) ) R. H. Applicant – v. –, 2024 ONSC 47

CITATION : R.H. v. J.S., 2024 ONSC 47 COURT FILE NO.: 351-22 DATE: 2024-01-05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) R. H. Applicant – and – J. S. Respondent ) ) ) ) ) ) ) ) ) ) ) Elliot Vine, Counsel, for the Applicant Self-Represented ) ) HEARD: September 11, 12, 13, 14,15, 2023 and October 3, 4, 5, 6, 2023 JUDGMENT THE HONOURABLE MADAM JUSTICE L. BALE overview [ 1 ] This trial proceeding relates to the child L.S.H., 11 years of age. THE FACTS A. Relationship History [ 2 ] The parties began dating in or around 2010. The Applicant father was a member of the Canadian Forces.

He retired from the military in the fall of 2012. The parties commenced cohabitation in the fall of 2012. L.S.H. was born in December 2012 and both parties were able to stay home with L.S.H. while she was an infant. They moved into the home of the paternal grandmother in the spring of 2013. The mother’s maternity leave expired in October 2013. The father worked on a part-time/cash basis until approximately 2015 at which time they purchased a home together. [ 3 ] The father asserts that the parties were equally involved in L.S.H.’s caregiving while they cohabited.

The mother asserts that she took on a greater caregiving role, with the assistance of family members, childcare providers, etc. [ 4 ] The parties separated in June 2018. L.S.H. was six years of age. The Respondent father moved out of the family residence and returned to reside in the home of the paternal grandmother, approximately 8 minutes away. The mother’s new partner, Mr. T., moved into the family residence shortly after the parties’ separation. The father alleges adulterous conduct and asserts that Mr. T. had moved into the parties’ home within two weeks. The mother asserts that Mr.

T. moved into the home in August/September 2018. There was no discussion between the parties about introducing L.S.H. to Mr. T. prior to that occurrence. The mother and Mr. T. continued to reside in the home until just before the sale closing date of June 30, 2023. [ 5 ] The father asserts that, despite a very heated initial separation, things settled down and the parties were flexible in sharing time with L.S.H. without necessity of a Separation Agreement or court order. The father asserts that the sharing of L.S.H. was ‘not quite equal but close’ following separation.

The mother asserts that L.S.H. was at all times in her primary care, and that the father was struggling with alcohol and mental health issues which resulted in unstructured and sometimes sporadic parenting time.

[ 6 ] According to the father, the parties’ ability to effectively coparent L.S.H. started to deteriorate in 2021. In particular, he asserts that in approximately November 2021 the mother advised that she would be relocating to Barrie and started withholding his parenting time. The father retained counsel in December 2021 in an effort to formalize an equal parenting regime and to prevent the Respondent from relocating to Barrie with L.S.H. B. Litigation History [ 7 ] The parties attempted mediation, unsuccessfully, on a number of occasions both predating and during the litigation.

Proposed parenting schedules were explored, but never agreed upon. [ 8 ] The Applicant father commenced an Application in March 2022. The Respondent mother filed an Answer within the proposed timelines. [ 9 ] A Case Conference was held in June 2022 and a consent order was made which provided for: a. An equal timesharing arrangement with L.S.H., on a week-about basis, during the summer months of July and August; b. The listing for sale of the family residence; c. A request for the involvement of the Office of the Children’s Lawyer; and d.

A prohibition against either party speaking to L.S.H. about “any adult issues or the court proceeding”. [ 10 ] A s. 112 Report of the Office of the Children’s Lawyer was completed and filed with the court by Dr. Ian DeGeer on December 13, 2022. [ 11 ] On February 10, 2023, on motion, the Honourable Justice D. Chappel made a Temporary Order which provided for, amongst other things, the following: a. Timelines for the sale of the family residence; b. Primary residence of L.S.H. with the Respondent mother; c. Parenting time for the Applicant father on Wednesday overnights and alternating weekends; d.

A prohibition from recording each other or recording the child for purposes of documenting concerns or disclosures; e. A prohibition from discussing the proceedings with the child; and f. Daily telephone/facetime contact with the child for 15 minutes each evening at 8:00 p.m. [ 12 ] On March 9, 2023, on hearing the long motion, the Honourable Justice D. Chappel made a Temporary Order which provided for, amongst other things, the following: a. Sole decision-making authority in favour of the mother (with consultation provisions); b. Primary residence of L.S.H. with the Respondent mother; c.

Parenting time for the Applicant father on Thursday overnights and alternating weekends (extended in the event of holiday weekends and PA Days); d. 2023 division of holiday parenting time; e. Parenting Exchanges (equal sharing of transportation); f. Daily telephone/facetime contact with the child for 15 minutes each evening at 8:00 p.m.; g. An obligation to keep the other parent apprised of contact information (including addresses, etc.); h. Communication through Our Family Wizard (and detailed parameters relating thereto); i.

Prohibitions relating to adult conflict, disparaging commentary, discussions of adult subject-matter or court proceedings in the presence of the child; j. Prohibition against recording each other or recording the child for purposes of documenting concerns or disclosures; and k. Child support payable by the Applicant to the Respondent. [ 13 ] A Settlement Conference was held on April 13, 2023.

The issues of post-valuation date adjustments, occupation rent, retroactive child support, and division of proceeds of sale of the family residence were resolved on a final basis and incorporated into the Final Order of the Honourable Mme. Justice D. Chappel dated April 13, 2023.

[ 14 ] A Trial Scheduling Conference was held on April 18, 2023. The matter was not resolved, and the case was scheduled for trial on the trial sittings of July 4, 2023. The Office of the Children’s Lawyer was requested to provide an updated/supplementary report. [ 15 ] An (updated) Voice of the Child Report of the Office of the Children’s Lawyer was completed and filed with the court by Dr. DeGeer on June 4, 2023. [ 16 ] The case was not reached on the trial sittings of July 4, 2023. The trial was adjourned to the trial sittings of September 11, 2023. The trial commenced on September 11, 2023. C.

Applicant father [ 17 ] The Applicant father is 38 years of age. He resides in Burlington, Ontario with his partner, Ms. C., with whom the court understands he has cohabited since the latter part of 2021. [ 18 ] The Applicant father’s partner, Ms. C., testified in this proceeding. It appears to be unchallenged that Ms. C. and L.S.H. have developed a strong bond and that Ms. C. is a positive influence in L.S.H.’s life. [ 19 ] The father is employed in high rise construction, primarily in the Kitchener area. He generally starts work at 6:00 a.m. and finishes at 3:15 p.m. on weekdays.

It takes him approximately 50 minutes to get home, and arrives between 4:00 p.m. and 4:20 p.m. D. Respondent mother [ 20 ] The Respondent mother is 37 years of age. The mother continued to reside in the family residence in Hamilton, Ontario, until its sale in 2023. She is temporarily residing in Burlington, Ontario with her grandmother, pending the outcome of this court case. [ 21 ] The mother is a member of the Beaver Lake Cree Nation. Both the mother and child have First Nations heritage. [ 22 ] The Respondent mother has resided with her present partner, Mr. T., since 2018. He presently works from home.

