic way” during this recording, just like she had heard the grandfather speak in the past. The clear insinuation was that the grandfather had taught C.M.M. to talk loudly and gruffly in a Satanic manner.
73The mother adduced other video recordings of C.M.M. that were taken in 2018 and 2019 in an attempt to demonstrate that he had strong language skills and was able to communicate well around the time of these allegations. The videos were very brief and showed C.M.M. making short statements that include several words. However, they do not in my view establish that he had the ability to communicate the serious allegations that the mother attributed to him without leading questions and extensive probing, as was seen in the two recordings that the mother took on March 12, 2019. Those recordings were much longer and provide greater insight into the child’s true comprehension and verbal skills at the time.
74For all of the reasons outlined above, the evidence fully supports the Society’s decision on March 13, 2019 to not verify any of the concerns that the mother had raised. I add that the timing of the mother’s allegations was also suspect, as the parties were involved in tense discussions in mediation about the mother’s insistence that she be permitted to move over 1.5 hours away with C.M.M. to reside in Alliston with her partner at the time.
75The mother continued to raise concerns about alleged sexualized behaviour by C.M.M. following this investigation, including concerns that he was engaging in humping behaviour and taking his pants and diaper off during the night. The father denied having witnessed any such behaviour. On March 27, 2019, the mother reported to Ms. Kaur that C.M.M. had grabbed and twisted his nipples, and that she asked him “who showed you how to touch your nipples”, which was clearly another leading question suggesting to the child that someone had actually done so. The mother reported that C.M.M. named the grandfather and the uncle as having shown him this. She claimed that she had a recording of C.M.M. twisting his nipples on this occasion, but she did not adduce it as evidence. She felt that this incident raised further concern about sexual abuse towards C.M.M. and told Ms. Kaur that she would start taking pictures of everything that C.M.M. was doing to ask others online if they shared her worries. The evidence does not support the mother’s concerns, having regard for the leading nature of her interrogation of C.M.M. The mother also accused the father of throwing newspapers around the lawn of her home in a deliberate attempt to harass her, without having any rationale basis for making this accusation. She adduced as evidence a photograph of newspapers stacked near her garage door to support this allegation, which it clearly did not. However, it is one of many examples of her fixation on minor events of the past and her tendency to overvalue their significance and relevance to present circumstances.
76A series of events in early April 2019 sent the family into further turmoil and culminated in the Society removing C.M.M. from the parents’ care and placing him in foster care. On April 6, 2019, C.M.M. fell off a bed while in the mother’s care, and the parties arranged for the father to bring him to McMaster Hospital to determine if he had sustained a concussion. The attending physician determined that C.M.M. was fine, and the father returned the child to the mother’s care. The mother took C.M.M. to London with her to visit a friend on Sunday April 7, 2019, and she observed that he seemed quite lethargic and ill. She therefore decided to take C.M.M. back to McMaster Hospital that evening. The mother testified that while she was getting C.M.M. ready to go, she observed that he had taken off his diaper, was lying on the couch and was stroking his penis up and down “like a grown man would.” She alleged that a few minutes later, while she was putting C.M.M.’s shoes on, he said “Where is the boy who touches penis,” and then “Papa touch penis under blanket.” At the hospital, the mother relayed these alleged statements and her previous allegations to the emergency room physician, Dr. Crocco. She also raised her concerns about C.M.M.’s alleged sexualized behaviour. Dr. Crocco referred the concerns about possible abuse to the Child Advocacy and Assessment Program (“CAAP”) team at McMaster Hospital, and diagnosed C.M.M. as suffering from an ear infection. C.M.M. was discharged to home in the mother’s care.
77There are some concerning inconsistencies between the mother’s trial evidence respecting the events of April 7, 2019, the information in the text messages between the parties at the time and the hospital reports respecting the attendance at McMaster Hospital. In her testimony and in the text messages, the mother did not mention anything about C.M.M. complaining about painful urination or having troubles voiding his urine, but the medical records indicate that these were her presenting complaints when she attended the emergency room. In addition, when the mother first testified about this event, she did not make any mention about C.M.M. having an inflamed penis at the time. However, when she organized all of the text messages between the parties and sought leave to adduce them as evidence near the end of the trial, she saw that she had sent the father a text message on April 8, 2018 indicating that C.M.M. had been diagnosed as suffering from an inflamed penis as well as an ear infection. She testified that she had completely forgotten that part of the evidence. I conclude that the allegation that C.M.M. also had an inflamed penis on April 7, 2019 is not at all credible for two reasons. First, the evidence clearly establishes that the mother is hypersensitive about any evidence that could even remotely suggest possible sexual impropriety, and has been meticulous and comprehensive in providing every minute detail relating to her allegations and the events of April 7, 2019. In light of these considerations, it is in my view completely implausible that the mother simply overlooked this issue of an inflamed penis if in fact it was true. Second, a careful review of the hospital records respecting C.M.M.’s attendance on April 7, 2019 does not reveal any notations whatsoever about him having an inflamed penis at the time. Accordingly, I find that the allegation that C.M.M.’s penis was inflamed was either a falsehood which the mother forgot about in her subsequent descriptions of the events on April 7, 2019, or a by-product of the mother’s distorted perception and thought processes at the time.
78The mother dropped C.M.M. off at daycare on Tuesday April 9, 2019 and then returned to McMaster Hospital because she had still not received any feedback regarding the plan to investigate her sexual abuse concerns and when the CAAP assessment would occur. The owner of the Little Sprouts Daycare, Ms. Krista Halliday, contacted the Society after C.M.M. arrived that day to relay concerns about the mother’s inappropriate behaviour towards staff in recent weeks, and that the mother was observed to be crying in her car that day after dropping C.M.M. off. While the mother was at the hospital, she alleged to a hospital social worker, Ms. Christine Miltonburg, that she believed C.M.M. was being sexually abused by the father and members of his family. Ms. Miltonburg contacted the Society soon after seeing the mother to report that the mother was presenting as frustrated and overwhelmed, and that she had made suicidal comments. She called the agency again at 12:20 p.m. to report that she had arranged for an emergency consultation for the mother with a psychiatrist, who had found the mother to be at low to moderate risk of self harm. Ms. Miltonburg contacted the Society a third time at 12:45 p.m. to advise that she had spoken to the mother about making a referral for follow-up support from COAST, and that the mother had become highly agitated and dysregulated. She relayed that the mother had thrown her cellphone and a coffee cup to the ground and told staff that she was going to kill herself. Hospital staff called for security personnel to help manage the situation, but the mother was able to leave the hospital so staff contacted the police for assistance in locating her. The police attended the mother’s home twice later that day and concluded that she did not present as suicidal. The Society removed C.M.M. from the care of the parents on April 9, 2019 and placed him in foster care, based on the mother’s allegations of sexual abuse and its concerns regarding the mother’s mental health and her capacity to care for the child.
79The mother minimized her behaviours on April 9, 2019 during her evidence at trial. She attempted to deflect responsibility for her emotional dysregulation onto McMaster Hospital staff and Ms. Kaur for allegedly failing to keep her apprised of the status of the investigation and neglecting to tell the daycare that the father and grandparents could not pick C.M.M. up until the investigation was completed. However, the evidence does not satisfy me that the Society or hospital staff were negligent, as alleged by the mother. The mother’s attendance at the hospital with C.M.M. occurred late in the evening on Sunday April 7, 2019. The Society required time to consult with the hospital staff before deciding upon an appropriate course of action. The evidence establishes that the real problem was the mother’s impatience and her inability to regulate her emotions and deal with the situation in a calm and reasonable manner.
80On April 11, 2019, the CAAP team undertook a physical examination of C.M.M. and did not find any evidence that he had been subjected to sexual abuse or sexual interference of any sort.
VII. COMMENCEMENT OF CHILD PROTECTION PROCEEDINGS AND THE FIRST POLICE INVESTIGATION
81The Society commenced a Protection Application on April 12, 2019, requesting an order for interim society care and custody of C.M.M. Lafrenière J. granted a temporary without prejudice order on that date providing for C.M.M. to remain in care, with access to the parties in the discretion of the Society and supervised in its discretion, but to occur at least twice per week for each of them.
82The Society referred the mother’s allegations of possible sexual abuse to the Child Abuse Branch of the Hamilton Police, and Detective Azulay was assigned to carry out a police investigation on April 16, 2019. She interviewed both parties and the grandfather, and consulted with Ms. Kaur. The concerns and allegations that the mother raised during the investigation were as follows:
C.M.M. had been performing what she described as “oral sex” motions with his tongue.
C.M.M. had asked her to touch and lick his penis.
C.M.M. was repeatedly playing with his penis.
Whenever she mentioned “Daddy,” C.M.M.’s hand immediately went down into his diaper.
C.M.M. wanted to sleep in her bed after returning from visits with the father.
She alleged that the paternal uncle had used toys to lure C.M.M. to the basement at the home of the grandparents during a family party, suggesting that he had done so for a sinister purpose.
One night when C.M.M. was sleeping in her bed, he woke up, took off his diaper, looked at her and began humping the air.
C.M.M. had told her that “Papa touch penis under blanket,” referring to the grandfather.
C.M.M. had attempted to punch her while she was changing his diaper.
She had recently caught C.M.M. laying on a couch naked with his mouth open, and “full out whacking off,” to use the mother’s words.
C.M.M. had been pinching his nipples and moaning and grunting aggressively while doing so, which the mother felt was sexualized behaviour.
C.M.M. wanted to be naked all the time and to sleep naked.
83Detective Azulay noted in her occurrence report that most of the concerns raised by the mother had already been investigated and addressed by the Society before the referral to police had been made. The mother indicated during her interview with Detective Azulay that she believed some sort of sexual abuse was occurring to C.M.M. during his visits with the father. Detective Azulay completed her investigation on or around April 18, 2019 and concluded that the mother’s concerns and allegations were unfounded for several reasons. She went so far as to say in her report that the numerous concerns that the mother had brought forward were “not congruent with reality.” Her conclusion was based on several factors, including the following:
She noted that the mother spent little time during the interview discussing the sexual abuse concerns. She chose to gloss over those issues, and instead discussed at great length her historical complaints about alleged poor behaviour on the part of paternal family members towards her, and how she felt they were unfit caregivers for C.M.M.
She felt that an important contextual consideration was that the father had begun asking for more parenting time with C.M.M. immediately before the mother began raising concerns about sexual abuse.
She viewed a video recording that the mother had taken on March 27, 2019 of C.M.M. twisting his nipples in what the mother felt was a sexual manner. She found that there was nothing sexual about C.M.M.’s actions, as he was simply giggling and performing for the camera while his mother recorded him.
The mother provided Detective Azulay with a video recording which she alleged showed the father teaching C.M.M. how to light the barbeque, and another recording which she claimed demonstrated that a paternal family member had given C.M.M. a corn chip during his first birthday party. Detective Azulay determined that the video recordings did not show what the mother claimed they did.
Detective Azulay found the father and grandfather to be highly credible and reliable during their interviews, in which they adamantly denied having engaged in a sexually inappropriate behaviour towards C.M.M. or having exposed him to any such behaviour or content.
The father reiterated the explanation that he had given to the mother and the Society about C.M.M.’s tongue movements, explaining that he was simply imitating a snake that he had recently seen at the aquarium. With respect to the allegation of luring by the paternal uncle, the father repeated his explanation that the uncle had given C.M.M. toys at his cousin’s birthday party so that he would not be left out.
Detective Azulay had concerns that the mother had interrogated and coached C.M.M. about some of the allegations in the past and had also recorded her discussions with him about the allegations.
Finally, Detective Azulay concluded based on all of the evidence that the mother had a tendency to interpret normal innocuous toddler behaviour as being sexually driven.
84No charges were laid during this police investigation, and the Society did not verify any of the protection concerns that the mother raised about the father, the grandparents and the uncle. Detective Azulay advised the Society on April 17, 2019 that in her view, the mother should undergo a comprehensive mental health assessment.
85The mother’s parenting time with C.M.M. was limited to supervised visits following the child’s removal from her care. The father’s parenting time was suspended during the investigation, but the Society arranged for him to have regular weekend parenting time once the investigation was completed. The father advanced a plan to have primary care of C.M.M., with the support of the grandparents in their home, and the Society approved that plan. On May 3, 2019, Donohue J. heard a temporary care hearing in which the Society requested a temporary order placing C.M.M. in the father’s care subject to Society supervision. She granted a temporary order placing C.M.M. with the father subject to Society supervision and granting the mother parenting time in the discretion of the Society. She also ordered the mother to obtain an updated mental health assessment and to follow through with any recommendations made by the psychiatrist.
VIII. THE MOTHER’S ONGOING ALLEGATIONS IN 2019 AND 2020
86Following the commencement of the Protection Application, the mother continued in her counselling with Ms. Van Impe and with another therapist at Good Shepherd, and she completed a parenting program. She also attended a program called Emotions in Motion. She eventually participated in a group dialectical behavioural therapy program after Ms. Kaur encouraged her to do so.
87The Protection Application was scheduled to return to court on October 7, 2019, and the Society sent the parties Minutes of Settlement to consider in early October, 2019. The mother responded to these proposed Minutes in an abusive manner towards the father. On October 1, 2019, she sent him a text message in which she asked whether he really wanted to fight with her about C.M.M., and making veiled threats to cause trouble for him by asking if he really wanted to go to jail and whether he valued his job. She called him a bad person for keeping C.M.M. away from “a woman who survived a stroke and abuse and put her life on the line to give him a child.” She also threatened that if he wanted a battle with her about the care of C.M.M., she had people in high places in Windsor who could help to take him on. In addition, she commented on how strong she was compared to the father, asking him where he would be without his mother and stating in a mocking manner “little boys need their mothers.” Notwithstanding this abusive message, the parties reached an agreement for a final order in the Protection Application. On October 7, 2019, Pazaratz J. granted a final order providing for C.M.M. to remain in the father’s care subject to Society supervision for six months. The mother was granted access in the discretion of the Society and supervised in its discretion, with the intention that it was to expand gradually to include unsupervised and overnight visits. During the course of that order, the mother’s visits with C.M.M. did indeed gradually increase over time, and she began to have overnight visits in her home by early December 2019. By February 2020, the parties were carrying out parenting exchanges at each other’s homes.
88After C.M.M. was removed from the parents’ care, the mother continued to make numerous allegations of inappropriate behaviour, abuse and neglect by members of the paternal family, and to actively encourage C.M.M. to make such allegations. For instance:
The mother sent several text messages to Ms. Kaur on April 10, 2019. In these messages, she raised in a rambling manner all of the historical concerns about the grandparents that I have outlined in these Reasons, and also suggested that the grandmother had encouraged all of the young family cousins to change for swimming in a tent or garage area, which she found to be “weird.” It was clear that she felt there was some type of sexual impropriety involved. She also alleged that the father had fallen asleep in the bathtub with C.M.M. when he was an infant. I heard evidence from the father regarding the allegation, and I accept his version of events that he did not in fact fall asleep with the child when he had him in the bathtub with him.
During a supervised visit on June 17, 2019, she engaged in discussions with C.M.M. while she was in the washroom with him for a brief unsupervised period. Immediately upon exiting the washroom, she urged C.M.M. to tell the visit supervisor what he had told her. C.M.M. did not make any statements, but he put his face in the mother’s neck and stuck out his tongue. During a meeting with Ms. Kaur and Ms. Persad immediately following the visit, the mother complained that C.M.M. had tried to kiss her with his tongue, and blamed the grandparents for teaching him this because they are “crass people.” She clearly felt that there was an underlying sexual connotation to C.M.M. sticking out his tongue. Ms. Kaur and Ms. Persad explained that there could be many explanations for the child’s behaviour, since he was attending daycare and experiencing new things. They cautioned her against viewing everything in a sexual light, and directed her once again to stop questioning C.M.M. about his behaviours and asking him leading questions about them. No further investigation was deemed necessary. Notwithstanding their discussion with the mother on this date, the mother raised the same concern about C.M.M. asking for a kiss and then sticking his tongue out during a visit on August 6, 2019.
During a supervised visit on August 16, 2019, the mother advised the visit supervisor, Ms. Courtney Wood, that she was very concerned about the father and the grandparents having care of C.M.M. She showed Ms. Wood the video recordings of C.M.M. that she had made on March 12, 2019 in an attempt to revisit her concerns based on the recordings. She told Ms. Wood that she had not yet shared the recordings with Ms. Kaur, which was a falsehood. The mother met with Ms. Kaur immediately following this meeting, and Ms. Kaur reminded her that she had already viewed the recordings. Ms. Kaur had to also remind her once again to not raise and attempt to revisit issues that had already been addressed in the past.
On August 28, 2019, the mother accused the father and the grandparents of drinking alcohol excessively, and of being intoxicated and not properly supervising C.M.M. while he was in their pool. She claimed that she was very worried about C.M.M. drowning while in their care.
During a home visit between the mother and C.M.M. after the second unsupervised overnight visit in the mother’s home in early December 2019, the mother advised Ms. Kaur that C.M.M. had something to tell her. Ms. Kaur spoke to C.M.M. privately, and the child spontaneously stated that the father had told him to “hit Mommy.” When Ms. Kaur asked why Daddy said this, C.M.M. responded “because he loves Mommy.” The mother also claimed during this home visit that C.M.M. had thrown cards at the wall and had said that his father had told him to make a mess at her house.
The mother reported to the Society Family Resource Worker, Ms. Cindy Key, on December 17, 2019 following another overnight visit in the mother’s home that C.M.M. had disclosed that the grandmother had pushed him, called him stupid and hurt his eye. On that day, she alleged to a coverage worker, Mr. Tristan Vanderbent, that the grandmother was drinking and driving with C.M.M.
On January 3, 2020, the mother claimed to Society worker Ms. Rachel Derry that C.M.M. had gotten in trouble in daycare for hitting other children, and when she asked him why he was doing that, he disclosed that he was being hit by the father, the grandparents, the paternal uncle and his wife in their home.
She alleged that the father was buying underwear that was too big for C.M.M.
She claimed that the father had not obtained a proper medical assessment for a rash on C.M.M.’s chest and shoulders and a lesion on his chin, and that he was generally neglectful of the child’s medical needs.
She alleged that the father had breached the COVID-19 government guidelines on the day they were announced by allowing C.M.M. to briefly walk in a sand dune of a golf course while they went for a walk.
On May 29, 2020, she alleged that the father had always been an incompetent parent, that he was not fit to care for C.M.M., that he had alcohol abuse issues, and that he was a liar.
On June 3, 2020, she insisted that the father had mental health problems, had cheated on her and stolen money from her, and that he was abusive and that the system was failing her and C.M.M.
89The mother discussed all of these concerns at great length in her evidence at trial. The allegations and concerns were fully considered and investigated by the Society at the time, and the agency did not verify any protection concerns arising from the mother’s complaints. During this period, however, the Society did have concerns about the mother’s constant fixation on historical grievances about members of the paternal family, her failure to comply with agreed-upon exchange times for C.M.M., her lengthy messages to workers and her dysregulated and random behaviour and thought processes at times, particularly when things were not going her way. Ms. Kaur noted that the mother was contacting some of the father’s extended family members and making negative comments about him and his parents, including one message in which she suggested that the grandmother may have dementia. The Society also documented that the mother’s relationship with her partner M.R. appeared to be on again/off again, yet the mother’s plan continued to be to move with C.M.M. to Alliston to reside with him. On June 4, 2020, Ms. Kaur spoke with the mother about some of these concerns. She directed her to cease sending her lengthy texts and repeatedly raising historical grievances that had already been addressed, and encouraged her to focus on the present. She also directed that she stop texting and raising issues with the father’s relatives, including his cousins and aunts. The mother became extremely heightened and inappropriate during this call. She yelled, swore, alleged that the father and his family members were liars, and insisted that the father was an alcoholic. Ms. Kaur attempted to calm the mother down to allow for a continuation of the discussion, to no avail, and she ended up having to terminate the call.
90The parties were still actively involved in mediation during the summer of 2020 in an effort to resolve their Family Law issues. As of June 25, 2020, the mother confirmed during a meeting with Ms. Kaur that she was still seeking to relocate with C.M.M. to the Alliston area, to reside with her partner M.R. The mother’s escalated presentation, complaints and allegations against the father and the grandparents intensified throughout the summer of 2020 as the mediation efforts between the parties gained momentum and she did not succeed in gaining the father’s agreement for more parenting time or the right to relocate with C.M.M. A review of the mother’s text messages to the father in May and June 2020 reveal that she was withholding C.M.M. beyond periods that the parties had agreed upon, that she was insisting that the father do all of the transportation for parenting exchanges and that she was demanding equal parenting time with C.M.M. When the parties could not reach agreement on issues, her messages were aggressive in tone and included many demeaning comments about the father’s parenting. It is against this backdrop that the mother made new serious allegations that resulted in another joint child protection and police investigation.
IX. SECOND SOCIETY AND POLICE ABUSE INVESTIGATION: JULY 2020
91On July 6, 2020, the mother reported to Ms. Kaur that C.M.M. had made concerning statements to her recently. Specifically, she relayed the following:
She alleged that in April 2020, she heard C.M.M. singing a song which included the phrase “licking a penis is very naughty.” She asked C.M.M. why he was singing that, and he allegedly said that the grandmother had sung it to him, had told him it was naughty and had laughed.
She claimed that C.M.M. told her that the grandmother had put him in the bathtub a few months ago in just his socks, and he thought it was funny. The mother claimed that she had seen a photograph at some point of the neighbourhood girl who the grandparents had babysat standing on their deck of their home naked except for a pair of socks. She felt that C.M.M.’s disclosure reminded her of that photograph, and she suggested that this was some type of “kink” that the grandfather had with children.
She raised the allegation again that when she first brought C.M.M. home from the hospital, the grandmother had said that she could not wait to see C.M.M. naked, implying that there was an insidious sexual connotation to the comment.
She reported that the father had sent her a photograph of C.M.M. on Canada Day holding a sparkler, and that he was only wearing a t-shirt. She felt that there was also a sinister sexual connotation to this.
Finally, she alleged that on July 3, 2020, C.M.M. told her out of the blue while he was watching television “Mommy, I want to tell you the truth. Nana and Papa took pictures of my penis.” The mother reported that she asked if the father was present at the time, and C.M.M. said no. According to the mother, C.M.M. told her the following morning on July 4, 2020 that it was actually just Nana taking pictures of his penis, that she took the pictures while he was on a slide, and that the grandfather was not present.
92The parties concurred that C.M.M. refers to the grandmother as “Nana.” Society worker Ms. Kaur interviewed C.M.M. at the father’s home on July 6, 2020. During that interview, C.M.M. stated that he had told his mother that Nana licked his penis and that he was telling the truth. This was obviously inconsistent with the mother’s report that he had talked about his grandmother taking pictures of his penis. Ms. Kaur asked if anyone took pictures, and his initial response was no but then he said that his mother and grandmother took pictures. Ms. Kaur also interviewed the father and the grandmother on July 6, 2020. The grandmother was distraught, denied the allegations, and willingly showed Ms. Kaur the photographs in her cell phone, which did not raise any concerns. Ms. Kaur consulted with Society supervisor Ms. Neill following these interviews. They agreed that there were serious concerns about the credibility of the mother’s allegations for several reasons. First, C.M.M.’s alleged statements to the mother were inconsistent with those that he made to Ms. Kaur. Second, Ms. Kaur assessed during her interview with C.M.M. that he did not appreciate the difference between a truth and a lie. Third, C.M.M. could not provide an accurate account of what he had done during the weekend when he allegedly made the statements to the mother. Finally, when Ms. Kaur asked C.M.M. if he knew any songs, he denied that he did, but later in the interview, he began to sing a song. Notwithstanding these significant concerns, the Society referred the matter to the Child Abuse Branch of the police for further investigation. The father was off work because he had lost his job, and a safety plan was implemented for the grandparents to leave the home until the investigation was completed.
93The mother acknowledged that she interrogated C.M.M. further about these allegations on July 6, 2020, after Ms. Kaur questioned C.M.M. The Society’s records indicate that she clearly posed numerous leading and suggestive questions to him.
94Detective Moore interviewed the parties, the grandmother and C.M.M. on July 9, 2020 and July 10, 2020. C.M.M. did not make any disclosures about any pictures being taken, of anyone licking his penis, or of any other type of abuse during his interview. Detective Moore carried out an interview of C.M.M. despite his young age to assess his level of development and his ability to provide an unprompted, pure version statement of any alleged abuse. He found that C.M.M. required significant prompting to provide any information at all, and that he lacked the ability to provide an unprompted disclosure. Detective Moore examined the picture that the father had sent the mother of C.M.M. holding a sparkler, and he noted that it was clear that C.M.M. was actually wearing underwear in the picture. Detective Moore advised the mother after the conclusion of his interview with her on July 10, 2020 that he did not believe there were any grounds to lay any criminal charges. After receiving this information, the mother called Detective Moore later in the morning on July 10, 2020 to report that she had completely forgotten to tell him during her interview earlier that day that she had spoken to C.M.M. on July 6, 2020 after his interview by Ms. Singh, and that C.M.M. had provided her with many more details about the alleged abuse. She claimed to have forgotten despite the fact that she had assured Detective Moore during her initial interview that she had provided him with all of the details that she could recall about the allegations. She indicated that she had posed many additional questions to C.M.M. about the alleged incident involving the grandmother licking his penis, and that C.M.M. allegedly told her that she licked his penis and not his belly button. She relayed that C.M.M. also said after being questioned by her that the grandmother “had her head over his waist in the middle” during the incident. At that time, Detective Moore directed the mother very clearly to cease speaking to, coaching or interrogating C.M.M. any further about any allegations that had been investigated to date.
95The Society and the police both concluded that these new allegations raised by the mother were unfounded based on inconsistencies in the child’s alleged statements to the mother and to the Society worker, the fact that C.M.M. did not appear to appreciate the difference between a truth and a lie, and C.M.M.’s inability to provide accurate information about other events that had occurred around the time of the alleged disclosure to the mother. I agree with this assessment, and I find that the allegations are not substantiated on the evidence. There are two additional considerations that support this conclusion. First, as I have indicated, the period leading up to the new allegations was a high conflict one because the mother was not achieving her goals of gaining primary residence of C.M.M. and relocating with him to Alliston. There was therefore a clear motive on the part of the mother to make such allegations in the context of this litigation. Second, the mother’s suggestion to Detective Moore that she had somehow forgotten additional details about what C.M.M. had told her on July 6, 2020 during her interview on July 10, 2020 is highly implausible, given her meticulousness about relaying every possible detail about the various allegations that she has made over the years.
96Notwithstanding the clear direction from both Detective Moore and Ms. Kaur not to question or talk to C.M.M. any further about allegations that had been investigated, the mother interrogated C.M.M. further on July 19, 2020 about the most recent round of allegations and made a recording of their discussion. She did not share this recording with Ms. Kaur until she conducted a home visit on August 13, 2020, or with the police until August 14, 2020. When she sent the recording to the police, she also sent several emails which Detective Moore described as “long and rambling,” and being unrelated to and not pertinent to the current investigation. The mother advised both Ms. Kaur and the police that during her discussion with C.M.M. on July 19, 2020, the child was able to “piece it all together” as to what had occurred. In speaking with Ms. Kaur about this recording on August 13, 2020, the mother claimed that C.M.M. had made other statements to her about the alleged abuse before she started the recording. Specifically, he allegedly stated that the grandmother carried him outside during this alleged incident, that the grandfather was actually outside as well, that both of the grandparents actually licked his penis, and that they both took pictures of his penis using a black and blue phone. Furthermore, the mother claimed that C.M.M. described the father coming outside during this incident, witnessing what was occurring and intervening to help him. She advised Ms. Kaur that she began recording her conversation with C.M.M. at that point in the conversation.
97The video recording that the mother made on July 19, 2020 was adduced as evidence at trial. In the recording, the mother is seen asking C.M.M. many extremely probing questions about this alleged incident. She asked what happened next, and C.M.M. stated that his cousin protects him. She then asked how his cousin protected him, and C.M.M. looked down uncomfortably, as if thinking about what to say, and then exclaimed that his cousin said “Grandma, don’t lick his penis!” The mother then probed further about whether his other cousin was there too, and C.M.M. first said yes, but then said no, because he and the cousin had been playing teeny tiny lego. The mother then interrogated him further about what happened next, and C.M.M. said in a frustrated and heightened voice “Nothing else!” The mother then responded in a very lively, suggestive and leading manner, stating “Nothing else? But wait a minute, you told me that Nana licked your penis!” The mother’s position is that C.M.M. then responded “ya!” but after carefully reviewing the recording several times, I find that he stated “nyo.” The mother then asked him “Did she try to lick W.M.’s penis too,” referring to his cousin, and C.M.M. shook his head indicating no. The mother continued by asking “just yours?” to which C.M.M. then clearly stated in a sad voice “yaaa.” The mother then asked if it really happened, and C.M.M. again clearly stated “yaaa,” again looking quite upset about the conversation. The recording ended with C.M.M. looking down at the floor in a very sullen and downcast manner.
98Detective Moore reviewed the July 19, 2020 recording and concluded that the mother engaged in an inappropriate interrogation and was clearly leading and coaching C.M.M. through what she wanted him to say. His impression was that C.M.M. was at various points in the recording pausing and searching for the correct answer to give to his mother. He concluded that there was no new information arising from the recording that warranted further investigation, and that there were serious concerns about the mother’s mental health and stability. Similarly, Ms. Kaur advised the mother during her home visit with her on August 13, 2020 that she was inappropriately interrogating and putting suggestive and leading questions to C.M.M. in the recording, and that there was no new information from the recording that would cause the Society to alter its decision that there were no concerns about C.M.M. having been sexually abused. I find that this conclusion was well founded having regard for the highly probing and leading nature of the mother’s questioning of C.M.M. In response to Ms. Kaur’s comments, the mother immediately became angry and defensive, and demanded that she return C.M.M. to her care immediately. She embarked upon a rant about all of her historical allegations and complaints about the father and his family members, accused Ms. Kaur of not knowing how to do her job and asked for a new social worker. She accused the Society of doing nothing to protect C.M.M., and stated angrily that the paternal family members were “good at hiding things,” and that they all viewed Ms. Kaur as a joke. She raised the fact that the father had pled guilty to impaired driving, but Ms. Kaur assured her that his alcohol use concerns had been fully resolved to the Society’s satisfaction. The mother remained highly heightened and continued to insult Ms. Kaur, culminating in Ms. Kaur having to terminate the visit early and leave.
99Following this home visit with Ms. Kaur on August 13, 2020, the mother sent a series of unrelenting text messages Society Family Resource Worker Ms. Cindy Key, who had been supervising parts of her visits with C.M.M. The texts commenced at approximately 11:57 a.m. and continued until 3:00 p.m. In her messages, the mother made many negative, highly personal and rude comments about Ms. Kaur and stated that “something was up with her.” She accused the Society of treating her like a criminal and being biased against her, described the father as being pathological, and reiterated her allegations that he and his family members were alcoholics. She sent another series of text messages to Ms. Key on August 20, 2020 in which she continued to bad-mouth Ms. Kaur and the father, discussed at length all of her historical complaints about the father and his family and accused the father of buying clothes that were too big for C.M.M.
X. CONSULTATIONS WITH CAAP AND MS. HAYES AND THE MOVE TO SUPERVISED PARENTING TIME FOR THE MOTHER
100The Society had significant concerns as of August 20, 2020 about the negative impact of the mother’s repeated unsubstantiated allegations against the father and his family members and her repetitive interrogation of C.M.M. on the child’s emotional wellbeing. It was also concerned about the detrimental impact of these dynamics on C.M.M.’s relationships with the father and his family members. The Society therefore obtained the consent of both parties to engage in consultations with Dr. Jean Clinton of the CAAP team and with a high conflict parenting specialist, Ms. Michelle Hayes, to obtain recommendations as to how to manage the situation. These consultations occurred on August 24, 2020. The concerns and recommendations highlighted by Dr. Clinton were as follows:
She expressed serious concern that the mother had been directed several times not to interrogate C.M.M. about her abuse allegations, but that she had nonetheless persisted in probing him with questions and even recording him. She was of the view that the mother was unable to appreciate the negative impact on C.M.M. of her repeatedly questioning and coaching him about these matters.
Her assessment was that C.M.M. was at significant risk of suffering emotional harm due to the mother’s behaviour, and in particular, due to her constantly putting thoughts into the child’s head that he had been sexually abused by the grandparents. She relayed her opinion that over time, this would result in C.M.M. viewing his grandparents as frightening and feeling unable to trust them.
She concluded that it was imperative to determine whether the mother’s behaviour was short-term and transient in nature, or attributable to an underlying mental health condition. To ascertain this issue, she recommended that the mother undergo a clinical psychological assessment, to be carried out over several appointments rather than in a single session so that the assessor could garner a more reliable impression of the mother’s functioning. She suggested that a neurological component would be helpful to ascertain whether the mother’s vertebral dissection had impacted her brain and contributed in any way to a possible personality disorder. She emphasized that an exploration of the mother’s functioning at one point in time would not be helpful, and that a more comprehensive approach was crucial.
She recommended that the father and the grandparents participate in trauma training and counselling to assist them in handling their emotional distress resulting from the mother’s repetitive allegations against them.
She did not recommend counselling for C.M.M., as she did not see him as the cause of the problems. Her opinion was that the focus needed to be on stopping the mother from engaging in her problematic behaviours, and helping the father and grandparents to respond and support C.M.M. appropriately.
Finally, Dr. Clinton recommended that the mother’s parenting time be restricted to supervised visits, with the supervision to be carried out by the Society or another professional supervised parenting time agency. She did not support supervision being carried out by friends or family members until the mother obtained the psychological assessment and engaged in the work required to prevent her from engaging in further harmful conduct towards C.M.M. Her concern was that friends and family members would not have the skills to quickly identify the mother’s problematic conduct, to intervene effectively and to redirect the mother if necessary.
101The consultation with Ms. Hayes on August 24, 2020 identified the following concerns and recommendations:
Based on the information provided by the Society, Ms. Hayes expressed concern that the mother’s version of events was impacted by delusional thought content on her part.
Ms. Hayes raised concern that the mother’s history of trauma could have bred an unrelenting sense of mistrust in others, which could also be a factor at play in relation to the various disclosures that she had made.
Ms. Hayes also recommended that the mother undergo a comprehensive psychological assessment with a neurological component if possible, and with a requirement that the mother consent to the assessor obtaining information from the Society about its impressions and experiences with the mother.
Ms. Hayes felt that the mother would benefit from participating in ongoing psychotherapy.
Finally, Ms. Hayes also felt that the mother’s parenting time with C.M.M. should be restricted to supervised visits until she completed the assessment, followed through with any resulting recommendations and demonstrated progress respecting her thought processes, her overall stability and her capacity to engage with C.M.M. in a child-focussed and emotionally safe manner.
102On August 25, 2020, Ms. Kaur spoke with the mother and advised her of the recommendations flowing from the consultations with Dr. Clinton and Ms. Hayes. She informed her that the Society had decided to restrict her parenting time with C.M.M. to supervised visits until she received and had time to benefit from appropriate services, including a psychological assessment. The mother became extremely angry, claimed that the Society and police investigations had been sloppy, called Ms. Kaur a foul name and then hung up.
103After the consultations with Dr. Clinton and Ms. Hayes, the Society arranged for twice weekly visits for the mother in a local park, supervised by Society staff. During one of these visits on September 10, 2020, the grandmother dropped C.M.M. off, and before the Society supervisor Ms. Key could intervene, the mother approached the grandmother and C.M.M. and became extremely irate in the presence of the child. C.M.M. had sustained a minor scrape to his nose after falling while playing. Ms. Key and the grandmother observed the mother crying to the point of almost shaking, and yelling that C.M.M. was being abused. The grandmother testified that both she and C.M.M. were terrified by this encounter, and that she has not spoken to the mother since that time because she is terrified of her. Ms. Key eventually intervened to de-escalate the situation. Despite this incident, the Society changed the location of supervised visits to the mother’s home in October 2020, and added video visits twice per week commencing in November 2020. The father was supportive of this expansion of the mother’s visits as he recognized C.M.M.’s strong attachment to her and felt that he was missing his mother.
XI. EVENTS LEADING TO THE TERMINATION OF THE CHILD PROTECTION PROCEEDINGS
104The Society file was transferred to another Society worker, Ms. Christine Nguyen, in mid September 2020. During the early period of Ms. Nguyen’s involvement, the mother described in detail all of the traumatic events in her life, and her long litany of historical complaints about the father and members of his family. She made it very clear to Ms. Nguyen that she did not accept that she had inappropriately questioned C.M.M., that she still believed that the child had been sexually abused by the grandparents, and that she felt that the investigative techniques used by the Society and the police were flawed. She also advised Ms. Nguyen that she had consulted with a sexual abuse expert in Oregon, who had allegedly told her that they were disappointed in the Society’s response to her concerns. Ms. Nguyen reinforced with the mother during a home visit on September 29, 2020 that she was not to interrogate C.M.M. about any allegations of abuse, and that the Society had concerns that C.M.M. could be unnecessarily subjected to further interviews and medical examinations if she continued with her behaviours.
105On December 21, 2020, the Society requested an extension of the supervision order with the father to provide ongoing monitoring and support for the family. Pazaratz J. extended the supervision order for six months on that date. The Society’s assessment as of that time was that the father and grandparents were providing excellent care for C.M.M., and that the mother was also able to meet the child’s physical needs. However, the Society continued to have serious ongoing concerns about the mother’s inability to move beyond her historical early life trauma, the impact of this on her present functioning, her incessant complaints about the father and members of his family, her fixation on past events that were not relevant to the present, her ongoing insistence that C.M.M. had been sexually abused and her inability to regulate her anger and emotions. In addition, the mother continued to demonstrate evidence of distorted and irrational thinking, and there were periods when her discussions and messages with Society staff were extremely rambling and disjointed in nature. Some examples of these concerns during the period from late 2020 until May 2021 include the following:
During the second video visit with C.M.M. in November 2020, the visit started with C.M.M. holding up a toy ghost that he was able to manipulate to make its tongue stick out and flicker. The mother indicated to Ms. Nguyen and also during the trial that she felt that the father and the grandparents had set this scene up deliberately as a passive- aggressive tactic to antagonize and instigate her, given the nature of the sexual abuse allegations that she had raised.
The mother continued to allege that the grandfather was an alcoholic, and that both grandparents had a history of dysfunctional family relations.
On November 20, 2020, the mother advised Ms. Nguyen during a home visit that she was worried that the father had tried to “take her out” in the past. She spoke about the father having allegedly left the gas stove in the kitchen on a couple of times, and about an occasion when the gas line to the barbecue was cut up and the father had blamed rabbits. She expressed fear that these may have been intentional acts on his part aimed at harming her. During that home visit, Ms. Nguyen noted that the mother’s conversation was difficult to follow, as she spoke at length about historical events and jumped erratically from topic to topic and from past to current issues.
On November 25, 2020, the mother raised the historical allegations of sexual abuse again, insisted that C.M.M. had been sexually abused, but claimed that she would in future call the police for help rather than questioning C.M.M. herself if issues about abuse arose. However, she persisted in discussing her myriad of historical complaints about the father and grandparents, claimed that she knew them better than the Society, and stated that they did a good job of presenting themselves well in meetings.
On December 1, 2020, the mother asked Ms. Nguyen whether the Society had accessed her medical records without her consent and figured out when she has her menstrual period, because she suspected that the agency was deliberately scheduling court appearances when she had her period to antagonize her.
The mother made frequent complaints about the way in which the father and grandparents were clothing C.M.M.
On January 12, 2021, the mother stated to Ms. Nguyen that the father was unwell, that he would tell Ms. Nguyen anything she wanted to hear because she was “an attractive Asian woman” and the father had “a thing for Asian women,” and that he had been abusive towards her throughout their marriage. Subsequently, on January 13, 2021, she sent Ms. Nguyen an article entitled “The Tactics and Ploys of Psychopath Aggressors in the Family Law System.”
During a home visit with Ms. Nguyen on January 27, 2021, the mother reviewed at length her long list of historical concerns about the father and the grandparents. Ms. Nguyen noted that she had already discussed these issues with her at great length in previous meetings.
On January 28, 2021, the mother sent Ms. Nguyen many long-winded texts over a period of several hours. The messages made many random negative comments about the father, including a claim that he had been considered “retarded” when he was in grade school. They also included rambling commentary about the mother’s history of major accomplishments, how well she was doing and what a good parent she was to C.M.M. The mother ranted about information contained in the court affidavits, and then got sidetracked and embarked upon extensive negative commentary about the grandfather. The hours-long stream of text messages ended with the mother referring to the father, the grandparents and the Society as her abusers.
On February 24, 2021, the mother again sent Ms. Nguyen a lengthy series of text messages that continued for almost three hours. The messages included the same general themes discussed above, and she again accused the father and the grandparents of abusing her. She spoke at length about how she felt that the sexual abuse investigations had been unfair and mishandled. Ms. Nguyen spoke with the mother later that day, and the mother again engaged in disjointed and lengthy discussions about the same issues. Ms. Nguyen noted that throughout the discussion, the mother referenced many events from the distant past that did not have any relevance to the present situation.
On February 26, 2021, the mother again sent Ms. Nguyen many text messages, and Ms. Nguyen called her later that day. In these communications, the mother spoke at length about all of her historical complaints about the Society and the paternal family members, and alleged that the Society and Ms. Kaur had been negligent. She called the father “a delinquent.” She reiterated that she had spoken to a child sexual abuse expert in Oregon, and claimed that this expert had agreed with her assessment that the agency had mishandled her case.
The mother engaged in particularly troubling communications with both the father and Ms. Nguyen from March 26, 2021 until March 28, 2021, after she reviewed the Society’s court documents that had been filed for the upcoming status review application. Her communications can best be summarized as long-winded and disjointed vicious attacks on the father, his family members and the Society. On March 26, 2021, she sent over 30 text messages to the father in the early morning hours listing several complaints about his parenting, including that C.M.M.’s backpack was too big, that his clothing was the wrong size, that the child should not be cuddling with the grandparents, that his shoes were worn out and too big and vague claims that the father had harmed the child in the past. She pressured the father to move to Alliston so that she could relocate to be near her partner, and accused him of having a “trauma bond” with the grandparents. In addition, she alleged that the father had a video addiction problem, and that both he and the grandfather were alcoholics. Her messages also included many positive comments about her own functioning and parenting of C.M.M.
From March 26 to March 28, 2021, the mother sent Ms. Nguyen approximately 105 text messages, rambling at length in a disconnected manner about all of the issues that she had raised in her messages to the father, and setting out numerous other complaints. She referred to the father and his family members as her abusers, alleged again that the Society was incompetent, accused the workers of behaving like tyrants and torturing her and set out her usual long list of complaints about the father and grandparents dating from the commencement of the parties’ relationship. She further alleged that the father had been abused by the grandparents, and that this had occurred due to the grandparents’ rage, alcoholism and other addictions. She denied having ever coached or influenced C.M.M. about the allegations, and tried to turn the tables and accuse the father and the grandparents of coaching and influencing him. The mother also spoke at length in glowing terms about her accomplishments over the years, her positive functioning and her general superiority over the father in all areas.
On May 17, 2021, the mother’s counsellor from the Women’s Centre contacted the Society to report that the mother was making allegations of sexual abuse by the grandparents towards C.M.M. The Society determined that all of the allegations in question had already been thoroughly investigated.
106The Society did not verify any of the concerns that the mother raised about the father and the grandparents throughout this time period. I find that the evidence fully supports its conclusions that the allegations were unfounded.
107Society worker Ms. Nguyen made attempts during the fall of 2020 to arrange a psychological assessment of the mother, as per the recommendations of Dr. Clinton and Ms. Hayes. For some inexplicable reason, the Society abandoned its requirement that the mother undergo this assessment in December 2020. Instead, it chose to refer the mother for counselling services through Shalem Mental Health Services (“Shalem”). The Society’s decision to not pursue the psychological assessment at that point notwithstanding the serious ongoing concerns respecting the mother was in my view a tragic error. It was a missed opportunity to gain a comprehensive understanding of the mother’s possible mental health difficulties and obtain meaningful recommendations to address them. This decision set the family on a destructive path of many more years of disruption and trauma due to a continuation of the same protection concerns respecting the mother that the Society and other professionals had documented for years. On a positive note, although the mother consistently denied having any mental health problems, she nonetheless attended for counselling at Shalem fairly regularly, and her counsellor reported that she appeared to be making gains in appreciating the Society’s concerns. As a result, the mother’s visits were increased in duration over time and expanded to include at first semi-supervised visits, with friends of the mother and her partner M.R. supervising at times, and then unsupervised visits in her home. The father was supportive and cooperative with the Society’s recommendations respecting expansions of the mother’s parenting time.
108As the mother’s counselling and visits progressed, the mother began once again to discuss her plan to regain primary care of C.M.M. and relocate with him to the Alliston area, so that they could reside with her partner M.R. In December 2020, the mother advised Ms. Nguyen of her goal to have the parties alternate having primary care of C.M.M. on a yearly basis. By early January 2021, she was pressuring the father to allow her to relocate with C.M.M. to Alliston, and for him to move there as well to facilitate the resolution of the parenting issues. During a home visit between Ms. Nguyen and the father on January 12, 2021, the father advised Ms. Nguyen of the mother’s requests to relocate with C.M.M. to Alliston, and advised that he had told her that he was not interested. Later that same day, the mother made a complaint to the police that the father made a death threat towards her that day during a telephone conversation in which she had asked him to cooperate regarding her wish to relocate with C.M.M. to Alliston. The police investigated this complaint and concluded that there was insufficient evidence to substantiate the allegation.
109On May 28, 2021, the mother raised new concerns about sexually inappropriate behaviour by the grandparents. She alleged that C.M.M.’s buttocks were somewhat tanned, and that she had asked him if he had been swimming naked. She claimed that he then told her that he had been swimming naked with the grandparents, and that he did not feel comfortable about this. The mother clearly had ongoing concerns that the grandparents were engaging in sexually inappropriate behaviour towards C.M.M. Ms. Nguyen interviewed C.M.M. on this date at the mother’s request. Ms. Nguyen did not verify any sexually inappropriate interactions between the grandparents and C.M.M. She noted that C.M.M. had a poor recollection of the events of the past day. He denied that he had gone swimming naked but acknowledged that his mother had asked him this question. When Ms. Nguyen asked what it meant to swim naked, he responded that it meant swimming wearing just a bathing suit and floatie. He acknowledged that his mother had asked if his grandparents made him feel uncomfortable, and that he had said yes. However, it was clear that he had no idea what “feeling uncomfortable” meant. He told Ms. Nguyen that he felt safe and happy with the grandparents. Ms. Nguyen advised the mother that she had again posed leading questions to C.M.M. using words that he did not even understand, and she directed her once again to cease doing so.
110On June 7, 2021, the Society obtained an order terminating the supervision order dated December 21, 2020, in favour of continuing to work with the parties pursuant to an 8-month Voluntary Service Agreement. As of that time, the mother’s parenting time with C.M.M. was every Tuesday and Thursday evening, and on alternate Saturdays overnight. The terms of the Voluntary Service Agreement contemplated expanding this parenting time and laid out the expectation that the Society would continue to work with and support the family until a final parenting agreement was reached or a final parenting order was granted.
XII. ONGOING ALLEGATIONS BY THE MOTHER FOLLOWING THE TERMINATION OF THE CHILD PROTECTION PROCEEDINGS
111The Society continued to increase the mother’s parenting time with C.M.M. following the termination of the Child Protection proceedings, despite the concerns outlined above. The Society’s records indicate that its grounds for doing so were that the mother was engaged in counselling with Shalem and at the Women’s Centre, and that she had been having weekend parenting time supervised by her partner M.R., which appeared to be going well. By August 2021, the mother’s parenting time with C.M.M. was according to a two-week rotating schedule recommended by the Society, as follows:
Week One:
From Wednesday at 9:00 am. until Thursday at 6:30 p.m.
Week Two:
From Thursday 9:00 a.m. until Sunday at 6:30 a.m.
112When C.M.M. returned to school for Senior Kindergarten in September 2021, the schedule was adjusted so that the mother’s parenting time would start from after school on Wednesday in week one, and from after school on Thursday in week two. However, if C.M.M. was not in school for any reason, the start times would be as set out above. This is the regular parenting time arrangement that the parties were following right up until the time of trial.
113Unfortunately, the termination of court intervention did not bring any sense of stability to this family. When C.M.M. began Senior Kindergarten in September 2021, staff at St. Margaret Mary Catholic Elementary School (“St. Margaret Mary”) began to note concerns about the mother’s mental health and her interactions with staff members. The principal of St. Margaret Mary at the time, Ms. Coletto, testified at trial. I found her to be a forthright, balanced, fair and credible witness. She stated that there have been concerns regarding the long and convoluted nature of the mother’s email messages to the school and her conversations with staff since C.M.M.’s Senior Kindergarten year. She explained that the messages and conversations have typically included extensive information about various issues that have gone far beyond the rational scope of what would be expected from conversations with parents in the educational context. She was concerned that in one such message, the mother noted that there had been allegations of sexual abuse against members of the paternal family, and that this message had gone to the school secretary. She indicated that she and other school staff had concerns about the mother’s demeanour at times, as she frequently presented as highly emotional and unable to remain focussed on issues that were relevant to C.M.M.’s educational needs and interests. Ms. Coletto recalled several occasions when the mother would become derailed and digress onto issues such as her own history of trauma, her lack of supports since coming to Hamilton, details about her medical history and being a “survivor,” the history of her own impressive accomplishments and her view that school officials were unable to understand what she was going through. She recalled one incident during C.M.M.’s Senior Kindergarten year when families were collecting gift cards for families in need, and she observed the mother to be very distraught about something to do with the cards. She attempted to ascertain what the issue was, but she could not do so because the mother’s responses did not make sense.
114There were other clear signs following the termination of court intervention that the mother was still experiencing ongoing difficulties in managing her mental health and her emotions. In June and July 2021, the mother contacted the office of the Premier of Ontario, Mr. Doug Ford, to complain about the Society’s handling of her file and she also reached out the media to complain about her experiences with the agency. She advised Ms. Nguyen on August 13, 2021, and confirmed at trial, that she also reached out to other Child Protection agencies at that time to garner support for her concerns about sexual and physical abuse and neglect by members of the paternal family. During the summer of 2021, the mother had several highly dysregulated and angry communications with Ms. Nguyen during which she repeated all of her historical concerns, complimented herself at length and threatened Ms. Nguyen that she would go to the media again to expose the Society’s incompetence. As I will discuss in much more detail later in these Reasons, many of the mother’s App Close communications with the father starting in the summer and continuing through the fall of 2021 were horrific. They were often unrelenting in nature, spanning extended periods of time. In addition, the messages were aggressive, demeaning of the father and his parenting, demanding, excessive and rambling in nature, particularly when she did not make the headway that she wanted during the ongoing Family Law negotiations. They reviewed in painful detail all of her historical complaints and allegations and referred to the father in derogatory terms including controlling, abusive, an alienator, reckless, mean, ignorant, selfish and “Captain Oblivious.” The mother also spoke at length about what a great father her partner M.R. was to his son, and mocked the father about how inadequate he was by comparison. This became a regular theme in her communications with the father. During this period, the mother also continued to make numerous allegations of general neglect by the father and the grandparents, and alleged that the father needed constant “hand holding” to address C.M.M.’s needs. This was another constant theme that the mother advanced with the Society and at trial. In addition, when the Society did not actively support the mother’s request for equal parenting time in August 2021, she amped up her attacks against the agency’s handling of the case and launched a formal complaint within the agency against her former worker Ms. Kaur, alleging that her mishandling of the case had been the cause of C.M.M.’s removal from her care. The Society did not substantiate any of the mother’s allegations, and it assessed the father as being an excellent caregiver to C.M.M.
115The parties remained unable to resolve the parenting and other Family Law issues by September 2021, and therefore the father commenced this application on September 3, 2021. No temporary orders were made respecting regular parenting time throughout the case up until trial. As I have noted, Brown J. granted a final order on consent of the parties on January 31, 2024, addressing holiday parenting time and travel issues respecting C.M.M. I will address the litigation history of this proceeding in further detail below.
116Unfortunately, the mother’s constant allegations of abuse and neglect by the father and grandparents continued unabated following the commencement of this application. It is clear from the evidence that the mother became increasingly angry during the fall of 2021 that the father and the Society were not implementing an equal parenting time arrangement. A new social worker, Ms. Alberta Abbiw, was assigned to the case in November 2021. As had become the typical pattern with new workers, the mother spent an excessive amount of time with Ms. Abbiw recounting in minute detail her litany of historical complaints against the father and his family members. In a phone call with Ms. Abbiw on November 25, 2021, she repeated all of her past allegations and concerns, claimed that the father was an alcoholic and was not dressing C.M.M. in the proper sized clothes and gloves and added that she now believed that C.M.M. was losing weight while in the father’s care because he was not being fed appropriately. Again, none of her concerns were verified by the Society.
117The conflict between the parties came to a head on November 26, 2021. The parties had a disagreement on this date about the parenting time arrangements from Thursday November 25, 2021 to Monday November 29, 2021. In reviewing the App Close messages between the parties, I find that on November 15, 2021 the father offered to switch weekends and to also give the mother additional parenting time until the Monday morning, so that the mother would have C.M.M. from Thursday November 25, 2021 until Monday November 29, 2021. He made this offer so that the mother could spend her birthday with C.M.M. on November 28, 2021. The mother told him on November 15, 2021 that she would get back to him about this proposal, as she did not know whether she had to work that weekend at her aesthetics job. The father claims that she never confirmed that she wished to switch weekends. The App Close messages between the parties confirm that she never responded. The mother claimed at trial that she confirmed verbally, but I accept the father’s evidence over hers. On the morning of November 25, 2021, the mother sent the father another series of unrelenting messages that continued incessantly from 9:29 a.m. until 10:10 a.m. She continued to launch complaints about the father’s parenting, none of which the Society had verified. She accused the father and grandparents of not feeding C.M.M. properly and again complimented herself for her superior choice of food for the child. The father attended the mother’s home later that day on Thursday November 25, 2021 to pick C.M.M. in accordance with the regular schedule, but the mother refused to hand C.M.M. over. The parties bickered over App Close about the situation, and the mother ended up calling the police. The father simply left C.M.M. with the mother that night to keep the peace. He texted the Society worker Ms. Abbiw on November 26, 2021 to advise her of the police involvement, and expressed concerns that the mother was spiralling emotionally again, as she was sending him numerous aggressive and insulting texts.
118Not surprisingly given the patterns respecting the mother’s conduct that were becoming apparent by this point, this increase in tension between the parties was followed by a new series of sexual abuse claims by the mother starting on November 26, 2021 after the police intervention. She reported to Ms. Abbiw that day that she and C.M.M. had been decorating the Christmas tree on November 25, 2021, and when she pulled out a gray blanket, C.M.M. supposedly made new statements about the alleged incident that she had reported 2.5 years earlier, in April 2019, when C.M.M. allegedly stated “Papa touch penis under blanket.” The mother claimed that C.M.M. now remembered more details about that event, and told her that the grandfather put him under a gray blanket, turned the lights off, put his hands down his penis, and moved his penis up and down. The mother reported that she asked C.M.M. when this had occurred, and he said not since he was 1. She also asked if he felt safe around the grandfather, and he reportedly said no. The mother advised Ms. Abbiw that this had occurred before the police arrived at her house that day, but that she did not report this to the police. The mother cried profusely while discussing this alleged conversation with C.M.M. on this date.
119Ms. Abbiw had a home visit with the mother on December 9, 2021, while she had care of C.M.M. The mother asked Ms. Abbiw to interview C.M.M. again about the allegation of the grandfather touching him under the blanket. Ms. Abbiw declined to interview C.M.M. again about this alleged incident, as it had already been fully investigated in April 2019, and it was abundantly clear to her that the mother had posed inappropriate leading and suggestive questions to C.M.M. about the alleged incident, in an interrogation type manner. Following this decision, the mother subjected Ms. Abbiw to a barrage of lengthy and disjointed text messages again in which she repeated her historical complaints, called the father an abuser, accused the Society of being biased and unfair, alleged that she was being treated like a criminal and discussed at length what a wonderful parent she was to C.M.M.
120Despite having been told many times not to question and record C.M.M. again about concerns and alleged abuse allegations, the mother made a video recording of her questioning C.M.M. at length on December 17, 2021. In this recording, she questioned C.M.M. about the alleged incident involving the grandfather supposedly touching the child’s penis under a blanket. This recording was adduced as evidence at trial. The recording was clearly made after the mother and C.M.M. had already discussed the issue, because the mother is heard at the start telling C.M.M. “Okay, C.M.M., I know this isn’t easy, but can you tell me about Papa and what you told me about the blanket?” C.M.M. is then seen looking down in a very uncomfortable manner, and making a statement which appeared to be highly rehearsed. His comments are interspersed with very probing, suggestive and leading questions by the mother. He talked about Papa coming to get him in his room, taking him to his own room, putting a blanket on him and turning out the light. He alleged that he was wearing pants and underwear, and that the grandfather touched his penis and made it go “up and down, up and down.” He claimed that he was scared and ran downstairs, where he saw his father, and that his father then “kicked Papa out to the window.” However, he then stated the father kicked him out the door. The mother then suggested to C.M.M. that the father knew something scary happened and that was why he pushed the grandfather, to which C.M.M. responded “ya, he knew because I was screaming out loud.” The mother responded with “Okay, you didn’t tell me that before,” making it very apparent that she had already questioned C.M.M. about this alleged incident. She asked him how old he was when this happened and he said 2, whereas he had allegedly stated on November 25, 2021 that this had not occurred since he was 1. In the recording, the child said this only happened once. The mother is heard at the end of the recording in a teary voice telling C.M.M. how sorry she was that all that happened to him, reassuring him that he was a tough boy, and telling him that she loved him.
121On December 16, 2021, the mother also advised Ms. Abbiw that C.M.M. had a bruise on his forehead. Ms. Abbiw concluded after speaking with the father and the grandfather that the child had fallen while in the grandfather’s care while he was playing and running, that he had struck his head on a tree trunk and that the grandfather had applied ice and reacted appropriately to the situation. Ms. Abbiw advised the mother on December 21, 2021 of her assessment that the bruise was accidental, but she did not accept this conclusion. She began screaming uncontrollably at Ms. Abbiw and accused her of ignoring sexual and physical abuse that had been inflicted on C.M.M. She called Ms. Abbiw later in the day and advised that she had questioned C.M.M. once again about the bruise. She relayed her belief that the grandfather had deliberately tripped C.M.M. and then laughed at him after he hit his head because of his “sadistic personality.” The mother also claimed that C.M.M. had talked about having witnessed a fight between the father and the grandfather during which the grandfather had supposedly pushed the father to his back. Ms. Abbiw warned the mother again during this investigation not to interrogate and coach C.M.M. She spoke to C.M.M. on January 7, 2022 and asked if he had ever seen his father and grandfather fighting, and he responded no. Ms. Abbiw asked him if he had ever told his mother that he had seen them fighting, and he stated that he had told her that, but he was not sure if it was a dream or not.
122The parties had been carrying out parenting exchanges at their respective homes, but the mother claimed in mid December 2021 that she was now fearful of the father and grandparents, and that she refused to be near their home. She messaged the father on December 19, 2021 demanding more time with C.M.M. and insisting that he do all of the transportation for visits. When he declined both requests, she sent a barrage of messages in which she threatened to call the police and the Society on him again, claimed she was being victimized, raised all of her historical complaints yet again and humiliated him by comparing him with her partner again. Her onslaught of dysregulated messages to the father continued on December 20, 2021 and resumed again on December 22, 2021.
123The mother responded to these developments by lodging a formal complaint with the Ministry of Community, Children and Social Services on December 21, 2021, raising concerns about the Society’s failure to respond in the manner she had hoped in relation to her new allegations. The Society reacted by directing that the grandfather was not to have any unsupervised contact with C.M.M. pending the outcome of this complaint. Following the complaint, the mother continued to send numerous aggressive texts to Ms. Abbiw and the father elaborating upon all of her complaints against the Society and members of the paternal family. She told Ms. Abbiw on December 22, 2021 that she believed the bruise on C.M.M.’s head had been inflicted intentionally, and that C.M.M. should be apprehended from the father’s care. The mother was so dysregulated during this period that she contacted COAST for mental health support on December 22, 2021.
124The Society thoroughly considered and investigated all of the concerns that the mother raised during this time period and did not verify any of them. I find that the evidence fully supports the Society’s conclusions. In regard specifically to the mother’s renewed sexual abuse allegations against the grandfather, I conclude that the evidence fully supports that Society’s decision to not launch a further abuse investigation or to verify any abuse. My decision on this issue is based on the passage of over 2.5 years since the initial report regarding this alleged incident when C.M.M. was only 2 years old, the fact that neither the Society nor the police had verified any abuse concerns in 2019, the repetitive coaching and suggestive interrogation by the mother regarding the issue and other allegations involving the father and his family members, the concerns regarding the mother’s mental health and dysregulated state, the consistent concerns about her distorted thought processes and the inconsistencies in C.M.M.’s statements.
125The Society’s records respecting consultations between Ms. Abbiw and her supervisor, Ms. Jacquie Shoreman, establish that as of mid February 2022, the Society had no concerns about the father and the grandparents and felt that they were providing excellent care for C.M.M. However, the Society had the following significant concerns about the mother:
The mother was continuing to coach and repeatedly interrogate C.M.M. about issues regarding the father and the grandparents. Ms. Abbiw informed her supervisor on January 5, 2022 of her impression that C.M.M. was answering the mother’s probing questions in ways that he felt would please his mother in order to stop her rapid-style questioning of him.
The Society’s assessment was that C.M.M. was experiencing anxiety because of the mother’s constant interrogations, and that this was causing him emotional harm.
The Society felt that the mother honestly believed that the father and the grandparents posed a significant risk to C.M.M., that her constant questioning of him was instilling this belief in the child as well, and that this dynamic would interfere with the child’s ability to maintain healthy relationships with his father and grandparents.
The mother clearly remained fixated and unable to let go of historical complaints and abuse allegations respecting the father and his family members, despite the fact that they had all been considered, investigated and not verified.
The Society concluded that there was no new evidence warranting a new sexual abuse investigation.
There were serious concerns about the mother’s mental health, and that it was negatively impacting her judgment and parenting of C.M.M.
The agency had significant concerns that the mother would continue to make unfounded allegations of abuse by the father and grandparents towards C.M.M., and that this would place the child at risk of being subjected to unnecessary interviews, investigations and Society interventions in the future.
126Again, I find that the evidence adduced at trial fully supports all of these concerns.
127Ms. Abbiw and Ms. Shoreman held a lengthy meeting with the mother on January 7, 2022 to discuss the Society’s concerns. They reiterated once again that the mother must cease interrogating and coaching C.M.M. in relation to allegations of abuse and neglect by the father and his family members. The mother spoke at length again about all of her historical concerns and claims against the paternal family dating from when she first met the father. She persisted in her claims of sexual abuse and accused the father and his family of “covering things up.” She emphasized that she had consulted with child sexual abuse experts around the world, and that they had all allegedly supported her position that C.M.M. had been sexually abused. In short, she completely rejected any of the Society’s conclusions and its assessment of the overall family dynamics and concerns. Furthermore, notwithstanding the direction that Ms. Abbiw and Ms. Shoreman gave to the mother about ceasing to ask C.M.M. probing and leading questions, the mother once again persisted in interrogating C.M.M. about the father, the grandparents and his past allegations about them during a home visit with Ms. Abbiw on February 17, 2022.
128Notwithstanding the serious concerns documented by the Society as of mid February 2022, the Society decided to close its file on April 14, 2022. The Society’s records reveal that this decision was based on several factors, including the fact that a referral had been made to the Office of the Children’s Lawyer, and that the mother had not made any new allegations over the previous two months. The Society also noted that C.M.M. was doing well in school, that he had close attachments to all of his caregivers, and that the mother had the support of her partner M.R.
XIII. EVENTS LEADING TO THE SECOND SOCIETY INTERVENTION
129Unfortunately, after the Society closed its file, the mother continued on her mission to advance her claims of longstanding mistreatment by the father and paternal grandparents, sexual and physical abuse towards C.M.M. and her general history of trauma throughout her life. She attended at her family physician’s office on May 10, 2022 and had a 1.5 hours session with Nurse Practitioner Ms. Troup, during which she went into extreme detail about all of these historical issues and complaints. She complained that the Society and the police were useless in addressing her concerns about abuse towards C.M.M. Ms. Troup noted that the mother was shaky and emotional during the session, that her speech was rambling and non-sequential and that it was extremely difficult to follow her various stories. She indicated in her notes that all of her allegations were many years old, had been extensively documented almost word for word by various professionals and had been fully investigated in the past. She also noted that she had to forcibly end the session because the mother wished to continue with her complaints. During this session, the mother raised concerns again that C.M.M. was underweight, that he kept losing weight while in the father’s care, and that the father and grandparents were not feeding him properly. Both parties had a follow-up session with Ms. Troup on June 9, 2022 to address and assess these concerns. Ms. Troup reassured them during this appointment that there were no concerns about C.M.M.’s weight, but the mother rejected this feedback outright. Ms. Troup noted that the mother was difficult to satisfy despite her multiple reassurances that the child’s weight was fine. She also noted that the mother made many negative comments about the father’s parenting of C.M.M.
130During a subsequent appointment with Ms. Troup on June 14, 2022, the mother relayed that she had called the Hospital for Sick Children in Toronto to see who could assist her in proving her allegations that C.M.M. had been sexually abused. She stated that the hospital refused to become involved because of the ongoing court proceedings. She advised that she had written to the Premier of Ontario again to complain about a judge who had not read what she had submitted, and that she had found a specialized sexual abuse counselling program through Canoe Counselling to assist her and C.M.M. in regard to the allegations. On September 19, 2022, she complained to Ms. Troup that the father and grandparents were deliberately dressing C.M.M. in clothing and underwear that was too big for him.
131The Family Law case proceeded to a settlement conference before Walters J on October 25, 2022, and at that time, a trial scheduling conference was scheduled for January 19, 2023. The mother again amped up her complaints and efforts to garner professional support for her concerns soon after the settlement conference. On December 2, 2022, she wrote a lengthy 8-page rambling and irrational email to Dr. Almeida, who worked in the Cardiology Department at McMaster Hospital and had treated C.M.M. shortly after his birth more than six years earlier in relation to his heart condition. The mother acknowledged at trial that Dr. Almeida had not been involved with C.M.M. since that time. She explained that the purpose of the email was to attempt to secure an ally in Dr. Almeida to advance her claims about abuse and neglect by the father and grandparents and to advocate for C.M.M.’s safety. In the email to Dr. Almeida, the mother described once again in minute detail most of her historical complaints and concerns about the father, and in many ways misrepresented the true facts. She discussed at length her allegations of sexual abuse in 2019 and the events surrounding C.M.M.’s apprehension, and referred to the grandparents and the uncle as sexual abuse culprits. She went to great lengths to justify her behaviour on the day that the Society removed C.M.M. from her care, and went so far as to attach texts between her and her partner M.R. to prove that she was stable leading up to that day. The mother articulated her concern that the alleged sexual abuse by the father and grandparents was part of something bigger like a child sexual abuse ring. She raised complaints about Justice Pazaratz and the Society, claiming that it had been negligent and had simply swept her concerns under the rug. She claimed that all of the professionals who had been involved to date with the family had been biased and that the entire child protection system was a failure. She also raised concerns about nutritional neglect by the father and the grandparents and attached a detailed tracking that she had made of the child’s weight which showed that she had been weighing him excessively. This email was highly unusual and inappropriate both in regard to its contents and the fact that the mother sent it to a professional who had not had any involvement with the family for more than 6 years. Accordingly, the Deputy Chief of Pediatrics of the hospital at the time, Dr. Crocco, reached out to the family physician Dr. Zizzo’s office on December 5, 2022 to discuss the contents and to express his concerns about the mother’s mental health.
132On December 2, 2022, the mother also initiated another formal complaint process about the Society and its workers with the agency’s Executive Director at the time, Ms. Donna Zan. She reviewed in great detail again all of her historical complaints against the paternal family. Ms. Zan directed Society supervisor Ms. Jacquie Shoreman to arrange for a worker to meet with the mother to discuss her concerns again, with the goal of ascertaining whether there were any new issues or worries that had not been previously investigated. Society worker Ms. Teresa Michell was assigned to carry out this task.
133Ms. Michell had several conversations with the mother and received many communications from her from December 9, 2022 to February 27, 2023. The mother insisted during this involvement that none of the previous workers had taken her seriously, and that C.M.M. continued to be at serious risk of experiencing abuse and neglect in the care of the father and the grandparents. She again reviewed in detail all of her historical concerns. Ms. Michell noted that the mother’s complaints focussed on four general areas. First, there were concerns about the parties’ different parenting styles and approaches. Ms. Michell did not identify any protection concerns in this area. The second area of concern related to typical parenting dispute matters, and again, Ms. Michell did not identify any protection issues. The mother’s third area of concern related to C.M.M.’s weight, and the mother’s perspective that he was not being properly fed while in the care of the father and the grandparents. She claimed that C.M.M. was so underweight that he was suffering from failure to thrive, despite the feedback that she had received from Ms. Troup in June 2022. The mother sent Ms. Michell photographs of C.M.M. as proof that he was underweight, but Ms. Michell did not feel that they supported the mother’s claim. She encouraged the mother to follow up with the family physician about these concerns, and advised that the issue could be addressed again if the doctor expressed any worries about C.M.M.’s weight. The last area of concern related to alleged sexual abuse of C.M.M. Ms. Michell determined that all of the concerns and allegations raised by the mother were in fact historical and had already been fully investigated and not verified. However, the mother insisted that the previous investigations had been flawed, and that C.M.M. was continuing to talk to her about the alleged sexual abuse. She felt that C.M.M.’s language skills had improved to the point that he was now able to clearly articulate what had happened to him. She was adamant that C.M.M. should be interviewed again by a recognized expert in childhood sexual abuse, and with her present so that C.M.M. would be comfortable relaying his allegations. Ms. Michell concluded in consultation with her supervisor Ms. Meredith MacLachlan and the Society’s Service Director Mr. Trevor Allen that there was no role for the Society, and that there were no grounds to open a new sexual abuse investigation and interview C.M.M. again. Accordingly, the Society closed its file as a community link service intervention in late February 2023.
134I highlight that the mother’s numerous voice mail and text messages to Ms. Michell in 2023 were extremely concerning. They reflected ongoing patterns of dysfunctional and irrational thinking and communication on her part. In these messages she continued to accuse the Society of bias and negligence, and she went into great detail again about historical complaints dating from when C.M.M. was an infant, which she had already discussed at length with all previous Society workers. The messages were disorderly, long-winded and frenetic in nature and perseverated on past events that had no relevance to the present situation. They focussed extensively on every minute action of the father and the grandparents, raising many complaints including objections to the clothing they bought for C.M.M., what they fed him and their actions at the school. The mother was insistent in some of her messages that C.M.M. be removed from the father’s care, and asked in an angry tone why the child was still living with him. The mother’s messages also included extremely detailed discussions about various aspects of her personal history and trauma, which she had also discussed at great length with all previous Society workers.
135Unfortunately, Ms. Michell’s discussions with the mother during the Society’s intervention in early 2023 did not lead to an abatement of the mother’s efforts to advance her abuse and neglect claims against the father and his family members and to rally professionals to her side in an effort to remove C.M.M. from the father’s care. During the same time that Ms. Michell carried out her work in early 2023, the mother again attempted to rally the support of professionals at the Winterberry Clinic to press forward her claims of abuse and neglect of C.M.M. by the father and his family members. She contacted the clinic on January 5, 2023, stating that she was anxious about C.M.M.’s previous sexual abuse and how it was affecting his weight and growth. She expressed that she wanted another doctor to see C.M.M. about these concerns, but that she was unable to make an appointment on her own because she did not have legal decision-making responsibility and both parents needed to attend any appointments. She asked for advice as to what next steps she could take to have C.M.M. seen medically in regard to her concerns, and whether he could be taken away from her if she brought him to McMaster Hospital to be examined and assessed again. She was directed to contact the Society about these inquiries.
136The mother also raised her concerns about C.M.M.’s weight and nutritional neglect by the father and the grandparents with Dr. Raza of the Winterberry Clinic during an appointment with C.M.M. on January 24, 2023. During that appointment, the mother once again discussed at length her historical grievances about the father and the grandparents and the bitter court battle. Dr. Raza noted that the mother’s speech was tangential and difficult to follow, as she jumped erratically from topic to topic. Her assessment was that the mother was experiencing stress and anxiety due to situational stressors. The mother scheduled a follow-up appointment with Dr. Raza on February 9, 2023 to explore these issues further, without the father’s knowledge or consent. The clinic advised the father of this appointment on January 25, 2023, and he expressed at that time that he had no concerns about C.M.M.’s growth and development, but he permitted the appointment to proceed without his involvement. Dr. Raza’s notes respecting her appointment with the mother and C.M.M. on February 9, 2023 indicate that the mother was upset that the father had been advised of the appointment, as she wished to conceal that information from him. They also establish that the mother had been regularly weighing C.M.M. when he left her care and when he returned from the father’s home. Dr. Raza noted that she did not have concerns about C.M.M.’s weight or development. She advised the mother to stop weighing C.M.M. on a regular basis and to return to the clinic in six months time for a weight check if she continued to have any concerns. Apart from that weight check, Dr. Raza directed the mother to only weigh C.M.M. in 2 to 3 months time.
137On July 25, 2023, the parties attended a Well Baby appointment for C.M.M. at the Winterberry Clinic with Dr. Zizzo. After the appointment, the mother approached a staff member of the clinic, Ms. Ashley Rodrigues, in the absence of the father and C.M.M., and began to discuss in detail yet again all of her historical complaints and claims starting from 2019. According to Ms. Rodrigues’ clinic note of that day, the mother alleged that both grandparents were involved in abuse and neglect of C.M.M., that the Society had done nothing about her concerns, and that she felt horrible leaving C.M.M. with the father and the grandparents because she felt he was at risk of suffering further abuse and neglect in their care. Ms. Rodrigues referred the mother to another staff member, Ms. Brittany Cameron, as she had been present for the appointment, and Ms. Cameron spent another 30 minutes talking to the mother about her concerns. Dr. Zizzo ended up joining the conversation with the mother. During that session, the mother once again raised all of her concerns about sexual abuse and neglect by members of the paternal family, and her grievances respecting the paternal grandparents dating all the way back from the early part of the parties’ relationship. She also reiterated at length her own personal history and trauma. The mother reported during this meeting that her main concern was that C.M.M. continued to reside with the father and paternal grandparents, despite the allegations that he had been sexually abused by them. She advised that she had told C.M.M. not to discuss the abuse with his friends as this could result in them judging him badly and create complications in his friendships. Dr. Zizzo and Ms. Cameron provided supportive listening but determined that all of the issues raised by the mother had previously been reported, documented and fully investigated.
138It was patently clear from the mother’s discussions with the Winterberry Clinic staff on July 25, 2023 that her intention was to gain professional support behind her abuse claims and to have C.M.M. removed from the father’s care and placed with her. Of additional concern, the mother indicated during this appointment that she had told C.M.M. not to speak to other children about what his paternal grandparents had done to him, and explained that talking about the allegations could result in his peers judging him and complicating his friendships with them. This was further evidence of how the mother conjured up fear and confusion in C.M.M.’s mind about what had occurred to him, his relationship with the grandparents, and the potential ripple effect of his grandparents’ alleged abuse on his personal friendships.
139On July 27 2023, Dr. Semenchenko of the Winterberry Clinic provided a letter to the Office of the Children’s Lawyer clinician, Ms. Alison Young, summarizing the clinic’s impressions of the parties based on her review of the clinic’s charts. She noted that the clinic did not have any concerns about the father’s functioning or parenting of C.M.M. However, there were concerns about the mother. Specifically, she noted that the clinical records revealed multiple concerns about the mother’s mental health and her fixation on certain aspects of C.M.M.’s wellbeing that may be misguided. As an example, Dr. Semenchenko indicated that the mother had expressed concerns about the child’s weight, and had been instructed by Dr. Raza to stop weighing him so frequently, but she had not followed this advice. She stated that the father had been observed attempting to co-parent with the mother, but that he was having difficulties establishing this.
XIV. THE OFFICE OF THE CHILDREN’S LAWYER REPORT: SEPTEMBER 2023
140The Office of the Children’s Lawyer Clinician Ms. Young held a disclosure meeting with the parties on September 3, 2023 upon completing her section 112 report. Based on her investigation, she recommended that the father be granted sole decision-making responsibility and primary residence of C.M.M., and that the mother’s parenting time with C.M.M. be reduced to alternate weekends from Friday after school until Sunday at 6:00 p.m. throughout the year including the summer school break. She further recommended that the mother address her mental health diagnoses and engage in a parenting program, and that C.M.M. be enrolled in play therapy. I discuss the grounds for Ms. Young’s recommendations in further detail in my analysis of the parenting issues below.
141The mother was clearly upset about the results of Ms. Young’s investigation. She was participating in counselling in the fall of 2023 with the Winterberry Clinic Nurse Practitioner Ms. Troup. During a session with Ms. Troup on October 30, 2023, she discussed the information that the clinic had provided to Ms. Young, and alleged that the professionals of the clinic were biased against her. She advised that she wanted corrections to be made to her medical chart, since making such alterations may assist her in advancing her parenting claims in court. As one example, she indicated that she did not agree with a psychiatric assessment of Dr. Moyst which indicated that she was suffering from borderline personality traits, and she asked that his report be removed from her chart. Ms. Troup advised her that this was not possible, but that she could request another psychiatric assessment if she wished, which the mother declined to do. Ms. Troup noted that the mother’s speech and thought content were tangential during this session.
XV. THE THIRD POLICE AND SOCIETY INVESTIGATION
142In November 2023, soon after the release of Ms. Young’s Office of the Children’s Lawyer report, the mother attended at the Ontario Provincial Police detachment in the Alliston area where her partner resided to report new allegations of sexual abuse by the paternal grandparents. The mother testified that she went to that police detachment rather than the Hamilton police because she felt that a different police department would look at the situation afresh. The Ontario Provincial Police advised the mother that she had to file the report in Hamilton because that was her place of residence.
143The mother did in fact contact the Hamilton Police on November 30, 2023, and this report opened another round of Society and police involvement with the family. Society worker Ms. Courtney Byrne was assigned to the case, and the Society has remained involved with the family on a consistent basis since that time. In her initial report to the police on November 30, 2023, the mother claimed that the grandparents had performed oral sex on C.M.M. several times while he was in their care. She further alleged that C.M.M. had recently provided additional information about incidents of abuse that had been previously investigated. She argued once again that C.M.M. was now older and more articulate, and that he had gained an improved ability to express what had happened to him in the past.
144At trial, the mother testified about the background behind this report to the police. She claimed that around this time, C.M.M. was expressing a wish to spend more time with her but that the father was not receptive to that idea. She also alleged that C.M.M. was telling her around this time that he was scared going to the father’s home, and that he was asking her to get him help. She described that she told C.M.M. she was trying to get help, but that he had to keep going to the father’s home and try to make the best of it. She stated that she and C.M.M. were sitting at the table at her house one day and talking about these issues, and C.M.M. suddenly stated “Grandma taped a phone to a wall and was licking my penis.” She claimed that she asked C.M.M. why he had not told her this before, and he allegedly responded by stating that he had just remembered. She asked him if he wanted her to go to the police to talk about this, and he reportedly told her yes. The mother indicated at trial that C.M.M. did not give a date for this particular event, but that she did not personally get the impression that it was anything new. She stated that she asked what colour the phone was, but that she could not recall what he had said.
