Geniole v. Nguyen, 2023 ONCJ 280

ONTARIO COURT OF JUSTICE CITATION: Geniole v. Nguyen , 2023 ONCJ 280 DATE: 2023 06 29 COURT FILE No.: D42377/22 BETWEEN: DANIEL GENIOLE Applicant — AND — THI THUY NGUYEN Respondent Before Justice Melanie Sager Heard on May 8-12 and June 13, 2023 Reasons for Judgment released on June 29, 2023 Glenda Perry............................................................................................ counsel for the applicant Shelley C. Quinn and Venessa N.

Sectakof......................................... counsel for the respondent Sager, J.: Introduction [ 1 ] The Applicant (father) and the Respondent (mother) met through friends in October 2018. They lived together for 4 months between January and April 2019. On August 8, 2020, the parties’ daughter Melanie was born. [ 2 ] The father was born and raised in Toronto. He currently lives with his mother, brother and maternal grandparents in the home his grandparents raised his mother. The father left high school without a diploma and began working on and off at the age of 16.

He currently works part time at Freshco. [ 3 ] The mother was born in Vietnam and came to Canada on a student visa on October 12, 2017. She has remained in Canada since that time. She studied English as a second language at George Brown College from January to December 2018. She then obtained a certificate in English as a second language from Metro Toronto Language School in March 2020.

In September 2021, the mother received a Diploma in the Fundamentals of Hospitality and Tourism Management from the Toronto School of Management. [ 4 ] To support herself, the mother has worked as a waitress both while in school and after completing her studies. She currently works full time as a waitress and is taking online courses to become a licensed real estate agent. [ 5 ] The maternal grandmother lived with the mother and Melanie from Melanie’s birth until February 2022. She was actively involved in the day to day care of Melanie and was responsible for Melanie’s care when the mother was at work.

She has a visa that allows her to be in Canada up to 6 months at a time over a period of several years. [ 6 ] Melanie lived with her mother and maternal grandmother from birth until February 24, 2022, when she was ordered by Justice Roselyn Zisman to be placed in the care of her father. Melanie has remained in the primary care of her father since that date and has had regular parenting time with her mother.

The history of the litigation (

i) The events resulting in the temporary without prejudice order of February 24, 2022, made without notice to the mother [ 7 ] The maternal grandmother arrived in Canada from Vietnam on January 29, 2020 after learning her daughter was pregnant. She has a multi-entry visa that allows her to stay in Canada for up to six months. This visa expires on January 22, 2025. When the maternal grandmother was in Canada in 2020, she obtained several extensions to remain in Canada from the Canadian government beyond six months.

As a result, she did not have to leave as planned on July 28, 2020 and was able to remain in Canada until March 31, 2022. [ 8 ] The mother, who works full time and relied on her mother for childcare, had to make alternate plans for Melanie’s care once the maternal grandmother left Canada as was required by her visa by March 31, 2022. [ 9 ] The parties discussed three specific options for Melanie’s care while the maternal grandmother is in Vietnam; first was proposed by the mother for the father to live with her and care for Melanie while she was at work.

This option would require the father to contribute $500.00 per month towards her rent. The second option, proposed by the father was for Melanie to live with him and his family who would cover her expenses. The mother could visit whenever she wanted and could take Melanie on her days off work.

The third option was for Melanie to travel with the maternal mother to Vietnam for approximately three months between February and May 2022. [ 10 ] The father rejected the mother’s proposal that he move in with her and care for Melanie while she is at work and the mother rejected the father’s proposal that Melanie live with him and his family. The mother then unilaterally decided that Melanie would travel to Vietnam with the maternal grandmother and on February 20, 2022 told the father that Melanie would be leaving on February 25, 2022, for approximately 2 to 3 months.

She invited the father to spend more time with Melanie before she left and to accompany them to the airport. [ 11 ] The father obtained legal advice and brought an urgent motion without notice to the mother on February 24, 2022, to obtain an order that the child be prohibited from leaving the country and be placed in his care. [ 12 ] The father attended in court on his urgent, ex parte motion on February 24, 2022, before Justice Zisman and obtained a without prejudice order granting him sole decision making responsibility for Melanie who was to be delivered into his care immediately.