Most of the evidence suggests that L.S.H. is comfortable in his presence and care. [ 23 ] The mother has been employed by FedEx since approximately 2010. Her present title is Operations Manager for Northern Ontario. She has three offices in each of Muskoka, Barrie, and Owen Sound. She has previously worked in locations in St. Catharines, Hamilton, Burlington, Toronto, Brantford, and Cambridge. The mother presently works approximately 7 ½ hours per day and has some limited ability to modify her start and end time and/or to work from home.

She usually starts work between 8:30 a.m. - 9:00 a.m. and ends at 4:00 p.m. - 4:30p.m. At times she can work remotely. [ 24 ] The mother testified that she accepted her current position for two primary reasons: a. Her previous job position would have required her to change to a night shift which would not permit her to be available for L.S.H.; and b. The position in Barrie will provide her with career progression opportunity within the company, not available elsewhere. [ 25 ] The mother also testified that she was not successful in her efforts to secure other comparable jobs in the Greater Toronto Area.

She has been commuting to Barrie since accepting the position in January 2022. In cross examination, she acknowledged that she only made one alternative job application in the past two years. E. L.S.H.’s Extended Family [ 26 ] L.S.H.’s extended family through her paternal side all generally reside within the Hamilton/Burlington area: her grandparents, aunts, and cousins. The father advises that L.S.H. sees her grandmother and two paternal first cousins on a weekly basis and shares a strong bond with a female first cousin whose twin tragically passed away.

The paternal grandmother is a retired teacher and has always been actively involved in L.S.H.’s life. [ 27 ] L.S.H.’s extended family through her maternal side are more geographically dispersed: a. L.S.H.’s grandmother and step-grandfather reside in Port Carling, Ontario. b. L.S.H.’s maternal aunt, uncle, and nephew reside in Hamilton. c. L.S.H.’s maternal great-grandparents reside in Burlington. The maternal great-grandmother was actively involved in L.S.H.’s early life. F.

Family Violence [ 28 ] Both parties made allegations of family violence against the other in reference to the period of their relationship. [ 29 ] The father testified to being punched in the face by the mother. He filed a photograph which shows an injury to his face allegedly caused by the mother in August 2016, which he asserts was caused by her engagement ring. In response, the mother asserts that this

event occurred in a vehicle at a time that she was driving, and the father was intoxicated: he pulled her arm causing her to hit a curb. When she pulled over to the side of the road, he jumped out of the car and punched himself in the face. [ 30 ] The father’s partner Ms.

C. testified that, prior to her dating the father, in August 2013 she and her family witnessed the mother yelling at the father, strike a box of donuts from his hands, and punch him at the face at a stag and doe event. [ 31 ] The maternal uncle testified that he resided with the parties from 2015 to 2021, and in that time he observed the father’s excessive use of alcohol, and yelling and arguing in the home, primarily caused, in his opinion, by the father. [ 32 ] The mother entered photographs into evidence of markings to a wooden railing, which she believes were caused by the Applicant with a machete (part of a military artifact collection previously belonging to the Applicant’s grandfather) while she was absent from the home.

The father denies this accusation. [ 33 ] The paternal aunt testified that although she never directly witnessed any family violence between the parties, she observed the aftermath in the form of her brother having black eyes and a cut nose. The paternal aunt testified that looking back, it was a volatile relationship, both the mother and father were heavy drinkers, and she was aware that the mother also previously used cocaine. [ 34 ] Ms. C. testified that post-separation she has observed the mother smash her hands on the father’s car in anger, yell at him, and call him “disgusting”. [ 35 ] Mr.

T. testified that on one occasion, the child L.S.H. “slapped him in the face with a ruler” when he went to tickle her. Mr. T. attributes this event to the father’s general dislike of him and manipulation in the father’s home, and believes that L.S.H.’s conduct is more negative after spending time with the father. G. Present Parenting

Schedule [ 36 ] As per the Temporary Order of Justice Chappel dated March 9, 2023, L.S.H. presently resides in the primary care of the Respondent mother. She spends time with the Applicant father as follows: a. During the school year: a. Week One: Thursday overnight to Friday morning; and b. Week Two: Thursday overnight to Monday morning. b. During the summer months, on a week-about basis. [ 37 ] The father testified that a motion was necessary to compel mid-week parenting time between he and L.S.H.

He testified that after the summer of 2022 L.S.H. was struggling with the adjustment of spending (equal) full weeks in his care during the summer months to only seeing him on alternating weekends during the school year. He testified that the parties verbally agreed to one overnight mid-week visit during the OCL disclosure meeting held in December 2022. As result, he started attempting to pick up L.S.H. from school on Wednesday evenings. This resulted in conflict. [ 38 ] The mother became critical of the father’s efforts to compel a mid-week overnight visit (notwithstanding that it was Mr.

T. caring for L.S.H. after school at this time). The issue was not resolved until mid-week parenting time was ordered by the court, on motion, on February 10, 2023. H. Family Residence [ 39 ] The Applicant father and Respondent mother jointly owned and resided together in Hamilton from approximately June 2015 until June 2018. [ 40 ] The Respondent mother and her partner continued to reside in the home until it was sold in the spring of 2023.

The process of listing the home for sale and arranging the retrieval of the father’s belongings from the home was unduly complicated. [ 41 ] The father filed written communications wherein he requests a discussion with the Respondent mother as to how to present the topic of the sale of the family residence to L.S.H. The mother was non-responsive. The father described how shortly after the “sold” sign went up on the front lawn, he was contacted by office staff at L.S.H.’s school describing her state of panic and concern that she would be leaving Hamilton and not granted an opportunity to say goodbye to her father.

I. L.S.H.’s School [ 42 ] L.S.H. is presently in grade six in the French Immersion program at Norwood Park Elementary School in Hamilton, Ontario. L.S.H. has attended this school since the first grade. The father advises that L.S.H has a number of close friends who live in close proximity to and attend at this school. [ 43 ] Significant time was spent at trial exploring the stress and tension experienced by L.S.H. in the lead-up to the September 2023 school year. The father testified that L.S.H. was constantly asking about the upcoming school year throughout the summer of 2023.

Due to the adjournment of the trial (i.e. the trial was not reached on the June 2023 sittings), L.S.H. was left in limbo as to whether or not she would be starting school with her friends in the Fall, and this was very stressful and upsetting to her. The father attempted to communicate these issues with the mother, without much success. On September 3, 2023 a conversation took place between the father, mother, and L.S.H. wherein (

a) L.S.H. was informed that she would be attending Norwood school, (

b) the mother advised L.S.H. that she may be leaving Norwood school, and (

c) the father advised L.S.H. that he would make an advocate for a change of her class assignment

so that she could be with her friends. Both parties are critical of the information shared by the other with L.S.H. during this phone conversation. [ 44 ] L.S.H. is an A/B student. The father opines that her French is not strong for a French Immersion student and alleges that homework is not a priority in the mother’s home. For example, assignments given at the beginning of the week are often not started until the father’s Thursday night parenting time with L.S.H. The father filed examples of L.S.H.’s workbooks which appear to support this assertion.