145Detective Michael Dunham of the Hamilton Police was assigned to investigate the mother’s new allegation. He interviewed the mother on December 14, 2023, and Ms. Byrne observed from a separate room. Ms. Byrne testified at trial. Based on her evidence and the information in the Society’s records, I find that the mother once again discussed in great length her personal history of trauma and all of her historical claims and complaints about the father and his family during the interview. She frequently jumped from past to present circumstances in a disorganized manner and provided inconsistent historical information about her alleged claims of abuse. The police and the Society concluded that there was no new information that would support a verification of sexual abuse or laying criminal charges. Again, I conclude that the evidence fully supports this decision for several reasons. First, the mother indicated that she believed that C.M.M.’s statements this time around were simply an elaboration about incidents that he had already talked about in the past. His previous disclosures were not found to be credible and reliable, so the very foundation which this new information was based on was not a viable one. Furthermore, C.M.M. had previously stated that these incidents had occurred when he was 1 or 2 years of age. It is simply not plausible in my view that 5 or 6 years later he would suddenly remember more details on his own that he did not recall at the time when he was so young. In addition, the mother’s own description of the events that led her to making this new report raises concerns about her having a motive to raise new allegations, as they supposedly occurred in the context of the mother and C.M.M. wanting to spend more time together. The timing of the allegation was also suspect as it came on the heels of the release of the Office of the Children’s Lawyer report, which was not supportive of her case. Finally, the evidence raises concerns about the independence of C.M.M.’s statements. The mother’s own evidence indicates that she was continuing to engage in discussions with C.M.M. about the alleged historical abuse, and that she was reinforcing with C.M.M. the notion that he was not safe with the father and the grandparents by telling him repeatedly that she was trying to help him. Furthermore, it is apparent from her evidence that she once again asked C.M.M. probing questions about this alleged incident, including interrogating him about the colour of the phone. These concerns coupled with the mother’s history of coaching and leading C.M.M. about abuse allegations and the evidence about the mother’s mental health difficulties lead me to conclude that any statements that C.M.M. may have made to the mother were not reliable or credible.
XVI. THE MOTHER’S ONGOING EFFORTS TO ADVANCE HER ABUSE AND NEGLECT CLAIMS IN 2024 AND 2025
146Regrettably, the mother continued in 2024 upon her mission to find professional allies to support her sexual abuse claims and have C.M.M. removed from the father’s care. On January 11, 2024, she contacted the Kids Help Phone to report her concerns about sexual abuse. She called the Kids Help Phone again on January 17, 2024 to discuss her concerns further, and staff from that agency contacted the non-Catholic child protection agency, Hamilton Child and Family Supports, to relay the allegations that she had raised. The mother called the Kids Help Phone a third time on January 18, 2024, and on that occasion, she put C.M.M. on the phone to speak with the staff member. The mother was in the vicinity of C.M.M. when he spoke to the Kids Help Phone staff. The mother testified that she made these calls because C.M.M. was expressing fear again about going to the home of the father and the grandparents because of the alleged abuse and stated that he wished to get helped. Her view was that C.M.M. had once again recalled additional details about these alleged historical incidents, and that this new information should be considered as part of a new investigation into her concerns.
147During the call to the Kids Help Phone on January 18, 2024, C.M.M. discussed three alleged incidents of sexual abuse involving the grandparents, which he claimed had occurred when he was approximately 3 years old. This time frame is inconsistent with his previous statements in which he claimed that the alleged incidents had happened when he was 1 or 2 years of age. C.M.M.’s descriptions to the Kids Help Phone worker of these three purported incidents were as follows:
During the first incident, the grandfather took him to his room, put him under the covers and made his penis go up and down. He went to the basement and told his father, and the father told him to hide behind a toolbox. The grandfather then came downstairs and tried to find him without success, so he returned upstairs.
During the second incident, the grandmother came into his bedroom, taped her phone to the wall and recorded herself licking his penis. He told his father about this, but the father did not do anything to help him.
Respecting the third incident, C.M.M. stated that he was in the basement with his cousin playing lego, and the grandmother came and told him to come outside with her. She took him to the backyard, and the grandfather was there. The grandparents put him on a picnic bench, pulled down his pants and then Papa, referring to the grandfather, licked his penis. His grandmother then licked his penis as well and the grandparents took turns doing this to him. The grandparents also took pictures with their phone while they were doing this to him. His other cousin then came outside and saw what was happening, and he said “Don’t lick C.M.M.!” His father then came outside, saw what was happening and put C.M.M.’s pants on. The grandfather took the house keys from the father’s pocket, and both grandparents then locked themselves into the house. The father therefore helped C.M.M. hop the backyard fence, and he drove with C.M.M. to a hotel where they stayed the night. They returned to the house the following day, and the father smashed the front house window with a rock so that they could enter. When they got back into the house, the grandparents were watching television as if nothing had happened. C.M.M. stated that his father then had to call an insurance company to fix the window.
148Upon receiving these reports about the calls to the Kids Help Phone, the Society decided to initiate a new investigation due to the escalating situation. On January 19, 2024, Ms. Byrne advised the father that C.M.M. could not be left unsupervised with the grandparents until the investigation was completed. The Society also referred the matter to the police, but the police declined to open a criminal investigation. Sergeant Wiley advised Society Supervisor Ms. Maria Li on February 13, 2024 that this decision was reached because the alleged incidents had been fully investigated in the past, there was no reasonable sense of credibility or reliability to the allegations, and the police had serious concerns that the mother was using various different avenues to obtain support for her abuse allegations.
149Despite these concerns on the part of the police, the Society determined that Ms. Byrne should interview C.M.M. once again to determine if there was any significant new and credible information about the alleged abuse. Ms. Byrne interviewed C.M.M. about the allegations at his school on February 15, 2024. During this interview, C.M.M. talked about the three incidents that he had described to the Kids Help Phone. With respect to the alleged incident that had occurred in the grandparents’ backyard, C.M.M. disclosed this time that while he and his father were driving to the hotel, they drove over a red bridge with cables and lanterns on it. C.M.M. alleged that the father knew about all of these incidents and that he did not do anything to stop them. After discussing the third alleged incident, C.M.M stated spontaneously “I also love my mom.” C.M.M. also stated that he was scared to go back to his father’s home. Ms. Byrne asked if he wanted to talk about anything else, and he said he wanted to talk about his mother. He stated that he loved her, that she listens to him and plays with him, and that she had arranged a trip to Carnival in Quebec City for him.
150Ms. Byrne interviewed the father and the grandparents on February 21, 2024. They all insisted that there was no truth to any of C.M.M.’s statements. They all denied these allegations at trial as well. The father testified that he has only taken C.M.M. to hotels on two occasions, when they visited Niagara Falls in the summer of 2023 and in March 2024. He had no recollection of ever taking C.M.M. over a bridge with lanterns and cables. He acknowledged that there was a fence around the grandparents’ backyard, but denied that he and C.M.M. had ever jumped it. He and the grandparents testified that they have never had any broken windows or submitted any insurance claims relating to windows in the house.
151The general context respecting the mother’s mental health leading up to and during this investigation is a relevant consideration. On February 29, 2024, the principal of St. Margaret Mary, Ms. Coletto, contacted the Society to relay concerns about the mother’s mental health and judgment. Ms. Coletto testified and discussed these concerns at trial. She stated that there was an incident in the fall of 2023 when the mother had inappropriately approached an educational assistant with her car while the assistant was walking near the school. This educational assistant was not involved with C.M.M.’s education at the time. Ms. Coletto relayed that the mother spoke to the educational assistant about her stressful financial circumstances and her efforts to address her mortgage challenges, which was concerning given that the assistant was not involved in the family’s life or the mother’s personal financial situation in any way. Ms. Coletto relayed that there was another incident that raised worries about the mother’s mental health on February 29, 2024. She testified that the mother attended the school that day and complained that the father and grandmother were harassing her through C.M.M.’s school agenda by crossing out her name and substituting theirs. She also made reference to the grandmother allegedly forging her name in the agenda book. The father and grandmother testified that they would cross out the mother’s name when the mother signed her name on days when the father had C.M.M. in his care, and that on a couple of occasions, the grandmother wrote the mother’s name in the correct spot when she had C.M.M. in her care. They explained that they did so to ensure that there was a clear record of who was responsible for ensuring that the child’s homework was completed each day. The evidence supports their claims on this issue, and their explanation was reasonable. Ms. Coletto testified that the mother had attended the police station before arriving at the school on February 29, 2024 to report harassment by the father and the grandmother and forgery of her name by the grandmother. The police did not take any action or lay charges.
152According to Ms. Coletto, the mother presented as extreme, irrational and disjointed during the meeting with her at the school office on February 29, 2024, which lasted over an hour. She testified that the mother’s pretence for attending at the office was to discuss her complaints relating to C.M.M.’s school agenda book, but that she was unable to remain focussed on that issue. Instead, the mother discussed at length her history of personal trauma, her litany of historical and ongoing complaints about the father and the grandparents including her concerns about sexual abuse, and her perception that the school officials could not understand what she had been through. Ms. Coletto recalled that she attempted many times to redirect the mother to her complaints respecting the agenda, without success. As a result of her concerns respecting the mother’s mental health and challenging interactions with staff, Ms. Coletto implemented a policy that staff members could only meet with the mother with another person present to act as a witness.
153Ms. Byrne advised the mother on March 1, 2024 that the police would not be interviewing C.M.M. or undertaking any further investigation, and that they were not laying any charges. The mother was extremely angry and heightened during this call. She reiterated her list of historical concerns about abuse and neglect by the father and the grandparents towards her and C.M.M. which had been fully explored by the Society and not verified. It was clear from her conversation with Ms. Byrne that she wanted C.M.M. to be removed from the father’s care. She stated that she knew C.M.M. had been abused, that she did not care about the outcome of the police and Society investigations, and that she would not stop advancing her concerns of abuse and neglect and advocating for C.M.M.’s safety from the father and the grandparents until C.M.M. was out of their home. In this regard, she made it very clear that she did not care about the Society’s conclusions about C.M.M.’s statements, because “kids don’t make this stuff up.” She stressed that she had reached out to other child protection agencies for help for the child, because she felt that the Society was biased and corrupt. During this conversation, she raised concerns that the father, his family members and school professionals at C.M.M.’s school were involved in a child trafficking, sexual abuse and pornography ring, implying that C.M.M. had fallen victim to the ring’s nefarious activities. I note that she repeated this allegation during another meeting with Ms. Byrne on March 19, 2024. She further surmised during the call with Ms. Byrne on March 1, 2024 that the grandparents and the uncle were involved in this ring so that they could earn some extra money to get them out of dire financial straits. When Ms. Byrne attempted to clarify what she meant by these allegations during the conversation on March 1, 2024, the mother replied stating “how covert, things I see that workers won’t see.” She explained that she had done some research and had read an article involving grandparents in the United States who had retired early and had been approached by a stranger to sexually abuse their grandchildren for money and to post pornographic videos of the children online. She then embarked upon a convoluted and confusing discussion about various unrelated issues, including her claim that the grandmother was scribbling her name out in C.M.M.’s school agenda, and various acquaintances of the grandparents who had allegedly made claims of misconduct against them. In support of her concerns about the paternal family members sexually exploiting C.M.M. through a child trafficking, sexual abuse and pornography ring, she once again raised her concerns about the grandparents having photographs of naked children, which had already been formally investigated by the agency. She further claimed that C.M.M. had resumed twisting his nipples repeatedly, and that he had stated that the grandfather and uncle were antagonizing him to do this in front of her. The mother also reiterated her allegation that the father and his family had numerous connections within the child protection system, the courts and the police, implying that the entire system was protecting the paternal family and was biased against her. This is an allegation that the mother has made to numerous professionals over the years, and which she also raised in her testimony at trial. However, there is no evidence to support her theory about alleged family connections which resulted in bias in the handling of this case.
154Ms. Byrne interviewed the uncle on March 5, 2024 about the claim that he had taught C.M.M. to twist his nipples. The uncle reported that he had seen C.M.M. doing this, but that the child had told him that the mother’s partner M.R had taught him that behaviour. During a subsequent conversation between M.R. and Ms. Byrne on March 6, 2024, M.R. acknowledged that he had shown C.M.M. how to do a “purple nurple” by twisting his nipple, which he described as a type of pinching and tickling game that he engaged in with his own son as well.
155The mother called the coverage Society worker, Ms. Kate Berry, on March 18, 2024 to reiterate all of her concerns of abuse and neglect by the father and grandparents once again. She continued to complain about C.M.M.’s weight and nutritional neglect by the father and the grandparents. She added that they were also neglecting C.M.M.’s skin, resulting in his cheeks allegedly looking like sandpaper.
156Society worker Ms. Byrne investigated all of the mother’s concerns outlined above and did not verify any of them. She advised the parties on March 18, 2024 and March 19, 2024 that the Society was lifting the direction that the grandparents’ contact with C.M.M. be supervised.
157During this most recent Society investigation, the mother continued to push her allegations of abuse and neglect by the father and his family members with various other community professionals, including various health professionals at the Winterberry Clinic. She continued in her supportive counselling sessions with Ms. Crystal Troup in 2024 and her allegations were a regular feature of her discussions in those sessions. During a session with Ms. Troup on May 27, 2024, she expressed upset about how the father had handled a first communion gift for C.M.M. She claimed that he had given the child $200.00 as a gift but had then asked to get $150.00 of these funds back to purchase C.M.M. a toy train. She felt that this was somehow criminal in nature and she stated that she had called Crime Stoppers on the father. The father testified that C.M.M. had told him that he wanted to use his gift money to purchase the train set, and that this was the explanation for the return of $150.00 of the funds to him. During a subsequent session with Ms. Troup on June 24, 2024, the mother again spoke with Ms. Troup about her abuse allegations involving C.M.M. and insisted that the child liked talking to professionals about his situation.
158The mother also continued to advance her allegations of abuse and neglect of C.M.M. during appointments with a Winterberry Nurse Practitioner, Ms. Dinisha Patel, during the spring of 2024. In an appointment between both parents and Ms. Patel on March 18, 2024, she again advanced her concerns about nutritional neglect of C.M.M. while in the father’s care, accusing the father and grandparents once again of not feeding him properly. Ms. Patel testified at trial. I found her to be a highly credible and reliable witness. She indicated in her clinical record respecting the March 18, 2024 appointment that the mother had great difficulty during the session focussing on C.M.M.’s needs, and instead spent considerable time talking about herself and her situation. She testified that during this appointment, she observed the mother talking over the father when he attempted to answer any questions about C.M.M.’s health. During that session, Ms. Patel advised the parties of the process for making a self referral for C.M.M. to receive counselling through the Lynwood Charlton Centre. Ms. Patel saw the parents and C.M.M. again on April 3, 2024 for a general checkup of the child, based on the concerns that the mother had raised about his weight on March 18, 2024. Ms. Patel weighed C.M.M. and advised the parties that she did not have any concerns about his weight. She observed that his skin was a bit dry on his cheek, but that she did not have concerns about this and she simply recommended some skin cream products. She testified that C.M.M. was also meeting all of his general developmental milestones as of that time. Ms. Patel documented in her record respecting the April 3, 2024 appointment and reiterated at trial that she did have some concerns about the nature of C.M.M.’s interactions with the mother during the appointment. Specifically, she observed that C.M.M. seemed to be unusually focussed on pleasing the mother before answering any questions, as evidenced by him making eye contact with her before responding, repeatedly saying “I love you Mommy,” and crawling on her lap for cuddles several times.
159Ms. Patel also documented and testified about her concerns about the mother’s mental health based on her observations during the March 18, 2024 and April 3, 2024 appointments. She explained that during the March 18, 2024 session, she clearly described to the mother the intended parameters of the April 3, 2024 appointment, because the mother had attempted to raise numerous historical concerns about the paternal family members and seemed to be picking a fight with them about C.M.M. Nonetheless, after the April 3, 2024 appointment, the mother attempted to approach Ms. Patel on her own to relay that C.M.M. was allegedly saying he did not feel safe in the care of the father and the grandparents. Ms. Patel advised her to make another appointment if necessary to discuss these concerns, as she had already gone 15 minutes over the allotted appointment time and she was behind with her other patients. She indicated that the mother became angry and agitated in response to this direction, claiming in a heightened state that nobody could help her with her abused child, not the doctors, the nurses, the lawyers, the Premier of Ontario or the Society workers. Subsequently, the mother called the Winterberry Clinic on April 16 2024 and reported in a whispering voice that there was alleged sexual abuse towards C.M.M. and she believed that the father had wrongfully manipulated the referral form for Lynwood Charlton Hall. The evidence does not support those allegations.
160On May 22, 2024, the mother returned to the Winterberry Clinic and met with another Nurse Practitioner, Ms. Courtney Dunlop. She spoke again in great detail about all of her concerns regarding alleged physical and sexual abuse and neglect of C.M.M. by the father and the grandparents. She advised that she was not taking any medication for stress or anxiety because she insisted that there was nothing wrong with her. However, she asked for and was granted a medical note to support a leave of absence from work until June 13, 2024 due to her stress levels.
161The mother also spoke about her abuse and neglect claims in detail with Dr. Taras Semenchenko of the Winterberry Clinic on August 20, 2024 and August 29, 2024. She shared full details respecting her historical family trauma and her allegations of abuse and neglect by the father and the grandparents. The mother requested a medical note in support of another leave of absence from work, as she would be attending court for the trial and felt she would be experiencing increased stress as a result. Dr. Semenchenko provided a note dated August 29, 2024 indicating that she needed to be off work until September 13, 2024. I highlight that although the mother asked for this note to allow her to manage the trial, this is actually the medical note that she submitted to me at the outset of trial in support of her request to adjourn the trial.
162During the Society’s investigation in 2024, the mother also attended with C.M.M. at the Hospital for Sick Children in Toronto on April 6, 2024 in an attempt to advance her claims of abuse, advocate for C.M.M.’s safety and obtain professional support for her abuse claims. She did so without the father’s prior knowledge or consent, and she did not advise him after the fact about this attendance. The mother relayed her sexual abuse claims to hospital staff in the Emergency Department, and the staff notified Dr. Cho of the hospital’s Suspected Child Abuse and Neglect program (“SCAN”) to seek her assistance. Dr. Cho contacted the Society on April 8, 2024 to discuss her concerns about this attendance. She indicated that the mother had also brought C.M.M. to the SCAN unit in 2022 to discuss her concerns about C.M.M., but that the unit had determined at the time that no action was required. During her attendance at the hospital on April 6, 2024, the mother again spoke at length about her historical abuse and neglect allegations and concerns respecting C.M.M. which she felt McMaster Hospital and the Society were not fully appreciating or taking seriously. The mother also told Dr. Cho that the CAAP team at McMaster Hospital had never been involved with C.M.M., which was false information since CAAP had assessed him for possible abuse in 2019. Dr. Cho advised that she called the Society because she felt that the mother’s presentation and the information that she had provided were unusual. Dr. Cho advised that there was no further role for the hospital since all of the mother’s allegations had been previously investigated. She also relayed her concerns that the mother was seeking medical attention regarding issues and concerns that had been fully investigated in the past. She was worried that the mother’s behaviour raised concerns that C.M.M. could be unnecessarily assessed and physically evaluated by medical professionals at other hospitals or clinics again in the future based on the mother’s repetitive allegations.
163Following her visit to the Hospital for Sick Children, the mother persisted in pushing her claims of abuse and neglect of C.M.M. to the Ministry of Community and Social Services and Legal Aid Ontario. On April 12, 2024, she sent the Ministry of Community and Social Services a formal complaint letter. In that correspondence, she referenced her allegations of sexual abuse towards C.M.M., claimed that the handling of the claims by the Society and the police had illuminated critical shortcomings within the current support system, and complained about the delay involved in obtaining counselling for C.M.M. respecting the abuse allegations. She claimed that C.M.M. was experiencing ongoing fear and trauma due to his interactions with the alleged perpetrators, and that he should not be forced to endure prolonged fear and trauma due to systemic failures. She also complained that politicians and law enforcement officials had deemed the family situation to be “horrific” and had questioned why C.M.M. had been left in a precarious situation, a claim that is not supported at all by the extensive evidence adduced at trial. The Ministry responded to her on April 20, 2024, directing her back to the Society and advising her about the complaints process respecting the actions of Children’s Aid Societies under the Child Youth and Family Services Act 2017.
164On May 21, 2024, the mother sent correspondence to the Legal Aid Ontario Review Board seeking a review of Legal Aid Ontario’s denial of her application for a Legal Aid certificate. In that letter, she argued that she desperately needed legal assistance because representing herself would involve “directly confronting individuals I believe have sexually abused my child.” She stated that the thought of facing her child’s abusers in court without legal support was devastating, and that it would exacerbate her existing trauma. She also claimed that there was mention of an ongoing investigation into her abuse claims in court documents filed by the Society, and that she was “currently uninformed about its status.” As I have previously noted, that was a clear misrepresentation of the facts, as Ms. Byrne had advised her on March 1, 2024 that there would not be a new police investigation, and she had informed her on March 19, 2024 that the Society was lifting the supervision requirement in relation to the grandparents since it had not verified any protection concerns.
165The mother also brought C.M.M.’s after school care early childhood educator, Ms. Khazima Khazima, into the fray respecting her allegations of abuse and neglect of C.M.M. by the paternal family members. Ms. Khazima testified at trial, and I found her to be forthright, honest and reliable. She was C.M.M.’s after-school caregiver from September 2023 until June 2024. Based on Ms. Khazima’s evidence and the Society’s case-notes, I find that there was an incident in mid April 2024 when the mother came to pick C.M.M. up from the after-school daycare program. The mother had not seen C.M.M. for several days prior to this pickup, and she asked C.M.M. how his time with his father had gone. Ms. Khazima was working on paperwork at the time and did not hear C.M.M.’s response. The mother then asked Ms. Khazima if she had heard C.M.M.’s response, and she replied that she had not. The mother then directed C.M.M. to tell Ms. Khazima what he had just said, reassuring him that he could tell his teacher what he feared. C.M.M. then said that he was scared and did not want to go to his father’s home. Ms. Khazima asked him why, and C.M.M. explained that his grandfather had touched his private areas and had wanted C.M.M. to touch his private area. Ms. Khazima testified that she did not report the allegations to the Society at that time, as she had never observed C.M.M. to be afraid in the presence of his father or grandfather and she wanted to determine if C.M.M. would approach her independently to make any disclosures. However, the mother subsequently asked her if she had reported C.M.M.’s statements to the Society. Following that discussion with the mother, Ms. Khazima spoke to her supervisor, Ms. Nicole MacNeil, and after further consultation with Ms. MacNeil’s supervisor, Ms. Khazima called the Society to report the incident on April 23 2024.
166Ms. Khazima also testified that the mother sometimes presented as emotional when C.M.M. greeted her at pickup time. When Ms. Khazima asked her why, the mother spoke in C.M.M.’s presence about her personal stressors and her wish that she could do more to help C.M.M. with what he was going through. On one such occasion, she observed C.M.M. reach up to the mother, rub her back to comfort her and wipe her tears away with his hand.
167Ms. Khazima connected with C.M.M.’s teacher, Ms. Janet Sieminski, after contacting the Society on April 23, 2024, to suggest that she monitor C.M.M. for any concerns. Ms. Sieminski contacted the Society on April 25 2024 to report that she was doing check-ins with C.M.M. to see how he was doing, and that C.M.M. had spontaneously disclosed several of the historical sexual abuse allegations that had been previously investigated by the Society.
168Subsequently, on May 26 2024, the Society received a report from a staff member of Child and Adolescent Services that the mother had brought C.M.M. to that agency that day and reported incidents of the grandparents having sexually abused C.M.M. The mother had advised the staff member that she had reported the abuse to the Society, hospitals, doctors and the police, but that nobody was doing anything about her concerns. This was clearly a false description of the professional response to the mother’s allegations of abuse and neglect against C.M.M.
169The Society’s records indicate that the mother also spoke with a staff member named Melanie from the Lynwood Charlton Hall program in late May 2024 for two hours about her concerns about sexual abuse and neglect of C.M.M. and her long list of historical and current grievances respecting the father and the grandparents. She alleged that the paternal family had burned C.M.M. recently, but when Melanie explored this claim further, she determined that C.M.M. had been playing with a sparkler while in the father’s care, and that C.M.M. had accidentally dropped the sparkler on his leg. The mother also advised Melanie that she had given the Society poor google reviews, and that she had actively reached out to other individuals who had provided only one-star reviews of the Society. Melanie called the Society on June 3, 2024 to advise of the mother’s numerous complaints and allegations. She advised Ms. Byrne that she had concerns about the mother’s mental health, as there appeared to be many complex moving parts to her discussion, and the mother was unable to concretely describe any current concerns.
170In response to all of these developments, Society worker Ms. Byrne interviewed C.M.M. again at his school on May 29, 2024. During that interview, C.M.M. stated that he felt scared at the home of his grandparents, and he described the alleged incidents of sexual abuse as having occurred when he was 3, 4 or 5 years of age. However, this did not make sense, as he made his initial disclosures when he was only 2.5 years of age. It was also inconsistent with what C.M.M. had previously stated respecting the timing of the alleged incidents. He claimed that his father had witnessed everything that he had previously disclosed. Ms. Byrne asked C.M.M. what he felt should happen, and he stated that he felt the grandparents should go to jail. He talked about having gone to the Hospital for Sick Children and stated that he did not want his father to know about that visit to the hospital “in case it gets Mom into trouble.” Ms. Byrne also asked C.M.M. if he had been hurt by a sparkler, as the mother had reported on May 23, 2024 that he had burned his leg with a sparkler while in the father’s care and that neither the father or the grandparents had attended to this injury appropriately. C.M.M. confirmed that he had been playing with a sparkler and that he had dropped it onto his leg, but denied having been injured in any way. Ms. Byrne also asked C.M.M. whether his father or grandfather helped him clean his bottom while toileting, as the mother had raised this concern as well. C.M.M. advised that they did sometimes help him to wipe his bum after toileting. Ms. Byrne subsequently spoke with the father on June 14, 2024, and the father advised that C.M.M. sometimes did not wipe his bum properly after going to the washroom, and that he sometimes asked him and the grandfather for help in cleaning himself up. Ms. Byrne provided suggestions to address this issue, including obtaining wipes to help C.M.M. clean himself, and only intervening if C.M.M. asked for assistance. The father was receptive to this input.
171Again, the overall context respecting the mother’s mental health during the spring of 2024 is a relevant consideration in assessing the various allegations that she was making to professionals. As noted above, both Ms. Patel and the staff member from Lynwood Charlton Hall noted concerns regarding her mental health status. Dr. Cho of the Hospital for Sick Children found the mother’s presentation and attendance at that hospital on April 6, 2024 to be unusual in nature. The records of Ms. Byrne also reveal serious concerns about the mother’s general mental health, including her ongoing refusal to accept the assessments and impressions of numerous community professionals about the family situation. During text messages that the mother sent on June 3 and 4, 2024, she engaged in extremely lengthy, rambling and disjointed discussions going back and forth about various issues in an attempt to paint the father in a very bad light with the Society. Her thoughts were in many respects random and non-sensical in nature, and she jumped around from topic to topic in a manner that rendered it exceedingly difficult to follow her discussions. Her comments included the following:
She alleged that she had received some pushy App Close messages from the father over the previous weekend, and that she had therefore contacted an abused women’s Help Line as a result. However, a careful review of the parties’ messages to each other during that time frame did not reveal any evidence of aggression or bullying. The parties did engage in discussions about that father’s request for financial disclosure, and when the mother disagreed with his request, he simply advised that he would instruct his counsel to bring a disclosure motion.
She accused the father of having mental health problems.
She discussed at length her claims that the father had engaged in extensive financial abuse towards her during the marriage. As I will discuss later in these Reasons, her claims of financially abusive behaviour by the father are completely unsubstantiated on the evidence.
She discussed in detail her disapproval of how the father had handled C.M.M.’s communion gift, and complained about where the father was taking the child for haircuts.
She complained about historical issues respecting the father’s use of alcohol, despite the fact that there had been no evidence of concerns respecting his drinking since 2018. She also suggested that the father may have been drinking prior to the domestic incident that occurred on November 20, 2017, despite there being no evidence whatsoever in support of that claim.
She suggested that the father had an incessant need for money, and surmised that it could be related to gambling and that this could have something to do with the alleged sexual abuse of C.M.M. She made a random reference to the grandfather allegedly having a bookie for horse racing.
She talked about the father having recently taken some money out of the bank while C.M.M. was with him, that C.M.M. did not see him spend the money, and that the child had told her that this seemed odd.
She complained about the Society telling the father that about her attendance with C.M.M. at the Hospital for Sick Children, stating that this hospital visit should have been “private and safe for C.M.M.”
She persisted in her allegations of physical abuse by the father towards her, which I will address in further detail later but which have not been established on the evidence.
She also complained at length about the Society and other community professionals, stating that they had all mishandled her case and the claims involving C.M.M. She alleged that C.M.M. had suffered sexual abuse, physical abuse, witnessed violence, and suffered neglect in the father’s household, and that the child was not being given a voice in these matters, and she questioned why nobody was hearing him or helping him swiftly.
She claimed that she had never been suicidal, and that her suicidal comments in the past had been attributable to the father being “crazy making.”
She described the Society as being “the wall that keeps C.M.M. and I from getting the help and humane treatment that we deserve.”
She insisted that the system had been biased in favour of the father and his family, and that she was being treated unfairly.
She blamed the Society for the financial “domino effect” on her resulting from the removal of C.M.M. from her care, and complained that it had not shown any remorse for its actions.
She made random comments about the grandmother having too much involvement with C.M.M., and added an arbitrary comment about the grandmother having “even talked a Sears salesman out of his commission.”
She talked at length about her previous Society worker Ms. Kaur, claiming that they worked well together until Ms. Kaur removed C.M.M. from her care.
She asserted that C.M.M. was in danger in the care of the father and the grandparents “more than anyone can appreciate.”
172The Society worker Ms. Byrne and her supervisor Ms. Jacquie Shoreman met with the mother on June 11, 2024 to update her about the Society’s investigations and assessment of the family situation. They advised the mother that the Society was not verifying any protection concerns respecting the father or the grandparents, but that it was verifying risk of emotional harm to C.M.M. due to the mother’s behaviour. Ms. Shoreman advised the mother that the Society was worried about the impact of her beliefs that C.M.M. had been abused on the child’s emotional wellbeing, and that her continued advancement of her allegations was placing C.M.M. at risk of further emotional harm. The mother clearly rejected the Society’s assessment of the situation. She spoke about having consulted with a sexual abuse expert in North Carolina as well as someone from the website mosaic.net, and how those professionals could not believe how things had been handled by the Society and the police. She insisted that she was merely being an advocate to protect C.M.M., that she was continuing to collect pieces of the puzzle to try to solve it, and that she would continue trying to get the help that C.M.M. needed. She then began to list once again her numerous complaints about the father and the grandparents, and then jumped to a discussion about her historical childhood trauma. She raised concerns about the father’s mental health. When Ms. Shoreman inquired about the mother’s mental health, she denied having any issues or diagnoses from any psychiatrists and confirmed that she was not taking any medications in relation to her mental health. Ms. Byrne and Ms. Shoreman informed the mother that the Society’s file would remain open due to the ongoing concerns. The Society was still involved with the family as of the conclusion of the trial. Near the end of this meeting, the mother advised that she understood C.M.M. had spoken to enough people about his allegations and that she would not continue to “move this forward.”
173Based on the evidence of Ms. Byrne and the Society’s records, I find that as of July 2024, the Society considered the risk in relation to C.M.M.’s safety as being high based on the family’s significant Child Protection history and the mother’s longstanding but unsubstantiated allegations of abuse. The verification and outcome case-note of Ms. Shoreman dated July 12, 2024 includes the following important points:
The mother had contacted the Society and many other community resources making allegations that C.M.M. was sexually abused by the paternal grandparents, despite those allegations having not been verified.
CM.M. at that point truly believed that the alleged sexual abuse had occurred.
There was concern that C.M.M. was being influenced by the mother in relation to his statements of abuse, that the child’s allegations lacked credibility, and that the mother would continue to advance her allegations through various avenues and advocate for C.M.M. to obtain sexual abuse services.
Several community professionals, including those from C.M.M.’s school, professionals from the Winterberry Clinic, the Office of the Children’s Lawyer clinician Ms. Young, and Dr. Cho, had shared the Society’s worries about their interactions with the mother and their concerns about her mental health.
The mother had not been forthcoming with information about her mental health history and status.
There was ongoing conflict between the parties because of the numerous allegations made by the mother, which could also have a negative impact on C.M.M.’s wellbeing.
The allegations of sexual abuse by the father and paternal grandparents were not verified.
The Society did not verify any concerns about the father’s ability to protect C.M.M. and meet his needs. The Society also noted that “there was no concerning information in which C.M.M. would need to be protected from the paternal grandparents.”
The Society concluded that C.M.M. was demonstrating evidence of harm due to the family dynamics and conflict, in the form of stomach aches and changes in his behaviour.
174The mother claimed at trial that she signed a document with the Society at some point in the spring of 2024 undertaking not to advance her allegations of abuse any further and not to engage in discussions with C.M.M. about the claims. She also insisted that she had complied with that undertaking fully since that time. However, there is no evidence of her having signed any such document with the Society at that time. As I have indicated, she advised Ms. Byrne and Ms. Shoreman during their meeting with her on June 11, 2024 that she would stop pushing her complaints and allegations forward, but there is no indication that she signed any agreement with the agency that day or at any point. Furthermore, she did not keep her promise to Ms. Byrne and Ms. Shoreman to refrain from pressing her various claims against the father and the grandparents. It is patently clear that she has still not accepted the Society’s assessment respecting her various complaints, and that she has in fact continued to advance her numerous claims of abuse and neglect since June 11, 2024. On June 20, 2024, only 9 days after she made this promise to Ms. Byrne and Ms. Shoreman, she sent Ms. Byrne a text which raised ongoing concerns about her mental health, and which demonstrated that she had no intention whatsoever of putting her complaints and allegations against the father and his family members to rest. This text was an extremely long-winded and confusing message in which she embarked once again upon a disjointed diatribe about numerous issues, including her family background, her many positive accomplishments and positive employment history, her claim that she did not have mental health problems, and her long history of stable functioning. She discussed at length her visits with C.M.M. and her concerns that he was spending more time in a dysfunctional home where she felt he was being emotionally neglected and sexually abused. She then moved on to her history of achievements during her Graphic Design program many years earlier and her skills as an aesthetician, including her being able to paint the Mona Lisa image on fingernails. She reiterated her usual litany of complaints about members of the paternal family. She insisted that she has a right to advocate for her son, and that it breaks her heart that he is still living in a home where he has been abused. She also spoke at length about concerns that the paternal grandmother was isolating one of C.M.M.’s younger cousins from the other children and queried why she would be doing that, suggesting that she was engaging in inappropriate behaviour towards that child as well. In addition, she sent Ms. Byrne numerous documents in support of her claims about her positive functioning and mental health, including historical reference letters, certificates from various programs that she had participated in, a certificate of completion regarding her studies, and a picture of a Mona Lisa image that she had painted. She explained that the reason for these attachments was to prove that she was a good and well functioning mother, and that the Society had not taken any responsibility for the aftermath of its mishandling of her case. She also noted that she was considering contacting the Bishop of Hamilton regarding her complaints about how the Society had mistreated her.
175The mother also continued to discuss her abuse and neglect allegations with professionals at the Winterberry Clinic after the meeting with Ms. Byrne and Ms. Shoreman on June 11, 2024. As noted above, she continued to discuss her various complaints and accusations against the father and the grandparents in great detail with Ms. Troup and Dr. Semenchenko after that time.
176As further evidence of the mother’s clear intention to continue on her mission to secure support from third parties for her allegations of abuse and neglect, on July 3, 2024, the mother disclosed to the owner of the speech therapy clinic where she was taking C.M.M., Ms. Karri Olds-Rhinds, that the paternal grandparents had touched and licked C.M.M.’s penis. She also shared her concerns that C.M.M. continued to reside with the father and grandparents despite the alleged abuse. This discussion prompted Ms. Olds-Rhinds to contact the Society to report the mother’s statements.
177The mother’s former tenant, Ms. S.M., also gave evidence relevant to the mother’s past and ongoing involvement of C.M.M. in discussions about alleged abuse by the grandparents. She testified that since January or February 2024, she has observed and heard the mother in her residence talking to C.M.M. once every 2 to 3 months about various issues involving the father and his family members. These discussions included asking C.M.M. how he feels about living with his father, whether he would be sad if he did not live there, whether he wanted to call the Kids Help Phone to discuss the sexual abuse allegations and comforting him after he made the call to the Kids Help Phone because of his distress. S.M. also recalled incidents since January 2024 when the mother had asked C.M.M. spontaneously, without any connection to any prior discussions, about whether the abuse allegations that he has talked about were actually true, and asking C.M.M. for more details about what happened during the alleged incidents of abuse. S.M. continued to reside with the mother until shortly before the sale of the Upper Gage property in February 2025.
178The chronology set out above references various professionals who the mother reached out to in her attempt to obtain allies to her cause of proving her allegations of abuse and neglect by the father and the grandparents. By way of summary, these include child abuse professionals in two American states, various Winterberry Clinic professionals, Dr. Almeida, the Women’s Centre, the Kids Help Phone, the Hospital for Sick Children on two occasions, Child and Adolescent Services, Lynwood Charlton staff, the Premier of Ontario, the Ministry of Community and Social Services, Legal Aid Ontario and the owner of the clinic where she received massage therapy. However, at trial, the mother acknowledged having reached out to many additional professionals to seek support in proving the allegations against the father and the grandparents, including the Bishop of Hamilton’s office 3 times, the Office of the Ombudsman 2 or 3 times, local politicians, the premier of Ontario, the mayor of Hamilton, a former Member of Provincial Parliament for Ontario, a federal Member of Parliament, Child Protection officials in other areas of Ontario and in Alberta, British Columbia and some other provinces, lawyers specializing in child abuse, the federal government and the Royal Canadian Mounted Police. She also reached out to many child advocacy organizations throughout Canada. She described spending extensive time online and “spinning her wheels” looking for any person or agency that could offer her better help and support to protect C.M.M, but feeling like her efforts had been a complete runaround. I find that she continued to engage in many of these advocacy efforts after the meeting at the Society on June 11, 2024. Moreover, the mother acknowledged on cross examination at trial that she will continue to advocate to have C.M.M. removed from the home of the father and the paternal grandparents “until C.M.M. stops being in fear being there and we get adequate help.” In regard to her allegations of abuse and neglect, and the intervention of various professionals to address those claims, she stated that she struggles to understand “this dance around everything that is right in front of people.”
PART 5: OVERVIEW OF THE FAMILY LAW PROCEEDINGS
179I turn now to an overview of the Family Law proceeding. This overview is also detailed, as it is relevant to the concerns about the mother’s mental health and general functioning, and it will also ultimately be highly relevant to the issue of costs.
180As I have indicated, the father commenced his application on September 3, 2021. He requested a divorce, sole decision-making responsibility and primary residence respecting C.M.M., and parenting time for the mother in his discretion. He also sought child support from the mother commencing May 1, 2019, an order for proportionate sharing of section 7 expenses, an order that there be no spousal support payable by him, and an order for equalization of the parties’ net family properties. The father also requested the right to travel with C.M.M. and to obtain important documents respecting the child without the mother’s consent, as well as relief respecting benefits for C.M.M. and life insurance to secure child support.
181The mother filed an Answer and Claim in this proceeding dated October 18, 2021. She sought a divorce, sole decision-making responsibility and primary residence respecting C.M.M., child support for the periods when C.M.M. was in her primary care, proportional contribution to section 7 expenses, spousal support, and equalization of the parties’ net family properties. Her Answer and Claim did not include a claim that the father had gifted her a portion of his share of the net proceeds from the sale of the matrimonial home, or a claim that she pay either no child support or a reduced amount based on undue hardship.
182The application proceeded to a case conference before Pazaratz J. on January 27, 2022. On that date, Pazaratz J. referred the case to the Office of the Children’s Lawyer, severed the divorce from the corollary relief issues and adjourned the application to the timelines. No order was made for costs in connection with the case conference. Unfortunately, the Office of the Children’s Lawyer declined to accept the case in February 2022.
183Walters J. presided over a settlement conference on October 25, 2022. No progress was made in resolving the issues, but Walters J. made an order requiring the parties to exchange proof of their respective assets and debts as set out in their Financial Statements within 30 days, directing the father to produce an updated Financial Statement within 30 days, and requiring him to also request a family law valuation of his pension within that timeline. She adjourned the case to a trial scheduling conference on January 19, 2023. Walters J. did not address the issue of costs in relation to the settlement conference.
184At the trial scheduling conference on January 29, 2023, Walters J. decided that the conference could not proceed because the mother did not provide her Trial Scheduling Endorsement Form until the morning of the conference. She ordered the mother to pay costs in the amount of $200.00 in connection with the conference because of her failure to properly prepare for the appearance. The case was set for a new trial scheduling conference on March 23, 2023.
185McLaren J. presided over the second trial scheduling conference on March 23, 2023. She concluded that a second referral to the Office of the Children’s Lawyer was warranted based on the facts of the case, and she made that referral. On May 8, 2023, the parties and both of their counsel appeared before McLaren again, and the parties confirmed that the Office of the Children’s Lawyer had accepted the referral. McLaren J. therefore removed the case from the trial list.
186The parties executed partial final Minutes of Settlement in May 2023 addressing parenting time during holidays and special occasions and issues respecting travel with C.M.M. The father signed the Minutes of Settlement on May 17, 2023 and the mother signed them on May 8, 2023. The parties filed a Form 14B Motion dated May 25, 2023, seeking a final order in accordance with the Minutes of Settlement. Unfortunately, this Form 14B appears to have become lost in the chambers assignment system, as it was not forwarded to a judge for consideration until January 31, 2024. On that date, Brown J. made a final order as per the Minutes of Settlement. This order provides as follows:
Paragraph 1 grants both parties the right to receive disclosure and information directly from third parties involved with the child without any further consent required from either party.
Paragraph 2 requires the parties to communicate with each other through App Close except in situations of emergency. The order also requires that the communications relate only to C.M.M., that they be limited to 20 words and that they be factual and child-focussed.
Paragraph 3 provides that neither party shall speak negatively about the other party, their partners or family members to the child or within earshot of him.
Paragraph 4 directs the parties to promote a positive relationship between C.M.M. and the other parent and their family members.
Paragraphs 5 to 11 addressed parenting time during Mother’s Day, Father’s Day, March Break, Easter, the summer months, Halloween, Christmas and C.M.M.’s birthday. The parties were granted the full March Break period in alternating years and were to share Easter weekend. Each party was granted one full week of uninterrupted parenting time during the summer months. The Christmas school break was to be divided equally between the parties according to a rotating two-year schedule.
Paragraph 13 requires the parties to obtain consent from each other to travel with C.M.M. outside of Canada, and outlines the information that each party must provide respecting any intended travel.
Paragraph 14 stipulates that the parties must provide a means of contacting each other during periods when they are outside of Canada with C.M.M.
Finally, paragraph 15 provides that the parties shall remain living within a 20-kilometer radius of Hamilton.
187The case finally proceeded to another trial scheduling conference before Pazaratz J. on February 15, 2024. Both parties were represented by counsel at that appearance. Pazaratz J. scheduled the case for trial for an estimated 14 days, to the trial sittings commencing September 2, 2024. In her Trial Scheduling Endorsement Form, the mother did not include claims for an unequal division of net family properties, that the father had gifted part of this proceeds from the sale of the matrimonial home to her, or an undue hardship claim in regard to child support. At the trial scheduling conference, Pazaratz J. ordered the parties to execute mutual consents for the release of Society records immediately, to produce their 2023 Income Tax Returns by April 30, 2024, and set deadlines for the exchange of updated Financial Statements and Net Family Property Statements, with the mother’s deadline for those items being July 26, 2024. Deadlines for the exchange of proposed trial exhibits were also established, and the mother’s deadline was July 26, 2024. Pazaratz J. endorsed that no amendments were required to the pleadings, and that proposed draft orders were required at the outset of trial. Pazaratz J. did not address the issue of costs in relation to the trial scheduling conference.
188On March 22, 2024, the father brought a motion with a placeholder date of March 20, 2024, seeking child support from the mother in the amount of $311.00 per month commencing January 1, 2024 based on the mother’s 2023 income of $35,594.00, an order requiring her to pay $200.00 per month towards arrears of child support, and seeking disclosure of the mother’s credit card and bank statements for the period from January 1, 2017 until July 2018. Lafrenière J. heard the motion on March 22, 2024. On that date, she granted a temporary order as follows:
The mother was ordered to pay the father child support in the amount of $311.00 per month commencing April 1, 2024 based on her 2023 income of $35,594.00, as well as $200.00 per month towards arrears of child support.
The mother was to produce copies of her credit card statements including her VISA statements from the Toronto Dominion Bank for the period from January 1, 2017 to July 2018 with 45 days.
The mother was to produce copies of bank statements for all of her accounts for the period from January 1, 2017 until November 30, 2017 within 45 days.
The mother was also required to produce copies of her line of credit statements for the period from January 1, 2017 until November 30, 2017 within 45 days.
Finally, the issue of costs respecting the motion was adjourned to the trial judge.
189The father brought another motion dated June 13, 2024, with a placeholder date of June 26, 2024, to address disclosure issue. He sought production of evidence as to where the mother deposited her pay cheques from November 2017 until June 2018, the banks where she had assets as of January 2018, disclosure respecting those assets, and production of her full Income Tax Returns from 2021 onward and certain visa credit card statements. The motion first went before Brown J. on June 24, 2024, but was adjourned to July 5, 2024. On the return date, Kril J. adjourned to motion sine die, as the mother had produced some of the requested disclosure and counsel for the father felt confident that the remaining disclosure would be forthcoming.
190The parties next appeared before Pazaratz J. on August 26, 2024 for Purge Court. The mother requested an adjournment of the trial. She advised Pazaratz J. that Legal Aid Ontario had “dumped her” in the spring of 2024 due to financial eligibility considerations, resulting in her filing a Notice of Change in Representation dated May 27, 2024 indicating that she was self-represented. She advised Pazaratz J. that she was in the midst of challenging Legal Aid’s decision to deny her legal assistance, and that she was not prepared to proceed to trial. She had not served any proposed exhibits or complied with any of the other deadlines and expectations set out in the Trial Scheduling Endorsement Form dated February 15, 2024. The father opposed the adjournment. Pazaratz J. spent a considerable amount of time hearing the request for an adjournment, and he ultimately dismissed the request. He noted that the mother had been aware of the issues regarding legal representation for many months, that there did not appear to be any degree of certainty that she would obtain a lawyer through Legal Aid through the review process, that it would require significant time in any event for a lawyer to learn the file and prepare for trial, and that there were pressing parenting issues that needed to be resolved as soon as possible. He also addressed the question of production of C.M.M.s’ medical records and updated records from the Society. The mother did not consent to a mutual exchange of the updated Society records. Pazaratz J. made a consent requiring the parties to execute releases for the child’s medical records to be produced to both parties, as well as an order not on consent of the mother requiring the parties to execute releases for the production of the updated Society records to both of them. These releases were to be signed by no later than August 28, 2024. Pazaratz J. also ordered the mother to pay the father costs in the amount of $400.00 and directed that the trial proceed by zoom.
191The trial began before me on September 3, 2024 and continued until March 14, 2025, with several breaks. The trial process was gruelling and protracted. This was almost entirely attributable to the mother’s lack of preparation, her failure to comply with many court-imposed deadlines made to move the trial along expeditiously, her requests to adjourn, her complete lack of clarity about her position on many issues until very late in her own case, her requests to amend her Answer and Claim to advance new claims late in her case, her insistence on delving in minute detail into a myriad of historical concerns and complaints despite numerous attempts to redirect her, and her very lengthy evidence. A great deal of time and patience were required to guide and support the mother through the process, and she needed many breaks during the trial due to reports that she did not feel well or because she needed to compose herself. A general summary of the history of the trial is important as it highlights issues respecting the mother’s overall functioning which are relevant to the parenting and support issues, explains the amendments that I allowed to the parties’ pleadings, and outlines temporary orders that I made regarding substantive issues along the way. The history will also ultimately be highly relevant to the issue of costs.
192On day 1 of the trial on September 3, 2024, both parties requested an adjournment, despite the fact that the father had opposed an adjournment at Purge Court on August 24, 2024. They advised that they had received voluminous medical records respecting C.M.M. and updated Society records after Purge Court, and that they believed an updated section 112 report would be appropriate based on the information in the records. They also submitted that additional records should be obtained from other sources, including the Hospital for Sick Children and the Kids Help Phone. The mother had still not served and filed her proposed exhibits, and she had not cooperated with respect to production of her medical records, despite numerous requests by the father’s counsel Ms. Williams prior to trial for the release of those records. She finally executed a consent for the release of those records to the father on the first day of trial. In addition, there were also problems with the clearance certificate required for the divorce claim, the marriage certificate had not been located, and there were also significant problems with the Trial Record. Furthermore, the mother sought to add Dr. Scarfone, her former family physician from many years ago, as a trial witness. That issue was ultimately resolved with the cooperation of the father in allowing a report from Dr. Scarfone to be admitted as evidence. I denied the request for the adjournment, as the parties had had many months to obtain these disclosure items either on consent or by way of motion, the case had been ongoing since September 2021, and the parenting issues were pressing. I also denied the request that I make a referral for an updated section 112 report from Ms. Young, but advised the parties that I would be flexible about adding any additional witnesses to provide important updating information. I ordered the mother to serve her proposed Exhibits Brief by no later than September 6, 2024, and that the parties serve and file proposed draft orders by no later than September 4, 2024. I also granted the parties leave to call additional witnesses and made orders to facilitate obtaining a report from Dr. Scarfone, the mother’s medical records and a corrected clearance certificate.
193On day 2 of the trial on September 4, 2024, the mother requested for the first time that the father produce his medical records to her and stated that she would only release her medical information if the release was mutual. This created additional complications and challenges in managing the trial, but the father was cooperative in consenting to the release of those records. The mother had still not prepared and filed her proposed draft order, and she was very unclear regarding her position on many issues or whether she would be withdrawing any claims. She insisted that she wished to consult with counsel about her draft order, an issue which she had not raised the previous day. The mother presented as emotional and tearful, and she gave the impression that she would likely be receiving a Legal Aid certificate very soon, since she was now on a stress leave from work. I requested that counsel assisting the Office of the Children’s Lawyer clinician, Mr. Wasserman, attend in the afternoon to discuss what updating records should be provided to Ms. Young. However, the mother did not appear in the afternoon as she advised the court that she felt ill.
194The mother filed the first draft of her proposed order on the third day of trial on September 5, 2024. However, the draft was very unclear on many points, and it also included what appeared to be a tort claim for damages for infliction of mental distress, which was not pled in her Answer and Claim. I note as well that her initial draft order did not include claims for spousal support, undue hardship in the child support context or her gift claim relating to the matrimonial home sale proceeds. The father did not consent to an amendment of her Answer and Claim, and therefore I advised the mother that a motion would be required to include a tort claim. Wasserman and the Office of the Children’s Lawyer clinician, Ms. Young, appeared on September 5, 2024. After extensive discussion and argument, agreement was reached that Ms. Young should receive all important updated disclosure only for the purposes of commenting on the information if questioned on how it may have impacted her conclusions and recommendations. Counsel for the father agreed to ensure that updated production was provided to Ms. Young. The mother continued to present as overwhelmed and suggested once again that she was close to being approved for Legal Aid funding. The trial day was cut short to allow the parties to address the ongoing procedural issues and for the mother to work on her motion to amend her pleading. I ordered that the mother serve and file her intended motion to amend her pleading by no later than September 9, 2024, and stipulated that if she did not bring the motion, this would not prejudice her right to seek relief for infliction of mental distress in a separate civil proceeding at a later date.
195The mother failed to meet her deadline of September 6, 2024 to serve and file her proposed Exhibits briefs. When the trial resumed on that date, she stated that she had tried to file some documents without success, and that she had been unable to complete this task because she was caring for C.M.M. and she was stressed. However, I had specifically recommended to her prior to this date that she negotiate switching parenting time periods with the father so that she could focus on meeting her deadlines respecting the trial. She consumed a considerable amount of time discussing how she was a victim of domestic abuse, and how reliving that alleged abuse in the trial was taking a toll on her health and stress levels. She was given many accommodations to support her through the process during the first few days of trial, yet she was again teary and emotional on September 6, 2024. She complained that the process was unfair and that Legal Aid Ontario was prejudicing her ability to advance her case. She suggested again that she was making headway with Legal Aid Ontario. At one point, she became highly agitated, raised her voice, threw her hands up in the air, said she was ill and shut off her video. She finally returned with great coaxing. Despite her comments that she was ill, she made numerous other statements that contradicted this point. For instance, I inquired as to whether she was well enough to care for C.M.M. the previous night and for 3 more days commencing that night as per the regular schedule. She assured me that she was fine to do so. Furthermore, when I asked her for details about the nature of her illness, she was vague and evasive and then embarked upon a lengthy discussion of her many accomplishments and how she actually thrives while under pressure. Based on all of these challenges, I granted the mother another extension to September 9, 2024 to serve and file her proposed Exhibit Briefs. I also gave her leave to serve and file a formal motion to adjourn the trial by no later than September 9, 2024, based on her repeated representations about imminent Legal Aid funding, and I adjourned to trial to that date.
196On September 9, 2024, the mother advised that she chose not to bring a motion to amend her Answer and Claim. She emailed several proposed Exhibit Briefs to the registrar at 9:00 a.m. that morning, but she had not served them on Ms. Williams and there were difficulties accessing many of the materials due to the manner in which the mother had sent them. I note that my September 6, 2024 order specifically authorized her to serve physical copies of the proposed Exhibits in order to avoid any such technical glitches. A great deal of time was spent that day ensuring that Ms. Williams obtained the proposed exhibits and that they were properly filed with the court.
197The mother attempted to bring her motion to adjourn the trial on September 9, 2024. However, the notice of motion and affidavit were not in the correct format, the affidavit was not sworn, and the exhibits referred to in the affidavit were not attached but were sent in a separate email. The mother was given a great deal of time and support to sort out these issues. I concluded that I needed to hear from Legal Aid Ontario and that further medical evidence was required in relation to the motion, and therefore the motion and trial were adjourned to September 10, 2024.
198I heard the mother’s motion to adjourn the trial on September 10, 2024. Mr. Stanley Jesiks, legal counsel for Legal Aid Ontario, made submissions on the motion. For detailed oral reasons given on September 11, 2024, I dismissed the motion. By way of summary, this decision was based on insufficient medical evidence in support of the request to adjourn, the mother’s delay in addressing her legal representation issues, her misrepresentations to the court about the history and status of her efforts to obtain Legal Aid assistance, her delays and failure to follow direction from Legal Aid Ontario about the process for challenging its decision and my conclusion that Legal Aid funding did not appear to be likely within the foreseeable future. I ordered that costs in connection with the motion were reserved to be addressed as part of costs at the conclusion of the trial. I note that as part or her argument for the adjournment, the mother stated that she had an upcoming specialist appointment with Dr. Silva and suggested that this related to the health conditions that she was currently experiencing. However, it came to light later in the trial that this was a routine annual check-in with Dr. Silva as follow-up to the vertebral artery dissection that she had experienced in 2015, and that she was not in fact experiencing any ongoing symptoms related to that event.
199The evidence in this trial did not begin until September 11, 2024 (day 7) due to all of these procedural challenges. However, there were ongoing serious challenges moving the trial forward due to the mother’s litigation behaviour and disorganization, her resistance to direction and rulings and her tendency to become highly agitated and emotionally dysregulated when things did not go as she wished. For example, after the completion of the father’s examination in chief, the mother served Ms. Williams with a large number of additional proposed exhibits and sought to put them to the father on cross examination on October 22, 2024. I did not allow some of her questions, and she became resistant, angry and disjointed in her communication. She provided a litany of unconvincing excuses for why she had not produced these proposed exhibits earlier and then embarked upon a lengthy discussion of her history of alleged abuse and how unfair the entire court process was. This type of dynamic repeated itself many times throughout this lengthy trial. I note that on September 11, 2024, I also made an order directing the mother to refrain from sending emails to the court registrar unless she had clear advance authorization from the court to do so, as she had been sending the registrar numerous emails without permission on a regular basis. She failed to comply with that direction on several occasions after that date.
200On December 3, 2024, the mother brought up the issue of the 8-page email that she had sent to McMaster Children’s Hospital on December 2, 2022, and that Dr. Crocco had responded to by calling the Winterberry Clinic on December 5, 2022. She stated that she could not locate that email in the Winterberry Clinic records, that she had contacted Dr. Crocco and he could not find a copy of it either, and she questioned whether it actually existed. I suggested that she summons the records keeper of the hospital if she wished to pursue this issue, and she did so on December 5, 2024. The records keeper, Ms. Tiffany Fairhurst, could not find the email either. As it turned out, when I pointed out that the Winterberry Clinic records reflected that the email was actually directed to the Pediatric Cardiology Department, the mother realized that she did have the email that she had sent to Dr. Almeida of that department, and she eventually produced it. A significant amount of trial time was wasted trying to address this issue.
201I ended court early on December 3, 2024, because the mother claimed once again that she was too ill to continue. She was scheduled to have C.M.M. that night, and I suggested that she negotiate a switch in her parenting time with the father due to her illness, which she declined to do. She did not appear in court on December 4, 2024, and sent and email to the registrar stating that she was still too ill to continue with the trial. However, she still had C.M.M. in her care. Accordingly, I adjourned the trial to December 5, 2024, and I suspended her parenting time with C.M.M. for the evening of December 4,2024 based on her alleged illness.
202On December 12, 2024, I made a temporary order in accordance with Minutes of Settlement executed by the parties providing that the mother shall not discuss any sexual incidents with the child pending further order of the court. The father sought this order based on the evidence that was coming out at trial regarding the extent to which the mother was involving C.M.M. in ongoing discussions about the sexual abuse allegations.
203By December 13, 2024, the mother was partway through her examination in chief and had still not provided a clear picture of her position on the issues or a revised proposed draft order. This was prejudicial to the father, and I therefore ordered her to serve and file a final proposed draft order by no later than January 2, 2024. In addition, given the protracted nature of the trial, I scheduled a mid-trial settlement conference before Kril J. for December 31, 2024, with the consent of both parties. The mother retained counsel to represent her at the conference, but she failed to serve and file a settlement conference brief. The parties resolved the issue of contribution to retroactive and ongoing section 7 expenses. Kril J. granted a final order on consent requiring the mother to pay the father retroactive section 7 expenses in the amount of $1,882.96, and directed that they be paid at the rate of $100.00 per month commencing April 1, 2025. The order requires the father to pay 60% of ongoing section 7 expenses and the mother to contribute 40%. Kril J. did not address the issue of costs in relation to the settlement conference.
204The trial resumed on January 6, 2025, and the mother had still not served and filed a proposed draft order. In addition, she continued to send Ms. Williams numerous documents on a last-minute basis and to request that they be admitted as evidence. This was another general pattern of conduct on her part that created significant difficulties in advancing the trial expeditiously. The father and Ms. Williams were extremely cooperative in allowing most of the additional documents in question, but the last-minute nature of the production often necessitated stand-down time during the trial to allow them sufficient time to review the materials.
205On January 7, 2025, the mother finally served and filed a 25-page revised proposed draft order immediately before the commencement of court. She raised the issue of imputing income to the father for the first time, which was prejudicial to the father as his evidence had been completed long before this point. She also raised vague and unclear claims about hardship in relation to the child support, spousal support and equalization claims which she had not previously raised. The relief set out respecting the property issues was also extremely unclear and difficult to decipher. Furthermore, the draft order included terms relating to section 7 expenses, which had been resolved on December 31, 2024. The mother indicated that she was no longer content with the terms of that order, and therefore I advised her of her right to appeal the order. I concluded that it was highly prejudicial to the father to continue without obtaining a very clear understanding of her final position on the issues. I assisted the mother respecting the legal issues and stood the trial down for an extended period of time to allow her to re-work her proposed order and to compose herself, as she was extremely agitated and emotional by this point. When the parties returned, the mother was still unclear regarding her position on several issues, and she became angry and hysterical when I attempted to provide further guidance and support to help her explain her claims clearly. I was finally able to get her to articulate that she was requesting that no equalization payment be ordered due to her inability to pay, that she not be required to reimburse the father on account of having received more than her share of the proceeds from the sale of the home, and that her hardship claim also related to the child and spousal support issues. I made an order that day, opposed by the father, amending the mother’s Answer and Claim to include a claim for undue hardship pursuant to section 10 of the Guidelines. In addition, having regard for the mother’s new undue new hardship claim, I ordered her to produce copies of all statements for any bank accounts and credit cards in her sole or joint name for the period from May 2019 to January 2025. While addressing this additional disclosure requirement in response to her requested amendment, the mother had a complete emotional meltdown. She began flailing her arms and screaming to the point of spitting, had a frightening angry face, accused me and the court system generally of treating her unfairly and as a second-class litigant, and ranted about how she felt she had been wronged.
206On January 8, 2025, the mother advised that she wished to call her former obstetrician, Dr. Ramana, as a witness. I had addressed this issue previously on December 3, 2024 and had directed her to provide a report from Dr Ramana to Ms. Williams, with the hope that the report could be admitted as evidence on consent. Ms. Williams indicated on January 8, 2025 that she had received the report from Dr. Ramana, and that she did not consent to the report being admitted as evidence or to Dr. Ramana being added as a witness. I therefore informed the mother that she would need to bring a motion to add Dr. Ramana as a witness, as I was not convinced that his evidence was relevant based on her submissions. The mother did not bring this motion, but she subsequently expressed her intention to call Dr. Ramana as a witness on two further occasions, namely January 10, 2025 and February 18, 2025. Extensive time was required on February 18, 2025 to locate my notes regarding the previous occasions when this issue had been addressed. The mother was argumentative and resistant on both occasions respecting my decision that a motion was required. This was one of many examples of the challenges that arose during this trial in trying to manage the mother’s expectations and litigation conduct and moving the trial toward a conclusion.
207As I have previously indicated, the mother listed her Upper Gage residence for sale in January 2025, and the sale closed on February 20, 2025. Faced with the unexpected length, complexity and rising cost of this trial, the father brought a motion on February 18, 2025 seeking an order that the net proceeds from the sale of the home be held in trust as security for costs and any other monetary award that he may be granted in the case. The father also sought an order permitting him to obtain C.M.M.’s passport without the mother’s consent, as he wished to take the child to Legoland in Florida and the mother had refused to sign the passport application. The mother did not respond to the motion. Her excuses for failing to meet the deadline for materials on this and many other occasions during the trial including alleged problems with her computer, her internet and her adobe program. However, whenever I granted her indulgences on the day of court to file her materials, she seemed to have no difficulty whatsoever getting them to Ms. Williams and the court. I granted her such an indulgence on February 18, 2025 given the importance of the issues, and extensive time was required to sort out her materials as they were completely disorganized. Several hours of trial time were lost due to these challenges. I heard the motion in the afternoon on February 18, 2025. On February 19, 2025, I made a temporary order permitting the father to apply for C.M.M.’s passport without the mother’s consent, and I granted him leave to bring another motion to allow him to travel with C.M.M. to Florida without the mother’s consent. I ordered that the sum of $10,000.00 be released to the mother from the proceeds of sale respecting the Upper Gage home for her support pending the conclusion of the trial. I granted the father costs in connection with the motion in the amount of $3,390.00, and I ordered that the sum of $3,990.00 be paid out to him from the sale proceeds on account of those costs as well as the costs ordered in his favour on January 19, 2023 and August 26, 2024. I directed that the balance of the sale proceeds be held in trust as security for costs and any other monetary relief that may be awarded to the father in this proceeding.
208The mother became extremely agitated, angry and emotional once again during the portion of the February 19, 2025 hearing dealing with costs. When I invited her to give submissions on costs, she responded by stating that she was being punished, that she was outnumbered, that I was personally biased against her, and that the entire system was in fact biased against her. In this regard, she reiterated the claim that she has made to several professionals over the years that the father and his family members “have people” working in their favour and against her in the police system, the education system and “in every part of every entity around here.” She insisted that I was overly scrutinizing her because she was an “artistic personality, not a lawyer personality,” and artistic people are emotionally deep rather than overly analytical. She claimed that the legal system is not designed for artistic personalities like her, and that it is a completely outdated system. I provided her with direction regarding the law of costs and stood the trial down for a period of time to allow her time to compose herself and prepare responding submissions. While giving my oral ruling on costs after the completion of submissions, the mother became angry again and began to send direct messages to the registrar through the zoom messaging function. In these messages, she challenged some of my factual findings, talked about Hamilton hating her, blamed Hamilton Family Court for putting so many people on the streets in tents, referred to herself as an abused woman and alleged that I was punishing an abused woman and C.M.M. by ordering costs against her, and called the legal system unjust. She also made cryptic references to “McLeans” and “Rogers,” which she acknowledged later in the trial were intended to convey that she felt going to the media with her complaints about me and the court system would be appropriate. Near the end of this day, the mother became angry and agitated again, arguing very loudly over me while I attempted to redirect her to stay on point during a discussion about financial disclosure.
209On February 25, 2025, the mother once again asked for leave to adduce additional materials as evidence, specifically many photographs and video recordings, without giving Ms. Williams and the father appropriate notice. Once again, Ms. Williams and the father were extremely accommodating, but a significant amount of time was required yet again to assist the mother in uploading the materials in an accessible format for viewing purposes.
210This trial took another unexpected turn after the close of court on February 27, 2025. On that date, the court registrar assigned to the trial received an email at approximately 8:08 p.m. from an anonymous email source entitled “Devil Worshipers in Hamilton Court.” The email was written either by the mother or someone impersonating her, as it included many references to events that had occurred in court earlier in the day and was worded in a manner intended to demonstrate that it was the mother writing it. The Office of the Children’s Lawyer clinician Ms. Young had been questioned by Ms. William that day, and the mother had begun her cross examination. The mother struggled finding refences to various passages in the Society records during her cross examination, and I directed that she locate the references that night so that her cross examination would proceed more smoothly and expeditiously the following day. The anonymous email contained several highly concerning comments by either the mother or an impersonator, including the following:
That the mother would be reporting the registrar and myself for ruining C.M.M.’s life.
That Hamilton is corrupt, that it does not take her or C.M.M. seriously and that everyone in Hamilton is a devil worshipper.
That the mother does not have any mental health issues.
Blaming the court for taking so long.
Stating that she will do whatever it takes to get C.M.M. back with her, and she did not care if she had to take down the registrar with her.
Threatening to launch a complaint against the registrar with her supervisor, claiming that the registrar was mean to her.
Threatening to have someone watch where the registrar drives her “devil worshipper car” which she claimed to know was red.
Threatening to watch which car the registrar goes into after the trial is done so she could have some nails put into the registrar’s car tires.
Claiming the trial was unfair to her since she was denied an adjournment and a lawyer.
Alleging that the Office of the Children’s Lawyer was biased against her, and that “she works in Hamilton and knows people that know [the father],” and claiming that she lied and used fake information in her report.
Threatening to go to McLeans magazine and Rogers Spectator to report the registrar to the Society for not taking C.M.M. seriously and not removing him from his “abusers.”
Threatening to launch a complaint about the father’s lawyer Ms. Williams to the Law Society of Ontario.
Alleging that the court, Justice Pazaratz and Ms. Williams are corrupt.
Claiming that the father made her almost homeless, and that the grandmother and the “devil worshipper” grandfather used power to turn everyone against her.
Stating that she needed help from the registrar to find the references in the Society notes to cross examine Ms. Young, which was a reference to the fact that I had told her to locate those references that night to ensure that she was better prepared.
Stating that she wanted to amend her court forms to get C.M.M. back and saved from the father’s home where he is “forced to be in because the corrupt court and corrupt Pazartz (sic).” She then stated in reference to Justice Pazaratz that she did not want a person from a Soviet country to touch her files or touch her child.
Claiming that she was unfairly judged, and the system was biased against her due to her mental health.
Stating that she hated the registrar for what she was allegedly doing to C.M.M., and threatening to post the registrar’s name and photograph all over social media.
She also threatened to hand out flyers with photographs of the registrar and Ms. Williams on them which talked about the court system being corrupt.
Blaming the registrar for making problems with her and her partner M.R.
Stating that she was an “artist mind, not a lawyer mind,” and suggesting that she was being unfairly treated on this basis.
Finally, she told the registrar that she better not send the email to Ms. Williams or the father because she would regret it and she would never be able to find another job in Hamilton, insinuating that she would take action to destroy the registrar’s career.
211This anonymous email prompted a report to the Justice Sector Security Office (“JSSO”) due to the threats and allegations of corruption against several justice participants. Several security measures were implemented, and JSSO referred the situation to the police for investigation. An investigation ensued and Detective Brad Clark was assigned to the case. I advised the parties of the email at the outset of court on February 28, 2025 and informed them of the steps that had been taken in response to this development.
212Detective Clark testified about his investigation into the anonymous email. He indicated that the person who had sent the email had used a service called NORD VPN, which effectively shields the email sender’s original IP address from being identified by others. He testified that the mother sent an email to him on February 28, 2025, and that she claimed to have been at the Flying Squirrel, a children’s play centre, when the email was sent. She cooperated in answering Detective Clark’s questions. Detective Clark testified that the only means of determining who sent the email would be to obtain warrants to search the computers of suspects, but that the police had concluded as of the time of his evidence that there were insufficient grounds to request any warrants. However, Detective Clark indicated that the case was not yet closed at that time. No charges had been laid as of the conclusion of trial.
213The mother adamantly denied having written this email, and suggested that either the father or the grandparents may have done so as a malicious plot to suspend her parenting time, as she was supposed to have C.M.M. for the full March Break the following week. The father adamantly denied that either he or his parents sent the email. I find based on the evidence of both parties that the mother was with C.M.M. at the Flying Squirrel play centre for a children’s birthday party during the evening of February 27, 2025, and that she met the father in the parking lot at approximately 8:00 p.m. to transfer C.M.M. to his care. C.M.M. was in the vehicle with the father by approximately 8:05 p.m. As I have stated, the anonymous email was either sent at 8:08 p.m., or was drafted at an earlier time and then configured to be sent at 8:08 p.m. The mother’s alibi to the police about being with C.M.M. in the Flying Squirrel play centre when the email was sent therefore does not stand up on the evidence.
214The issue of who wrote this anonymous email on February 27, 2025 became a significant issue in the trial. If the mother’s theory that the father and/or grandparents sent it, this would raise considerable cause for concern about the father’s parenting plan. Alternatively, if the mother wrote it, this would add to the concerns about her mental health. I highlight that the email made particular reference to the direction that I had given to the mother that day in court to locate specific references to the excerpts that she intended to rely on in the Society’s notes during her cross examination the following day. Specifically, the email stated “I need your help getting references from ccas notes. I don’t have time now no one is giving me enough time.” Court had ended approximately 3 hours earlier that day. The only people who would have reasonably been aware of this direction that I gave to the mother would have been myself, the mother, the father, Ms. Williams, the registrar, the reporter and Ms. Young, who gave evidence that day.
215I do not accept the mother’s proposition that the father or the grandparents may have been responsible for sending the email. There is no evidence that any of them have a history of sending this type of aggressive, erratic, threatening and inappropriate message. With respect to the grandparents, they were not in court that day and would not likely have been aware of my direction regarding the Society notes. With respect to the suggestion that the father sent this email as a manipulative tactic to suspend the mother’s parenting time, I do not accept that theory. Although the father did bring a motion on February 28, 2025 seeking to limit her parenting time to supervised visits, there was ample evidence justifying this decision apart from this email, and as I will discuss in further depth later in these Reasons, he has a fairly consistent history of being supportive of the mother having reasonable and generous parenting time with C.M.M. It is not realistically plausible that any of the court staff or Ms. Young would have sent the email, as they had no possible motive or anything to gain from doing so. I certainly did not send it. Upon considering the totality of the evidence, I find on a balance of probabilities that the mother sent this email to the registrar on February 27, 2025, or that someone else assisted her to send it. The mother had the opportunity to do so after she transferred C.M.M. to the father’s care that evening. Moreover, after having read several hundreds of text messages, emails and App Close messages that the mother sent to Society workers, other professionals and the father fathers over the years, and having heard many days of evidence, I find that the comments and themes in the email are strikingly consistent with those that have permeated many of the mother’s messages and her own testimony in this trial. Specifically:
As in the email, she has repeatedly claimed to many people and in her testimony that Hamilton is an undesirable and corrupt place.
The use of the phrase “devil worshipper” on several occasions in the email is consistent with her repeated claim that the grandfather told her he was a devil worshipper, and her claims that he spoke in a Satanic voice.
As in the email, she has repeatedly stated that she will do anything she needs to get C.M.M. back in her care.
As in the email, she has frequently claimed on other occasions that the justice system is unfair and biased against her.
With respect to the threats to the registrar and her career, as I will discuss in more detail, she has a history of making serious threats to the father in an attempt to get her own way on many occasions, including contacting his former employer Rogers. In fact, she did contact Rogers and caused problems for the father in his employment.
In regard specifically to the threat in the email to put holes in the registrar’s car tires, she has made unfounded allegations that the father put holes in her car tires on at least 3 occasions.
As in the email, she has repeatedly alleged to various professionals and in her testimony that the father and his parents have connections in all important places in Hamilton, and that those connections have somehow worked against her interest in the Child Protection and Family Law proceedings.
The threats in the email to launch complaints against the registrar and Ms. Williams are consistent with the mother’s longstanding and consistent history of launching official complaints against individuals and professionals who she does not see eye-to- eye with.
Her complaints about Justice Pazaratz in the email are consistent with complaints that she made in the past about him. By way of example, she complained at length about Justice Pazaratz in her email to Dr. Almeida dated December 2, 2022.
The reference in the email to her being “an artist mind not a lawyer mind” in the email is one that the mother also used in her evidence and submissions at trial, as well as with Society workers.
The denial of any mental health issues in the email is consistent with her denial to professionals and to this court that she is suffering any mental health problems.
Finally, the threat in the email about going to McLeans magazine and Rogers to publicize her complaints is one that she has also made to Society staff in the past, and identical to the veiled threat that she made in the zoom chat to the registrar on February 18, 2025.
216I have considered why the mother would have sent an email to the registrar anonymously, and the explanation for that would lie with my order dated September 11, 2024 precluding her from emailing the registrar. I had reminded her of that order several times during the trial. The fact that the police had not laid any charges in relation to the email as of the conclusion of trial is not in my mind determinative, as the investigation was not formally closed at that point, and in any event, the onus of proof in a civil proceeding is much different than in a criminal case. Detective Clark advised that he intended to consult further with his superior before officially closing the file. In reaching my finding that the mother wrote this email, I have also considered the evidence about the mother’s typical responses to stressful situations in her life, and her circumstances as of the date of the email. Again, having reviewed many hundreds of pages of Society records as well as several hundred pages of messages from the mother, I find that there is a clear pattern of her becoming highly dysregulated, disordered in her thoughts, aggressive, critical and manipulative in her messaging when she is experiencing high levels of stress. The period leading up to this email message was another very high stress time for her. She had been experiencing serious financial issues throughout 2024 and had decided to list her house for sale in January 2025. She was attending and preparing for trial while also dealing with mortgage brokers, banks, realtors and other professionals to get her financial situation in order. She was also packing up her home and organizing a move. The move in fact occurred on or around February 20, 2025, during the trial, and she had to unpack while taking care of C.M.M. In addition, she had to deal with the father’s motion regarding the sale proceeds from her home and C.M.M.’s passport application, and she was ordered to pay costs of that motion because of the father’s overall success. Finally, her relationship with M.R. broke down in February 2025, and her plan to reside with him in Alliston fell apart. She had to negotiate with him to provide her with funds to secure and set up another residence in Caledonia, because she was on an extended sick leave from work.
217I emphasize that my finding that the mother sent the February 27, 2025 email has not swayed my overall decisions on the parenting issues in this case. As I have indicated, the general themes that run through the email are consistent with many messages that the mother admits to having written and with the mother’s testimony, and therefore my concerns arising from those patterns stand quite apart from the content of the email Accordingly, the outcome of this trial does not turn at all on whether the mother was in fact the author of the email, whether she sent it, or whether she arranged for someone to send it on her behalf.
218The father brought a motion on February 28, 2025 seeking leave to amend his application, an order that the mother’s parenting time be limited to supervised parenting time, and authorization from the court to travel to Florida with C.M.M. without the mother’s consent. On that date, I set timelines for the service and filing of materials for the motion, set a hearing date of March 4, 2025 and ordered that all evidence adduced on the motion would form part of the trial evidence as well. The mother did not meet those timelines, and she claimed that she had injured her knuckles, wrist and back moving a box. I therefore allowed her to give oral evidence on the motion, which significantly increased the time required to deal with it. For extensive oral reasons given on March 6, 2025, I made a temporary order as follows:
- The Applicant’s application is amended to include the following claims for relief:
a) The final order dated January 31, 2024 shall be varied by terminating paragraphs 5 to 13 of the order.
b) The Respondent’s parenting time with C.M.M. shall be in the father’s discretion and supervised in his discretion or as determined by the court to be in C.M.M.’s best interests at trial.
c) The Applicant shall be permitted to travel with C.M.M. outside of Canada without the consent of the Respondent. Within 20 days prior to travel, the Applicant shall notify the Respondent in writing of where he anticipates that C.M.M. will be staying while outside of the country, and how to reach him and C.M.M. while the child is outside of the country.
d) The Respondent shall require the Applicant’s written consent to travel with C.M.M. outside of Canada, through a form prescribed by Citizenship and Immigration Canada, after providing details of the travel to the Applicant, including itinerary, places where C.M.M. will be staying and how the Respondent and C.M.M. can be reached at all times.
- The Respondent’s Answer and Claim is amended to include the following claims for relief:
a) Paragraph 13 of the final order dated January 31, 2024 shall be varied to require that the party requesting to travel outside of Canada with C.M.M. must provide the following at the time that they request consent, in writing:
i. Details regarding proposed flights;
ii. Details regarding any hotels or other accommodations where C.M.M. will be staying during the trip; and
iii. Details regarding any major excursions that they intend to take with C.M.M.
b) The party requesting to travel with C.M.M. must provide documentary proof to the other party of any flights and accommodations booked in relation to the travel by no later than 14 days prior to the departure date, failing which the travel consent shall be deemed to be null and void.
c) The party witnessing a party’s consent to travel with C.M.M. must be a neutral party, and in particular shall not include the paternal grandparents.
The Respondent is granted leave to re-open her evidence to give 3 more hours of viva voce evidence, and to call Ashley Costa and Detective Brad Clark as additional witnesses.
Pending further order, C.M.M. shall reside primarily with the Applicant.
Pending further order, the parenting time terms set out in paragraphs 5 to 12 of the final order dated January 31, 2024 are terminated.