The without prejudice order prohibited the mother from removing the child from the City of Toronto and specifically provided that her primary residence shall be in Ontario with the father. The mother was ordered to deliver the child’s passport and birth certificate and health card to the father and the parties were ordered to communicate with each other in writing. The motion was adjourned to March 9, 2022. (ii) The temporary with prejudice order of March 9, 2022 [ 13 ] On March 9, 2022, the father’s urgent motion was heard on affidavit evidence from both parties.

While the motions judge had several concerns with the mother’s conduct, Justice Zisman was primarily focused on whether the mother was a flight risk. [1] [ 14 ] Justice Zisman concluded that the mother was a serious flight risk as she did not provide proof of the purchase of a two way ticket, Vietnam is not a signatory to the Hague Convention, and the mother had no status in Canada on the date of the motion.

The fact that unbeknownst to the father, the mother had obtained Vietnamese citizenship for Melanie, heightened the risk of her removal from Canada. [ 15 ] Justice Zisman questioned the mother’s judgement in terms of her decision to send a young child away from her parents for several months and her willingness to do so without the father’s consent.

She said that the mother’s failure to include the father’s name on Melanie’s birth registration and certificate and obtaining a passport for Melanie under false pretenses suggests she does not support or promote a relationship between Melanie and her father. [ 16 ] Justice Zisman was also concerned with the lack of a plan from the mother for Melanie’s care while her mother was in Vietnam.

Conversely, Justice Zisman concluded that “there is enough evidence” that the father is “able and willing” to take care of Melanie, that he has appropriate accommodations and that his family can help him. [ 17 ] Justice Zisman maintained the order placing Melanie in her father’s care and noted that several facts were in dispute, specifically how involved the father was in the child’s life. Justice Zisman specifically stated that on a motion she must deal with disputed evidence and that she cannot resolve the “he said, she said” conflictual evidence at this stage of the litigation.

That is an issue for the trial judge to resolve. [ 18 ] In maintaining the order made on an urgent without prejudice basis on February 24, 2022, Justice Zisman specifically noted that the mother “is going to have to do a lot of work to convince the court that she is not a flight risk.” [ 19 ] Justice Zisman ordered virtual parenting time for the mother three times per week and noted that supervised parenting time would be considered once the mother delivered up hers and the child’s passports.

She therefore ordered that the mother’s parenting time beyond three virtual visits a week shall be at the father’s discretion. (iii) The mother’s parenting time between March 9, 2022 and trial [ 20 ] The mother began virtual visits with Melanie according to the mother on March 9, 2022 and on March 3, 2022 according to the father. The parties agree that the mother had her first in person visit with Melanie on March 20, 2022 in the father’s home supervised by him for one hour. The parties eventually agreed on two supervised day visits per week.

The mother’s supervised parenting time continued until August 21, 2022, when she began having unsupervised visits in the community for 4 hours.

[ 21 ] On August 30, 2022, the parties consented to a court order granting the mother unsupervised parenting time on Tuesdays and Sundays from 9:00 a.m. until 2:00 p.m. This arrangement continued until April 2023 when the father agreed to the mother’s requests for overnight parenting time and offered parenting time every weekend from Saturday at 10:00 a.m. to Sunday at 12:00 p.m. in addition to her Tuesday parenting time from 9:00 a.m. until 2:00 p.m. Orders being requested by the parties [ 22 ] The father asks the court to make the following final orders: (

a) That he be granted decision making responsibility for Melanie who shall have her primary residence with him. He shall only make final decisions after consulting with the mother in writing. (

b) The mother shall have regular parenting time with Melanie every Wednesday from 9:00 a.m. to 6:00 p.m. unless she is in daycare which would adjust the time, and three weekends out of every four from Saturday at 9:00 a.m. until Sunday at 6:00 p.m. (

c) A sharing of all holidays. (

d) A police enforcement order. (

e) The mother shall deposit her passport(

s) with the court. (

f) The father may apply for and obtain government issued documents for Melanie without the mother’s consent and that he shall be responsible for holding these documents. (

g) The mother shall be prohibited from removing Melanie from the Greater Toronto Area. (