The father advises that he has assisted L.S.H. with her math workbooks, and science and ancestry projects. Ms. C., a former French teacher, is a support to L.S.H. in her French Immersion program. [ 45 ] L.S.H.’s grade 5 teacher testified at trial. The teacher agreed that L.S.H. was often excited to see her dad and was not happy about the prospect of moving to Barrie. The teacher did observe a change in L.S.H.’s demeanour over the course of the school year, becoming less outgoing and enthusiastic in the latter part of the year. J.

L.S.H.’s Emotional Health [ 46 ] The Applicant father believes that L.S.H. has grown increasingly stressed and anxious in recent years. Where he previously would have described her as a happy, outgoing child, willing to “try anything”, she now presents as much more shy, timid, and reserved. [ 47 ] The father believes that L.S.H. is hypersensitive to the hostility between her parents. For example, L.S.H. was worried that her mom would be mad when (

a) she hurt her finger under dad’s care, and (

b) on another occasion when she expressed a desire to stay longer with her father than scheduled. He believes that L.S.H. is directly or indirectly discouraged from sharing positive sentiments about the paternal family in the presence of her mother. In response to one written communication by the father where he raises some of L.S.H.’s upset, the mother responded “Stop saying she has panic attacks and anxiety. It’s bullsh*t and never happens while in my care and at my home. Stop the games”. [ 48 ] Both parties allege that the other is engaging in inappropriate discussions with the child.

The father alleges that the mother refers to him as unstable, suggests that he can’t pay his bills, and insinuates that he is a loser. Additional third-party witnesses testified that the mother has referred to Ms. C. as “Rat Face”, and the father’s niece as “Dumbo” in the presence of the child. In cross-examination the mother acknowledged being critical of Ms. C.’s Halloween ‘catsuit’ and calling her “dark” and “not right in the head”, although noted that it was a long time ago and acknowledged she shouldn’t have said it. [ 49 ] The father and Ms.

C. believe that L.S.H. is not comfortable telling her mother about things that make her happy in her father’s home. For example, L.S.H. has: a. Worried out loud that her mother will not like the braids in her hair because it will be evident to the mother that Ms. C. made them; b. Wiped the black and yellow nail polish from her fingers before returning to her mother’s home because of the connection with Ms. C. and their shared allegiance to the Boston Bruins; and c.

Declined to take her skateboard to her mother’s home because of her belief that it ‘won’t go over well’ because it is an activity she engages in with her father. [ 50 ] The father described an event in December 2022 when he had arranged a sleepover at his home between L.S.H. and her best friend Q. The children were playing happily together when they came upstairs to advise the father that something was wrong. L.S.H. had spoken with her mother and became aware that her mother was very upset that she was hosting a sleepover at the father’s home.

Shortly thereafter the mother sent a series of text messages to the father stating that “you are unbelievable, inviting that little girl over to your house. That is completely left side and you are not responsible enough to have her there. You know that. Hopefully you didn’t drive to go and pick her up. Wow.” The father asserts that after this event L.S.H. was reluctant for a period of time to have friends over to the father’s home for fear of upsetting her mother. [ 51 ] On another occasion shortly thereafter, the father asserts that L.S.H. drew a face and wrote the mother’s partner Mr.

T.’s name on a punching bag and started ‘wailing on it’, saying that she just doesn’t like him. The father immediately took the punching bag away. The mother asserts that the father encouraged this conduct, either directly or indirectly by his undisguised contempt for her partner.

The father maintains that he did nothing of the sort and was so concerned by L.S.H.’s violent outburst that it was he who brought it to the attention of the Children’s Aid Society. [ 52 ] The mother does not deny that she has involved L.S.H. in online searches for houses in Barrie, notwithstanding that the issue of her proposed relocation was unresolved.

In cross-examination the mother conceded that she was untruthful with the father when she advised him in writing that: she had “never” discussed relocating to Barrie with L.S.H., that ‘we do not and have not discussed adult issues with L.S.H.’, that “I have not looked for homes in Barrie and again this has not been discussed with her”, and that she advised the Society worker in April 2023 that “I have not visited or looked for homes in Barrie”.

At trial the mother qualified these statements to mean that she has not involved L.S.H. in the issue of relocation since ordered not to have such discussions by Justice Chappel in February 2023. K. Requests for Additional Parenting [ 53 ] The father testified that he is rarely provided with any additional parenting time, even when the mother is not available to care for L.S.H. For example, in January 2023 L.S.H. had a scheduled PA Day from school. The father took the day off from work.

The mother refused to permit L.S.H. to spend the day in his care notwithstanding that she herself was not able to be home with the child. Written communications were filed in support of this assertion. [ 54 ] In cross-examination the Respondent conceded that she typically does not permit L.S.H. to have any additional time with the father. She ‘could not recall’ why she has not permitted L.S.H. to spend time with the father on PA Days. L. Communications with L.S.H.

[ 55 ] The father is concerned that L.S.H. is not permitted to communicate with him during the mother’s parenting time. In particular, he testified that in January 2022 the Respondent mother blocked L.S.H.’s ability to communicate with her father (and L.S.H.’s entire paternal family) on her ipad without any real reason. Previous email communications between the father and L.S.H. were filed, most of which included sentiments from L.S.H. to her father that she loved him and missed him.

The mother was unable to draw the court’s attention to any inappropriate communications (i.e. content, frequency, etc.) which would have justified her unilateral termination of these exchanges. [ 56 ] The father asserts that when he bought L.S.H. a ‘talk and text’ phone with parental controls in December 2022, as discussed at the OCL disclosure meeting, it was confiscated by the mother. By contrast, he states that L.S.H. is permitted to use the phone while at the father’s home to communicate freely with the mother. Documentary evidence of these allegations was presented by the father.

The mother conceded this allegation under cross-examination. It is evident that the father’s efforts to navigate the issue through discussion of appropriate parental controls, etc. with the mother were not successful. At trial, the mother suggested that if L.S.H. wanted to contact her father after school, she could have requested to use Mr. T.’s telephone. I find this explanation unsatisfactory. [ 57 ] The father advises that the mother is non-compliant with the Temporary Order of Justice Chappel which provides for private facetime/telephone calls with the child each evening at 8:00 p.m.

The father filed a handwritten letter to him from the child wherein she apologizes to the father for when her mother hangs up the phone. Written communications filed between the parties reflect the mother’s opinion that the father’s requests for compliance with telephone contact were “petty”. In cross-examination the mother acknowledged that, despite the temporary court order for telephone contact, she did not always answer the phone, sometimes hung up the phone, and did not always call him back.