Pending further order, the Respondent’s parenting time with C.M.M. shall be fully supervised, upon the following terms and conditions:
a) The supervision shall be carried out by the Catholic Children’s Aid Society of Hamilton (“the Society”), if it consents, or a professional supervised parenting time agency to be agreed upon in advance in writing between the parties.
b) The supervised parenting time may be virtual and/or in person. However, the parenting shall be no more than twice per week in total, regardless of its form.
c) Virtual parenting time shall be no more than 1 hour in duration and in-person parenting time shall be no more than two hours in duration.
d) The parenting time shall not be scheduled during C.M.M.’s school hours, and the Applicant shall be consulted before parenting time periods are scheduled. The Applicant shall make all reasonable efforts to accommodate the scheduling of parenting time during periods that are available to the Respondent and the Society or the supervised parenting time agency.
e) The in-person parenting time shall occur at either the Society’s office or its supervised parenting time site, or the premises of a supervised parenting time agency, and not at the Respondent’s residence or elsewhere in the community.
f) If the parenting time is to be supervised by a supervised parenting time agency, the parties shall forthwith take all necessary steps to ensure that the parenting time commences as soon as possible, including participating in any required intake interviews, completing any necessary documentation and executing any necessary consents.
g) The Respondent shall be responsible for paying any costs associated with her supervised parenting time.
The Applicant may travel with C.M.M. to Florida, United States of America during the period from July 11 to July 17, 2025 without the consent of the Respondent.
The Applicant shall provide the Respondent with the following respecting the trip to Florida as soon as possible, but in any event by no later than 14 days prior to the departure date:
a) Documentary proof of any flights and accommodations booked in relation to the travel;
b) Details of where C.M.M. will be residing during the trip if he will be staying with family members or family friends;
c) Details about any excursions that he intends to take with C.M.M. during the trip; and
e) How the Respondent may reach him and C.M.M. during the duration of the trip.
- Costs in connection with the motion shall be addressed as part of the argument respecting costs in relation to the proceeding as a whole at the conclusion of the trial.
219I made this order just prior to C.M.M.’s March Break, during which he was supposed to be with the mother. My decision to curtail the mother’s parenting time to supervised visits only was based on my serious concerns about her mental health, her chronic history of influencing C.M.M. in relation to her abuse and neglect allegations and involving C.M.M. in marshalling support for her claims with other professionals, and my strong concern that she would continue to engage in these types of damaging behaviours during the March Break week with the child.
220The mother was understandably upset about my decision on the father’s motion on March 6, 2024. However, her reaction was extreme. She exited the zoom hearing part-way through my oral reasons for judgment and did not return until the afternoon session. When she returned, she was agitated, accused me of being unjust, and wanted to know how to appeal my decision. She spoke over me repeatedly as I calmly attempted to manage the situation, and she continued to do so despite my efforts to redirect her. I eventually had to raise my voice to stop her from yelling over me. In response, she claimed that I was just like her abusive stepmother. She embarked upon a frightening rant, calling the court insensitive and cruel, accusing me of punishing her, and stating that this result was very un-Canadian. Her insults and yelling over me reached such a disrespectful and disruptive level that I had no choice but to mute her for the wellbeing of others and her own protection in regard to what she may say. Upon being muted, she was observed as engaging in a rage, continuing to scream to the point of spitting once again, and flailing her arms in an uncontrolled manner.
221On March 6, 2025, Ms. Williams advised that she had received threats from the mother, and she therefore brought a motion for a restraining order against her. The parties reached a resolution of that motion, and I made a consent Family Law temporary order prohibiting the mother from attending within 100 meters of Ms. Williams’ law office. On that date, I also granted the mother leave to adduce additional exhibits in relation to the amendments to the pleadings by no later than March 7, 2025.
222The trial resumed on March 10, 2025. The mother had not met the March 7, 2025 deadline for serving additional proposed exhibits, claiming that her wrist was too sore. However, she had no apparent difficulty sending many other materials to the court that day. Furthermore, she had prepared motion materials including an affidavit seeking a variation of my March 6, 2025 order, apparently without difficulty. I did not allow that motion to proceed. Given the mother’s claim regarding her sore wrist, I granted her another extension to the following day to serve and file additional exhibits, and directed the court to provide the parties with digital recordings of the trial proceeding at no cost moving forward.
223The second to last date of this trial was March 13, 2025. I note that right up until that point, the mother continued to argue that she should be permitted more time to locate and submit additional documentation as evidence. The trial finally concluded on March 14, 2025.
PART 6: THE DIVORCE CLAIM
I. THE LAW
224Both parties seek a divorce. Section 8(1) of the Divorce Act, R.S.C. 1985, c. 3 (2^nd^ Supp.), as amended, provides that the court may grant a spouse or both spouses a divorce on the grounds that there has been a “breakdown of their marriage.” Section 8(2) of the Divorce Act outlines the circumstances which establish a breakdown of a marriage, as follows:
Breakdown of marriage
8(2) Breakdown of a marriage is established only if
a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
i. committed adultery, or
ii. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
225The parties rely on section 8(2)(a) in support of their entitlement to a divorce. That section must be read in conjunction with section 8(3), which addresses the meaning of “separate and apart,” and how the relevant one-year period of separation should be calculated, as follows:
Calculation of period of separation
8(3) For the purposes of paragraph (2)(a),
a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
i. by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
ii. by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.
226Section 10 of the Divorce Act establishes a duty on the part of the court to inquire about the possibility of reconciliation between the parties before granting a divorce, unless the circumstances of the case are such that it would clearly not be appropriate to do so.
Duty of court — reconciliation
10 (1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
Adjournment
(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall
a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and
b) with the consent of the spouses or in the discretion of the court, nominate
i. a person with experience or training in marriage counselling or guidance, or
ii. in special circumstances, some other suitable person,
to assist the spouses to achieve a reconciliation.
Resumption
(3) Where fourteen days have elapsed from the date of any adjournment under subsection (2), the court shall resume the proceeding on the application of either or both spouses.
227Section 11 of the Divorce Act outlines the bars to granting a divorce, as follows:
Duty of court- bars
11 (1) In a divorce proceeding, it is the duty of the court
a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;
b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and
c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.
II. ANALYSIS
228I find that the parties have established the grounds for a divorce order, and that there is no evidence in support of any bars to granting the divorce. They both claim that they have been living separate and apart since January 8, 2018 without any reconciliation, and the evidence fully supports their position on this issue. I also find that there is clearly no possibility of a reconciliation between the parties. My order in this trial will address the child support issues between them. I have reviewed the marriage and clearance certificates, and I am satisfied that no other divorce proceedings have been commenced by either party. Accordingly, a divorce order shall issue in the usual form.
PART 7: THE PARENTING ISSUES
I. POSITIONS OF THE PARTIES
A. The Father’s Position
229The father seeks an order for sole decision-making responsibility and primary residence of C.M.M. He agrees to orders requiring him to consult with the mother before making any significant decisions respecting C.M.M., and to provide her with the names and contact information of any professionals involved with the child. He requests that the mother’s parenting time with C.M.M. as set out in my temporary order dated March 6, 2025 continue on a final basis. As a condition of this parenting time, he requests an order prohibiting the mother from initiating any discussions with C.M.M. about the father or any other members of his family, and requiring her to redirect the child to another topic if he raises any issues about the paternal family members. He also seeks an order requiring the mother to undergo a full psychiatric or psychological assessment to occur over the course of several appointments, and that these assessments include consideration of the mother’s persistent belief that C.M.M. has been abused. In regard to these assessments, the father also seeks an order requiring the mother to execute a direction allowing the assessors and the Society to obtain records respecting herself from the Windsor-Essex Childrens’ Aid Society, and permitting the Society to communicate with the assessors about the mother’s history and patterns of behaviour with the Society. In addition, he asks for an order requiring the mother to participate in a parenting program to gain insight into children’s emotional needs and to develop her ability to be emotionally responsive to C.M.M.
230C.M.M. has been enrolled in play therapy at the Play Clinic in St. Catharines since the fall of 2024, and the father requests an order that he continue with this therapy for so long as it is recommended by the child’s therapist. He seeks a final order that he be permitted to obtain C.M.M.’s passports and other important documents and to travel with C.M.M. outside of Canada without the mother’s consent.
231By way of overview of the grounds for the father’s position on the parenting issues, he has had serious concerns about the mother’s mental health for many years, and the negative impact of her mental functioning on her parenting of C.M.M. With respect to decision-making, he submits that he has gone to great lengths to try to co-parent with the mother, but that a joint decision-making regime is not feasible or in C.M.M.’s best interests. His position is that cooperation with the mother on parenting matters is extremely difficult due to her disrespectful, aggressive and demeaning communications when they cannot agree on matters, her constant stream of unsubstantiated allegations against him and his parents, who support him in parenting C.M.M., her frequent unilateral actions on issues pertaining to C.M.M., and her frequent exaggerations and distortions in regard to health matters respecting the child. In addition, he has grave concerns that the mother is unable to cooperate effectively with professionals involved in C.M.M.’s care and wellbeing. Furthermore, he argues that the mother was physically, verbally and psychologically abusive to him during their relationship, that her behaviour in relation to the allegations against him and the grandparents since the separation has been psychologically abusive, and that she has engaged in a pattern of coercive and controlling behaviour towards him and the grandparents.
232The father submits that it is in C.M.M.’s best interests to reside primarily with him and to have only supervised parenting time with the mother, at least until she has undergone the assessments that he has requested and followed through with any resulting recommendations. He has had concerns for the past six years about the negative impact of the mother’s constant unsubstantiated abuse and neglect allegations against him and his family members, and her influencing of C.M.M. respecting those claims on the child’s emotional, developmental and social wellbeing. His view is that the mother remains firm in her belief that he and his parents have been abusive and neglectful of C.M.M., and that she is determined to continue in her efforts to prove her allegations until the child is returned to her primary care. He is worried that C.M.M. now truly believes that he has been abused by the grandparents and that he is in danger residing in their home with the father, and that the mother’s inappropriate influence on him are jeopardizing his important relations with him and members of the paternal family. Finally, he feels that C.M.M. is showing other signs of emotional and physical distress as a result of the mother’s behaviour.
233The father is hopeful that the mother’s parenting time with C.M.M. will revert to unsupervised and expanded visits over time, provided that the mother is able to address the underlying causes for her unrelenting abuse and neglect allegations and the other issues with her parenting. He feels that the process of resolving her challenges may take significant time, and that any change to the parenting order should ideally occur through the Motion to Change route. However, he is open to a review of the parenting terms if the court concludes that such an approach is in C.M.M.’s best interests.
B. The Mother’s Position
234The mother requests an order for sole decision-making and primary residence of C.M.M. in her favour. She agrees to an order requiring her to consult with the father on significant issues respecting C.M.M. However, she seeks a term requiring the father to respond to her communications in a timely manner, as she feels that he has failed to do so in the past. In her Closing Submissions, she was unclear on her position respecting parenting time for the father. However, in her final proposed draft order that was marked as Exhibit H for identification purposes, she sets out her position as follows, at paragraph 9:
“Parenting time for the Applicant should be reviewed and decided by child’s best interest professionals and medical pediatric professionals, whom are experts. The decision should be based on actual observation and not reports. There should be a (sic) appropriate amount of hours (scientifically based) of in-person time with the child and each parent, rather than the very limited hour of observation by the OCL, and the OCL report based on many inaccurate documents.”
235This position reflects the mother’s position that there should be a comprehensive assessment by appropriate expert professionals to determine the appropriate parenting time arrangements for the father. However, she indicates at paragraph 9(c) of the draft order that she agrees to virtual parenting time for the father twice per week.
236The mother’s plan up until late February 2025 was to relocate with C.M.M. to the Alliston area to live with her partner M.R. However, as I have indicated, she advised at that time that her relationship had ended, that there was a possibility of further discussions about the future of the relationship, but that her plan now was to reside in Caledonia for at least one year at the rental townhouse that she has secured. In her draft order at paragraph 9, she acknowledged that circumstances regarding her residence may evolve, and that the issue of relocation with C.M.M. could again arise in the future. At this time, she agrees to C.M.M. continuing to attend school at St. Margaret Mary in Hamilton.
237The mother objects to any order precluding her from talking with C.M.M. about the father and his family members. She feels that she needs to continue advocating for C.M.M. if he raises new concerns about abuse or neglect, and that she should be able to address those issues with him freely and then report any concerns to the appropriate medical or child protection authorities. She denies having any mental health difficulties and therefore opposes the father’s request that she undergo a comprehensive psychiatric or psychological assessment. She also rejects his position that she needs to participate in a parenting program. However, she agrees that C.M.M. should continue to participate in play therapy at the Play Clinic.
238In her Closing Submissions, the mother made the following points in support of her position on the parenting issues:
She continues to genuinely believe that C.M.M. has been abused and neglected by the father and the paternal grandparents, and that the father knew about the alleged sexual abuse by the grandparents but failed to protect the child.
She acknowledges that C.M.M.’s imagination had developed over the past few years, and that he tells many “silly stories,” but insists that the stories about his alleged abuse are absolutely true.
She believes that C.M.M. is frightened to spend time in the home of the father and the grandparents due to the abuse that he has suffered and the father’s failure to protect him, and that he is desperate to get help so that he does not have to return.
She continues to believe that all of the investigations by the police and child protection authorities respecting her abuse allegations were flawed and biased, that C.M.M.’s voice has not been heard, and that those responsible for ensuring his safety have escaped accountability. One of her major complaints about the investigations is that she was not present when C.M.M. was interviewed, and that C.M.M. did not disclose because he was not comfortable doing so without her direct presence and support.
She feels that C.M.M. has experienced extensive trauma due to the alleged abuse, and that he is still processing major trauma that has not yet been addressed.
She is distraught by the fact that child protection authorities and the court have allowed C.M.M. to reside in the grandparents’ home, which she claims is an unsafe environment for him.
She maintains that all of the professionals involved in addressing her concerns have been biased against her, and that the paternal family has important connections in high places throughout the Hamilton area that have worked against her interests and C.M.M.’s wellbeing.
She advanced a very circuitous and convoluted theory that the father and grandparents engaged in the alleged abuse of C.M.M. as part of a premeditated plan to then claim that she was fabricating abuse claims, so that the father could gain primary residence of C.M.M. and avoid child support. She described the grandmother as being a key participant in this scheme, as she was a schoolteacher for many years and she knows how the system works for gaining control of children.
She reiterated her concerns that the father and grandparents could be involved in some type of child sexual abuse, trafficking and pornography ring, and that their family members holding important high ranking service positions in the community, including the medical, police and educational systems, have protected them.
She feels that C.M.M.’s emotional state and his ability to disclose are maturing, and that further evidence is therefore evolving respecting the abuse allegations. Accordingly, her position is that all of C.M.M.’s allegations should be thoroughly investigated again by child abuse experts outside of the Hamilton area who will not show the same bias against her.
She denies having any mental health difficulties whatsoever, and feels that the focus on her alleged mental health problems has been unfair and discriminatory.
She feels that she has been a loving, attentive and highly competent parent, and that she is best suited to be C.M.M.’s decision-maker and primary caregiver.
She claims that the father has not cooperated with her on important parenting issues, and that he has a history of failing to respond to her about important matters relating to C.M.M. in a timely manner.
She asserts that the father was emotionally, verbally, financially and psychologically abusive towards her during the marriage. She also claims that he significantly undermined her ability to make free choices about child rearing and finances during their relationship. To use her words from her Closing Submissions, she states that the father engaged in a “systematic pattern of control aimed at subjugating her and denying her the freedom to live independently.”
She asked the court to do better in protecting C.M.M., as she feels that to date, the court has been more focussed on bureaucratic red tape, formalities and rules than seeking the truth and protecting her son.
Finally, she alleged that the father and the grandparents have been engaged in disturbing patterns of manipulation, deceit, emotional neglect and abuse to keep C.M.M. out of her primary care and to prioritize their control of him over his wellbeing.
II. THE LAW RESPECTING THE PARENTING ISSUES
A. Relevant Legislative Provisions
- Application for a Parenting Order and the Concepts of “Decision-Making Responsibility” and “Parenting Time”
239The parties have advanced their parenting claims in the context of a divorce proceeding, and therefore the governing legislation is the Divorce Act. The legislative provisions relating to parenting issues under that Act focus on parental responsibilities for children rather than rights, and the key legal terms relating to parenting issues are “parenting orders,” “decision-making responsibility,” “parenting time,” and “contact orders.” The concept of contact orders applies to individuals who are not spouses and who seek an order to have contact with a child (section 16.5). It is therefore not relevant in this proceeding.
240Sections 16.1(1) to 16.1(3) of the Divorce Act set out the court’s jurisdiction to make an original parenting order at first instance:
Parenting order
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
a) either or both spouses; or
b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
Interim order
(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.
Application by person other than spouse
(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.
241The wording of section 16.1(1) indicates that a parenting order encompasses the two key concepts of “decision-making responsibility” respecting children and “parenting time.” Section 2(1) of the Divorce Act defines these terms as follows:
decision-making responsibility means the responsibility for making significant decisions about a child’s wellbeing, including in respect of
a) health;
b) education;
c) culture, language, religion and spirituality; and
d) significant extracurricular activities
parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time.
242Section 16.2(2) elaborates upon the meaning and scope of the concept of “parenting time” by stipulating that unless otherwise ordered, the term encompasses the exclusive authority to make day-to-day decisions affecting a child during a person’s allocated time with the child:
Day-to-day decisions
16.2(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.
243This provision clarifies that a party who has not been granted responsibility for making significant decisions about a child’s wellbeing within the meaning of section 2 of the Divorce Act nonetheless plays an important role in the child’s life and retains a decision-making role in regard to daily issues that can be equally important to the child’s overall wellbeing. The section protects children and parents who have parenting time with each other from attempts by a party with sole or final decision-making responsibility to intrude upon or marginalize the role of the other parent.
244Section 16.4 of the Divorce Act further expounds upon the meaning and scope of the concepts of “decision-making responsibility” and “parenting time” under the Act by establishing that unless otherwise ordered, both concepts encompass the entitlement to obtain information about a child’s wellbeing from the other party, as well as from any other individuals who are likely to have such information:
Entitlement to information
16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s wellbeing, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.
245This provision further safeguards the influence and involvement of a parent who has been allocated parenting time but not any aspects of decision-making responsibility by protecting against the development of informational asymmetry between parents respecting a child’s wellbeing.
246As I indicated at the outset of these Reasons for Judgment, the father seeks to vary the parenting terms set out in paragraphs 5 to 13 of the final order dated January 31, 2024. It is therefore necessary to address the principles relating to the variation of final parenting orders. Section 17(1) of the Divorce Act grants the court the authority to vary, rescind or suspend parenting orders, contact orders and support orders made under the Act, as follows:
Variation order
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
a) a support order or any provision of one, on application by either or both former spouses;
b) a parenting order or any provision of one, on application by
i. either or both former spouses, or
ii. a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
c) a contact order or any provision of one, on application by a person to whom the order relates.
Leave of the court
(2) A person to whom the parenting order in question does not relate may make an application under subparagraph (1)(b)(ii) only with leave of the court.
Variation of parenting order
(2.1) If the court makes a variation order in respect of a contact order, it may make an order varying the parenting order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.
Variation of contact order
(2.2) If the court makes a variation order in respect of a parenting order, it may make an order varying any contact order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.
247Section 17(5) of the Divorce Act directs that before varying a parenting order, the court must be satisfied that there has been a change in the circumstances of the child since the making of the existing parenting order:
Factors for parenting order or contact order
17(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
Variation order
(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time.
Relocation- change in circumstances
(5.2) The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).
248Section 17(3) provides that the court may include in a variation order any provision that it could have included in the existing order, and that the court has the same powers and obligations in varying an order as it would have had when making the existing order:
Conditions of order
17(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.
249Section 17(6) of the Act stipulates that in varying an order, the court may not take into consideration any conduct that under the Act could not have been considered in making the existing order.
250The operative effect of sections 17(3) and (6) of the Divorce Act is to extend the court’s obligations and powers in making original parenting orders to proceedings to vary a parenting order.
2. Contents of a Parenting Order
251Sections 16.1(4) to (9) of the Divorce Act outline the general powers of the court in an application for a parenting order under section 16.1(1), and the types of provisions that the court can include in a parenting order. These provisions give the court very broad powers to craft an order that will most fully promote the child’s needs and best interests:
Contents of parenting order
16.1(4) The court may, in the order,
a) allocate parenting time in accordance with section 16.2;
b) allocate decision-making responsibility in accordance with section 16.3;
c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
d) provide for any other matter that the court considers appropriate.
Terms and conditions
(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.
Family dispute resolution process
(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.
Relocation
(7) The order may authorize or prohibit the relocation of the child.
Supervision
(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.
Prohibition on removal of child
(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.
252Section 16.1(4)(a) referred to above directs that in making an original parenting order, the court may “allocate parenting time in accordance with section 16.2.” Section 16.2(1) provides that parenting time may be allocated by way of a schedule.
253Section 16.1(4)(b) set out above specifies that in making a parenting order, the court may “allocate decision-making responsibility in accordance with section 16.3.” That section provides as follows:
Allocation of decision-making responsibility
16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.
254Section 16.1(6) of the Act referred to above authorizes the court to direct parties to attend a “family dispute resolution process,” which is defined in section 2(1) of the Act as follows:
family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law
255Section 16.6(1) of the Divorce Act provides that if the parties submit a parenting plan for the court’s consideration in making a parenting order, the court must include the parenting plan in its order, unless it is of the opinion that the terms of the plan are not in the child’s best interests:
Parenting Plan
16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.
256Section 16.6(2) defines the term “parenting plan” as “a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.”
3. Legislative Factors and Considerations in Making a Parenting Order
257Section 16 of the Divorce Act sets out the factors and considerations that the court must consider in making a parenting order. These factors and considerations apply to all aspects of a parenting order, including decision-making responsibility, parenting time, and any terms, conditions and restrictions to be included in any parenting order. Section 16(7) establishes that references to a parenting order in section 16 include interim parenting and contact orders and to orders varying parenting and contact orders.
258Section 16(1) of the Divorce Act directs that the court shall take into consideration “only the bests interests of the child of the marriage in making a parenting order or a contact order.” Section 16(3) sets out a number of factors that the court must weigh in carrying out the best interests analysis. In considering those factors, the court is required by virtue of section 16(2) to “give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.”
259Section 16(3) of the Divorce Act sets out the following factors that the court must consider in determining the child’s best interests:
Factors to be considered
16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, 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 wellbeing of the child.
260Section 16(3)(j) of the Act specifically highlights the occurrence of “family violence” and the impact of such violence as important considerations in determining where the best interests of a child lie in making parenting and contact orders. Section 2 of the Act defines the term “family violence” very broadly as follows:
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
261The definition of family violence refers to conduct by a “family member” towards another family member. Section 2(1) of the Act defines the term “family member” broadly as follows:
family member includes a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household
262Section 16(4) of the Divorce Act dictates that in considering the impact of family violence pursuant to section 16(3)(j), the court must take into account several factors relating to family violence, as follows:
Factors relating to family violence
16(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
a) the nature, seriousness and frequency of the family violence and when it occurred;
b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
d) the physical, emotional and psychological harm or risk of harm to the child;
e) any compromise to the safety of the child or other family member;
f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
h) any other relevant factor.
263Section 16(5) of the Divorce Act addresses the relevance of a person’s past conduct in conducting the best interests analysis as follows:
Past conduct
16(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
264Section 16(6) of the Divorce Act must also be considered in determining the parenting time arrangements that are in the child’s best interests. It recognizes that children should have as much time with each parent as is consistent with their best interests:
Parenting time consistent with best interests of child
16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
4. The Legislative Duties of Parties
265The Divorce Act imposes several duties on parties to a parenting proceeding, which are aimed at ensuring that their parenting remains focussed on the child’s best interests, that children are safeguarded against unnecessary conflict, and that parenting issues are addressed in an orderly manner, with all relevant information being provided to the court. The parties’ compliance with these important duties is a relevant consideration in crafting a parenting order that is in a child’s best interests.
266The first legislative duty is set out in section 7.1 of the Act. It requires parties to keep the best interests of the child at the forefront of their minds at all times in carrying out their parenting responsibilities and privileges:
Best interests of child
7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.
267Second, section 7.2 of the Act imposes a clear duty on parties to take all reasonable measures to protect children from conflict:
Protection of children from conflict
7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.
268Third, section 7.3 requires parties to try to resolve the issues in a proceeding through a family dispute resolution process:
Family dispute resolution process
7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.
269Section 2(1) of the Act defines “family dispute resolution process” as follows:
family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law.
270Finally, sections 7.4 and 7.5 require parties to provide complete and updated information to the court, and to comply with orders made under the Act:
Complete, accurate and up-to-date information
7.4 A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.
Duty to comply with orders
7.5 For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.
B. The Two-Part Test for Varying a Final Parenting Order
271Since the father seeks to vary the final parenting order dated January 31, 2024, further elaboration upon the principles relating to proceedings to vary parenting orders is necessary. The relevant provisions of the Divorce Act that I have outlined establish that there are two stages to the test for varying a parenting order:
First, by virtue of section 17(5) of the Act, the moving party must establish as a threshold matter that there has been a change in the circumstances of the child since the existing order was made; and
Second, if this threshold test is satisfied, the court must determine the parenting terms that are in the best interests of the child having regard for the new circumstances.
272The test for varying parenting orders made under the CLRA is generally similar, and therefore the legal principles that have evolved respecting variation of parenting orders pursuant to that legislation apply equally to parenting order variation proceedings under the Divorce Act.
273In variation proceedings, the court cannot retry the case that led to the existing order and substitute its discretion for that of the judge who granted that order. It must assume that the decision was correct, and the moving party is not entitled to re-argue the merits of that order since this would amount to an indirect route of appeal of that order (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), at para. 11; Barendregt v. Grebliunas, 2022 SCC 22 (S.C.C.), at para. 76; Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.)).
274The onus lies with the party seeking to change an existing parenting order to satisfy the threshold test for variation set out in section 17(5) of the Divorce Act. If they fail to meet this onus, the inquiry is at an end and the court must dismiss the variation proceeding (Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.), at para. 3; Litman v. Sherman, 2008 ONCA 485 (C.A.), at para. 26; Barendregt, at para. 76).
275As I set out in Khairzad v. Errousa, 2023 ONSC 6741 (S.C.J.), at para. 81, the following general principles apply in relation to the threshold material change in circumstances test in a proceeding to vary a final parenting order on a final basis:
The element of “change” is key to the analysis of the threshold test in a variation proceeding. The circumstances relied on to support the threshold test must therefore have arisen since the making of the existing order (N.S. v. A.N.S., 2021 ONSC 5283 (S.C.J.); K.M. v. J.R., 2022 ONSC 111 (S.C.J.), at para. 70; M.A.B. v. M.G.C., at para. 163).
The determination of whether there has been a material change in circumstances must logically commence with an analysis of the actual circumstances relevant to the child’s best interests that existed when the order was made. Accordingly, at the threshold stage of the analysis, the court should consider the factual grounds and reasons in support of the existing order (K.M. v. J.R., at para. 70; M.A.B. v. M.G.C., at para. 163).
The change in circumstances relied on must relate to the condition, means, needs or other circumstances of the child, and/or the ability of the parties to meet those needs (Gordon, at para. 3; Persaud, at para. 4; M.A.B. v. M.G.C., at para. 163; Khairzad, at para 81).
The change in circumstances must also be relevant to the parenting issues in that it affects or is likely to affect the best interests of the child.
The threshold test can be met based on a single change or event, or a combination of changes in circumstances (K.M. v. J.R., at para. 70).
In addition, to satisfy the “change” element, the circumstance relied on must be one that was either not foreseen, could not have been reasonably contemplated by the judge who made the existing order, or was clearly not factored into the decision-making when the order was made (Gordon, at para. 13; Persaud).
A change in circumstances will only meet the threshold test if it is “material” in nature. To be material, the change must be such that if it had been foreseen, reasonably contemplated by the judge, or factored into the decision-making at the time the order was made, it would likely have resulted in different terms (Thompson v. Drummond, 2018 ONSC 1975 (S.C.J.), at para. 36; V. v. V., 2021 ONSC 4380 (S.C.J.), at para. 14; A.E. v. A.E., 2021 ONSC 8189 (S.C.J.), at para. 87; K.M. v. J.R., at para. 70; M.A.B. v. M.G.C., at para. 163).
Furthermore, a change in circumstances will only be considered “material” in the context of a parenting order variation proceeding if it is significant and reasonably long-lasting in nature; trivial or short-lived changes will not justify a variation (Thompson, at para. 37; V. v. V., at para. 15; A.E. v. A.E., at para. 88; K.M. v. J.R., at para. 70).
The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.)). Not every circumstance, event or mistake by a party that affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff’d 2014 ONCA 225 (C.A.), “[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”
The threshold test can also be satisfied by evidence that circumstances which the court and/or the parties anticipated would occur did not in fact materialize, or where there were expectations at the time of the order respecting the parties’ future conduct and those expectations did not materialize (M.A.B. v. M.G.C., at para. 163).
A party’s non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have affected or are likely to affect the child’s best interests (Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.); Roloson v. Clyde, 2017 ONSC 3642 (S.C.J.), at para. 50; M.S. v. D.F.M.A., 2020 ONCJ 497 (O.C.J.), at para. 38; M.A.B. v. M.G.C., at para. 163).
Evidence of conflict between the parties and the child’s exposure to such conflict since the existing order was made may not satisfy the threshold test where the same problems existed when the order was made. (Litman; Goldman v. Kudelya, 2017 ONCA 300 (C.A.); Roloson, at para. 51; Joachim v. Joachim, 2021 ONSC 8584 (S.C.J.)). However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman; Roloson, at para. 51; M.A.B. v. M.G.C., at para. 163).
Changes in the child’s age and level of maturity will not generally in and of themselves satisfy the threshold test for varying a parenting order (Gray v. Wiegers, 2008 SKCA 7 (C.A.)). However, the test may be met if the child’s needs have materially changed because of those factors since the existing order was made, with the result that the terms of the order are no longer in the child’s best interests (Elliott v. Loewen, 1993 CarswellMan 36 (C.A.); K.M. v. J.R., at para. 70; McMaster-Pereira v. Pereira, 2018 ONSC 7090 (S.C.J.)).
The test may also be satisfied if the terms of the existing order or the Reasons for Judgment in support of the order specifically contemplated changes to the order if certain events occurred, and those developments in fact transpired.
The caselaw has established that the concept of a “material change in circumstances” in the context of parenting order variation proceedings must be viewed flexibly, to accommodate a host of factual developments that may have evolved since the existing order was made (Thompson, at para. 36; A.E. v. A.E., at para. 87; M.A.B. v. M.G.C., at para. 163) .
C. Reviews of Final Parenting Orders
276In making a parenting order under the Divorce Act, the court may by virtue of section 16.1(5) of the Act make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. This permits the court to make a parenting order reviewable in the future at a specified time. The fundamental difference between a proceeding to vary a parenting order pursuant to section 17(1) of the Divorce Act and an application to review an order is that it is not necessary to establish a material change in circumstances as a threshold criterion in a review proceeding (D.F. v. R.W.F., 2025 ONCA 1929 (C.A.); Cuthbert v. Nolis, 2024 ONCA 21 (C.A.), at para 11; S.H. v. D.K., 2022 ONSC 1203 (S.C.J.), at paras. 21 to 23; M.(K.A.A.) v. M. (J.M.), 2005 NLCA 64 (C.A.), at paras 25-36; Sappier v. Francis, 2004 NBCA 70 (C.A.), at para. 9). The caselaw is clear that review terms in final parenting orders are not the norm, since courts should generally resolve the controversies before them and make a permanent order subject only to proof of a material change in circumstances (Cuthbert, at para. 12; Fournier v Fournier, 2020 ONSC 606 (S.C.J.), at paras. 84-85; Y.M.S. v. R.O.S., 2021 ONSC 6684 (S.C.J.), at para. 70). Another rationale for limiting the availability of parenting order reviews is that it is generally in the best interests of children to establish a sense of stability and finality respecting their parenting arrangements following family breakdown (M.(K.A.A.), at para. 26; Cuthbert, at para. 12). For these reasons, the Ontario Court of Appeal held in Cuthbert that a review term in a parenting order should be limited to situations where there is a genuine and material uncertainty respecting a party’s or a child’s circumstances when the order is made, and the trial judge concludes that they are not able to finally determine the appropriate parenting arrangements. It also emphasized that where a review order is granted, it should be tightly delimited with respect to the issue or issues that will be subject to review (at paras. 12-14).
D. Assessing the Child’s Best Interests: Elaboration Upon the Relevant Factors and Considerations
1. General Principles Respecting the Best Interests Analysis
277In cases involving parenting issues, all parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements (Persaud; S.V.G. v. V.G., 2023 ONSC 3206 (S.C.J.), at para. 89; V.K.G. v. I.G., 2023 ONSC 6329 (S.C.J.), at para. 108).
278The list of considerations relevant to the best interests analysis set out in section 16 of the Divorce Act is not exhaustive. For instance, a parent’s history of conduct regarding the child’s financial needs is not specifically enumerated, but the courts have held that a party’s failure to financially support their children regularly in a responsible manner is a relevant consideration in assessing where the child’s best interests lie (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)). The considerations that the court should focus on in assessing the child’s best interests, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case (Gordon; Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.), at para. 13; Barendregt, at para. 97; B.J.T. v. J.D., 2022 SCC 24 (S.C.C.), at para. 55). As the Supreme Court of Canada highlighted in Barendregt, at para. 8, the best interests inquiry “is a heavy responsibility, with profound impacts on children, families and Society. In many cases, the answer is difficult - the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.” The court is not required to specifically enumerate and analyze all of the criteria set out in section 16 of the Act, but rather must consider all of the relevant information in the particular case before it (Walsh v. Walsh, 1998 CanLII 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.); Phillips v. Phillips, 2021 ONSC 2480 (S.C.J.), at para. 47; A.E. v. A.E., at para. 89; V.K.G. v. I.G., at para. 108). The wide array of factors relevant to the best interests analysis under the Divorce Act allows for a uniquely tailored analysis of the parenting issues, woven from the particular condition, means, needs and circumstances of the child whose wellbeing is under consideration.
279The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than the parents’ perspectives; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at paras. 74 and 202; Gordon, at pp. 50, 54, 68; F. v. N. 2022 SCC 51 (S.C.C.), at para. 61). However, the court has also recognized that “a child’s best interests are furthered by a well-functioning and happy parent” and that this symbiotic connection must therefore be considered as part of the best interests assessment (Barendregt, at para. 169). As the court stated in Barendregt, at para 173:
It is often difficult to disentangle the interests of a parent from the interests of a child. Indeed, "the reality that the nurture of children is inextricably intertwined with the wellbeing of the nurturing parent" is far from novel: Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801, at p. 845; see also Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.), at pp. 724-25, per L'Heureux-Dubé J. A child's welfare is often advanced in tandem with improvements in the parent's financial, social, and emotional circumstances.
280In carrying out the best interests analysis, the court should not apply a standard of perfection to parents (S.V.G. v. V.G., at para. 93). Megaw J. emphasized this point in Prime v. Prime, 2020 SKQB 326 (Q.B.), where he stated as follows at para. 59:
I am mindful the determination of the best interests of the children is not based on a picture of perfect parenting by either party. The course of family life is such that specific incidents, which do not actually endanger or adversely affect children, do not impact the final decision. The court must consider the entirety of the situation involving the children. Parents are not expected to be free of mistake or misstep. They are expected to have the best interests of their children in mind. And, they are expected to parent in accordance with these best interests.
2. Family Violence Considerations
i. General Principles Respecting Family Violence
281As discussed above, section 16(3)(j) of the Divorce Act requires the court to consider any family violence and the impact of such violence on any matter relevant to the child’s best interests. Section 16(4) outlines specific factors that the court must take into account in considering the impact of family violence. Section 16(2) of the Act also highlights the need for courts to consider family violence issues by specifically directing that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing when determining their best interests. The mother has made serious allegations of family violence by the father towards herself, and by the father and the grandparents towards C.M.M. The father has also made serious family violence allegations against the mother. It is therefore necessary to consider in more detail the scope of these family violence provisions. The CLRA now includes similar provisions relating to family violence, and therefore the caselaw respecting those provisions is also relevant.
282Concerns about family violence have always been a significant consideration in conducting the best interests analysis in parenting cases. However, the family violence provisions of the Divorce Act provide much-required guidance to the parties, counsel and the courts to ensure that decision-making about parenting issues reflects the current knowledge about the full impact of family violence on children and other family members. The definition of “family violence” in the Divorce Act is far-reaching, and the list of examples of conduct that fall within its scope is non-exhaustive; it simply catalogues some of the most prevalent forms of family violence. The definition goes far beyond acts of physical aggression towards individuals or objects and extends to actions that undermine a person’s physical, emotional and financial autonomy or their general psychological or emotional wellbeing. The broad definition recognizes the many insidious forms that domestic violence can take and accords each equal weight in the best interests assessment.
283Significantly, the expansive scope of the family violence provisions also reflects the many ways in which children may be victimized by such violence, and the importance of appreciating the various forms that child victimization may take in carrying out the best interests assessment. The definition of “family violence” in section 2 of the Divorce Act clarifies that in the case of a child, family violence includes both direct and indirect exposure to the violence. Accordingly, as I have emphasized in previous decisions, including M.A.B. v. M.G.C., at para. 174, S.V.G. v. V.G., at para. 96, and V.K.G. v. I.G., at para. 113, children may suffer family violence in the following ways:
The child may be the direct victim of family violence if the abusive conduct is inflicted specifically towards them.
The child may also be victimized by direct exposure to family violence towards another family member, if they observe the violence or are close by when it occurs and are able to see or hear what is happening.
The child may also be indirectly exposed to and victimized by family violence towards other family members in many ways. For instance, they may experience the aftermath of the violence. This can include observing the family member’s physical injuries or emotional distress following the violence, hearing about the violence after it has occurred, seeing changes in the victim’s behaviour due to the violence, and becoming embroiled in a police or child protection investigation relating to the violence. Where the directly victimized family member is a parent, the child can also suffer indirect consequences of the violence if the parent’s physical, emotional and psychological wellbeing are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
284The comprehensive and far-reaching nature of the family violence provisions in the Divorce Act represents a statutory recognition of the profound direct and indirect destructive effects that family violence in its many forms can have on children. The Supreme Court of Canada recently commented on these consequences in Barendregt, stating as follows (at para. 143):
The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497.
285Having regard for the damaging impacts of family violence, the courts must construe family violence provisions in a broad and purposive manner so as to maximize the protective scope of the provisions for children and their family members who are facing family violence in its many forms. As I have emphasized in many of my previous decisions, this approach is mandated by the general principles of statutory interpretation that legislative provisions must be construed in their entire context and grammatical and ordinary sense, and in a fair, large and liberal manner that best ensures the attainment of their objects (Michel v. Graydon, 2020 SCC 24 (S.C.C.), at paras. 21, 40, 54 and 69; M.A.B. v. M.G.C., at para. 176). A broad, liberal and purposive interpretation of the family violence provisions is also mandated by the general principle that legislation must be construed in a manner that supports compliance with our international law obligations (Michel, at para. 103). In this regard, Article 19 of the United Nations Convention on the Rights of the Child, 1989, Can T.S. 1992 No. 3 requires that parties to the convention take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents or others who have care of the child. Article 3 stipulates that in all actions concerning children, including those of the courts, the best interests of the child shall be a primary consideration (M.A.B. v. M.G.C., at para. 176).
ii. The Importance of Identifying the Specific Type of Family Violence
286The broad definition of “family violence” is multi-tiered and overlaps on many fronts. Many types of behaviour may fall within various aspects of the “family violence” definition. It is important to identify specifically how each alleged incident of violence may meet the definition of “family violence,” because this assists the court in understanding precisely how the family violence has impacted the victim. A full appreciation of the impact of the family violence is in turn critical to the court’s ability to formulate a decision-making and parenting time framework that addresses the concerns and fosters the child’s best interests. A clear identification of the grounds for finding that behaviour constitutes family violence is particularly critical where it forms part of a pattern of coercive and controlling behaviour or it causes family members to fear for a person’s safety. This is because these two factors must also be specifically weighed in considering the impact of the family violence, by virtue of sections 16(4)(b) and (f) of the Divorce Act.
287The concept of “coercive and controlling behaviour” is distinct from other forms of family violence in that it can consist of many different types of acts occurring over time which, in isolation, do not seem abusive or significant, but which paint a picture of a very destructive relationship when viewed in their totality. Accordingly, the significance of the individual incidents can only be truly understood when viewed from the perspective of the larger picture. In addition, a pattern of coercive and controlling behaviour is particularly concerning because it is easier to inflict in its various forms post-separation than other types of family violence. The Divorce Act does not define the terms “coercive” and “controlling,” and indeed, doing so would have unduly tied the hands of triers of fact in attempting to address this type of family violence. Coercive control in familial relations has many faces, and it is chameleon-like in the ways in which it can evolve, transform and ebb and flow over time. It is therefore difficult to articulate a precise definition of coercive and controlling behaviour that would be sufficiently flexible and organic to include all types of coercive and controlling conduct that may develop and evolve in a family situation. However, further to the principles of legislative interpretation discussed above, the concept of “coercive and controlling behaviour” should be interpreted in a large and liberal manner that best ensures the attainment of the objects of the family violence provisions of the legislation, which are to protect and promote the safety and wellbeing of family members. To date, the caselaw reflects such a broad and purposive approach to the scope of this type of family violence. As I have discussed in previous decisions including M.A.B. v. M.G.C., at para. 183 and V.K.G. v. I.G., at para. 117, a general review of this caselaw indicates that “coercive” behaviour includes conduct that is threatening, intimidating or exerts inappropriate pressure on the other person. Behaviour is broadly being considered as “controlling” if its intent or effect is to inappropriately manage, direct, restrict, interfere with, undermine or manipulate any important aspect of the other person’s life, including their important relationships and their physical, emotional, intellectual, spiritual, social and financial autonomy or wellbeing.
288The determination of whether behaviour constitutes a pattern of coercive and controlling behaviour will obviously turn on the unique facts of each case (Ginese v. Fadel, 2024 ONSC 2427 (S.C.J.). However, in considering the issue, it is helpful to consider the general types of behaviour that that have been considered in the caselaw as being coercive and controlling. These include, without limitation, the following:
Isolating the person from friends and family;
Depriving the person of basic needs, such as food;
Monitoring the person’s time;
Monitoring the person via online communication tools or spyware;
Taking control over aspects of the person’s everyday life, such as where they can go, who they can see, what they can wear and when they can sleep;
Controlling aspects of the person’s health and body;
Depriving the person of access to support services, such as medical services;
Humiliating, degrading or dehumanising the person;
Repeatedly making jealous accusations;
Regulating the sexual relationship;
Inappropriately controlling the person’s finances, limiting access to financial support or controlling how they spend money;
Making threats or intimidating the person;
Threatening to harm children, other people or pets;
Threatening to publicize sensitive information about them;
Threatening to report them to police or other authorities without justification;
Damaging property;
Pressuring them to participate in activities against their will;
Setting inappropriate rules and regulations for the person;
Inappropriately blaming the person for issues;
Repeatedly treating the person with disrespect in private and in front of others;
Stalking the person;
Inflicting physical, sexual, verbal or financial abuse;
Gaslighting the person, by using various tactics including denial, misdirection, contradiction, withholding and hiding information, discounting information and lying to make them question their own memory, perception, emotional stability and sanity;
Not allowing the person to go to work or school;
Threatening to take actions that could threaten their employment;
Taking the person’s electronic devices and changing passwords;
Repeatedly reinforcing traditional gender roles; and
Turning children against the person, ie. alienation.
289Following separation or divorce, a party may use different means of asserting control over their former partner, either directly or through the children. Examples of post-separation coercive and controlling behaviour as accepted in the caselaw are:
Refusing to comply with court orders;
Regularly threatening a former partner with the loss of parenting time with a child;
Constantly making unilateral decisions about children without legal authority to do so;
Encouraging the children to disrespect the other parent, or otherwise undermining the other party’s parenting;
Picking up or dropping off children late;
Refusing to make support payments on time or at all;
Sharing inappropriate information with children, or regularly involving them in adult issues;
Excessively e-mailing, phoning or texting the former partner;
Stalking, harassing, or threatening to hurt someone;
Filing false reports with the police or a child protection agency;
Inappropriately undermining the person’s relationship with their children,; and/or
Engaging in frivolous or abusive tactics in relation to the legal process
290As examples of the broad and purposive interpretation, the courts have made findings of a pattern of coercive and controlling behaviour following the separation of parties in cases where a parent has made numerous unsubstantiated allegations against the other party or family members (Armstrong v. Coupland, 2021 ONSC 8186 (S.C.J.); Armstrong v. Coupland, 2023 ONSC 5451 (S.C.J.); I.S. v. J.W., 2021 ONSC 1194 (S.C.J.); K.M. v. J.R.; Ammar v. Smith, 2021 ONSC 3204 (S.C.J.); M.A.B. v. M.G.C.; S.V.G. v. V.G.; V.K.G. v. I.G.), where a party has engaged in a pattern of inappropriate litigation tactics to gain an advantage in the Family Law case (I.S. v. J.S., 2021 ONSC 1194 (S.C.J.); S.V.G. v. V.G.), and where a party has engaged in behaviour that has had the effect of undermining the other parent’s authority or influence and alienating the child from that parent without justification (E.V. v. V.-E., 2021 ONSC 7694 (S.C.J.); Ammar; I.S. v. J.W.; S.S.G. v. S.K.G., 2022 ABQB 130 (Q.B.), per Devlin J.; M.A.B. v. M.G.C.; S.V.G. v. V.G.; V.K.G. . I.G.).
291I have indicated that behaviour may constitute family violence within the meaning of section 2(1) of the Divorce Act if it causes a family member to fear for their own safety or for that of another person. It is well established in the law respecting restraining orders that that notion of fearing for one’s safety or that of another person extends not only to physical safety, but also to the person’s emotional and psychological safety (Lawrence v. Bassett, 2015 ONSC 3707 (S.C.J.), per Kiteley J.; Tiveron v. Collins, 2017 ONCA 462 (C.A.); Stephens v. Somerville, 2021 ONSC 1958 (S.C.J.), per Mitrow J.; Reis v. Lovell, 2022 ONSC 1201 (S.C.J.), at para. 52; S.V.G. v. V.G., at para. 101). In the Family Law context, it has been found that a parent’s behaviour of exposing a child to conflict and constantly undermining the other parent or family member in the eyes of the child may also constitute family violence if it causes them to fear for the psychological and emotional safety of the children (Tone v. Tone, 2021 ONSC 3747 (S.C.J.), per Fowler-Byrne J.).
292The related notion of psychological abuse is separately identified as a form of family violence in section 2(f) of the Divorce Act. The Collins English Dictionary defines the word “psychological” broadly as meaning “concerned with a person’s mind and thoughts.” Where psychological abuse is alleged, there is often a tendency to focus on whether clear psychological harm has occurred as part of the determination of whether there has been abusive conduct. However, the first step is to determine whether the alleged actions are psychologically abusive. Evidence that the conduct has led to psychological harm to the victim is relevant in addressing the impact of the abuse and the crafting of an appropriate parenting order. In determining whether psychological abuse has caused psychological harm, expert evidence is helpful but is not required (Tone; M.A.B. v. M.G.C., at para 186; S.V.G. v. V.G., at para. 102; V.K.G. v. I.G., at para. 119). The caselaw relating to the concept of psychological abuse establishes that making numerous unsubstantiated allegations of abuse to police, child protection authorities and other professionals can fall within the scope of this type of family violence (K.M. v. J.R.; Ammar; M.A.B. v. M.G.C.; S.V.G. v. V.G.; V.K.G. v. I.G.), as can engaging in behaviour that undermines the other parent and alienates a child from that parent (E.V. v. V.-E.; Bors v. Beleuta, 2019 ONSC 7029 (S.C.J.), aff’d 2021 ONCA 513 (C.A.); Ammar; M.A.B. v. M.G.C.; S.V.G. v. V.G.; V.K.G. v. I.G.).
iii. Assessing the Credibility and Reliability of Family Violence Allegations
293As I discussed at length in M.A.B. v. M.G.C., S.V.G. v. V.G. and V.K.G. v. I.G, assessing the credibility and reliability of family violence allegations is a challenging exercise that requires a solid appreciation of the overall context within which family violence occurs (see also Barendregt, at para. 183). This context includes the typical dynamics of violent relationships between family members, the impact of violence on the victims and their ability to disclose the violence, and other social, spiritual, economic and cultural considerations that may be preventing the victim from talking about the violence. Having regard for the complex social dynamics around family violence, the courts must resist assessing a claimant’s credibility against stereotypical notions of what a victim should have done in similar circumstances. The reason for this is that trauma can significantly affect a victim’s cognitive functioning and physiology in many ways, and therefore victims of family violence may not react or interact in ways that one may generally expect them to (R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.), at pp. 871-890; R. v. Naslund, 2022 ABCA 6 (C.A.), at para. 141; A. v. A., 2022 ONSC 1303 (S.C.J.), at para. 63; McLellan v. Birbilis, 2021 ONSC 7048 (S.C.J.), at para. 72, per Tellier J.; Kohli v. Thom, 2025 ONCA 200 (C.A.)).
294The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., 2021 ONCJ 441 (O.C.J.), at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).
295Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the furtherance of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence allegations are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair, 2022 ONSC 2154 (S.C.J.), per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4786 (S.CJ.); A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29; M.A.B. v. M.G.C.; S.V.G. v. V.G.; V.K.G. v. I.G.).
296The fact that there have been criminal investigations or charges related to allegations of family violence, and the outcome of those charges, may be relevant in addressing the family violence claims in Family Law proceedings, but they will not be determinative of whether the violence occurred (Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.), at para. 41; Matthew v. Barazmi, 2021 ONSC 7240 (S.C.J.); M.A.B. v. M.G.C., at para. 181). By the same token, the fact that criminal charges have been withdrawn is not determinative, having regard for the lower standard of proof in Family Law proceedings as compared to criminal prosecutions.
3. The Ability and Willingness of Parties to Communicate and Cooperate on Matters Affecting the Child
297The ability of parties to communicate and cooperate on matters affecting the children is typically seen as particularly important to the issue of parental decision-making. However, this is also a critical consideration in framing parenting time and other parenting terms that are in the child’s best interests. Evidence that a party is unwilling without justification to communicate and cooperate respectfully about parenting matters provides insight into that party’s overall general attitude towards the other party. It may underscore the need to include special protections or clarifications in the order for the benefit of the other party in order to safeguard their influence and role in the child’s life and eliminate opportunities for the other parent to undermine their relationship with the child.
4. The Parenting Time Factor
298As noted above, section 16(6) of the Divorce Act requires that in allocating parenting time, the court must give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. This principle, referred to in the past as “the maximum contact principle,” recognizes that generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it benefits the child. However, the principle is simply a guide, and it does not create a presumption in favour of equal time or maximum time with each parent. It always remains subject to the overriding best interests test and the paramount considerations set out in section 16(2) of the Divorce Act of the child’s physical, emotional and psychological safety, security and wellbeing (Barendregt, at paras. 9, 125, 135; Knapp v. Knapp, 2021 ONCA 305 (C.A.), at para. 34). In Barendregt, the Supreme Court of Canada directed that going forward, the principle should be referred to as “the parenting time factor” rather than the maximum contact principle” to reinforce the child-centric nature of the inquiry (at para. 135). The courts have clearly emphasized over the years that if increasing parenting time with a parent would not in fact support the child’s best interests, it should not be ordered (Young, at para. 40; Gordon, at p. 49; Barendregt, at paras. 9, 135; B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4; Knapp, at para. 30).
5. The Child’s Views and Preferences
299Section 16(3)(e) of the Divorce Act specifically enumerates the child’s views and preferences as a relevant factor that the court must consider in carrying out the best interests analysis, unless they cannot be ascertained. It also highlights that in weighing this consideration, the court must give due weight to the child’ s age and maturity. In R.G. v. KG, 2017 ONCA 108 (C.A.), the Ontario Court of Appeal highlighted the emerging movement to incorporate the voice of the child in all matters concerning minors. It emphasized that the extent to which the court will follow the child’s wishes will depend on their age and level of maturity, and will ultimately be subject to the judge’s general discretion after balancing all relevant factors in the case before it (at para. 67). Subsequently, in Knapp the Ontario Court of Appeal reiterated that the views and preferences of children must be considered in all matters affecting them, but underscored that they must be assessed in the overall context surrounding the expression of those views. In this regard, it emphasized that the court must consider whether there is any evidence suggesting that the child’s views have been inappropriately influenced in any way, including by the conduct or comments of a party to the case. In the earlier case of Decaen v. Decaen, 2013 ONCA 218 (CA), the Ontario Court of Appeal set out a non-exhaustive list of considerations that the court should weigh in assessing the overall context surrounding a child’s expressed wishes, and the weight that should be accorded to their views and preferences. These include the following:
Whether both parents are able to provide adequate care for the child;
How clear and unambivalent the wishes are;
How informed the expression is;
The age of the child;
The child’s maturity level;
The strength of the expressed wishes;
The length of time the preferences have been expressed for;
Any practicalities involved in implementing the wishes;
Any influence of the parent(s) in regard to the expressed wishes or preferences;
The overall context in which the wishes and preferences were expressed; and
The circumstances of the preferences from the child's point of view:
6. The Relevance of the Statutory Duties on Parties in Assessing the Child’s Best Interests and Formulating an Appropriate Parenting Order
300As I discussed at length in M.A.B. v. M.G.C., S.V.G. v. V.G. and V.K.G. v. I.G., the duties imposed on parties pursuant to sections 7.1 to 7.5 of the Divorce Act set out basic ground rules that they are expected to comply with in carrying out their parenting responsibilities and privileges. Section 16 of the Act does not specifically enumerate a party’s ability and willingness to comply with these duties as best interests factors that the court must consider, but they are by necessary implication key considerations in deciding upon the most appropriate decision-making and parenting time arrangements for children. Failing to comply with these duties may raise serious concerns about a parent’s capacity to prioritize their child’s interests above their own, to appreciate the child’s need for a peaceful upbringing, and to respect the rule of law (see also Armstrong v. Coupland, 2023 ONSC 5451, at para. 660 (S.C.J.)).
301Focussing on section 7.2 of the Divorce Act, the duty imposed on parties to protect children from conflict arising from court proceedings is a statutory recognition that children’s exposure to conflict can significantly undermine their overall functioning and wellbeing and underscores that the parties’ ability to comply with this duty must factor prominently in the best interests assessment. The caselaw has rolled this duty into the best interests analysis as a key consideration in deciding all parenting issues and crafting parenting frameworks that support the child’s needs and wellbeing (see for example M.A. v. M.E., 2021 OCJ 555 (O.C.J.), per Sherr J.; V.M.W. v. J.Mc.-M., per Zisman J.; Tone; J.L.Z. v. C.M.Z., 2021 ABCA 200 (C.A.); M.A.B. v. M.G.C.). As Pazaratz J. accentuated in K.M. v. J.R., if parties are unable to safeguard children from conflict, the court must take matters into its own hands by uncovering and exposing the sources of the conflict and imposing terms targeted at eliminating those causes. Pazaratz J. emphasized that in framing the terms of a parenting order, shielding children from conflict must always take priority over parental rights, preferences and convenience, and it may be necessary for the sake of the child to impose terms that are costly and challenging for parties to accept and comply with (at para 352).
302The duty set out in section 7.3 for parties to attempt, where appropriate, to resolve their Family Law issues through a family dispute resolution process, coupled with the court’s power set out in section 16.1(6) of the Act to direct parties to participate in such a process, reflect a general trend in Family Law away from an adversarial culture of litigation towards a culture of negotiation (Colucci v. Colucci, 2021 SCC 24 (S.C.C.), at para. 69). In Colucci, the Supreme Court of Canada emphasized that in the absence of family violence or significant power imbalances, parents should be encouraged to resolve their disputes themselves outside of court. It stressed that reaching a negotiated settlement of Family Law issues “not only saves resources but also reduces the need for future court applications by setting up a less acrimonious relationship between the parties” (at para. 69). The willingness of parties to engage in family dispute resolution processes in appropriate circumstances during the course of litigation to address parenting issues, and their overall conduct while participating in such processes, are relevant considerations in carrying out the best interests analysis at trial. These factors may reveal a great deal about the parties’ openness to accessing professional support when appropriate, their ability to cooperate with each other and professionals in relation to child-related issues and their capacity to place their children’s needs and interests above their own.
E. Additional Considerations in Determining the Appropriate Decision-Making Framework
303As I have indicated, section 16.3 of the Divorce Act provides that the court may allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either spouse, to both spouses, to another person authorized to seek a parenting order or to any combination of those persons. This provision gives the court a wide discretion to craft a tailor-made decision-making responsibility framework that supports and promotes the best interests of the child before the court, taking into consideration the unique facts of each case. The options available to the court include the following:
It may grant sole decision-making responsibility in all areas to one spouse.
It may grant joint decision-making responsibility in all areas to both spouses.
It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility, but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
Another option open to the court is to require the parties to engage in all reasonable efforts and take all reasonable steps to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement. This option typically includes a detailed decision-making framework that establishes timelines for parties to exchange their positions and information on issues and requires them to take particular steps in an attempt to decide matters jointly.
304As I emphasized in S.V.G. v. V.G., with respect to option #5, it is important to emphasize that it is quite distinct from an order that is often made in Family Law granting one party sole decision-making responsibility but requiring them to consult with the other party before making a final decision. The latter model requires the sole decision-maker to solicit and consider the other parent’s input but nothing more. Option #5 requires much more of both parties, in that the expectation is that they will both “roll up their sleeves” and actively engage in all reasonable efforts to reach a consensus. While the distinction may appear subtle on its face, it is important and can yield different results for a child than an order for sole decision-making with consultation. It gives the party who does not have “final say” greater involvement in the decision-making process and more opportunity to ensure that the other parent obtains all relevant information to reach the best decision for the child. For these reasons, it is an important alternative that lies between options of a sole decision-making with consultation framework and a straight joint decision-making arrangement (McBennett v. Danis, 2021 ONSC 3610 (S.C.J)). The Ontario Court of Appeal recognized this as a distinct decision-making framework and upheld it on appeal in the cases of T.J.L. v. E.B., 2019 ONSC 6096 (S.C.J.), aff’d 2021 ONCA 75 (C.A.) and Bourke v. Davis, 2021 ONCA 97 (C.A.).
305In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties (Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.), at para. 109; Jackson v. Mayerle, 2016 ONSC 72 (S.C.J.); Ruffudeen v. Coutts, 2016 ONSC 3359 (S.C.J.)). Furthermore, as the Ontario Court of Appeal noted in M. v. F., 2015 ONCA 277 (C.A.), notwithstanding the positions of the parties, the court may decline to make any decision-making designation if such an approach is in the best interests of the child.
306A rich body of caselaw evolved over the years regarding the factors that the courts should consider in formulating decision-making regimes that support the best interests of children. The important considerations that were identified are now generally reflected in the provisions of the Divorce Act discussed above in relation to the best interests analysis. However, the caselaw respecting the determination of appropriate decision-making frameworks remains relevant and should continue to guide the courts in addressing this issue. That caselaw reflects that the following principles are pertinent in determining whether it is in the best interests of a child to order joint decision-making responsibility in all or some areas respecting the child’s wellbeing:
There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (C.A.); Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), 2005 CarswellOnt 268 (C.A)).
Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children (Kaplanis; McBennett, at para 97).
In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. Where there is a history of significant conflict that has impacted the functioning and parenting of the parties and the wellbeing of the child, these factors will support an order for sole decision-making responsibility (Roth v. Halstead, 2017 ONCJ 593 (O.C.J.), at para. 299). The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement (Kaplanis; Roy v. Roy, 2004 CarswellOnt 8591 (S.C.J.), reversed in part 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.); Brown v. Brown, 2021 ONSC 1753 (S.C.J.)).
The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making (Berman v. Berman, 2017 ONCA 905 (C.A.), at para. 5).
The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children. As Quinn J. remarked in the often-quoted case of Brook v. Brook, 2006 CarswellOnt 2514 (S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.” The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord (Grindley v. Grindley, 2012 CarswellOnt 9791 (S.C.J.); Sader v. Kekki, 2013 ONCJ 605 (O.C.J.), at para. 115).
The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate (Kaplanis, at para. 11; Ladisa). The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact negatively on the wellbeing of the child.
If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the turmoil reasonably well and make decisions in the child’s best interests when necessary, an order involving joint decision-making may be appropriate (Ladisa). The issue for the court’s determination is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (S.C.J)).
In addition, where there has been some conflict in reaching decisions, the court should consider whether the differences in perspectives and the sharing of information supporting those perspectives have ultimately resulted in more positive outcomes for the child. Evidence of challenges in working through parenting issues that result in better results for the child may support joint rather than sole decision-making (Campbell v. Lapierre, 2017 ONSC 1645 ONSC (S.C.J.), at paras. 48-50).
In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication (Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.); Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)). Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707 (O.C.J.); Liu v. Huang, 2020 ONCA 450 (C.A.)).
However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis; Ladisa; Graham v. Bruto, [2007] O.J. No. 656, aff’d 2008 ONCA 260 (C.A.), Iannizzi v Iannizzi, 2010 ONCA 519 (C.A.), at para. 2). This principle applies even where both parties are attentive and loving parents (Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.), at para. 504).
The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate (Milford. v. Catherwood, 2014 CarswellOnt 7879 (O.C.J.)).
A party’s failure to financially support their children in a responsible manner may militate against an order for joint decision-making responsibility, as this reflects poor judgment and an inability to prioritize the child’s interests and needs (Jama; L.B. v. P.E.).
In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome (McBennett; S.V.G. v. V.G.).
In situations involving children with specific needs, the extent of the parties’ involvement in addressing those needs and their willingness to consider reasonable recommendations from knowledgeable and experienced professionals involved with the child in addressing those needs are important considerations (Roth, at para. 306; Duclos v. Davis, 2018 ONSC 6088 (S.C.J.), at para. 36(d); Keown v. Procee, 2014 ONSC 7314 (S.C.J.), at paras. 20-25; S.A.P. v. D.M.P, 2020 ABQB 811 (Q.B.), at paras. 20-22).
In addition, in situations where there is conflict regarding a course of treatment or therapy for a child, evidence that a parent has drawn the child into the conflict by attempting to make them an ally in their position on the issue may support an order for decision-making in favour of the other party (Gugus v. Gilodeau, 2020 ONSC 2242 (S.C.J.), at paras. 24 and 33).
Another important consideration in situations involving children with specific needs is the need for timeliness in decision-making. If the evidence indicates that efforts to reach parenting decisions has led to inappropriate delays in addressing the child’s needs, with no positive outcomes for the child, this may support an order for sole rather than joint decision-making (S.D.H. v. T.H., 2016 BCSC 380 (S.C.), at para. 145; Roth, at para. 305).
In cases involving young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint decision-making arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).
The wishes of the child will also be relevant to the determination of the appropriate decision-making disposition in cases involving older children. Although a child’s wishes in such circumstances may not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).
Evidence as to how an interim parenting order or status quo has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime.
307The caselaw has also established some valuable principles and guidelines for assisting the courts in deciding whether to make orders that divide out specified areas of decision-making responsibility to each party. These would include orders requiring the parties to attempt to make decisions jointly, but which grant each party final say in specified areas of decision-making in the event of disagreement. Courts have recognized there are many merits to these types of regimes in appropriate cases. They give both the child and the parents the benefit of maintaining each parent as a meaningful player in the child’s life, over and above time-sharing with the child. In addition, by delineating clear areas of decision-making between the parties, these arrangements have the potential in appropriate cases to disengage the parties and reduce parental discord (Hensel v. Hensel, 2007 CarswellOnt 7010 (S.C.J.), at para. 30; Jackson v. Jackson, 2017 ONSC 1566 (S.C.J.) at para. 69). The cases highlight the following factors and considerations as being relevant in deciding whether an order that allocates separate aspects of decision-making responsibility between the parties is in a child’s best interests:
The strength of the parties’ ties with the child, and their historical level of involvement with the child are critical to the analysis (see for example Andrade; H.(K.) v. R.(T.K.), 2013 ONCJ 418 (O.C.J.); B.(M.) v. T.(D.), 2012 ONSC 840 (S.C.J.); Hoffman v. Hoffman, 2013 ONSC 395 (S.C.J.); Jackson v. Jackson; McBennett).
The relative parenting abilities of each parent and the quality of their decision-making respecting the child are also important considerations (Ryan v. Scott, 2011 ONSC 3277, 2011 CarswellOnt 5924 (S.C.J.); Hajkova v. Romany, 2011 ONSC 2850, 2011 CarswellOnt 3237 (S.C.J.); Scervino v. Scervino, 2011 CarswellOnt 7845 (S.C.J.); H. (K.) v. R. (T.K.); Izyuk v. Bilousov; Hoffman; Warner v. O’Leary, 2014 CarswellNS 319 (S.C.); Suchanek v. Lavoie, 2014 CarswellOnt 1236 (O.C.J.); Jackson v. Jackson).
A desire to ensure formal equality of influence between the parents is not in and of itself sufficient to support a claim for dividing up aspects of significant decision-making (L.(L.) v. C.(M.), 2012 ONSC 3311 (S.C.J.); Jackson v. Jackson).
A history of family violence or any evidence suggesting that there is a significant power imbalance between the parties are factors that militate against such an order, as this type of dynamic may frustrate the objective of achieving an equilibrium of influence through such an order (Hildinger; K.(V.) v. S. (T.); H.(K.) v. R.(T.K.); Docherty v. Catherwood, 2013 CarswellOnt 11366 (S.C.J.); L.(L.) v. C.(M.); Ganie v. Ganie, 2014 ONSC 7500 (S.C.J.); Tiveron; Jackson v. Jackson).
An order allocating aspects of decision-making between the parties will not be considered appropriate where the evidence indicates that one party is seeking this arrangement solely as a means of controlling the other parent, rather than as a means of fostering the child’s best interests (H.(K.) v. R. (T.K.); S.(S.) v. K.(S), 2013 ONCJ 432, 2013 CarswellOnt 10801 (O.C.J.); Jackson v. Jackson; L.B. v. P.E.).
The extent to which each parent is able to place the needs of the child above their own needs and interests is often a compelling consideration (Potter v. DaSilva, 2014 ONCJ 302 (O.C.J.); Heuer v. Heuer, 2016 ONCJ 201 (O.C.J.); Alqudsi; Jackson v. Jackson).
If an allocation of decision-making responsibility between the parties is more likely to intensify than to de-escalate the conflict between the parties, an order granting sole decision-making responsibility to one party may be more appropriate (H.(K.) v. R.(T.K.); S.(S.) v. K.(S.); Suchanek; Jackson v. Jackson; McBennett).
The court should consider whether the parties are likely to be able to navigate basic issues such as scheduling and interpretation of the order, including the dividing line between areas of decision-making responsibility (H. (K.) v. R. (T.K.); S.(S.) v. K.(S.); Izyuk v. Bilousov; Suchanek; Jackson v. Jackson; McBennett).
With respect to parental conflict, the court should also carefully consider whether one party is the major cause of discord between the parties. If this is the case, an order granting sole decision-making to the other party may be the more appropriate choice (H.(K.) v. R. (T.K.); Graham; Warner).
An order carving out areas of decision-making between the parties is by nature detailed and complex, and the success of such a regime will depend largely on the ability of the parties to respect the carefully crafted terms of the order. Accordingly, this type of regime will typically not be granted where one or both of the parties has a history of failing to comply with court orders or processes (Izyuk v. Bilousov; Nova Scotia (Ministry of Community and Social Services) v. F. (B.), 2014 CarswellNS 202 (S.C.); Jackson v. Jackson; McBennett).
Evidence that a party is interfering with or not supporting contact between the child and the other parent, alienating the child from the other parent or marginalizing or undermining the other parent’s role will typically support a sole decision-making regime rather than an order allocating specified areas of decision-making to the parties (Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (C.A.); Chin Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824 (S.C.J.); Rodriguez v. Guignard, 2013 CarswellOnt 503 (S.C.J.); Potter).
F. Supervision of Parenting Time
308The father requests that the mother’s parenting time be supervised. It is therefore necessary to consider the legal principles relating to supervision of parenting time. As with all parenting-related issues, a request for supervised parenting time is governed by the general best interests of the child test and the factors set out in section 16 of the Divorce Act. In applying these factors, the courts have developed several general principles and considerations to assist the court in carrying out the analysis. None of these are determinative, as the outcome of the best interests assessment must always turn on the particular facts of each case and the needs of the child in question. The principles and factors are discussed in the cases of Jennings v. Garrett, 2004 CanLII 17126 (ON SC), 2004 CarswellOnt 2159 (S.C.J.), per Blishen J, Baldwin v. Baldwin, 2015 ONSC 1743 (S.C.J.), per Miller J., Young v. Hanson, 2019 ONSC 1245 (S.C.J.), per Chozik J., B.R.M. v. M.A.E.M., 2021 ONSC 2791 (S.C.J.), per Finlayson J., P.P. v. A.V., 2021 ONSC 7359 (S.C.J.), per Himel J., and H. v. A., 2022 ONSC 1560 (S.C.J.), per Kraft J. Drawing from those decisions and the statutory provisions in the Divorce Act pertaining to the best interests inquiry, the following is a non-exhaustive list of relevant principles and factors to guide the court in deciding whether supervision of parenting time is appropriate:
The imposition of supervision on a parent’s time with a child materially affects the opportunity for meaningful parenting time and the quality of that time. Having regard for the principle set out in section 16(6) of the Divorce Act that a child should have as much parenting time with each parent as is consistent with their best interests, there must be compelling reasons and evidence in support of the need for supervision.
However, it is important to avoid a doctrinal approach to the issue of supervised parenting time, and to refrain from establishing principles that may hover dangerously close to creating presumptions. This is because the best interests analysis is a highly fact-driven and contextualized undertaking that must always revolve around the particular characteristics and needs of the child in question.
The determination of whether supervision of parenting time is in the child’s best interests must take into account society’s developing awareness of social issues that impact on the safety and overall wellbeing of children, including the impact of all forms of family violence on children.
Supervision of parenting time or exchanges may be appropriate where it is necessary to protect children from risk of harm, including exposure to family conflict. In determining this issue, the court should consider all relevant factors, including:
a) Whether there is a history of family violence as that term is broadly defined in the Divorce Act, towards either the child or a family member;
b) Whether the parent has a history of anger management difficulties generally, or aggression towards other people;
c) Does the parent have a history of substance abuse issues, and if so, have they addressed those issues to the court’s satisfaction, and how may those concerns impact the child?
d) Are there flight risk concerns respecting the parent?
e) Are there any concerns regarding the parent’s overall physical, cognitive, mental or emotional health functioning that render supervision appropriate for the safety and wellbeing of the child?
f) Has there been child protection intervention, or is there an ongoing child protection investigation, and if so, have the child protection professionals involved given any temporary or indefinite directions respecting supervision of the party’s parenting time? If so, what are the grounds for such directions?
Supervised parenting time may also be in the child’s best interests where the parent-child relationship has been severed or undermined for any reason, including alienation by the other party or a third party, illness, or geographical distance, and the evidence indicates that supervision by a third party would assist the child in re-establishing the relationship. In these circumstances, supervision may be a valuable tool in implementing a gradual step-up plan for parenting time.
In cases involving older children who are able to articulate their views and preferences, their expressed wish for supervision of parenting time should weigh very heavily in support of such relief.
Supervision of parenting time is often appropriate as a time-limited measure rather than a long-term solution. It represents a significant intrusion upon the parent-child relationship, and therefore its continued imposition must be justified.
However, supervision may be appropriate on an indefinite basis where the evidence suggests that the reasons for the order are unlikely to be addressed in the reasonably foreseeable future.
Where supervised parenting time is ordered, the court should also address whether there are any steps that the party could take to potentially move towards a more natural setting for their parenting time.
Finally, if the court concludes that supervision of parenting time is appropriate, it should also consider whether it can be carried out by family members or friends in a normal family setting rather than by a third party professional or agency. The decision respecting the appropriate form of supervision must be based on the child’s overall best interests and not the other party’s comfort level or personal preferences.
G. Orders Requiring a Party to Undergo an Assessment/Examination
309As I have discussed, the father requests an order requiring the mother to undergo a psychiatric or psychological assessment to determine whether she is suffering from any underlying mental health conditions that may be impacting upon her parenting of C.M.M. The request for this type of relief is governed by section 30 of the CLRA and section 105 of the Courts of Justice Act.
310Section 30 of the CLRA provides as follows:
Assessment of needs of child
30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1); 2020, c. 25, Sched. 1, s. 8 (1).
When order may be made
(2) An order may be made under subsection (1) on or before the hearing of the application and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2); 2020, c. 25, Sched. 1, s. 8 (2).
Agreement by parties
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (3).
Consent to act
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4).
Attendance for assessment
(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. R.S.O. 1990, c. C.12, s. 30 (5).
Refusal to attend
(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (6).
Report
(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7); 2009, c. 11, s. 13 (1).
Copies of report
(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. R.S.O. 1990, c. C.12, s. 30 (8); 2009, c. 11, s. 13 (2).
Admissibility of report
(9) The report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9).
Assessor may be witness
(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10).
Directions
(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11).
Fees and expenses
(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12).
Idem, proportions or amounts
(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. R.S.O. 1990, c. C.12, s. 30 (13).
Idem, serious financial hardship
(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. R.S.O. 1990, c. C.12, s. 30 (14).
Other expert evidence
(15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (15).
311Turning to section 105 of the Courts of Justice Act, that provision stipulates as follows:
Physical or mental examination
Definition
105 (1) In this section,
“health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction. R.S.O. 1990, c. C.43, s. 105 (1); 1998, c. 18, Sched. G, s. 48.
Order
(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
Same
(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
Further examinations
(4) The court may, on motion, order further physical or mental examinations.
Examiner may ask questions
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence. R.S.O. 1990, c. C.43, s. 105 (2-5).
312In A.C.V.P. v. A.M.P., 2022 ONCA 283 (C.A.), the Ontario Court of Appeal held that section 30 of the CLRA and section 105 of the Courts of Justice Act permit the court to order a party in a parenting proceeding to undergo a psychiatric assessment as part of a parenting order at the conclusion of trial, where there is sufficient evidence before the court to conclude that such an assessment would be directly pertinent to addressing the best interests of the child. In that case, the trial judge did not finalize the terms of his order respecting the mother’s parenting time, but rather ordered a psychiatric assessment of the mother and stipulated that his preliminary order for supervised parenting time could be reviewed and finalized upon the completion and filing of the assessment with the court. The Ontario Court of Appeal concluded that the judge had jurisdiction to order the assessment, particularly given that he remained seized and had left open the possibility of reviewing his order. It is clear from the court’s decision, however, that this jurisdiction is not dependent on the order providing for a review process (at para. 28). The court added that there are no hard and fast rules for determining whether an order for an assessment under section 30 of the CLRA is appropriate. Although the trial judge had concluded that there were clinical concerns respecting the mother’s mental health, the Ontario Court of Appeal noted that the existence of clinical issues is not a strict precondition to making an order in section 30. Rather, the court concluded that the inquiry is fact driven and flexible. Accordingly, under section 30, the determination of whether to order an assessment is a highly discretionary one that requires the court to carefully consider all of the circumstances of the parties, their parenting, their overall functioning and wellbeing and the particular needs of the child before the court.
313Unlike section 30 of the CLRA, section 105(2) of the Courts of Justice Act stipulates that the court can only order a party to undergo an examination by a health practitioner if it is satisfied that the party’s physical or mental condition is in question. Section 105(3) specifies that if the party’s mental condition is first raised by another party, the court must be satisfied that the allegation is relevant to a material issue in the proceeding, and that there is good reason to believe that there is substance to the allegation. Accordingly, before requiring a party to undergo a psychiatric assessment pursuant to section 105, there must be evidence before the court that demonstrates concerns about the party’s mental health. In the context of parenting issues, where the concern is first raised by the other party, the court must be satisfied that the party’s mental health is relevant to the best interests of the child in question (M.A.B. v. M.G.C., at para. 196).
314The father requests an order that any psychiatric or psychological assessment occur over the course of several appointments rather than a single consultation, and that the assessor(s) be made aware of the concerns that have been documented over the years by various professionals respecting the mother’s mental health functioning. The caselaw recognizes the need for caution in relying on assessments of a party’s mental health at a discrete point in time and based largely on self-reports in situations where individuals present as articulate and well on the surface, but the evidence when considered on a broader level reveals the existence of longstanding patterns of unstable behaviour and functioning (for example, see Hamilton Child and Family Supports v. J.D. and M.D., 2026 ONSC 293 (S.C.J.), at para. 40, per Kril J.; Da Torre v. Grossi, 2023 ONSC 6133 (S.C.J.), at para. 79).
III. ANALYSIS OF THE PARENTING ISSUES
A. Overview
315It is abundantly clear based on the voluminous evidence adduced at trial that both parties love C.M.M. very much, and that the child also has a strong bond with both of them. The father has demonstrated impressive responsibility in both his personal and professional life since C.M.M.’s birth, except for his impaired driving incident in 2018, and he has consistently done an excellent job in meeting all of C.M.M.’s needs. The mother has also shown many strengths in her personal and professional life and as a parent to C.M.M. However, the evidence suggests that the mother has been suffering significant mental health difficulties for many years, and that these have negatively impacted many aspects of her parenting of C.M.M., her ability to support C.M.M.’s relationships with the father, and his family members and her capacity to co-parent effectively with the father. She has exhibited inappropriate anxiety about the care that the father and grandparents have provided to C.M.M. She has made constant unsubstantiated allegations of abuse and neglect by them. She has also demonstrated poor judgment in coaching C.M.M. in regard to many of those allegations and directly involving him in advancing those claims with various professionals. In addition, she has great difficulty accepting the views and recommendations of professionals involved with C.M.M. when they do not confirm with her own perspectives, and her communications with professionals and the father are aggressive and disrespectful when events do not unfold as she wishes.
316Having carefully considered all of the legal principles set out above and the voluminous evidence adduced at trial, I conclude that it is in C.M.M.’s best interests that the father be granted sole decision-making responsibility and primary residence of the child. I also conclude that it is in C.M.M.’s best interests that the mother’s parenting time remain supervised by and at a supervised parenting time agency in accordance with the terms of my temporary order dated March 6, 2025. I am requiring her to undergo a comprehensive updated psychiatric assessment as well as a psychological assessment, both to occur over several appointments, and I am requiring that the assessors confirm that they have viewed these Reasons for Judgment as part of the assessment process. I am satisfied that there have been material changes in circumstances relevant to C.M.M.’s best interests that satisfy the threshold requirement for varying the parenting time terms of the January 31, 2024 order.
317I have concluded that the mother should be permitted to apply for a review of the parenting time terms of this order, provided that any such review shall not occur prior to December 1, 2026. Any request to change the parenting time terms of this order prior to that time will need to proceed by way of a Motion to Change Final Order, with the threshold requirement of demonstrating a material change in circumstances relevant to C.M.M.’s best interests. The right of a review will not apply to the other parenting terms of this order, which may only be varied through a Motion to Change Final Order.
318I outline in more detail below the main considerations that have informed my decision on the parenting issues in this case.