h) The father shall pay the mother retroactive child support in the amount of $254.00 per month for the period of September 1, 2021 until December 1, 2021, and $266.00 per month for January and February 2022 based on the father’s income in 2021 of $29,848.00 and in 2022 of $31,000.00 and the Child Support Guidelines . (

i) The mother shall pay the father child support commencing March 1, 2022 based on an income of at least $45,000.00 which shall be grossed up for income tax unless the mother demonstrates that she is paying source deductions. [ 23 ] The mother asks the court to make the following final orders: (

a) The parties shall share decision making responsibility for Melanie or in the alternative an order that the mother have sole decision making responsibility after consulting with the father. (

b) Melanie shall have her primary residence with the mother. (

c) The father shall have regular parenting time with Melanie alternate weekends from Friday to Monday and Wednesdays from 4:00 p.m. to 6:00 p.m. (

d) A sharing of all holidays. (

e) Melanie’s passports and documents be held by the father. (

f) The mother’s passport shall be held by her lawyer until January 1, 2026. (

g) The father shall pay the mother child support in the amount of $273.00 per month commencing January 1, 2021 and up to February 1, 2022 and following Melanie being returned to the mother’s care based on an imputed annual income of $32,000.00 and the Child Support Guidelines. The issues to be decided by the court [ 24 ] The following issues must be decided by the court: (

a) What decision making responsibility order is in Melanie’s best interests? (

b) What parenting

schedule is in Melanie’s best interests? (

c) The father agrees to pay the mother retroactive child support. On what date should the child support commence and on what income should it be calculated? (

d) What amount of child support should the mother be required to pay the father as of March 2022? (

e) Does either party have a responsibility to pay child support prospectively and if so on what amount of income should the child support be calculated? [ 25 ] This trial was heard over six days from May 8-12, and June 13, 2023. On consent, closing submissions were submitted to the court in writing. Both parties provided the court with draft final orders. [ 26 ] Both parties gave their evidence in chief by affidavit as did their collateral witnesses. Both grandmother’s gave evidence as did a friend of the mother’s and her midwife.

Parenting issues: The law Statutory considerations [ 27 ] Subsection 24(2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests. [ 28 ] Subsection 24(3) of the Act sets out a list of factors for the court to consider when determining a child’s best interests. [ 29 ] The court must consider whether there has been family violence as part of the best interests consideration. Family violence is defined in subsections 18(1) and (2) of the Act.

Factors related to family violence are outlined in subsection 24(4) of the Act. [ 30 ] Subsection 24(6) of the Act states that 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. [ 31 ]

Section 28 of the Act sets out the types of parenting orders the court can make. [ 32 ] Subsection 33.1(2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows: 33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding. Best interests [ 33 ] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun , 2021 ONSC 41 ; Pereira v. Ramos , 2021 ONSC 1736 . It “is not a checklist to be tabulated with the highest score winning.

Rather, it calls for the court to take a holistic look at the child, her needs and the people around her.” [2] [ 34 ] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. [3] Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. [4] Parenting time [ 35 ] A starting point to assess a child’s best interests when making a parenting time order is to ensure that the child will be physically and emotionally safe.

It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. [5] [ 36 ] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Analysis of the evidence [ 37 ] At the date of trial Melanie was two years and nine months old. The first year and a half of her life she was in her mother’s primary care.

For the last one year and three months she has been in the primary care of her father. For this reason, an analysis of the evidence based on these two periods of time will follow. A. The first year and a half of Melanie’s life (

i) The uncontested evidence [ 38 ] Melanie lived full time with her mother and maternal grandmother for the first year and a half of her life. Melanie was cared for by both her mother and maternal grandmother and exclusively by her maternal grandmother when her mother was working. [ 39 ] In the first year and a half of her life, Melanie was visited by her father and paternal grandmother in the mother’s home.

Melanie also spent time with the father and paternal relatives in his home always accompanied by the mother and often overnight. [ 40 ] In the first year and a half of her life, the mother did not leave Melanie in the care of her father or his relatives. The mother was always present during the father’s or his family’s visits. [ 41 ] Following her birth, Melanie attended regular appointments with her doctor including for her 2 months, 4 months, 6 months, 12 months, 15 months and 18 months well baby care appointments.