Further, the mother acknowledged that L.S.H. might be aware that she did not like it if she spoke on the phone to her father. M. Communications between Parents [ 58 ] The father categorized the interactions between the parties as hostile in the immediate aftermath of their separation. While their communications are no longer overtly hostile, the father advises that they still do not have a good rapport.

The father asserts that if he attempts to start a conversation with the mother about important issues relating to L.S.H., she goes on the attack and denigrates his character and abilities as a father, rather than addressing the original issue raised. The mother’s responding allegations then become the new conversation. [ 59 ] The father asserts that the mother often does not communicate with him on important issues relating to L.S.H.. For example: a. Hospital visit: The mother did not inform him that L.S.H. had spent a day at the hospital with a respiratory disorder. He learned of this information from L.S.H.

By contrast, the father provided written communications to the court which depict his communication with the mother during an event wherein L.S.H. cut her finger and required medical treatment while in his care. b. Medical and Dental visits: The father advises that he does not receive notice of any of L.S.H.’s medical or dental appointments. When he does receive information, it is not in a timely manner. The father presented written communications wherein: a. The mother advised “I don’t have to tell you about a dental routine check-up, call the dental office and submit your information. Simple”; b.

The mother was unresponsive to his request for L.S.H.’s health card number; and c. The father updates the mother regarding L.S.H.’s upset stomach and provides her with updates throughout the day/night as to how she is feeling. The mother is critical of the father’s communications in this exchange. c. Education: The father asserts that: a. In April 2023 the mother instructed L.S.H.’s school that communications must go through her as the parent with (temporary) decision-making authority.

This allegation appears to be supported by documentation: The father had previously communicated freely with L.S.H.’s teacher regarding homework assignments, etc., and then received an email advising that “all communications regarding L.S.H. must be conducted with the Respondent who has sole decision-making responsibility”; b. L.S.H. missed 28 days of school in grade 4 (September 2021 to June 2022), all on the mother’s parenting time, and the mother did not advise him of any of her absences at the time. The father filed a copy of L.S.H.’s Daily Attendance Record in support of this assertion; and c.

More recently, the mother was non-committal in her communications with respect to L.S.H.’s school registration for September 2023. Written communications were filed in support of these allegations. However, the mother also points out (and filed documentary confirmation) that in October 2020, the Respondent mother advised the father that she had arranged for tutoring for L.S.H. and answered the questions he posed. In February 2023, the Respondent mother sent an email to the school requesting that the father also receive an electronic copy of L.S.H.’s report card. d.

Travel: The father asserts that the mother has travelled out of province with L.S.H. multiple times without his knowledge or consent. The mother did not acknowledge or deny this assertion. e. Residence: The mother would not communicate her residential address (i.e. where she was spending her summer parenting time

with L.S.H.) throughout the summer of 2023. After repeated requests for information, the mother’s responses were vague (i.e. “Muskoka and Owen Sound”). On September 1, 2023 the mother advised the father that she is temporarily residing with her grandmother in Burlington, Ontario, pending the outcome of this case. Written communications were filed in support of these requests for information. However, the mother also provided evidence that, in 2020, the Applicant father moved in with his girlfriend at the time, T., in Grimsby.

Written communications filed establish that, at the time, the father refused to provide her address to the Respondent mother despite a request for same. f. Previous CAS Involvement: In the course of disclosure of child protection records in this proceeding the father became aware of a previous investigation by the CAS (2021) regarding a disclosure made by L.S.H. to school officials that she was hit by the mother. Within the records the mother advised that she would speak to the father about it. She did not.

The mother did not comment upon this incident in her evidence. [ 60 ] The mother asserts that the father was not forthright in discussions regarding his driver’s licence and insurance status, and, on occasion, non-responsive regarding his dental benefits coverage for L.S.H.. [ 61 ] In cross-examination the mother acknowledged that at times she does not respond to the father’s communications and advised that “I’m working on that”. [ 62 ] The communications filed in this proceeding demonstrate that, at the time, both parties have engaged in derogatory or inappropriate commentary towards the other.

For example, in one exchange it is evident that the father has named the mother “Wackie J” as her contact information in his phone. In that same communication the mother scoffs at the suggestion that the father owns any belongings of value which he might want to collect from the family residence. [ 63 ] The mother alleges that the father also engaged in threatening texts and telephone calls from an unidentified telephone number in 2019. The father denies this allegation. The texts were not provided to the court for review.

However, the court is alert to the harassing communications reported to police by the Respondent’s partner, Mr. T., as against his former spouse during this same time period. There is insufficient evidence upon which this court could reasonably conclude that the father was the author of any such harassing communications. N.

L.S.H.’s Time with the Applicant father [ 64 ] The father described events and activities that L.S.H. participates in while in his care, including such things as skateboarding, rock- climbing, thrifting, geography games with maps, art projects, visits to the playground, movies, exhibits, animal reserves, etc. L.S.H. has her own bedroom and an art room in his home. She is attached to their pets (a cat, dog, and “Echo” the gecko). [ 65 ] The father testified that L.S.H. enjoys her extended stays with him during the summer months and has expressed discontent with the parenting

schedule in place during the school year. He described that L.S.H. was in tears at the end of the summer when she had to revert to the school year parenting schedule. [ 66 ] In L.S.H.’s grade 5 year, the father received an email from L.S.H.’s former teacher wherein he was advised that: “L.S.H. came in this morning all smiles. She was wearing a big sweater and no jacket. She admitted that she left her jacket at your house on purpose. She wanted to ensure that she will see you again. If it is possible, can you drop her jacket off for her today? I am not sure her sweater will be sufficient for the full day.

She left it on the chair at the door”. O. L.S.H.’s time with the Respondent mother [ 67 ] The mother described that L.S.H. was previously enrolled in dance classes but is no longer enrolled in any extracurricular activities. P. Parenting Exchanges [ 68 ] The father believes that transitions between L.S.H.’s houses are easier for her when they involve natural transitions at the beginning/end of the school day. Previously, when exchanges were taking place at the parties’ homes, L.S.H. would demonstrate anxiousness.

On a few occasions, in the father’s opinion, L.S.H.’s stress rose to the level of observable panic attacks. [ 69 ] The father describes in-person interactions with the mother as ‘tense’ and ‘uncomfortable’ for everyone involved and, in particular, he asserts that the mother’s body language and the volume of her voice are aggressive in his presence. [ 70 ] Written communications filed regarding parenting exchanges in August 2023 suggest that the Respondent mother did not familiarize herself with her obligation to transport L.S.H. to the Applicant father’s home at the commencement of his parenting time as per the Temporary Order of Justice Chappel.

When the father requested compliance, the mother was unnecessarily snarky in her response. Q. Father’s Alcoholism and Mental Health [ 71 ] The father’s struggles with alcoholism were, quite appropriately, a main feature of this proceeding. [ 72 ] The father acknowledges that he has struggled in the past with alcoholism and self-worth/self-harming behaviours. He advises that he has been treated for mental health issues since his teenage years and has engaged in ‘cutting’ behaviours in the past.