B. Material Changes in Circumstances Since January 31, 2024.
319Addressing first the threshold test for varying the parenting terms of the January 31, 2024 order, I find that there have been material changes in circumstances since that time which satisfy the threshold test. As of January 2024, the police and child protection investigation that began in late 2023 had ended, with the mother’s allegations having again been determined to be unfounded. The parties were preparing for trial, and the father hoped that the mother’s ongoing allegations would come to an end. The Society remained involved with the family, and this provided the parties with some support and assurance that the instability and distress caused by the mother’s abuse allegations would subside. The father became aware of the new investigation resulting from the mother’s and C.M.M.’s discussions with the Kids Help Phone on January 19, 2024 when Society worker Ms. Bryne called him to advise him of the situation. As of that time, he did not have a full appreciation of the new investigation and issues being raised. In fact, he did not obtain full disclosure of the Society’s records from January 2024 onward until the early part of this trial. I note as well that the January 31, 2024 order was based on Minutes of Settlement that the parties had executed in May 2023, and that the Form 14B motion seeking the final order had been filed with the court on June 9, 2023. Unfortunately, delays in processing the Form 14B motion resulted in the matter not being dealt with until January 31, 2024 in chambers by Brown J. The decision by the police that there were no grounds to interview C.M.M. again or to lay any criminal charges did not occur until after the January 31, 2024 order, on February 13, 2024.
320Unfortunately, since January 30, 2024, the mother has continued to advance her claims of physical and sexual abuse of C.M.M. through various avenues. As I have touched upon and will discuss in further detail below, none of the mother’s allegations have been substantiated on the evidence. The mother has been directed time and time again by the police and the many child protection professionals involved with the family to stop discussing historical allegations with C.M.M., to not interrogate him about her concerns or any allegations that he may raise, and to stop reaching out to community professionals to push her allegations against the father and his family members. These warnings and directions fell on deaf ears. My review of the history of this case since January 31, 2024 shows that she has persisted in her belief that the father and grandparents were abusive and neglectful towards C.M.M., has continued to question C.M.M. about these allegations, and has persevered in her mission to advance those claims with any professionals and through any means that she can identify in an effort to have C.M.M. removed from the home of the father and the grandparents. She has confirmed at trial that she will continue in these efforts until her goal of removing C.M.M. from that home is achieved.
321Another material change in circumstances is that the mother’s efforts to advance her abuse and neglect allegations have became increasingly concerning since January 31 2024, since she began to involve C.M.M. directly in making the allegations not only to Society workers, but also to other community agencies and professionals including the Kids Help Phone, the Hospital for Sick Children and Child and Adolescent Services. Furthermore, her efforts to push the abuse and neglect allegations have become more frantic and persistent since January 31, 2024. Her behaviour has resulted in ongoing child protection investigations and interviews of C.M.M. since January 2024. The Society, the Office of the Children’s Clinician Ms. Young and Dr. Cho of the Hospital for Sick Children have all raised concerns since January 31, 2024 that the mother will persist in her behaviours relating to her abuse allegations and that this could result in C.M.M. being subjected to more unnecessary and intrusive investigations, interviews and physical assessments.
322All of this evidence clearly satisfies the threshold test for varying the parenting terms of the January 31, 2024 order. Having addressed the threshold test, I turn now to my analysis of the main factors that guided my decision respecting the parenting arrangements that are in C.M.M.’s best interests.
C. Concerns Respecting the Mother’s Mental Health and Her Ability to Regulate Her Anger and Emotions
323I address first the concerns respecting the mother’s mental health and functioning, as I find that her apparent mental health difficulties have been the major contributing factor to the parenting problems that have developed between the parties, the extensive child protection and police involvement with the family and the mother’s difficulties in meeting C.M.M.’s emotional needs. I have referenced the concerns about the mother’s mental health in my overview of the history and court proceedings, but a more detailed discussion is imperative for the benefit of the professionals who will be undertaking the assessments that I am ordering and any judges who will be called upon to deal with this case in the future.
324I find that the mother has at many points throughout her life reached out to professionals during periods of crisis and engaged in supportive counselling services. However, she has consistently claimed that her need for professional support has been attributable to situational stress and trauma that she has suffered, and she has denied having any underlying mental health or general psychological problems. She continued up until her Closing Submissions at trial to insist that she has no mental health difficulties. She also claimed that she had never been prescribed any medication to address any mental health challenges.
325The evidence at trial paints a significantly different picture respecting the mother’s mental health status over the years. It establishes that she has a longstanding and complex history of psychological and mental health challenges, that she has been formally assessed by several psychiatrists over the years, that she has received divergent diagnoses due to the complexity of her profile, and that most professionals who have been involved with her have noted concerns about her mental wellbeing. I also find that she has fairly consistently reported feeling significant stress and coping difficulties over the years, which refutes her argument that she has only experienced such difficulties from time to time in response to challenging events in her life.
326The evidence indicates that the mother’s parents and her biological brother were all diagnosed with schizophrenia, but that the mother has not been diagnosed with this condition. There is no evidence that the mother experienced any mental health difficulties that required medical or other therapeutic intervention prior to 2012, as confirmed in a report of her former family physician Dr. Scarfone which was admitted as evidence at trial. The earliest evidence respecting the mother’s mental health difficulties dates from 2012, when her physician at the time, Dr. Lindner, referred her to the Anxiety Disorders Clinic at the Centre for Addiction and Mental Health for assessment of her mood. A psychiatrist with that clinic, Dr. Stephen Sokolov, assessed her in February 2012. In his report dated February 28, 2012, Dr. Sokolov indicated that the mother had recently been prescribed medication due to concerns about her mood, but that she had discontinued the medication due to increased feelings of irritability and forgetfulness. The mother described experiencing chronic low self esteem and periods of low mood, but she denied having any suicidal ideation. Dr. Sokolov did not find any evidence of psychosis, mania or hypomania and found her insight and judgment to be intact. He concluded that she did not meet the criteria for major depressive disorder, but found that she had features of depression and anxiety which could be consistent with an adjustment disorder. He recommended that she participate in psychotherapy.
327In 2013 and 2014, the mother discussed feeling depressed and anxious with her family physician, Dr. Zizzo. She broke down in Dr. Zizzo’s office on July 2, 2013 and discussed her complex family history and her feeling that she lacked supports in Hamilton. Dr. Zizzo documented concerns that she may be suffering from a hormone imbalance at the time. The mother was teary again in his office on July 30, 2013, and talked once again about her history of family trauma. She claimed that she was happy with the father and hoping to start a family with him. She had another supportive counselling session with Dr. Zizzo on October 9, 2013 during which she was teary and talked again about feeling depressed and anxious. On January 22, 2014, she advised Dr. Zizzo during an appointment that she had experienced a significant mood outburst and had felt suicidal over the Christmas season. On March 15, 2014, she discussed concerns about the father’s use of alcohol and was again tearful in Dr. Zizzo’s office. Dr. Zizzo referred her for counselling on April 26, 2014 and noted at that time that she was taking sertraline for anxiety.
328The mother consulted with a mental health counsellor, Ms. Marta Lewandowski, on June 27, 2014, because she had been experiencing thoughts of suicide again. She discussed her history of traumatic loss and perceived sense of abandonment. Having regard for her history, Ms. Lewandowski recommended that she engage in long-term psychotherapy and provided her with names of two possible therapists. She also referred her to crisis support services.
329The Winterberry Clinic records reflect that the mother engaged in counselling through the clinic with Ms. Jennifer Cremieux for a brief period of time in 2016. On July 12, 2016, Ms. Cremieux described the mother as a “verbose woman,” and indicated that the focus of the counselling was management of current everyday stressors. The mother’s struggles with her mental health appear to have increased following C.M.M.’s birth. She presented as tearful and stressed during an appointment with Dr. Zizzo on August 9, 2017, and Dr. Zizzo referred her back to counselling through the clinic. She began counselling sessions with Ms. Van Impe through the clinic in approximately September 2017. During this period, she reported having struggles in her marriage, conflict with the grandparents and stress around returning to work after her maternity leave.
330I have discussed how the HBHC professionals involved with the parties also documented serious concerns about the mother’s mental health in 2016 and 2017. The HBHC home visitor and Public Health Nurse noted concerns about the mother’s difficulties in coping with stress, her anger management issues, her problems adjusting to her return to work, the father’s reports that she was expressing thoughts of self harm in September 2017 and her lengthy, convoluted and disordered messages to HBHC staff. As I have previously indicated, the HBHC Public Health Nurse Ms. Ventresca recommended at the end of her involvement in December 2017 that the mother access ongoing mental health support.
331The mother had significant difficulty adjusting to her return to work with JNE Consulting in September 2017. She called the Winterberry Clinic on October 2, 2017 to report that she had precipitously quit her job in October 2017. She had not discussed this decision with the father in advance. She relayed to the clinic and at trial that her decision was prompted by safety concerns respecting the site of the business and feeling as if she was no longer being heard at work. Significantly, she noted during her call to the clinic on October 2, 2017 that there were problems in her relationship with the father but denied that there were any safety issues in relation to him. She advised that she had consulted with a lawyer and decided to ask for a sick leave in lieu of resigning. Dr. Zizzo wrote a letter in support of this request advising that the mother had been followed by his office for medical concerns and needed to be off work for two weeks. The concerns around that time appear to have been related to the mother’s ongoing difficulties coping with stress.
332On October 11, 2017, Dr. Zizzo assessed the mother as having tangential speech but otherwise reasonably oriented and ready to return to work. However, his consultation note indicates that he queried whether the mother was suffering from an underlying mental health disorder and felt a need for further assessment for possible anxiety, depression or other mental health conditions. In a follow-up appointment with the mother on October 26, 2017, the mother advised Dr. Zizzo that she felt she was suffering from post traumatic stress disorder. Dr. Zizzo documented that the mother was tearful on the day, that her speech was intense and that it meandered through various topics and stories. The mother advised him once again that there were no safety concerns respecting her or C.M.M. in relation to the father. Dr. Zizzo indicated that she appeared mostly normal in her presentation but that there were some indicators of paranoia in her thought processes. As examples, he noted that the mother was convinced that the grandmother was deliberately taking C.M.M. out of sight and around the corner of rooms, and that her sister-in-law deliberately got pregnant 5 months after she did as part of a premeditated plan to take the grandparents’ attention and financial support away from her and the father. Dr. Zizzo recommended that the mother continue in counselling to work on her coping strategies.
333The mother continued in counselling with Ms. Van Impe throughout the fall of 2017. Ms. Van Impe documented concerns about the mother’s wellbeing and noted that she was experiencing many situational stressors including problems in her marriage, alleged issues with the grandparents and other members of the paternal family, the challenges of being a new mother and having to returning to work after her maternity leave. I note that the mother methodically reviewed all of her complaints about the grandparents that I have outlined in these Reasons for Judgment with Ms. Van Impe.
334Dr. Zizzo scheduled a further follow-up appointment with the mother on November 10, 2017, which he noted as being in relation to situational crisis, anxiety and a potential underlying mental health diagnosis. During that appointment, the mother once again denied any safety concerns in relation to the father. However, Dr. Zizzo documented ongoing concerns about her mental health status. He noted that she was tearful during the session, and that her speech was intense, meandering, and again included paranoid content. The mother admitted to him during this appointment that she had “an inventive mind.” As examples of his concerns regarding paranoia, Dr. Zizzo noted that the mother felt that the paternal uncle and his wife believed she wanted to kill them, that the uncle and aunt had given out a wedding favour at their wedding with the note “best wedding ever” which she felt was maliciously directed towards her, and that the paternal uncle may have deliberately tampered with a gas line at the matrimonial home. Dr. Zizzo concluded that the mother may be suffering from a mental health condition and with the mother’s consent, he referred her to a psychiatrist for evaluation. In his referral dated November 17, 2017, he queried whether she was suffering from generalized anxiety disorder or a delusional disorder.
335I have already reviewed in detail the events leading up to the Society’s involvement in November 2017. The incident at the matrimonial home on November 20, 2017 highlighted serious concerns respecting the mother’s anger management, her judgment and her overall coping skills. I have discussed that the Society worker Ms. Guiden and her supervisor documented concerns early on during the Society’s intervention regarding the mother’s mental health based on her unsubstantiated complaints about the grandparents, the mother’s heightened responses with professionals and her difficult behaviour in the daycare setting. On February 26, 2018, Society worker Ms. Kaur and her supervisor Ms. Neill specifically identified the concerns respecting the mother’s mental health and her difficulties in regulating her emotions as being protection concerns that justified the Society’s ongoing intervention with the family.
336Dr. Zizzo saw the mother for a follow up regarding her mental health on December 8, 2017. The mother again denied any concerns respecting physical safety in regard to the father. Dr. Zizzo noted that she was tearful at times, that her speech was rapid and tangential, that she was anxious that the grandparents would tell him lies about her, and that she kept offering to produce copies of her adoption for no apparent reason. He continued to have concerns about a possible underlying mental health disorder, and in particular, some type of delusional condition.
337The mother continued to struggle with her mental health in early 2018, and as previously discussed, she made numerous suicidal comments to several professionals in April and May 2018, resulting in two emergency interventions by COAST crisis support services. She requested that Dr. Zizzo write her a letter for work to place her on short-term disability again due to her coping difficulties, and Dr. Zizzo provided her with such a note on May 3, 2018. The mother remained off work for this reason until June 20, 2018. However, she obtained another medical note from Dr. Zizzo on June 22, 2018 stating that she should remain off work due to her stress and coping challenges. She did not in fact return to work with JNE until mid July 2018.
338Dr. Paul Links accepted Dr. Zizzo’s referral for a psychiatric assessment of the mother in the spring of 2018, and he completed his report on May 9, 2018. In that report, he noted that both of the mother’s parents had suffered from schizophrenia. Her biological brother likewise suffers from this condition. Dr. Links noted that the mother spent considerable time during his 1.5 hours appointment with her listing her many complaints about the father and his family members. He concluded that the mother has a pervasive suspiciousness about others, a preoccupation with the trustworthiness of the father and his family, and an inappropriate focus on previous situations in which she felt she had been victimized. He highlighted that her concerns about various issues appeared to be “overvalued,” but that they did not reach the level of delusional content. He was of the view that the mother’s thought form revealed a compulsion to share her story of concerns, that her insight was limited, and her judgment was negatively impacted by her heightened level of suspiciousness. In addition, he highlighted that the mother tended to read hidden meanings or threats into people’s comments and actions, and to hold onto her sense of being victimized. Dr. Links’ overall impression was that the mother was suffering from an adjustment disorder related to the marital breakdown, as well as paranoid personality disorder. He noted that the mother was not interested in pursuing psychiatric monitoring or medication, but he emphasized that she could benefit from individual counselling and continued support from the Society. He also stressed that the mother should be regularly monitored in terms of her feelings of personal safety, for evidence of suicidal ideation and also for homicidal ideation. Significantly, the mother did not produce this report to the Society at that time to assist in its assessment of the family situation. The Society only received it in July 2019, after C.M.M. was brought into foster care.
339A Winterberry Clinic Nurse Practitioner, Ms. Lauren Evans, met with the mother in follow-up regarding her mental health on May 28, 2018. The mother continued to present as teary and overwhelmed by the stress of the marital breakdown and her impending move. Ms. Evans reviewed Dr. Links’ findings and recommendations with her, but she declined to accept a trial of quetiapine.
340The concerns respecting the mother’s mental health persisted in late 2018. The mother attended an appointment with Dr. Zizzo on October 17, 2018 and reported that she was extremely stressed due to work, her finances, and her move in May 2018 and that she was having ongoing problems dealing with her anxiety. She asked for another medical letter in support of a medical leave from work, and Dr. Zizzo obliged by writing a letter indicating that she needed two weeks off work. In a follow up appointment on October 30, 2018, Dr. Zizzo extended this period of recommended medical leave but noted that the mother was not agreeing to the medication that Dr. Links had recommended. Dr. Zizzo completed further documentation on December 7, 2018 in support of the mother remaining off work until mid January 2019. He noted at that time that she was suffering from depression, anxiety and stress, and that it was unknown whether she would be able to return to work in the near future.
341Subsequently, on December 21, 2018, Dr. Zizzo noted again that the mother was non-compliant with Dr. Links’ recommendations, and that another psychiatric assessment was required to focus on her underlying mental health diagnosis and her capacity to work. He therefore made another referral for the mother to undergo a mental health assessment. In this referral form, he also queried whether she was suffering from post traumatic stress disorder. On January 19, 2019, Dr. Zizzo extended his recommendation for a medical leave until January 24, 2019 due to ongoing concerns regarding her feelings of stress, her low motivation and her emotional state during his appointment with her. On January 24, 2019, he once again extended this period of recommended leave to February 8, 2019.
342Dr. Kurt Moyst completed another psychiatric evaluation of the mother on February 8, 2019. He found the mother to be very elaborate and difficult to manage in regard to her narrative, but felt that her judgment was intact and her insight was moderate. He determined that she had very strong borderline personality traits but that she did not meet the diagnostic criteria for borderline personality disorder. Similarly, he determined that she demonstrated narcissistic traits, but that she did not fully meet the criteria for narcissistic personality disorder. In the end, he diagnosed her as suffering from an adjustment disorder with mixed anxiety and depressed mood, and as exhibiting borderline personality disorder traits. He ruled out a diagnosis of paranoid personality disorder, but noted that the mother did experience some paranoia which he felt was likely linked to her borderline personality traits. Dr. Moyst felt that psychodynamic therapy would be ideal for the mother but recognized that the cost of such counselling could be prohibitive. He supported the medication recommendations that Dr. Links had given. Again, the evidence indicates that the mother did not share this psychiatric assessment report with the Society at that time. The agency did not receive it until July 2019. In addition, she did not comply with the recommendations regarding medication.
343I have already reviewed at length the concerns that led to C.M.M. being placed in foster care on April 9, 2019. As I have discussed, the Society continued to have significant concerns about the mother’s mental health throughout 2019 and 2020 based on her numerous unsubstantiated allegations of abuse and neglect by the father and the grandparents, her many suicidal comments in April 2019, her inability to manage her anger and cope effectively with stress, her inability to accept the outcomes of the police and Society investigations, her heightened and disjointed communications and her constant perseveration on historical grievances about the father and his family that were no longer relevant to the present circumstances. Detective Azulay had serious concerns about the mother’s mental health during the first police investigation in 2019 and concluded that many of her statements were not congruent with reality, and that she was persistently interpreting normal innocuous toddler behaviour as being attributable to sexual abuse. Detective Moore likewise noted serious concerns respecting the mother’s mental health and stability during the second police investigation in July 2020.
344Further to the temporary order of Donohue J. dated May 3, 2019, the mother underwent an updated psychiatric assessment by Dr. Warsi of the Rapid Consultation Clinic of East Region Mental Health Services during the summer of 2019. This assessment was based entirely on self-reporting by the mother. Dr. Warsi completed his psychiatric assessment on July 12, 2019. During the pre-consultation meeting with Dr. Warsi’s nurse on June 18, 2019, the mother admitted that she had significant difficulty trusting people, and she presented as highly emotional and teary when talking about her family history of lack of maternal support after the death of her adoptive mother. The nurse noted that her thought processes were “overly inclusive and detailed.” Dr. Warsi highlighted the limited nature of his assessment in his report dated July 12, 2019. He specifically stated that the assessment did not explore any personality disorders beyond what had already been explored by other psychiatrists since this would require a longer-term relationship such as she had with her family physician. There is no evidence that he consulted with any professionals who had been involved with the mother, including Society professionals, or that he reviewed any of their records. However, he ruled out paranoid personality disorder and major depressive disorder based on the mother’s consultation with him and her self-reporting, and found that the mother was suffering from an adjustment disorder, with depressed mood, in partial remission. He concluded that she did not present as suicidal and that she showed good insight and judgment during the assessment process. He recommended that the mother continue with her counselling with Ms. Van Impe and that she consider obtaining dialectical behaviour therapy, although he did not consider that to be mandatory.
345As I have discussed, the Society’s ongoing concerns about the mother’s psychological and mental health as of the summer of 2020 prompted the agency to consult with Dr. Clinton of CAAP and Ms. Hayes in August 2020. In these independent consultations, they each shared the opinion that the concerns about the mother’s mental health were so serious at that point that her parenting time needed to be supervised. Furthermore, they both recommended that the mother undergo a comprehensive psychological assessment to be carried out over several sessions so that the assessor could gain a reliable impression of the mother’s functioning.
346The mother continued to participate in counselling with Ms. Van Impe throughout 2020. However, Ms. Van Impe’s records in late 2020 reflect that the mother was resistant to identifying the purposes and goals of her counselling sessions and was fixating instead on her many complaints and grievances about the father and the grandparents. The mother was upset about a letter that Ms. Van Impe had written for court in which she had made this point, and pressed her for another letter stating that she was fine from a mental health standpoint. She and Ms. Van Impe reached a compromise that Ms. Van Impe would simply write a letter confirming the dates when she had seen the mother for counselling.
347I have already noted that the Society’s decision to request an extension of its supervision order in December 2020 was based largely on its ongoing concerns about the mother’s mental health as evidenced by her persistent focus on historical trauma and grievances, her ongoing unsubstantiated allegations of abuse and neglect, her refusal to accept the outcomes of the Society’s investigations, her problems managing her emotions, her regular wordy, tangential, meandering and aggressive communications and her frequent formal complaints about the conduct of professionals involved with the family. As I addressed in detail in my outline of the Society’s involvement, the agency has continued to document these same concerns about the mother’s mental and psychological wellbeing to date.
348Various other professionals have also continued to document ongoing concerns about the mother’s mental health stability since 2021. The mother’s lengthy and convoluted 8-page email to Dr. Almeida of the McMaster University Hospital Pediatric Cardiology Department in December 2022 which I have already described reflects the ongoing concerns about the mother’s mental health status around that time. I have discussed in detail the school principal Ms. Coletto’s worries about the mother’s emotional and mental health stability in late 2023 and into 2024. Numerous health care professionals with the Winterberry Clinic have also documented ongoing issues about the mother’s general functioning and mental health status. The mother has continued to ask for letters from that clinic in support of medical leaves from work and employment insurance benefits based on problems with her stress and general coping problems. The evidence from the Winterberry Clinic respecting the mother’s mental health problems from 2021onward includes the following:
Dr. Raza wrote the mother a letter for a 3-day leave of absence in October 2021 due to her stress levels and coping difficulties.
Subsequently, the mother advised the Nurse Practitioner Ms. Crystal Troup on August 4, 2022 that she had not been working for a year due to her stress and coping difficulties and asked for a letter in support of receiving employment insurance benefits retroactive to August 2021 based on her mental health difficulties. Ms. Troup provided her with this letter.
The mother attended for supportive counselling through the Winterberry Clinic for her ongoing emotional difficulties and coping problems in 2022 and 2023, first with Practical Nurse Ms. Lindsay David and then with Ms. Troup. She went into great detail with both professionals about her historical trauma, her long list of grievances about the father and the grandparents and the specifics about the Society’s involvement.
As I have previously discussed, Ms. Troup noted concerns during her sessions about the mother’s fixation on historical events that had already been fully investigated, and the mother’s conduct during appointments that she had with her and the father to address the mother’s concerns about C.M.M.’s weight. Ms. Troup noted concerns during several of her appointments with the mother in 2022 and 2023 that the mother’s speech and thought processes were tangential, non-sequential, wordy and difficult to follow.
The mother also had supportive counselling session with Dr. Raza on January 24, 2023 in which she which focussed at length on her historical trauma and myriad of historical and ongoing complaints about the father and the grandparents. Dr. Raza documented that the mother’s speech was extremely tangential and that she swapped erratically from topic to topic. She assessed her as suffering from stress and anxiety. Dr. Raza wrote the mother a letter to give to the Employment Insurance Commission on January 24, 2023 stipulating that the mother was unable to work from November 14, 2022 until January 22, 2023, which was based on her ongoing stress and anxiety levels.
The mother saw a clinic nurse, Ms. Kelsey Steffan, on May 3, 2023 due to concerns about feelings of tightness in her chest and general feelings of stress. Ms. Steffan suggested a referral for an updated mental health assessment, but the mother expressed frustration about this recommendation and declined. Subsequent testing did not reveal any cardiac causes for her issues.
As previously noted, the mother saw Ms. Cameron and Dr. Zizzo on July 25, 2023 and discussed once again at great length for over 1.5 hours her historical complaints about the father and grandparents, including her various abuse allegations involving C.M.M.
As I have also previously noted, the mother expressed concerns to Ms. Troup about the information in her medical records about her mental health during an appointment on October 30, 2023. She relayed that she objected to Dr. Moyst’s diagnosis of borderline personality traits and asked that his report be removed from her chart. Ms. Troup advised her that this was not possible, but that she could advocate for her to receive an updated mental health assessment if she was interested. However, the mother declined the opportunity to obtain a further opinion regarding her mental health. Ms. Troup again observed that the mother’s speech and thought content were tangential during that session.
As previously noted, Nurse Practitioner Ms. Dinisha Patel documented concerns about the mother’s presentation during her appointments with her and the father on March 18, 2024 and April 3, 2024.
During the session between the mother and the nurse practitioner, Ms. Courtney Dunlop, on May 22, 2024 which I have previously discussed, the mother denied having any mental health problems but requested a medical note in support of a leave from work due to her stress and coping challenges. She advised Ms. Dunlop that day that she was not on anxiety medications. Ms. Dunlop provided her with a medical note in support of a leave from work until June 13, 2024.
During the appointments with Dr. Semenchenko on August 20, 2024 and August 29, 2024 which I have also referred to earlier in these Reasons, the mother rejected her previous mental health diagnoses and insisted that she had never had any serious mental health problems. Dr. Semenchenko found that the mother presented with multiple complex stressors, that she was experiencing a complex trauma burden and features of post traumatic stress disorder, and that she appeared to be anxious and depressed. She found that the mother’s speech was quite pressured, that she was “a very challenging historian,” and that she was very focussed on her trauma burden. The mother advised Dr. Semenchenko that she had been off work due to her stress and life challenges since August 20, 2024, and as I have previously indicated, Dr. Semenchenko provided her with a medical note to support an extension of her sick leave until September 13, 2024.
349The evidence of the father and the grandparents also supports my conclusions respecting the mother’s longstanding mental health problems. As I will discuss in further depth in addressing family violence considerations, the father described numerous episodes during the marriage when the mother had explosive and irrational outbursts over minor issues or her misguided perceptions regarding events. He also described her communications with him during challenging periods as being highly abusive, demeaning, manipulative, threatening and disjointed when she did not feel things were going her way. I find that the parties had disputes with each other during the marriage that were fairly typical of most relationships with young children, and that the father may have had some part in those disputes. However, as I will elaborate upon, I accept his evidence respecting the mother’s responses to disputes and find that they were highly excessive and demonstrated serious impulse control problems on her part. The mother’s own admissions to the HBHC staff and her first Society worker Ms. Guiden about her anger management issues support this finding. My careful review of all of the text messages and App Close messages between the parties fully supports the father’s description of the mother’s erratic and devastatingly abusive communications with him during periods of high stress in her life, both prior to and following the parties’ separation on January 8, 2018.
350The grandmother also described numerous incidents during the parties’ marriage when the mother became quickly escalated, spiralled and became irrational for reasons that she and other family members could not comprehend. She testified that these incidents typically occurred around special holidays such as Thanksgiving or Christmas. She was able to provide many examples. She recalled one incident when the mother was upset and talking to someone on the phone and the paternal aunt tried to console her. She stated that the mother ended up enraged, hung up the phone, swore and left the celebration abruptly. She recalled that on the Christmas prior to C.M.M.’s birth, the mother became enraged at her because she had invited the paternal aunt’s brothers to dinner. The grandmother stated that the mother came within inches of her face, started screaming very loudly without any words, then did the identical thing to the grandfather and finally left the grandparents’ home abruptly. The grandmother recalled the mother having a similar type of rage following her baby shower for C.M.M., when she learned that someone had taken the leftover sandwiches from the party. Finally, as previously discussed, the grandmother described the incident that occurred when the mother’s parenting time with C.M.M. was supervised by Society Family Support Worker Ms. Key, when she dropped C.M.M. off for a visit at a local park and the mother became infuriated in front of the child. She stated that the mother came within inches of her face again on that occasion, to the point that C.M.M. was crushed between them, and that she began screaming loudly in her face in anger about the scratch on C.M.M. She stated that she has done everything to avoid the mother since that time because she is genuinely terrified of her. I accept the grandmother’s evidence on these issues and conclude that it provides further support regarding the mother’s longstanding and persistent difficulties with her mental health, her ability to regulate her anger, emotions and behaviour and her highly exaggerated responses to situations.
351Finally, the mother’s presentation and behaviour during this trial as discussed earlier in these Reasons also raised significant concerns regarding her mental health, her ability to cope with stress, her capacity to regulate her emotions and anger and her general overall functioning. It was obvious from her evidence that she continues to experience a serious trauma burden relating to her early life experiences which she has still not been able to effectively process and manage despite years of extensive counselling. She broke down uncontrollably when discussing historical events from her childhood and early adulthood. She also demonstrated a fixation on many grievances and events from the distant past which had little if any relevance to the issues to be addressed at trial. She was completely unprepared for trial despite having had many months to prepare. I granted her indulgence after indulgence during the trial, with significant cooperation and understanding from the father and his counsel Ms. Williams, yet she was still generally unable to meet extensions of deadlines and other expectations that I set for her. While she often presented as calm, rational and articulate, there were also many occasions throughout the trial when she became emotionally distraught, irate, disrespectful and insulting to myself and the Hamilton Family Court generally. Of additional concern was her ability to quickly move back and forth from being calm, to highly emotional or irate, and back to calm again.
352By way of overview based on all of the evidence adduced and my impressions of the mother at trial, there are several highly concerning and consistent patterns regarding the mother’s behaviour which suggest that she may indeed be suffering from underlying mental health difficulties. These can be summarized as follows:
She has for many years demonstrated an intense focus on the personal challenges that she experienced during her childhood and early life in an effort to gain support for her causes. The evidence is replete with references to her describing herself as a survivor. The evidence indicates that she has indeed experienced significant trauma. The difficulty, however, is that the mother has at the same time consistently denied throughout the years that she has experienced any longstanding effects from this trauma, and has insisted that she is a high functioning person with no mental health difficulties whatsoever.
Her perseveration of historical grievances about the father and members of his family with various professionals to this day reflects a concerning inability to resolve concerns from the past and move forward in life in a healthy and stable manner.
She has a concerning tendency to blame others for all of the challenging experiences that she has had during her adult life, and to not take any personal responsibility despite her clear contributions to the problems.
She has demonstrated over the years a concerning inability to weed out irrelevant information about past events in addressing present circumstances and issues with professionals and others.
Her constant allegations of abuse and neglect by the father and the grandparents despite constant reassurances from various professionals that they are unfounded highlight concerns that she adopts unreasonable positions, fixates upon her own misguided perspective of situations and cannot be swayed from those perspectives even in the face of overwhelming evidence that her viewpoints are unsound. These concerns, coupled with her constant inappropriate interrogation and coaching of C.M.M. despite many warnings over the years about the negative impact on C.M.M., raise serious red flags as to whether she is suffering from some form of mental health illness respecting which repetitive unfounded abuse allegations is a specific symptom.
Another concerning pattern respecting the mother’s interactions with professionals who have been involved with the family is her rejection of their conclusions and recommendations if they do not fit her narrative or viewpoint, her vocal criticism of their professional integrity and her tendency to launch disruptive official complaints about their competence. The evidence is replete with examples of the mother criticizing professionals who do not see eye-to-eye with her on issues, and then openly accusing them of incompetence, bias and abuse towards her to their face and in her discussions with other professionals.
She has a lengthy history of difficulty trusting professionals and others involved in her life.
There is also an extremely concerning and steady pattern of the mother, particularly during stressful periods, engaging in communications with professionals and the father which are excessive, meandering, disjointed, jump erratically from topic to topic, focus on the minutiae of irrelevant past events and which are generally highly difficult to process and understand. These communications with the father have included nefarious tactics such as humiliation, fear tactics and threats to achieve her own purposes.
Furthermore, there is a serious and longstanding concern about the mother raising issues and concerns that have no basis in the evidence or in reality. Various Society workers, her family physician, other health professionals at the Winterberry Clinic and other community professionals have raised the alarm about her distorted and persecutory thought processes from time to time over the years. I have addressed these distorted thoughts and ideas at various points in these Reasons, but by way of summary for the benefit of the assessors who will be evaluating her mental and psychological health in the future, some examples include the following:
a) She suggested to the Society and to this court during her testimony at trial that the father and the grandparents may have deliberately lured her for sexual purposes when she first met the father and she decided to move from Windsor to Toronto in 2010. There is no evidence whatsoever to support this extreme allegation.
b) She has claimed that her brother-in-law D.M. may have tampered with the barbecue gas line at the former matrimonial harm, insinuating that he intended to harm her.
c) She has also claimed that the father may have tampered with the barbecue gas line and the gas line to the kitchen stove in the matrimonial harm, again implying that he had an intent to harm her.
d) She expressed that the paternal uncle and his wife believed that she wanted to kill them.
e) She believed that the paternal uncle and aunt chose a particular celebratory favour for their wedding saying “best wedding ever” with the malicious intent of messaging that their wedding was better than hers and the father’s.
f) She believed that the Society had found out the timing of her menstrual period from her medical records, and deliberately scheduled court dates when she had her period as a means of instigating and antagonizing her.
g) She has repeatedly claimed to the Society and other professionals, and to this court, that the father and his parents have numerous personal connections “in high places” within the child protection system, the police, the courts, the education system, and essentially every important agency in Hamilton who have somehow been working behind the scenes for many years to support the father’s case, to work against her interests and to undermine her efforts to protect C.M.M. from abuse. There is no evidence to support these allegations.
h) She has talked to others and advised this court that she sincerely believed that the father had punctured holes in her car tires on several occasions, with the most recent one having allegedly occurred in October 2024. There was no evidence whatsoever to support this claim.
i) She told Society worker Ms. Byrne twice, and also stated at trial, that she felt the father and his family members and possibly school officials were involved in a child trafficking, pornography and sex abuse ring which could involve C.M.M., without any rational basis whatsoever for making such a horrific and serious allegation.
j) She perceived family photographs that the grandparents had taken of their children and other children when they were infants and toddlers in which they were naked or partially naked was evidence that the grandparents were sexually deviant.
k) She also spoke about having heard that the grandmother asked her children and their friends to change into their bathing suits together in a shed or garage, and construed this as evidence of sexual deviance as well.
l) She believed that the father and grandparents deliberately purchased books and games that she and C.M.M. enjoyed together as a malicious tactic to annoy and harass her and to undermine her emotional stability.
m) She has also repeatedly claimed to Society workers and to this court that the father and grandparents deliberately put C.M.M. in clothing and shoes that did not fit him properly as a spiteful means of antagonizing and destabilizing her.
n) At trial, she advanced a bizarre, illogical and convoluted theory that the father and grandparents abused C.M.M. intentionally to get a rise out of her, so that they could then accuse her of fabricating the abuse as a means of gaining control of C.M.M. and protecting against the father having to pay child support.
o) She claimed at trial that on one occasion when the father dropped C.M.M. at her house, he deliberately threw a large pile of newspapers and flyers on her driveway as a means of antagonizing her. The text messages between the parties indicate that this alleged incident occurred on March 23, 2019. On that date, the mother accused the father of throwing the flyers around, which he denied. He pointed out that it was a windy day, and that this could have been the explanation for any papers on her property. I note as well that the mother made this allegation during a period when the parties appeared to have been working cooperatively with each other on many issues. There was no evidence to support her allegation against the father.
p) As I have previously described, she believed that the father and/or the grandparents deliberately set C.M.M. up with a ghost toy with a tongue that flicked in and out during a zoom visit on December 3, 2020 as a means of antagonizing and instigating her in the face of her sexual abuse allegations, which included claims that the grandparents had licked C.M.M.’s penis.
q) She claimed at trial that C.M.M. may have sustained long-term injury to his eye from the incident she alleged had occurred during her baby shower when a younger child supposedly attacked his face. I have not accepted the mother’s claim that this occurred, and in any event, there is no evidence at all to suggest that C.M.M. sustained any eye injury at all at the shower.
r) She believed that the father had stolen back most of the money that he had given C.M.M. for his baptism and first communion in 2024 and reported the father to Crime Stoppers based on his belief that he was a criminal. In fact, the father had given C.M.M. the money, and then used part of that money to purchase C.M.M. a toy that he wanted for his gift.
The evidence reflects that the mother has a longstanding history of putting down those who do not support her views or positions, and that she has an exceedingly exaggerated sense of her own self-importance, accomplishments and skilfulness in all areas of life. Despite the clear difficulties that she has experienced with her general functioning over the years, as discussed above, she clearly portrays herself as more intelligent, more high functioning and more talented than most people. She has this clear sense of superiority with regard to all aspects of her parenting of C.M.M.
Finally, in her efforts to gain support and sympathy from various professionals for her causes and in particular, her claims of abuse and neglect about C.M.M., she has often been dishonest or seriously distorted the truth, or clearly exaggerated and manipulated the significance of past events in relation to the current issues of concern to garner sympathy for her cause or position. I have addressed these concerns in more detail in my assessment respecting the mother’s credibility and reliability.
D. The Mother’s Concerns Regarding Addictions of the Father and the Grandparents
353The mother has constantly raised concerns with the Society, the police, medical professionals she has had contact with and other community professionals over the years that the father and the grandparents have longstanding and ongoing alcohol abuse issues. She has also insisted that the father has an addiction to video gaming, and that that this has negatively impacted his parenting of C.M.M.
354I conclude that there is no evidence to support the mother’s assertion that the father has an addiction to video gaming. It is apparent from the text messages between the parties that she raised this issue with the father in the latter period of their relationship. However, the father explained in his messages that he played video games when he could not sleep due to sleep disruption challenges relating to his shift work at Rogers. In support of her concern about a video addiction, the mother relied on a note that C.M.M.’s teacher had written in the school agenda on October 22, 2024, in which she indicated that C.M.M. had shown problems with concentration and applying himself to tasks that morning, and that he had told her that he was upset about a video game. This does not support her claims about a video addiction on the part of the father, or inappropriate video gaming by C.M.M. There is no other independent evidence whatsoever suggesting that either the father or C.M.M. spend inordinate amounts of time playing video games.
355In regard to the mother’s concerns about the father’s abuse of alcohol, I accept her evidence that there were occasions during the parties’ relationship when the father drank excessively, and this resulted in inappropriate behaviour. The father acknowledged this point at trial. He discussed his drinking with his family physician, Dr. Zizzo, on March 31, 2014 and Dr. Zizzo noted that he was inconsistent and unreliable regarding his drinking habits. However, on December 30, 2014, the father spoke with Dr. Zizzo about his drinking again, and he acknowledged that he had experienced episodes of “zoning out,” bouts of amnesia, and unusually slurred and slowed speech for the previous 7 years after drinking a few drinks. He stated that this began after he fell down a flight of stairs in an inebriated state at the age of 25, resulting in a concussion. He reported that more recently, he had experienced 2 blackouts while drinking and his attention span had declined. Dr. Zizzo referred the father to the Boris Clinic at McMaster University Medical Centre for further assessment. Dr. Cunnington assessed him in March 2015, for the purpose of determining whether he was suffering from any brain injury that could be contributing to his problems. Dr. Cunnington did not believe that the father had any function issues that were causing the problems, and he concluded that they were likely due to his alcohol intolerance secondary to reducing his alcohol intake significantly as compared to his younger years. He advised that a CT or MRI of the head would be possible but indicated that these scans could potentially yield no results. The father declined to undergo that imaging given Dr. Cunnington’s views regarding their limited utility. He developed a plan with Dr. Cunnington to be more mindful of his alcohol limits and tolerance levels. The father also discussed his high stress levels from his challenging work, and Dr. Cunnington recommended that he pursue therapy and pharmacotherapy to address stress, anxiety and possibly depression.
356The father’s medical records do not reveal any further medical intervention regarding his alcohol intake. The father acknowledged that he drank to excess on March 4, 2018, when the mother called the police for support. He stated that he rarely drank alcohol after that incident, and that he ceased drinking hard alcohol. However, as previously noted, he was charged with impaired driving in April 2018. The father acknowledged having drunk alcohol that night, but he claimed that his ability to process the alcohol was impaired due to medication that he had been prescribed for shingles. The Winterberry Clinic records reflect that he was diagnosed with that condition on March 19, 2018. I find that the father attended programming regarding excessive alcohol consumption after he was charged, and that he stopped drinking and driving. He described his alcohol consumption from April 2018 until May 2019 as being moderate. However, he testified that once C.M.M. was placed in his care, he stopped drinking altogether for a year. After that point, he limited his drinking to a few drinks now and then when C.M.M. was not in his care. More recently, he stated that he does not drink when C.M.M. is in his care apart from very rare occasions when friends are over, when he may have one drink. There is no evidence of the father having consumed excessive amounts of alcohol since April 2018, or that his limited alcohol intake has impaired his ability to care for C.M.M. In particular, the father has not been charged again with impaired driving and does not have any other criminal record. The Society has assessed the mother’s concerns about the father’s alcohol use many times since 2018, and it has consistently reassured her that it has no protection concerns regarding the father, including his alcohol intake.
357The mother has also made constant allegations that the grandparents are alcoholics. The Society has also investigated that allegation many times over the years and has consistently concluded that there are no concerns respecting excessive alcohol use by the grandparents. The mother did not adduce any independent evidence in support of this allegation, and she has not been in any type of social setting with the grandparents since 2017. The grandparents deny the allegation of excessive alcohol use. I conclude that the allegation is completely unfounded.
E. The Mother’s Concerns Regarding the Mental Health of the Father and the Grandparents
358Turning to the mother’s allegations that the father and grandparents suffer mental health problems that impair their ability to care for C.M.M., I focus my analysis first to the father. I find that the father has struggled fairly consistently with stress and anxiety relating to numerous challenges in his life since 2014. However, he has fully acknowledged these difficulties throughout the years, has actively sought out assistance when necessary and has followed through diligently with all recommendations that he has received from the health care professionals involved in his care to address them.
359The clinical notes of Dr. Zizzo dated March 31, 2014 and June 12, 2014 reflect that the stress of the father’s Rogers job, which involved managing 4 busy television stations at once, was taking a toll on him at that time, as he had been reprimanded at work twice. In June 2014, he was suspended for a day due to his performance issues. The Winterberry Clinic notes reflect that that father began seeing a clinician for therapy through that office as recommended by Dr. Cunnington and Dr. Zizzo in 2015.
360The father began to consult with Dr. Zizzo again about stress associated with work and the breakdown of the parties’ marriage in September 2017. On September 20, 2017, Dr. Zizzo encouraged him to pursue counselling, which he did. As I have stated, the father was diagnosed with a painful case of the shingles on March 19, 2018, and this augmented his stress levels. Dr. Zizzo documented during an appointment on June 29, 2018 that the father’s anxiety level was high due to all of these issues.
361The father’s stress and anxiety levels rose again after C.M.M. was placed in foster care in April 2019. He consulted with Dr. Zizzo again about his situation on April 9, 2019, at which point Dr. Zizzo assessed him as suffering from severe anxiety and prescribed him zoloft to address this concern. This medication was switched to cipralex in July 2019. The father complied with Dr. Zizzo’s recommendations respecting medication to assist him. The father’s anxiety reached a crisis level by August 2019. He reported to Dr. Zizzo on August 7, 2019 that he was not eating or sleeping well, that he had recently lost 40 pounds due to anxiety, and that he was experiencing panic attacks. He was attending counselling for support during this difficult period. Dr. Zizzo recommended that he continue in counselling and switched his anxiety medication to effexor. The father’s mental health improved somewhat in the fall of 2019, but Dr. Zizzo diagnosed him as suffering from anxiety and hypertension on December 20, 2019.
362Unfortunately, the father’s stress and anxiety increased significantly leading up to the loss of his long-term position at Rogers in May 2020. He testified that his anxiety and stress levels rose significantly after C.M.M.’s daycare closed due to the COVID-19 pandemic in March 2020, since C.M.M. had to adjust to an entire new routine and he had to sort out child-care arrangements. He saw Dr. Zizzo on April 28, 2020 and reported suffering serious stress after making another significant mistake on the job and being suspended for 5 days. At that time, he described feeling overwhelming feelings of anxiety, restlessness, sleep problems and frequent episodes of ruminating. His work-related stress was exacerbated by his concern about contracting COVID-19 due to his close daily contact with colleagues in the workplace. He also discussed the contributing impact of the mother’s abuse allegations against him and his family members on his mental health. Dr. Zizzo assessed him as suffering from depression, anxiety and panic attacks and prescribed lorazepam for the panic attacks. The father was also continuing to take effexor for anxiety. The father began to receive supportive counselling through his employee assistance program again at that time. Dr. Zizzo continued to see him for ever increasing stress, anxiety and panic attacks after he was fired from his job in May 2020. The father’s supportive counselling focussed on the father’s loss of work, his efforts to carve a new path, the stress of the mother’s allegations and the Society’s longstanding involvement with the family, COVID-19 concerns, and post-separation conflict with the mother.
363Dr. Zizzo continued to see the father for supportive counselling sessions throughout the summer of 2020. The father’s anxiety and stress levels improved with the prescribed medications, but he advised Dr. Zizzo in June 2020 that his anxiety was “through the roof again” after the mother made her new allegations of sexual abuse. By November 2020, his mood and condition had improved. He continued with additional counselling services through the Winterberry Clinic in 2021 after his work benefits ended. The Winterberry Clinic records reflect that his condition had improved by January 2022 but that he was still experiencing stress related to excessive, aggressive and hurtful messages from the mother.
364The father’s difficulties with anxiety spiked again in late December 2022, and there were concerns about his high blood pressure. The father explained that his anxiety at that time was attributable primarily to the mother’s actions, as she was constantly late in bringing C.M.M. to school, was constantly reporting that he was an abuser, was forcing C.M.M. to eat eggs despite his allergy to eggs and was turning daycare providers and other families at the school against him. Dr. Zizzo prescribed him cyclobenzaprine for his sleep issues and began monitoring him more closely for his cardiac and mental health challenges. The father attended for a follow-up appointment on February 7, 2023, at which time it was noted that he was feeling persistent chest tightness and discomfort, heart palpitations and high blood pressure. He presented as very stressed and fatigued, and he was provided with counselling around red flags for a cardiac incident. At that time, he was taking prescribed amlodipine for his cardiac symptoms. Dr. Zizzo ordered that he undergo an echocardiogram to further assess for cardiac problems. In March 2023, Dr. Zizzo confirmed that the results of that testing did not show any cardiac-related cause for the father’s symptoms, and assessed his issues as being related to the numerous stressors in his life. The father continued with regular counselling sessions and health monitoring through the clinic in 2023 and was given several resources and coping mechanisms to assist with his stress, anxiety and ongoing panic attacks. He was prescribed a new medication, sertraline, for anxiety and depression on April 17, 2023.
365The father’s symptoms began to improve by late 2023 as a result of his medication and his work in counselling. However, the mother’s renewed allegations and the re-involvement of the Society in January 2024 set his progress back significantly. He reported to Nurse Practitioner Ms. Troup during a counselling session on March 4, 2024 that he was struggling greatly in managing his emotions around the new allegations and investigation, and that he feared he would begin having panic attacks again. The father continued with supportive counselling and monitoring of his blood pressure through the clinic throughout 2024 as a means of coping with the emotional challenges brought about by the new round of allegations from the mother. His sertraline dosage was increased on May 7, 2024 due to his increased stress levels relating to the ongoing Society involvement. By August 14, 2024, the father reported to a clinic nurse, Ms. Shana Swain, that his anxiety had been “through the roof” again due to the ongoing pressure caused by the mother’s constant abuse and neglect allegations. He also advised that he had been unable to hold a consistent job due to child-care problems after the Society imposed supervised contact requirements respecting the grandparents during the most recent investigation.
366The father testified at trial that he was still engaged in counselling to address his challenges with anxiety, and that he was still complying with the medication regime that his health care providers had recommended to him.
367I find that the father has overall functioned exceedingly well despite the mental and physical health challenges that he has experienced over the years due to the numerous stressors in his life. Although he lost his job in May 2020, he regrouped after a short break, began working part-time and embarked upon a new career path that will provide him and C.M.M. with a strong and reliable sense of financial security into the future. Furthermore, as I outline in further detail below, he has done an exemplary job of meeting all of C.M.M.’s significant needs. His high level of competence in all of these areas despite the immense stressors that he has faced and the associated mental health difficulties that he has weathered is a testament to his resilience and his general strength of character.
368Turning to the mother’s concerns about the mental health of the grandparents, these are based on her own observations of their behaviours over the years. In particular, she relies on the long list of complaints about their behaviour that I fully addressed early on in these Reasons for Judgment. I have not found her descriptions of their behaviour and alleged actions to be credible or reliable. There is no independent evidence whatsoever suggesting that the grandparents have ever suffered any mental health challenges. The Society has had extensive contact with them since 2017, and none of the Society workers documented any worries about their mental health status. In fact, all of the workers involved with the family over the years have described the grandparents in positive terms, and as highly reliable and effective supports for the father and C.M.M.
F. History of the Parties’ Parenting Roles
369I have considered the history of the parties’ parenting roles respecting C.M.M. since his birth. I find that the mother was C.M.M.’s primary caregiver for the first year of his life, until September 2017, and that she carried out inside household duties during that period. However, the father was heavily involved in the care of C.M.M. when he was not working, and I find that he was responsible for almost all outdoor home management tasks. I also conclude that he shared inside household duties to the best of his ability having regard for his employment responsibilities. The father actively participated in all aspects of C.M.M.’s care, including changing and feeding him, fostering his development and attending to his needs during the night.
370The mother returned to work on a full-time basis in September 2017, and C.M.M. began to attend daycare at that point when both parties were working during the day. However, the father cared for C.M.M. on his own when he was not working the day shift at Rogers. The evidence establishes that the parties assumed an equal share of the child-care responsibilities from September 2017 until their separation on January 8, 2018.
371C.M.M. initially resided primarily with the mother following the separation. The mother was still breastfeeding C.M.M., and therefore the father agreed to daytime parenting time. I find that he saw C.M.M. as often as possible having regard for his work obligations, the parameters that the mother set around his parenting time and the mother’s and C.M.M.’s schedule. The text messages between the parties attest to the regular and frequent nature of his parenting time with C.M.M. and his desire to have overnight parenting time as soon as the mother agreed. The parties agreed to expand his parenting time to include overnight visits in approximately early April 2018. During the spring of 2018, the father had some practical challenges maximizing his parenting time with C.M.M. due to his impaired driving charge, his need to use public transportation to get home from work at times and his inability to get back to Hamilton at a reasonable hour. However, he continued to demonstrate a commitment to seeing C.M.M. as frequently as possible.
372By June 2018, the father was having quite extensive overnight parenting time with C.M.M. The text messages between the parties reflect that they were creating parenting time schedules in advance of every month based on the father’s work schedule. In a text message from the mother to the father dated June 17, 2018, the mother asked the father to take C.M.M. more often, as she was setting up her new home. The text messages reflect that the father had C.M.M. for 16 days in May 2018 and for 11 days in June 2018. Nonetheless, in her message dated June 17, 2018, the mother threatened to contact the father’s employer Rogers and complain about his schedule unless he agreed to take C.M.M. more often. In July 2018, he could not take C.M.M. for some of the days that he had noted on the schedule due to his challenges with transportation for work, so he paid for a babysitter so that the mother could have those days off to rest. He paid for a sitter for her in August 2018 for the same reasons.
373The father’s transportation challenges ended in late August 2018, when he was able to drive again with an interlock device. I find that his overnight parenting time with C.M.M. gradually increased after the mother began her relationship with M.R. The Society was involved with the family during this time frame, and its records along with the text messages between the parties reveal that from October 2018 until April 2019, the father had roughly equal parenting time with C.M.M., except for some weeks when he had less time due to his work commitments. As I discuss in more detail below, the evidence establishes that the mother became frustrated and angry at times that the father could not take C.M.M. more often due to his work commitments. As I have already noted, the mother’s representation to the court that the father had limited parenting time leading up the Society placing him in foster care is not borne out by the evidence.
374Based on the findings above, I find that both parties were committed to caring for C.M.M. as much as they could based on their other obligations from the time of his birth until he was placed in foster care on April 9, 2019. The father became C.M.M.’s primary caregiver on May 3, 2019 and he has continued to have primary care of him since that time. I have already discussed in detail the progression of the mother’s parenting time with C.M.M. from April 2019 until the summer of 2021, when the parenting schedule that was in effect until trial was implemented. I find that she was deeply committed to maximizing her time with C.M.M. during that time period, that she regularly advocated for more unsupervised time and that she was consistent in exercising her visits with C.M.M. Her parenting time was significantly curtailed again in late August 2020 due to the Society’s protection concerns, but she demonstrated a strong commitment to working towards a return to liberal unsupervised parenting time over the following year.
375The mother had regular and liberal parenting time with C.M.M. from August 2021 until my temporary order dated March 6, 2024. As I have indicated, she typically had him according to a two-week schedule from Wednesday evening until Thursday at 6:30 p.m. in week one, and from Thursday evening until Sunday at 6:30 p.m. in week two. When C.M.M. was not in school for any reason, including Professional Advancement days or illness, her parenting time started on Wednesday or Thursday morning, as the case may be, at 9:00 a.m. The parties shared parenting time with C.M.M. on an equal, week-about basis during the months of July and August in 2023 and 2024. The terms of the January 31, 2024 order provided only for one full week of summer vacation parenting time for each of the parties during the summer months and for the remainder of the summer to be in accordance with the regular schedule. However, the father misunderstood the summer vacation holiday provisions of the order and agreed to week-about time sharing in the summer of 2024. I conclude that the father has continued to have primary care of C.M.M., and that the arrangements that were in effect from August 2021 until the temporary order dated March 6, 2024 did not constitute a shared parenting arrangement within the meaning of section 9 of the Guidelines.
376Although the father has continued to have primary care of C.M.M. since August 2021, both parties have been active participants in decision-making in all significant aspects of his life. They have both taken him to medical, dental and play therapy appointments and have participated equally in arranging enjoyable extracurricular activities for him. In addition, they have both been involved in his spiritual upbringing and they cooperated in ensuring that he was baptized in January 2024.
G. The Parties’ Ability to Meet C.M.M.’s Physical Needs
377I have weighed the extensive evidence respecting the parties’ ability to meet C.M.M.’s physical needs. Focussing first on the mother, I find that she has demonstrated a strong commitment to ensuring that C.M.M. has received excellent daily care. She has provided nutritious meals for him, purchased a great deal of his clothing and ensured that he was appropriately dressed at all times. She has also remained on top of his medical and dental needs and has taken him to many health-related appointments. In the spring of 2022, she took steps to have C.M.M.’s eyes checked by an optometrist. In addition, the mother was instrumental in getting C.M.M.’s potty trained at a fairly early stage and in resolving his nail-biting habit. She gave C.M.M. nice haircuts during the COVID-19 lockdowns and has attended well to his personal hygiene needs. She has also provided a stable and appropriate residence for C.M.M. while he has been in her care. The evidence of the mother’s former tenant, S.M., her former neighbour at the Upper Gage residence, J.B., her former partner, M.R., and her paternal aunt D.L. all fully support these findings respecting the mother’s excellent attention to C.M.M.’s daily physical needs.
378Notwithstanding these positive findings, there are concerns respecting the mother’s willingness to comply with the opinions, recommendations and directions of health care professionals who have been involved in the care of C.M.M. when they do not conform with her own views regarding C.M.M.’s physical needs. This has been particularly evident in relation to C.M.M.’s weight and his allergy to eggs. With respect to C.M.M.’s weight, as I have already touched upon, the mother began expressing concerns about the child’s weight and alleging that the father and grandparents were not feeding him properly in the fall of 2021. She continued to express these concerns right up until the time of trial. However, the Society thoroughly investigated these concerns at various stages and did not verify them at any time.
379I have already noted that the mother addressed her concerns about nutritional neglect by the father and the grandparents during a session with Nurse Practitioner Ms. Troup on May 10, 2022. On June 9, 2022, Ms. Troup reassured the parties that there were no worries about C.M.M.’s weight, but she noted that the mother was difficult to satisfy despite her multiple reassurances that the child’s weight was fine. Notwithstanding these assurances, the mother scheduled an appointment with Dr. Raza on January 24, 2023 to discuss C.M.M.’s weight once again, without the father’s knowledge, and she had a follow-up appointment with Dr. Raza and C.M.M. on February 9, 2023 to have the child’s weight evaluated again. Dr. Raza once again reassured the mother that there were no concerns respecting C.M.M.’s weight and provided her with information about children typically having periods of slower and faster growth and weight gain. She noted concerns that the mother had been weighing C.M.M. whenever he left and returned to her care, and she directed the mother to only weigh him in 2 to 3 month intervals moving forward.
380At a Well Child appointment on July 25, 2023, Dr. Zizzo took C.M.M.’s weight and did not note any concerns. Dr. Semenchenko noted in a report respecting C.M.M.’s medical needs dated July 27, 2023 that the clinic professionals had concerns about the mother’s preoccupation with C.M.M.’s weight and her weighing the child excessively despite the directions of health care professionals that she avoid doing so. She also indicated that the mother appeared to have “a fixation on certain aspects of C.M.M.’s wellbeing that may be misguided.” The mother claimed that C.M.M. liked to jump on and off the scale at her home and denied weighing him excessively. I did not find her credible on this point. The mother continued to raise concerns with Society worker Ms. Byrne and the Winterberry Clinic about C.M.M.’s weight in 2024. However, Dr. Zizzo reassured the Society on March 5, 2024 that there were still no concerns about the child’s weight as of that time. In addition, as I have addressed already, Nurse Practitioner Ms. Patel addressed the issue of C.M.M.’s weight with the parties on March 18, 2024 and April 3, 2024 due to the mother’s ongoing worries and concluded once again that there was no cause for concern. Finally, the school principal Ms. Coletto testified that there had not been any concerns noted in the school setting to support this concern. By way of summary, the mother has perseverated on C.M.M.’s weight and her allegation of nutritional neglect by the father and the grandparents since the fall of 2021 despite numerous reassurances by Society workers and health care professionals that C.M.M. has been developing appropriately.
381Turning to C.M.M.’s allergy issues, the evidence establishes that the mother has not been compliant with medical recommendations respecting his allergy to eggs. By way of background, Dr. O’Hayon diagnosed C.M.M. as having an allergy to milk and a risk of allergy to eggs in September 2017. He advised the parents at that time that these foods were to be avoided, and the parents received advice from him about how anaphylaxis presents and how to treat it. Dr. O’Hayon concluded that C.M.M. had resolved his milk allergy by late 2019, but he determined on March 4, 2020 that he continued to be allergic to eggs. He advised the parties at that time that they should avoid giving C.M.M. all egg products including lightly cooked eggs, and that he would reassess whether C.M.M. continued to be allergic to eggs in 1 or 2 years. However, I find that the mother began giving C.M.M. food containing eggs in 2021, contrary to Dr. O’Hayon’s assessment and the directions that he gave on March 4, 2020. On May 16, 2021, she sent the father an App Close message relaying that C.M.M. had suffered an allergic reaction when they were baking and some raw egg fell on his hand. She suggested that he was probably not yet ready to undergo an egg challenge with Dr. O’Hayon. However, she subsequently sent Society worker Ms. Nguyen a message only two weeks later on May 31, 2021 advising that she had fed C.M.M. pancakes containing eggs, that he had vomited, and that she therefore planned to go back to using egg replacement for him. The mother attended another consultation with Dr. O’Hayon on June 14, 2021 and confirmed at that time that she had been feeding C.M.M. food with egg in it, including muffins and pancakes containing eggs. She informed Dr. O’Hayon that C.M.M. had vomited after eating pancakes. Dr. O’Hayon concluded at that appointment that C.M.M. continued to have a food allergy to eggs, but that he could tolerate products containing well baked eggs. He provided the parties with instructions on how to gradually introduce heavily baked eggs into C.M.M.’s diet to prepare him for the next appointment with him in early 2022. These instructions included a safe muffin recipe containing egg and a recommendation that the parties feed C.M.M. these muffins on a regular basis to see how he tolerated them. The mother claims that the father did not comply with this direction, but I conclude based on the father’s evidence, the Society’s records, the Winterberry Clinic records and Dr. O’Hayon’s reports that he was usually compliant with this plan.
382On February 28, 2022, Dr. O’Hayon met with both parents and C.M.M. at his office. He attempted to carry out an oral challenge for C.M.M. to lightly cooked scrambled eggs in his office that day, but C.M.M. refused to eat the eggs. Dr. O’Hayon clearly indicated in his clinical note respecting that visit that C.M.M. continued to have an egg allergy, and he directed that the parties needed to schedule another appointment for him to conduct another scrambled egg challenge in this office before feeding him lightly cooked eggs. The mother fed C.M.M. scrambled eggs notwithstanding that direction from Dr. O’Hayon. On March 2, 2022, the father advised the mother in an App Close message that C.M.M. was worried about eating eggs. The mother responded on March 2, 2022, claiming that he was obsessed about C.M.M.’s egg allergy, that he was making C.M.M. afraid to eat eggs, that she felt the father had Munchausen Syndrome in relation to the egg allergy issue, and that her partner M.R. regularly made eggs for them all and C.M.M. never complained about eating them. The father explained to the mother that C.M.M.’s anxiety around eating eggs was logical and reasonable given his allergic reaction to them, and advised that he would not be forcing him to eat eggs until he felt comfortable to do so. The mother responded by unleashing another lengthy series of text messages that continued for 40 minutes, clearly rejecting Dr. O’Hayon’s and the father’s opinions about C.M.M.’s egg allergy issue, and complaining about various other aspects of the father’s parenting. She accused the father of putting fear into C.M.M.’s head, called him greedy and self-serving, and described him as a criminal, an abuser, a sick and deranged man, brain-damaged and a male chauvinist.
383The parties attended with C.M.M. for another appointment with Dr. O’Hayon on May 15, 2024. At that time, the mother acknowledged that notwithstanding Dr. O’Hayon’s previous directions, C.M.M. had consumed lightly scrambled eggs while in her care. She claimed that he did not vomit after eating scrambled eggs, but that he had an eczema flare several hours later. Dr. O’Hayon carried out prick testing of C.M.M. during that appointment, the results of which showed that C.M.M. continued to have an allergy to eggs. Based on that testing and the mother’s report regarding C.M.M.’s eczema flare-up, he concluded that C.M.M. should undergo another oral challenge to lightly cooked eggs in his office as the next step in determining the safest course of action.
384The mother claimed at trial that Dr. O’Hayon advised the parties during the appointment on May 15, 2024 that they could try to give C.M.M. scrambled eggs at home prior to the formal egg allergy challenge in his office, which the father adamantly denies. I accept the father’s evidence on this issue. The reports of Dr. O’Hayon clearly reflect that his recommendation was to avoid lightly cooked eggs until the controlled challenge to scrambled eggs in his office was carried out. The egg challenge at Dr. O’Hayon’s office was scheduled for October 9, 2024. However, the mother acknowledges that she fed C.M.M. generous helpings of scrambled egg prior to that date. In fact, after the father testified on September 26, 2024 about the ongoing concerns about C.M.M.’s egg allergy and Dr. O’Hayon’s recommendation regarding the egg challenge, the mother sent the father a photograph that same night of C.M.M. with a large serving of scrambled eggs in front of him. This was accompanied by a message from the mother confirming that C.M.M. had eaten all but 3 tablespoons of the large serving and that he was fine.
385Dr. O’Hayon saw the mother and C.M.M. on October 9, 2024 for the challenge to scrambled eggs. Based on the mother’s report to him at that time that C.M.M. had tolerated scrambled eggs at home, he concluded that C.M.M. had outgrown his egg allergy and he could safely consume lightly cooked eggs moving forward. However, in a further report dated October 28, 2024. Dr. O’Hayon clearly reiterated his advice that prior to October 9, 2024, his direction to the parents was that C.M.M. should only consume foods containing extensively heated baked eggs, and that C.M.M. should undergo the challenge to scrambled eggs in his office before eating lightly cooked eggs. He also emphasized that his protocol is to require an in-office scrambled egg challenge before recommending a move to lightly cooked eggs, since he had ample experience of children being able to tolerate products with baked egg but continuing to have serious allergic reactions to lightly cooked egg products such as scrambled egg. Based on all of this evidence, I find that the mother took a serious gamble with C.M.M.’s health by permitting him to consume scrambled eggs from 2021 onward. Fortunately, there were no dire consequences for C.M.M., but this was a risk that should not have been taken for C.M.M.’s safety and wellbeing.
386As a final point respecting the mother’s attention to C.M.M.’s daily physical needs, I find that she has not voluntarily paid any child support to the father since May 2019, when C.M.M. began to reside primarily with him. The Family Responsibility recently enforced two child support payments totalling $622.00. The mother claims that she has been unable to pay support since May 2019, but as I will discuss in greater detail in the context of the child support analysis, I do not accept her position on this issue.
387Turning to the father, I find that he has consistently exercised good judgment and attended very competently to C.M.M.’s physical needs throughout the child’s life. He has ensured that C.M.M. received appropriate medical and dental care and has attended many of C.M.M.’s health-related appointments. I find that he only missed appointments when his work commitments did not allow him to be present. Despite his many concerns about the mother and her major allegations against him and his family, he has not stood in the way of her attending appointments along with him or on her own with C.M.M. when this was in the child’s best interests. The father has complied with all recommendations made by health professionals respecting C.M.M.’s care and has ensured that all school documentation required for C.M.M.’s allergies have been submitted on time.
388The father has also provided a safe and stable home environment for C.M.M. throughout the child’s life and has attended to C.M.M.’s financial needs. He worked at a very high stress job at Rogers until May 2020 to support the family. This job involved challenging shift work and required him to make a gruelling commute to and from Toronto. As I will discuss in further detail in regard to the support issues, I find that he voluntarily contributed reasonable amounts to C.M.M.’s support following the parties’ separation. He took a sound course of action to establish a career that would provide him with a very good and reliable income in the long term after he lost his job with Rogers. The mother criticized him repeatedly for not moving out of the grandparents’ home and setting up his own residence for himself and C.M.M. However, I find that this was a wise decision based on the father’s economic realities, and that the grandparents’ generous offer to allow him and C.M.M. to reside in their home allowed the father to fully meet C.M.M.’s daily living needs.
389I have discussed the mother’s constant allegations to the Society and other professionals, and to this court, that the father dressed C.M.M. in inappropriately sized clothing and allowed him to wear shoes with holes in them. She also complained generally about the style of clothing that the father and the grandparents picked for C.M.M. The Society has not verified any of these concerns, and the school principal Ms. Coletto testified that there have been no concerns on the part of any school officials respecting the adequacy or appropriateness of C.M.M.’s clothing or footwear. The evidence indicates that C.M.M. has at times had holes in his shoes, but I find that the father has replaced such shoes within a reasonable time frame. The father and the grandmother provided a sound explanation for the holes, stating that C.M.M. drags his shoes while he is on his scooter, and that he has always been very hard on his footwear. The grandmother noted that one set of running shoes lasted only two weeks. She explained that C.M.M. usually has two sets of running shoes due to this problem, and to ensure that he does not have to wear shoes with holes in them. With respect to the size of C.M.M.’s clothing, the father explained that C.M.M. prefers looser fitting clothing, especially his underwear. The mother proffered photographs to support her claims that the father dresses C.M.M. in grossly inappropriate sized clothing. The photographs did not support her allegations. In one photograph, C.M.M. is seen wearing an oversized pair of coveralls with the legs rolled up, but this was a costume that the father had dressed him in for an event at school and it was not representative of his regular clothing. I conclude that the mother has a very different sense of style preference than the father and the grandparents when it comes to C.M.M., and that she has therefore tended to purchase her own clothing for the child to wear when he has been in her care. However, the evidence does not substantiate her constant criticisms of the father’s choices respecting C.M.M.’s clothing.
390The mother also alleged that the father was inattentive to skin issues that C.M.M. experienced. Again, the evidence does not support this claim. The mother noted that C.M.M. had problems with eczema, and that on one occasion on June 1, 2020 she observed that he had a rash on his chest and shoulders and some spots on his legs. She described the rash as being so terrible that C.M.M. looked like “a burn victim.” In a message to the father dated June 1, 2020, she described the rash as looking like “burnt crusty skin.” The photographs show a slight rash over C.M.M.’s chest and shoulders, and I find that the mother’s description was highly exaggerated and misleading to the court. The mother sent photographs of C.M.M.’s chest, shoulder areas and legs to the Winterberry Clinic on June 2, 2020 due to her concerns respecting the rash and her claim that the father had been neglectful of C.M.M.’s care. Dr. Zizzo reviewed the photographs that same day and concluded that the rash was a sunburn from C.M.M. playing in the pool. He recommended that aloe vera and aveena cream be applied to the areas in question.
391The mother also had concerns that the father did not attend appropriately to a lesion on C.M.M.’s chin which did not resolve for an extended period of time in 2020. She adduced a photograph of this lesion as evidence, and it showed a small spot on the child’s chin. A text message from the mother dated June 2, 2020 reveals that the parties had actually talked about this lesion and had decided together to just leave it alone and see whether it healed on its own. However, the mother also sent a photograph is this lesion to the Winterberry Clinic on June 2, 2020. Dr. Zizzo referred C.M.M. to a dermatologist, Dr. Randhawa, on that day. In his referral letter, he noted that the lesion had been present for approximately a year, and that the parents did not initially worry about it because they thought it was pustular. The mother called in for a zoom appointment with Dr. Randhawa. However, the appointment did not proceed since it was determined that the father had not been informed about it. The mother accused the father of failing to follow up in making another appointment. However, I find that this issue resolved on its own soon after the initial appointment date with Dr. Randhawa, and that no further follow-up was necessary.
H. The Mother’s Concerns Regarding the Father’s and Grandparents’ Supervision of C.M.M.
392The mother has consistently complained that the father and the grandparents have failed to supervise C.M.M. properly, and that this has resulted either in harm or risk of harm to the child. As I have already discussed, she claimed that the father fell asleep in the bathtub with C.M.M. when he was an infant and that he placed the child at risk of drowning. The father adamantly denied this allegation, and I am not satisfied that the incident was as the mother described or that C.M.M. was placed at risk on that occasion. As another example of this concern, the mother claimed that the father repeatedly failed to fasten the safety gate on the staircase during the marriage, and that he also failed to properly supervise C.M.M. which created a risk of the child falling or rolling down the stairs. She adduced as evidence a recording that she made in which she was chastising him about this and about him having sworn at her in response to her criticism. In addition, she claimed that there was one occasion when C.M.M. almost fell off a couch due to the father’s alleged failure to supervise him properly. I find that there may have indeed been some incidents when the father failed to secure the baby gates, but the evidence does not satisfy me that he was failing to supervise C.M.M. properly on those occasions. While this type of oversight is not to be condoned, I am not satisfied that it was a regular or frequent problem. In regard to the couch incident, if this occurred it would certainly be cause for concern. However, I highlight that there is documentary evidence that C.M.M. fell off beds on two occasions when he was very young and he was in the mother’s care, first during the involvement of HBHC and second, on April 6, 2019. Accordingly, any concerns about the quality of parental supervision when C.M.M. was very young would go both ways.
393The mother also testified that C.M.M. sustained several “goose eggs” to his head during the father’s parenting time, and she claimed that these injuries were attributable to negligent supervision while in the father’s and grandparents’ care. She also complained that the father did not tell her about some of these incidents, and that C.M.M. did not receive appropriate care for his injuries. I accept her evidence that C.M.M. sustained several bumps to his head during the father’s parenting time periods. However, I am satisfied that C.M.M. sustained all of these injuries as a result of unfortunate incidents that did not involve abuse or negligent supervision. Reasonable and credible explanations were provided for each of them. The Society investigated many of the incidents and found that they were due to accidental events that could not have reasonably been prevented. Some of the incidents occurred either at daycare or school. Furthermore, I conclude that the father advised the mother of all but one of those incidents and provided explanations, and that there were no concerns respecting the care that C.M.M. received. My specific findings respecting these incidents are as follows:
The text messages between the parties indicate that they talked about a bump on C.M.M.’s head on September 27, 2018 and October 5, 2018, and that the father explained that he had sustained it while at daycare.
On October 30, 2019, the father texted the mother to advise that C.M.M. had been playing and had fallen, and that he had a bruise on his cheek.
The grandfather testified that one of the bumps to C.M.M.’s head occurred when he was running down the street with his cousin, the children’s legs got tangled up, and they both tripped. I find that the grandfather applied ice to the bump that C.M.M. sustained to his head, and that C.M.M. did not show any signs of concussion. The text messages between the parties indicate that this incident occurred on May 22, 2020, that the father advised the mother of this incident by text that day and that he informed her that he had also applied ice to C.M.M.’s head upon his return home from work. The mother asked how C.M.M. was and appeared to be comfortable with the explanation that the father provided and the care that C.M.M. had received.
The App Close messages between the parties reflect that the father told the mother on February 20, 2021 that C.M.M. had bumped his head at school, that school staff had applied ice to his injury and that he had a bruise between his eyes.
The father testified that C.M.M. sustained another bump to his head while in the grandfather’s care, from falling into a tree while he was playing. The App Close messages between the parties reflect that this incident occurred on December 19, 2021 and that the father advised the mother of it that same day. The mother suggested that the grandfather maliciously tripped C.M.M. and then laughed at him after he fell on this occasion. She also alleged that the grandfather failed to attend to C.M.M.’s injury, and that no ice was applied to his head until his father came home and attended to him. I do not find either of these claims to be credible or reliable. The father testified that the trip was purely accidental, and that the grandfather applied ice to C.M.M.’s head and monitored him closely after the fall. I prefer his evidence over that of the mother.
On January 27, 2022, the father messaged the mother to inform her that C.M.M. had bumped his head at school again, and that he had gone to the school to check up on him.
Subsequently, on April 7, 2022, the father messaged the mother to advise that C.M.M. had been playing with friends on the grass at the local church and had accidentally struck his head on the church sign when he stood up from gathering twigs. He assured her that C.M.M. was fine but suggested that he may be sore during the next hair wash.
394The mother also spent considerable time during the trial discussing and cross examining the father and the grandparents about an incident when the paternal grandfather brought C.M.M. onto the roof of the grandparents’ house without any safety gear and placed him through a bathroom window to help his cousin, who had accidentally locked himself into the bathroom. She suggested that it was in fact the father who had taken C.M.M. onto the roof. The father and the grandparents testified that it was the grandfather who took C.M.M. onto the roof, and the Society records indicate that C.M.M. disclosed that it was the grandfather. I find that this event did occur. I agree with the mother that the grandfather exercised very poor judgment in bringing C.M.M. onto the roof without any safety gear, and that C.M.M. could have potentially suffered considerable harm if he had fallen. However, I am also satisfied that the risk was fairly low given that the grandfather was a former firefighter and took reasonable safety precautions. More importantly, I am satisfied that the grandfather would not engage in this type of risky activity with C.M.M. again. Finally, I find that this is the only occasion when C.M.M. has been placed at risk while in the care of the father and the grandparents since he began living primarily with them on May 3, 2019.
I. The Parties’ Attention to C.M.M.’s Educational and Developmental Needs
395I have considered the parties’ commitment and attention to C.M.M.’s educational and developmental needs. C.M.M. attended daycare at the Little Sprouts Daycare Centre starting in September 2017, when the mother finished her maternity leave. I find that both parties were involved in drop-offs and pickups, and that they both communicated with the daycare staff about C.M.M.’s educational and developmental needs. However, the Society’s records reflect that the mother’s interactions with daycare staff were often very challenging. On January 18, 2018, the supervisor of the program, Mrs. Park, advised Society worker Ms. Guiden that the mother was “raising red flags” due to her odd behaviour and that communications with her were difficult at times. She noted that the mother presented as over-protective and had made an official complaint to the government after C.M.M. hurt himself playing with some toys at the centre. As I have already discussed, an early childhood educator from the program, Ms. Schram, called the Society on April 30, 2018 to relay concerns about the mother’s emotional dysregulation and suicidal thoughts, and she also indicated during that call that the mother had yelled at staff a couple of times over minor issues. The Society received another call from a member of the staff, Ms. Krista Halliday, on April 9, 2019 to report concerns about the mother’s wellbeing. During that call, Ms. Halliday also relayed concerns about the mother’s challenging behaviour towards staff. She noted that the father had always been very respectful with staff and was always on time picking C.M.M. up.
396C.M.M. started Junior Kindergarten at St. Margaret Mary in September 2020, and he has continued to attend that school. He started grade 3 in September 2024. The mother alleges that the father chose this school without any consultation with her, but the evidence does not support this claim. The father sent a text message to the mother on January 12, 2020 stating that they had to talk about the school issue and C.M.M.’s baptism. He indicated that he wanted C.M.M. to attend St. Margaret Mary, since he had attended that school as a child. The mother did not agree at that time. However, the Society’s records indicate that the father spoke with the mother about the choice of school again in March 2020, and that it was his understanding that the mother had agreed to this choice. Ms. Kaur had a home visit with the mother on March 6, 2020, and the mother confirmed that the father had spoken with her about the choice of school issue. She advised Ms. Kaur that she had hoped C.M.M. could attend a French immersion school, but that she agreed to St. Margaret Mary.
397I find that both parents have taken an active interest in C.M.M.’s educational and developmental progress since 2020 and have demonstrated a commitment to supporting him in his studies. I accept the father’s evidence that C.M.M. has typically completed most of his homework during his parenting time periods. He testified that he assumes responsibility for C.M.M.’s homework rather than the grandparents, but that the grandparents sometimes read with him. The mother has also assisted C.M.M. with homework during her parenting time. The mother’s former tenant, Ms. M., and her former partner M.R. attested to having witnessed the mother ensuring that C.M.M. completed his homework and assisting him with it when necessary. Both parties were actively involved in reading with C.M.M. during his Kindergarten years. In addition, I find that they have both been committed to choosing toys and activities for him which have an educational component. S.M. and M.R. described the types of educational toys and activities that the mother chooses for C.M.M., and how the mother actively encourages the child’s curiosity and development on an everyday basis. I find that the mother has also taken an active interest in ensuring that C.M.M.’s speech develops appropriately. She testified that she developed concerns that C.M.M. was having some issues with enunciating certain sounds, and that she therefore enrolled him in speech therapy, which she took him to during her parenting periods. As I will discuss in more detail below, she did so without discussing her plan with the father and without his prior knowledge or consent.
398Both parties have engaged in communications with the school about C.M.M., and they have both reviewed and signed their names in the child’s communication books and reading logs during his Kindergarten years and in his agenda starting in grade 1. The grandmother was a teacher for many years, and she and the father testified that she also checks C.M.M.’s agenda regularly to keep on top of his homework expectations and school events. She has been a valuable support to both the father and C.M.M. in this area. I also find that both parties have participated in special school events when they were able to based on their work commitments. The mother described having attended two of the school cross country days and being a major source of support for C.M.M. on those occasions.