Melanie’s pediatrician did not identify any concerns regarding Melanie’s growth and development. [ 42 ] The father did not attend any of the well baby care appointments with Melanie and the mother. [ 43 ] The father was not employed for the first year of Melanie’s life. He did collect the Canadian Emergency Relief Benefit for a period during the Covid-19 pandemic. The father did not pay the mother child support for Melanie.

The father and his mother purchased items and supplies for the mother and Melanie and delivered them to her home. [ 44 ] The father nor the paternal grandmother reported any concerns regarding the mother’s care of Melanie to anyone including the police or any child welfare agency.

[ 45 ] The parties’ main source of communication has been in writing through Facebook Messenger. (ii) The contested evidence (

a) The mother’s plan for Melanie to travel to Vietnam with the maternal grandmother [ 46 ] To determine if the mother remains a serious flight risk as of the date of trial, a review of the evidence leading up to the urgent motion is necessary. Events leading up to father’s urgent motion [ 47 ] The mother’s evidence is that when her mother was required to leave Canada to comply with the terms of her entry visa, she asked the father to move in with her for 60 days while her mother was away to look after Melanie while she was at work and contribute $500.00 per month towards the rent.

The mother says at first the father agreed to her suggestion that he move in with her for the 60 days but later rejected this idea and offered for Melanie to stay with him and his family while the maternal grandmother is away. The mother rejected the father’s proposal and decided Melanie would go to Vietnam with her grandmother for 2-3 months. [ 48 ] On February 20, 2022 via Facebook Messenger, the mother told the father of her decision for Melanie to travel to Vietnam for 2 to 3 months with the paternal grandmother and said she would be back in Canada in May 2022.

The messages exchanged between the parties via Facebook Messenger around this time do not include a message from the father in which he clearly states he is opposed to Melanie travelling to Vietnam with her grandmother.

While the father may not have approved of the mother’s decision to send Melanie to Vietnam with the maternal grandmother, he did not express strenuous opposition in written communication between them days before Melanie was to leave Canada with her grandmother. [ 49 ] The father says that on January 17, 2022, while visiting Melanie at the mother’s home, she told him she was considering having Melanie travel with her mother to Vietnam as she could not care for Melanie without the assistance of her mother who had to return to Vietnam.

The father says he told the mother he was not comfortable with Melanie travelling to Vietnam and offered to care for Melanie “for 2 to 3 months while her mother was in Vietnam”. He says that the mother said she would speak to her mother and a few days later rejected his proposal.

He said the mother continued to ask him to move in with her to help care for Melanie and pay $500.00 in rent but he was not working at the time and would not be able to pay the mother rent. [ 50 ] When the mother made it clear that Melanie was going to Vietnam with her maternal grandmother, the father sought out legal advice and prepared for an urgent motion to restrict the mother from removing Melanie from Ontario. [ 51 ] When the father appeared before the court on an urgent basis without notice to the mother, the following were the facts he relied upon in support of his request for an order that Melanie be placed in his care: (

a) The mother had plans to send Melanie to Vietnam with her maternal grandmother for an unspecified period on February 25, 2022 without his “knowledge or consent”. (

b) The parties first discussed the mother’s plan for Melanie to travel with the maternal grandmother to Vietnam on January 17, 2022. The maternal grandmother, who provided care for Melanie when the mother was at work, had to return to Vietnam for 2 to 3 months. As a result, the mother had to make alternate childcare arrangements. The father offered to care for Melanie in his home rather than her travelling to Vietnam with the maternal grandmother but the mother would not agree. (

c) The father was not shown a plane ticket or an itinerary for Melanie’s travel to Vietnam. (

d) The father told the mother that he objected to Melanie going to Vietnam and since then, the mother has not been allowing him to see Melanie. (

e) The father did not consent to the mother obtaining a passport for Melanie. He does not know how the mother obtained one and suspects she was not truthful with the officials at the passport office. (

f) The father believed the mother had permanent residency status in Canada. (

g) The father was concerned that if the mother knew he had commenced court proceedings either she or her mother would hide Melanie. (

h) The father quit his job after Melanie was born in anticipation of helping care for her. (

i) The father has been actively involved in Melanie’s life including seeing her every weekend and attending doctors’ appointments with her and can provide care for her. He said he was familiar with her needs and