The mother testified that the father struggled with alcohol issues from the very beginning of their relationship, and that these issues intensified without the daily structure of the military. [ 73 ] In January 2020 the father participated in a mental health assessment by a psychiatrist. He was diagnosed with recurrent major

depression and substance (alcohol) use disorder. His medications were adjusted, and therapy was recommended. The father did not pursue therapy at the time. [ 74 ] On April 28, 2020 the father was charged with Impaired Driving. In April 2021 the father was involved in a minor collision. The Respondent mother asserts that he was under the influence of alcohol at the time. [ 75 ] The evidence of all witnesses would suggest that the father hit ‘rock bottom’ in the spring of 2021. Since that time, the court is advised of the following: a. The father has been sober since May 2021. He no longer consumes any alcohol. b.

His partner, Ms. C., does not drink, save and except for the occasional glass of wine at Christmas or Thanksgiving. c. He and Ms. C. enjoy a diet and fitness-based healthy lifestyle. They are early to bed and early to rise. d. He smokes a limited amount of marijuana in the evenings to assist with his appetite and sleep and occasionally uses magic mushrooms (Psilocybin), in a controlled setting for therapeutic purposes, with his partner. e. The father did attend some AA meetings and shared his story but did not care for the religious aspect of the meetings. f.

He completed the “back on track” 5-day educational course and qualified for early reinstatement of his driver’s licence, with an ‘alcolock’ device installed in his car. g. He has completed two clinical programs relating to his addictions: i. ADAPT: Halton Alcohol, Drug and Gambling Assessment Prevention and Treatment services), a six-session psycho-educational group setting; and ii. ADGS: Alcohol, Drug & Gambling Services Relapse Prevention Series. h. He has been seeing a registered psychotherapist, Mr. Martin, on a weekly or bi-weekly basis since May 3, 2023.

He enjoys working with the counsellor, finds the counselling sessions helpful and informative, and intends to continue. i. He sees his family physician, Dr. Arshat, every 3-6 months when ill and for prescription refills. j. He was reassessed by a Psychiatrist, Dr. Purohit, in the spring of 2023 and was found to have severe ADHD rather than bi-polar disorder. The father sees Dr. Purohit every 4-5 weeks and Dr. Purohit regularly monitors his ADHD medication. The father testified that the changes in his medication have assisted with his sleep, mood stabilization and concentration.

He follows the prescription and feels more focused and less stressed. [ 76 ] The father’s psychotherapist, Mr. Martin, testified at trial. He has been working with the father since May 2023. Mr. Martin advised that with respect to the issue of the father’s sobriety, the father was already in the “maintenance” stage (i.e. the final stage) of the five-step “Stages of Change” model.

Specifically, he had already moved through the stages of precontemplation, contemplation, preparation and action and had had established tools, strategies, and wellness routines, with the support of his medical professionals, family and friends and is in a stable place. Mr.

Martin testified that the father exhibits good self-awareness and insight into potential triggers and warning signs. [ 77 ] The focus of the father’s therapy has included building existing coping strategies, exploring thought patterns and healthy communication with the mother, engaging in child-centred parenting, and continued focus on triggers and warning signs. The father is committed to the therapy sessions, presents as candid, engaged, and eager to learn, and is open to constructive feedback. [ 78 ] Mr.

Martin explained there is increasing interest in psychotherapy circles about the potential therapeutic use of psilocybin. He is not an expert in this area but does not view occasional, moderate use in a responsible manner to be detrimental to the father’s mental health or addiction journey. Likewise, Mr. Martin was not concerned by the father’s proactive use of marijuana for sleep-hygiene and appetite, as his addiction history is directly linked to alcohol. [ 79 ] The father’s family physician, Dr. Arhat, also testified at trial. He has been the father’s family physician since 2013. Dr.

Arshat confirmed the father’s present stability and compliance with his treatment plan. He confirmed that there have been no markers present in the father’s blood which would suggest he is drinking. R. License Suspension/Car Insurance [ 80 ] The mother asserts that the father was driving while his license was suspended. She also questions whether he was properly insured to drive a vehicle, due to information she received from their insurance company. [ 81 ] The father acknowledges that after being charged with a DUI on April 20, 2020, his licence was automatically suspended for 90 days.

Following this criminal charge I find that the father was untruthful to the mother about the status of his driver’s license. Specifically, on April 28, 2020 the father texted the mother that “I have my car and I am insured and am not suspended”. This statement was false. The mother was justified in asserting concern that the father would drive L.S.H. in a vehicle when he was prohibited from doing so in the face of this untruthful statement.

[ 82 ] In September 2020, the father advised the mother in a text message that his licence had been reinstated in July and provided her with proof of insurance. I accept the mother’s evidence that he had been non-responsive to her requests for information relating to his driving status in the six-month period of time which preceded this exchange. [ 83 ] In September 2022 the father was convicted of the impaired driving offence and a 12-month driving prohibition order was imposed.

He completed a reduced suspension program, and his license was thereafter reinstated in December 2022 with an alcolock device installed in his vehicle until September 2023. It appears that a complete record of these suspensions/reinstatements was provided to the mother for the long motion heard by Justice Chappel in March 2023. [ 84 ] It is unclear why the mother believed the father’s license was suspended at any other time, save and except the general lack of trust resulting from the father’s false representation to her in April 2020, and her general observation that Ms. C. often did the driving. S.

Mother’s History of Substance Abuse and Mental Health Issues [ 85 ] The mother testified that she has a history of abusing cocaine and eating disorders. In 2008 she was an inpatient at Homewood Treatment Centre for 35 days in relation to these issues. She has not used cocaine in more than a decade and continues to work on her self-image issues. [ 86 ] Since March 2023 the mother has been enrolled in programming at the Native Women’s Centre, including support relating to domestic abuse, conflict resolution, and advocacy. T.

June 2020 [ 87 ] The mother alleges that in June 2020 she observed cuts on the father’s legs, consistent with his past self-harming practices. She raised this concern with the paternal grandmother. The father denied this allegation. He advised the court that he was not self-mutilating in 2020 and explained that he sometimes has cuts on his body from working with rebar.

He treats the cuts with hydrogen peroxide, and L.S.H. has seen him do so. [ 88 ] The mother alleges that shortly after making these allegations, an altercation took place between the father and paternal grandmother in the presence of L.S.H. which resulted in the paternal grandmother ‘choking’ L.S.H. The father acknowledges, regretfully, that a heated argument took place between himself and his mother in the presence of the child, but that the paternal grandmother has never and would never choke or otherwise cause physical harm to L.S.H. U. Car Accident [ 89 ] The father was in a car accident on April 30, 2021.

This accident also became a major event of focus at trial. [ 90 ] The father testified that he and L.S.H. were in the car heading to the grocery store immediately after work/school, just after 4:00 p.m. A vehicle making a left-hand turn sideswiped the father’s vehicle, causing the driver’s side rear-view mirror to smash into his face. The driver did not stop. The father thereafter continued to the grocery store, but realizing the extent of his injuries returned home at approximately 4:30 p.m. He describes bleeding from his head and feeling dizzy and incoherent.