399Unfortunately, there has been significant conflict between the parties around C.M.M.’s communication books, readings lists and his school agenda. C.M.M.’s Senior Kindergarten teacher, Ms. Zangrando, initially sent the same reading list to both parties in 2021. However, the mother insisted that she send separate reading lists to her because of the ongoing disputes between the parties about parenting matters. In a letter to Ms. Zangrando dated March 3, 2022, she thanked her for the separate reading list folder, claiming that the father was misrepresenting that he had read books with C.M.M. from a specific series that she had been reading with C.M.M., and noting that this was an example of the many instigation tactics that she experiences with the father. On October 22, 2022, in C.M.M.’s grade 1 year, she wrote a letter to C.M.M.’s teacher, Ms. Murray-Stanicak, indicating that she preferred to keep her reading list separate from the one sent home to the father due to what she described as “the difficult custody battle” and a “very complicated situation.” In that correspondence, she highlighted her high level of competence in assisting C.M.M. to read starting at an early age, noting that her grandmother had been a highly respected teacher in Windsor who had taught her to read very early. The mother testified that she believed during this period of time that the father was not actually reading the books on the reading list with C.M.M., and that he was deliberately listing books that she was reading with C.M.M. as a tactic to antagonize and instigate her. I find that there is no merit to that allegation. The father testified that he was disappointed with the mother’s insistence on separate logs, as he had hoped that they would be able to co-parent effectively. He felt that the mother’s position on this issue raised concerns about the mother’s ability to do so and place C.M.M.’s interests first. I agree that the mother’s position on this issue was concerning and not child-focussed. It was based on her misplaced and distorted perceptions that the father was using the reading logs as a way to get a rise out of her, and her communications with the teachers sent a message to them and the father that there was bitterness between the parties, rather than a sense of cooperative co-parenting. Moreover, her insistence on separate logs resulted in the parties not having the benefit of seeing what C.M.M. was reading and how he was progressing with his reading skills while in each party’s care, which is not an outcome that supported his developmental progress.
400The mother devoted a considerable amount of time at trial on her complaint that the father and grandmother have on occasion crossed out her name in C.M.M.’s agenda book. I find that they have sometimes crossed out her name when she has signed the agenda on days when C.M.M. was not in her care. On one occasion, the father put an arrow next to her name pointing to the day when the mother actually had care of C.M.M. On another occasion on February 14, 2024, the grandmother crossed out the father’s name and wrote the mother’s name, because the father had signed his name on a day when C.M.M. was in the mother’s care. This was the notation that caused the mother to attend the police station and the school, accusing the grandmother of forging her name and harassing her through the agenda. As I have indicated, the father and grandmother made these changes to the agenda so that the teachers would be aware of who was responsible for ensuring that homework was done and that communications were received on the appropriate days. The father addressed this issue with the Society workers involved with the family, but the mother continued to sign her name on the father’s parenting days. I find that there was a sound and logical basis for the father and grandmother ensuring that the names in the agenda book corresponded with the person who had care of C.M.M. on the relevant days. The mother’s insistence on signing her name on days when she did not have C.M.M. reflects that she was overly fixated on proving her presence and involvement as a parent and unable to appreciate the merit of ensuring that the teachers were aware of who was responsible for C.M.M.’s homework on any given night. Her reaction of making a police report and attending Ms. Coletto’s office to make an official complaint was exaggerated and highly disruptive for the educational professionals involved with C.M.M.
401Unfortunately, there have been fairly regular concerns about the mother’s ability to get C.M.M. to school on time during her parenting periods. The father has attempted to address this issue with the mother directly and through the court process, but these efforts did not result in any consistent resolution of the problem. The mother minimized this problem and offered various excuses for arriving late, including being held up due to garbage trucks and school buses in her neighbourhoods. The mother also suggested that she was typically only a few minutes late, and that longer periods of tardiness shown in the school records reflect the fact that C.M.M. would have to attend the school office and wait in line with other students to have his attendance documented by the school secretary. She was clearly of the view that her allegedly short periods of tardiness had not impacted C.M.M.’s educational progress or wellbeing at all.
402I conclude that the mother misrepresented the extent of the school tardiness issue, that this problem has in fact negatively impacted C.M.M., and that the mother is unable to acknowledge her shortcomings in this area. With respect to the magnitude of the problem, the school records indicate as follows respecting days when C.M.M. arrived late for school while in the mother’s care:
He was late 13 times from mid October to the end of the school during his Senior Kindergarten year. Most notations indicate “slept in” as the reason for the tardiness. He was approximately 15 minutes late 10 times, roughly 30 minutes late once, about 40 minutes late once, and one hour late once.
During his grade 1 year, he was late 13 times.
During his grade 2 year from September 2023 to June 2024, he was late 22 times. Once he was late by approximately 2.5 hours, and on another occasion, he was 3.5 hours late. He arrived approximately 15 minutes late 11 times, approximately 30 minutes late 4 times, about 40 minutes late twice, and roughly 1 hour late on 3 occasions.
During his current school year, from September to February 24, 2025, he was late 7 times. On 5 occasions he was approximately 15 minutes late, and on the other two occasions he was approximately 30 to 40 minutes late.
403I find that the mother’s explanations for these late arrivals were not compelling and simply highlighted her inability to improve her planning around ensuring that C.M.M. arrives on time. Her attempt to minimize her responsibility by blaming the extent of some late arrivals on C.M.M. having to line up to document his tardiness is one of many examples of her tendency to deflect responsibility for her shortcomings on others. Finally, I find that arriving late on such a frequent basis would have been stressful to C.M.M., impeded his ability to fully benefit from the classroom learning in the mornings, and was also disruptive to his teachers and the rest of his classmates. The mother’s inability to appreciate these broader concerns and to resolve the tardiness raises questions about her ability to prioritize C.M.M.’s educational needs over her own need to justify and minimize her parental shortcomings in this area.
J. The Parents’ Ability to Address C.M.M.’s Social and Extracurricular Needs
404I find that both parties have demonstrated a consistent commitment to ensuring that C.M.M.’s social and extracurricular needs have been met. They have both taken him to many age-appropriate outings over the years which C.M.M. has thoroughly enjoyed. The mother adduced photographic evidence of the numerous fun outings that she has arranged for C.M.M., many of which also involved her former partner M.R. and his son R.R. The voluminous text and App Close messages between the parties also include photographs of the many activities that the parties have engaged in with C.M.M. The parties have also had memorable vacation periods with C.M.M., including trips to cottages. The mother and her paternal aunt D.L. testified about the family gatherings that the mother and C.M.M. have attended, including trips to cottages, and the many enjoyable activities that C.M.M. has engaged in on those occasions. The mother’s former tenant S.M. and her former neighbour J.B. also attested to the mother’s consistent focus on ensuring that C.M.M. had special outings during her parenting time periods.
405The parties have also ensured that C.M.M. has participated in age-appropriate extracurricular activities that he is interested in. These include swimming, t-ball, soccer, golf during the mother’s parenting time and summer camps. They have been committed to keeping C.M.M. happy and busy with these various activities even during periods when they have experienced considerable financial difficulties.
K. The Parties’ Ability to Meet C.M.M.’s Religious and Spiritual Needs
406The parties have also both shown a consistent commitment to ensuring that C.M.M.’s religious and spiritual needs have been satisfied. They cooperated in having him baptized into the Roman Catholic faith and worked well together in organizing this event, which occurred in early January 2024. They were also able to reach agreement that the mother’s former tenant, S.M., would be C.M.M.’s godparent. I find that this was an excellent choice, as S.M. is clearly a wonderful friend and support to the mother and C.M.M. and has a solid commitment to her faith and her role in supporting C.M.M.’s religious and spiritual development.
L. The Parties’ Ability to Communicate and Cooperate with Each Other on Matters Pertaining to C.M.M.
1. Overview
407I have carefully considered the evidence relating to the parties’ ability to communicate and cooperate with each other, and with other people, on issues pertaining to C.M.M. I find that there are many examples of them successfully communicating and working with each other to support C.M.M.’s best interests. However, I conclude that when events were not going as the mother wished, or the father’s perspectives did not coincide with her own, she was typically rigid and uncooperative and her communications with the father would become aggressive and demeaning. The evidence also establishes that the mother often had considerable difficulty working effectively with professionals involved with C.M.M. and accepting their opinions and recommendations regarding his needs.
2. Sharing of Information and Responding to Communications
408I address first the parties’ willingness and ability to share important information about C.M.M. with each other and to respond to communications in a timely manner. The mother has claimed to Society workers and to this court that the father has consistently been derelict in keeping her informed of issues relevant to C.M.M.’s wellbeing and responding to her messages within a reasonable timeframe. The evidence does not support these claims. In fact, it shows that the father has consistently gone to great lengths to discuss important issues with her, to advise her of significant information about C.M.M. as soon as possible and to respond to her messages within a reasonable time period. Parents are not expected to be absolutely perfect in their communications about children, and occasional slips in this area are a general feature of post-separation parenting. The father has very occasionally neglected to provide information, but I find that this only occurred during periods of extreme stress when the mother raised new allegations of abuse and neglect against him and his parents. My review of every single text and App Close message between the parties from early 2018 until early January 2025 fully satisfied me that the overall picture respecting the father’s track record in this area is extremely impressive. As one of many examples of the mother’s lack of credibility and reliability in this area, she alleged that the father failed to provide her with information about a school advent event that was scheduled for December 16, 2024. However, the father in fact sent her an email on December 2, 2024 advising her and sending her a copy of the notice regarding the event.
3. Examples of Positive Communication and Cooperation
409I have already highlighted many occasions when the parties were able to work cooperatively together to make important decisions about C.M.M. and support his overall wellbeing. The text messages between them reflect that they cooperated and communicated well about important developments during C.M.M.’s infancy, including potty training. Although the mother alleged at trial that the father and grandparents allowed C.M.M.’s potty training to regress after he went into the father’s care, there are no complaints from her at all about this issue in the messages. In fact, in two messages that she sent after her visits in December 2019, she commented on how well C.M.M. was doing in this area. This is yet another example that underscores the concerns about her credibility. As I have discussed, the parties reached agreement on C.M.M.’s school and baptism, and eventually reached agreement to C.M.M. attending for play therapy at the Play Centre. They were able to reach consensus on some activities, such as t-ball in the spring of 2022, and they agreed to share the cost of the equipment. In June 2022, the mother indicated that she would like to enroll C.M.M. in Italian language classes, and the father indicated that he had no objection to him attending during the mother’s parenting time.
410When there was no conflict between them, the parties also communicated and worked with each other well respecting C.M.M.’s health and dental needs. They kept each other apprised of C.M.M.’s health status when he was not feeling well and ensured that they each had important information about how he was doing before he transitioned to the other party’s care. The mother wanted C.M.M. to see her own dentist, and therefore the father agreed to alternate dental appointments for C.M.M. between the mother’s dentist and his dentist. I do not agree that this was a child-focussed approach, as it would have been preferable for C.M.M. to attend one dental office to ensure consistency of care and that his dentist had ready access to all relevant information respecting his dental needs. However, this is nonetheless an example of cooperation between the parties.
4. Conflict About Extracurricular Activities
411Unfortunately, the parties also experienced considerable difficulty working and cooperating with each other on many issues respecting C.M.M. I conclude that those difficulties were attributable to the mother’s rigidity and unreasonable approach to issues and her inability to appreciate the father’s point of view. One area of conflict related to C.M.M.’s involvement in extracurricular activities. The mother claims that the father excluded her from attending swimming lessons for C.M.M after he was admitted to care, and did not allow her to attend C.M.M.’s t-ball practices and games in 2021. With respect to the swimming lessons, both parties clearly agreed that C.M.M. should receive lessons, and the text messages between them reflect that the mother was aware of these lessons and in fact attended some of them in the fall of 2019. Those messages show that she only voiced objections to the lessons when she learned in December 2019 that the grandparents were helping to take C.M.M. to the sessions on days when the father could not do so because of his work commitments. The parties easily resolved the issues around swimming lessons in 2019 with the assistance of the Society. The second round of swimming lessons consisted of a few private lessons in the grandparents’ pool in their backyard. Having regard for the nature and seriousness of the mother’s allegations against the father and the grandparents, it was unreasonable for the mother to have expected to attend those sessions that occurred at their home. In fact, her attendance would have in my view generated a serious risk of C.M.M. being exposed to negative tension and conflict between the adults.
412With respect to t-ball, the father explained that the difficulty with the mother attending when C.M.M. was first involved in t-ball in 2021 was that his nephew was also on the team, and there had historically been extensive conflict between the mother, the paternal uncle and his wife. I find that the mother was entirely responsible for that conflict based on her distorted perceptions of their behaviour and their interactions with her, and her serious allegations and insinuations against the uncle. These complications were eliminated from the picture in 2022, because the cousin was no longer on C.M.M.’s t-ball team. During that season, the father actively encouraged the mother to come out to C.M.M.’s t-ball practices and events even during his parenting time periods.
413The mother also claimed that the father was unreasonable and disrespectful of her views when she suggested that they enroll C.M.M. in skating lessons. However, I find that the father did not reject his idea outright, but rather suggested that this activity not occur in the summer months as the mother had suggested, so that C.M.M. could enjoy outdoor summer activities instead. In my view, that was a reasonable and child-focussed response.
5. Conflict Regarding Educational Issues
414I have addressed some of the problems that the parties experienced in addressing school issues. As I have noted, the father communicated with the mother about the choice of school, and the mother’s allegation that he unilaterally chose St. Margaret Mary without consulting with her is false. The mother’s reactions to the parties’ differences of opinion about signing the school agenda were irrational and exaggerated. The mother was unable to cooperate regarding C.M.M.’s reading log due to her distorted opinion that the father was attempting to antagonize her with his entries in the log. The mother also created conflict around the information contained in the School Student Verification Report, alleging that the father included misinformation about her in the report. However, there is no proof that the father was the one who provided the incorrect information. The mother also suggested at trial that the father deliberately withheld school photographs of C.M.M. that she had purchased in one of his Kindergarten years, but I find that this was an honest error on his part as he believed that they were part of the package that he had ordered. He rectified the problem quickly, and he has since paid for all of the mother’s school photographs every year.
6. Conflict Respecting C.M.M.’s Medical, Developmental and Emotional Needs
415The mother has also been responsible for conflict around C.M.M.’s medical, developmental and emotional needs. She has involved C.M.M. with numerous community professionals to advance her unfounded abuse and neglect claims respecting the father and the grandparents without the father’s consent. These include Dr. Raza of the Winterberry Clinic, the Kids Help Phone, the Hospital for Sick Children on two occasions and Child and Adolescent Services. She also enrolled C.M.M. in speech therapy without the father’s advance knowledge or consent. While this may have been less concerning if the father had agreed on the need for this service, he did not in fact agree. I find that C.M.M.’s teachers had been monitoring his speech closely, that there had been some discussions about it, and that their recommendation was that his speech should be more fully assessed in grade 3, at which point further recommendations could be made if necessary. The important point on the speech therapy issue is that the mother did not even bother to discuss her plan with the father. Based on the father’s overall cooperative approach with the mother, it is likely that he would have not objected to her taking him during her parenting time if he had been consulted in advance.
416The mother also complained and created conflict with the father about vaccination issues. To their credit, the parties were able to reach agreement on October 29, 2021 that C.M.M. should be vaccinated against COVID-19, and that they would each take C.M.M. for one shot. On December 6, 2021 the father messaged the mother to remind her of this agreement and to advise that he would be booking C.M.M.’s first COVID-19 vaccination. Despite the agreement that the parties had reached on October 29, 2021, the mother responded on December 6, 2021 stating that he could not book the appointment without involving her, and insisting that she take C.M.M. for the first shot. The father questioned what difference it made who took C.M.M. first, and she responded with an angry message in which she shamed him about no longer having benefits and made demeaning comments stating that her partner was far more responsible than him. The father reminded the mother that this issue was about C.M.M. and his need for the vaccination as soon as possible, to which the mother responded by sending a lengthy and disjointed email in which she aired many of her historical complaints about his parenting. Again, I find that the father’s approach to this issue and situation was rational, reasonable and calm. By contrast, the mother’s position and responses were unreasonable, dysregulated and focussed more on her own desire to establish her role as the primary parent than on C.M.M.’s interests. The mother did subsequently take C.M.M. for his second COVID-19 shot on February 10, 2022.
417The mother also alleged at trial that the father failed to consult with her about C.M.M. obtaining the flu shot in 2022. I find that the parties had always agreed to him having the flu shot every year, and that the father accordingly arranged for him to receive the shot on November 14, 2022 at the same time that he received his own shot, on the assumption that this would not be an issue. He sent an App Close message to the mother on November 14, 2022 advising her that C.M.M. had received the shot, and explaining that he intended to talk to her about it first but there were no openings available for C.M.M. to receive the shot for another two weeks. The mother did not address this issue at all in any of her many messages to the father after that date, and therefore it appears that in fact she had no objection to C.M.M. receiving the flu shot at the time. Nonetheless, on this issue, I find that the father was at fault. Prior agreement on this sort of issue does not necessarily equate to ongoing agreement, and the more cooperative and respectful approach would have been to address the issue with the mother in advance and confirm whether she consented.
418The mother spent considerable time at trial alleging that the father had refused to provide her with C.M.M.’s health card during her parenting time periods, and that he obtained a new health card without her knowledge or consent. I find that both parties had C.M.M.’s original health card information, and that the mother had a photograph of that health card. At some point after the Society placed C.M.M. in the father’s care, a new health card was sent to the father, which had a slightly different number, but the father did not realize that this change had occurred. The father regularly sent the health card with C.M.M. when he transitioned into the mother’s care. As evidence of this, he advised the mother in an App Close message on April 7, 2022 that the health card was in the front pocket of C.M.M.’s bag. On November 20, 2022, he asked the mother to return C.M.M.’s health card to the child’s backpack and suggested that they go back to keeping it there, and she agreed. However, the father overlooked returning the health card to the backpack in early 2025. This became an issue when the mother brought C.M.M. to an after-hours medical clinic near Alliston on January 25, 2020, as the clinic advised the mother that there was a problem with the health card. I find that the mother messaged the father about the problem and asked him to send a copy of the health card that he had. The father responded within a reasonable time and sent a photograph of the card. There was no evidence of malice of intent on the part of the father to withhold the health card information from the mother. Rather, I find that he was genuinely unaware that the health card number had changed. The mother’s inability to accept his explanation and her insistence that the father deliberately shielded the new card information from her is one of many examples of her determination to paint the father in a negative light at every possible turn.
419The parties also had conflict around the mother’s wish to enroll C.M.M. in a stool donation program through McMaster University Medical Centre. The father refused to consent because the parties were heavily involved with the Society at the time, C.M.M. was in the midst of adjusting to a routine of increased unsupervised parenting time with the mother, and his enrolment in the program would have required him to have blood work done. The father’s position on this issue was very reasonable and child-focussed, given everything that C.M.M. was experiencing around that time. The mother’s anger respecting his position raises concerns about her judgment and her ability to prioritize C.M.M.’s needs over her own wishes.
420Finally, the parties had some challenges working through the issue of counselling for C.M.M. The mother claimed that the father was responsible for these difficulties, accusing him of failing to act in a timely manner to ensure that counselling was in place. Again, I do not accept the mother’s version about what occurred with respect to counselling or her criticism of the father respecting this issue. Although there were some difficulties along the path to getting C.M.M. enrolled in counselling at the Play Centre, I find that the father acted reasonably and in C.M.M.’s best interests in addressing his need for counselling. The App Close messages reflect that the father reached out to the Winterberry Clinic in approximately early March 2024 to obtain a referral for C.M.M. to begin therapy. As I have indicated, the parties submitted a self-referral for C.M.M. to receive counselling services through Lynwood Charlton in early April 2024. One of the counselling programs through that agency is called Thrive, and it is specifically geared for children who have been verified by appropriate professionals as having been sexually abused. A representative of the Thrive program arranged for an intake appointment with the mother based on a consultation with her about the nature of the concerns. However, Ms. Williams advised the mother in correspondence dated June 10, 2024 that the father objected to this program on the basis that the mother’s allegations of sexual abuse had not been verified. Society worker Ms. Byrne and her supervisor Ms. Shoreman confirmed during their meeting with the mother on June 11, 2024 that Thrive was not a suitable program for this reason. I find that the mother was directed to the Thrive program based on her view that the focus of counselling should include supporting C.M.M. in relation to the sexual abuse that he allegedly sustained. This highlights a fundamental difference of opinion between the parties regarding counselling, as the father’s perspective is that one of the purposes should be to support C.M.M. in processing and addressing his misplaced belief that he has been sexually abused. The father advised the mother that he agreed to Acorn Counselling on June 10, 2024. However, the administrator of the Acorn Counselling program, Ms. Carolyn Noorduyn, sent the parties an email on that same date advising that the counsellors with the appropriate experience to assist them were not accepting new clients. In the meantime, the parties explored the Play Clinic in St. Catharines as another alternative. The father initially advised the mother in an App Close message dated June 6, 2024 that he liked this option, but that it was too far away. He subsequently advised that he considered this program, but that he believed the therapy should not commence until the parties received full disclosure of the Society’s records respecting its current intervention. He also felt that C.M.M. should spend the summer months enjoying himself, and that a more child-focussed time to begin the therapy would be in the fall. The mother disagreed with this and argued that the therapy should start right away. However, I find the father’s position to be highly logical, reasonable and child focussed, particularly given the seriousness and intensity of the Society’s involvement with the family starting again in December 2023. The parties eventually agreed to the Play Clinic providing counselling for C.M.M., and the counselling began in mid October 2024. The parties have both been responsible in ensuring that C.M.M. attends his appointments.
7. Conflict About C.M.M.’s Acting Activities
421The parties also clashed about C.M.M.’s auditioning for acting roles through ACTRA, which is a performers’ union. The parties had agreed to C.M.M. being registered into this union as a young child, and he had been chosen to do a commercial when he was a baby. However, they did not discuss whether he should continue to apply for auditions following their separation. In or around September 2021, the mother unilaterally contacted ACTRA and began applying for C.M.M. to audition for roles, without the advance knowledge or consent of the father. She also used C.M.M.’s savings to pay ACTRA its fees, again without the father’s consent. The father did not agree to this for two main reasons. First, he felt that it would be impossible for the parties to take C.M.M. to auditions having regard for their work schedules, and that this would set C.M.M. up for disappointment and failure. Second, the Society and police had determined that the mother had coached C.M.M. and put leading questions to him regarding the various abuse and neglect allegations that the mother had advanced, and that C.M.M. was largely parroting what his mother wanted him to say to please her. The father had genuine concern that involving C.M.M. in acting could result in him becoming even more susceptible to coaching and making fictitious claims. I find that the mother’s failure to consult with the father about this issue was inappropriate and disrespectful of his role, and that the father had sound reasons for opposing C.M.M.’s involvement in acting activities at that time.
422I note that the parties discussed the mother’s unilateral decision to use C.M.M.’s savings and sign him up for auditions with ACTRA during a series of App Close messages on September 9, 2021. When the father voiced his objections, the mother embarked upon a lengthy series of horrific, disjointed and rambling messages lasting non-stop from 8:40 p.m. until after 10:00 p.m. In these messages, she listed all of her historical complaints about him and his family, called him unreasonable, selfish, mean and ignorant, abusive and “a hater,” spoke at length about her trauma burden and her lack of supports in Hamilton and tried to guilt the father into submission, made threats that C.M.M. would not like him, compared him in a bad light to her partner M.R., put him and his parents down and accused him of “leeching off his parents.”
8. Conflict Regarding Parenting Time and Relocation Issues
i. Parenting Time Exchanges
423Finally, the parties had fairly regular conflict around parenting time issues. Again, I find that the mother was primarily responsible for these difficulties. I have discussed some of these disputes earlier in these Reasons for Judgment, but I provide a more detailed analysis at this point.
424One major area of conflict between the parties has related to parenting exchanges. I find that the mother has been notoriously unreliable in exchanging C.M.M. at agreed upon times. This problem arose soon after the parties separated in 2018. The father raised this concern with her and attempted to resolve it in a calm and reasonable manner. However, her responses were angry, demeaning and showed very little insight into C.M.M.’s needs. For instance, the father texted the mother on February 8, 2018 noting that she was late for every single exchange, and asking her to be on time for exchanges, since he felt it was contrary to C.M.M.’s best interests to sit in the car unnecessarily for extended periods. The mother responded by saying that she was sick, threatening to relocate with C.M.M. to Windsor without the father’s consent and threatening to call the Society on him. She also mocked him about the fact that he still lived with his parents, accused him of being a video game addict and called him a “spoiled brat.” The father responded calmly and offered to help her in caring for C.M.M. if she was sick. The mother’s response was to call him a “whiny girl” and telling him to complain less and do more. On February 16, 2018, the mother texted him after the Society talked to her about her tardiness for parenting exchanges. She told the father to pick his battles wisely, and that “tattling” would not give him extra points against her.
425There were two other problems that arose respecting parenting time exchanges, and again, I find that the mother was responsible for the conflict on both fronts. First, the mother from time to time would insist that the father do all of the driving for her parenting time periods. The father’s position was that the driving should be shared, which was a fair and reasonable approach. However, when the father would not agree to do the driving, the mother’s messaging to him would deteriorate into her usual patterns of employing verbal aggression, manipulation, guilting and humiliation to attempt to achieve her goal. The other source of conflict around exchanges arose after the parties eventually agreed to carry out transitions at each other’s residences. There were several occasions when the mother insisted that this be changed and that the exchanges occur at a neutral location because she was not pleased with events that were occurring at the time. This pattern of behaviour continued right up until December 2024, when the mother requested an order during the trial that exchanges occur at a neutral place rather than the parties’ homes after the grandmother testified that she was afraid of her. I have carefully considered and weighed all of the evidence as to the events that were occurring around the mother’s requests on this issue, and I find that there were no grounds to support the mother’s position. Her behaviour on this issue needlessly added to the intense high conflict nature of the family dynamics.
ii. Issues Respecting the Father’s Parenting Time: 2018 to 2019
426During the early period following the parties’ separation, there was conflict between the parties due to the mother’s resistance to expanding the father’s parenting time. The text messages indicate that the father frequently asked for more time, but that the mother did not oblige even when she was not feeling well and was struggling to care for C.M.M. However, following her move to the Upper Gage residence in May 2018, the mother did a complete reversal on the parenting time issue. She began complaining that the father was not taking C.M.M. enough and that she needed a break. However, the messages between the parties clearly reflect that the father was taking C.M.M. as often as he could based on his work commitments and transportation difficulties. As I have previously stated, in May 2018, he had C.M.M. for 16 days, and in June 2018, he had him for 11 days. It is clear that the mother had no appreciation of the realities of the father’s situation, and that she was completely focussed on her own needs. Her responses to his reasonable explanations for his inability to take C.M.M. more frequently were threatening and demeaning. For example, during a discussion on June 17, 2018 about her frustration that the father was not taking C.M.M. more often, she threatened again to take C.M.M. to Windsor without his consent and to call Rogers to complain to them about how their scheduling of his work was impacting her life. She also called him a loser and said that she hated him.
427The conflict around the mother wanting the father to take more time with C.M.M. erupted around her 40th birthday in November 2018. The mother wished to go to Las Vegas with her partner M.R. and asked the father to care for C.M.M. for several days, including her actual birthday on November 28, 2018. The father attempted to get time off work during the time that she requested, but he was only able to get a consecutive period of 4 days off work from November 23 to November 26, 2018. He offered for his parents to care for C.M.M. during his work hours for the remainder of the time that the mother requested, but the mother refused to let the grandparents assist. The mother’s text messages regarding this issue were unreasonable, abusive and threatening. On November 4, 2018, she insisted that the father hire a complete stranger to babysit C.M.M. through a babysitting service, and threatened to go for full custody of C.M.M. if he did not comply with her demands. She also threatened to tell the Society worker that he was “playing games.” She accused the father of lying about his actual holiday entitlements to antagonize her about her birthday week, and told him that she would be calling the Rogers Human Resources Department to make inquiries about his holiday rights and deal with her request that way. The mother’s barrage of messages on this issue continued on November 6, 2024. She warned the father that she would reduce his parenting time if he did not comply with her demands and made another threat that she would call Rogers to make sure he had time off on her birthday. The father sent the mother proof of the emails that he had sent asking for the time off work so that he could accommodate her request, and begged her not to call Rogers as this would cause problems for him. However, the mother did end up calling the Rogers Human Resources Department to question whether the father was being honest about his vacation time. This resulted in the Human Resources Department calling the father in for a meeting on or around November 8, 2028 to discuss their concerns about the situation.
428The mother became irate with the father again in January 2019 because she wanted him to take C.M.M. more often. Again, I find that the father was caring for C.M.M. as often as he could based on his work commitments at that time. Furthermore, he was paying the mother to watch C.M.M. twice a week rather than sending him to daycare as a means of providing more financial support to her. On January 17, 2019, the mother messaged the father complaining that she needed more time off from caring for C.M.M. so that she could search for a job. The father responded immediately, making reasonable efforts to resolve the issue by offering additional times when he could care for C.M.M. The father had been put on notice by Rogers at this time due to an error that he had committed at work, and he had been given random days off work without pay as a suspension. Accordingly, he was not in a position to ask for more time off work. The mother was not satisfied with his proposed solution and lashed out at him once again. She threatened to go to the Human Resources Department of Rogers again to ensure that he gets another week off work, and to call the media to tell them about her story.
iii. The Mother’s Requests to Relocate With C.M.M. to Alliston
429Starting in the summer of 2018, another major source of tension respecting parenting time arose because the mother decided that she wanted to relocate with C.M.M. to the Alliston area to reside with her partner M.R. This reflected poorly on the mother’s judgment, as she had only been in relationship with M.R. for a few months by that time. The mother began to exert intense pressure on the father commencing in the summer of 2018 to allow her to move with C.M.M., and these efforts resumed once again after the Society’s involvement ended in 2022. Her phone calls and messaging about this issue employed various reprehensible tactics to achieve her goal, including laying on guilt, humiliation, and relentless insistence that the father agree. She also pressured the father to move to Alliston and make a new life for himself there to facilitate her objective. For example:
In a message dated August 13, 2018, she pressured the father to move to Alliston as well, tried to guilt him into allowing her to move, called herself a prisoner of his life, and stated that she deserved a new family and life because she was a stroke survivor and had no supports in Hamilton. She also accused the father of letting her down.
As previously discussed, the mother called the father on January 12, 2021 to pressure him about moving to Alliston, and later launched a police report against him claiming he had threatened her life. The father testified, and I find, that during this call, the mother accused him of hurting C.M.M. by not agreeing to the move, and accused him of being an alcoholic.
In a lengthy angry message to the father on March 26, 2021 after receiving the Society’s court documents, the mother launched a missive of complaints about him and the grandparents and again berated him for not agreeing to them both moving to Alliston. She claimed that his refusal to allow her and C.M.M. to move was inhumane, compared him in a negative way to her partner M.R., and raised the allegations of sexual abuse again in a threatening way, claiming that the father knew about it all along.
In September 2022, the father reached out to the mother to coordinate after school care arrangements for C.M.M. He advised her that the after-care program was only available on Mondays and Wednesdays, which would pose a challenge for her on Thursday nights when she had C.M.M. Instead of engaging in productive problem-solving about this issue, the mother again pressured the father to move to Alliston so that she could reside with M.R. She engaged in an aggressive and abusive series of messages in which she discussed her financial difficulties, blamed the father for those problems based on his alleged abuse of her, talked about her history of trauma and referred to herself as a stroke survivor and referenced C.M.M.’s rare heart condition as somehow being a relevant consideration.
On March 27, 2023, after the Trial Scheduling Conference, the mother messaged the father to complain about his request for child support, alleging that she would have to sell her home if she had to pay support. She again pressured the father to relocate with her to Alliston so that she could live with M.R. and save money. Her messages were aggressive and demeaning, and talked about the “exquisite care” that she provided for C.M.M. as compared to the care that the father provided to him. She also mocked him again for residing with his parents.
iv. The Mother’s Complaints About Her Parenting Time, and Her Non-Compliance with the Society Approved Parenting Schedule
430During the Society’s involvement from 2020 until 2022, new patterns developed of the mother alleging that the father was inappropriately denying her sufficient parenting time, the mother keeping C.M.M. in her care for longer than the parties had agreed to, and her demanding more time than the parties and the Society had agreed to. With respect to her allegation that the father inappropriately denied her parenting time, I categorically reject this proposition. Despite the numerous concerns about the mother’s mental health and her constant allegations of abuse and neglect by the father and the grandparents, the father typically followed all of the Society’s directions and recommendations about the appropriate amount of parenting time for the mother. For instance, on December 4, 2020, Society worker Ms. Christine Nguyen spoke to the father about potentially moving from limited and fully supervised parenting time for the mother to semi-supervised and longer visits. The father expressed that he hoped to move forward in co-parenting with the mother and that he fully agreed with the Society’s recommendations. He also advised her that he wanted the mother to have a longer Christmas visit. On March 2, 2021, Ms. Nguyen advised the father that the Society wished to increase the mother’s visits again to include full days on Saturdays. The father had serious concerns that the mother’s mental health was spiralling again, and had concerns about this plan, but he nonetheless deferred to the Society and ultimately agreed to the expansion of the mother’s parenting time. Ms. Nguyen recommended a further expansion of the mother’s mid-week parenting time with C.M.M. on Tuesdays and Thursdays during a home visit with the father on April 7, 2021, despite the evidence of the significant concerns about the mother’s mental health functioning around that time. The father still had concerns that the mother’s mental health status was declining, but nonetheless agreed to the plan because he acknowledged that C.M.M. was missing his mother. Ms. Nguyen again recommended an expansion of the mother’s parenting time during a call with the father on July 16, 2021. Once again, the father relayed his serious concerns about this based on his worries about the deterioration in the mother’s mental health, but he continued to work cooperatively with the Society around its parenting time recommendations.
431By way of summary on this issue, I find that the father was highly competent at identifying when the mother’s mental health was declining, and on a couple of occasions, he advised the Society of his concerns and expressed worries about increasing the mother’s parenting time. Unfortunately, there were periods when the Society was not as keenly attuned and responsive to the mother’s declining functioning and pressured the father to stay the course in expanding her parenting time. The father typically complied with the Society’s recommendations, and unfortunately, in hindsight, this inured to the detriment of C.M.M. as it gave the mother further opportunity to interrogate and coach him about the various abuse allegations.
432I also find that the father was cooperative and generous respecting the mother’s parenting time even during periods when the Society was not involved with the family. There is considerable evidence of him allowing her additional time for holidays and special events. This includes consenting to the mother and her partner M.R. taking C.M.M. to Quebec City for an extended holiday in 2024, proactively making suggestions for the mother to have extra time for her birthday, ensuring that the mother had C.M.M. on Mother’s Day every year, and agreeing to her having extra time with C.M.M. over March Break in 2022 and 2023 as well as for the May long weekend in 2023. In addition, on weekday periods when C.M.M. was not in school for any reason including illness, he would proactively arrange for C.M.M. to transition to her care in the morning rather than in the afternoon.
433I turn to the other problem that arose of the mother overholding C.M.M. past times that the parties had agreed upon, and insisting on more time than was agreed to and recommended by the Society. The mother began to insist on a fully equal parenting time schedule in the summer of 2020, and these requests continued after that time. As I have already discussed, when the Society and the father did not agree to that request, her complaints about the father and the grandparents escalated and she threatened to go to the media to complain that she was being treated unjustly. Her messages to the father in which she pushed for equal parenting time were relentless in nature, hostile, included her typical litany of historical complaints about the father and the grandparents and included her standard pressure tactics including humiliation, guilt, shame, talking about her history of trauma and calling herself a survivor, threats about court, comparing him in a negative way to her partner, criticism of his parenting and highlighting at length her many accomplishments in life and as a parent. In June 2020, the father was worried about expanding the mother’s parenting time due to his concerns about her escalating behaviour, but was nonetheless following the schedule that the Society proposed and at times allowing the mother some extra time. However, when he did not agree to her ever-increasing demands for more time, the mother became aggressive and insulting. For example, on June 1, 2020, the father allowed the mother to keep C.M.M. later in the evening, but she unilaterally kept him overnight. She was dismissive of the father’s objections, asking him “what’s the big deal,” accusing him of not co-parenting with her and raised the allegations that he was neglectful of C.M.M.’s skin care. She then embarked upon a lengthy horrible tirade about her historical complaints against the father and the grandparents, accused them of causing her trauma, compared him in a negative way again to her partner M.R., accused him of not seeing things the way they were and suggesting that he get his eyes checked. The mother again attempted to overhold C.M.M. on July 20, 2020. The father insisted that she return him, and she sent him messages claiming that she risked her life to give birth to C.M.M., accusing him of being selfish, a jerk, passive aggressive and abnormal, claiming that he was treating C.M.M. as property and acting as a king on power trip. As one of many examples of these types of streams of messages about equal parenting time, on July 23, 2021, the mother sent a barrage of App Close messages that started at 6:50 p.m. and continued non-stop until 7:24 p.m. She then resumed her incessant messaging about this issue on July 25, 2021, starting at 7:14 a.m. and continuing throughout the day.
434As further evidence regarding the mother not complying with parenting schedules, the Society’s records from 2020 reveal that there was an ongoing problem commencing in late October 2020 with the mother not preparing C.M.M. in a timely manner at the end of visits so that he could be returned to the father at the agreed upon times. The Family Support worker who was supervising the mother’s visits, Ms. Cindy Key, repeatedly raised this concern with the mother and reminded her of the need for better planning, but the mother often completely ignored her directions and this problem persisted for many months. When Ms. Key advised the mother on December 8, 2020 that she needed to resolve this problem, the mother became argumentative with her, insisted that C.M.M. was old enough to get ready on time on his own without her guidance, and justified her behaviour by stating in front of C.M.M. that he was a boy who does not want to leave his mother and who wants to stay.
435The difficulties with the mother keeping C.M.M. beyond agreed upon times increased after the supervision order and the Society’s supervision of visits terminated in 2021. For example, I find that the mother kept C.M.M. overnight without agreement between the parties and the Society on August 29, 2021. The mother asked for this additional overnight in an App Close message on August 27, 2021, and the father attempted to reach a compromise position. However, the mother responded by repeatedly rejecting his compromise, insisting that he respect her request, and then finally sending him a series of short angry messages stating as follows:
Abuser
You are an abuser
See police sooner
Barangas knows who vandalized their washroom
You.
Reckless
Abusive
Boy.
You will get C.M.M. at 6:30 on Monday
You will get C.M.M. at 6:30 on Monday and hear from my lawyer
She then continued with a litany of historical complaints and insults towards the father and the grandparents.
436I have already discussed the incident when the mother unilaterally kept C.M.M. for an extra overnight on November 25, 2021 and called the police on the father, which further highlights the concerns about the mother’s overholding behaviour during this time period. There was another disagreement about parenting time on December 19, 2021. The father reached out to the mother offering that she take C.M.M. on Wednesday morning instead of evening, since C.M.M. did not have school. She demanded that her parenting time commence on the Tuesday evening instead. When the father did not agree, she sent a long series of aggressive and abusive messages, employing her usual methods for pressuring and manipulating the father into getting her own way. This time, she upped the ante and threatened to call the police on the father to see if they could help. These horrific App Close messages continued into the following day, when she also made veiled threats to use the fact that C.M.M. had suffered accidental bruises to his head while in the father’s care in a malicious manner. This was one of the several occasions when the mother demanded that the exchange locations occur at a neutral location rather than at each other’s homes, and it was clear that she was using this demand as a ploy to wear the father down about her parenting time request. This ploy worked. The father agreed on that occasion to carry out the parenting exchange at the Hamilton Mountain Brow.
437As another example of the mother’s refusal to comply with the schedule approved by the Society, she began in early January 2022 to insist that her parenting time with C.M.M. begin on Wednesday morning on school days, rather than the long-established start time of 3:00 p.m. after school. The father did not agree to this change due to his numerous concerns about the mother’s mental health and behaviour. The mother was relentless in her insistence that her demand be accepted. She began messaging the father about this issue on January 2, 2022, and when he disagreed that day, she launched upon a non-stop 4.5-hour long series of aggressive and abusive App Close messages. The messaging was essentially a relentless, horrific, sarcastic, threatening and abusive rant which included angry references to all of her historical grievances about the father and the grandparents, repetitive insults towards them, humiliating and demeaning comments, and comments about her superiority and her accomplishments. She suggested that the father had multiple personalities, called him an abuser and a villain and also claimed that the grandparents were horrible parents who had caused him and his brother to become damaged. She once again threatened to call the police to achieve her objective of increasing her parenting time. This rant continued later that night for approximately 40 minutes, when the mother essentially repeated all of her appalling and rambling commentary from earlier in the day. The mother pressed her demand for increased parenting time on Wednesday school days again on January 12, 2022, at which point she launched another 4-hour tirade against the father that followed the same pattern as the previous ones. The father finally responded to this harassing line of texts the following morning, January 13, 2022, at 6:13 a.m. He noted calmly that the mother had sent him 145 messages the previous night, and told her that she had to stop because her behaviour constituted harassment. This prompted the mother to unleash another series of highly aggressive and abusive messages detailing yet again her list of historical grievances against him and his family.
v. The Mother’s Lack of Cooperation Regarding Parenting Time for the Father on Holidays and Special Occasions
438The other source of conflict between the parents respecting parenting time related to extra time on special occasions and for holiday periods for the father. On a positive note, the parties resolved the issues of holiday and special occasion parenting time on a final basis pursuant to the Minutes of Settlement that they executed in May 2023. They generally complied with the terms of that agreement despite the delay in obtaining the final order that was eventually made pursuant to the Minutes on January 31, 2024.
439As I have discussed above, the father was typically flexible, cooperative and generous in agreeing to additional parenting time for the mother during holiday periods and for special occasions. By contrast, there have been occasions when the mother has been highly uncooperative about allowing the father extra time with C.M.M. on special occasions. For instance, Father’s Day in 2022 fell during the mother’s regular weekend time. On May 11, 2022, the father asked if he could have C.M.M. back in his care by 2:00 p.m. on Father’s Day, rather than the usual 8:00 p.m. exchange time. The mother agreed to this plan that same day. On Father’s Day Sunday on June 19, 2022, the father sent a message to the mother on App Close reminding her of their agreement, and double checking that he was still picking C.M.M. up at 2:00 p.m. The mother failed to respond, and the father therefore messaged her again at 4:32 p.m., advising her that he had made plans that day for C.M.M. and asking when he could pick him up. The mother claimed that she and C.M.M. were back at her residence by 2:00 p.m. that day, but that her App Close messages were not coming through that day. She testified that the father texted her at 4:32 p.m. in addition to sending an App Close message, and that she responded to him by text message telling him that he could come whenever he wished, but that he did not come until much later. However, the parties submitted all of their text and App Close messages to each other as evidence at trial, and there is no such message from the mother. I do not accept the mother’s evidence that her App Close messages were not coming through that day, and I find that she deliberately ignored the messages from the father until the following morning, when she finally opened them. As a result of her behaviour on this date, the father was not able to pick C.M.M. until the regular exchange time of 8:00 p.m.
440The mother has also taken an obstructionist, difficult and uncooperative stance on the father’s requests for special holiday time with C.M.M. For instance, the father asked her to sign C.M.M.’s passport application and to consent to him taking C.M.M. to Legoland in Florida in 2024 and 2025, and she did not agree. The father first requested her consent to take C.M.M. on this trip for March Break in 2024 in an App Close message dated November 24, 2023, and he advised her that he would be sending her the passport application to sign. The Minutes of Settlement that the parties had signed in May 2023 provided that the father was to have C.M.M. for March Break in even years. However, the mother responded to the father’s message on November 24, 2023 claiming that the agreement gave her March Break every year. The father messaged her on November 25, 2023 to clarify that the Minutes of Settlement granted her alternate March Breaks. The mother never responded any further to the father’s request for her consent to travel with C.M.M. to Florida, and I find that she did not sign the passport application that the father sent her. The father raised the issue again on January 2, 2024, and noted that she had not replied to his previous request. The mother responded that date alleging that he had never made this request, which was clearly false. In the meantime, the father fully supported the mother in taking C.M.M. for an extended holiday period along with M.R. and his son to Quebec City in February 2024. The mother claims that the trip to Legoland did not happen because the father did not get it organized on time. I do not accept her characterization of what occurred. I conclude that the father gave up on attempting to book the trip due to the mother’s failure to complete the passport application and the various tactics that she used to dodge the issue, resulting in him being unable to book affordable flights in a timely manner.
441The father again sought the mother’s consent to take C.M.M. to Florida to attend Legoland during the trial, as he wished to take him during the summer school break. He sent her a copy of the passport application for C.M.M. as well as a Travel Consent for her to sign. The mother initially indicated in her evidence that she would not sign these documents, but then subsequently agreed to sign them. She did in fact sign the passport application, but she did not return it to the father. She claimed that the terms of the Travel Consent form were unclear and that the father had failed to provide sufficient information about he proposed trip, but I reject her arguments on those issues. She finally acknowledged that she did not consent to the proposed trip because of her various allegations of abuse and neglect by the father and the grandparents, and her stance that the father was fully aware of the abuse by his parents. As I have previously noted, I addressed these issues during the trial in two motions brought by the father by dispensing with the mother’s consent to obtain C.M.M.’s passport and for the father to travel with him to Florida. For reasons given on those motions, I concluded that the mother’s justifications for objecting to this trip were not compelling.
442Another example of the mother’s failure to support the father’s time with C.M.M. for special events occurred in February 2023. As previously discussed, the mother made an appointment for Dr. Raza to assess her concerns about C.M.M.’s weight for February 9, 2023, without the father’s advance knowledge or consent, but the father learned about the appointment through the clinic. The father agreed to her having an appointment with Dr. Raza, but asked her to reschedule it because he had signed up to participate in a school bowling trip with C.M.M. The mother refused to do so, claiming that this was the best date based on her schedule. When the father encouraged her to reconsider for C.M.M.’s sake, she again refused and responded by launching another attack against the father and his alleged parenting deficits.
443The mother was also resistant to allowing additional time for the father to celebrate Easter with C.M.M. in 2023. Her regular parenting time that week fell from Thursday after school until Sunday night. On March 31, 2023, the father attempted to proactively plan for the Easter arrangements and suggested that C.M.M. return to his care on Saturday at 5:30 p.m., which would result in an equal sharing of the weekend with only one transition for C.M.M. The mother did not allow him additional time and insisted on the regular exchange on Sunday at 8:00 p.m. The father asked her to reconsider in a message dated April 2, 2023, pointing out that she had had C.M.M. for Christmas Day, New Year’s Day and both weekends of the March Break. The mother responded on April 2, 2023, calling him a “cruel and greedy man,” launching her usual missive of historical and ongoing complaints about him and the grandparents, mocking him for being temporarily out of work and living with his parents, and comparing him again in a negative way to her partner M.R.
M. The Nature and Quality of the Parties’ Communications with Each Other
444I have carefully considered the nature and quality of the parties’ communications with each other on a general level, and with a specific focus on issues pertaining to C.M.M., as this is a particularly important consideration in determining the decision-making regime that is in C.M.M.’s best interests. As I have mentioned, I have reviewed and considered all of the parties’ text and App Close messages from late 2017 onward.
445Addressing first the mother’s communications, I have already commented at length at various points in these Reasons about the highly concerning nature of her written interactions with the father. The examples that I have referenced represent a small proportion of all of the rambling, disjointed and generally appalling and relentless emails that the mother sent to him in which she used various tactics to achieve her various goals, or when things were not going her way. As I have indicated, these tactics included:
Use of guilt, repetitively describing her history of trauma and blaming the father for much of it;
Seeking sympathy by complaining that she has no supports in Hamilton and that the father made her move from Windsor;
Humiliation and put-downs;
Insults towards the father and his family members;
Threats to call the police and the Society;
Threats to call his employer and cause problems for him on the work front;
Threats to relocate with C.M.M. to Windsor without his consent;
Long-winded and repetitive rehashing of her litany of historical complaints about him and his parents;
Repeatedly comparing him to her partner M.R. with the clear intention of demonstrating how inferior he was to M.R.; and
Detailing her general superiority over him in all ways and her many impressive accomplishments as compared to his.
446The Minutes of Settlement that the parties executed in May 2023 included provisions at paragraph 3 requiring the parties to restrict their messages to once a day and no more than 20 words, and requiring that the messages be child focussed and factual. The mother’s communications with the father improved for a period of time after she signed the Minutes of Settlement, but her messages continued to include constant negative and condescending comments about the father’s parenting of C.M.M.
447By contrast, with a few exceptions, the father’s communications with the mother have been highly responsive within reasonable time frames, calm, respectful and non-confrontational, even in the face of her horrendous messages to him. He occasionally attempted to calmly defend his actions or advocate for his positions, but this almost inevitably set the mother into another dysregulated tirade against him. With time, it is apparent that he generally avoided engaging in debates with the mother via App Close, and chose to simply let the dust settle when the mother became upset about issues by remaining silent or revisiting issues at later times. There were a few occasions early in the parties’ separation when the father demonstrated anger in some of his messages, and in one message on March 4, 2024, he was sarcastic and angry, and suggested that the mother call the Kids Help Phone for answers to any of her questions. In that message, he also said that he was done co-parenting with her, and that she made him sick to his stomach for what she had been rehearsing with C.M.M. about him and his parents. I find that this was the only slip-up that he made in his communications with the mother from 2019 onward. The father’s calm and stoic handling of the mother’s appalling messages to him over several years was extremely impressive and speaks to the strength of his general good character, integrity and patience. I find that the messages from the mother were so terrible and damaging to him that he could have easily filed police complaints for harassment, but that he declined to do so for the sake of the mother and C.M.M.
N. The Parties’ Allegations of Family Violence
1. The Mother’s Allegations of Family Violence by the Father
448I have already reviewed in great detail all of the mother’s allegations of family violence, but I summarize my conclusions respecting the claims at this point for the benefit of the parties, the professionals who will hopefully be evaluating the mother and any justice participants who deal with this case in the future.
449Focussing first on the mother’s allegations of family violence by the father, she has claimed to many professionals and to this court that the father was physically abusive towards her during their relationship. As I have carefully detailed in these Reasons, her evidence about the alleged incidents of physical violence was inconsistent with statements that she gave to various professionals over the years. Furthermore, her statements about the alleged incidents to various professionals were also inconsistent. My findings of fact in these Reasons for Judgment highlight my serious concerns about her overall credibility and reliability on many issues. I also have concerns about her distorted perceptions about important issues and situations, and her tendency to misrepresent facts and greatly exaggerate the truth to achieve her goals. The father has denied ever being physically abusive towards the mother but has acknowledged that he shoved her off him in self defence during the domestic incident that occurred at the family home in January 2018. I found him to be a highly credible and reliable witness. For all of these reasons, I do not accept the mother’s allegations of physical abuse by the father.
450The mother also claims that the father was verbally and emotionally abusive towards her during the parties’ relationship. She alleged that he frequently swore at her, was unsupportive of her both during the relationship and following the separation, isolated her from her supports in Windsor and put his family members above her on a regular basis. The father acknowledged that he has sworn at the mother a handful of times. I accept his evidence on this point and his expression of remorse at trial for having been unable to manage his emotions more maturely. The most recent incident of him swearing at her was on January 12, 2021, when he acknowledged having sworn at her because she was harassing him again in a dysregulated state to move to Alliston while he was attempting to focus on an online class that he was participating in for his plumbing program. There is no evidence that he has been verbally abusive since that time. He has continued to engage in ongoing supportive counselling since then, which has included assisting him to manage the stressors in his life in a responsible and effective manner. For these reasons, I am satisfied that he has learned his lesson and that verbal abuse towards the mother is no longer a concern and will not be a problem in the future.
451I do not accept the mother’s claims about emotional abuse by the father. The many thousands of documents that I reviewed as part of this trial as well as the viva voce evidence of the father’s witnesses paint a completely different picture of the father’s interactions with the mother both before and after the separation. The father consumed excessive amounts of alcohol on several occasions during the relationship, engaged in inappropriate behaviour at times when he was intoxicated and was not as sensitive and responsive to the mother’s concerns as he should have been around those events. However, the evidence indicates that those incidents occurred several years prior to the birth of C.M.M., and that the father generally adopted a more responsible lifestyle after that point, with the exception of his impaired driving charge in 2018. Apart from those concerns, however, I find that he was a highly supportive husband and father to C.M.M. during the relationship. The evidence does not support the mother’s position that he constantly put her down as a parent and minimized her contributions to the care of C.M.M. and the management of the household. Rather, I accept his evidence that the mother had great difficulty managing the home and caring for C.M.M., that the father supported her extensively with indoor home duties, and that he carried out the outdoor home management responsibilities, all on top of working full time at a very high stress job. I find that he occasionally asked the mother to provide greater assistance respecting indoor household tasks because he was completely exhausted and overwhelmed with all of his obligations.
452Likewise, I reject the mother’s allegation that the father isolated her by cutting her off from her supports in the Windsor area and by prioritizing his family over her during the marriage. Her claims that the father forced her to move from Windsor, compelled her to remain in Hamilton and isolated her from her Windsor supports is not substantiated on the evidence. She willingly chose to leave Windsor and move to Toronto, and there is no credible evidence to suggest that the father coerced her into that decision. Moreover, I find that the father encouraged her during the marriage and following the separation to visit Windsor to maintain her support network in that area. The mother had the right to commence Family Law proceedings and bring a motion at any time following the parties’ separation to request permission to relocate with C.M.M. to Windsor, and there is no evidence that she tried to do so, or that the father intimidated her against doing so. She has had 15 years to establish and foster new supports in the Greater Toronto Area since her move to Toronto in 2010, and the evidence indicates that she was able to do so. For example, she developed relationships with M.R., his son and extended family, her tenant M.S., and her former neighbour J.B. and his family. Given the passage of time, her frequent complaints about the father isolating her from her supports in Windsor are not compelling.
453The mother’s claim that the father constantly prioritized his family over her is also unsupported on the evidence. To the contrary, I conclude that the mother’s conduct during the parties’ relationship had the effect of isolating the father as well as C.M.M. from the father’s family. I find that the mother developed an unjustified disdain and mistrust of the father’s parents and other family members soon after the parties married, and that she made this disdain very clear to the father. She engaged in various forms of conduct throughout the relationship that had the effect of minimizing the father’s and C.M.M.’s contact with the grandparents and other members of the paternal family. This included frequently withdrawing from family gatherings on the pretence of having to feed and care for C.M.M., constantly complaining that the grandparents’ home was unsafe for C.M.M. and making highly aggressive and uncomfortable scenes at family events and demanding that she and the father leave. It also included avoiding attending the grandparents’ home after the birth of C.M.M., actively discouraging visits from the grandparents at the matrimonial home, regularly cancelling visits from the grandparents last-minute and engaging in unpleasant behaviour on those occasions when the grandparents did attend the parties’ home. She also pressured the father not to take C.M.M. to the grandparents’ home for visits on his own when C.M.M. was an infant. In addition, I find that she insisted that the grandparents could not participate in C.M.M.’s baptism and could not attend his t-ball and soccer practices and games during her time.
454The mother also claims that the father was financially abusive towards her both during the marriage and following the parties’ separation. She asserts that during the marriage, the father restricted her ability to make free choices about her finances, did not consult with her about his spending, failed to deposit his paycheques into the joint account resulting in her having to finance most of the household and child-care expenses, and misappropriated inheritance funds that she received from her mother. She also asserts that he was financially abusive following the separation by failing to pay her spousal support.
455None of the mother’s allegations of financial abuse have been made out on the evidence. There is no credible evidence to support her allegation that the father controlled her spending habits and failed to discuss financial issues with her during the marriage. The mother’s claim that the father failed to contribute his pay to the joint account and the household finances is patently false. I find that the father had a bank account in his sole name prior to the parties’ marriage, and that automatic payments came out of that account for joint expenses during the parties’ cohabitation prior to marriage. Those payments continued for a period of time after the marriage, and the father never got around to changing the automatic payments and shutting down his account. However, he regularly transferred his Rogers pay into the joint account every month to ensure that those funds were available for all family expenses. The text messages between the parties reflect that the mother opened her own sole account and arranged for her pay to be deposited into that account rather than the joint account in September 2017. Her explanation for doing so at that time as reflected in her own messages was that she did not agree with their banking situation since the father had his own account, and she wanted to have more control over her finances. There was no accusation or insinuation whatsoever in her texts messages that the father was failing to transfer his pay into the joint account.
456The mother did not adduce any evidence to support the allegation that the father misappropriated her inheritance funds. She commented during her testimony that the inheritance was not large but did not provide details regarding the amount of the inheritance, where the funds were deposited, whether there were discussions with the father about how they should be used, the purposes for which they were used and when all of this supposedly occurred. Accordingly, her position on this issue amounted to a bald allegation without any evidentiary support.
457With respect to the allegation that the father was financially abusive by failing to pay spousal support, I address the spousal support piece later in these Reasons. However, I note at this point that I have concluded that the father has fully satisfied all of his spousal support obligations to the mother by way of voluntary direct payments to her and indirect payments that he made to third parties on her behalf.
458Turning to the mother’s allegations of family violence by the father towards C.M.M., the mother raised concern in 2019 that the father had sexually abused C.M.M. For some reason, she has not focussed on that allegation over the years, choosing instead to direct her attention to her sexual abuse allegations against the grandparents. However, in relation to the alleged abuse by the grandparents, she insists to this day that the father was fully aware of the abuse and failed to protect C.M.M. That type of behaviour would fall within the definition of family violence. As I have indicated in my overview of the history of this case, I concur with the assessment of the Society and the police that the allegations of abuse by the father and the grandparents are not substantiated on the evidence. Again, the serious concerns about the mother’s overall credibility, her history of distorted perceptions, and her tendency to misrepresent and exaggerate the truth have also factored into my conclusion on this issue.
2. The Mother’s Allegations of Family Violence by the Grandparents and the Paternal Uncle
459I have discussed in detail all of the devastating allegations advanced by the mother of sexual abuse of C.M.M. by the grandparents, physical abuse of the child by the grandmother and sexual luring of the child by the paternal uncle. As I have already noted, I concur with the conclusions of the Society workers and the police detectives who investigated those claims that there is no credible evidence to support them. This conclusion is supported by the numerous inconsistencies in C.M.M.’s statements over the years, the ever-evolving factual content surrounding the claims despite C.M.M.’s very young age at the time of the alleged incidents, the clear and compelling evidence that the mother engaged in coaching and leading questions about the alleged incidents, and the concerns about the mother’s mental health and her inability to accurately process and relay the truth about important events. Furthermore, as I mentioned in my discussion of the history of these allegations, they were typically raised, renewed or elaborated upon during periods of high stress for the mother when she was attempting to advance her parenting case in court, or when things were not going her way respecting parenting issues.
3. The Father’s Allegations of Family Violence by the Mother Towards Himself, C.M.M. and the Grandparents
460The father has made several allegations of family violence by the mother towards himself, C.M.M. and the grandparents. I begin with his allegations of physical and verbal abuse towards him. The father described several incidents during the parties’ marriage when the mother was physically and verbally abusive towards him, and during which he feared for the safety of himself and C.M.M., all of which I found to be credible. These incidents are as follows:
He testified that on Mother’s Day in May 2017, the mother did not like the card that he purchased for her because it had a picture of a dog on the front. She yelled at him because she felt he was likening her to a dog, tore the card up angrily, spit on it and then threw it in his face, all in the presence of C.M.M.
He described that he spent a day with his brother in Toronto in September 2017 to obtain fittings for suits for his brother’s wedding, and he returned home right away after having lunch. As soon as he entered the matrimonial home, the mother came right up to him while holding C.M.M., grabbed his arm and squeezed it painfully, began yelling at him very close to his face and accused him of spending the day at strip clubs and with prostitutes. The father denies having spent the day in that manner.
He explained that the mother did not attend his brother’s wedding because she did not trust the child-care arrangements that had been made for C.M.M. during the wedding. When he saw the mother at the matrimonial home the following day, she again approached him closely, yelled at him loudly and accused him of sleeping with one of the paternal aunt’s “whore friends,” which he denied doing. He found this interaction so stressful that he left the home and stayed with his parents that night.
He recalled that in October 2017, he took C.M.M. to the grandparents’ home on his own after a meeting with the HBHC home visitor to see the grandparents and his nephew. When he returned home and the mother learned that he had taken C.M.M. there without her knowledge and consent, she became infuriated, began screaming at him up close to his face and kept telling and provoking him to hit her.
As I have already discussed in detail in reviewing the background in this case, on November 20, 2017, the mother yelled, swore and spit at him in the family home with C.M.M. in her arms, called him a “piece of shit,” and stated she hated him several times.
Finally, as I have also discussed, the mother was physically and verbally abusive towards the father on January 28, 2018 when they had an argument in the matrimonial home. Again, C.M.M. was present during this incident.
461The incidents described above constitute family violence by the mother towards both the father and C.M.M., as C.M.M. was present or within earshot and was therefore victimized as well by the abusive conduct.
462The father submits that the mother has also been psychologically abusive towards him both during the relationship and following the separation. I concur with him on this issue. The mother has engaged in several forms of psychologically abusive conduct towards the father. First, as discussed above, I find that she regularly engaged in various tactics to isolate him and C.M.M. from the grandparents and other extended family members. This was a persistent concern following the birth of C.M.M. and I accept the father’s evidence that it caused him significant emotional distress, as he has always been very close to his family members. Second, as discussed above, the mother was verbally abusive towards the father, which is also a form of psychological abuse. Third, as I have touched upon at length in these Reasons, the mother’s communications with the father when their views did not coincide or things were not going her way were aggressive, degrading, insulting of the father and his family members, unrelenting and threatening. I accept the father’s evidence that this behaviour occurred during the marriage as well. His position on this issue is supported by the text messages between the parties. For example, in text messages between them in October 2017, the father responded to the mother’s complaints about their lack of sexual intimacy by explaining that intimacy was challenging because the mother always told him to “be a real man,” that she should not have left her first husband because he was “hot,” how much she hated everyone in his family, and always called him “retarded.”
463While I have already described some of the abusive communications from the mother to the father post-separation, I highlight that those examples are but a small sampling. The text messages between the parties that were adduced as evidence establish that her hostile and abusive style of communication with him during the marriage continued in a seamless manner following the parties’ separation on January 8, 2018. I find that her frequent abusive and relentless messaging caused the father emotional trauma and distracted him from his primary care responsibilities towards C.M.M.
464While the mother alleged financial abuse by the father, I find that in fact she was financially abusive towards him during the period following the separation. As I will discuss in further detail later in these Reasons, the evidence establishes that the mother did not regularly deposit any of her paycheque from JNE Consulting into the parties’ joint account following the separation. This resulted in the father having to cover the expenses relating to the matrimonial home and numerous other joint expenses primarily from his sole income from the joint account. He had to regularly message the mother to ask her to transfer money to the joint account to keep it out of overdraft. However, the account went repeatedly into overdraft, resulting in regular overdraft bank charges which simply aggravated the parties’ financial situation. The father gave credible evidence regarding the extreme stress and distress that he experienced during this time period due to the mother’s behaviours, and his medical records from the Winterberry Clinic fully support his evidence on this issue.
465The grandparents are family members for the purposes of the family violence provisions of the Divorce Act. I find that the mother has engaged in family violence against them as well. I have described the incident in 2020 when the mother was verbally abusive and intimidating towards the grandmother at a parenting time exchange, and Society Family Resource Worker Ms. Key had to intervene to protect her and C.M.M. On that occasion, C.M.M. put his face in the grandmother’s leg in an attempt to shield himself from emotional and physical harm. He was a victim of this family violence as well. This incident was reminiscent of the incidents that the grandparents described during the parties’ relationship of the mother coming very close to their faces and screaming at them uncontrollably without any reasonable grounds for doing so.
466The mother’s constant stream of unsubstantiated allegations of neglect, physical abuse and sexual abuse against the father and the grandparents, her repetitive questioning of C.M.M. about these allegations using coaching and leading tactics and her frequent involvement of C.M.M. in pushing the allegations forward all support a finding of psychological abuse towards C.M.M., the father and the grandparents. This behaviour has had a significantly negative impact on all of them. They have all been subjected to numerous child protection and police investigations, and C.M.M. had to undergo a physical examination by the CAAP team due to the allegations. I have discussed at length the father’s significant challenges in managing his anxiety and stress since the separation, and I find that these were primarily attributable to the mother’s constant unproven claims, which wreaked havoc on his personal and professional life, his important relationships and his overall wellbeing. The grandparents both attested to the devastating impact that the mother’s frequent allegations have had on them. The grandmother broke down emotionally in her testimony when addressing the claims and the mother’s overall interactions with her and stated that she was genuinely fearful that the mother may harm her physically or cause her more emotional suffering.
467With respect to C.M.M., I find that the mother has interrogated him using prodding, coaching and leading tactics not only in relation to the many neglect and abuse allegations that she has made, but also respecting many other aspects of his life and interactions with the father and the grandparents. The evidence when considered as a whole establishes that she frequently asked C.M.M. about his time with the father and the grandparents, what he does while in their care, and about their interactions with him, with the purpose of ferreting out any evidence of misconduct or neglect on their part. It is unclear whether she behaved in this manner intentionally with the goal of undermining the father and the grandparents, or whether it was attributable to mental health problems which cause her to be overly protective of C.M.M. Whatever the explanation, these interrogations have typically led to the mother conjuring up some type of fault with the father and grandparents and reporting concerns about them to community professionals. Some examples of this behaviour include her questioning C.M.M. inappropriately about books that he read with the father, the types of games that the father and grandparents have at their home, and more recently, asking C.M.M. if he is afraid of going to the grandparents and questioning him about whether he would be sad if he did not live with his father. This type of constant questioning of C.M.M. has also been psychologically abusive towards him. As I will discuss in further detail below, it has deeply undermined his trust in the father and grandparents and has stained his relationships with them. I find that this behaviour has caused serious emotional harm to C.M.M., and that he would be at risk of suffering ongoing harm from this type of conduct if the mother were permitted to have unsupervised parenting time with him.
468Finally, I find that the mother’s various forms of family violence towards the father, the grandparents and C.M.M. have constituted a pattern of coercive and controlling behaviour towards all of them, due to the broad, longstanding and relentless nature of her abusive conduct. When considered as a whole, her abusive behaviour, whether intentional or attributable to mental health concerns, has included many damaging tactics including various types of threats, humiliation, manipulation of the truth, fear and isolation geared to undermining their will, their relationships with each other and others, their financial stability, their resolve to provide primary care for C.M.M. and their overall wellbeing in an effort to achieve her own goals.
469I have considered the factors relating to family violence set out in section 16(4) of the Divorce Act. As I have stated, the various forms of family violence perpetrated by the mother in this case have been serious and longstanding, and they have implicated C.M.M. both directly and indirectly. Unfortunately, the mother does not acknowledge the many ways in which she has committed family violence towards the father, his parents and C.M.M. She continues to view herself and C.M.M. as the innocent victims of abusive behaviour by the father and the grandparents. Although she has engaged in extensive counselling over the years, she does not acknowledge the clear concerns regarding her mental health and general functioning and has not complied with the recommendations of psychiatrists regarding the use of medication to address her mental health challenges. The overall picture respecting the factors relevant to the family violence inflicted by the mother is extremely concerning and raises questions as to whether she will be able to refrain from engaging in this type of damaging conduct in the future.
O. The Ability of the Parties to Support C.M.M.’s Relationship With Each Other
470I have considered all of the relevant evidence respecting the parties’ ability to support each other’s relationships with C.M.M. With respect to the father, as I have already addressed at various points in these Reasons, I find that he has consistently gone to great strides to support the mother’s relationship with the child. He supported her having primary care following the separation and respected her wishes and boundaries about his parenting time until C.M.M. was placed in his care in May 2019. I have discussed how he was supportive of increasing the mother’s parenting time throughout the Society’s involvement despite his concerns about her mental health and the constant devastating allegations that she made against him and his family members. While he did not agree with equal parenting time, his position regarding the mother’s time with C.M.M. was in my view extremely reasonable in the circumstances. As I have stated, he consistently made efforts to coordinate increased parenting time for her during holidays and on special occasions. Despite the constant unfounded allegations that the mother advanced, he did not bring any motions to restrict her parenting time until mid-trial, when the seriousness of the concerns about her most recent activities to advance her allegations became fully apparent. There is no evidence that he has ever made any negative comments about the mother or the important people in her life within earshot of C.M.M.
471By contrast, I have very serious concerns about the mother’s ability to support C.M.M.’s relationship with the father. I have discussed the stonewalling behaviour that she engaged in regarding extra parenting time for the father for holidays and special occasions and events. She has made constant allegations of abuse and neglect which have not been substantiated by the Society or police and has stated that she will not stop in her efforts to pursue those allegations until C.M.M. is removed from the father’s and grandparents’ home. These constant allegations and the ensuing investigations, coupled with the mother’s abusive communications with the father, created intense stress and anxiety for the father that would be difficult for anyone to bear. I find that this stress and anxiety rendered it very difficult for him to be the best possible parent to C.M.M. To his credit, he has weathered the havoc that the mother has wreaked on his life exceedingly well and has continued to carry out his primary parenting role in an exemplary manner.
P. The Ability of Each Party to Support C.M.M.’s Relationships With Family Members and Other Important People in his Life
472The father has demonstrated a consistent ability to support C.M.M.’s relationships with his family members and other important people in his life. C.M.M. has maintained his relationships with his grandparents, with whom he has lived since May 2019, and his paternal uncle and aunt despite the devastating allegations that the mother has raised against them. He has also maintained connections with his extended paternal family members as a result of the father’s commitment to safeguarding those relations. The father has also consistently made efforts to ensure that C.M.M. participates in activities and outings with friends, and has not engaged in any behaviours that have undermined his relationships with them.
473The mother has demonstrated a commitment to supporting and fostering C.M.M.’s relationships with extended family members on her side and other important people that she and C.M.M. have associated with. Her paternal great aunt D.L. testified about the many wonderful family events that the mother and C.M.M. have attended, usually with the mother’s former partner M.R. and his son. C.M.M. has benefitted greatly by meeting many extended family members on the mother’s side and developing meaningful connections with them through those gatherings. The mother’s former neighbour J.B. attested to the mother’s efforts to support a meaningful relationship with him and his daughter, and I find that C.M.M. has benefited from those connections as well. The mother and C.M.M. also developed positive and supportive relationships with the mother’s former tenant S.M., and the mother has made efforts to foster C.M.M.’s relationship with her, including choosing her to be C.M.M.’s godmother. The father also supported that relationship by agreeing to S.M. assuming the godmother role, even though he did not know her personally.
474By contrast, I find that the mother is unable to support and foster C.M.M.’s relationships with members of his paternal family. It is clear that she developed a strong dislike for the grandparents and the paternal uncle and aunt early on in the parties’ relationship, without any reasonable evidence to justify this disdain. As I have already discussed, she has engaged in various tactics over the years to isolate C.M.M. from his paternal family members and undermine his relationship with them. Her constant allegations of abuse and neglect by the grandparents has been her main tool for achieving her objective of eradicating their relationship with C.M.M. since the parties’ separation. As I have stated, she has clearly stated to many professionals in recent years and to this court that she will not stop advancing her allegations with any professionals who will listen to her until C.M.M. is removed from the grandparents’ home.
Q. The Parties’ Ability to Communicate and Cooperate with Professionals Involved with C.M.M.
475I have already referenced the parties’ ability to communicate and cooperate with professionals involved with C.M.M. at various points in these Reasons. By way of summary however, I find that the father has developed excellent working relationships with the various professionals involved with the family over the years, and that he has been receptive and generally compliant with the recommendations that they have made to support C.M.M.’s wellbeing. His communications with professionals have generally been calm and respectful, with a few exceptions during particularly stressful periods when he became frustrated with the mother’s incessant allegations of abuse and neglect. I have no concerns about the father’s ability and commitment to working respectfully with professionals currently involved with C.M.M. and those who may become involved with him in the future. There is no doubt in my mind that he will work with those professionals to ensure that C.M.M.’s best interests are fully promoted.
476Turning to the mother, I find that she has worked well with professionals involved with C.M.M. when they have agreed with her opinions on issues, but that the situation can quickly turn a complete 360 degrees when their perspective differs from hers. She has demonstrated this predictable pattern of behaviour time and time again with various professionals, including Society workers and supervisors, the police, health care professionals and educational and daycare professionals. She had highly aggressive, heightened and disjointed communications with almost all of the Society workers involved with the family when they did not agree with her, or when situations were not unfolding to her liking. I have discussed how various daycare, educational and health care professionals have found her extremely difficult to work with at times due to her rigid positions on issues, her over-protective nature with C.M.M. and inappropriate and exaggerated responses to situations. The mother also has a clear pattern of making unjustified official complaints about the competence, integrity and actions of professionals to higher authorities when they do not agree with her. I have described in detail the many unwarranted complaints that she has launched over the years, and the disruptive effects of those complaints on the professionals and agencies involved. In short, there are very serious concerns about the mother’s ability to consistently communicate and work with professionals in a mutually respectful manner to ensure that C.M.M.’s needs are fully supported and fostered.
R. The Evidence of the Office of the Children’s Lawyer Clinician Ms. Alison Young
477As I have previously noted, the Office of the Children’s Lawyer Clinician Ms. Young held a disclosure meeting with the parties on September 3, 2023. She recommended that the father be granted sole decision-making responsibility and primary residence of C.M.M., and that the mother’s parenting time with the child be reduced to alternate weekends from Friday after school until Sunday at 6:00 p.m. She further recommended that the mother address her mental health diagnoses and engage in a parenting program to gain insight into C.M.M.’s emotional needs and develop appropriate methods for being emotionally responsive to the child. With respect to C.M.M., she recommended that he participate in play therapy to help him process his emotions, address his divided loyalties to his parents, develop his own voice and build a heathier attachment to his mother. These recommendations were based on the following observations and impressions:
First, Ms. Young had significant concerns respecting the mother’s mental health based on information obtained from the collaterals that she had canvassed as part of her investigation, including medical and educational professionals who had been involved with the family.
Second, she had concerns about the mother’s judgment in relation to C.M.M. generally, and her ability to prioritize C.M.M.’s needs above her own. As examples, she emphasized the concerns about the mother’s inappropriate interactions with some professionals. She also noted that the mother wished to relocate with C.M.M. to the Alliston area where her partner M.R. was residing, and that she did not demonstrate any appreciation of how removing C.M.M. from his current home, school, family and supports could impact him negatively.
Ms. Young also had concerns that C.M.M. had frequently been late for school during the mother’s parenting time periods, and that the mother did not have satisfactory explanations for this.
Her impression based on her own observations and that of other collaterals was that C.C.M. is an empathetic and intuitive child who is overly protective of his mother, reluctant to express any negative or conflicted feelings about her or towards her and tries to please her at the expense of his own wishes, preferences and wellbeing. As an example, she noted that during her interview with C.M.M., he emphasized that he prefers to spend his parenting time with his mother at M.R.’s home in Alliston, because “Mommy likes it there.” He also stated that he wanted to move with his mother to Alliston so that his mother “gets what she wants.” There was therefore evidence that C.M.M. lacked independence in regard to his expressed wishes. Ms. Young concluded that this evidence of internal conflict on the part of C.M.M. in relation to his mother was likely to pose a risk to the child’s long-term relationship with his mother and his general emotional development.
Ms. Young also had serious concerns about the mother’s inability to follow the recommendation of professionals involved with C.M.M. if they did not confirm with her own views and agenda. As an example, she discussed the mother’s concerns about C.M.M.’s weight and her apparent inability to accept the recommendations of the Winterberry Clinic professionals that there was no cause for concern.
Ms. Young investigated the mother’s claims regarding neglect by the father and the paternal grandparents, that the father was not cooperating with her on issues pertaining to C.M.M., and that the father was controlling towards her, and she did not find any evidence to substantiate those allegations.
Ms. Young found that the mother sees herself as a victim and is unable to leave behind historical grievances about the father and the grandparents that were not relevant to the present. She concluded that this was a significant impediment to an effective co-parenting relationship between the parties.
Ms. Young did not identify any concerns about the father or the grandparents generally, or their ability to meet C.M.M.’s physical, emotional, social and developmental needs.
Finally, she noted that C.M.M. had expressed a wish to spend equal time with both parents, and alternatively to reside primarily with the mother if she moved to Alliston. However, she concluded that C.M.M. had been influenced in regard to his wishes by the mother’s sharing of her wishes with him and his desire to please her. Accordingly, she concluded that C.M.M.’s wishes should not be given much weight in assessing his best interests respecting the parenting arrangements.
478Ms. Young testified at length at trial. As I have discussed, the parties agreed to provide her with additional documentary evidence for her to consider in anticipation of giving her evidence. The purpose of providing that information was not to request an updated section 112 assessment from Ms. Young, but rather to allow questioning of her about whether the new information could potentially have implications in regard to her recommendations as articulated in 2023. At trial, Ms. Young confirmed that she had not undertaken an updated section 112 assessment. However, she testified that based on all of the additional information that she had received, any updated section 112 assessment would in her view need to consider whether supervised parenting time for the mother was in C.M.M.’s best interests. Her explanations for this position were as follows:
She had noted concerns regarding the mother’s repetitive unsubstantiated abuse and neglect allegations in 2023, and she observed that there had unfortunately been a significant escalation in the mother’s pursuit of these types of concerns with various professionals since her involvement.
She was particularly concerned about the fact that the mother had directly involved C.M.M. in advancing her allegations with community professionals since she completed her report, including the Kids Help Phone, the Hospital for Sick Children and Child and Adolescent Services.
She reviewed the evidence adduced at trial respecting the mother’s questioning of C.M.M. about the abuse allegations and found it to be very leading and suggestive in nature. She emphasized that this is not how interviews with children should be conducted, and that any information gained from children through such questioning would not be credible or helpful.
She had noted concerns during her involvement that C.M.M. seemed intent on pleasing his mother and acquiescing to her wishes, and she felt that this dynamic was also playing a significant part in C.M.M.’s ongoing statements of historical abuse and neglect.
She felt that the mother’s repeated questioning of C.M.M. about the unsubstantiated allegations and exposing him to discussions about them was reinforcing with him misinformation about what had happened to him. Her view was that this was extremely harmful to C.M.M.’s emotional and mental wellbeing, and that it was undermining his ability to find his own voice and trust his own instincts about these issues.
She was also worried about the evidence since 2023 of the mother’s ongoing efforts to establish concerns about C.M.M.’s physical health that were not shared by his health care providers. She felt that this coupled with the mother’s refusal to accept the results of the Child Protection and police abuse investigations reflected a general inability to accept the opinions and recommendations of professionals involved with C.M.M.
She felt that all of these considerations, along with ongoing evidence about the mother’s long-winded, disjointed and at times misleading communications, further bolstered her previous concerns that the mother may be suffering from underlying mental health difficulties which may be negatively impacting her parenting and her relationship with C.M.M.
She noted that the mother continued to have very strong negative feelings about the grandparents, and that there did not appear to be any evidence to justify her attitude towards them. Her worry was that the mother’s actions were motivated more by her dislike of the grandparents than her desire to support C.M.M.’s best interests.
Ms. Young also highlighted concerns that the mother’s inappropriate questioning and other interactions with C.M.M. appeared to have caused him to fear for his safety and general wellbeing while he was with the father and the grandparents, and that this could seriously undermine his important relationships with them.
She highlighted that since the end of her involvement, the mother has continued to deny having any mental health challenges, and she felt that this ongoing denial posed obstacles for any hope of improvement in the mother’s inappropriate behaviours in the future.
She had significant concerns based on the mother’s ongoing problematic behaviour that C.M.M. would be subjected to ongoing unnecessary interviews and physical examinations which would be psychologically harmful to him.