schedule and that he has looked after her when she is teething and ill. (

j) The mother began restricting the father’s time with Melanie in the summer of 2021 after he refused to marry her and sponsor her family to come to Canada. She began to impose restrictions on his time with Melanie including that she be present during his visits. (

k) The father had appropriate accommodations for Melanie in his home including her own bedroom. (

l) The father’s mother and grandparents live with him and can assist in caring for Melanie. (

m) The father does not trust the mother given that she has refused to communicate with him, not allowed him to see Melanie, arranged for Melanie to travel to Vietnam without his consent, and obtained a passport for Melanie without his knowledge or consent. [ 52 ] The mother’s affidavit in response to the father’s urgent motion contained the following facts upon which she relied to have

Melanie returned to her care: (

a) She has been Melanie’s caregiver since birth and the father has only had parenting time in her presence. He has never cared for Melanie on his own and he therefore could not have the experience caring for Melanie that he claims in his affidavit to have. (

b) While the mother did insist on being present during the father’s parenting time, she never restricted his contact with Melanie or denied same. (

c) The father never attended a doctors’ appointment with her for Melanie. (

d) The father did not quit his job when Melanie was born to help care for her as he was not working at the time. (

e) The father has not been involved in Melanie’s life and has only seen her infrequently. The father had not requested parenting time with Melanie for two months prior to the urgent motion. (

f) The mother first raised with the father the prospect of Melanie travelling to Vietnam with her maternal grandmother in the summer of 2021, not January 2022 as the father claims. (

g) The mother denies ever asking the father to marry or sponsor her. (

h) The mother advised the father of the flight information including the flight time and the fact that a one way ticket had been purchased. (

i) The mother does not have permanent residency in Canada but is in the process of applying for same. (

j) The mother did not include the father’s name on Melanie’s birth certificate because he did not show any interest in being present in the child’s life. Because the father’s name does not appear on the birth certificate, the mother was able to obtain a passport for Melanie without the father’s consent. [ 53 ] The father served and filed a reply to the mother’s affidavit in which he swore the following to be true: (

a) The mother did not comply with Justice Zisman’s order to deliver up to him all of Melanie’s documents including her passport. (

b) The mother asked the paternal grandmother for help in completing the application for Melanie’s birth certificate in August 2020 and the application at that time included all the father’s information. (

c) The father suspects that the mother secretly changed the application for Melanie’s birth certificate to remove his name as her father and register Melanie’s name differently from what they had agreed upon. (

d) Melanie’s birth certificate and health card have different names for Melanie and not the name they agreed to following her birth. (

e) The father did not know that Melanie was a citizen of Vietnam and he worries that she can get a Vietnamese passport for Melanie if she has not already done so. (

f) The date of registration on Melanie’s birth certificate caused the father to believe that the mother had been secretly planning for some time to remove Melanie to Vietnam. (

g) With this additional new information the father is even more concerned that the mother will take Melanie to Vietnam or disappear with her. (

h) Since Melanie was delivered into his care, the father has been her primary caregiver with help from his family. (

i) The father has hundreds of messages between the parties in which he asks to see Melanie and the mother refuses the request or unilaterally changes the plans. (

j) The father admits that he had not cared for Melanie on his own prior to February 24, 2020 as the mother would not allow it. (

k) The father never paid the mother child support as he was concerned it would go to drug use as the mother had posted on Facebook a picture of her holding a pill and wrote, “at least these drugs don’t disappoint” [6] . He also said she used cocaine during their relationship before her pregnancy and “took some kinds of pills”. What did the trial evidence disclose about the accuracy of the parties’ respective evidence on the urgent motion?

Melanie’s birth certificates and passports [ 54 ] The mother’s evidence at trial regarding how she obtained Melanie’s birth registration, birth certificate and passport is much more expansive then was heard by the motions judge on the urgent motion [7] . This is understandable given that the turn around time from the date of the ex parte order and the return of the urgent motion after notice was given to the mother was 13 days. [ 55 ] The mother explains that she initially attempted to obtain a birth certificate in August 2020, that included the name of father on it.