The father advises that he reported the incident to the police, who attended at his home and advised of little likelihood of legal recourse. He did not make an insurance claim, and simply paid for the broken mirror. [ 91 ] The father denies being under the influence of alcohol at the time of the accident and asserts that the police did not raise any concern with same when meeting with him. The father testified that he did not believe his blood alcohol levels had been tested at the hospital. He testified that he suffered a concussion.

The father made no mention of any consumption of alcohol on that day in his examination in chief. [ 92 ] Documents were subsequently filed in evidence which suggest the following timeline and information: a. By 7:30 p.m. the paternal grandmother had notified the Respondent mother of the accident (earlier communications were not presented, although it appears that there was pervious dialogue between the mother and paternal grandmother); b. The mother retrieved L.S.H. from the paternal grandmother’s home at some point after 8:00 p.m.; c.

At 8:30 p.m. the father was still awaiting the arrival of the police at the home; d. The father was transported to hospital, at approximately 10:30 p.m.; e. The father was initially assessed at 12:08 a.m. at which time he was noted to have swelling and bruising to his left eye and left side of face and to be “++ drunk”; f. A blood sample conducted at 12:20 a.m. detected a high presence of Ethanol; and g.

The father was again assessed between 2:12 a.m. and 2:50 a.m. and was noted as “continues to be intoxicated”. [ 93 ] In cross-examination the father admitted to drinking “after the accident”…“later in the evening, well after I was home”. He provided no further context or elaboration. The father asserts that he was truthful with the police, the mother, and the paternal grandmother about the accident.

However, information given to hospital staff was not accurate in many ways – he could not explain why he gave false information to hospital staff, suggesting that his behaviours may have been impacted by his concussion. [ 94 ] The father testified that the mother gave him a hug when she retrieved L.S.H. that evening. She did not raise any concerns about

drinking at the time. In her evidence the mother testified that she is now concerned that alcohol may have been a factor in the accident. The mother provided no evidence of her having made any observations or formed any beliefs of that nature at the time. V. Child Protection Involvement [ 95 ] The Children’s Aid Society of Hamilton became involved with the family in January 2023. [ 96 ] The Applicant father and his partner, Ms. C., reported disclosures made to them by L.S.H. regarding: a.

An ‘interrogation’ by her mother on Christmas Eve, 2022 wherein L.S.H. was told that she had to pick between her parents and was advised “I know what you told Ian” (the OCL); and b. Exposure to drinking and fighting in the mother’s home and in the presence of the maternal extended family. [ 97 ] The Children’s Aid Society did not verify the concerns reported by the father and Ms. C. The CAS did verify that L.S.H. is at risk of emotional harm resulting from her exposure to post-separation conflict. The Society worker cautioned the father and Ms.

C. against recording interviews of the child and using leading questions. [ 98 ] The subject recordings (i.e. two videos) were entered into evidence in court through Ms. C. The child was unaware that her discussions were being recorded. In both videos only L.S.H. and Ms. C. were present. In the first recording the child described the event which allegedly occurred on Christmas Eve 2022. In the second recording the child described the mother’s alleged propensity for anger and the frequency with which L.S.H. is brought to tears in her presence. Ms.

C. testified and explained her conflicting feelings about the videotapes. On one hand, she recognizes that recording her conversations with L.S.H. may constitute a breach of the child’s trust, and she does not wish to damage their relationship. On the other hand, she was genuinely concerned about the disclosures L.S.H. was making to her. In hindsight, Ms. C. wishes that she had contained her reactions to L.S.H.’s disclosures better and had articulated her support in a manner that was potentially less suggestive. However, Ms.

C. stands by her belief that the disclosures made to her by L.S.H. were true. [ 99 ] Both the father and Ms. C. testified that since being cautioned by the CAS, they have not recorded any discussions with L.S.H. and have reflected upon their past discussions. At present, they make a deliberate and concentrated effort to redirect the discussion if L.S.H. raises adult subject matter (e.g. parental conflict, litigation issues, etc.) in their presence. However, notwithstanding their efforts, the father and Ms.

C. testified that L.S.H. has continued to make disclosures relating to the maternal family “hammering alcohol” and of a fistfight she observed between the mother’s two brothers. These disclosures are denied by the mother. The maternal uncle, in his testimony, denied ever engaging in a physical fight in L.S.H.’s presence, as alleged. In cross-examination he qualified that this event was “more of a wrestle”, with no injuries caused, and that L.S.H. “blew it out of proportion”.

The maternal uncle did acknowledge that he has witnessed adult discussions to take place in the presence of L.S.H. at the maternal cottage. [ 100 ] The mother testified that Mr. T. drinks alcohol 3-4 times per week after work, usually in the range of 1-3 drinks. The mother testified that she also drinks during the week and on weekends. When she drinks it ranges from 1 to 8 drinks in a day. Mr. T. testified that if he was watching a Sunday football game he might “go through a 6-pack”. The mother also acknowledged that she and Mr.

T. have engaged in conflict in L.S.H.’s presence, although she notes that these are “regular” arguments, without yelling or screaming or physical violence. [ 101 ] Child protection worker, Susan Smarz, testified at trial. In her examination-in-chief she stated the following: a. The Children’s Aid Society of Hamilton’s first involvement with this family occurred in March 2021 as a result of a referral from the child’s school wherein the child disclosed to a friend that her mom hits her and she wears make-up to cover the bruises. The complaint was investigated and closed without intervention. b.

The Children’s Aid Society became reinvolved with the family on January 16, 2023 as a result of the complaints made by Ms. C. regarding disclosure made to her by the child. c. Ms. Smarz met with L.S.H. on three occasions: i. January 19, 2023 at the child’s school; ii. February 7, 2023 at the mother’s home; and iii. March 2, 2023 at the mother’s home. d. The worker met with the father and Ms. C. on February 14, 2023 and March 2, 2023. e. The worker was concerned that Ms. C. had made recordings of the child’s disclosures, and elected to listen to one of the two recordings.

The worker was further concerned that the questions she listened to on the first recording were ‘leading’. f. In the first interview with the child, conducted at her school – the child disclosed that: i. at Christmas, the mother was ‘drunk’ and gave her the option of which parent she wanted to live with; ii. she was worried that her mom would get mad; and iii. she rated her feeling of safety as 10/10 at her dad and Ms. C.’s home, and 8/10 at her mom and Mr. T.’s home;

iv. she used to cry a lot, and her dad told her she had an anxiety attack when she was crying and shaking; v. her mom drank, and she and Mr. T. argued sometimes, but she denied any physical violence; vi. the child first reported that she did not draw Mr. T.’s face on a punching bag, but later reported that she did, indicating that she was mad that day because he tickles her. g. Ms. Smarz thereafter only interviewed the child in the mother’s home, because on the second visit with L.S.H., L.S.H. told the worker that she ‘didn’t want her to go there’. h. On February 14, 2023 the worker met with the father and Ms.