Finally, she expressed worry that allowing the mother unsupervised parenting time with C.M.M. was providing her with many opportunities to continue in her emotionally damaging behaviours towards him, and that it would place an inappropriate burden on C.M.M. given the evidence that he wishes to please her and feels a need to protect her.
479I found Ms. Young to be a highly competent, articulate, insightful, credible and reliable witness. Her initial investigation was fulsome, and she reviewed extensive updating information relevant to C.M.M.’s best interests in preparation for testifying at trial. She had a very sound knowledge of the facts and presented as even-handed and fair in her investigation and impressions of the family and her evidence at trial. The mother attempted to attack her skill, knowledge and credibility in various ways, but I did not find her efforts to be persuasive or helpful. The mother’s efforts to undermine Ms. Young’s professional competence and her evidence were as follows:
First, she attacked Ms. Young’s professional integrity by claiming that she had sent her confidential information about another family’s file. The evidence did not support this allegation. Ms. Young stated that she did not do this, and if anything, the preponderance of evidence suggests that the mother’s former counsel sent the materials in question to her in error.
She claimed that Ms. Young erred in failing to interview her former partner M.R. and his son, or to include them in the home visit with her. However, Ms. Young’s reasonable explanation for this was that the mother was not cohabiting with them at the time of her investigation, and the purpose of home visits is to see the child in his usual environment and routine at their home.
She suggested that Ms. Young based her recommendations on only one home visit with her, which was clearly not the case as Ms. Young had reached her conclusions based on an in-depth investigation process which involved interviews with other family members and collaterals and a review of extensive documentation.
The mother challenged Ms. Young at length about her concern that C.M.M. is anxious to please her, and that this may be influencing his statements about abuse and neglect. Ms. Young explained that there was no doubt that C.M.M. loves his mother, but she reiterated that there is clear evidence that he feels a need to please, comfort and protect her, and to subjugate his owns wishes and needs to hers. In this regard, I note that Ms. Young’s impressions on these issues are consistent with those of several other professionals who have been involved with the family. The Society’s records are replete with references to the observations and impressions of Society workers about C.M.M.’s behaviour around his mother, and his clear desire to answer questions in ways that will please her so that she will stop her rapid-style and repetitive questioning. The supervision case-note between Society worker Ms. Abbiw and her supervisor Ms. Shoreman dated January 5, 2022 is one example. I have also noted that the police detectives who were involved in the police investigations into the abuse allegations had these concerns as well. The Winterberry Clinic Nurse Practitioner Ms. Patel shared these same concerns based on her observations of the mother and C.M.M. during her appointment with them on April 3, 2024. Finally, as I have already noted, C.M.M.’s after care provider Ms. Khazima testified that she observed the mother stating in front of C.M.M. on one occasion in a teary state that she wished she could do more to help the child, and that C.M.M. responded by hugging her, rubbing her back and wiping away her tears to comfort her.
The mother suggested in her cross examination of Ms. Young that she and other professionals involved with the family were somehow connected with the father’s family or biased against her. Ms. Young assured her that she had not found any evidence of any such connections or bias.
The mother questioned Ms. Young about the fact that the mother had not been present during the various interviews of C.M.M., suggesting that this undermined his willingness and ability to provide disclosures. Ms. Young explained that it would in fact be inappropriate for a parent to be present during such interviews, since this would give rise to concern about the child being influenced by their desire to please the parent.
The mother attempted without success to challenge the professional competence of the collateral sources that Ms. Young relied on in her investigation.
Finally, the mother challenged Ms. Young for giving insufficient weight to C.M.M.’s expressed views and preferences. Ms. Young reinforced her view that it was inappropriate to give any significant weight to C.M.M.’s views, having regard for the compelling evidence indicating that they had been tainted by the mother’s repetitive interrogation-style questioning of him, with significant resort to leading and coaching as aids in the process. She underlined the general consensus of various professionals at different periods of time that there were concerns about C.M.M. having been inappropriately coached and influenced by his mother.
S. The Parties’ Plans for the Care of C.M.M. and the Strength of Their Support Networks
480I am satisfied that the father has a solid and appropriate plan for the ongoing care of C.M.M. He intends to continue living with C.M.M. at the home of the grandparents until he completes his training and apprenticeship program to become a fully certified plumber and achieves a financial position that enables him to secure his own residence. I find that he and C.M.M. have their own space in the home which fully meets their needs. The father plans to keep C.M.M. enrolled in his current school and to maintain all of his professional supports including play therapy.
481The father has had the steadfast support of his parents in raising C.M.M., and I am confident that they will continue to assist him as required in the future. While the father has demonstrated an ability to meet all of C.M.M.’s needs on his own, I find that the grandparents’ assistance has been very helpful and has contributed greatly to C.M.M.’s wellbeing and development. I commend them for their unwavering support for the father and C.M.M. over the years despite the devastating barrage of allegations that the mother has made about them and the highly unsettling effect of those claims on their lives. I conclude that the father also has the support of the paternal uncle and his wife, as well as extended family members in ensuring that all of C.M.M.’s needs are met.
482The mother’s plan for the care of C.M.M. has not been consistent over the years, and I have concerns about her parenting judgment in relation to some of those plans. From the summer of 2018 onward, she consistently raised the spectre of moving with C.M.M. to the Alliston area so that they could live with her former partner M.R., yet she never brought a motion to seek that relief, which raises questions as to whether M.R. ever actually supported that plan. During a conversation with Society worker Ms. Nguyen on December 4, 2020, the mother articulated her view that the parties should alternate primary care of C.M.M. on an alternating year basis. She had no appreciation of how such major changes to C.M.M.’s primary residence every year would be emotionally disruptive to him, and Ms. Nguyen had to educate her on this point. Her position gradually evolved to seeking primary care of C.M.M. and relocating with him to Alliston to reside with M.R., and as I have stated, that was her position until near the end of the trial. I find that she discussed this plan with C.M.M. and asked him if he would be sad if he did not live with his father, which was highly inappropriate given that this issue was before the court and the concerns about her engaging in coaching and leading communications with him. She did not seem to appreciate how C.M.M. may be impacted emotionally by such a major move, which would significantly restrict his time with his father and require him to change schools, stating simply that she was confident that he would adjust without any difficulty. She indicated during the trial that she would want equal parenting time even if she moved to Alliston and she was not permitted to relocate with C.M.M. to that area, but she had no clear plan as to how that would work if C.M.M. were to remain enrolled in his current school in Hamilton. At first, she stated that the plan under that scenario was “a rough one,” and that she would have to work out the details. She announced her intention to begin residing with M.R. immediately after deciding to sell her house in early January 2025, but she had no immediate plan as to how she would manage the parenting time arrangements without a court order. Eventually, she suggested that if she were not permitted to relocate with C.M.M., she would nonetheless live with M.R. in Alliston and rent either a hotel suite or short-term Airbnb accommodations in the Hamilton area to care for C.M.M. during her weekday parenting time periods. Again, she did not appreciate how this type of inconsistent accommodations arrangement would be disruptive and unsettling for C.M.M., and the plan was more focused on her own needs than his. Moreover, she acknowledged during cross examination that she had not spoken to her employer about whether she could work full-time from home if she moved to Alliston, and she had therefore not done any necessary planning around how she would financially support herself and C.M.M. once she relocated.
483Finally, on the eve of M.R. testifying at trial, the mother announced that she and M.R. were no longer in a relationship and that she was not able to cohabit with him in Alliston. Her evidence and that of M.R. about the reasons for the breakup and the change in plans regarding the mother’s residence were confusing, inconsistent and not credible. The mother had been advancing a plan to move to Alliston for years, yet the explanations proffered for the breakup and the change of plans for the mother’s residence allegedly related to last-minute developments relating to the needs of M.R.’s elderly parents and his son’s concerns about the proposed plan. At one point, the mother made a vague reference to problems with M.R.’s ex-wife as being a factor behind the changed plan. Moreover, the mother initially presented as highly distraught about a complete breakup with M.R., but then indicated that M.R. had secured her new rental townhouse in his own name and covered the first and last months’ rent, which was completely inconsistent with the notion of a breakup. M.R. testified near the end of the trial, and he presented as extremely uncomfortable in giving evidence about the reasons for the alleged breakup and for his decision to secure the rental of the townhouse is his own name. Frankly, the evidence of the mother and M.R. raised more questions than it answered on the reasons for the change in plans and their intentions for the future of their relationship. At the very least, their evidence and the last-minute turn of events raises serious concerns about the security, stability and viability all along of their relationship and the mother’s plan to relocate with C.M.M. to Alliston. This again raises questions about the mother’s judgment regarding her planning for C.M.M.’s care.
484With respect to the mother’s final plan for the care of C.M.M., her current residence in Caledonia is a new 3-bedroom townhouse which appears to be well suited for hers and C.M.M.’s needs. However, it is much further away from C.M.M.’s school than her previous residence on Upper Gage Avenue. The mother refused to acknowledge that the trip to and from the school would take approximately 25 minutes, and that it would be longer than the trip from her previous home. I did not find her credible on this issue at all. I find that this longer distance would be highly problematic given her concerning track record of failing to get C.M.M. to school on time.
485I also have concerns about the strength of the mother’s support network at this time. Her main support since 2018 has been M.R., but it seems that he is no longer a reliable source of assistance to her other than having secured the rental of her townhouse for a year. She has some support from her former tenant S.M., but S.M. has her own full personal and professional life and it is uncertain how much daily assistance she will be able to provide for the mother and C.M.M. She has some friends in the Windsor area who provide her with emotional support, including her long-time friend from the Big Sisters Program C.P., but they are not able to provide hands-on daily assistance to the mother and C.M.M. The mother has demonstrated great resilience throughout the years in the face of many challenging events. However, her limited supports coupled with the longstanding concerns about her coping abilities and mental health are factors that must be considered in the best interests analysis.
T. The Nature and Strength of C.M.M.’s Relationships with the Parties and the Grandparents and Their Ability to Safeguard and Satisfy his Emotional Needs
486I find that C.M.M. has strong and loving relationships with the father and the grandparents. Although C.M.M. has stated to his mother and to Society worker Ms. Byrne that he is fearful of returning to the father and the grandparents after being with his mother, I find that he does not in fact have any fear of them, and that he is genuinely happy while in their care. In my view, this is another example of how the mother’s behaviours and interactions with C.M.M. have negatively influenced him to say what he believes she wants to hear to please her. C.M.M.’s actions speak louder than words. By all accounts, he presents as happy and perfectly comfortable in the presence of the father and the grandparents, both within and outside their home, and his interactions with them are affectionate and loving. The extensive Society records reflect that these have been the consistent observations of all Society staff who have been involved with the family. The health care professionals from the Winterberry Clinic who have seen C.M.M. with his father and grandparents have also noted positive interactions with C.M.M. Likewise, C.M.M.’s school principal Ms. Coletto and his after-school care providers Ms. Khazima and Ms. Ashley Costa-Lima have observed him to be happy and excited when greeting his father and grandparents. The mother’s former tenant S.M. saw C.M.M. and his father together on occasion and did not express any concerns about the nature of their interactions. Finally, I observed the father to be smiling and laughing during his evidence when describing C.M.M.’s character, his progress and the activities that they engage in together. It is obvious that he has a strong sense of love, devotion and pride towards his son.
487I find as well that the father and the grandparents are able to meet and safeguard C.M.M.’s emotional needs. The evidence shows that they comfort and support him when he is ill or needs emotional support for any other reasons. The father is very attuned to changes in C.M.M.’s behaviours and temperament and has been proactive in identifying concerns in this regard to the Society. As I have discussed, he took appropriate actions to seek out and arrange counselling for C.M.M. at a time that was appropriate for the child. There is no evidence that the father or the grandparents have made negative comments about the mother or other important people in her life to C.M.M. or within earshot of him, or that they have inappropriately involved him in adult conversations. There is also no evidence that any of them have coached or pressured him in any way about the numerous allegations that have been raised against them, despite the devastating impact of those claims on their lives.
488Turning to the mother’s ability to meet C.M.M.’s emotional needs, the evidence establishes that she and C.M.M. love each other very much, and that C.M.M. has highly enjoyable times with her. They demonstrate a great deal of affection with each other, and C.M.M. has expressed a wish to spend more time with her. The mother has advocated for C.M.M. to receive counselling.
489Notwithstanding these positives, there are many concerns about the mother’s ability to fully appreciate and meet C.M.M.’s emotional needs, and to prioritize his emotional wellbeing over her own interests and wishes. I find that her frequent interrogations of him around the abuse and neglect allegations, employing coaching and leading tactics, have caused him significant emotional distress and harm. Society workers and police detectives involved in the abuse investigations observed that C.M.M. presented as uncomfortable in the recordings that the mother made of him regarding his statements and seemed to be trying to figure out what she wanted him to say. I concur with these observations, and I add that he also presented as frustrated with the questioning in some of the recordings. The mother’s incessant questioning and influencing him about the abuse allegations and many other issues about his time with the father and the grandparents have caused him such psychological confusion that he is now expressing completely unjustified fear about being in their care and at their home. This in turn threatens to undermine his important emotional connections with the father and the grandparents.
490The evidence also establishes that the mother truly believes that the alleged physical and sexual abuse incidents occurred, and that she is completely unable to shield C.M.M. from her own fear that he will be harmed in the care of the father and the grandparents. She has also exposed C.M.M. to other sources of anxiety in her life, including her financial challenges. I agree with Ms. Young’s impressions that C.M.M. is a kind and empathetic child, that he is highly attuned to the mother’s concerns, and that he seeks to please and comfort her so that she is happy. All of these dynamics have resulted in C.M.M. being overly concerned for his mother’s wellbeing for his young age, and wanting to please her even when doing so does not necessarily support his own best interests. These aspects of the mother’s relationship with C.M.M. also raise concerns about her ability to fully appreciate and safeguard C.M.M.’s emotional needs.
491Finally, as I have already discussed, there are concerns about the mother’s ability to appreciate and acknowledge C.M.M.’s emotional needs when they conflict with her own wishes, and to place those needs above her own. This was particularly evident with her plan to move to the Alliston area, and her various iterations of that plan as discussed above.
U. C.M.M.’s Overall Functioning and His Current Needs
492I have carefully considered how C.M.M. has fared over the past several years under the parenting arrangements agreed upon between the Society and the parties. There is considerable positive evidence about his functioning and wellbeing, despite the repeated investigations that he has been involved in and his mother’s inappropriate behaviour respecting the abuse allegations. He has done quite well in school, and the educational professionals who testified at trial, namely Ms. Coletto, Ms. Khazima and Ms. Lima-Costa, described him as a generally happy and delightful child. Both parents likewise described him as remarkably well adjusted and generally a wonderful and loving boy. The Society’s records reflect that the Society workers involved with the family shared these general impressions.
493Notwithstanding these positives, there are clear signs that C.M.M. is suffering emotional harm as a result of the complex and dysfunctional dynamics created by the mother’s conduct. I have referenced some of these signs above, such as his apparent need to please and comfort his mother and to place her wishes above his own. The father also gave highly credible evidence about his concerns regarding C.M.M.’s emotional wellbeing. He noted that C.M.M. does not say anything at all about his time with the mother, and that it was his clear impression that C.M.M. does not feel he has permission to do so. I find that C.M.M. does have anxiety about talking to the father about his activities with the mother, and that the mother has asked him to keep some secrets from his father about what they have done together. For example, C.M.M. told Ms. Byrne during the most recent Society investigation that the father could not know about his attendance at the Hospital for Sick Children, because that would get his mother in trouble. The father also raised concerns about changes in C.M.M.’s behaviour and presentation during periods when the mother was raising her allegations of abuse and neglect. He descried C.M.M. as having nightmares, sometimes wetting the bed, needing to be near him and generally being clingier during such periods. He also testified that since the mother’s move to Caledonia and C.M.M. being told that the mother and M.R. had had broken up, C.M.M. has been biting his nails much more severely than in the past, has been hard to settle at night and has generally required much more one-on-one attention from him. The Society’s records also reflect that the father relayed these concerns about C.M.M.’s reactions and behaviour over the years when the mother raised abuse and neglect claims. Furthermore, those records indicate that on March 19, 2024, during the investigation following the mother’s calls to the Kids Help Phone, C.M.M.’s teacher Ms. Sieminski wrote an email to the father relaying that C.M.M.’s behaviour at school was out of the ordinary for him. Specifically, C.M.M. was complaining about a sore stomach but was nonetheless participating well in gym class, he seemed to be falling asleep during silent reading and meditation periods, and he had been crying at times. Finally, as I have already noted, the mother’s constant interrogations, coaching and influence of C.M.M. about the abuse allegations, and her directly involving him in advancing those claims with various community agencies, have caused C.M.M. to either actually believe that the abuse has occurred, or alternatively, to pretend that he believes this when he is with his mother and when he speaks with professionals. Either way, this raises serious concerns for C.M.M.’s psychological wellbeing. The fact that C.M.M. is now expressing unwarranted fear about being with his father and grandparents, while not showing any actual fear in their company, reflects the confusion that he is feeling about his relationships with his father and grandparents, and is another major red flag with respect to his current psychological status. Accordingly, while C.M.M. is overall handling the challenges of his childhood exceedingly well by outward appearances, he is clearly showing some concerning cracks in his emotional and psychological stability and functioning.
V. C.M.M.’s Views and Preferences
494I am required to consider C.M.M.’s views and preferences insofar as they can be reasonably and credibly ascertained. The mother submits that C.M.M. has repeatedly expressed fear about living with the father and the paternal grandparents and a desire to reside primarily with her. She relies on C.M.M.’s statements to Ms. Young respecting his wishes as well. However, Ms. Young concluded that C.M.M.’s wishes should not be given any weight based on the evidence respecting the mother’s coaching and influence on him, and his clear desire to please her and make her happy to the detriment of his own wishes and wellbeing. I fully concur with Ms. Young’s conclusion on this issue. Accordingly, while I have considered C.M.M.’s views and preferences, I do not find them helpful in assessing his best interests and have not given them significant weight in my analysis of the parenting issues.
W. Summary of Conclusions on the Parenting Issues
495C.M.M. has experienced far too much trauma in his short life due to the mother’s behaviours. At this time, C.M.M. requires a safe, stable and secure home environment where he can feel assured that he will be able to maintain his important family connections, his friendships and his current school placement which has been highly supportive of him. He also needs to be protected from the highly damaging and longstanding behaviour of his mother that has caused him serious emotional harm and psychological confusion about what occurred between him, his father and his grandparents. Finally, in my view, C.M.M. requires long-term therapy with a professional who has special expertise in helping children to de-program, revisit their past experiences and heal after being influenced into believing that important people in their lives have committed horrific acts of abuse towards them.
496I conclude that C.M.M.’s best interests require that the father be granted sole decision-making responsibility. An order for sole decision-making responsibility in the mother’s favour would not support C.M.M.’s best interests, having regard for the serious and longstanding nature of the concerns respecting the mother’s mental health and coping abilities, the concerns that I have identified respecting her judgment around parenting matters, the difficulties that professionals have experienced with her in addressing her needs and those of C.M.M., and her responsibility in creating difficulties between the parties in their attempts to co-parent the child. Although the parties have been able to cooperate on some issues respecting C.M.M. over the years, there have been far more situations in which they have experienced major discord in attempting to address significant matters pertaining to C.M.M.’s wellbeing. The mother’s behaviour has been the primary cause of this conflict, by a landslide. The level of discord between the parties is such that it would interfere with timely and effective decision-making respecting C.M.M. if a joint or divided decision-making responsibility regime were ordered. Furthermore, the nature, extent and consistency of the family violence that the mother has visited upon the father, the grandparents and C.M.M. is such that an order requiring the father to continue cooperating with the mother on significant matters respecting C.M.M. would be inappropriate. It would simply provide the mother with further opportunities to engage in psychologically abusive and coercively controlling conduct towards him. The father has been consistently attentive and competent in meeting all of C.M.M.’s needs, has a strong, loving and supportive relationship with C.M.M., has a positive track record in supporting C.M.M.’s relationship with the mother and in working with professionals involved with the family and has a solid plan that will provide C.M.M. with consistency, stability and security moving forward. All of these considerations also support an order for primary residence in favour of the father.
497With respect to the mother’s parenting time, it is abundantly clear that she and C.M.M. have a close and loving relationship. I appreciate that the temporary order that I made on March 6, 2025 was devastating for the mother and would have caused C.M.M. considerable sadness. However, all of the factors outlined above have led me to conclude that this order must continue at this time to safeguard C.M.M.’s best interests. I have found that the mother has engaged in various forms of behaviour since his birth that have been contrary to his best interests and have caused him significant emotional harm and confusion regarding his relationships with the father and the grandparents. The mother has been directed time and time again by child protection professionals and the police to stop discussing historical allegations with C.M.M., to not interrogate him about her concerns or any allegations that may arise, and to not record him for the purposes of documenting her concerns. These warnings and directions fell on deaf ears. The mother’s claims that she signed an agreement with the Society in the spring of 2024 to stop questioning C.M.M. and advancing her abuse claims, and that she complied with that agreement, have not been substantiated on the evidence. Although she consented to an order on December 12, 2024 prohibiting her from discussing any sexual incidents with C.M.M., I am not satisfied that she complied with that order. Moreover, her poor track record regarding compliance with orders issued by this court and the directions given by numerous professionals about interrogating C.M.M. is such that I have no confidence at all that she would comply with the order made on December 12, 2024 or any other order prohibiting her from speaking with C.M.M. or other professionals about the abuse and neglect allegations.
498The mother has been given many opportunities to address the concerns about her behaviour, with the Society imposing supervised parenting time on her twice and then implementing two lengthy reintegration plans to gradually work towards a return to unsupervised parenting time with C.M.M. Those efforts were ultimately unsuccessful, as I ordered limited supervised parenting time for her once again on March 6, 2025 for the very same reasons behind the Society’s decision to do so twice in the past. The serious concerns about the mother’s mental health and her poor judgment respecting parenting issues compound my concerns regarding her ability to change her damaging patterns of behaviour towards C.M.M. I have also taken into consideration the fact that the mother has made it perfectly clear to Child Protection professionals and to this court that she continues to this day to fully believe that C.M.M. has been sexually and physically abused while in the care of the father and the grandparents, and that she will continue to advance her claims and advocate for C.M.M.’s safety until he is removed from their care. I have described in detail how her efforts to advance these allegations have become increasingly frantic and concerning since January 2024. Having carefully weighed all of these considerations, it is in my view almost certain that she would continue to interrogate, coach and influence C.M.M. about the allegations or new claims as well as other issues regarding his time with his father, and to engage him in further efforts to obtain allies to her cause of upending his primary residence with the father. The mother’s psychologically abusive and coercively controlling conduct towards C.M.M. must stop, and unfortunately, I find that the only means of protecting C.M.M. at this time is to require that her parenting time remain fully supervised. I have considered the general principle that children should be granted as much time with each parent as is consistent with the child’s best interests. Unfortunately, C.M.M.’s best interests at this point call for a significant curtailment and close supervision of his time with the mother.
499I conclude that C.M.M.’s best interests require that the mother’s in-person parenting time be supervised by professionals, rather than friends or family of the mother, and that it occurs on-site at the supervised parenting time facility rather than in her home or the community. It is imperative for C.M.M.’s best interests that the conflict between the parties be kept to a minimum, and I conclude that the parties had significant disputes in the past about agreed-upon supervisors when the Society allowed family and friends to monitor the mother’s parenting time. Requiring that the visits occur at the supervised parenting site will avoid such disputes and ensure that there are no breaks in the mother’s parenting time due to problems regarding supervisor availability. Furthermore, given the seriousness of the concerns respecting the mother’s interactions with C.M.M., the visits need to be monitored by professionals with specialized training in how and when to intervene effectively for the child’s protection, and how to carefully document the visits. Another factor that I have considered is that less structured visits in the community or the mother’s home could open up the possibility for moments of unsupervised time, which would be contrary to C.M.M.’s best interests. The mother’s significant history of anger management difficulties and launching unsubstantiated complaints against professionals have also informed my decision regarding the location of her visits. Restricting the visits to the supervised parenting site will enable the supervisors to seek support from other colleagues if necessary to manage any heightened or inappropriate behaviour on her part quickly and effectively. It will also offer some level of protection to the supervisors against unwarranted complaints by the mother regarding their competence or interactions with her and C.M.M.
500I am including in my order terms aimed at ensuring that the mother does not intentionally or inadvertently run into C.M.M. on an unsupervised basis at locations where he may be present, so that it is perfectly clear that she is not to be in his presence outside of the parameters of the supervised parenting time facility. These terms will encompass any location where the mother knows or should have reasonable grounds to believe he may be present, including the father’s residence, any school that C.M.M. attends including St. Margaret Mary, the Winterberry Clinic, C.M.M.’s dentist office or any other location where he may be receiving assessment or treatment for any health related issues, the Play Clinic and any location where C.M.M. may be present for the purpose of engaging in extracurricular activities.
501I have carefully considered what would be required to satisfy the court that a return to unsupervised parenting time for the mother would be in C.M.M.’s best interests. The father acknowledges that C.M.M. loves his mother dearly, and he is very hopeful for C.M.M.’s sake that a return to generous and unsupervised parenting time for the mother will be possible. I agree that this would ultimately be in C.M.M.’s best interests, provided that the mother addresses the concerns that I have identified in these Reasons for Judgment. The recommendations made by Dr. Clinton and Ms. Hayes to the Society 5 years ago, in August 2020, provide helpful guidance in determining what needs to happen to achieve this objective. As I have discussed at length in these Reasons, there have been longstanding concerns that the mother is suffering from underlying mental health difficulties that have been negatively impacting her parenting and overall functioning, and that have contributed to her fixation on the allegations of abuse and neglect despite the many reassurances that she has received from professionals. Accordingly, I am ordering that the mother undergo a comprehensive updated psychiatric assessment, as well as a psychological assessment, both of which should occur over several appointments. These assessments will need to include consideration of whether the mother is suffering from any mental health conditions respecting which regular unsubstantiated allegations of child abuse is a symptom. The mother will be expected to comply with any recommendations that these assessors make to address any concerns that they identify, as this will be a key consideration in determining whether a return to unsupervised parenting time is in C.M.M.’s best interests. I am also ordering that the mother provide the assessors with a copy of these Reasons for Judgment, and that they certify that they have reviewed them as part of the assessment process. In addition, I am ordering that the mother execute any consents for the release of information from any collateral sources that the assessors consider may be necessary to carry out a comprehensive assessment, or to consult directly with any such collaterals. These requirements, coupled with the direction that the assessments occur over several appointments, are aimed at ensuring that the assessors gain a comprehensive picture of the mother’s mental health and overall functioning over the past 8 years, which is exceedingly difficult to obtain in one appointment and based solely on the mother’s medical records and self-reporting.
502I recognize that it may be difficult for the mother to obtain the assessments that I am ordering in a timely manner through publicly funded sources. For this reason, I am directing that the sum of $10,000.00 from the net proceeds of sale respecting the Upper Gage property be immediately released to her to provide her with funding to retain the assessors privately. If she fails to use these funds for this purpose, and there is extensive delay in obtaining the assessments through publicly funded sources, the court will be entitled to draw any inferences it deems fit in any subsequent court proceedings.
503I find that it is in C.M.M.’s best interests that the father continue to consult with the mother on significant issues regarding C.M.M.’s wellbeing and to take her views into consideration before making decisions. My order also includes terms relating to the parties’ communications with each other, to ensure that they are respectful and pertain only to C.M.M. I consider it necessary for C.M.M.’s best interests to include a term that the mother refrain absolutely from initiating any discussions with C.M.M. about abuse or neglect allegations involving the father or members of his family, or any other issues regarding his time with the father. The order will specify that if C.M.M. initiates any discussions about these issues, the mother shall simply listen but not engage in the discussion, but she shall have the right to report any concerns about C.M.M.’s safety or wellbeing to child protection authorities. These provisions are in my view absolutely necessary to safeguard C.M.M. from any further unsettling interrogations about the father and his family members. Furthermore, I am making an order that the mother refrain from discussing any historical allegations of abuse and neglect of C.M.M. that have been previously investigated by the police and the Society with any other professionals or other individuals, except for treatment professionals involved with her for the purpose of addressing her mental health needs.
504With respect to services for the family, I agree with the parties that it is in C.M.M.’s best interests to continue with play therapy through the Play Clinic. However, I am directing that the father as the sole decision-maker for C.M.M. inquire into whether C.M.M.’s therapist has special expertise in assisting children from de-programming after being influenced into believing that important people in their lives have abused them, and in particular in assisting them to adjust their perspectives and heal from this type of dynamic. If the father is not satisfied that the therapist has such specialized expertise, I am directing him to make all reasonable efforts to locate a qualified therapist and to arrange for supplementary counselling for C.M.M. as soon as possible. This is another key element to my order, as any progress in fostering a safe and healthy relationship between C.M.M. and his mother will depend on the quality of the counselling that he receives to address his current belief generated by the mother’s behaviour that he was sexually and physically abused by the father and the grandparents. Furthermore, it is critical that the mother’s parenting time with C.M.M. not be expanded to unsupervised time unless and until C.M.M. has made progress in gaining an accurate perspective about his past interactions with his father and grandparents.
505The father has asked for an order requiring the mother to participate in a parenting program to assist her in gaining insight into children’s emotional needs and develop her ability to be emotionally responsive. I am not satisfied that her participation in such a program would be helpful until she has undergone the assessments that I am ordering and has complied for a reasonable amount of time with all recommendations that the assessors make. The mother is involved in counselling through the Play Clinic as well, and I conclude that the most appropriate course of action is to require her to provide a copy of these Reasons for Judgment to her counsellor, so that they can have a complete understanding of the events and concerns that have brought the family to this point. I am also ordering that the mother share the results of the psychiatric and psychological assessments with the father, as well as with her family physician, her counsellor and C.M.M.’s play therapist to assist them in carrying out their treatment responsibilities towards her and C.M.M. I conclude that it is best left to the assessors, the mother’s family physician, her therapist and the Society if it remains involved to determine what types of services the mother should pursue to address the concerns that I have identified, once the assessments are completed.
506I am also directing that the father serve the Society with a copy of these Reasons for Judgment, as they will provide the agency with a full history of the concerns in this case for assistance in their current and future interventions, if any. Furthermore, I am ordering him to provide a copy of the Reasons for Judgment to C.M.M.’s play therapist, as it will be critical for them to have a full understanding of the background of this case so that they can tailor C.M.M.’s treatment needs appropriately.
507I am granting the father the right to obtain, renew and replace all important documents respecting C.M.M. without the mother’s consent, and he will be the guardian of those documents. I am also authorizing him to travel internationally with C.M.M. without the mother’s consent. These orders are in C.M.M.’s best interests having regard for the intense level of conflict between the parties and the mother’s obstructionist position on issues such as passport applications and travel outside of Canada in the past. The mother has been perfectly clear that she still does not support the father travelling outside of Canada with C.M.M. I have no concerns whatsoever about the father travelling internationally with C.M.M., and I have complete confidence that any travel plans that he makes with C.M.M. will be child focussed and will foster C.M.M.’s social and developmental progress.
508I have carefully considered and weighed the relevant factors in deciding whether permitting a review of this parenting order is appropriate, rather than requiring the mother to bring a Motion to Change Final Order and establish a material change in circumstances to vary the terms. I struggled with this question, since the mother has been given several opportunities to alter her behaviour, and she has had the benefit of two reinstatements of her unsupervised parenting time, yet her problematic behaviours worsened rather than improved. Furthermore, she has consistently denied that she has any mental health difficulties, despite the widely-held belief among professionals that she may be suffering underlying mental health difficulties which have contributed to the parenting problems in this case. However, I conclude that the factors weighing in support of a review in this case prevail. The right of review shall apply only to the terms regarding the mother’s parenting time. Alterations to the other parenting terms will only be permitted by way of a Motion to Change Final Order, with the need to establish a material change in circumstances as a threshold matter. The parenting time order that I am making represents a significant curtailment of the mother’s time with C.M.M., and while I conclude that this is necessary in C.M.M.’s best interests, this new parenting time arrangement will nonetheless be very difficult for both the mother and C.M.M. I conclude that this case took a serious wrong turn when the Society decided in 2021 to abandon its requirement that the mother undergo the assessments that I am now ordering. The genuine hope of this court and the father is that the assessments will provide much needed insight into the mother’s psychiatric and psychological functioning, as well as clear recommendations if necessary to address any concerns identified. The additional hope is that the mother will diligently follow any recommendations made so that her parenting time can be regularized and expanded again. Furthermore, the expectation is that C.M.M. will continue in play therapy and potentially be enrolled in additional counselling if necessary to address his misguided beliefs that he has been physically and sexually abused. There are clearly many unknowns at this point about how things will unfold in this case, including whether the mother will undergo the assessments, the conclusions resulting from any assessments that she undertakes, whether the mother will comply with any recommendations made, how C.M.M. will progress in therapy, how the mother will progress in her counselling, whether she will follow through with any program recommendations made by her therapist and how the mother’s visits with C.M.M. will go. All of these uncertainties support allowing a review of the parenting time terms. However, I conclude that this review should not be permitted until December 2026, which is 18 months from now. The rationale for this decision is that I find it will take at least this amount of time for the assessments to be completed, for the mother to follow the recommendations made, to allow for ongoing assessment over a reasonable period of time of whether she is making progress in addressing any mental health concerns identified, and for C.M.M. to make progress with his therapy, which is another key precondition for moving forward with his parenting time with the mother.
PART 8: THE PROPERTY ISSUES
I. POSITIONS OF THE PARTIES ON THE PROPERTY ISSUES
A. The Applicant’s Position
509With respect to the property issues, the father requests three heads of relief. First, he seeks an equalization payment from the mother. He produced a net family property statement, marked as Exhibit 106, which shows the mother owing him an equalization payment of $13,039.34. However, he indicated at trial that he was only seeking the sum of $4,593.25 on account of equalization. Second, he states that the mother received the sum of $13,035.69 from his share of the net proceeds from the sale of the matrimonial home, and he seeks reimbursement of this amount from her. He submits that the mother had placed an offer on her Upper Gage residence before the sale of the matrimonial home, and that her purchase of that residence was at risk of not closing because she could not access the funds that she required prior to the closing date. He claims that he agreed to transfer some of his share of the net sale proceeds to her so that she could have the necessary funds to close, and that he did so with the full expectation that this transfer of funds would be taken into consideration in the final calculations regarding the financial issues, including any support obligations that he had to the mother. His position is that the mother did not give any consideration for these funds, and that she holds the funds in trust for him based on the presumption of resulting trust. Alternatively, he argues that the transfer of these funds was in the nature of a loan, and that she must reimburse him the funds as a debt obligation. He submits that the onus is on the mother to prove that he intended the transfer of these funds to be a gift to her, and that she has not satisfied this onus.
510Finally, the father argues that his net contributions to the parties’ joint bank account from the date of separation until the closing of the sale of the matrimonial home on May 30, 2018 exceeded the mother’s net contributions by approximately $14,000.00, and that this should be equalized between the parties. He agrees to a sum of $5,000.00 from the mother to compensate him for his over-contribution to the account during that time period.
B. The Respondent’s Position
511The Respondent did not take issue with any of the values that the father included in his net family property statement. However, she sought an order that there be no equalization payment owing by her to the father. Her rationale for this position remained exceedingly unclear up until the conclusion of her Closing Submissions. However, from what I could gather, her position was based on her challenging financial situation and the hardship that an equalization payment would cause her. However, I will address the issue of an unequal division of net family property in my analysis, out of an abundance of caution.
512The mother does not consent to the father’s request that he be reimbursed $5,000.00 on account of his higher contributions to the joint bank account post-separation. She argues that she was experiencing financial hardship at the time, that she was entitled to spousal support which the father was not paying her, and that any excess contributions that he made were reasonable having regard for the differences in their respective financial situations at the time.
513With respect to the additional funds that she received from the father’s share of the net proceeds from the sale of the matrimonial home, the mother acknowledges that the father agreed to this money being transferred to her so that she could secure sufficient funds to close on her purchase of the Upper Gage property. Her position is that there was no intention on the part of the father that he be repaid those funds or that he would be credited for the amount transferred to her as part of the final settlement of the financial issues between them. Essentially, her argument was that this transfer of funds was a gift which she should not be required to pay back to the father. She relies on a document that the father signed on April 24, 2018 which she alleges was proof of his agreement to give her $62,000.00 of his share of the sale proceeds for the downpayment required for the Upper Gage Property. In her Closing Submissions, she tried to raise new arguments in support of her position on this issue which she had not pled or raised at any point during the trial. Specifically, she argued that the extra funds that she received from the sale proceeds were intended to reimburse her for expenses that she had incurred for repairs to the matrimonial home post-separation, and for her contribution of her inheritance funds from her mother to the parties’ joint expenses during the marriage. However, she did not adduce any evidence in support of these two arguments during her case.
II. PROPERTY ISSUE #1; EQUALIZATION OF NET FAMILY PROPERTIES
A. Legislative Provisions and General Principles Respecting Equalization of Net Family Properties
514The claims respecting equalization of net family property are governed by the Family Law Act, R.S.O. 1990, c. F-3 as amended. Section 5(1) of the Act establishes the right of a spouse to claim an equalization of the spouses’ respective net family properties as follows:
Equalization of net family properties
Divorce, etc.
5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).
515Section 7(1) of the Family Law Act provides that the court may on application determine any matter respecting the spouses’ entitlement under section 5. In order to calculate any equalization payment owing, the court must first determine each party’s “net family property.” This phrase and the term “property” are defined in section 4(1) of the Family Law Act as follows:
4(1) “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
a) the spouse’s debts and other liabilities, and
b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage
“property” means any interest, present or future, vested or contingent, in real or personal property and includes,
a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,
b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and
c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date
516The equalization framework established by the Family Law Act dictates that questions of title to property be determined before the court undertakes the equalization calculation. Once issues of title are resolved, the determination of a party’s net family property starts with calculating the value of their property, debts and liabilities as of the “valuation date,” which section 4(1) of the Act defines as follows:
4(1) “valuation date” means the earliest of the following dates:
The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
The date a divorce is granted.
The date the marriage is declared a nullity.
The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
The date before the date on which one of the spouses dies leaving the other spouse surviving. R.S.O. 1990, c. F.3, s. 4 (1); 2006, c. 19, Sched. C, s. 1 (2); 2009, c. 11, s. 22 (1-4); 2009, c. 33, Sched. 2, s. 34 (1).
517Section 4(2) of the Family Law Act provides that certain types of property that a spouse owns on the valuation date are excluded from the spouse’s net family property:
Excluded property
4(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:
Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.
Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).
518Section 4(3) of the Family Law Act stipulates that the onus of proving a deduction under the definition of “net family property” or an exclusion under section 4(2) is on the person claiming it. Section 4(5) provides that a spouse’s net family cannot be less than zero.
519Section 9(1) of the Family Law Act sets out the powers of the court in an application brought pursuant to section 7 for equalization of net family properties:
Powers of court
9 (1) In an application under section 7, the court may order,
a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;
b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;
c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and
d) that, if appropriate to satisfy an obligation imposed by the order,
i. property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
ii. any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1); 2009, c. 11, s. 25.
520The purpose of the equalization of net family property scheme in the Family Law Act is articulated in section 5(7):
Purpose
5(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).
B. Legislative Provisions and General Principles Regarding Unequal Division of Net Family Properties
521Section 5(7) specifies that the right to equalization of net family properties is subject only to the equitable considerations set out in section 5(6) of the Act. Section 5(6) permits the court to vary the amount of any equalization payment that would be owed pursuant to section 5(1) of the Act if the court is of the opinion that equalizing the spouses’ net family properties would be unconscionable having regard to the circumstances enumerated in the section:
Variation of share
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
d) a spouse’s intentional or reckless depletion of his or her net family property;
e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
g) a written agreement between the spouses that is not a domestic contract; or
h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
522The Ontario Court of Appeal described the steps that must be undertaken when a request is made for a variation of the equalization payment pursuant to section 5(6) of the Family Law Act in Serra v. Serra, 2009 ONCA 105 (C.A.). It held that the court must first ascertain the parties' respective net family properties applying the principles set out in section 4 of the Act, and it must then determine what the equalization payment would be pursuant to section 5(1) of the Act. The court must then decide whether ordering an equalization of the net family properties would be "unconscionable" having regard for the factors outlined in section 5(6) (at para. 37). The court has also held that the onus is on the party seeking a variation of the equalization payment under section 5(6) to establish that a variation is warranted. In order to succeed under section 5(6), the party seeking a variation must bring their case within one or more of the subparagraphs of section 5(6) (Serra; Levan v. Levan, 2008 ONCA 388, 2008 CarswellOnt 2738 (C.A.)). Section 5(7) does not provide any independent grounds for making a finding of unconscionability pursuant to section 5(6), but the court should be guided by the purpose set out in that section in assessing the criteria articulated in section 5(6) (Brett v. Brett, 1999 CanLII 3711 (ON CA), [1999] O.J. No. 1384 (C.A.), at paras. 30-34; Booth v. Bilek, 2021 ONCA 123 (C.A.), at para. 12). Once it is established that the case engages one or more of the factors set out in those subparagraphs, the court must then determine whether the implications of those factors considered in light of the overall factual context of the case are such that an equalization of the net family properties would be unconscionable (Serra). The factors outlined in section 5(6) cannot be considered in isolation; rather, the court must consider all relevant circumstances (Roseneck v. Gowling, 2002 CanLII 45128 (ON CA), 2002 CarswellOnt 4396 (C.A.); additional reasons at 2003 CarswellOnt 159 (C.A.); further additional reasons at 2003 CarswellOnt 649 (C.A.); Medeiros v. Medeiros, 2009 ONCA 734 (C.A.), at para. 59; Serra).
523The threshold for establishing "unconscionability" under section 5(6) is exceptionally high (Serra; Ward v. Ward, 2012 ONCA 462 (C.A.), at para. 27; Symmons v. Symmons, 2012 ONCA 747 (C.A.), at para. 36; Rosenberg v. Gold, 2016 ONCA 565 (C.A.), at para. 22). The reason for this is that the property sharing scheme of the Family Law Act is intended to promote predictability, discourage litigation, and minimize judicial discretion to the extent possible (Ward, at para. 25; Serra, at paras. 57-58). The test is not met by showing that equalization would lead to hardship to one spouse (Arndt v. Arndt, 1991 CarswellOnt 354 (Gen. Div.), aff’d 1993 CarswellOnt 351 (C.A.)), or by the fact that an equalization payment would leave the parties with a different net worth (L.(J.W.) v. M. (C.C.), 2008 CarswellNS 358 (N.S.S.C.), additional reasons at 2008 CarswellNS 495 (N.S.S.C.), additional reasons 2008 CarswellNS 727 (N.S.S.C.)). Nor is it met by simply demonstrating that an equalization of net family properties would be unfair, harsh, inequitable or unjust (Serra, at para. 47; Ward, at para. 25; Rosenberg, at para. 22.). To satisfy the test of unconscionability, the circumstances of the case must be such that equalization would be "repugnant to anyone's sense of justice," (Levan, at para. 258), or that it would "shock the conscience of the court” (Serra, at para. 47; Rosenberg, at para. 22; Symmons, at para. 36; Fielding v. Fielding, 2015 ONCA 901 (C.A.), at para. 38). Misconduct on the part of one of the spouses is not necessarily a precondition to the application of section 5(6). While some of the factors set out in section 5(6) involve fault-based conduct, others do not (Serra, at paras. 57-38; Ward, at para. 27). Although unconscionable conduct is an appropriate consideration in carrying out the analysis required under section 5(6), the true target of the section is a result that is unconscionable to one of the parties (Serra, at para. 58; Ward, at para. 27). Once the unconscionability threshold is satisfied and the rare resort to judicial discretion is engaged, section 5(6) does not require an award that is just shy of unconscionable as a remedy. Rather, the court should exercise its discretion in the usual manner, by doing what is just, fair and equitable in the particular circumstances of the case (Serra, at paras. 70-71).
C. Analysis of the Equalization Claim
524As a starting point for the analysis of the net family property claim, I have considered the values set out in the father’s net family property marked as Exhibit 106, and all of the evidenced adduced at trial respecting the values of the parties’ respective debts and liabilities on the valuation date and the date of marriage. I find that the values set out in the father’s net family property statement are fully supported by the evidence. Neither party argued that there were any exclusions from their net family property, and the evidence did not raise any issues regarding possible exclusions. Based on the net family property statement, I conclude that the father would be entitled to an equalization payment from the mother in the amount of $13,039.34. However, he has agreed to reduce that amount to $4,593.25. Counsel for the father Ms. Williams submitted that she arrived at this figure by backing out the parties’ respective debts that were paid out from the matrimonial home proceeds, as she felt that there would otherwise be concern about double counting of debts when determining any overpayment that the mother received from the proceeds (See Exhibit 186). I indicated that I questioned this point, since equalization provides a picture respecting entitlement to property-related relief as of the date of valuation, and the parties in the normal course would subsequently be responsible for paying off any sole debts or their share of joint debts through their own means even if those debts formed part of the equalization process. However, the father was content to request only the reduced sum of $4,593.25. This concession yields a net benefit to the mother of $8,446.09.
525I have considered the various grounds set out in section 5(6) that are relevant to determining whether an equalization of the parties’ net family properties would be unconscionable. I conclude that there is no evidence to support any of the factors set out in that section. With respect to section 5(6)(g), I am not satisfied that there was a written agreement between the spouses pertaining to the equalization issue. The document that the father signed on April 24, 2018 did not make any reference to equalization of the parties’ net family properties, and in any event, the sum of $62,000.00 referenced in that document does not correspond at all to the amount that the father transferred to the mother from his share of the sale proceeds to ensure that her house deal closed. I emphasize that the mother raised issues and arguments about this document for the first time when her evidence began, after the close of the father’s case. I advised her at that time that if she wished to advance any arguments regarding unequal division of net family property or a gift from the father based on the document and the basis for the sum of $62,000.00 that was included in it, she should consider seeking leave to call additional witnesses, including potentially the parties’ real estate counsel at the time, Mr. Mark Dudzic, and their respective Family Law lawyers at the time. She did not seek leave to do so. In her Closing Submissions, she suggested that she wished to submit additional documentary evidence from Mr. Dudzic that could be relevant to the property issues, but that she was having difficulty obtaining the documents in time for the conclusion of trial. I advised her that absent consent from the father, it was far too late at that point to request that additional documents but admitted as evidence.
526I accept that the period following the parties’ separation was a financially challenging one. This finding applies equally to both of the parties. However, the law is clear that financial hardship alone is insufficient to justify an unequal division of the parties’ net family properties, and that the bar for establishing unconscionability is very high. The test has not been met in this case. However, I find that the father’s concession on the amount of the equalization payment represents a 65% reduction from what he would otherwise be entitled to, and that this concession goes a long way toward addressing the mother’s concerns respecting financial hardship.
III. PROPERTY ISSUE #2: WAS THE FATHER’S TRANSFER OF FUNDS FROM HIS SHARE OF THE MATRIMONIAL HOME SALE PROCEEDS A GIFT TO THE MOTHER?
A. Legal Principles Respecting Resulting Trusts and Gifts
527I turn to the issue of whether the father’s transfer to the mother of a portion of his share from the matrimonial home sale proceeds was a gift, as alleged by the mother. As I have indicated, the father argues that the mother must reimburse him the amount of the transfer based on resulting trust principles, or on the ground that the funds constituted a loan to her.
528The starting points for the analysis of this issue are the common law and section 14 of the Family Law Act. Under the common law, an advancement is a gift during the transferor’s lifetime to a transferee who, by marriage or parent-child relationship, is dependent on the transferor (Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 (S.C.C.), at para. 21). The common law established a presumption of advancement as between husband and wife (Pecore, at para. 8). However, section 14 of the Family Law Act now addresses the presumptions that apply in questions of ownership of property between spouses. It stipulates as follows:
Presumptions
14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and
(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). R.S.O. 1990, c. F.3, s. 14; 2005, c. 5, s. 27 (3).
529The effect of section 14 is to establish a presumption of resulting trust in property matters between spouses, except in the situations referred to in subsections (a) and (b). The presumption of resulting trust applies in situations such as the one in question between the parties, where a transferor makes a transfer to the transferee without any consideration being given by the transferee. In these situations, the law generally presumes that the transferor intended to create a trust, rather than to make a gift. In other words, the transferee is presumed to hold the property in trust for the transferor. This presumption is based on the principle that equity presumes bargains and not gifts. If the transferee claims that the transfer was a gift, the onus lies on them to prove on a balance of probabilities that the transferor intended to make a gift. (Pecore, at para. 24; Kerr v. Baranow, 2011 SCC 10 (S.C.C.), at para. 19; MacIntyre v. Winter, 2021 ONCA 516 (C.A.), at para. 25). Meeting this standard of proof requires clear, convincing and cogent evidence (MacIntyre, at para. 25; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (S.C.C.), at para. 46). In addressing whether the intention was to make a gift, the issue to determine is the actual intention of the transferor at the time of the transfer, and not that of both parties (Kerr, at para. 18; MacIntyre, at para. 24; Barber v. Magee, 2016 ONSC 7911 (S.C.J.), at para. 77; aff’d 2017 ONCA 701 (C.A.), at para. 3).
530The caselaw has established that the principles set out above apply equally in cases where the transferor claims that a gratuitous advance was a loan, and the transferee argues that it was a gift, since once again, equity presumes bargains and not gifts. Whether the transferor is relying on resulting trust principles or arguing that the advance was a loan, the onus will be on the transferee to prove that a gift was intended. In either case, the issue is whether the transferor “intended to retain a hold on the amounts advanced, regardless of whether that be by way of a resulting trust or a debt obligation” (Barber, at para. 55).
531The nature of the evidence required to rebut the presumption of a resulting trust or loan in situations involving gratuitous transfers will depend on the facts of every case. The analysis must begin with a consideration of the evidence respecting the intention of the transferor that existed contemporaneous with or around the time of the transfer. However, evidence of intention that arises later on may be relevant, provided that it pertains to the transferor’s intention at the time of the transfer. In considering evidence that develops post-transfer, the court must be cautious in assessing the reliability of the evidence and the weight that should be accorded to it, to ensure that it is not self-serving or that it does not tend to reflect a change in the transferor’s intention since the transfer was carried out (Pecore, at paras. 56-59; Chao v. Chao, 2017 ONCA 701 (C.A.), at para. 56). In the Family Law context, a lack of contemporaneous documentation indicative of a loan is a relevant consideration, but the absence of such loan documentation is not necessarily sufficient to conclude that the transferor intended to make a gift. The reason for this is that spouses often fail to take a commercial approach to their domestic arrangements (MacIntyre, at para. 38).
532In order to establish that a transferor intended a gift rather than a loan or a resulting trust, the transferee must satisfy the following three conditions:
That the donor intended to make a gift, without consideration or expectation of remuneration;
An acceptance of the gift by the donee; and
A sufficient act of delivery or transfer of the property to complete the transaction.
(McNamee v. McNamee, 2011 ONCA 533 (C.A.), at para. 24; MacIntyre, at para. 40)
B. Analysis of the Mother’s Gift Argument
533In addressing the mother’s gift argument, I start with a determination of how much money each party should have derived from the net proceeds of sale respecting the matrimonial home. At the time of closing, the parties were still in the midst of Family Law mediation and were actively attempting to resolve all of the financial and parenting issues between them. They instructed their real estate counsel Mr. Dudzic to release sums from the total gross proceeds to various entities to whom they both owed money. Accordingly, Mr. Dudzic did not do a full accounting at that time as to how much each party should have received, after deducting their respective debts from their half share.
534The total net proceeds from the sale of the home were $575,332.36, and therefore each party’s share totalled $172,110.74. I have deducted each party’s debts that were paid off at the time of closing from their half share to determine the amount that they should have received. I have determined which debts should be assigned to which party by reference to the net family property statement filed by the father. This yielded the following conclusions respecting the amounts that each party should have received from the total net proceeds of sale:
The Father
Half of total net proceeds: $287,666.18
Mortgage (joint debt) ($172,110.74)
Meridian Credit Union loan (sole) ($20,098.56)
Hyundai car loan from Scotia Bank
(for mother’s car, joint debt) ($18,019.26)
Honda car loan (his car, sole debt) ($5,424.90)
Real estate commission (joint debt) ($8,221.00)
Property taxes (joint debt) ($180.53)
Legal fees and disbursements (joint debt) ($575.51)
Father’s Proper Net Share of Proceeds: $63,035.68
The Mother
Half of total net proceeds: $287,666.18
Mortgage (joint debt) ($172,110.74)
Hyundai car loan from Scotia Bank
(for mother’s car, joint debt) ($18,019.26)
TD Bank Line of credit (sole debt) ($11,000.00)
Real estate commission (joint debt) ($8,221.00)
Property taxes (joint debt) ($180.53)
Legal fees and disbursements (joint debt) ($575.51)
Mother’s Proper Net Share of Proceeds: $77,559.14
535The father only received $50,000.00 from the proceeds of sale, and the mother received $90,594.82. Accordingly, the father authorized a transfer of $13,035.68 from his net half share of the proceeds to the mother.
536Applying the legal principles set out above to the facts of this case, the onus is on the mother to establish on a balance of probabilities that the father intended the $13,035.68 transfer to her to be a gift, and not a loan or a trust arrangement. She has failed to meet this onus. Although she purported to rely on the document that the father signed on April 24, 2018 authorizing the release of $62,000.00 of his share of the proceeds to her for the downpayment on her Upper Gage property, she acknowledged that “everything around this document and the sale was a little bit of a mystery,” since it had happened so long ago. She also acknowledged that she did not actually receive $62,000.00 from the father’s net share of the proceeds, and she specifically recalled that at some point during the process, the father stated that he needed to receive at least $50,000.00 from the proceeds right away. The mother also relies on the fact that there was nothing in writing stating that she had to repay the money to the father. However, as the court held in MacIntyre, this is not a determinative factor in these sorts of situations in the Family Law context. The father’s evidence was that the parties were still involved in Family Law mediation and attempting to work out the final numbers respecting the financial issues between them, but the mother had not accepted offers that his counsel had sent to her by the time of the closing. The mother had placed an offer on the Upper Gage property, and she was unable to secure all of the funds on her own for the downpayment on that home by the time of the closing. The father testified that he wanted to ensure that the mother and C.M.M. had a safe and nice home to go to following the separation, and that he therefore transferred the funds from his net share of the proceeds to her to enable her to close on the home. He claims that he did not intend to make a gift, but rather that he would be given credit for this transfer in the final resolution of the Family Law issues, including the issues of child and spousal support. He was later shocked to learn that the mother was not agreeing to giving him any such credit.
537I found the father to be highly credible and reliable on these issues. Furthermore, the text messages between the parties, which the mother requested be admitted as evidence near the end of the trial, fully support his version of events. They reflect that the parties continued to be involved in mediation and that no agreement on the financial issues had been reached. On April 27, 2018, the father texted the mother with a sense of urgency stating that they had to finalize their respective debt amounts and his support obligations before the closings on the matrimonial home and her new property so that things would go smoothly with the house closings. It was clear from this message that in his mind, the distribution of the sale proceeds was supposed to take into account support issues. The mother simply dismissed the father at that time and told him to figure it out himself with the mediator. On May 6, 2018, the father again texted the mother urging her to contact the mediator to sort out an agreement on the financial issues before the house closings. On May 19, 2018, the mother texted the father advising him that she did not agree with the terms of a proposed separation agreement that his counsel had sent her. She did not reference the details of the agreement, but she simply expressed her view that it was unfair. The father responded by telling her that she needed to call her Family Law lawyer right away because they needed an agreement in order for her to purchase the Upper Gage residence. It was very clear from the text messages that spousal support was still “on the table” and being discussed as part of the settlement discussions, although no specific details are discussed in the messages. By May 28, 2018, two days prior to the closing, the father again urged the mother to consult with her lawyer and try to finalize an agreement with him before the closings, and she responded dismissively, stating “I am busy today. Go cry to yo mama.” On May 28, 2018, the mother texted the father again and stated that the closing on the matrimonial home would have to be delayed for two weeks, since his lawyer had not yet responded to her lawyer about ongoing discussions regarding the financial issues. The father told her that if they had not reached agreement on those issues by the time of the house closings, he would ensure that she received enough from the proceeds to close on the townhouse, on the condition that he immediately receive at least $50,000.00. However, there were ongoing discussions in the text messages following this one in which the parties continued to bicker about how the financial issues would be sorted out. None of this evidence supports the mother’s argument that the father intended this transfer of funds to be a gift. Rather, it supports the father’s version of events that his intention was for the transfer to be considered as part of the overall resolution of the financial issues, and that he was simply attempting to be supportive and helpful to the mother to ensure that her house deal closed.
538As I have indicated, the mother claimed that part of the explanation for her receipt of additional funds from the sale of the home was to reimburse her for several expenses that she incurred to maintain the home while she continued to live there following the separation. However, she did not question the father at all on this issue during his case and did not adduce any receipts or other documentary proof in support of these alleged expenses.
539I highlight again that I specifically advised the mother early on in her case that based on the arguments that she was making regarding the property issues, she should consider seeking leave to call the real estate lawyer, Mr. Dudzic, and potentially the parties’ Family Law lawyers. These individuals may have been able to shed more light on the intention of the father when the funds from his share of the net proceeds of sale from the home were transferred to the mother on May 31, 2018. The mother did not seek leave to call any additional witnesses to address these issues.
540By way of wrap-up on this issue, I find that the mother did not meet the onus of proving that the father intended to gift her a portion of his share of the net proceeds from the sale of the matrimonial home. Rather, I conclude that he transferred $13,025.68 of his share to her at the last minute and under great pressure as a favour to her because he wanted her house deal to close, and that he fully expected that he would be credited this amount as part of the final settlement of all financial issues. Accordingly, I am ordering that the mother reimburse the father the sum of $13,025.68.
IV. PROPERTY ISSUE #3: POST-SEPARATION ADJUSTMENTS RELATING TO CONTRIBUTIONS TO THE JOINT ACCOUNT
541I turn finally to the father’s argument regarding equalization of the parties’ net contributions to their joint bank account from the separation date of January 8, 2018 until the sale of the matrimonial home closed on May 31, 2018. As I have indicated, he seeks $5,000.00 from the mother on account of his net over-contribution to that account.
542As I have previously stated, the mother began to deposit her pay into her sole account in late September 2017. She paid for some of her daily living expenses from that account, but I find that she also used the joint account for many of those daily expenses following the separation. The father managed the joint account and paid for the parties’ joint debt obligations as well as some of the mother’s sole debt obligations from the account. He also continued to use the joint account for his daily living expenses. Determining whether any post-separation adjustments are appropriate having regard for this state of affairs is a significant challenge, to put it mildly.
543I have decided that the most reasonable approach to the issue of post-separation adjustments based on the unequal contributions to and withdrawals from the joint account is to first determine the mother’s total deposits and transfers of funds to the joint account from January 8, 2018 until May 31, 2018, which was $9,170.42. I have then deducted from this sum the total amount that she withdrew from the account during this period for daily living expenses such as food, clothing, gas and toiletries. This results in a net contribution from her to the account of $8,341.06. I have then determined her share of the total other expenses that the father paid from the joint account during this period to ascertain the total amount that she should have contributed to cover those expenses. This calculation includes:
Her half of the mortgage;
Her half of the regular monthly bank fees incurred on the joint account;
Her half share of the life insurance premiums for C.M.M. and the parties;
Her car insurance payments;
Her half share of the house insurance;
Her half share of the Hyundai car loan payments for her vehicle;
Her cell phone payments;
The total cost of internet, security and utilities for the home as she was the only one living there;
Her credit card payments;
Her share of the all-in-one joint line of credit and loan insurance premiums that were part of the mortgage;
Her line of credit payments;
Her half share of the property taxes; and
I have also included in this calculation the total amount of overdraft and NSF fees incurred during this time period, because I find that the father repeatedly asked her to deposit her pay to the account on time to avoid these fees and she did not do so.
544The total expenses that should be attributed to her during this period is $11,688.09, calculated as follows:
Overdraft and NSF bank charges $2,928.50
Her half share of bank fees $74.88
Her share of life insurance for C.M.M. $90.00
Her share of life insurance for the parties $164.25
Her car insurance $500.00
Her half share of Hyundai car loan payments $1,306.80
Her share of house insurance $500.00
Her half of the mortgage payments $2,330.85
Her cell phone expenses $325.00
Internet and security expenses $375.00
Utilities for the matrimonial home $724.68
Her credit card payments $173.00
Her half all-in-one line of credit and loan insurance $736.35
Her line of credit payments $556.18
Her half of property taxes $902.60
Total: $11,688.09
545Based on these calculations, I find that her shortfall in contributions to the joint account from January 8, 2018 until May 31, 2018 was approximately $3,347.03. I have decided to consider this sum as part of the spousal support analysis, to be treated as a credit to the father.
PART 9: THE CHILD SUPPORT ISSUES
I. SECTION 7 EXPENSES
546As I have indicated in my review of the legal proceedings, the parties resolved the issue of contribution to section 7 expenses on December 31, 2024. The mother agreed to pay the father the total sum of $1,882.96 towards her share of retroactive section 7 expenses, to be paid at the rate of $100.00 per month. It is clear from the mother’s draft order that this related to daycare expenses for C.M.M. from 2019 onward, that the total amount that she should have paid to the father was $18,829.60 and that the agreed upon amount was 10% of what she actually owed him. While the parties settled the issue of contribution to section 7 expenses, the amount that each of them contributed from year to year is also relevant to the spousal support analysis, and the mother’s contribution to 10% of the expenses will be accounted for in that context. The father incurred child-care expenses in 2019, 2020, 2022, 2023 and 2024. I have prorated the mother’s total contribution of $1,882.96 over those 5 years and attributed her a child-care expense of $377.00 in each year. I have also reduced the father’s contribution to child-care expenses by that amount for each those years for the purposes of the retroactive spousal support calculations.
II. POSITIONS OF THE PARTIES ON THE REMAINING CHILD SUPPORT ISSUES
A. The Father’s Position
547The father accepts that he was obliged to pay the mother child support for C.M.M. from the date of separation until March 31, 2019, as the mother had primary care of C.M.M. until that time. However, he submits that the appropriate commencement date is February 1, 2018 rather than January 8, 2018.
548The father acknowledges that he did not pay the mother child support for the period from February 1, 2018 to May 31, 2018. He requests that the court consider the payments that he made on the mother’s behalf during that time frame and accord him any appropriate credits towards his child support obligation. Alternatively, he agrees to pay the full Table amount of support based on his 2018 income for those months.
549The father agrees to pay the mother the full Table amount of child support from June 1, 2018 until March 31, 2019 based on his annual income for each of those years. However, he seeks to be credited the sum of $771.00 per month during that time frame on account of voluntary child support payments that he made to the mother. I note that he has consented to paying the full Table amount for this entire period, despite my finding that he had roughly equal parenting time with C.M.M. as of the spring of 2018.
550C.M.M. has resided primarily with the father since May 3, 2019. The father seeks the full Table amount of support from the mother based on her income commencing May 1, 2019. He states that the mother has not voluntarily paid any child support since that time but acknowledges that she should be credited the sum of $622.00, as the Family Responsibility Office has enforced that amount pursuant to the temporary child support order dated March 22, 2024.
551The parties both withdrew funds from their RRSPs since 2019, and the father also received a partial payout of his Rogers pension in 2020, when he was terminated from his employment. The father submits that a consistent approach should be taken as between the parties as to how those funds are treated for the purposes of determining their incomes. His suggestion is that they all be included for the sake of simplicity.
552With respect to the mother’s hardship claim, the father argues that there is no basis to either reduce her child support obligations or completely absolve her from them based on undue hardship pursuant to section 10 of the Guidelines. He submits that the mother has not satisfied the very high standard for establishing undue hardship pursuant to that provision. His position is that her financial challenges have been primarily attributable to her unreasonable decision-making around her finances and her excessive spending patterns over the years, and that he and C.M.M. should not bear the brunt of her poor financial choices.
B. The Mother’s Position
553The mother seeks an order requiring the father to pay her the Table amount of child support for the period from January 2018 until March 31, 2019. She acknowledges that he paid her $771.00 per month from June 1, 2018 until March 31, 2019, and that he should be credited for those payments.
554The mother acknowledges that C.M.M. has been residing primarily with the father since May 2019, but she opposes paying any Table amount of child support to him. She argued that the principles respecting the appropriateness of retroactive child support weigh against an order for retroactive support in favour of the father. Her position is also based on her claim that she has been experiencing significant financial challenges since the separation, and that requiring her to pay the father child support would cause her undue hardship. In this regard, she referenced the allegations of emotional abuse by the father during their relationship, and claimed that she lost everything from a financial standpoint because of him and his actions. She testified that she had to secure 3 mortgages against the Upper Gage property to survive, and that she eventually had to sell the home mid-trial in order to stay afloat financially. The mother highlighted that she has been buying separate clothing, footwear and sports gear for C.M.M. to wear and use during her parenting time, and that this should be considered in addressing the father’s claim for child support. Furthermore, she argued that the father does not need child support, since he has been living with the grandparents with a “lower overhead” than her, and he and C.M.M. have been well supported by the grandparents. Finally, although the mother hotly contested the notion that she may be suffering from any mental health disability in the context of the parenting issues, she then relied on potential concerns respecting her mental health in support of her financial hardship claim, noting that she had been off work for medical reasons on several occasions.
555With respect to the parties’ incomes for the child support analysis, the mother takes the position that the father should be imputed an income of $81,000.00 for the years 2021 onward, based on deliberate underemployment. She argues that he was able to earn this income for many years in his position at Rogers in 2020, and that he should have been able to find employment with a similar salary after he was let go from that position. In particular, she is of the view that he could have found employment in his field of expertise in a teaching role or at another broadcasting station, either of which would have offered a higher income than he has had since 2020.
556With respect to her own income for the purposes of the support calculations, the mother highlighted that her income has fluctuated from year to year because of the nature of her work and some medical leaves that she has taken. She also noted that she cashed in RRSPs from 2020 to 2023 which were included in her line 150 income, and she submitted that those amounts should not be included in the income calculation. She raised particular concern about her 2023 income being unusually high due to a large RRSP withdrawal that year. She argued that the RRSP withdrawals should not be included in her income for child support purposes, since their inclusion does not result in a true reflection of her income earning capacity. Her position is that her income for support purposes should be based on a rough average of her income over the past several years, which she claimed is $35,495.40.
III. RELEVANT LEGAL PRINCIPLES RESPECTING CHILD SUPPORT
A. Legislative Provisions and General Principles
557Since this proceeding included a claim for divorce, the child support issues are governed by the Divorce Act, and the Guidelines. The starting point for the child support analysis under the Divorce Act is section 15.1, which stipulates as follows:
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
558Based on section 15.1(1) of the Divorce Act, entitlement to child support under the Act is dependent on the child in question being a “child of the marriage” within the meaning of section 15.1. The definition of “child of the marriage” is set out in section 2(1) of the Act, which provides as follows:
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
a) is under the age of majority and who has not withdrawn from their charge, or
b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
559Section 2(1) of the Divorce Act defines the phrase “age of majority” as follows:
“age of majority,” in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age.
560Once the preliminary issue of entitlement to child support is addressed, it is necessary to determine the appropriate approach to calculating child support and the quantum of support payable, if any. Sections 15.1(3), (5) and (7) of the Divorce Act and the provisions of the Guidelines establish the framework for calculating and quantifying child support. The objectives of this framework are to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient (Guidelines, s. 1; Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250 (S.C.C.), at paras. 39-40; D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (S.C.C.) (“D.B.S.”); Michel, at para. 49). Section 15.1(3) of the Divorce Act provides that in making a child support order, the court is presumptively required to do so in accordance with the Guidelines. This presumption is subject to the court’s discretion to award a different amount pursuant to sections 15.1(5) and (7) in cases where special provisions have been made for the direct or indirect benefit of the child, or the parties have consented to an order that includes reasonable terms respecting the support of the child.
561Section 26.1(2) of the Divorce Act specifies that the child support provisions of the Act and the Guidelines are based on the bedrock principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. Section 1 of the Guidelines sets out the fundamental objectives of the Guidelines as follows:
Objectives
1 The objectives of these Guidelines are
a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
d) to ensure consistent treatment of spouses and children who are in similar circumstances.
562In addition to these fundamental objectives of child support, the caselaw has established several additional foundational principles that must guide the courts in their analysis of child support issues. These can be summarized as follows:
Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship (D.B.S., at para. 38; Michel, at paras. 10, 41, 45, 77; Colucci, at para. 36).
Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38; Michel at para. 10).
The purpose and promise of child support are to protect the financial entitlements due to children by their parents (Michel, at para. 38). Having regard for this purpose, the law of child support calls for a “fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242 (S.C.C.), at para. 23, cited in Michel, at paras. 21, 40 and 54). These objects include serving the best interests of the child. Accordingly, the best interests of the child should be at the heart of any interpretation of child support legislation and principles (Michel, at paras. 40, 102-103).
The law of child support should also be interpreted in a contextual and purposive manner that takes into account the policies and values of contemporary Canadian society (Michel, at paras, 71-72).
The amount of child support owed will vary based upon the income of the payor parent, and it is not confined to furnishing the “necessities of life” (D.B.S., at paras. 38-45; Michel, at para. 10; Colucci, at para. 28).
It is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the court may grant relief to correct the failure (D.B.S.; Michel, at para. 47).
Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated (D.B.S., at para. 4; Michel, at para. 80; Colucci, at para. 4).
B. General Principles Respecting the Quantification of Child Support
563The starting point for determining the appropriate quantum of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:
Presumptive rule
- (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
b) the amount, if any, determined under section 7.
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
564Section 3(1) refers to section 7, which deals with special and extraordinary expenses.
C. Reduction of the Table amount Based on Undue Hardship: Section 10 of the Guidelines
565Sections 4, 5, 8, 9 and 10 of the Guidelines address a number of circumstances in which the presumptive rules delineated in section 3 of the Guidelines may not apply and outline the applicable principles regarding the calculation of child support in those situations. Section 9 applies to shared parenting arrangements, but I have already found that there was not a shared parenting arrangement regime in effect in this case. Section 10 is relevant in this case, as it relates to circumstances where a party seeks a lower amount of child support than would otherwise be payable under the Guidelines because of undue hardship. As noted above, the mother seeks to avoid paying child support to the father on that basis of undue hardship. Section 10 provides as follows:
Undue hardship
10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
b) the spouse has unusually high expenses in relation to exercising parenting time with a child;
c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
i. under the age of majority, or
ii. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
Reasons
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
566In order to succeed in a claim to reduce child support on the basis of undue hardship pursuant to section 10 of the Guidelines, the claimant must establish that the hardship is quantitatively significant in nature, and not merely awkward or inconvenient (Hanmore v. Hanmore, 2007 ABCA 57 (C.A.); leave to appeal refused 2000 CarswellAlta 1274 (S.C.C.)).
567Section 10(3) of the Guidelines underscores that the assessment of undue hardship cannot be undertaken solely from the lens of the payor spouse. Rather, the undue hardship assessment is a holistic and relative one that must be placed in its overall factual matrix. In particular, the extent of that hardship can only be accurately assessed and weighed against the hardship that would be caused to the child and the recipient parent if the court permitted a reduction of child support. From an evidentiary standpoint, the payor must establish clear evidence from which a reasonable finding of hardship can be made. Bald assertions of hardship will not suffice. If the payor relies on hardship to reduce their child support obligation, they must provide a complete picture of their financial situation, including their income, assets and debts.
D. The Law Respecting Retroactive Child Support
1. General Principles and Framework for the Analysis
568As I have stated, the mother seeks retroactive child support from the father, but opposes his claim for retroactive support. A review of the law respecting retroactive child support is therefore necessary.
569The Supreme Court of Canada set out a comprehensive framework for the analysis of retroactive child support claims in D.B.S., both in the context of original applications for support and in proceedings to retroactively increase child support. The court revised this framework in the child support context in the cases of Michel and Colucci, but the analysis set out in D.B.S. remains relevant in both the child support and spousal support contexts.
570In Colucci, the Supreme Court of Canada held that the following analytical framework applies with respect to claims for retroactive child support, whether in the context of an original application or a variation proceeding:
A presumption arises in favour of allowing a retroactive claim to be advanced starting from the date when the recipient gave the payor “effective notice” of their claim for relief, up to a maximum of three years prior to the date when the recipient gave the payor “formal notice” of the claim to vary. In claims for retroactive child support, effective notice requires only evidence that the recipient broached the subject of child support with the payor, or if child support is already being paid, that the current amount of child support should be discussed and re-negotiated. The court considered this approach advisable because the appropriate Table amount is based on the payor’s income, the payor has the pertinent information regarding their income and overall financial circumstances, and the child support recipient typically has an informational disadvantage (Colucci, at para. 86). Cases decided prior to Colucci held that to establish “effective notice,” there must be a reasonably identifiable date when the issue of support was raised. Vague assertions about having talked to the payor about support at some time in the past will not suffice (Hansen v. Clark, 2008 MBQB 324 (Q.B.), aff’d 2009 MBCA 69 (C.A.)).
Where no effective notice was given by the recipient, child support should presumptively be increased starting from the date when formal notice to the payor was given. In D.B.S., the court indicated that formal notice is not necessarily the commencement date of the proceeding, and that it could be some other type of formal notification to the payor of the request for support or an increase in support.
Once the court determines the presumptive date for the commencement of a retroactive child support award, it must then consider whether a departure from that date is appropriate on the facts of the case to achieve a fair and just result (Colucci, at para. 71). This discretion includes the ability to extend the award further back in time than the soft general limit of three years prior to formal notice, or prior to the date of effective notice, particularly where a payor has engaged in blameworthy conduct (Colucci, at para. 45). It also includes the discretion to fix the commencement date for a retroactive claim to a date after court proceedings were commenced, and even up to the time of trial in appropriate circumstances (Colucci, at para. 95). In carrying out this discretionary analysis, the court should strive to achieve a fair balancing of the three interests at play in claims for retroactive increases in support, namely: the child’s interest in a fair standard of support; the payor’s interest in certainty and predictability; and the interest of the child and recipient in flexibility. It should also be guided by the four general considerations set out in D.B.S. (the “D.B.S. factors”), which the court has now elaborated upon and updated. These four factors are as follows:
a) Whether the party seeking retroactive support had an understandable reason for the delay in giving effective notice of their claim or seeking relief from the courts;
b) The conduct of the support payor;
c) The past and present circumstances of the child; and
d) Any hardship that may result by granting retroactive relief, and by extending the temporal scope of a retroactive award.
If the payor has failed to disclose a material increase in income and to address their corresponding child support obligations appropriately, that failure typically qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
None of the four discretionary D.B.S. factors are decisive. In weighing the factors, the court must keep in mind that a claim for retroactive child support is for a legally enforceable debt, and should not treat child support as a lesser form of debt entitled to unusual leniency that is not available in other areas of debtor-creditor law (see also Michel, at para. 109).
The payor’s interest in certainty and predictability is the most compelling in situations where there is a court order and the payor has been complying with the terms of the order. Conversely, the payor cannot rely on their interest in certainty and predictability in defending a retroactive claim if there is evidence that they have not abided by the terms of the order (D.B.S., at para. 98).
Once the court has determined that retroactive child support should be awarded from a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the relevant legislation and Guidelines.
571The framework set out above should be applied both to retroactive claims respecting the Table amount of support and contribution to section 7 expenses (Hetherington v. Tapping, 2007 BCSC 209 (BCSC), at para. 20; A.E. v. A.E., at para. 200). Cases decided before Colucci held that the court should in dealing with those claims base its decision on the actual incomes of the parties for each year under consideration (Vanos v. Vanos, 2010 ONCA 876 (C.A.), at paras. 13-16).
2. Understandable Reason for the Delay in Advancing the Claim
572In D.B.S. and Michel, the Supreme Court of Canada held that in considering the issue of delay, the court must be sensitive to the practical concerns associated with initiating child support proceedings. It emphasized in Michel that delay in advancing a child support claim is not, in and of itself, inherently unreasonable, and that the appropriate question is whether the claimant has provided understandable reasons for the delay (at paras. 111, 113). A delay by the recipient will only be prejudicial to their claim if it is deemed to be unreasonable, “taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made” including any concerns respecting family violence or access to justice challenges (Michel, at para. 113; see also D.B.S., at para. 101).
573The Supreme Court of Canada has held that understandable reasons for delay in giving effective notice or commencing legal proceedings to advance a child support claim may include the following:
Fear of the support payor due to concerns respecting family violence or other factors;
Intimidation by the support payor;
Reasonable grounds to fear that the payor would react vindictively to raising the support issue, including advancing a claim for primary residence of the child;
Lack of financial means to commence a legal proceeding;
Mental, emotional or physical health challenges that impacted the recipient’s ability to deal with the child support issues;
The recipient’s inability to locate or contact the payor parent;
The fact that the support order was assigned to a government agency;
Inadequate legal advice; and
The conduct of the payor with respect to disclosure issues, since inadequate disclosure may create an information asymmetry that results in the recipient lacking the information required to determine whether action on their part is appropriate.
(D.B.S., at para. 101; Michel, at paras. 83-87; Colucci, at para. 98).
574In Michel, the court indicated that the court may pay particular attention to the length of any delay in pursuing proceedings after the cause of the delay has ceased to exist. The longer the delay after that point, the less likely the court will be to find that the delay was reasonable (Michel, at para. 113).
575In Henderson v. Micetich, 2021 ABCA 103 (C.A.), the Alberta Court of Appeal held that the legal developments relating to the factor of delay by the recipient are such that delay now “has a very limited role to play in determining the availability and extent of a retroactive child support order” (at para. 44). It added as follows:
44 Put simply, delay has a very limited role to play in determining the availability and extent of a retroactive child support order. Any delay on the part of a recipient parent must be viewed in light of available information, resources, and social context, including gender, social and economic inequities. Given the structure of the Guidelines and the well understood, and now widely accepted, philosophy that child support is an obligation on the part of both parents, the amount of which depends on the payor's income, there will be few cases where delay can be truly seen as unreasonable or a factor that should preclude the award of previously-owed support to children.
3. Conduct of the Payor
576The Supreme Court of Canada discussed at length the payor’s conduct as a factor in the retroactive support analysis in D.B.S., Michel and Colucci. It held that both positive conduct and blameworthy conduct are relevant to the analysis and emphasized that blameworthy conduct by the payor is not a pre-requisite to success in a retroactive claim (D.B.S., at para. 98; Michel, at para. 119; see also Goulding v. Keck, 2014 ABCA 670 (C.A.), at para. 48). The court has directed judges to take an expansive view of what constitutes “blameworthy conduct” in the context of analyzing a retroactive child support claim, and has characterized the phrase as encompassing “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support” (D.B.S., at para. 106; Michel, at para. 115). It has stressed that a payor parent who knowingly avoids or diminishes their support obligation to their children should not be allowed to profit from such irresponsible conduct (D.B.S., at para. 60; Michel, at para. 31). The court has also noted that a payor who does not automatically increase support payments when their income increases is not necessarily engaging in blameworthy conduct that may influence the retroactive support analysis. In such circumstances, the issue of whether the conduct is inappropriate is a matter for the court’s discretion based on all of the circumstances of the case (D.B.S.; Rosenberg v. Gold, 2016 ONCA 565 (C.A.), at paras. 68-71).