She received a letter from the provincial government on two occasions, September 12, 2020 and December 6, 2020, advising her

that she must register Melanie’s birth before she can obtain a birth certificate. As she had already registered Melanie’s birth, the mother sent the second letter to the paternal grandmother on December 23, 2020, seeking her assistance. [ 56 ] In early 2021 the mother began enquiring with Service Ontario as to problem causing the delay in her obtaining Melanie’s birth certificate. Her evidence is that Melanie’s name was “misregistered” and she would have to re-register online. The mother completed the reregistration package and forwarded it to Service Ontario on January 8, 2021.

It was around this time that the mother says she was upset with the father’s lack of involvement in Melanie’s life and decided not to name him on the birth registration and birth certificate. [ 57 ] The mother explains the reason for Melanie’s name appearing differently on various government documents including her birth certificate and health card is due to her mistake of registering Melanie’s birth name with her surname, “Nguyen” appearing first as it does in Vietnam.

When she received the birth registration and realized she had registered Melanie’s name as “Nguyen Thi Melanie”, with her last name listed first, she would have to change it to “Melanie Thi Nguyen”, which she ultimately did in March 2021. [ 58 ] The mother denies that her failure to include the father’s identity on Melanie’s birth certificate was part of an elaborate plan to secretly remove Melanie from Canada. [ 59 ] With respect to Melanie’s Vietnamese citizenship, the mother’s evidence is that she applied for a Vietnamese birth certificate and passport at the same time in December 2021.

She says she now understands that she should have asked the father to sign the Applications before applying for Melanie’s Vietnamese citizenship but does not understand why the father would be “shocked” and “upset” by her obtaining Vietnamese citizenship for Melanie, which she is automatically entitled to because of the mother’s Vietnamese citizenship. [ 60 ] The mother’s evidence is that she obtained Vietnamese citizenship for Melanie simply because she is entitled to it and for no other or sinister reason. [ 61 ] The mother now says that she now understands her failure to include the father’s name and information on Melanie’s identification documents was wrong. [ 62 ] The father says that when he attended at the mother’s home with his mother and the police to bring Melanie into his care, the mother did not deliver up hers and Melanie’s passports as ordered by the motions judge.

The mother says everything happened so quickly and the police did not ask for her passport. She did not have time to read the court documents given what was taking place. [ 63 ] The mother’s evidence is that immediately after the return of the motion on March 9, 2022, she delivered her passport and Melanie’s two passports to her previous counsel. The passports were delivered to the mother’s current counsel and have been held by here since April 26, 2022.

The court did not hear evidence explaining why the passports were not delivered to counsel for the father as ordered by Justice Zisman. [ 64 ] At the commencement of the mother’s evidence at trial, she provided counsel for the father with the original copies of Melanie’s Canadian and Vietnamese birth certificates.

The Vietnamese birth certificate was translated by the Vietnamese interpreter who was present at trial. [ 65 ] The mother provided no explanation as to why she did not deliver up Melanie’s birth certificates to counsel for the father pursuant to Justice Zisman’s order of March 9, 2022 which provides that the mother shall “deliver all original Canadian and Vietnamese passports and citizenship documents” for Melanie to her counsel who shall “arrange for the passports and citizenship documents to be delivered to Glenda Perry, counsel for the Applicant father for her safekeeping pending further order of this court.” The reason for Melanie’s one way ticket to Vietnam [ 66 ] The mother’s evidence is that her mother was required to leave Canada and remain in Vietnam for at least 60 days.

The plan was for her mother to stay in Vietnam for 2 to 3 months and she would purchase a return ticket for her and Melanie closer to the return date. She said this would allow her mother flexibility in choosing the return date after she completed the mandatory 60 day stay in Vietnam.

Did the mother devise a plan to remove Melanie from Canada without the father’s knowledge or consent? [ 67 ] While the mother’s decision to exclude the father’s name from the birth registration and then the birth certificate was very poor judgment, I do not believe that it was done as part of a surreptitious plot to remove Melanie from Canada without the father’s “knowledge or consent”.

I will explain the reasons for this conclusion below. [ 68 ] The evidence as set out above makes it clear that the mother told the father that she was sending Melanie to Vietnam with her mother and that she did not request the father’s consent to do so. It is also clear that prior to bringing his urgent motion, the father did not unequivocally tell the mother in writing that he objected to her plan.