C.. They discussed the inappropriateness of recording discussions with L.S.H. and the use of ‘leading’ questions. It was a positive meeting. They acknowledged how such conduct could draw L.S.H. into the conflict. They agreed to make effort to change the subject if L.S.H. asks questions in future regarding parenting issues. i. The worker did not thereafter verify any of the concerns relating to the mother, in part because in subsequent interviews the child did not “bring up” the issues again. j.

The worker seemed to suggest that the concerns relating to conflict were more centered on the behaviours of the father and Ms. C. than on the mother and Mr. T. k. The Society recommended counselling for L.S.H. and a coparenting program for both parents. [ 102 ] In cross-examination, the following information was also provided: a. Ms. Smarz was surprised by the suggestion that the mother testified that the worker inaccurately recorded statements made by her during the investigation. b.

She would be both surprised and concerned to learn that the mother’s allegations regarding the father were exaggerated or misstated. c. When asked to describe a ‘leading’ question the worker explained that it is “when you ask a child something and then insert something in the next question that makes it go in a certain direction”. By way of example in this case she suggested that when Ms. C. reacted “oh, you poor thing” to a statement made by the child regarding the mother’s drinking, that was a leading question. d.

When listening to the audio recordings in court, the witness did not identify any statements made by Ms. C. which she would classify as leading. e. The worker acknowledged that the child made disclosures in the first interview (conducted at the school) regarding the mother (

a) discussing the report made by the OCL, (

b) asking her where she wanted to live while under the influence of alcohol, and (

c) fighting and drinking in the home of the mother and Mr. T. The child asked the worker not to tell her mom. f. The second interview took place at the mother’s home. Prior to meeting with the child, the worker had a lengthy interview with the mother wherein the mother reviewed a long list of allegations regarding the father. She advised the worker that the father is violent, an alcoholic, and engages in self-harming conduct. g.

Regarding her second interview with the child, the worker changed her evidence to conform with her notes, and acknowledged that the child did again make disclosures with respect to the mother and Mr. T. fighting, and Mr. T. drinking. During this second interview the worker “reassured [the child] that she was fine and that we needed to share with mom”. h. L.S.H. reported to the worker that she does not get to see her dad enough and she wants to see him more. [ 103 ] The CAS records suggest that the worker engaged in text and email communications with the mother far more often than with the father.

At times, the mother would debrief the worker about court attendances, provide the worker with court materials, and the worker made referrals to the mother for social and legal resources. [ 104 ] The mother testified that she completed a “Kids First” online parenting course in August 2023, as recommended by the CAS. She questions why the Applicant father has not taken such a course. The mother has looked into counselling for L.S.H. in the Barrie area but has not attempted to enroll L.S.H. in counselling in Hamilton due to the uncertainty of L.S.H.’s future residence. W.

Office of the Children’s Lawyer [ 105 ] In August 2022 Dr. Ian DeGeer, Office of the Children’s Lawyer clinician was assigned this s. 112 investigation. Dr. DeGeer provided his recommendations to the parties in December 2022. [ 106 ] In April 2023 a Voice of the Child Report was requested by the court with respect to the child’s updated views and preferences. That report was completed in June 2023. [ 107 ] It was generally unchallenged from the initial s. 112 Report that: a. L.S.H. reports getting along well with both of her parents and their partners; b.

Both parents are active in her life and she engages in activities with both parents in both homes; c. Both parents rely upon their partners to assist with getting L.S.H. to and from school. L.S.H. does not object to the routines in either

home; d. L.S.H. was aware of her mother’s desire to relocate to Barrie. L.S.H. consistently expressed that she does not wish to relocate; e. The father was forthcoming with his historical issues with alcohol; and f. L.S.H. disclosed that her mother and Mr. T. fight at home, that Mr. T. drinks almost daily, and that her mother does not drink as much or as often as Mr.

T. [ 108 ] The Office of the Children’s Lawyer recommended that, given the history and pervasive nature of the father’s alcohol abuse and mental health vulnerabilities, it would be beneficial for him to participate in a psychological evaluation to ensure appropriate counselling services relating to sobriety and mental well-being. [ 109 ] The Office of the Children’s Lawyer further recommended that, in consideration of L.S.H.’s strong opposition to relocation and the impact a move would have on her relationships with the father and her extended family, that the request to relocate L.S.H.’s primary residence to Barrie be denied. [ 110 ] Dr.

DeGeer opined that given the conflict and communication issues between the parties, and the questions surrounding the father’s historic stability, that the court order sole decision-making authority in favour of the mother. [ 111 ] In the initial report Dr. DeGeer also recommended an expansion of the father’s parenting time to include a mid-week overnight visit, equal parenting time during the summer months, equal sharing of holidays, a right of first refusal over parenting time, use of a parenting communication application, and abstinence/treatment for the father relating to alcohol and mental health issues.

Of note, the police occurrence report summaries contained within the s. 112 report Appendix relate to a Mental Health Act apprehension (July 2, 2018) and mental health wellness check (February 11, 2022) involving the mother’s partner, Mr. T. Whereas the father’s mental health issues were explored in depth at this trial, the court was offered no context or explanation of these relatively recent events or any applicability of same to Mr. T. acting in a caregiving role to L.S.H. [ 112 ] It was also generally unchallenged from the updated Voice of the Child Report that: a.

In the first interview the child reported that she liked the current

schedule wherein she was in the care of the father from Thursday after school to Monday morning return to school (on alternating weekends); b. In the second interview the child reported that she preferred the summer schedule, wherein she resides with each parent on an equal week-about basis; c. She does not want to change schools; and d. She is aware that her mother wishes to relocate to Barrie. Her mother has shown her houses online, but L.S.H. reiterated that she does not wish to relocate to Barrie on a permanent basis. X. Child Support [ 113 ] The issue of retroactive child support was previously settled.