577In Michel, the court emphasized that in assessing a payor parent’s conduct for the purposes of the retroactive analysis, the focus should not be on the payor’s subjective intent in acting as they did in relation to child support issues. The payor’s intent may be a basis on which to increase blameworthiness, but the primary focus must remain on their actions and their consequences and whether they had the effect of privileging their own interests over the child’s right to support (Michel, at para. 118; see also Henderson, at para. 55).
578Evidence of blameworthy conduct by the payor may justify expanding the temporal scope of a retroactive award or increasing the amount by providing for interest or costs (Michel, at para. 119). Examples of blameworthy conduct that militate in favour of a more expansive retroactive claim include:
Hiding income increase from the recipient in the hopes of avoiding larger child support payments;
Failing to disclose a material change in circumstances, including an increase in income that one would expect to alter the amount of child support;
Intimidating the recipient to dissuade them from advancing a support claim;
Misleading the recipient into believing that they are meeting their support obligations when they are not (D.B.S., at paras. 106 and 124);
Failing to comply with orders requiring annual income disclosure so that child support can be reviewed, or with orders directing that child support be increased in the event of income increases (R. (M.K.) v. R.(J.A.), 2015 NBCA 73 (C.A.), at para. 23; Costa v. Perkins, 2012 ONSC 3165 (Div. Ct.), at para. 38; Hausmann v. Klukas, 2009 BCCA 32 (C.A.); leave to appeal refused 2009 CarswellBC 1573 (S.C.C.)); and
Failing to disclose all information relevant to the child support issues, providing inadequate disclosure and delaying disclosure.
579In D.B.S., Michel and Colucci, the court held that these forms of conduct will weigh heavily against a payor in retroactive support cases, and may support retroactive relief back to the date of separation or the date when the payor’s circumstances changed materially, rather than from the date of effective notice (D.B.S., at para. 125; Michel, at paras. 32-33, 36
4. Past and Present Circumstances of the Child
580The child’s past and current circumstances and needs are important considerations in awarding and calculating retroactive child support. The purpose of the inquiry at this stage is to determine how the failure to pay adequate child support has affected the child (Henderson, at para. 58). If the child has experienced hardship or deprivation in the past or they are in need at the time of the hearing, this will weigh in favour of a retroactive award and extending the temporal reach of the award (Michel, at paras. 120-121). In Goulding, the Alberta Court of Appeal highlighted that the requirement of considering the past and current circumstances of the child does not impose a burden on the recipient parent to prove significant need on the part of the child to succeed on a retroactive claim. As the court stated, “a payor parent cannot avoid a retroactive award by arguing that, despite his or her past default, the recipient was able to sufficiently care for the child on his or her own (at para. 51; see also Swiderski v. Dussault, 2009 BCCA 461 (C.A.) at para. 42). More recently, in Michel, the Supreme Court of Canada emphasized that while evidence of need or hardship on the part of the child is relevant to the analysis of a retroactive child support claim, it is not a necessary antecedent to an award for retroactive child support (Michel, at para. 122). The court recognized that in many situations, children’s financial needs may have been met both historically and at present because the party seeking retroactive support made sacrifices and absorbed the financial hardship on their own so as to prioritize the child’s wellbeing. It underscored that in such circumstances, there is no principled reason why that parent should receive less support because of the choices that they made to protect their child and ensure that the child’s needs were met (at para. 123). As the court stated at para. 123:
Thus, the fact that a child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against awarding retroactive or historical child support. Rather, a recipient parent’s hardship, like that of a child, weighs in favour of the award of retroactive child support and an enlarged temporal scope.
581The Alberta Court of Appeal reiterated in Henderson that there is no absolute requirement to prove any past or current need or deprivation on the part of the child for a recipient to receive as retroactive support amounts that the payor has failed to pay (at para. 60). The court held that a loss of benefit to the child is presumed where the payor parent fails to pay the amount of support required under the Guidelines, since children are fundamentally entitled to receive child support from both of their parents (at para. 62). In addition, the court held it is not appropriate to deny or restrict retroactive relief on the basis that a third party such as the support recipient’s new partner or their family members has assisted in supporting the child, since doing so essentially absolves the payor parent of their statutorily prescribed legal obligations (at para. 61).
5. Hardship to the Payor
582The fourth factor to consider in addressing a retroactive child support claim is any hardship that may result to the payor from granting a retroactive award. This factor takes into account the ease with which the payor might be able to pay the award (Michel). Hardship is simply one of the factors to weigh in addressing retroactive claims, and evidence relating to the other factors may lead the court to conclude that hardship concerns should take a back seat in terms of priority (Michel, at para. 124; Colucci, at para. 108). In particular, hardship considerations will be much less of a concern where they are the by-product of the payor’s blameworthy conduct (Michel, at para 124; see also D.B.S., at para. 116; Colucci, at para. 108). The courts have also emphasized that any concerns regarding potential hardship can often be mitigated by crafting the retroactive order in a way that spreads payment of any arrears over a period of time (D.B.S.; Goulding; Henderson; Giesbrecht v. Giesbrecht, 2024 ABCA 67 (CA.), at para. 16).
583In Michel, the Supreme Court of Canada stressed that hardship to the payor must be significant in nature in order to have relevance to the retroactive support analysis. In her discussion of hardship at paragraph 124, Martin J. specifically used the phrase “undue hardship” in discussing the type of hardship that may impact the court’s inquiry. Drawing from the caselaw respecting the meaning of “undue hardship” pursuant to section 10 of the Guidelines, I conclude that the hardship that will be relevant for the purposes of the retroactive support analysis must be quantitatively significant in nature, and not merely awkward or inconvenient (Hanmore v. Hanmore, 2007 ABCA 57 (C.A.); leave to appeal refused 2000 CarswellAlta 1274 (S.C.C.); A.E. v. A.E., at para. 214).
584The court emphasized in Michel that a broad consideration of hardship is appropriate in carrying out the retroactive support analysis (at para. 114). It noted that hardship considerations are not limited to the payor, since a retroactive award could also cause hardship to the payor’s other children. In Michel and Colucci, the court added that while the focus in considering this factor is on hardship to the payor, the hardship assessment is a holistic and relative one that must be placed in its overall factual matrix (Michel, at paras. 125-126; Colucci, at para. 108). In particular, the extent of that hardship can only be properly assessed and weighed against the hardship that would be caused to the child and the recipient parent from denying or limiting retroactive relief (Michel, at paras. 125-126; Colucci, at para. 108; see also Henderson, at para 65). The Supreme Court of Canada has recognized that recipient parents are typically left to “pick up the slack” to cover the child’s expenses and are sometimes forced to go into debt themselves to meet the child’s needs when the payor parent does not live up to their child support obligations. Accordingly, “the hardship caused to the child and the recipient parent from non-payment of support is also a crucial part of the equation” (Michel, at para. 126; Colucci, at para. 108; Henderson, at paras. 68-70).
585From an evidentiary standpoint, the payor must establish clear evidence from which a reasonable finding of hardship can be made. Bald assertions of hardship will not suffice, and hardship is not simply established by the fact that the payor will have to pay a significant retroactive award (Colucci, at para. 107; Goulding, at para. 58). If the payor relies on hardship to avoid or restrict a retroactive award, they must provide a complete picture of their financial situation, including their income, assets and debts (Colucci, at para. 107).
E. Legal Principles Respecting Income Determination for Support Purposes
1. Relevant Legislative Provisions and General Principles
586The parties’ incomes, their capacity to earn income and their overall financial circumstances since their separation are critical factors in addressing all aspects of the child and spousal support issues in this case. Accordingly, I turn to these matters at this stage as an essential foundation for the remainder of my analysis of the parties’ claims.
587The Divorce Act and the Guidelines govern the child and spousal support issues in this case. The Guidelines establish the framework for determining income for child support purposes. The caselaw has established that the starting point for determining income for spousal support purposes and under the Spousal Support Advisory Guidelines (Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines (Toronto and Halifax: 2008) (the “SSAG”) is also the definition of “income” under the Guidelines (Mason v. Mason, 2016 ONCA 725 (C.A.), at para. 120; Slongo v. Slongo, 2017 ONCA 272 (C.A.), at para. 30; Jonas v. Pacitto, 2021 ONCA 727 (C.A.), at para. 47).
588Section 2(1) of the Guidelines defines “income” for child support purposes as the annual income determined under sections 15 to 20. Section 15(1) of the Guidelines provides that subject to section 15(2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines.
589Section 16 of the Guidelines is the starting point for determining a party’s income. It stipulates that subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency and by then making the adjustments provided for in Schedule III to the Guidelines. Federal child-related tax benefits and Goods and Services tax credits attributable to children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of support is being determined, and to make support decisions based on that income (Vanos, at paras. 13 and 14; Morrissey v. Morrissey, 2015 PECA 16 (C.A.), at paras. 17-22).
590Section 17(1) of the Guidelines is relevant in these proceedings. It grants the court some discretion in deciding a party’s income in circumstances where the judge is of the opinion that determining the party’s income pursuant to section 16 would not yield the fairest result in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years:
Pattern of income
17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
591The determination of income for the purposes of the SSAG and spousal support differs from the calculation of income for child support cases in two significant ways. First, government child-related benefits and credits relating to children in relation to whom there is a child support obligation as between the parties, and the child’s portion of the benefits, are included in income for spousal support purposes under the With Child Support formula, which encompasses the Custodial Payor formula (SSAG, at p. 47; Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016) (the “Revised User’s Guide”), at pp. 18-19). Second, social assistance of any kind, including Ontario Works benefits and Ontario Disability Support Plan benefits, is not treated as income for the purposes of the SSAG for the recipient or the payor (The Revised User’s Guide, section 6(a); Naegels v. Robillard, 2020 ONSC 3918 (Div. Ct.), at para. 12).
592Schedule III to the Guidelines must also be carefully considered in determining the parties’ incomes for support purposes, as it sets out several adjustments that must be made to income as directed by section 16 of the Guidelines. Section 1 of Schedule III stipulates that the employment expenses listed in the section must be deducted from a party’s Guidelines income. Of relevance to this case, the list includes dues and other expenses of performing duties. Section 5 directs that in determining a party’s income, their total amount of dividends from taxable Canadian corporations must be replaced by the actual amount of those dividends that they received. Section 6 stipulates that in calculating income, it is necessary to replace the taxable capital gains realized in a year by a party with the actual amount of the capital gains realized. Section 8 directs that carrying charges and interest expenses paid by a party should be deducted from their income.
593Section 3 of Schedule III provides that in calculating income for the purpose of determining an amount under an applicable Table, the court must deduct any spousal support received from the other spouse from the spousal support recipient’s income. Section 3.1 of Schedule III directs that to calculate income for the purpose of determining an amount under section 7 of the Guidelines, the court must deduct the amount of spousal support paid by a spousal support payor to the other spouse from the payor’s income. The spousal support received is included in the recipient spouse’s income for s. 7 purposes (Zilic v. Zilic, 2021 BCCA 107 (C.A.), at para. 212).
594Where income is not taxed for any reason, a gross-up needs to be applied to the income to account for the tax advantage that the party derived. The purpose of such a gross-up is to place the party on the same footing as a salaried employee. The rationale for this is that Guidelines income is based on the parties’ gross annual income before tax, and section 1 of the Guidelines stipulates that one of the objectives of the Guidelines is to ensure consistent treatment of spouses and children in similar circumstances (Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448 (C.A.), at para. 33).
2. Section 17 of the Guidelines: The Fairest Determination of Income
595Section 17 of the Guidelines is relevant for the purposes of determining whether the parties’ respective RRSP withdrawals and the father’s pension payout in 2020 should be fully included in their income for the relevant years, or whether a different approach is warranted. It grants the court some discretionary flexibility in deciding a party’s income in circumstances where the judge is of the opinion that determining the party’s income pursuant to section 16 of the Guidelines would not be the fairest determination.
596Section 17 applies with equal strength to retroactive and prospective support orders (Ewing v. Ewing, 2009 ABCA 227 (C.A.), additional reasons at 2009 CarswellAlta 2083 (C.A.), leave to appeal refused, [2010] 1 S.C.R. ix (note) (S.C.C.)). Where a party relies on section 17(1) to determine income, there are two critical elements to the analysis under that section. First, the judge must be satisfied that fixing the party’s income figure in accordance with section 16 is not the fairest way of determining the party’s income. If the judge reaches this conclusion, they may then consider the party’s income for the last three years and decide the appropriate means for reaching a fair and reasonable income figure for the child support purposes in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. With respect to the first stage, the presumption that income should be determined in accordance with section 16 of the Guidelines applies unless a party objects to that approach, and therefore the onus is on the party seeking to rely on section 17(1) to satisfy the court that reliance on section 16 income is not the fairest approach to reaching an income figure (Fraser v. Fraser, 2013 ONCA 715 (C.A.), at paras. 97-99; Burzminski v Lewis, 2010 SKCA 16 (C.A.)).
597There are no hard and fast rules for ascertaining whether resorting to section 16 results in the fairest determination of a party’s income, and the decision will ultimately turn on the unique facts of every case. In resolving the question, the court must take into consideration the purposes of support orders and the daily standard of living that the family would have experienced had the relationship continued (Ewing, at para. 34). One situation in which determining income pursuant to section 16 based on the party’s T1 General Income Tax Return for the prior year may not be the fairest determination is when the party's income that year is clearly not predictive of what they are likely to earn in the upcoming year because of significant changes in the party’s situation. Since the court is required by section 2(3) of the Guidelines to determine income based on the most current information available, it may conclude that the appropriate approach in these circumstances is to estimate the party’s income for the upcoming twelve months from when child support will be paid, provided that a reasonable estimate is possible (Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (Ont. S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (Ont. S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (Ont. S.C.J.), additional reasons at 2004 CarswellOnt 1541 (Ont. S.C.J.); Meyer v. Content, 2014 ONSC 6001 (S.C.J.), at para. 82).
598If the court concludes that resorting to section 17 is appropriate, it may then consider the party’s section 16 income for the 3 years prior to the year in question and determine an amount that is fair and reasonable in light of any pattern of income, income fluctuations or receipt of non-recurring amounts over that three-year period. One option available to the court in deciding upon an income figure that is fair and reasonable at this second stage is to average out the party’s income over the previous 3-year period, but this is not the default methodology under section 17, and it may not necessarily be the appropriate approach (Ewing, at para. 38; Decaen v. Decaen, 2013 ONCA CarswellOnt 3922 (C.A.), at para. 50; Punzo v. Punzo, 2016 ONCA 957 (C.A.), at para. 24; Lesko v. Lesko, 2021 ONCA 369 (C.A.), at para. 40). The court has the discretion to pursue whatever method it considers most suitable to reach an income figure that is fair and reasonable for the child support calculation, including removing all or part of any non-recurring amounts from the party’s income (Ewing; Decaen, at para. 50; Punzo, at para. 24; Arnold v. Washburn, 2001 CanLII 21149 (ON CA), 2001 CarswellOnt 4439 (C.A.), leave to appeal refused 2002 CarswellOnt 4386 (S.C.C.)). Resort to averaging of a party’s income over the prior 3 years may be sensible and fair in circumstances where the party’s income has irregular patterns or has fluctuated up and down from year to year due to factors that make their income inherently unpredictable (deBruijn v. de Bruijn, 2011 BCSC 1546 (B.C.S.C.), at para. 35; Phillips v. Saunders, 2020 BCCA 265 (C.A.), at para. 24; Halliwell v. Halliwell, 2017 ONCA 349 (C.A.), at para. 128)). On the other hand, averaging of income may not necessarily be appropriate where there is evidence of consistently declining or consistently increasing income over a period of time (de Bruijn; Jakob v. Jakob, 2010 BCCA 136 (C.A.); Phillips, at para. 24). Ultimately, the assessment of whether resort to section 17 is appropriate and if so, how the party’s income for child support should be ascertained will depend on the unique facts of each case, and the goal should be to fashion an approach that generates a fair and just result taking into consideration the fundamental objectives of child support.
599With respect to RRSP withdrawals and non-recurring pension amounts such as the father’s payout in 2020, these must be reported as income on the T1 Income Tax Return, and therefore they presumptively form part of a spouse’s income for the purposes of the Guidelines, subject to sections 17 to 20 of the Guidelines (Fraser, at para. 97; Ludmer v. Ludmer, 2014 ONCA 827 (C.A.), at para. 22) However, section 17 of the Guidelines grants the court the flexibility to exclude such non-recurring amounts from a party’s income in appropriate circumstances. The unique facts of every case must be carefully considered to determine whether or not the inclusion of these amounts would generate the fairest determination of the party’s income for Guidelines purposes (Fraser; Ludmer, at para. 23; Burzminski, at para. 11; McKenzie v. Perestrelo, 2014 BCCA 161 (C.A.), at para. 82).
600Given that RRSP withdrawals and non-recurring pension payouts are presumptively included in the income calculation for support purposes, the onus is on the party seeking to exclude them from their income pursuant to section 17(1) of the Guidelines to satisfy the court that it is appropriate to do so (Fraser, at paras. 97-99; Burzminski, at para. 82; McKenzie, at para. 82). In considering whether to fully include the amounts in income, the court must keep in mind that the object is to arrive at income levels that fairly reflect the financial capacities of the spouses for support purposes (Ludmer, at para. 25). For example, if the RRSP withdrawals are fairly regular and appear to have been used to cover ordinary living expenses for the party’s lifestyle choices, they are more likely to be included as income for the purposes of determining support (G.(J.P.) v. G.(V.S.), 2012 BCSC 946 (S.C.), at para. 74; McKenzie, at para. 82; M.R. v. J.R., 2018 NBCA 12 (C.A.)). However, the fact that RRSP withdrawals are irregular or non-recurring in nature is not determinative of the issue (McKenzie, at para. 82). The reason for the RRSP withdrawal is an important factor in determining whether it should be included in income. In Fraser, the court decided to include RRSP funds that the father had used to purchase a home in the calculation of the father’s income despite their non-recurring nature, given that he was not working or earning regular employment income at the time. In Ludmer, the court upheld the trial judge’s decision to exclude RRSP withdrawals from the parties’ respective incomes on the basis that they were non-repeating encroachments on capital. Similarly, in Warsh v. Warsh, 2012 ONSC 6903 (S.C.J.), the court did not include non-recurring RRSP withdrawals in a payor spouse’s income for spousal support purposes on the basis that the draw-down on the RRSP funds was not sustainable. The need for RRSP withdrawals to fund Family Law litigation between the parties is also a factor that the courts have considered in deciding to back out RRSP proceeds from income for support purposes (Ludmer; M.(J.C.) v. M. (K.C.), 2016 ONCJ 475 (O.C.J.); Zigiris v. Foustanellas, 2016 ONSC 7528 (S.C.J.); McKenzie, at para. 86; Swirsky v. West, 2020 ONSC 1213 (S.C.J.), at para. 400). Courts have also excluded non-recurring RRSP withdrawals from a payor’s income where they were used to pay off debt, or to cover expenses for a pressing specific purpose rather than routine living expenses (Brown v. Brown, 2020 BCCA 53 (C.A); Foley v. Weaver, 2010 ONSC 3305 (S.C.J.); K.A.M. v. P.K.M., 2008 BCSC 93 (S.C.), at para. 51; M.(C.A.) v. H.(T.C.), 2016 BCSC 1756 (S.C.), at para. 109; Leet v. Beach, 2010 NSSC 433 (S.C.)). The caselaw reflects a reluctance to include non-recurring RRSP withdrawals in the income of a recipient spouse where the funds were used to cover their needs during a period when they were not receiving the correct amount of support (McConnell v. McConnell, 2015 ONSC 2243 (S.C.J.); Collins v. Nowosad, 2019 ONSC 755 (S.C.J.), at paras. 47-50).
601Additional considerations apply with respect to a payor’s RRSP withdrawals or one-time pension payouts when the RRSP or the pension formed part of the resolution of property claims as between the parties. In the child support context, the fact that such assets have been included in a property settlement or the calculation of an equalization payment is not necessarily considered a basis to exclude it from income, since equalization is a matter between spouses and child support is not considered as a means for increasing a spouse’s lifestyle (Stevens v. Boulerice, 1999 CanLII 14995 (ON CTGD), 1999 CarswellOnt 1333 (S.C.J.), at para. 9; Fraser, at para. 102). However, in these circumstances, the court must consider the property settlement and equalization particulars and the overall facts of each case to determine whether the inclusion of the RRSP or non-recurring pension amounts reaches the threshold of unfairness required by section 17(1) (Fraser, at para. 103; de Bruijn v. de Bruijn, 2011 BCSC 1546 (S.C.), at para. 34).
602Different considerations may apply in the context of spousal support, where concerns may arise respecting double recovery if the RRSP or pension in question forms part of a general property settlement or the equalization calculation, and the entire amount or equalized portion is subsequently included as income for the spousal support analysis when the payee withdraws funds (Brown v. Brown, 2012 NBCA 11 (C.A.), at para. 18; Namdarpour v. Vahman, 2019 BCCA 153 (C.A.), at para. 131). In these circumstances, guidance can be drawn from the principles which the Supreme Court of Canada articulated in Boston v. Boston, 2001 SCC 43 (S.C.C.). In that case, the court discussed the concern regarding double recovery, also known as “double dipping,” in circumstances where a portion of a spousal support payor’s pension income has been equalized through the property route, and then the entire amount of the pension is later considered as income for spousal support purposes when the payee begins to draw upon the fund. It noted that in such circumstances, the property award takes into account the capital value of the pension holder’s future pension income. Accordingly, if the recipient spouse later shares in the entire pension income through spousal support when the pension comes into pay upon the payor spouse’s retirement, the recipient “can be said to be recovering twice from the pension: first at the time of the equalization of assets and again as support from the pension income” (at para. 34). The court held that to avoid double recovery in these circumstances, the court addressing the issue of spousal support following the payor’s retirement should, where practicable, focus on that portion of the payor’s income and assets that has not been part of the equalization or division of matrimonial assets (at para. 64). However, the court emphasized that this is not a hard and fast rule. In this regard, it noted as follows, at paragraph 65:
Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.
3. Imputation of Income and Onus of Proof Issues
603The mother claims that income should be imputed to the father on the basis of deliberate under-employment, and therefore it is necessary to consider the legal principles respecting those issues.
604The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section is section 19, which provides as follows:
Imputing income
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
b) the spouse is exempt from paying federal or provincial income tax;
c) the 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 spouse’s property is not reasonably utilized to generate income;
f) the spouse has failed to provide income information when under a legal obligation to do so;
g) the spouse unreasonably deducts expenses from income;
h) the 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 spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Reasonableness of Expenses
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
605The courts have held that the principles that apply in determining whether to impute income are the same in both child support and spousal support cases (Marrello v. Marrello, 2016 ONSC 835 (S.C.J.), at para. 146; Kinsella v. Theophille, 2018 ONSC 5047 (S.C.J.), at para. 48).
606The court’s authority to impute income to a party reinforces that parties must act responsibly when making financial decisions that may affect the level of income available from them for the support of their dependants or themselves (Duffy v. Duffy, 2009 NLCA 48 (NLCA); A.E. v. A.E., at para. 256). The list of circumstances set out in section 19 of the Guidelines in which the court may impute income is not exhaustive, and therefore it does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 (Bak v. Dobell, 2007 ONCA 304 (C.A.); Korman v. Korman, 2015 ONCA 578 (C.A.), at para 48; Madi v. King, 2023 ONCA 443 (C.A.), at para. 41). However, any new category should be consistent with the rationale for section 19(1) and the general objectives of the Guidelines.
607In the spousal support context, the ability to impute income applies equally to the payor and the recipient spouse, since one of the objectives of spousal support is to promote the economic self-sufficiency of each spouse within a reasonable time, in so far as practicable (Juvatopolos v. Juvatopolos, 2004 CanLII 34843 (ON SC), 2004 CarswellOnt 4423, 9 R.F.L. (6th) 147 (S.C.J.), aff’d 2005 CanLII 35677 (ON CA), 2005 CarswellOnt 4774, 19 R.F.L. (6th) 76 (C.A.)). As the authors of the SSAG emphasize, by focussing on income, including the possibility of imputing income to the recipient spouse, the SSAG encourage “a more sophisticated analysis of "self-sufficiency" on the part of the recipient, rather than some rough-and-ready downward adjustment of the monthly amount of support” (at p. 137).
608The onus is on the party requesting the court to impute income pursuant to section 19(1) to establish that imputation is appropriate (Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.), additional reasons 2009 CarswellOnt 3112 (C.A.); Morrissey). However, this onus does not relieve the other party from their basic obligation to provide timely and full disclosure of all relevant information required to reach an accurate finding respecting their income. If the evidence adduced at trial raises a prima facie case for imputation of income, the onus shifts to the other party to defend their position respecting their income and to show that income should not be imputed to them (Drover v. Drover, 2018 NLSC 15 (S.C.), at para. 35, aff’d 2020 NLCA 9 (C.A.), at paras. 27-28, leave to appeal dismissed 2020 CarswellNfld 296 (S.C.C.); Horbas v. Horbas, 2020 MBCA 34 (C.A.), at para. 34).
609The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court (Bak, at para. 73; Korman, at para. 49). Regardless of the basis upon which imputation occurs, the amount of income that the court imputes to a party is a matter of discretion. In carrying out the exercise, the court must take into consideration the purposes of the Guidelines and arrive at a figure that is rational and reasonable based on the evidence before the court (Drygala v. Pauli(2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at para. 44; Cheng v. Sze, 2021 ONCA 346 (C.A.), at para. 10). The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete (Valley v. Hay, 2019 ONCA 70 (C.A.), at para. 10). In Korman, at para 51, the Ontario Court of Appeal held that the court may impute income to a spouse in excess of their presumptive section 16 income where the imputed amount is supported by the evidence and is consistent with the Guidelines objectives of establishing fair support based on the financial means of the parties “in an objective manner that reduces conflict, ensures consistency and encourages resolution.” (See also Valley, at para. 10 Mason; Ludmer).
4. Imputation of Income for Intentional Under-Employment or Unemployment: Section 19(1)(a) of the Guidelines
610The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines based on intentional unemployment or under-employment in Drygala and in Lavie v. Lavie, 2018 ONCA 10 (C.A.). The following general principles derive from those decisions and other cases which have considered section 19(1)(a):
Section 19(1)(a) reflects the principle that parties have a duty in support cases to maintain or actively seek out reasonable income-earning opportunities that will maximize their earning potential to meet the needs of their dependants (Drygala; Lavie).
The analysis required under section 19(1)(a) is threefold:
a) First, the court must determine if the party in question has been deliberately under-employed or unemployed. If the answer is no, then the inquiry is at an end.
b) Second, if the court finds that the party has been deliberately under-employed or unemployed, it must then determine whether this has been required by the reasons set out in section 19(1)(a), specifically the needs of any child or by the reasonable educational or health needs of the party. If the court is satisfied that one of these reasons has been established, it cannot impute income to the party.
c) Third, even if the reasons specifically set out in section 19(1)(a) are not satisfied, the court must then determine if there is any other reasonable basis for declining to impute income to a deliberately under-employed or unemployed party. Section 19(1)(a) is not mandatory; it provides that the court may impute income in a case of deliberate under-employment or unemployment. The court has a wide discretion with respect to imputation of income, and in the context of deliberate under-employment or unemployment, the exercise of that discretion will turn on the overall reasonableness of the payor’s decisions and actions in relation to their income, taking into consideration all relevant circumstances (Riel; Horbas, at para. 28; Abumatar v. Hamda, 2021 ONSC 2165 (S.C.J.), at para. 28(o); M.A.B. v. M.G.C., at para. 483). The assessment of reasonableness in this context must be undertaken under the umbrella of the legislative and policy objectives of support, including the obligation of spouses to maintain their dependants, the importance in the spousal support context of encouraging self-sufficiency where appropriate and the importance of ensuring a fair standard of support (Donovan v. Donovan (2000), 2000 MBCA 80, 190 D.L.R. (4th) 696 (Man. C.A.), at para. 20; Horbas, at paras. 25, 30-31). In assessing the reasonableness of the party’s decisions, the court must also be guided by the principle that parties should not be permitted to arrange their financial affairs to prefer their own interests over those of their dependants (D.B.S.; Colucci). A mere desire to have more self-satisfying work may not be considered an acceptable reason for under-employment, but the prospect that less remunerative work may lead to greater opportunities for advancement and financial security in the future may be accepted as a reasonable explanation (Mwenda v. Madituka, 2018 ONCJ 503 (O.C.J.); Gibson v. Gibson, 2011 ONSC 4406 (S.C.J.); A.E. v. A.E. at para. 262; Tillmanns v. Tillmanns, 2014 ONSC 6773 (S.C.J.)).
The onus is on the party seeking to impute income pursuant to section 19(1)(a) to establish a prima face case that the other party has been deliberately unemployed or under-employed. However, once this hurdle is crossed, the onus then shifts to the other spouse to satisfy the court that their situation falls within one of the exceptions set out in section 19(1)(a), or that their under-employment or unemployment is otherwise reasonable and justified (Drygala; Crowe v. McIntyre, 2014 ONSC 7106 (S.C.J.), at para. 31(f)).
A party is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The party is intentionally unemployed when they choose not to work when capable of earning an income (Drygala; Lavie; Duffy, at para. 35).
A finding of deliberate under-employment or unemployment does not require evidence of bad faith or an attempt to evade support obligations (Drygala; Lavie; Duffy, at para. 35).
The use of the word "intentionally" in section 19(1)(a) highlights that the provision does not apply to situations that are beyond the party’s control (Duffy, at para. 35).
In determining whether a party is intentionally under-employed or unemployed, the court should consider the party’s capacity to earn income in light of their age, education, health, work history, the availability of work that is within the scope of the party’s capabilities and the amount of income that the party could reasonably earn if they worked to capacity (Marquez v. Zapiola, 2013 BCCA 433 (C.A.); Lawson v. Lawson; Drygala; King v. King, 2019 ONCA 950 (C.A.); Willms v. Willms, 2020 BCCA 51 (C.A.)). A party who is well educated and skilled and has no compelling reasons for not working risks being found to be intentionally unemployed (Korwin v. Potworowski, 2007 ONCA 739 (C.A.); Bemrose v. Fetter, 2007 ONCA 637 (C.A.)).
The fact that a party is receiving social assistance or disability benefits does not bind the court in determining a party’s income for support purposes. The court must carry out its own assessment of the party’s income based on all of the evidence to determine whether an imputation of income is appropriate (Pontius v. Murray, 2011 CarswellSask 679 (C.A.); Poursadeghian v. Hashemi-Dahaj, 2010 CarswellBC 2740 (C.A.); Coad v. Coad, 2017 ONCA 173 (C.A.), at para. 11; Kinsella v. Mills).
Where a party experiences a significant decrease in income after voluntarily deciding to change the nature of their income-earning activities, the decision needs to be justified in a compelling way in order to avoid an imputation of income (Riel at para. 23).
A self-induced lack of income or reduction of income with no realistic prospect of future financial advancement may constitute grounds to impute income to a party because of deliberate under-employment. Accordingly, the court may find the party to be intentionally under-employed or unemployed and impute income where the party has persisted in unreasonable un-remunerative income-earning activities, or where they have pursued unrealistic or unproductive career aspirations (Hanson v. Hanson, 1999 CanLII 6307 (BC SC), 1999 CarswellBC 2545 (S.C.); Drygala; Donovan; Lawson; Abballe v. Abballe, 2014 ONSC 4244 (S.C.J.), at para. 39; A.E. v. A.E.).
The court may also impute income to a party under section 19(1)(a) if the party ceases their employment or other income-earning activities for selfish or bad faith reasons (Ronan v. Douglas Walsh (1994), 1994 CanLII 3826 (ON CTPD), 5 R.F.L. (4th) 235 (Ont. Prov. Div.)), or if they engage in reckless behaviour which affects their income-earning capacity (Rogers v. Rogers, 2013 ONSC 1997, 2013 CarswellOnt 4068 (S.C.J.); Costello v. Costello, 2012 ONCJ 399 (O.C.J.); Aboagye v. Sakyi, 2012 ONCJ 56 (O.C.J.); Tillmanns; Scott v. Chenier, 2015 ONSC 866 (S.C.J.), at para. 48).
When a party experiences an involuntary or temporary loss of employment or self-employment for any reason, they may be given a “grace period” to investigate options and seek out income-earning opportunities in their field at a comparable rate of remuneration before income will be imputed to them (Lavrinenko v. Lavrinenko, 2014 ONSC 4097 (S.C.J.); Tillmanns). However, if they have been unable to secure comparable employment within a reasonable time frame, they will be expected to search for and accept other less remunerative opportunities or options outside of the area of their expertise in order to avoid an imputation of income (Barta v. Barta, 2005 CarswellOnt 74 (S.C.J.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Gen. Div.); D. (P.) v. D. (C.), 2011 CarswellNB 442 (Q.B); A.E. v. A.E.).
In circumstances where the court is asked to impute income to a party who has been the victim of family violence, the court must consider the impact of the family violence on the party’s overall functioning and income earning capacity (Kohli v. Thom, 2025 ONCA 200 (C.A.).
611Where a party alleges that their under-employment or unemployment has been attributable to their reasonable health needs, the court’s analysis of this claim should include consideration of the following principles and considerations:
The party must adduce credible evidence of both the health-related challenges and the impact of same on their ability to earn income (Coad, at para. 11; Kinsella v. Mills, at para. 171).
Although medical evidence is not necessarily required to support a health-related explanation for a reduction in income, it is helpful. In the absence of medical evidence, the party should adduce independent and credible evidence respecting the nature and seriousness of their health issues and the extent to which they impacted upon their capacity to earn income.
The court should also consider whether the party has taken active steps to address and diminish any health-related factors that have contributed to their under-employment or unemployment, and whether those steps have led to an improvement in their capacity to earn income (Cherry-Francey v. Francey, 2012 ONSC 2109 (S.C.J.), at para. 129; Kandola v. Kandola, 2016 BCSC 1443 (S.C.), aff’d 2017 BCCA 235 (C.A.); Moody v. Holden, 2015 NLTD(F) 45, 2015 CarswellNfld 525 (S.C.), at para. 56; Kinsella v. Mills, at para. 171).
Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position (Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Mintz v Mintz, 2013 ONCJ 382 (O.C.J.) Kinsella v. Mills, at para. 171).
612If the payor alleges that their under-employment or unemployment should not result in an imputation of income because it is required due to their reasonable educational needs, the court must embark upon a two-step inquiry, as follows:
First, the court must determine whether the educational needs which the payor relies upon are reasonable. This analysis involves consideration of whether the decision to embark upon a course of studies was logical and practical, and whether the studies will realistically lead to meaningful financial benefits in the long-term. This inquiry must be undertaken keeping in mind that a spouse cannot be excused from their support obligations or from moving towards self-sufficiency “in furtherance of unrealistic or unproductive career aspirations” (Drygala, at para. 39; see also Hagner v. Hawkins, 2005 ONSC 6701 (S.C.J.); Rivard v. Rivard, 2010 ONSC 2711 (S.C.J.); Pey v. Pey, 2016 ONSC 1909 (S.C.J.)).
If the court is satisfied that the course of study is reasonable, it must then determine what is required by virtue of those educational needs. In other words, the payor must satisfy the court that the payor’s level of under-employment or unemployment is required by virtue of their reasonable educational needs. If the payor does not satisfy the court on this point, the court may impute income at a level that it considers appropriate having regard for the educational program and the demands and expectations of the program. Questions which the payor must address include:
a. How many courses must be taken and when?
b. How much time must be spent in and outside of the classroom to ensure continuation in the program?
c. Are the academic demands of the program such that the payor should be excused from pursuing part-time work?
d. Could the program be completed over a longer period of time with the payor taking fewer courses at a time so that they could work on either a full-time or part-time basis?
e. Is summer employment possible? and
f. Can the payor take co-operative courses as part of the program in order to earn income? (Drygala).
613If the court ultimately determines that income should be imputed based on a party’s intentional under-employment or unemployment, it must then determine the appropriate level of income to impute to the party. In carrying out this task, the court must consider all of the evidence adduced by both parties and determine what is reasonable and fair having regard for the objectives of the applicable legislation, the particular facts of the case and the circumstances of the party (Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 166 D.L.R (4th) 528 (B.C.C.A.); Duffy; Horbas, at para. 38; Drygala). The onus on the party seeking to impute income does not extend to proving the appropriate quantification of the imputed amount (Dunne v. McNeil, 2020 ONSC 1217 (Div. Ct.), at para. 9). Relevant factors in quantifying the imputed income include the age, education, experience, skills and health of the party, their historical income when they were earning a higher income, their ability to resume an income commensurate with their past income, the availability of work and any other obligations which they may have (Horbas, at para. 38; Dunne, at paras. 7-9).
IV. ISSUE #1: DETERMINATION OF THE PARTIES’ INCOMES FOR SUPPORT PURPOSES AND THEIR GENERAL FINANCIAL CIRCUMSTANCES SINCE 2019
A. The Father
614I turn first to the parties’ respective incomes for support purposes since 2019. I also outline their general financial circumstances since that time, as this is relevant to the retroactive child support claims, the mother’s undue hardship claim and the spousal support issues.
2017 and 2018
615The father worked for Rogers throughout the parties’ relationship. He held the position of National Media Playout operator as of the separation date.
616In 2017, the father’s total line 150 income in his T1 Income Tax Return (“line 150 income”) was $81,627.00.
617In 2018, the father experienced significant financial challenges following the parties’ separation, as he was paying for the mother’s share of many expenses. The parties’ joint account was regularly in overdraft because the mother was not depositing her pay into the account on a regular basis. The father also experienced problems with his performance at work due to the stress of the separation, and was given warnings by his employer, as evidenced in his text messages to the mother.
618In 2018, the year of separation, the father’s line 150 income was $82,023.00. His Guidelines income was $80,729.69, calculated as follows:
Employment income $81,729.00
Taxable amount of non-eligible dividends $114.97
Actual amount of eligible dividends $52.33
Total capital gains $215.39
Carrying charges and interest deduction ($56.00)
Union dues deduction ($1,326.00)
Total Guidelines income: $80,729.69
619The amount that the parties paid on account of section 7 expenses is relevant to the spousal support analysis. For 2018, I find that the father incurred $6,402.00.
2019
620The father continued to experience work performance issues in 2019. The Society’s records indicate that he advised Ms. Kaur on January 28, 2019 that he was on a 3 month probationary period after having made another major mistake at work, and that he would likely lose his job if he made any more errors. His employment became much more challenging when C.M.M. was placed in his care. He requested and was granted a 5-day unpaid leave of absence so that he could stay home and assist C.M.M. with the adjustment to his primary care.
621The father’s line 150 income in 2019 was $81,293.00. His Guidelines income was $79,987.00, calculated as follows:
Employment income: $81,203.00
Actual amount of eligible dividends $58.00
Total capital gains $22.00
Union dues deduction ($1,296.00)
Total Guidelines income: $79,987.00
622The father paid child-care expenses of $8,048.00 in 2019. However, as I discussed above, the mother reimbursed him for part of this expense as part of the parties’ settlement on December 31, 2024. For the purposes of the spousal support calculation, I am attributing the mother a child-care expense of $377.00 and reducing the father’s expense to $7,671.00.
2020
623Unfortunately, the father’s difficulties with his work performance continued in 2020. As I have previously noted, he testified that his stress levels increased considerably when daycares closed due to the pandemic, as C.M.M. had to adjust to a completely new routine and he had to scramble to arrange child-care. In addition, he was extremely anxious about working in such close physical proximity with so many colleagues given the seriousness of the COVID-19 concerns. I find that he asked his employer if he could take another leave of absence to support C.M.M. during this transition, and that his boss did not react well to that request. He was suspended with another warning in March 2020 after making a mistake during the airing of a major television program. He testified that he was a nervous wreck when he returned to work due to his anxiety about child-care for C.M.M., changes in the child’s routines, his fear of losing his job, his anxiety about contracting COVID-19, and the ongoing Society involvement. He made another serious error during another major television program in April 2020. He was finally terminated from his position with Rogers on May 8, 2020. Part of his pension was paid out in 2020, and the remainder was transferred to a locked-in RRSP. He also received a severance from Rogers.
624The father spent the summer of 2020 attempting to formulate a financial plan for his future. Daycares were still not open, and therefore he stayed home to care for C.M.M. through the summer months. He testified that the prospects of finding a job in his field of experience with an income commensurate with what he had earned at Rogers were extremely limited. The only options were to seek employment at Bell Canada’s studios in the far east end of Toronto in Scarborough, or at another studio in downtown Toronto. He explained that his anxiety and stress levels remained extremely high at this point, and that he could no longer manage the lengthy commutes and shift work that this type of work in Scarborough or the downtown Toronto core would have entailed while also carrying out his primary caregiving responsibilities for C.M.M. The other option that he considered was to seek employment at a smaller broadcasting station somewhere along the Mississauga-Hamilton corridor, but he learned that the income that he would earn would not be anywhere close to what he had been earning at Rogers. In addition, he wished to pursue employment in a field that would offer him a more reasonable work-life balance so that he could focus on ensuring that C.M.M.’s needs were met. I found his evidence on these issues to be credible, reliable and compelling.
625The father decided during the summer of 2020 that a job in the skilled trades would offer the greatest source of stable and reasonable income in the future and allow him to achieve an appropriate work-life balance to enable him to fully meet C.M.M.’s needs. The daycares continued to be closed at that time due to the pandemic, and therefore child-care for C.M.M. remained a significant challenge for him. His research into the trades as a line of work led him to believe that he could potentially earn even more than he had earned at Rogers once he finished his training and obtained experience in a trade. He therefore applied for a 5-year Construction Techniques and Plumbing program through Mohawk College, with the goal of becoming a certified plumber. He began that program in the fall of 2020. This program involves 3 learning periods, each lasting 8 weeks, and 9,000 training hours as a plumbing apprentice. In 2020, the father had tuition and textbook expenses totalling $1,544.00 for this program. The father also began working part-time at Home Depot in September 2020 to supplement his income.
626The father’s line 150 income for 2020 was $118,969.00. His Guidelines income was $118,400.00, calculated as follows:
Employment income $40,517.00
Employment insurance and other benefits $15,039.00
Other income (from Rogers pension payout) $63,413.00
Union dues deduction ($569.00)
Total Guidelines income: $118,400.00
627With respect to the pension payout, as I have indicated, the father’s preferred course of action was to include all of the parties’ pension and RRSP amounts in the income calculations for support for the sake of simplicity. However, if the court decides to exclude some of the RRSP amounts from the mother’s income, he seeks consistency in treatment. As I will discuss below, I have decided to exclude the mother’s RRSP income from her income. Accordingly, in my view, given the one-time nature of the pension payout, and the fact that a portion of the father’s pension was equalized, it is necessary to decide whether calculating the father’s income in 2020 in accordance with section 16 of the Guidelines is the fairest determination. This is relevant to the spousal support analysis, since the father did not have a monthly Table child support obligation to the mother in 2020.
628I conclude that resort to section 16 does not yield the fairest result in calculating the father’s 2020 income for several reasons. First, a portion of the pension in question has been equalized in the determination of the parties’ property claims, and therefore there is concern for some double recovery in the spousal support context. Second, fully including the amount of the payout does not in my view generate an income that fairly reflects the father’s financial capacity to provide spousal support at that time. The father had just lost his long-term job, and he required the additional funds to support himself and C.M.M. while he forged a new path for his career and to pay for his re-training. Furthermore, the father was in the midst of Child Protection proceedings due to the mother’s constant unfounded allegations of abuse and neglect by him and the grandparents, and the cost of litigation had been so high to the point that he had to borrow funds from his parents. In my view, the most fair and reasonable approach to determining the father’s 2020 income is to use a rough average of his Guidelines income for the years 2017 to 2019. This yields an income for support purposes of $81,000.00 for 2020. The effect of this is to include $25,444.00 of the pension payout in his income. After deducting the union dues of $569.00, this yields an income for support purposes of $80,431.00.
629The father incurred child-care expenses totalling $2,028 in 2020. For the spousal support calculations, this amount will be reduced by $377.00, to the sum of $1,651.00, and $377.00 will be attributed to the mother.
2021
630The father continued with his training in plumbing in 2021 and began his first apprenticeship period at North American Construction in February 2021. He continued to work part-time for Home Depot until sometime in March 2021. His Financial Statement sworn September 13, 2021 shows that he was paying the grandparents $300.00 per month for rent, and that he was essentially breaking even every month due to his limited income and his monthly expenses. I find that his expenses were extremely modest.
631The father’s total line 150 income in 2021 was $38,761.00. His Guidelines income was $38,326.28, calculated as follows:
Employment income: $32,703.12
Other employment income from apprenticeship $54.30
Employment insurance benefits $5,587.00
RRSP withdrawal $417.86
Union dues ($436.00)
Total Guidelines income: $38,326.28
632I am including the father’s RRSP in his income for support purposes given the relatively small amount of the withdrawal.
633The mother asks the court to impute an income of $81,000.00 to the father for the year 2021. I have carefully considered and weighed the principles outlined above respecting imputation of income, and I conclude that it is inappropriate to impute income to the father for this year for several reasons. First, there is no evidence that the loss of his job was due to any deliberate or reckless conduct on his part. His medical records clearly reflect that he had been struggling to cope with the high stress associated with the nature of the Rogers job, the lengthy daily travel and the shift work since at least 2014. It is clear from the father’s viva voce evidence at trial, his medical records and the Society’s records that he considered this position to be his dream job, that he tried very hard to fulfill his obligations, but that he was simply physically and psychologically unable to cope with the stress any longer. The mother’s constant stream of allegations against him and the grandparents caused his stress and anxiety levels to reach even higher heights in 2020. When considered in its totality, the evidence clearly establishes that he needed to find another position due to his health needs. The mother’s text messages to the father in May 2020 regarding his termination from Rogers reflect that she agreed with this point. On May 7, 2020, she stated that the termination was best for his health, and commented on the challenges that he experienced with the shift work while he was at Rogers. I also find that the father proactively took steps with his family physician to address his issues with anxiety and stress, and that he complied with the doctor’s recommendation to engage in supportive counselling and stress relief techniques. Those efforts are detailed in my earlier discussion of the father’s mental health.
634I have considered whether the father’s decision to pursue a career in plumbing starting in 2020 was reasonable, or whether he should have chosen to remain in the broadcasting field. I conclude that his decision to embark upon the plumbing program and to work towards establishing a plumbing business was the most reasonable course of action for him to take, having regard for all of the circumstances at the time. Opportunities in the broadcasting field in the Scarborough and Toronto downtown areas would have led him straight back to the untenable stressful situation that he found himself in at Rogers, and would have further undermined his health and his ability to properly address C.M.M.’s daily needs. I accept the father’s evidence that positions at smaller stations located closer to Hamilton would not have been as remunerative as his Rogers job. I am also satisfied that his choice of plumbing as a career will yield meaningful financial benefits in the foreseeable future and may eventually allow him to earn an even higher income than he earned at Rogers.
635Finally, I find that the father made reasonable efforts to maximize his income in 2021 while also pursuing his plumbing education. As I have stated, he worked part-time at Home Depot until March 2021. In addition, he earned some income through his apprenticeship. Accordingly, the father’s level of under-employment in 2021 was reasonably required by virtue of his educational needs.
2022
636The father continued with his plumbing program in 2022, and had apprenticeship periods with Cynergy Mechanical Ltd., North American Construction and L.J. Barton Mechanical. His Financial Statement sworn November 17, 2022 reflects that he was still essentially breaking even every month, and that his expenses continued to be very modest. His monthly rent to the grandparents increased to $400.00 per month in 2022.
637The father’s total line 150 income in 2022 was $32,369.95. His Guidelines income was $32,283.23, calculated as follows:
Employment income $19,282.50
Other employment income from apprenticeship $81.45
Employment insurance benefits $12,006.00
Other employment: apprenticeship incentive grant $1,000.00
Union dues deduction ($86.72)
Total Guidelines income: $32,283.23
638I decline to impute income to the father for 2022, for the same reasons outlined above. Furthermore, I am satisfied that he continued to make all reasonable efforts to maximize his income while at the same time pursuing his plumbing education. Unfortunately, he had a lay-off during his apprenticeship period from March to April 2022, but I accept his evidence that this was due to a lack of available work with the employer and not to any fault on his part.
639The father incurred child-care expenses of $508.00 in 2022. This will be reduced to $131.00 after allocating the amount of $377.00 to the mother.
2023
640The father had four plumbing apprenticeship periods in 2023, with Martin Dejong Plumbing and Heating, E. El Signore Plumbing Ltd., L.J. Barton Mechanical Inc. and Arscott Plumbing and Drains Inc. His total line 150 and Guidelines income was $50,458.00, consisting of employment income of $48,532.00 and employment insurance benefits of $1,926.00. This was also his income for support purposes as there were no union deductions that year.
641The father incurred child-care expenses in the amount of $1,624.75 in 2023. This sum will be reduced to $1,248.00 after allocating $377.00 to the mother.
2024 and 2025
642The father continued with his plumbing program in 2024 and started his fourth-year apprenticeship with EDS Plumbing. He testified that he still has to complete his third and final round of the classroom educational component of his program as well as 2700 hours of apprenticeship work. He stated that he did not anticipate being able to complete his program until 2026, and explained that the delay was largely attributable to his inability to accumulate work hours due to the lengthy trial.
643The father only earned employment income of $29,882.00 as compared to $48,532.00 in 2023. I find that his ability to maximize his income was seriously impaired by the mother’s renewed and increasingly aggressive efforts to advance her abuse and neglect claims throughout 2024. As I discussed in my review of the father’s mental health, the father reached out for more intensive support from the Winterberry Clinic in 2024 because he felt that his anxiety was “through the roof.” Dr. Zizzo increased the dosage of his anxiety medication due to these concerns. The father also experienced difficulty maintaining employment due to child-care challenges in 2024, because the Society imposed supervision requirements on the grandparents’ contact with C.M.M., and the father relied on them to assist him with child-care. The father’s efforts to maximize his income were also undermined by the length of this trial, which began in September 2024. For all of these reasons, the father withdrew from his RRSP savings to meet his and C.M.M.’s needs.
644The father’s total line 150 and Guidelines income in 2024 was $83,234.00, calculated as follows:
Employment income $29,882.00
Employment insurance benefits $14,312.00
RRSP withdrawal $39,040.00
Total Guidelines income: $83,234.00
645I conclude that including the entire amount of the father’s RRSP withdrawal in his income for support purposes does not result in the fairest determination of his income for support purposes. His total income of $83,234.00 is not reflective of his actual income earning capacity in 2024 for the reasons that I have addressed above. He was continuing to incur significant legal fees in anticipation of this trial, and the cost of litigation was exacerbated by the fact that he had to bring two separate motions for child support and disclosure from the mother in 2024. I find that the father withdrew these RRSP funds due to the impact of the mother’s family violence on his income earning capacity and the increasing cost of litigation due to her litigation conduct. For these reasons, I conclude that it is fair and reasonable to fix his income for support purposes at the same amount as in 2023, namely $50,458.00, as that year reflected what he could reasonably earn from his apprenticeship placements while still completing the in-class portion of his plumbing program and carrying out his responsibilities as C.M.M.’s primary caregiver. This basically has the effect of including the sum of $6,264.00 from his RRSP withdrawal as part of his income for support purposes. I conclude that the sum of $50,458.00 is also a reasonable prediction of what he may earn in 2025, as he has not yet completed his program. This amount does not account for the fact that he did not work during the period of the trial, which continued until March 14, 2025, and therefore it may ultimately turn out to be too high.
646The father’s Financial Statement sworn July 9, 2024 provides helpful insight into the father’s current financial circumstances. I find that he is still essentially just breaking even every month, even though his expenses are extremely modest. He continues to only pay rent of $400.00 a month to the grandparents, and he does not have any expenses for utilities. His monthly expenses for entertainment are only $100.00 and he is not incurring any money for vacations due to his financial limitations. Apart from his pension from Rogers and an RESP for C.M.M., his investments totalled approximately $19,000.00. However, he had credit card and line of credit debts totalling approximately $11,000.00, and he and the grandparents testified that he still owes the grandparents approximately $140,000.00 on account of legal fees for the Child Protection and Family Law litigation that the grandparents lent him.
647The father incurred daycare expenses totalling $1,416.00 in 2024. After allocating $377.00 to the mother, this yields a figure of $1,039.00 to be included on the father’s side of the ledger for the purposes of the spousal support calculations.
B. The Mother
2017
648The mother worked for JNE Consulting during the parties’ marriage and continued to work there as of the separation date. She returned to work following her maternity leave in mid September 2017. I find that her wage was $25.00 an hour, and that she worked full time when she was at JNE Consulting. In 2017, her total earnings from that position from September to December were $8,400.00. Based on her wage and full-time status, I conclude that her annual income earning potential when she was at JNE Consulting was approximately $52,000.00.
2018
649The mother continued to work for JNE Consulting in 2018. However, as I have indicated in my discussion regarding her mental health, she was on sick leave from approximately April 30, 2018 until mid July 2018 due to her stress levels and difficulties coping.
650The mother’s total line 150 income for 2018 was $34,869.75. Her Guidelines income was $34,680.47, calculated as follows:
Employment income $28,093.75
Employment insurance benefits $6,776.00
Union dues deduction ($189.28)
Total Guidelines income: $34,680.47
651The mother testified that she experienced significant financial challenges in 2018, and that she was actively pursuing spousal support in the Family Law mediation sessions. As I have indicated, the father began paying her child support in June 2018. She had one mortgage with the Toronto Dominion Bank secured against the Upper Gage home. The mother’s bank account and credit card records which where adduced as evidence for the period from January 2018 to May 2018 reflect that her expenses during those 5 months included numerous purchases of fast food, several clothing purchases for herself and C.M.M., including a purchase of $583.08 from Aritzia, jewellery from Swarovski that cost $212.44, charges totalling $375.56 at a salon and spa, beauty supplies and an Elite Singles dating site.
652The mother incurred child-care expenses totalling $1,598.00 in 2018.
2019
653The mother continued to work for JNE Consulting in early 2019, but that job ended in February 2019. The mother testified that she left that position because she found the location of the business was unsafe and she no longer felt she fit in with the new personnel. However, she received a severance payout from JNE Consulting, which suggests that she was let go by her employer. As I have discussed in reviewing her medical history, she was on sick leave from January 2019 until mid February 2019.
654The mother worked for Xcel Source Corporation in Mississauga commencing March 18, 2019, but she only remained in that position for three months, until June 18, 2019. She was hired as a graphic design and marketing professional. I find based on her text messages to the father at the time that her hourly wage with Xcel was $27.00 an hour, and that her annual salary for that position was approximately $56,000.00. She testified that she left that position of her own accord because of the long commute and the stress associated with the Child Protection investigation and proceedings. However, the record of employment from Xcel indicates that she was terminated during her probationary period. In June 2019, she secured freelance work as a Marketing Manager with a company based in France called TecTecTec, which she was able to do from home.
655The mother’s line 150 income and Guidelines income in 2019 was $29,756.03, and the specifics were as follows:
Employment income $17,618.07
Retiring Allowance from JNE $6,840.00
Net business income $5,297.96
Total Guidelines income: $29,756.03
656The mother alleged that she experienced ongoing significant financial hardship in 2019, and that she persisted in seeking spousal support from the father. The father continued to pay her child support in the amount of $771.00 per month until March 31, 2019.
657The mother still had one mortgage with the Toronto Dominion Bank in 2019. I find that the father sent her $1,000.00 to assist her financially in late February 2019, but that she then used the money to fund a trip to the Dominican Republic with M.R. The mother’s bank account and credit card statements reflected spending patterns that were not at all commensurate with her reported income or her claims of undue hardship. For example, the expenses that she incurred included:
Frequent fast food purchases;
Monthly fitness fees for Goodlife Fitness;
Many purchases from the upscale grocery store Goodness Me;
A total of $784.62 in clothing purchases from Aritzia and Lululemon;
Numerous other purchases of clothing;
Several significant expenditures on beauty and hair products and appointments, totalling approximately $950.00;
Another jewellery purchase from Swarovski of $250.86;
Several purchases that appear to be related to items for her home from stores such as the Pottery Barn, Marshalls and Winners, Wayfair and HomeSense, totalling approximately $1,200.00;
Numerous significant expenses for restaurants other than fast food chains, totalling approximately $865.00;
A charge of $2,393.76 from the Willow Valley Golf Course in Mount Hope; and
Expenditures totalling $566.50 for the Deerhurst Resort.
2020
658The mother continued to work on a freelance basis with TecTecTec throughout 2020. Her work was sometimes part-time in nature due to the economic challenges of the pandemic. She received CERB benefits, and also withdrew funds from her RRSP to help cover her expenses.
659The mother’s total line 150 income and Guidelines income for 2020 was $42,650.10. This was also her income for support purposes pursuant to the Guidelines. Her sources of income were as follows:
Net business income $25,735.46
RRSP withdrawals $8,914.64
CERB benefits $8,000.00
Total Guidelines income: $45,650.10
660I have considered whether including all of the mother’s RRSP withdrawals in her income is the fairest determination of her income for 2020. I conclude that it is not. The total income amount of $45,650.10 is not reflective of her pattern of income earning capacity from 2017 to 2020, and I accept the mother’s evidence that her financial situation with TecTecTec was somewhat unsteady due to the onset of the COVID-19 pandemic. Furthermore, her RRSP was included in the equalization calculation. I emphasize that she had this RRSP account at the time of the marriage, as it was part of the Family Law settlement with her former husband. The value of the RRSP at the date of marriage was $31,836.24, and by the valuation date of January 8, 2018 it had only increased to $42,686.33. Accordingly, most of the value of the RRSP formed part of her date of marriage deduction for equalization purposes. However, the increased value was equalized. I find as well that the mother began to pay for health benefits for herself and C.M.M. in 2020, without contribution from the father, since the father had lost his employment and no longer had benefits. I estimate that this cost her $526.00 for C.M.M. in 2020, and she required additional funds to cover that worthwhile expense. Finally, the mother’s credit card statements show that she retained a lawyer in 2020 and that she was incurring legal fees for either the Child Protection proceedings or the ongoing Family Law negotiations. She therefore needed additional money to pay for her lawyer. For all of these reasons, I conclude that a fair and reasonable amount of income to attribute to the mother for support purposes for 2020 is $33,735.46, which is the amount of her CERB benefits and her net business income. This amount is in synch with her general earning capacity during this time frame. I am satisfied based on the serious concerns regarding the mother’s mental health functioning during this period that she was not realistically able to earn more income than this.
661In terms of the mother’s overall financial circumstances in 2020, she continued to have one mortgage secured against her Upper Gage property. Unfortunately, her spending habits continued to be extremely disproportionate to her earnings. Having regard for the concerns about her mental health, it would be helpful for the psychiatric and psychological assessors to address whether her excessive spending habits may be explained by any underlying mental health conditions. As of January 2020, the balance on her Toronto Dominion Emerald Flex Rate Visa card was $19,609.51, and by December 23, 2020, it had increased further to $20,268.79. Examples of the mother’s questionable spending having regard for her income in 2020 include the following:
Expenses totalling $815.85 for clothing at Lululemon and Aritzia;
Other clothing purchases totalling approximately $700.00;
Regular and frequent charges for fast food purchases;
Numerous purchases from Goodness Me;
Expenses totalling approximately $500.00 for beauty and hair supplies and services; and
A charge of $316.38 for Formans Menswear.
2021
662The mother continued to work as a freelancer with TecTecTec in 2021, and she also began to work at the Ancaster Spa on a part-time basis as an aesthetician.
663The mother’s total line 150 and Guidelines income in 2021 was $34,274.28, consisting of the following:
Employment income from Ancaster spa $1,607.84
Other employment income $456.50
RRSP withdrawal $3,000.00
Net business income $11,209.94
Other income (pandemic benefits) $18,000.00
Total Guidelines income: $34,274.28
664According to the mother, the work available from TecTecTec began to dry up in 2021, and she recognized a strong need to upgrade and diversify her skills and training so that she could increase her income and keep up with developments in the graphic design and marketing industries. Accordingly, she enrolled in a coding boot camp through the University of Toronto in the fall of 2021. She obtained a student loan of $12,707.00 on October 27, 2021. She had to make a downpayment of $1,000.00 right away, and the monthly payments on the loan were then $488.00 per month. The boot camp ran from the fall of 2021 until April 2022. The mother also continued to fund C.M.M.’s benefits plan in 2021 without contribution from the father, and I estimate that the cost to cover C.M.M. was approximately $1,572.00.
665I conclude for the same reasons outlined above that including the mother’s RRSP withdrawal of $3,000.00 would not be the fairest determination of her income for support purposes for 2021. I accept the mother’s evidence that the available work from TecTecTec was decreasing, and I am satisfied that she earned as much as she could having regard for the mental health challenges and the ongoing difficult economic circumstances due to the pandemic. Her decision to enroll in the coding boot camp was an excellent choice in the circumstances, and I find that the withdrawal of the RRSP was aimed in part to cover that expense as well as the ongoing cost of C.M.M.’s health benefits, rather than as a regular supplement to her income. For these reasons, I have decided to attribute an income of $31,275.00 to her for 2021.
666Commencing in August 2021, the father arranged to split the Canada Child Benefit for C.M.M. based on the mother’s expanded time with him. I find that he made this concession to assist the mother financially, and despite the fact that the parenting plan in place as of September 2021 when school resumed was not a shared parenting arrangement. The mother’s bank records reflect that she began to receive the sum of $257.00 per month for these benefits commencing in August 2021. On September 20, 2021, she received $514.64, for the months of August and September 2021.
667As of the summer of 2021, the mother’s credit card debt on her Toronto Dominion Emerald Flex Rate visa had increased to $20,288.57, and she also had a line of credit debt of approximately $14,400.00, a Canada Revenue Agency liability of approximately $7,144.00 and her student loan of $11,707.00. To address this growing debt problem, she took out a second mortgage on her Upper Gage residence, which resulted in her total mortgage payments increasing from $1,316.00 per month to $2,026.00 per month in September 2021. On August 16, 2021, she paid off her credit card debt in full. She also paid $10,000.00 towards her line of credit debt using the mortgage funds. Notwithstanding this growing debt problem, her spending continued to be highly disproportionate to her income. From the time that she paid off her credit card on August 16, 2021 until December 2021, she racked up new credit card charges of $4,101.39. The purchases on her credit card and chequing account in 2021 included:
Purchases at Aritzia and Lululemon totalling $1,975.19;
Other clothing expenses totalling approximately $2,250.00 for her, C.M.M. and one expense at a men’s store;
Many purchases at Goodness Me;
Regular purchases at fast food outlets;
Approximately $200.00 at other restaurants;
Approximately $650.00 on beauty and hair products and services; and
Purchases for toys and Amazon expenses totalling approximately $400.00.
2022
668The mother did a minimal amount of freelance work with TecTecTec early on in the year. On August 4, 2022, she told the Winterberry Nurse Practitioner Ms. Troup that she had not been working very much for almost a year, and she obtained a letter from Ms. Troup confirming that she was seeking employment insurance benefits because she had experienced problems maintaining work due to medical issues. The evidence indicates that the mother was also focussing on her studies during this time frame. On September 13, 2022, she advised another clinic nurse, Ms. Melissa Schuurman, that she had been focussing on her schooling at the boot camp from November 2021 until April 2022.
669The mother secured a position as a Marketing Specialist with Lubecore in the Campbellville area in August 2022. However, she lost that job in November 2022. She testified that she could not manage that position due to the stress of the ongoing Family Law and Child Protection issues, the commute and traffic to get to and from Campbellville, her responsibilities with C.M.M. as well as challenges juggling the work and getting him to school on time. She also testified that the job simply did not work for her because the employer wanted someone who could be on-site all the time. As I have previously noted, the mother went on another sick leave from November 14, 2022 until January 22, 2023 so that she could receive employment insurance benefits again. Dr. Raza noted that she presented as extremely tangential and was swapping erratically from topic to topic.
670The mother’s total line 150 income for 2022 was $32,707.00, and her Guidelines income was $32,671.00, consisting of the following:
Employment income $8,937.00
Employment insurance benefits $7,500.00
RRSP withdrawals $9,400.00
Other income- pandemic benefits $6,870.00
Union dues deduction ($36.00)
Total Guidelines income: $32,671.00
671The mother made gross business income of $4,204.48, but her net business income was nil. The mother also continued to receive half of the Canada Child Benefit in 2022, in the amount of $257.00 per month.
672I have considered once again whether including all of the mother’s RRSP withdrawals in 2022 results in a fair determination of her income for support purposes. I conclude that it does not. There were clearly extenuating circumstances in 2022, and the mother withdrew these funds to get her through those financially challenging times. These circumstances included her participation in the boot camp program until April 2022, and the medically documented decline in her mental health after she went back to work and attempted to juggle her child-care and work responsibilities along with a difficult work commute. Including her RRSP withdrawals does not represent a fair and just determination of her actual ability to earn income for support purposes in this period, and as I have noted, the RRSP was partially equalized. For these reasons, I am not including her RRSP withdrawals in her income, and I am attributing her an income of $23,271.00 for support purposes for 2022.
673The mother’s overall financial situation in 2022 continued to be problematic. The mother’s housing expenses increased in 2022 because the condominium corporation for her building unexpectedly announced a significant increase in the monthly condominium fees. I find that those fees went up to $532.10 per month. The Society’s records reflect that the mother began to consider the possibility of having to sell her home to make ends meet in 2022. The father suggested at various points in the parties’ communications that the mother consider taking on a renter as she had room in her home to do so. The mother incurred additional credit card debt as well. Instead of selling her home in 2022, the mother decided to increase the second mortgage secured against her house. She obtained funds totalling $49,579.19 from this loan on March 30, 2022, and she paid $21,637.42 to her line of credit on March 31, 2022, and $7,144.49 to clear her Canada Revenue Agency debt on April 4, 2022. However, she then drew from her line of credit again several times from June 22, 2022 onward, with these draws totalling at least $12,500.00. As a result of the increase in her second mortgage, the mother’s monthly mortgage payments increased from $2,026.00 per month to $2,640.00 per month in April 2022. She was able to reduce the payments on her Toronto Dominion Bank mortgage in June 2022, but her total mortgage payments were still approximately $2,400.00 per month. In addition, the mother had monthly payments on her student loan of $488.00 per month. The mother did not secure a renter in 2022 to assist her with these financial challenges.
674Notwithstanding this deeply worrisome financial picture, the mother’s bank account and credit card statements continued to reflect spending patterns that seemed to have no regard whatsoever for the mother’s financial realities. The balance on her Toronto Dominion Emerald Flex Rate visa went from $4,101.39 in December 2021 to $12,177.07 in December 2022. The expenses incurred on her chequing account and credit cards included the following:
Once again, frequent and regular fast food expenditures;
Numerous Goodness Me Purchases;
Clothing expenditures from Aritzia and Lululemon totalling $1,618.13;
Other clothing and footwear charges totalling over $3,000.00;
Beauty and hair products and services totalling approximately $1,220.00;
Indigo purchases totalling more than $750.00;
Hotel and restaurant expenditures totalling approximately $875.00; and
Expenses for home products totalling approximately $750.00.
2023
675The mother was on sick leave until January 22, 2023 due to stress and anxiety. She secured a position as a Digital Marketing Coordinator with Wheels Automotive Supplies Inc. (“Wheels Automotive”) commencing in late January 2023 and continued to work for Wheels Automotive throughout 2023.
676The mother’s financial situation continued to deteriorate further in 2023. She eventually took on S.M. as a tenant in July 2023, and charged her $1,000.00 a month in rent to help cover the household expenses.
677The mother’s total line 150 income in 2023 was $74,763.85. Her Guidelines income was $74,440.07, broken down as follows:
Employment income $35,594.00
Employment insurance benefits $1,071.00
RRSP withdrawals $38,611.09
Net business income $500.00
Net rental loss ($513.00)
Union dues deduction ($211.00)
Carrying and interest charge deduction ($113.00)
Total Guidelines income: $74,440.07
678The mother claimed gross rental income of $6,000.00, which means that she wrote off $6,513.00 worth of expenses to reach the net rental loss that she claimed. She attributed 35% of her home expenses, including her exorbitant mortgage payments, to the rental portion of the home, which was in the basement area. In my view, 30% is a more reasonable figure, and this results in approximately $6,000.00 in expenses being allocated to the rental portion of the home. This would result in no rental income. I am imputing $513.00 back into the mother’s income as an unreasonable deduction of rental expenses. This figure needs to be grossed up on account of the fact that the mother did not pay income tax on it, yet she received the benefit of the deduction.
679I have considered whether the inclusion of the full amount of the mother’s RRSP withdrawal leads to the fairest determination of her income, or whether a different approach to the calculation of her income should be undertaken pursuant to section 17 of the Guidelines. Before addressing that point, it is important to review the financial decisions and actions that the mother took in 2023, as her financial situation quickly spiralled even further downward. The mother did not take on S.M. as a tenant until June 2023, despite her dire financial situation. As a result, she fell even further into debt. She continued to talk to the father about likely having to sell the house, but she chose not to do so. Instead, she drew further on her line of credit in January 2023 to keep afloat financially, and in February and March 2023, she borrowed further funds totalling approximately $10,750.00, which were secured against the residence. This move brought her total monthly mortgage payments up to $3,071.00 by April 2023. In June 2023, her Toronto Dominion mortgage increased significantly at the time of renewal, and this resulted in her monthly mortgage payments skyrocketing to $3,673.00 in June 2023, although they went down to $3,398.00 by September 2023. On top of these payments, she was still obliged to make her monthly student loan payments of $488.00 per month and the monthly condominium fee payments of $532.10. Clearly, this was a completely untenable financial situation, yet the mother forged on with her decision to keep the home.
680Of equal concern, the mother continued on her path of spending excessively and far beyond her financial means in 2023. Her bank account and credit card statements reflect the following expenses;
Again, regular and frequent fast food expenditures, and many purchases from Goodness Me;
Ongoing monthly charges for Goodlife Fitness of $58.76;
Home Depot purchases totalling $500.00 in early June, 2023;
Clothing expenses at various stores for herself and C.M.M., totalling almost $3,500.00;
Hair and beauty products and supplies totalling over $700.00; and
Expenses for her trip with C.M.M. to Quebec City totalling approximately $1,100.00.
681By this time, the mother was also regularly using various types of payment platforms that allowed the expenses on her accounts to be spread over several months, and the nature of the items purchased on those platforms is not identified on the statements. Accordingly, the full extent of the mother’s spending is not reflected in the summary set out above. The mother’s Toronto Dominion Emerald Flex credit card had a balance of $12,177.07 as of December 2022, but this steadily increased each month in 2023 to the point that by May 2023, the balance was at $20,996.83. From that time onward, the mother regularly went beyond the credit limit of $20,000.00 on the card and was repeatedly warned in her monthly statements that no further use was permitted until she made the minimum payments. By December 2023, the card balance was at $19,744.37.
682Circling back to the issue of the mother’s RRSP withdrawals in 2023, I conclude based on the findings set out above that the mother withdrew these savings in an attempt to address her ever-increasing debt load and financial downhill spiral. If the mother had been acting responsibly with respect to her finances and expenditures, and she was not at fault for this increasing debt load, the rationale for not including the RRSP funds as part of her income would be more compelling. The circumstances in this case are unique, however, and each case must turn on its own facts. As I have stated, the story of the mother’s financial recklessness and spiral downward is extremely concerning. My findings set out above establish that the mother was clearly not being logical and reasonable respecting her financial decisions and was consistently living far beyond her means for several years. Given the serious concerns that I have highlighted about her mental health, her financial behaviour raises major red flags that there may be underlying mental health explanations for her financial decisions and actions. Having regard for these considerations, this is not a clear case of the mother simply withdrawing her RRSP savings to fuel a lavish lifestyle, which would have led me to include them in her income. The picture is far more complex and requires sensitivity to the possible underlying reasons for the vicious financial cycle that she found herself in by 2023. For all of these reasons, I conclude that the fairest determination of the mother’s income in 2023 requires that the RRSP withdrawals not be included in her income for support purposes. Accordingly, I am attributing her an income of $35,828.98. When the gross-up is applied on account of the unreasonable rental expense deduction, this yields an income for support purposes of $37,072.00. This amount is also within the range of her reasonable income earning capacity as compared to her earnings in other years and represents a fair and reasonable amount that was in fact available for the payment of child support having regard for the financial crisis that she was facing at the time.
2024
683The mother continued to work for Wheels Automotive in 2024. As I have indicated, she went on sick leave on August 20, 2024 due to her anxiety and stress levels, and Dr. Semenchenko wrote her a note on August 29, 2024 in support of an extension of that leave. The trial commenced in early September 2024 and continued with several breaks until March 14, 2025. The mother did not return to work during the course of the trial. As of the conclusion of the trial, the mother advised that as far as she was aware, she would be able to return to work at Wheels Automotive.
684The mother’s total income in 2024 was $43,765.14, broken down as follows:
Employment income $19,566.14
Employment insurance benefits $12,199.00
Rental income $12,000.00
Total Guidelines income: $43,765.14
685The mother’s T4 income slip from Wheels Automotive indicates that she did not pay any union dues in 2024.
686The mother’s chequing account statements reveal that her regular pay amounts from Wheels Automotive were much lower in 2024 before she went on sick leave in August 2024. She did not explain the reasons for this, which she was obliged to do, and I therefore infer that she chose to reduce her work hours.
687The mother’s financial difficulties continued unabated in 2024. Predictably, she was unable to afford her high monthly mortgage payments. However, instead of selling her home and finding a housing solution that she could manage based on the realities of her financial situation, she negotiated a new mortgage with Olympia Trust company, which essentially subsumed her second and third mortgages. This new mortgage was in the amount of $195,000.00, and was registered on February 22, 2024, with a renewal date in December 2024. The mother’s chequing account does not show any payments on this mortgage from February to December 2025. The mother testified that she negotiated an 11-month mortgage payment holiday on the Olympia Trust mortgage.
688On December 6, 2024, the mother received a payout from Legal Aid Ontario in the amount of $16,161.02. It appears that this refund may have been attributable to a contribution agreement that she entered into at some point with Legal Aid Ontario in relation to services provided to her in the past.
689Unfortunately, the mother did not scale back her spending habits in 2024 despite her ongoing financial problems. Her chequing account was in overdraft for much of the time in 2024. Her spending patterns were similar to those in other years, as described above. The additional concerning aspect of her spending in 2024 was that she continued to spend even when her bank account was in overdraft. By March 13, 2024, the overdraft on her bank account was $700.13, but she kept spending on items such as fast food and Michael’s craft store until it increased to $1,010.53 by March 19, 2024. By April 8, 2024, her overdraft was at $709.50, yet she continued to spend on fast food, a news stand and Goodness Me until it increased to $849.23. As of April 12, 2024, she had an overdraft of $758.16, but her purchases continued unabated on items such as fast food, a clothing purchase at Laura for $402.27, Michael’s craft store, children’s clothing and restaurants, resulting in an overdraft of $1,789.34 by May 1, 2024. This state of affairs respecting her excessive spending and overdraft situation continued until December 6, 2024, when she received the Legal Aid Ontario payout referred to above. From May 1, 2024 until December 6, 2024, she spent approximately $1,400.00 on clothing and footwear alone for her and C.M.M. After receiving the Legal Aid payout of $16,161.02 on December 6, 2024, she continued to spend excessively until her account balance was only at $606.12 a month later on January 8, 2025. Her expenditures from December 6, 2024 to January 8, 2025 were on additional clothing items, restaurants, Mastermind toy store, Goodness Me and beauty supplies.
690The status of the mother’s credit cards also remained concerning throughout 2024. Her Toronto Dominion Emerald Flex Rate card balance remained close to or over the card limit throughout the year. Her expenditures on that card and her Hudson’s Bay credit card reflect additional expenditures on items such as clothing, and beauty supplies. By December 2024, the balance on her Toronto Dominion Emerald Flex Rate card was over the maximum limit, at $20,253.72.
691By November 2024, the mother was at risk of losing her home to foreclosure due to her inability to cover her mortgages. It was only at that point that she realized that she had no choice but to sell the home. She listed the house for sale during this trial, on November 28, 2024.
2025
692The mother testified that her hourly wage at Wheels Automotive was just shy of $25.00 per hour. Based on this information I conclude that she could earn in the range of $42,000.00 from that position in 2025. She moved to Caledonia in February 2025 and no longer has a tenant. However, her residence is a 3-bedroom townhouse, and she will have the option of finding a tenant so that she can supplement her income through rent payments. For these reasons, I conclude that her 2024 income of $43,765.14 continues to be a fair and reasonable estimate of what she can earn in 2025, and upon which to base her child support payments from January 2025 onward as well as the spousal support analysis.
693With respect to the mother’s overall financial circumstances at this time, as I have indicated, she sold her home in February 2025. The gross proceeds of sale were $556,157.91. Her outstanding mortgages with the Toronto Dominion Bank and Olympia Trust Company were paid out of the sale proceeds. The Trust Ledger Statement of Dudzic Barristers and Solicitors relating to the sale reflect that the balance on the Toronto Dominion Bank mortgage was $245,744.07, and the balance on the Olympia Trust mortgage was $215,805.84.00. The mother received $10,000.00 from the net proceeds of sale to support herself and C.M.M. pursuant to my order dated February 19, 2025. I ordered that $3,990.00 be released from the net proceeds of sale to the father on account of costs. The sum of $622.00 has been released to the Family Responsibility Office on account of two child support payments that it enforced pursuant to the temporary order dated March 22, 2024. The balance of the net proceeds of sale being held in trust by Dudzic Barristers and Solicitors is $60,376.47.
694I find that the mother’s only assets as of the conclusion of this trial were her Hyundai vehicle and some RESPs held for the benefit of C.M.M. Her debts as of early January 2025 were as follows, not including the Toronto Dominion mortgage which was paid off after her home sold:
Toronto Dominion Emerald Flex Rate credit card $19,753.72
Unsecured Line of Credit $22,345.71
MBNA Amazon credit card $3,467.45
Hudson’s Bay credit card $2,680.74
Loan from her employer $1,500.00
Student loan $900.00
Canada Revenue Agency $4,414.38
Total debts: $55,062.00
695The mother also testified that her former partner M.R. loaned her money over the years. The evidence does not satisfy me that M.R. loaned these amounts to the mother or that he expects repayment of any monies from her. These alleged loans totalled approximately $10,000.00. The amounts of many of these alleged loans are set out in Exhibit 66, which purports to be a list of e-transfers from M.R.’s account to the mother’s account. However, when I cross referenced the dates and amounts to the mother’s only bank account that she disclosed to the father and this court, only 4 of them showed up in the mother’s account. This raises the concern that the mother may in fact have another bank account that she has not disclosed. The only alternative possibility is that the transfers were sent to someone else with the same first name as the mother. Furthermore, the mother did not question M.R. on these loans during his evidence.
V. ISSUE #2: SHOULD THE FATHER BE PERMITTED TO ADVANCE A RETROACTIVE CHILD SUPPORT CLAIM?
696As I have indicated, the father does not object to a retroactive adjustment of his child support obligations to the mother, but the mother opposes the father’s claim for retroactive child support from her. I have therefore considered the principles relevant to retroactive child support only in relation to the father’s claim for child support commencing May 1, 2019.
697Applying the principles respecting retroactive child support set out in Colucci, I start with a determination of when the father gave effective notice of his claim for child support from the mother. I find that the parties were involved in Family Law mediation and had counsel assisting them in attempting to work through their legal issues from very soon after their separation on January 8, 2018. The Society’s records and the evidence of the parties establish that this mediation was ongoing right up until the commencement of this Family Law proceeding. All of the parenting and financial issues, including child support, were regularly raised at every stage in the history of this case. As such, I find that the mother had effective notice of the father’s request for child support as of May 2019, when C.M.M. was placed in his care. The mother received formal notice of this claim when the father commenced this proceeding in September 2021. The date of effective notice falls within the three-year period prior to the date of formal notice. Accordingly, the father is presumptively entitled to child support from the mother commencing May 3, 2019, when C.M.M. was placed in his care.
698I have considered the principles set out in D.B.S. and Colucci for determining whether there are any grounds for moving the presumptive commencement date for child support forward. I conclude that there are not. Focussing first on the issue of the father’s delay in commencing this proceeding and formally seeking child support through the court, there are several understandable reasons for this delay. The most significant one is that the court will typically not permit Family Law proceedings involving parenting and other child-related issues to proceed while Child Protection proceedings are underway. Pursuant to section 103 of the Child Youth and Family Services Act 2017, proceedings under the CLRA involving decision-making responsibility and parenting time are stayed unless otherwise ordered by the court. Although the parenting issues in this case are being addressed pursuant to the Divorce Act, a similar approach is usually taken by the courts. Accordingly, it made sense from a litigation perspective to wait until the Child Protection proceedings terminated on June 7, 2021. Another reason for the delay is that the parties remained actively involved in mediation right up until the commencement of these proceedings, attempting to resolve the Family Law issues between them through that route.
699I have considered the conduct of the mother in relation to child support since May 2019. The mother would have been well aware of her child support obligation to the father as of that point, given her involvement in extensive and drawn-out negotiations. It may have been reasonable for her to hold off on paying child support for a certain period of time, given her claim for spousal support from the father and the possibility of a set-off of child support owed by her against spousal support owed to her by the father. However, this possible justification became increasingly weak as time passed. The mother has not voluntarily paid any child support to the father since May 2019. As I have noted, on March 22, 2024, Lafrenière J. ordered her to pay child support in the amount of $311.00 per month commencing January 1, 2024, a well as $100.00 per month on account of child support arrears. She has not complied with this order, and the Family Responsibility Office has only enforced $622.00 pursuant to the order to date. The mother attempted to justify her failure to pay the father child support in part by claiming that she purchased her own clothing for C.M.M. and bought some of his sports gear. However, as I have indicated, there were no legitimate concerns regarding the father’s choice of clothing for C.M.M., and her decision to purchase additional clothing for him was based on her own particular fashion sense. This is not a valid reason to reduce child support owed to a primary caregiver parent. I have discussed at length the mother’s excessive spending patterns. I find that she prioritized spending on many items for herself above paying child support to the father. All of these considerations weigh against moving the commencement date for child support forward for the mother’s benefit.
700I have also carefully considered the past and present circumstances of C.M.M. I find that both parties have done an excellent job at meeting C.M.M.’s needs notwithstanding their financial challenges since their separation. The mother emphasized that the grandparents have assisted the father in doing so, and that the father was at an advantage because of their practical hands-on and financial support. While she is correct about the assistance that the grandparents have provided, it is not the legal responsibility of grandparents to support their grandchildren, and therefore this is not a consideration that should sway the retroactive child support analysis in her favour. Furthermore, in attempting to meet C.M.M.’s daily needs as his primary caregiver, the father has had to make immense personal financial sacrifices. The mother repeatedly criticized the father both directly and to many other professionals and this court for living with his parents and not being responsible and mature enough to establish his own residence for him and C.M.M. This criticism completely ignores the harsh realities that the father required the hands-on support of the grandparents in caring for C.M.M., particularly when the pandemic struck, and that he simply lacked the financial means to acquire and maintain his own residence after losing his job at Rogers and starting his plumbing program. For all of these reasons, I conclude that a consideration of C.M.M.’s circumstances has at best a neutral impact in this analysis, as both parties have done their best to ensure that his needs have been fully satisfied.
701Finally, I have addressed my mind to the hardship that may result by ordering the mother to pay the father child support. I agree that there will be financial hardship involved, as the mother has experienced significant financial difficulties for the past several years. However, she has also made very poor decisions and engaged in reckless spending habits which in my view are the primary reasons for her financial woes. I have discussed my concerns that those decisions and habits may be attributable to underlying mental health difficulties, and I have granted her significant indulgences on account of those concerns by excluding her RRSP withdrawals from her income for the purposes of the support calculations. In considering hardship, I also highlight that the mother continued to receive half of the Canada Child Benefit with the father’s agreement despite the fact that their parenting schedule was not a shared parenting arrangement. Furthermore, in considering the hardship factor, I must also weigh the hardship that has resulted to C.M.M. and the father from not having received the proper amount of support from the mother when it came due, and which they would suffer by limiting or not allowing a retroactive award. My findings respecting the father’s financial circumstances since 2020 demonstrate that he has also been experiencing major financial struggles, but that he has made more logical and realistic financial choices than the mother has. The mother appears to have no appreciation whatsoever of the financial hardship and sacrifices that he has undergone over the past several years to ensure that C.M.M.’s needs have been met. His debts significantly exceed the mother’s debts as he owes his parents $140,000.00 on account of legal fees. There is no realistic prospect that he will be able to secure and maintain a residence for himself and C.M.M. independently from the grandparents’ home within the foreseeable future. For all of these reasons, the hardship consideration does not assist the mother in the retroactive support analysis, and does not support moving the commencement date for her obligation to pay child support forward.
V1. ISSUE # 3: CALCULATION OF THE PARTIES’ CHILD SUPPORT OBLIGATIONS
702I turn now to the appropriate terms respecting child support flowing from all of the findings and conclusions set out above. Addressing first the period from January 8, 2018 until December 31, 2018, C.M.M. was in the primary care of the mother. I conclude that the proper commencement date for child support in her favour is January 8, 2018 rather than February 1, 2018 as suggested by the father, given that the separation date was close to the start of the month. Based on the father’s 2018 income of $80,729.69, he should have paid the mother child support in the amount of $752.00 per month, yielding a total child support obligation for 2018 of $9,024.00. I find that he paid the mother child support in the amount $771.00 per month from June to December 2018, for a total of $5,397.00. Accordingly, he owes the mother child support in the amount of $3,627.00 for the year 2018.
703Focussing next on the period from January 1, 2019 until March 31, 2019, C.M.M. remained in the primary care of the mother during that time. Based on the father’s 2019 income of $79,987.00, he should have paid the mother child support in the amount of $745.00 per month, for a total of $2,235.00. He paid her $771.00 per month for those months, for a total of $2,313.00. Accordingly, he should be credited $78.00 in relation to this time period.
704Based on the foregoing, the net amount of child support owed by the father to the mother for the period from January 8, 2018 until March 31, 2019 is $3,549.00.
705C.M.M. was in foster care during the month of April 2019. Since May 3, 2019, he has been in the primary care of the father. From May 3, 2019 to December 31, 2019, the mother should have paid the father child support in the amount of $254.00 per month based on her 2019 income of $29,756.03, for a total child support obligation of $2,032.00 for 2019. She did not pay him any support during this period.
706For the period from January 1, 2020 until December 31, 2020, the mother should have paid the father child support in the amount of $289.00 based on her income of $33,735.46, for a total amount of $3,468.00 in 2020. She did not pay him any child support in 2020.
707From January 1, 2021 until December 31, 2021, the mother was obliged to pay the father child support in the sum of $266.00 per month based on the income that I have attributed to her of $31,275.00. Her total support obligation for 2021 was therefore $3,192.00. She did not pay the father any child support that year.
708From January 1, 2022 to December 31, 2022, the mother should have paid the father child support in the amount of $186.00 per month based on the income that I have attributed to her of $23,271.00, for a total amount of $2,232.00 in 2022. She did not pay any child support that year.
709Commencing January 1, 2023 and continuing until December 31, 2023, the mother’s child support obligation was in the amount of $327.00 based on her income for support purposes of $37,027.00. Her total child support obligation in 2023 was therefore $3,924.00. Again, she did not pay any support.
710From January 1, 2024 until December 31, 2024, the mother was obliged to pay the father child support in the amount of $403.00 per month based on her income of $43,765.14, for a total child support obligation of $4,836.00 for 2024. From this amount, I am crediting her the sum of $622.00 on account of the fact that the Family Responsibility has already enforced that amount pursuant to the March 22, 2024 child support order. Therefore, her total child support obligation for 2024 was $4,214.00.
711Commencing January 1, 2025, the mother should have continued paying child support in the amount of $403.00 per month. She has not paid any child support to date this year, and therefore she owes the father $2,015.00 for the period from January 1, 2025 to May 31, 2025.
712Based on the foregoing, the mother’s child support obligation to the father pursuant to the Tables under the Guidelines for the period from May 1, 2019 until May 31, 2025 totals $21,077.00. This amount will be set off against the amount of $3,549.00 owed by the father to her for child support, with the net result that the mother’s total child support owed to the father pursuant to the Tables up to and including May 31, 2025 will be fixed in the amount of $17,528.00. The mother should pay ongoing child support to the father in the amount of $403.00 per month commencing June 1, 2025 and continuing on the first day of every month that follows.
713Both parties seek an order that they each maintain C.M.M. as a beneficiary on any health benefits plans and life insurance policies available to them through their insurance. My order includes such terms.
VII. ISSUE # 4: SHOULD THE CHILD SUPPORT PAYABLE BY THE MOTHER BE REDUCED OR ELIMINATED ON THE BASIS OF UNDUE HARDSHIP?
714I conclude that there are no grounds for reducing the amount of child support that the mother owes to the father on account of undue hardship pursuant to section 10 of the Guidelines. None of the circumstances set out in section 10(2) apply in this case. With respect specifically to the cost of the mother’s supervised parenting time, the evidence establishes that it will only cost approximately $200.00 per year. This does not bring the case within the scope of section 10(2)(b) of the Guidelines. I recognize that the circumstances set out in section 10(2) are not intended to be an exhaustive list for the consideration of an undue hardship claim, but there are in my view no other circumstances that justify resort to section 10 to reduce or eliminate the mother’s child support obligation. As I have stated, my view is that the mother’s financial hardship is primarily of her own doing based on her unreasonable financial decisions and exorbitant spending habits. I have granted her significant indulgences in the calculation of her income based on the concerns about her mental health. Allowing an undue hardship claim over and above these major indulgences in this type of situation would incentivize parents to place their own interests above those of their children and to be deficient in their child support obligations. It would also undermine the objective set out in section 1(a) of the Guidelines of ensuring a fair standard of support that ensures that children continue to benefit from the financial means of both parents following separation. Furthermore, the assessment of undue hardship must be undertaken in a holistic manner that also considers that hardship that would inure to C.M.M. and the father by reducing the amount of child support owed to the father. The concerns that I have outlined about hardship to C.M.M. and the father in the context of the retroactive child support claim apply equally to the mother’s undue hardship claim under section 10 of the Guidelines, and they militate against allowing that claim.
715In regard to concerns respecting the mother’s financial difficulties, I note that there are sufficient funds from the net proceeds from the sale of the Upper Gage property to cover her retroactive child support liability.
PART 10: THE MOTHER’S SPOUSAL SUPPORT CLAIM
I. POSITIONS OF THE PARTIES
A. The Mother’s Position
716The mother seeks retroactive and ongoing spousal support from the father. She states that she is entitled to spousal support, both on compensatory and needs-based grounds. In her proposed draft order, she requested that the issue of spousal support be deferred as she was not working during the period of the trial. However, in her Closing Submissions, she did not ask for this deferral. She requests spousal support from January 2018 onward. However, in her Closing Submissions, she acknowledged that she received most of the contents of the matrimonial home, and that the parties had agreed that this would be in lieu of spousal support for a certain period of time. Accordingly, she agrees that the father should be granted some form of credit towards spousal support on account of her retention of the matrimonial home contents.
717In terms of quantum and duration of spousal support, the mother acknowledged in her Closing Submissions that she was not fully informed about the principles relating to those issues. These issues are not addressed in her proposed draft order either. I note that I did provide her with several cases and significant guidance to assist her in this analysis. However, she essentially stated that the quantum and duration of spousal support should be as the court considers to be fair and just.
B. The Father’s Position
718The father opposes the mother’s spousal support claim. He submits that she is not entitled to support either on compensatory grounds or based on need. With respect to compensatory entitlement, he acknowledges that she took a one-year maternity leave to care for C.M.M. However, he highlights that she had difficulty keeping up with the household and child-care responsibilities, and that he had to pick up the slack in those areas on top of all of his work responsibilities. He also noted that he was the party responsible for almost all of the outdoor home management duties. Furthermore, he emphasizes that he has had primary care of C.M.M. since May 2019, and that the compensatory considerations weigh against a finding of spousal support entitlement for the mother.
719The father testified that the mother has always experienced difficulties holding down jobs since he has known her, and he acknowledged that this continues to be the case. However, he denies that she has a needs-based claim to entitlement for support. He argues that she has always worked, that she did not suffer any economic hardship as a result of the breakdown of the marriage, and that she is self-sufficient.
720If the court concludes that the mother is entitled to spousal support, the father does not oppose the spousal support being retroactive to January 2018, but he submits that it should be time limited, until the end of 2020. This position is based largely on the fact that he lost his employment in 2020, and his income decreased significantly after that time resulting in him being unable to pay spousal support. As to quantum of spousal support if it is ordered, he suggests that it be in the amount of $200.00 per month from January to December 2018, $300.00 per month from January to December 2019, and $550.00 per month from January to December 2020. However, those amounts assumed that both parties’ RRSP and pension amounts would be included in their incomes. Essentially, his position is that any spousal support that he is ordered to pay to the mother should be in the low ranges for both quantum and duration under the SSAG having regard for the court’s ultimate determination of the parties’ respective incomes. His position respecting the low ranges is based on the weakness of the mother’s compensatory claim, the relatively short length of the marriage, the fact that the mother has always worked and the need to encourage her to achieve self-sufficiency within a reasonable time. Finally, if spousal support is ordered, the father seeks to be credited a reasonable amount given that the mother received almost all of the matrimonial home contents, that he paid for many of her own expenses as well as her share of many joint expenses from January 8, 2018 to May 31, 2018, and that he continued to pay several of her expenses after the matrimonial home sold.
II. RELEVANT LEGAL PRINCIPLES RESPECTING SPOUSAL SUPPORT
A. Statutory Provisions and General Principles
721The analysis of the mother’s spousal support claims is governed by the Divorce Act. Sections 15.2(1) to (3) of the Act set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable, as follows:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
15.2(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
722Section 15.2(6) of the Divorce Act describes the general objectives of spousal support as follows:
Objectives of spousal support order
15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
723Other important objectives reflected in the Divorce Act that must be considered in making a spousal support order are finality, certainty and the autonomy of parties to determine their own affairs (Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 (S.C.C.), at paras. 57-58, 86).
724Section 15.2(4) of the Divorce Act outlines the factors that the court must consider in making a spousal support order:
Factors
15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
a) the length of time the spouses cohabited;
b) the functions performed by each spouse during cohabitation; and
c) any order, agreement or arrangement relating to support of either spouse.
725Section 15.2(5) of the Divorce Act establishes the principle that misconduct of a spouse in relation to the marriage is not a relevant consideration in a spousal support proceeding under the Act. In Leskun v. Leskun, 2006 SCC 25 (S.C.C.), at para. 21, the Supreme Court of Canada emphasized that section 15.2(5) of the Act clearly reflects the policy underlying the legislation of avoiding the attribution of fault in the spousal support analysis. However, it clarified that there is a distinction between misconduct in and of itself, and the consequences of such misconduct, which may be relevant to the spousal support analysis if they have impacted a spouse’s ability to become self-sufficient.
726In cases involving requests for both child and spousal support, the court must give priority to child support in determining the claims. This requirement flows from section 15.3 of the Divorce Act, which stipulates as follows:
Priority to child support
1.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.
727Section 15.3(2) of the Divorce Act provides that if the court declines to order spousal support or awards lower spousal support than it would have otherwise ordered as a result of giving priority to child support, the court must record its reasons for doing so. Where this occurs, any change in the child support order will constitute a change of circumstances for the purposes of a subsequent application for spousal support or a spousal support variation proceeding, by virtue of section 15.3(3):
Consequences of reduction or termination of child support order
15.3(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
728The determination of spousal support claims requires the court to address the issues of entitlement, quantum and duration. The statutory objectives and factors referred to above inform every aspect of the spousal support analysis. In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.), at para. 48, L’Heureux-Dube J. concisely summarized the overall goal of the spousal support provisions of the Divorce Act as being to effect “a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender.” Formulating an appropriate spousal support award is a highly individualized and discretionary exercise that requires the court to carefully balance the numerous support objectives and factors set out in the Divorce Act in the context of the particular facts of the case before the court (Racco v. Racco, 2014 ONCA 330 (C.A.)).
B. Legal Principles Respecting Spousal Support Reviews
729As I have indicated, the mother’s position respecting the spousal support issues changed at various points in this litigation, and even during the trial. Her proposed draft order suggested that she sought an order “deferring” the issue of spousal support until she returned to work, yet she did not request such relief in her Closing Submissions. Given that she was self-represented, and her apparent struggles in addressing the spousal support issues, I will address the principles respecting spousal support reviews out of an abundance of caution.
730The court’s authority to permit a review of spousal support as an alternative to a variation proceeding derives from section 15.2(3) of the Divorce Act, which permits the court to impose such terms, conditions or restrictions in connection with a spousal support order as it thinks fit and just. A review application is distinct from a spousal support variation proceeding in that it permits a party to request changes to a spousal support order without having to demonstrate a material change in circumstances as a threshold matter (Leskun, at para. 37). In Leskun, the Supreme Court of Canada emphasized that review orders pursuant to section 15.2(3) have a “useful but very limited role,” and that they should only be granted where they are “justified by genuine and material uncertainty at the time of the original trial” (at paras. 36-37) or a “real contingency that was incapable of immediate resolution” (at para. 40). In Fisher, the Ontario Court of Appeal reinforced that review orders are only appropriate when the court is satisfied that a specified uncertainty about a party’s circumstances at the time of trial will become certain within an identifiable timeframe (at para. 70). Review orders are the exception and not the norm in spousal support proceedings (Fisher, at para. 70). In both Leskun and Fisher, the courts underlined that trial judges should resist making spousal orders that are subject to review and should insofar as possible resolve the spousal support controversies before them and make an order which is permanent, subject only to variation pursuant to section 17 of the Divorce Act upon proof of a material change in circumstances having occurred (Leskun, at para. 39; Fisher, at para. 64).
731The Supreme Court of Canada also stressed in Leskun that if a spousal support review is considered essential, the judge making the order should tightly delineate the issue for future review in the order, since failing to do so will inevitably be seen as an invitation to one or both of the parties to completely reargue their case (at para. 39). The Ontario Court of Appeal elaborated upon this principle in Fisher, stating that if a review order is granted, it should include “specifics regarding the issue about which there is uncertainty and when and how the trial judge anticipates that uncertainty will be resolved” (at para. 70). If the review order does not restrict the scope of the review to a specific issue, the review proceeding is generally equivalent to a trial de novo of the spousal support claims and necessitates a rehearing of every issue, including entitlement, quantum and duration of spousal support (Fisher, at para. 63; Djekic v. Zai, 2015 ONCA 25 (C.A.), at para. 88; S.A.H. v. K.A.H., 2022 NBCA 17 (C.A.), at para. 54).
C. The Objectives of Spousal Support
732The Supreme Court of Canada has held that all of the spousal support objectives reflected in the Divorce Act must be considered, and that no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be accorded to each objective, based on the particular circumstances of the case before the court (Moge, at para. 52; Bracklow v. Bracklow, [1991] 1 S.C.R. 420 (S.C.C.), at para. 35; Miglin, at para. 39; L.M.P. v. L.S., 2011 CarswellQue 13698, 2011 SCC 64 (S.C.C.), at para. 49; Fisher, at para. 34; Racco, at paras. 23-25).
733The objectives set out in section 15.2(6)(a)(b) and (c) of the Divorce Act reflect the general principle that the overall economic consequences of the marriage and the parties’ separation should be equitably shared between the former spouses (Moge; Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 (S.C.C.), at para. 21). Section 15.2(6)(a) provides that a spousal support award should recognize any economic advantages and disadvantages arising from the marriage or its breakdown. In Hickey, the Supreme Court of Canada emphasized that this provision, in particular, “recognizes the importance, when deciding on spousal support or variation orders, of compensating former spouses for advantages gained and disadvantages suffered as a result of the marriage itself and the decisions the parties made and roles they played within it” (at para. 22). In Moge, the court reiterated that a major focus of the spousal support analysis is “the effect of the marriage in either impairing or improving each party’s economic prospects” (at para. 44; see also Rioux v. Rioux, 2009 ONCA 569 (C.A.), at para. 36).
734Section 15.2(6)(c) of the Divorce Act outlines the important goal of relieving economic hardship arising from the breakdown of the marriage. In considering this objective, the court must examine the changes in the economic situation of the parties caused by the separation, taking into account the parties’ current needs and means and all other relevant circumstances (Hickey, at para. 22).
735The other two objectives set out in sections 15.2(6)(b) and (d) of apportioning between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage, and promoting economic self-sufficiency to the extent practicable, are equally important to the formulation of an appropriate spousal support order. Section 15.2(6)(b) recognizes that child-care responsibility post-separation may continue to impair a spouse’s economic advancement, and that the spouse should be compensated for any such consequences. The self-sufficiency objective set out in section 15.2(6)(d) highlights that the end of marriage brings about new financial realities for the spouses, and that the party with the lower income will need to make reasonable attempts to achieve financial independence. The Supreme Court of Canada commented on this objective in Moge, Boston, Leskun and L.M.P. v. L.S. It emphasized that the self-sufficiency objective should not be characterized as an absolute duty on a recipient spouse to attain financial independence, and that this goal only applies “in so far as practicable.” It noted that the extent to which a spouse may be expected to achieve self-sufficiency, and the appropriate time frame for realizing this goal, will depend on the circumstances of the parties and the dynamics of the marital relationship in each particular case. The court also highlighted that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances (see also Remillard v. Remillard, 2014 MBCA 101 (C.A.), at para. 108; Reisman v. Reisman, 2014 ONCA 109 (C.A.), at para. 28; Choquette v. Choquette, 2019 ONCA 306 (C.A.), at para. 17).
736In considering the objective of self-sufficiency, the court should assess whether the vocational skills that the spousal support claimant exercised during the marriage translate well to remunerative employment post-separation (Wharry v. Wharry, 2016 ONCA 930 (C.A.), at para. 98). In addition, the court must recognize that the concept of self-sufficiency is a relative one which must take into consideration the parties’ standard of living during the marriage. Self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living, taking into account the lifestyle that the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage because of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage (Rioux; Fisher; Allaire v. Allaire, 2003 CarswellOnt 1002 (C.A.)). As the court stated in Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation” (at para. 53). However, the caselaw also establishes that the goal of self-sufficiency can be achieved not only by the support recipient improving their own financial means, but also by adjusting their standard of living over time to one that is commensurate with their own income and other means (Fisher). The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation, and will expect a support recipient to adjust their lifestyle to one compatible with their own means, will depend on a careful balancing of all of the spousal support objectives and factors. L’Heureux-Dubé J. made this point in Moge, where she stated that since marriage should be regarded as a joint endeavour, “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution” (at para. 85). Ultimately, the analysis of the self-sufficiency objective requires consideration of “the parties’ present and potential incomes, their standard of living during the marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances including the impact of equalization of their property, the duration of their cohabitation and any other relevant factors” (Fisher, at para. 53; see also Parton v. Parton, 2018 BCCA 273 (C.A.), at para. 53).
D. Statutory Factors Relevant to the Spousal Support Analysis
737The description in section 15.2(4) of the Divorce Act of the factors relevant to the spousal support analysis is very broad and highlights the highly discretionary nature of spousal support determinations. However, not every consideration will be relevant to the support analysis. The factors referred to in section 15.2(4) must be interpreted in the context of the spousal support objectives identified in the Act, and they are circumscribed by those purposes. The condition, means, needs and other circumstances relied upon must therefore be relevant in some way to those objectives.
738The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life (Metz v. Metz, 2004 ABQB 528 (Q.B.), at para. 23; Bennett v. Bennett, 2005 ABQB 984 (Q.B.), at para. 27; Menegaldo v. Menegaldo, 2012 ONSC 2915 (S.C.J.), at para. 40; Kinsella v. Mills). A spouse’s “means” is to be given an expansive interpretation, and encompasses all financial resources, capital assets, income from any sources, investments, pensions and any other sources from which the spouse derives gains or benefits (Strang v. Strang, 1992 CanLII 55 (SCC), [1992] 2 S.C.R. 112 (S.C.C.), at para. 15; Leskun, at para. 29; Mason, at para. 68; Aubin v. Aubin, 2020 ABCA 13 (C.A.), at para. 135; Kinsella v. Mills, at para. 89). The term also encompasses the capacity of a party to earn income from any sources, including from a Family Law property judgment (Hickey, at paras. 62 and 64; Boston, at para. 54), and the assets and means that a party is likely to have in the future (Mason, at para. 70).
739The “needs” of each spouse is another factor relevant to all elements of the spousal support analysis. As with the self-sufficiency objective, the assessment of the claimant’s “needs” does not focus on ensuring that they can obtain the basic necessities of life; again, it must take into consideration the accustomed lifestyle of the spouses during the relationship, subject to the ability of the payor spouse to pay (Rioux; Schulstad, at para. 57). In considering the extent of a spouse’s needs from this perspective, the court should have regard for the joint income which the parties anticipated they would be able to enjoy as of the time of their separation (Rioux). The weight to be accorded to the parties’ accustomed standard of life in assessing need will depend on the particular circumstances of each relationship as well as the outcome of the determination of any property issues (Linton v. Linton, 1990 CanLII 2597 (ON CA), 1990, CarswellOnt 316 (C.A.), at para. 92).
740The general reference to “other circumstances” of the parties in section 15.2(4) of the Divorce Act encompasses any other factors respecting the parties’ circumstances which may be relevant to spousal support. This would in some circumstances include the parties’ respective obligations towards other family members post-separation (Fisher). The reference to any other circumstances of the parties also allows for consideration of the parties’ respective debts and liabilities, their ability to manage those debts in the future, the payor’s ability to pay support, and any benefit that the spousal support claimant has received as a result of the allocation of debts (Goodine v. Goodine, 2013 NSSC 98 (S.C.); Castedo v. Haldorsen, 2016 ONSC 3870 (S.C.J.), at paras. 102-104; Kinsella v. Mills, at para. 91).
741Finally, section 15.2(4) delineates the length of the parties’ cohabitation and the functions which they performed during their cohabitation as mandatory factors to consider in deciding a spousal support claim. These are relevant at every stage of the analysis.
E. Spousal Support Entitlement
742The first step of the spousal support analysis is to ascertain whether the claimant is entitled to support, and if so, the grounds for their entitlement. Delineating the grounds upon which entitlement is based is a key part of the analysis, since those grounds will in turn inform the court’s decision-making on the issues of quantum and duration of support.
743Entitlement to spousal support must be determined in accordance with the terms of the governing legislation. Accordingly, the spousal support objectives and factors discussed above provide the framework for the analysis. However, the issue of entitlement should be considered keeping in mind the following three general conceptual models upon which entitlement to spousal support may arise:
Compensatory support, which primarily relates to the first two objectives set out in sections 15.2(6)(a) and (b) of the Divorce Act;
Non-compensatory support, which primarily relates to the third and fourth objectives set out in sections 15.2(6)(c) and (d) of the Act; and
Contractual support.
(Moge; Bracklow)
744The court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground (Chutter v. Chutter, 2008 BCCA 507 (C.A.), leave to appeal to S.C.C. refused, [2009] 1 S.C.R. vi (note)). It is critical for the court to determine all grounds for entitlement, as the basis for entitlement may have a significant impact on quantum and duration of spousal support (Cassidy v. McNeil, 2010 ONCA 218 (C.A.), at para. 64).
745The compensatory basis for spousal support entitlement recognizes that upon the breakdown of a relationship, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objectives of a compensatory award are to provide some degree of compensation for economic loss or disadvantage experienced by the recipient spouse because of the roles adopted during the marriage or following separation, or for the economic benefits which the payor spouse derived from the claimant’s sacrifices and contributions, for which the claimant has not been adequately compensated (Moge, at paras. 68-70). A compensatory award recognizes that such sacrifices, contributions and benefits experienced or conferred often lead to interdependency between the spouses and merger of their economic lives which can leave one spouse in a much more advantageous financial situation than the other post-separation (Cassidy).
746Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage or contributed to economic advantage to the other spouse by assuming a disproportionate share of the responsibilities relating to child-care, care of extended family members and/or home management matters. The fact that a party continued to work during the relationship and advanced their career while also assuming child-care and household responsibilities does not preclude the possibility of a compensatory claim, since their disproportionate “labour on the home front” may have affected the extent of their career advancement and/or enabled the other party to pursue their own career and advance financially (Gray v. Gray, 2014 ONCA 659 (C.A.), at para. 40). A compensatory claim can also be founded on other forms of contribution and sacrifice during the relationship or post-separation. Examples include subordinating one’s career and income-earning capacity to support the other spouse’s career advancement (Gray v. Gray; Valley); supporting the family while the other party obtained or upgraded their education (Allaire); selling assets or a business for the benefit of the family unit (Jens v. Jens, 2008 BCCA 392 (C.A.)); assisting a party financially or otherwise in establishing and operating a business that is the source of that party’s income (Chutter; Kinsella v. Mills); loss of seniority, promotion, training or other benefits resulting from roles adopted during the relationship; or assuming primary child rearing responsibilities following separation (Moge; Cassidy; Gray; Allaire). In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of any advantages and disadvantages which each party experienced as a result of the marital union and the roles adopted post-separation. In some situations, a party’s compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse or contributions that the other spouse made to the claimant’s financial advancement or potential (Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 35 R.F.L. (5th) 177 (C.A.), additional reasons at 2003 CarswellOnt 159 (C.A.); Reid v. Gillingham, 2014 NBQB 79 (Q.B.), aff’d 2015 CarswellNB 176 (N.B.C.A.), leave to appeal refused 2015 CarswellNB 442 (S.C.C.); Kinsella v. Mills; A.E. v. A.E., at para. 465).
747Spousal support entitlement can also arise on a non-compensatory basis (also referred to as a “needs-basis”). This ground of entitlement is founded on the claimant spouse’s economic need alone at the time of separation, even if that need is unconnected to any disadvantage arising from the relationship (Bracklow; Kallaba v. Bylykbashi, 2006 CarswellOnt 749 (C.A.), at para. 81; Roseneck). Again, in assessing entitlement on needs-based considerations, the extent of the claimant spouse’s need should be measured against the marital standard of living of the parties, and the weight to be accorded to that standard will depend on the facts of each case (Fisher; Gray v. Gray, at para. 27; Berger v. Berger, 2016 ONCA 884 (C.A.), at para. 117; Mason, at para. 201). The obligation to support a spouse based on need is premised on the notions that relationships can create “interdependencies that cannot easily be unraveled when the relationship ends” (Bracklow, at para. 30), and that primary responsibility for supporting a dependent partner should rest upon the other spouse rather than the state (Bracklow, at para. 23). The need of the recipient spouse may arise due to health-related challenges, the roles they adopted during the relationship or by virtue of a status quo that developed over time of the party being out of the workforce (Shen v. Tong, 2013 BCCA 519 (C.A.), at para. 76; Kinsella v. Mills). The extent of a spouse’s obligation to meet their partner’s post-separation needs depends on many factors, including the length of the parties’ relationship, the manner in which they structured their relationship, ability to pay, and the re-partnering of either party (Bracklow). In Bracklow, the court emphasized the importance in non-compensatory cases of analyzing the nature of the parties’ relationship prior to separation, and in particular, to determine whether there was any evidence as of the separation date to rebut the presumption of mutuality and interdependence. If this presumption is rebutted, then it is open to the court to find that the claimant spouse did not suffer any economic consequences because of the breakdown of the relationship. However, this is not a determinative factor. The court also recognized in Bracklow that needs-based entitlement may arise based on a spouse’s health-related difficulties, noting that “in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less” (at para. 48; see also Gray v. Gray, at para. 28).
748The courts have also emphasized that a mere disparity in the parties’ respective incomes and overall financial circumstances does not in and of itself lead to entitlement to spousal support based on need (Berger, at para. 53). As the British Columbia Court of Appeal stated in Lee v. Lee, 2014 BCCA 383 (C.A.), marriage does not engage an automatic “tool of redistribution.” Spouses must establish entitlement and cannot simply assume that marriage creates a lifelong guaranteed income solely on the basis that their spouse earns a larger salary. The court must carefully weigh all of the relevant spousal support objectives and factors in each case to determine whether a spousal support recipient should be expected to gradually adjust their standard of living over time to one commensurate with their own income, and if so, the reasonable time frame within which this should occur and entitlement should end (Fisher, at para. 59).
F. Quantum and Duration of Spousal Support
1. General Principles
749The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in sections 15.2(4) to 15.2(6) of the Divorce Act. It is important to note that even if the evidence establishes entitlement to spousal support, a review of all relevant factors in the case may lead the court to conclude that no support should be ordered. The advent of the SSAG has provided considerable assistance to the legal profession in addressing questions relating to quantum and duration of spousal support. The SSAG do not address the issue of initial entitlement to spousal support, and therefore they should only be considered after the preliminary issue of entitlement has been established. This is so even if the disparity in the parties’ incomes produces a positive range for quantum under the guidelines (The Revised User’s Guide, at p. 9); see also Yemchuk v. Yemchuk, 2005 BCCA 406 (C.A.)).
750The SSAG are advisory in nature and are therefore not binding on the court (Fisher, at para. 95; Racco, at para. 44). However, in original applications, they are the appropriate starting point for determining the proper quantum and duration of support, and the Ontario Court of Appeal has held that they should not be departed from lightly because “without them, it is difficult to establish a principled basis for arriving at a figure for spousal support” (Slongo, at para. 105; see also McKinnon v McKinnon, 2018 ONCA 596 (C.A.), at para. 24; Schulstad, at para. 52). The Ontario Court of Appeal has held that any departure from the SSAG should be accompanied by an explanation (Fisher, at para. 103); McKinnon, at para. 24). Notwithstanding these principles, the quantum and duration ranges generated by the SSAG simply provide a general framework for the exercise of the court’s discretion, and it is therefore open to the court to go above and below the ranges in appropriate circumstances (Alalouf v. Sumar, 2019 ONCA 611 (C.A.), at paras. 21 and 24; Naegels, at para. 14). Ultimately, the factors and objectives of spousal support set out in sections 15.2(4) and 15.2(6) of the Divorce Act, and the unique circumstances of each case are the governing considerations upon which the court must assess the reasonableness of an award suggested by the SSAG (Fisher, at para. 96; Racco, at para. 44; Mason, at para. 74). Furthermore, as in all areas of the law, the jurisprudence regarding spousal support evolves over time to adapt appropriately to the changing social context and landscape. It is therefore important to consider caselaw that has departed from the ranges suggested by the SSAG, the reasons for those departures and whether there are any general patterns that emerge from those decisions over time. Given appellate court direction that courts must consider the SSAG and explain any departure from them, it will be critical for the SSAG authors to continue in the valuable work that they have undertaken to date in tracking any such trends in the caselaw, and to update the SSAG regularly in response to important developments in the law. This will be imperative so that the appropriate balance is maintained between the primary role of judicial discretion in dealing with spousal support claims and reliance on the SSAG as a valuable, reliable and enduring tool in the exercise of that discretion.
751The SSAG formulas generate suggested ranges for both quantum and duration of spousal support. The ranges allow for accommodations for the specific circumstances of each case, taking into consideration the support factors and objectives set out in the applicable legislation. The fixing of the appropriate quantum and duration within the ranges suggested by the SSAG is intended to be a sophisticated exercise. As Walsh J. emphasized in Brown v. Brown, 2013 NBQB 369 (Q.B.), at para. 46, “[u]nder the SSAG formulas, the mid-range for amounts is not intended to be the default position, nor is the low or high end of the range for amounts intended to be the exceptions.” The courts should not simply default to the mid-ranges generated by the SSAG without carefully analyzing the factors that informed the decision (Kinsella v. Mills).
752The SSAG were developed around two basic formulas, namely, the Without Child Support formula and the With Child Support formula. As the authors of the SSAG emphasize, the With Child Support formula is in fact a cluster of formulas dealing with different parenting arrangements. It is critical when applying the SSAG to use the correct formula, since failing to do so can also lead to major distortions in the recommended ranges for quantum and duration. For cases such as this one, in which the parent with primary care of a child is the spousal support payor, the hybrid “Custodial Payor” formula applies. Under this formula, the spouses’ Guidelines incomes are reduced by the grossed-up amount of their child support obligations (actual or notional) to determine their pre-tax value, and then the Without Child Support formula is applied to determine amount and duration (SSAG, section 3.3.4). In reducing the parties’ gross incomes by the grossed-up amounts for child support, the formula establishes the spouses’ available incomes after their child support obligations are fulfilled in the same manner as the basic With Child Support formula. The Without Child Support formula that is then applied relies heavily upon length of the parties’ relationship, including periods of pre-marital cohabitation, to determine both the amount and duration of support. It is constructed around the concept of merger over time, and both amount and duration increase with the length of the relationship under this framework (SSAG, section 3.3.3).
753Given that the SSAG are income-based guidelines, it is necessary to consider the SSAG provisions for determining income, or to explain why those provisions should not apply (Mason, at paras. 119-120). It is also important to carefully consider both the quantum and durational ranges generated by the SSAG; to apply one and ignore the other is a misapplication of the SSAG that could undermine the integrity and coherence of the tool and lead to improper outcomes (Fisher, at para. 109; Wharry at para. 86; Kinsella v. Mills). In deciding quantum and duration, it is necessary as well to consider any interim orders for spousal support that have been made, and any voluntary spousal support arrangements or financial assistance that have been in effect since separation. Failing to do so can also result in a distortion of the SSAG recommendations (Fisher, at para. 80; Kinsella v. Mills).
2. Principles and Factors Relevant to Determining the Appropriate Location in the Quantum and Duration Ranges
754Sections15.2(4) and 15.2(6) of the Divorce Act, the SSAG, the Revised User’s Guide and the caselaw have highlighted several principles and factors that may be particularly useful to the court in determining the appropriate quantum and duration of support either within or outside of the SSAG ranges. These include the following:
The basis for spousal support entitlement is a critical factor in determining quantum, duration and location within the SSAG ranges. For instance, a strong compensatory claim may favour a spousal support award at the higher end of the ranges both in terms of quantum and duration (Schulstad v. Schulstad, 2017 ONCA 95 (C.A.), at paras. 54-55; Wharry, at para. 94). By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration. Similarly, a non-compensatory claim based only upon loss of the marital standard of living may justify an award at the lower end of the ranges (SSAG, at p. 39; Bracklow; Midgley v. Midgley, 2001 CarswellBC 2009 (C.A.); Wharry at para. 94; Mason, at para 200; Schulstad at paras. 54-55).
In compensatory cases, the goal in establishing quantum and duration should be to formulate an award that reflects the economic disadvantages and advantages flowing from the marriage, and that continues until those consequences are redressed, even if the recipient has reached a reasonable degree of self-sufficiency (Morigeau v. Moorey, 2015 BCCA 160 (C.A.), at para. 243; Tedham v. Tedham, 2005 BCCA 502 (C.A.), at paras. 58-60; Allaire; Dancy v. Mason, 2019 ONCA 410 (C.A.)).
The extent of the recipient’s needs is an important consideration. Where the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration ranges. By contrast, the absence of any compelling need may support an award toward the lower end of the range (Wharry, at para. 94; Berger, at para 119; Schulstad, at paras. 53 and 56). The fact that the recipient has reduced living expenses may also be relevant.
In assessing the level of a recipient spouse’s need for the purposes of the quantum and duration analysis, the goal is not simply to award an amount that “meets expenses dollar for dollar” (Berger, at para. 117). As with the entitlement analysis, the court must consider the recipient’s need against the parties’ standard of living during the relationship, and factors such as the length of the relationship and the degree of economic interdependency that developed between the parties (Allaire at para. 21; Berger, at para. 117; Fisher, at para. 56; Chutter, at paras. 128, 140, 142; Hsieh v. Lui, 2017 BCCA 51 (C.A.), at para. 43; Parton, at para. 39; Winscombe v. Wiscombe, 2018 NLCA 36 (C.A.), at para. 29). In some circumstances, there will be an expectation upon the claimant spouse to adapt to a lower standard of living following separation or after a reasonable transitional period (Fisher, at para. 88).
The age, number, needs and standard of living of any children in the care of either party.
The payor spouse’s needs and ability to pay are also important considerations. In Schulstad, the Ontario Court of Appeal noted that need and limited ability to pay on the part of the payor may push an award to the lower ends of the SSAG ranges (at paras. 53 and 58-59; see also Berger, at para. 119, Wharry, at para. 94).
The need to preserve work incentives for the payor.
Property division. The Supreme Court of Canada’s analysis in Moge recognized that a fair distribution of the economic consequences of a relationship and its breakdown may be achieved either by spousal support, by the division of property, or both. The resolution of issues relating to the parties’ assets and debts is therefore relevant to the issues of entitlement, quantum and duration of spousal support (see also Faiello v. Faiello, 2019 ONCA 710 (C.A.), at para. 78; Berger, at paras. 124-127; Halliwell v. Halliwell, 2017 ONCA 349 (C.A.), at para. 141). Accordingly, it is well established that where there are both spousal support and property issues involved in a case, the court should first consider the parties’ respective property-related obligations and entitlements, and then determine the issues of spousal support (Estephan v. Estephan, 2013 BCCA 540 (C.A.); Halliwell).
The parties’ respective debt loads. The fact that a party is left with a high debt load post-separation may also be a factor that pushes quantum higher or lower within the range. Significant debt may affect a party’s ability to pay support, or conversely may increase the recipient spouse’s need (SSAG, at p. 101; Castedo, at paras. 100-106). Where one party has assumed responsibility for joint debt, the other party’s debts, or debts in their own name but which were incurred for the benefit of the other party or both, this may impact that party’s ability to pay and can also be considered as a positive benefit to the recipient (Castedo, at paras. 102-104; Trottier v. Prudhomme, 2012 ONCJ 641 (O.C.J.), at para. 16).
10.The impact of any property award or any agreement regarding apportionment of assets and debts on the spousal support analysis will depend on the facts of each case. In determining the weight to be given to this factor, the conceptual basis of entitlement, and in particular the existence of a strong compensatory claim, may be relevant (Hsieh, at para. 44).
11.Self-sufficiency incentives in relation to the recipient spouse (Wharry, at para. 94; Berger, at para. 119).
12.Consideration of the family’s net disposable income (“NDI”) and the proportionate share of that NDI that is allocated to each party under the ranges generated by the SSAG is a factor which may assist the court. The Ontario Court of Appeal has emphasized that “[e]qualization of income (or “NDI”) has never been the basis upon which spousal support is determined in Canada” (Fielding v. Fielding, 2015 ONCA 901 (C.A.)). However, unusually high discrepancies in the proportionate distribution of NDI as between the parties under the SSAG ranges may call for a deeper inquiry into whether a departure from the ranges is required in order to satisfy the objectives of spousal support (Berger at para. 122; Naegels, at para. 13).
755The principles and factors outlined above are obviously not exhaustive; they are simply some of the considerations that the courts frequently refer to and rely upon in determining quantum and duration.
3. Exceptions to the SSAG Ranges
756The SSAG formulas were developed to deal with typical Family Law scenarios. However, as the authors have consistently emphasized, there will be cases where the formulas generate results inconsistent with the support objectives and factors in the governing legislation, and an appropriate result can only be achieved by departing from the formulas. The SSAG identify a number of situations which they refer to as “exceptions,” intended to assist counsel and judges in framing and assessing possible departures from the SSAG formulas and outcomes (SSAG, section 3.4.3.). Departures from the formula outcomes are not restricted to the listed exceptions, since the SSAG are informal and advisory (Revised User’s Guide, p. 62). The courts have consistently reiterated that ultimately, the decision as to whether the suggested ranges are appropriate or should be departed from will depend on the unique facts of each case and will be a matter of judicial discretion (Racco, at para. 44).
757Consideration of possible exceptions under the SSAG is the last step in determining quantum and duration of spousal support. Before deciding whether an exception is warranted, the court should determine whether making adjustments within the suggested quantum and duration ranges or restructuring an award can accommodate the unique facts of the case so as to reach a just result (SSAG, section 12; S.(R.M.) v. S.(F.P.C.), 2011 BCCA 53 (C.A.), at paras 66 and 68). The spouse who claims to fall within one of the identified exceptions bears the burden of proving that they do so (SSAG, section 12).
758One exception identified in the SSAG is for cases where the recipient spouse suffers from a long-term illness or disability, and the SSAG ranges are considered inadequate to address their future needs. I address this exception because of the longstanding concerns respecting the Respondent’s mental health. The main concern in cases involving ill or disabled spouses is to ensure that they receive an appropriate amount of support for a sufficient amount of time. Illness or disability may have a significant impact on both quantum and duration of support, depending on the facts of each case. However, in Bracklow, the court recognized that indefinite spousal support may be unfair in some cases, despite the fact that the recipient spouse may have chronic health challenges that will impede their self-sufficiency on a long-term or permanent basis. It noted that spousal support could be time-limited in some cases involving illness or disability, even if the recipient spouse will always be in need of financial assistance, and particularly where there is no compensatory element to the claim (see also Shen, at para. 86).
759The authors of the SSAG indicate that most situations involving an ill or disabled recipient spouse can be accommodated by locating the case appropriately within the ranges generated by the applicable formula, or through restructuring (see for example Shen; Stannett v. Green, 2014 CarswellOnt 40 (S.C.J.)). They emphasize, in particular, that in most medium-to-long marriages, with or without children, “the ranges for duration and amount generated by the SSAG offer considerable scope to accommodate the needs of an ill or disabled spouse (SSAG, p. 121; Revised User’s Guide, p. 64). Alternatively, restructuring can be used to reduce quantum but extend duration beyond the maximum duration. This involves maintaining the overall maximum global amount but stretching duration beyond the maximum generated by SSAG. However, the SSAG provide for an exception in these cases if the court determines that neither the flexibility with the quantum and duration ranges nor restructuring adequately meet the particular needs of the claimant in question (see also Naegels, at para. 14). The SSAG authors note that in practice, this exception is most likely to arise in situations involving short to medium length relationships where there are no children in the care of the recipient, and the disability is long-term in nature (SSAG, p. 124). The caselaw reflects significantly divergent approaches towards cases involving disability and illness. Ultimately, the determination of appropriate quantum and duration in these situations will be a matter of discretion having regard for the unique circumstances of each case under consideration. If the court finds that the exception is triggered, one possibility is to lower the quantum but extend duration (Gray, at paras. 49, 52, 53; Hickey v. Princ, 2015 ONSC 5596 (Ont. Div. Ct.)), whereas another approach is to both increase quantum and extend duration (Aujla v. Singh, 2012 ONSC 5217 (S.C.J.))
III. ANALYSIS
760Having weighed all of the principles set out above and the evidence relevant to spousal support, I conclude that the mother has established an entitlement to spousal support. I find that there is a very slight compensatory aspect to her entitlement, but that it is primarily based on her financial need. With respect to the compensatory element, she took a one-year maternity leave to care for C.M.M., and she continued to have primary care of him until April 9, 2019. Accordingly, she had primary care of him for approximately 2.5 years. This amount of time off work impacted the progression of her career, which is a factor in assessing spousal support entitlement on compensatory grounds. However, I find that the father also contributed significantly to the daily needs of C.M.M. when he was not working, that he cared for him during the day when he was on night shift and the mother was working from September 2017 onward, that he was heavily involved in ensuring that indoor home management tasks were carried out and that he was primarily responsible for all outside tasks. In addition, this is not a situation in which the father was able to excel and advance in his employment and income earning ability due to the sacrifices and contributions of the mother. While the mother’s care of C.M.M. certainly assisted in him being able to maintain his position at Rogers, the father struggled greatly to keep that job and he was placed on suspension several times from 2014 until 2020, when he was eventually terminated. As I have discussed, his difficulties in meeting his employment responsibilities were largely attributable to the conflict in the parties’ relationship and the extreme stress and anxiety that he experienced because of the constant abuse and neglect allegations by the mother. Since 2020, he has forged a new career path which will hopefully allow him to exceed the financial remuneration that he enjoyed at Rogers, and he has done so based on his own sacrifices and efforts and the practical daily support of the grandparents. Finally, in assessing the issue of compensatory entitlement, it is clear that the compensatory considerations weigh heavily in favour of the father since May 3, 2019, as he has had primary care of C.M.M. since that time.
761The mother does, however, have a strong needs-based entitlement to spousal support. The disparity in the parties’ incomes was significant throughout their relationship, and this continued post-separation until May 2020. I find that she was economically dependent on the father throughout their relationship, that the parties were able to have a comfortable lifestyle and that she suffered an economic disadvantage because of the breakdown of the marriage. She has continued to experience significant financial struggles since 2018. As I have discussed at length in these Reasons for Judgment, my impression is that her ongoing financial need may be attributable to underlying mental health difficulties which may have impacted her judgment around financial decision-making and her excessive spending habits. The concerns regarding her mental health were apparent during the parties’ relationship.
762Turning to the issues of quantum and duration of spousal support, these matters are complicated in this case by the fact that there was a reversal of primary care of C.M.M. in May 2019. For the period when C.M.M. was in the mother’s primary care from January 8, 2018 to April 9, 2019, the duration ranges generated by the SSAG are much longer than with C.M.M. being in the father’s primary care. I conclude that the duration ranges generated by the SSAG commencing in May 2019 when C.M.M. began to live primarily with the father are the appropriate ones, given that C.M.M. has been with the father primarily on a consistent basis for over 6 years now and will remain in the father’s primary care pursuant to the terms of this order.
763The spousal support analysis in this case is also confounded by the concerns that I have discussed regarding the mother’s mental health, and the impact of those concerns on her financial means and ability to achieve self-sufficiency. Although the mother adamantly denies having any mental health problems, she has received several mental health diagnoses over the years. The assessments that I am ordering will hopefully shed further light on whether there are any mental health conditions that have been impacting her problematic financial decisions and excessive spending habits. The concerns about the mother’s mental health difficulties must be considered as part of the spousal support analysis. While she has not complied with all recommendations made by psychiatrists who have assessed her in the past, and in particular with recommendations respecting medication, it is inappropriate to give too much weight to that consideration since the diagnoses which she has received have differed significantly. The terms of my order respecting the assessments are geared to ensuring that a more fulsome and informative approach is taken to the assessments, so that they may provide a reliable picture of the mother’s mental health and a solid foundation upon which to make treatment recommendations moving forward. In the meantime, the spousal support analysis must recognize that the mother has a higher level of need than is typical, and that a longer duration of spousal support than usual is appropriate.
764In the absence of any disability concerns, I find that spousal support somewhere between the low to mid ranges for both quantum and duration under the SSAG would have been appropriate. This conclusion is based on the relatively short duration of the parties’ cohabitation, the weak compensatory aspect of the mother’s claim, and the reality that both parties have suffered significant financial hardship, as I have described in detail in these Reasons.
765Upon adding the concerns about the mother’s mental health functioning into the mix of relevant considerations in addressing spousal support, I conclude that the mid range for quantum under the SSAG is more appropriate, and that an appropriate duration is until May 31, 2026. As I will discuss, this duration is 11 months longer than the high duration range of 7.5 years generated by the SSAG, and 3 years longer than the duration of 3.5 years that I would have considered in the absence of concerns about the mother’s mental health. These adjustments take into consideration the realities that the mother has a higher degree of need due to her health issues, and that a longer period of time was required for her to achieve self-sufficiency post-separation. In my view, this approach respects all of the spousal support objectives and factors, and also the challenging financial limitations that both parties are experiencing.
766Applying this framework, dealing first with the period from January 8, 2018 to December 31, 2018, once all appropriate inputs are included in the DivorceMate calculations including applicable tax deductions and credits and the parties’ respective contributions to s. 7 expenses, the SSAG suggest indefinite support, with a minimum of 4 years and maximum of 17 years duration, and the following ranges for quantum:
Low: $0 Mid: $154.00 High: $503.00
767The father’s spousal support obligation at the mid range of $154.00 per month from January 8, 2018 until December 31, 2018, yields a total of $1,848.00 for 2018.
768For the period from January 1, 2019 until April 30, 2019, the SSAG suggest indefinite support, with a minimum of 4 years and maximum of 17 years duration, and the following ranges for quantum:
Low: $0 Mid: $324.00 High: $680.00
769The father’s spousal support obligation at the mid range of $324.00 per month for this 4-month time period totals $1,296.00.
770For the period from May 1, 2019 until December 31, 2019, the SSAG generate a duration range of 3.75 to 7.5 years. These duration ranges remain consistent for the calculations from this point onward. The quantum ranges for May 1, 2019 to December 2019 are as follows:
Low: $362.00 Mid: $422.00 High: $482.00
771The father’s spousal support obligation at the mid range of $422.00 per month for this 8-month period totals $3,376.00. Considering the duration guidelines under the SSAG once C.M.M. began to reside primarily with the father, I conclude that a period of 8 years and 5 months of spousal support from January 2018 until May 31, 2026 is appropriate. As I have noted, this is 11 months longer than the high range for duration, and roughly 3 years longer than I would have otherwise awarded in the absence of any concerns about the mother’s mental health.
772For the year 2020, the SSAG generate quantum ranges as follows:
Low: $366.00 Mid: $428.00 High: $489.00
773The father’s total spousal support obligation at the mid range of $428.00 for all of 2020 is $5,136.00.
774For the year 2021, the SSAG quantum ranges are:
Low: $62.00 Mid: $72.00 High: $82.00
775The father’s total spousal support obligation for 2021 at the mid range is $864.00.
776For the year 2022, the SSAG quantum ranges are:
Low: $92.00 Mid: $108.00 High: $123.00
777The father’s total spousal support obligation for 2022 at the mid range is $1,296.00.
778For 2023, the SSAG generate the following quantum ranges:
Low: $105.00 Mid: $123.00 High: $140.00
779The father’s total spousal support obligation at the mid range for 2023 is therefore $1,476.00.
780For 2024, the SSAG generate the following quantum ranges:
Low: $55.00 Mid: $64.00 High: $73.00
781At the mid range, the father’s total spousal support obligation for 2024 is $768.00.
782For 2025, the quantum ranges under the SSAG are:
Low: $51.00 Mid: $60.00 High: $68.00
783The father’s support obligation for 2025 at the mid range up to and including May 31, 2025 totals $300.00.
784The DivorceMate printouts relating to these calculations are attached as Schedule “A.”
785Based on these calculations, the father’s total retroactive spousal support obligation up to and including May 31, 2025 is $16,360.00 As I have previously discussed, the father is entitled to a credit in the amount of $3,347.03 based on the mother’s deficient contributions to the parties’ joint bank account from January 8, 2018 to May 31, 2018. I find that the father should be given additional credits against this retroactive spousal support obligation. First, as the mother acknowledged, she received almost all of the household contents, and this was intended to be in lieu of spousal support for a period of time. The parties did not adduce any evidence regarding the total value of those contents, but I conclude that a reasonable estimate would be in the range of $3,000.00. This errs on the conservative side, in the mother’s favour. In addition, the father e-transferred the mother funds from time to time to assist her financially. Some of these funds were intended to cover activities for C.M.M., which would have been subsumed in the parties’ settlement respecting s. 7 expenses. There is no evidence respecting the reasons for some of the transfers, and I therefore decline to consider those items for the purposes of the credits analysis. Some of the transfers were to pay the mother for caring for C.M.M. rather than the parties incurring daycare expenses, and I also decline to include those in the credits analysis since the parties reached that agreement on the basis that it was mutually beneficial to them and in C.M.M.’s best interests. Excluding those transfers, I find that he transferred her a total of $3,930.00 to assist her in meeting her personal needs in 2018 and 2019.
786In addition, after the closing on the sale of the matrimonial home on May 31 2018, the father continued to pay the mother’s share of certain joint expenses and some of her sole expenses. First, he continued to pay her phone expenses until May 2020 of approximately $65.00 per month, for a total of $1,560.00 (24 months from June 1, 2018 until May 31, 2020). Second, he has continued to pay her half share of the life insurance premiums for the parties and C.M.M. Her share is $50.85 per month, and therefore his total contribution to her share from June 2018 until May 31, 2025 has been $4,271.40 (84 months).
787Applying all of these credits, I conclude that the father does not owe any retroactive child support to the mother, and that he should be credited the sum of $251.57 towards ongoing support, calculated as follows:
Total spousal support obligation $16,360.00
Credit for deficient contributions to
Joint account from January 8, 2018 to
May 31, 2018 ($3,347.03)
Credit for household contents ($3,000.00)
Credit for transfers to mother ($3,930.00)
Credit for payment of her phone expenses ($1,560.00)
Credit for payment of her share of
Life insurance premiums since June 2018 ($4,271.40)
Credit towards ongoing spousal support owed: ($251.57)
788The father’s ongoing spousal support obligation commencing June 1, 2025 and continuing on the first day of each month that follows is $60.00 per month. His total spousal support obligation for the period from June 1, 2025 until May 31, 2026 is therefore $720.00. He should be credited the sum of $50.85 per month as he is still paying the mother’s share of the life insurance premiums for the parties and C.M.M., so this results in a credit of $610.00 for this 12-month period. This credit coupled with the credit of $251.57 yields a total credit of $861.77, which exceeds his ongoing spousal support obligation up to and including May 31, 2026. Accordingly, I am ordering that the father has fully complied with his spousal support obligations to the mother and that there shall be no retroactive or ongoing spousal support payable to her.
789I add as well that the outcome of the spousal support analysis in this case results in a tax savings to the mother in relation to the spousal support issue, since she did not pay any tax on account of spousal support payments.
790I am not satisfied that a review of spousal support is appropriate in this case. There are no uncertainties relevant to spousal support which would alter my conclusion that spousal support should terminate effective May 31, 2026. My determinations regarding quantum and duration generously account for the concerns respecting the mother’s mental health and the impact of those difficulties on her income earning capacity. Similarly, my findings respecting her income for support purposes have weighed heavily in her favour on account of those concerns. As for my prediction regarding the mother’s income earning capacity of $43,765.00 from 2025 onward, the evidence clearly establishes that she can earn an annual income of at least $52,000.00, and she acknowledged this many times at trial. She indicated in her Closing Submissions that she expected to be able to increase her income moving forward. The reduced income figure of $43,765.00 that I am attributing to her for 2025 and 2026 is a reasonable discount from her actual income earning capacity to account for any ongoing mental health challenges which may impact her income levels. The hope is that the mother’s stress and anxiety levels will decrease significantly as a result of the conclusion of this trial, and that the assessments which I am ordering will provide some helpful guidance as to how the mother may address any mental health conditions that may be identified, so that she can not only be well but also maximize her income earning capacity.
PART 11: TERMS OF ORDER TO ISSUE
791By way summary with respect to the financial issues, the mother owes the father $35,156.93 on account of the property claims and child support, as follows:
Equalization payment $4,593.25
Retroactive child support $17,528.00
Reimbursement for funds Respondent
received from his share of matrimonial
home sale proceeds $13,035.68
Total: $35,156.93
792As I have indicated, the outstanding net proceeds from the sale of the Upper Gage residence are $60,376.57. I am authorizing the release of $10,000.00 to the mother to cover any costs of obtaining the assessments that I am ordering. This will leave a balance of $50,376.57 being held in trust. I am ordering that $35,156.93 of these funds be released forthwith to the father from the net sale proceeds on account of his entitlements as set out above. After that payout, there will be a balance of $15,219.64. I am ordering that this amount be held in trust pending further order of the court, to allow for argument as to how they should be disbursed after costs are addressed in this matter.
793I note that the father has been overall the successful party in this case on every single issue. I strongly encourage the mother to consider Rule 24(3) of the Family Law Rules, which provides that except as otherwise provided in the Rules, the successful party is entitled to costs. My expectation is that the parties will engage in meaningful discussions about costs, keeping in mind their financial realities at this time. For the mother’s benefit, I note that the father’s costs in this matter will far exceed the amount of $15,219.64 that remains in trust with Dudzic Barristers and Solicitors if a resolution of the costs issue is not possible.
794For all of these reasons, two final orders shall issue as follows:
Order #1: Divorce
- A divorce order shall issue in the usual form.
Order #2
Initialization and Sealing of Exhibits
The names of the parties, the child and all individuals other than community professionals shall be initialized in these Reasons for Judgment.
Pursuant to section 137(2) of the Courts of Justice Act, exhibits 1, 2, 5, 6, 7, 12, 15, 16, 17, 34, 35, 36, 37, 38, 39, 40, 42, 44, 48, 50, 53, 54, 55, 56, 57, 58, 81, 84, 85, 88, 89, 104, 109, 110, 138, 139, 140, 141,145, 146, 147, 148, 158, 160, 162, 163,164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 179 and 187 in the trial of this matter shall be treated as confidential, sealed and not form part of the public record. This order shall apply to both the physical and electronic versions of these exhibits. Access to these exhibits shall be limited to the court and authorized court employees, the parties and their counsel, unless otherwise ordered.
Terms of the Final Order Dated January 31, 2024 Replaced
- The terms of the final order dated January 31, 2024 are replaced in their entirety by the terms of this order.
Decision-Making Responsibility and Primary Residence of C.M.M
The Applicant shall have sole decision-making responsibility respecting C.M.M.
C.M.M. shall continue to reside primarily with the Applicant.
Except in the case of urgent situations when an immediate decision respecting C.M.M. is required, the Applicant shall take the following steps before making significant decisions about C.M.M.’s wellbeing, including with respect to health, education, culture, religion, spirituality and significant extracurricular activities:
a) The Applicant shall inform the Respondent in writing of the decision that needs to be made, advise the Respondent of his position, explain the reasons for his position and seek the Respondent’s views and input on the issue.
b) The Respondent shall within 7 days of receiving notice from the Applicant pursuant to subsection (a) consider the issue, consult with any third parties if required to inform herself about the issue, and advise the Applicant in writing of her position and the reasons for her position.
c) The Applicant shall take into consideration the position of the Respondent and any professionals involved with the child before making a decision.
d) The Applicant shall then advise the Respondent of his decision and the reasons for the decision in writing forthwith upon reaching a decision on the issue.
Parenting Time For the Mother
- The Respondent’s parenting time with C.M.M. shall be fully supervised, upon the following terms and conditions:
a) The supervision shall be carried out by the Catholic Children’s Aid Society of Hamilton (“the Society”), if it consents, or a professional supervised parenting time agency to be agreed upon in advance in writing between the parties.
b) The supervised parenting time may be virtual and/or in person. However, the parenting shall be no more than twice per week in total, regardless of its form.
c) Virtual parenting time shall be no more than 1 hour in duration and in-person parenting time shall be no more than two hours in duration.
d) The parenting time shall not be scheduled during C.M.M.’s school hours, and the Applicant shall be consulted before parenting time periods are scheduled. The Applicant shall make all reasonable efforts to accommodate the scheduling of parenting time during periods that are available to the Respondent and the Society or the supervised parenting time agency.
e) The in-person parenting time shall occur at either the Society’s office or its supervised parenting time site if the agency agrees to supervise, or the premises of a supervised parenting time agency, and not at the Respondent’s residence or elsewhere in the community.
f) If the parenting time is to be supervised by a supervised parenting time agency, the parties shall forthwith take all necessary steps to ensure that the parenting time commences as soon as possible and continues without interruption, including participating in any required intake interviews, completing any necessary documentation and executing any necessary consents.
g) The Respondent shall pay for any costs associated with her supervised parenting time.
Subject to paragraph 7, the Respondent shall not attend within 500 meters of any location where she knows or has reasonable grounds to believe C.M.M. may be, during periods when C.M.M. is present or when she reasonably believes he may be present. This includes but is not limited to the Applicant’s and C.M.M.’s residence, C.M.M.’s school, the Play Clinic, the Winterberry Medical Clinic or any other location where C.M.M. may be undergoing assessment or treatment of any type for his physical, psychological or developmental needs, C.M.M.’s place of worship or any location where he may be participating in extracurricular activities. If the Respondent requires any information respecting where C.M.M. may be at any given time to enable her to comply with this term, she shall be responsible for making reasonable inquiries of the Applicant before attending at the location in question.
The parenting time terms set out in paragraphs 7 and 8 may be reviewed by way of application by either party, provided that no such review proceeding shall be commenced prior to December 1, 2026. The purpose of any such review shall be to consider the following factors, and the implications of same in regard to C.M.M.’s best interests:
a) Whether the Respondent has undergone the assessments referred to in paragraph 20 of this order;
b) If the Respondent has undergone the assessments, whether the assessors have made any diagnoses of the mother, their prognosis for the mother’s psychiatric and psychological health, and their treatment recommendations if any;
c) Whether the Respondent has followed through with any recommendations made by the assessors to address any concerns that they may identify;
d) Whether the Respondent has continued with counselling, and if so, how she has progressed with the counselling;
e) Whether the Respondent has followed through with any recommendations made by her counsellor and any other treatment professionals involved with her;
f) Whether the mother has addressed the concerns identified in these Reasons for Judgment regarding her mental health, and in particular, her history of regularly making and advancing unsubstantiated allegations of neglect and abuse respecting the Applicant and members of his family;
g) How the Respondent’s supervised visits have progressed, and in particular, whether she has been consistent in attending, whether she has been focussed on C.M.M.’s best interests, and whether she has been able to comply with the terms of this order regarding her communications and interactions with C.M.M., and whether she has been cooperative with the supervised parenting time agency staff;
h) How C.M.M. has progressed in therapy, including whether he has made any progress in correcting his misconceptions about abuse that he believes was inflicted upon him by the Applicant and the paternal grandparents; and
i) How C.M.M. has adjusted to supervised parenting time with the mother, including whether he suffered emotional distress from the change in his time with her, whether he ceased or continued to make allegations of neglect and abuse by members of the paternal family, and whether the change resulted in any positive or negative impacts on his overall physical, psychological and developmental functioning.
Communications and Interactions with Each Other and with C.M.M.
The parties shall keep each other apprised of their contact information, including their addresses, telephone numbers and email addresses.
The parties shall comply with the following terms respecting their communications and relationship with each other and with C.M.M:
a) They shall continue to use App Close to communicate, except in urgent situations in which case they may communicate by telephone or text.
b) Neither party shall use App Close to communicate with the other party more than once per day, and the communications shall not be more than 20 words long, unless there are extenuating circumstances relevant to C.M.M.’s best interests that clearly warrant more than one message in a day and longer messages.
c) They shall upload any important documents respecting C.M.M. in their possession into App Close or shall scan and email the documents to each other in a timely manner.
d) Their communications shall be limited to issues relating to C.M.M.’s needs and interests.
e) They shall refrain absolutely from making any negative comments about each other, their extended family members, their partners or their friends in their communications with each other or within earshot of C.M.M., and shall make best efforts to not allow any other person to do so.
f) They shall maintain civil and respectful communications which shall be brief, informative, friendly but firm when necessary.
g) Without limiting the generality of subparagraph (f), their communications shall not include any profanity, insults, threats, intimidation, inflammatory or threatening comments, exclamation points, words in bold or capital letters, repeated question marks, unnecessary adjectives, emojis, sarcasm or rhetorical questions. They shall also not include any rehashing of old issues or concerns, blaming, criticizing or making personal judgments against each other or about past events.
h) The Respondent shall refrain from providing unnecessary and/or repetitive directions and instructions to the Applicant regarding the care of C.M.M.
i) They shall respond to each other’s communications within 24 hours, unless there are exigent circumstances which render this impractical, in which case they shall respond as soon as it is reasonably possible for them to do so.
j) They shall not show anger or frustration regarding each other in front of or within earshot of C.M.M. and shall make best efforts not to allow any other person to do so.
k) They shall refrain absolutely from engaging in any disputes with each other within earshot of C.M.M., and from involving C.M.M. in any manner in conflicts which may arise between them.
l) They shall not use C.M.M. to pass messages or documentation on to each other.
m) They shall refrain from questioning C.M.M. about each other’s personal lives and activities.
n) Without limiting the generality of subparagraph (m), the Respondent shall refrain absolutely from initiating any discussions with C.M.M. about the Applicant or the paternal grandparents, or his activities in their home. If C.M.M. initiates any such discussions, the Respondent shall listen and then redirect the conversation to another topic. If C.M.M. raises any concerns about his safety or wellbeing in the care of the Applicant or the paternal grandparents, the Respondent shall not interrogate him further but may advise the parenting time supervisor and child protection authorities of the child’s expressed concerns.
o) They shall actively encourage C.M.M. to have a strong and positive relationship with each other and shall use all reasonable efforts to foster a meaningful relationship between C.M.M. and extended family members.
p) The Respondent shall refrain from making any statements to or within earshot of C.M.M. or engaging in behaviour that could cause the child to fear for his safety and wellbeing while in the care of the Applicant or the paternal grandparents. This shall include but not be limited to behaviour such as commenting about the child’s safety during visits within earshot of the child, apologizing to the child about him returning to the Applicant’s home, and crying or engaging in prolonged goodbyes at the end of her visits.
Consultation with Professionals and Information Sharing
The Applicant shall provide the Respondent with the names and contact information of any professionals who are currently involved with C.M.M., and shall update this list forthwith upon any new professionals becoming involved with the child.
Subject to paragraph 12, the parties shall each have the right to consult independently with and obtain information and records directly from any professionals or others involved with C.M.M., without the consent of the other party, which consent is specifically dispensed with. If any professionals or others involved with C.M.M. require executed consents despite this term, the parties shall execute the consents required in a timely manner and in the format directed by the professional or third party, authorizing the other party to receive complete disclosure of information and documentation regarding the child.
The Respondent shall refrain absolutely from discussing any historical neglect and abuse allegations that she has made against the Applicant, the grandparents and the paternal uncle with any community professionals, with the exception of the assessors referred to in paragraph 20 or any other of her treatment professionals if they deem it necessary to discuss the allegations as part of her assessment and treatment.
The Applicant shall advise the Respondent of any important events, appointments and functions for C.M.M., other than private family gatherings, as soon as he becomes aware of them, and shall advise the Respondent of the outcome of any appointments for him. He shall also provide the Respondent with photographs of C.M.M.’s important events upon request from the Respondent.
Government Issued Identification and other Important Documents Respecting C.M.M.
- The Applicant may obtain, renew or replace any government issued identification and other important documents respecting C.M.M. without the Respondent’s consent, including but not limited to his birth certificate, passport, social insurance card and health card. He shall also maintain possession of these documents.
Travel with C.M.M. and Relocation
The Applicant may travel with C.M.M. outside of Canada without the Respondent’s consent.
The Applicant shall provide the Respondent with details regarding any trip that he intends to take with C.M.M. outside of Ontario at least 10 days in advance of the departure date, including dates of travel, location of travel, airline names and numbers, the names and addresses of any hotel or other accommodations, any major excursions that he intends to take with C.M.M., and contact information where he can be reached during the trip. He shall also advise the Respondent as soon as possible of any changes to these details.
The parties shall comply with the relocation provisions of the Divorce Act before changing their residences.
Psychiatric and Psychological Assessments of the Respondent and Sharing of the Assessments and these Reasons for Judgment
The Respondent shall arrange and undergo a psychiatric assessment and a comprehensive psychological assessment, both of which should occur over several appointments. These assessments should include consideration of whether the mother is suffering from any conditions respecting which regular unsubstantiated allegations of child abuse is a symptom.
The Respondent shall execute any consents that the assessors may request for the release of records from third parties, or to consult with third parties, for the purposes of carrying out their assessments.
The Respondent shall comply with any reasonable recommendations that the assessors make to address any concerns that they identify.
The Respondent shall provide the assessors with a copy of these Reasons for Judgment, and the assessors are requested to certify that they have read them as part of their assessment process.
The Respondent shall also forthwith provide a copy of these Reasons for Judgment to her family physician and her counsellor at the Play Clinic, so that they may gain a complete understanding of the relevant events and concerns that have led to Child Protection, police and court intervention.
The Applicant shall serve the Catholic Children’s Aid Society of Hamilton with a copy of these Reasons for Judgment forthwith, regardless of whether it remains involved with the family at this time. He shall also provide a copy of the Reasons for Judgment to C.M.M.’s play therapist forthwith.
The Respondent shall serve the Applicant with copies of the assessments referred to in paragraph 20 within 7 days of receiving them. She shall also provide copies of the assessments to her family physician, her counsellor at the Play Clinic and C.M.M.’s play therapist to assist them in carrying out their treatment responsibilities towards the Respondent and C.M.M.
Play Therapy for C.M.M.
- The Applicant shall ensure that C.M.M. continues to participate in play therapy for so long as he considers it to be in the child’s best interests to do so and the therapist is of the view that C.M.M. continues to benefit from the therapy. He shall forthwith inquire as to whether the therapist has special expertise in assisting children in de-programming after being influenced into believing that important people in their lives have abused them, and in particular, in assisting such children to adjust their perspectives and heal from this type of dynamic. If the Applicant is not satisfied that the therapist has such specialized expertise, he shall forthwith make all reasonable efforts to locate a qualified therapist and arrange for supplementary or alternative therapy for C.M.M. as soon as possible.
Child Support
Retroactive child support owed by the Applicant to the Respondent on account of the Table amount of support for C.M.M. under the Federal Child Support Guidelines (the “Guidelines”) is fixed in the amount of $3,549.00 up to and including May 31, 2025.
Retroactive child support owed by the Respondent to the Applicant on account of the Table amount of support for C.M.M. under the Guidelines is fixed in the amount of $21,077.00 up to and including May 31, 2025.
The amount of retroactive child support owed by the Respondent to the Applicant. pursuant to paragraph 29 shall be set off by the amount of retroactive child support owed by the Applicant to the Respondent pursuant to paragraph 28. As a result of this set-off, there shall be no retroactive child support payable by the Applicant to the Respondent on account of the Table amount under the Guidelines up to and including May 31, 2025, and retroactive child support owed by the Respondent to the Applicant on account of the Table amount is fixed in the sum of $17,528.00 up to and including May 31, 2025.
The terms of the final order dated December 31, 2024 respecting section 7 expenses respecting C.M.M. shall remain in full force and effect.
The Respondent shall pay the Applicant ongoing child support for C.M.M. in accordance with the Tables under the Guidelines in the amount of $403.00 per month commencing June 1, 2025 and continuing on the first day of each month that follows based on her projected 2025 income of $43,765.00.
Commencing in 2026, the Applicant and Respondent shall by no later than July 1st each year produce to each other copies of their Income Tax Returns with all schedules and attachments, Notices of Assessment and Notices of Reassessment for the previous calendar year, any other income disclosure referred to in section 21(1) of the Guidelines, and proof of total year to date income for the current calendar year.
If it is determined when annual income disclosure is exchanged that the Respondent’s Guidelines income has increased from the income upon which her current Table amount of child support is based, the monthly Table amount shall be adjusted accordingly based on the increased income, retroactive to January 1st of the current calendar year.
The parties’ proportionate-to-income contributions to section 7 expenses relating to C.M.M. shall also be recalculated when annual income disclosure is exchanged, and any necessary adjustments shall also apply retroactively to any expenses incurred since January 1st of the current calendar year.
Any arrears arising from the adjustments referred to in paragraphs 35 and 36 each year shall be paid in full by no later than December 31st of the current calendar year.
Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
A Support Deduction Order shall issue. The parties shall complete Support Deduction Information Forms and submit them to the Family Responsibility Office within 5 business days of receiving a copy of the Reasons for Judgment in this matter.
Property and Post-Separation Adjustments
The Respondent shall pay the Applicant an equalization payment in the amount of $4,593.23.
The Respondent shall pay the Applicant the sum of $13,035.68 as reimbursement for funds that she received from the Applicant’s share of the net proceeds from the sale of the matrimonial home.
Spousal Support
- The Applicant has fully satisfied his spousal obligations to the Respondent up to and including May 31, 2026. His obligation to pay the Respondent spousal support is terminated as of May 31, 2026. Accordingly, there shall be no retroactive or ongoing spousal support payable by the Applicant to the Respondent.
Release of Net Proceeds from the Sale of the Respondent’s Upper Gage Property
The sum of $10,000.00 from the net proceeds of sale respecting the Respondent’s former property located at 1338 Upper Gage Avenue, Unit 6, Hamilton Ontario (“the Upper Gage property”) currently being held in trust by Dudzic Barristers and Solicitors shall be immediately released to the Respondent to provide her with funding to retain the assessors referred to in paragraph 20 of this order privately if necessary. If she fails to use these funds for this purpose, and there is extensive delay in obtaining the assessments through publicly funded sources, the court will be entitled to draw any adverse inferences it deems appropriate in any subsequent court proceedings.
The sum of $35,156.93 from the net proceeds of sale respecting the Upper Gage property shall be immediately released to the Applicant on account of the following amounts which the Respondent owes him pursuant to this order:
Equalization payment $4,593.25
Retroactive child support to May 31, 2025 $17,528.00
Reimbursement for funds the Respondent
received from his share of matrimonial
home sale proceeds $13,035.68
Total: $35,156.93
- The balance of the net proceeds from the sale of the Upper Gage property shall be held in trust pending further order, and in particular, pending the determination of costs in connection with this proceeding.
Post-judgment Interest
- This Order bears post-judgment interest at the rate of 3.3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
Other claims
- All other claims of both parties in this proceeding are dismissed.
Costs
The parties shall engage in meaningful discussions respecting the issue of costs of this proceeding. If they are unable to resolve costs, any party seeking costs shall by no later than June 9, 2025 serve and file Written Submissions, a Bill of Costs, any Offers to Settle and any legal authorities that the party is relying on respecting costs. Any responding submissions shall be served and filed by no later than June 16, 2025 and shall also include a Bill of Costs, any Offers to Settle and any relevant authorities that the responding party is relying on respecting costs. There shall be no extension to these deadlines unless otherwise ordered prior to June 16, 2025 upon filing an affidavit setting out proof of extenuating circumstances justifying such an extension. Otherwise, if neither party serves and files Written Submissions seeking costs, there shall be no costs payable by either party, and the Respondent may bring a regular motion on notice to the Applicant seeking an order that the balance of the net proceeds from the sale of the Upper Gage Avenue property be paid out to her. I am not seized of any such motion.
If the parties reach agreement respecting costs and the distribution of the balance of the net proceeds from the sale of the Upper Gage Avenue property, they may seek a consent order addressing these issues by way of Form 14B motion. I am not seized of any such motion.
Approval of Draft Order
- Counsel for the Applicant shall draft this order forthwith. Approval of the draft of the order as to form and content by the Respondent is dispensed with.
Justice D. Chappel
Released: May 26, 2025
Please note: Schedules are available upon request at Hamilton.Family.Superior.Court@ontario.ca.
CITATION: J.M.M. v. C.R.M, 2025 ONSC 3067
COURT FILE NO.: FC-1106-21
DATE: 2025-05-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.M.M
Applicant
– and –
C.R.M.
Respondent
REASONS FOR JUDGMENT
Chappel J.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.M.M
Applicant
– and –
C.R.M.
Respondent
REASONS FOR JUDGMENT
Chappel J.
Released: May 26, 2025