There are no arrears of child support owing. The father presently pays table child support to the mother on behalf of L.S.H. in the amount of $659.00 per month, based upon an annual income of $70,549.00, as per the Temporary Order of Justice D. Chappel. THE LAW AND ANALYSIS RE: PARENTING ISSUES [ 114 ] The parties were not married. The governing legislation is the Children’s Law Reform Act, R.S.O. 1990, c. C.12 . The relevant provisions are as follows: 19 The purposes of this Part are, (

a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children; … Equal entitlement to decision-making responsibility 20

(1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child. Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise. Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. … Application for parenting order or contact order Parenting order, application by parent 21

(1) A parent of a child may apply to a court for a parenting order respecting, (

a) decision-making responsibility with respect to the child; and (

b) parenting time with respect to the child. … Best interests of the child 24

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Factors

(3) Factors related to the circumstances of a child include, (

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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

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 co-operate, 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 co-operate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and (

h) any other relevant factor. Past conduct

(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 the person’s decision-making responsibility, parenting time or contact with respect to the child. Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. … “Family violence” 18 (1) “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes, (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself 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. … Parenting orders and contact orders 28

(1) The court to which an application is made under

section 21, (

a) may by order grant, (

i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (

a) or subsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3); (

b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the

case may be, with respect to a child; and (

c) may make any additional order the court considers necessary and proper in the circumstances, including an order, (

i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (

v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. … Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons. Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule. Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child. … Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from, (

a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and (

b) any other person who is likely to have such information. … Relocation 18 (1) “r elocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with, (

a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or (

b) a person who has contact with respect to the child under a contact order; (“déménagement”) “separation agreement” means an agreement that is a valid separation agreement under

Part IV of the Family Law Act . … 39.3

(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out, (

a) the expected date of the proposed relocation; (

b) the address of the new residence and contact information of the person or child, as the case may be; (

c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and (

d) any other information that may be prescribed by the regulations. … Objection

(5) A person with decision-making responsibility or parenting time who receives notice of the proposed relocation under subsection (1) may, no later than 30 days after receiving the notice, object to the relocation by, (

a) notifying the person who gave the notice of proposed relocation of the objection to the relocation; or (

b) making an application under

section 21. Notice requirements

(6) A notice under clause (5) (

a) shall be in writing and shall set out, (

a) a statement that the person objects to the relocation; (

b) the reasons for the objection; (

c) the person’s views on the proposal referred to in clause (2) (c); and (

d) any other information that may be prescribed by the regulations. … 39.4 Best interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with

section 24, as well as, (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child has complied with any applicable notice requirement under

section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (

e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and (

g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. Burden of proof

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. Same

(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a childspend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burdenof proving that the relocation would not be in the best interests of the child. Same

(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. Burden of proof, exception

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply. Costs of relocation

(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting timeby a person who is not relocating between that person and the person who is relocating the child. [115] Application of the best interests test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the childwhose well-being is under consideration – “case by case consideration of the unique circumstance of each child is the hallmark of theprocess”: Van de Perre v. Edwards, 2001 SCC 60 at para 13.

The analysis must remain centered on the rights of the child,from a child-centred perspective – the ‘rights’ of a parent are not a criterion: Young v. Young, (SCC) at para. 42.

Sinceparenting decisions are “pre-eminently exercises in discretion, the wide latitude under the best interests test permits courts to respond tothe spectrum of factors which can both positively and negatively affect a child”: Young, at para. 74. [116] It is generally inappropriate to award joint decision-making responsibility between parents where there is an absence ofcooperation, communication and respect between them: see for example Kaplanis v. Kaplanis, (ONCA), Roy v. Roy, (ONCA), Lawson v. Lawson, (ONCA), at para. 15, Giri v. Wentges, 2009 ONCA 606 at para. 10, B.V. v. P.V., 2012 ONCA 262 , Berman v.

Berman, 2017 ONCA 905 at para. 5, Reeves v. Bland, 2018ONCA 263 , paras. 9-15. [117] However, there has also been a notable trend in recent years to order a joint decision-making regime in circumstances where suchan order is required to safeguard against a power imbalance: Rigillo v. Rigillo, 2019 ONCA 548 at para. 12, Khairzad v. Macfarlane,2015 ONSC 7148 at para. 21, McBennett v. Davis, 2021 ONSC 3610 at para. 94.

Such circumstances have included scenarioswherein one parent attempts to limit the other’s relationship with the child, or to prevent access to information, or appears to be primarilyresponsible for the conflict between the parties: See also Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.) at para. 22, and Y.Y.v. L.F., 2019 ONSC 1718 (Div. Ct.). [118] Section 24(6) of the CLRA requires to the court to give effect to the principle that a child should have as much time with eachparent as is consistent with the best interests of the child. This provision however does not create a presumption of equal time.

Assummarized by Chappel J. in A.E. v. A.E., 2021 ONSC 8189 at para 84: The courts have clearly emphasized over the years that whilemaximizing contact between children and parents is important, it is not an unbridled objective. If the evidence indicates that increasedparenting time with a parent would not in fact support the child’s best interests, it should not be ordered: (Young v. Young, (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at para. 40; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 (S.C.C.), at p. 49;B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4, J.F.T. v.

J.S.V., 2021 ONCJ 302at para. 25. [119] Office of the Children’s Lawyer Reports, while generally given significant weight, are not binding upon the court. Diminishedweight is sometimes given where the report is outdated, biased, uses poor methodology, uses incorrect or improper assumptions,contains limited or incorrect evidence, or reaches conclusions inconsistent with objective evidence: Maharaj v. Wilfred-Jacob, 2016ONSC 7925 at para. 67, H.R. v. P.R., 2021 ONSC 6222 ag para. 83. [120]

Article 12 of the Convention on the Rights of the Child requires state signatories to ensure that children who are capable offorming their own views must be given the right to express those views in matters which affect them and that those views must be givendue weight in accordance with their age and maturity: Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577,Article 12 (entered into force 2 September 1990).

The degree to which the court will follow the wishes of the child will depend upon theage and level of maturity of the child and will be subject to the judge’s discretion as the court seeks to determine the child’s bestinterests: R. G. v. K.G., 2017 ONCA 108 at para. 67. Relocation Framework [121] The Respondent mother, the Applicant father, and the child presently live within a close proximity to one another within theHamilton/Burlington areas. The Respondent mother seeks permission to relocate to Barrie with the child.

I find that this proposed moveis likely to have a significant impact on the relationship between L.S.H. and the Applicant father, who has parenting time with her, and assuch, this case appropriately qualifies as a “relocation” case, as defined under section 18(1) of the CLRA. [122] Although it does not appear that the mother gave notice to the father in strict compliance with the written requirements undersection 39.(3) of the CLRA, the father’s objection to her proposed relocation was formally made known to her by way of thecommencement of this court Application in March 2022.

The formal exchange of information required under this the CLRA by bothparties was made known to the other through the litigation process, and to the court through their respective evidence. [123] I find that the burdens of proof referenced within sections 39.4(5) wherein a child spends substantially equal time in the care ofeach party, and 39.4(6) wherein a child spends the vast majority of time in the care of the party who intends to relocate, are not

applicable to this case. The parties are not bound by the terms of any family arbitration award or agreement: see Barendregt v.Grebliunas, 2022 SCC 22 at para. 149. They were not bound by the terms of any Temporary or Final Order when therelocation was proposed, or when the Application was commenced. They are now substantially complying with the Temporaryparenting Order of Justice Chappel dated March 9, 2023.

However, I do not accept that the Temporary Order, which was intended toprovide temporary relief and structure to the parties’ parenting issues pending final determination of this case, should have the effect ofchanging the burden of proof in this case. Accordingly, as per sections 39.4(7) and 39.4(8) of the CLRA, I find that the best interests ofL.S.H. must be determined on a balance of probabilities in accordance with

section 24 of the CLRA, with additional consideration givento the factors enumerated under

section 39.4(3) of the CLRA which are spec

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