The father was not entirely truthful in his affidavit sworn February 24, 2022, in support of his urgent without notice motion when he swore that the mother’s plan to send Melanie to Vietnam with her grandmother “was done without my knowledge or consent”. [ 69 ] I find that the mother’s plan, although ill advised, was not done surreptitiously for the following reasons: (

a) At trial the father admitted that the mother raised the issue of Melanie travelling to Vietnam in the summer of 2021 but that he did not take it seriously. This contradicts the affidavit he relied upon on his urgent motion in which he says the mother first raised the prospect of Melanie travelling to Vietnam in January 2022. (

b) The paternal grandmother gave evidence that on August 1, 2021, she told the mother that Melanie should stay with them at their home while the maternal grandmother is in Vietnam.

(

c) The parties were discussing via Facebook Messenger the various options for Melanie’s care while the maternal grandmother was in Vietnam between mid January and mid February 2022. (

d) As evidenced by the parties’ messages on Facebook Messenger, the mother notified the father of the date of Melanie’s departure in advance, asked him to spend more time with Melanie before she left and invited him to go to the airport with her to see Melanie off. The father’s response on Messenger was not an unequivocal, “no” to the travel. Rather he said, “and there is no chance for her to stay?” to which the mother responded, “tickets already bought” and “she will be back on[sic] May”.

The father’s response to the mother’s invitation to go with Melanie to the airport was, “so I will probably never se[sic] ever again after Saturday” to which the mother responded, “She will be back on[sic] May like I said”. Conclusion regarding the mother’s plan to send Melanie to Vietnam with the maternal grandmother for 2 to 3 months. [ 70 ] I reject the father’s argument that the mother was engaged in a secret plan to obtain government issued documents for Melanie for the purpose of assisting her in removing Melanie from Canada without the father’s knowledge or consent.

I accept the mother’s explanation as to the delay in obtaining Melanie’s birth certificate, the reason why she had to change Melanie’s name as registered following her birth.

The court has no reason not to accept the mother’s explanation for excluding the father’s information from Melanie’s birth certificate although it was wrong for her to do so. [ 71 ] I find that the mother obtaining Vietnamese citizenship for Melanie, something she is entitled to because her mother is Vietnamese, is no cause for concern for the court. [ 72 ] I find that the mother’s plan to send Melanie to Vietnam with the paternal grandmother for 2 to 3 months was ill thought out and demonstrates very poor judgment.

She obtained government issued documents for Melanie without the father’s consent by deleting his name from Melanie’s birth registration. This allowed her to obtain a passport for Melanie without the father’s knowledge or consent. [ 73 ] The mother’s behaviour was immature and extremely inappropriate. Her choices combined with her decision to purchase a one way ticket for Melanie to Vietnam understandably was cause for concern for the motions judge. Her conduct resulted in Melanie being placed in the father’s care.

I am not certain the mother understands this nor has she taken much responsibility for her actions and how what she did and did not do contributed to the motions judge’s concerns and the ultimate order placing Melanie in the father’s care. Nevertheless, the evidence does not support a conclusion that the mother’s plan to send Melanie to Vietnam for 2 to 3 months was done surreptitiously without advising the father. [ 74 ] The mother has suffered tremendously because of her choices. The court does not have to continue to punish the mother or Melanie for her choices. The mother has arguably been punished enough.

The court must decide what is in Melanie’s best interests going forward. (

b) Does the evidence at trial support a finding that the mother did not promote a relationship between Melanie and her father prior to February 24, 2022? [ 75 ] The father’s evidence at trial on this issue is confusing. He says that the mother has restricted his parenting time and interfered in his relationship with Melanie. He says the mother does not respect him as the child’s father and treats him like her property. He says when she is upset with him, she blocks him on Facebook Messenger leaving him no ability to communicate with her. [ 76 ] The mother denies blocking the father on Facebook Messenger.

She says she has never denied the father parenting time and in fact she encouraged him to spend more time with Melanie then he did. She even spent overnights at the father’s home so that he could have extended visits with Melanie. She does admit that she did not leave Melanie alone with the father and that this was wrong. She was present during all the father’s visits whether at her home, his home or in the community. [ 77 ] The mother’s evidence is that the paternal grandmother showed more of an interest in spending time with Melanie then the father.

The mother reviewed her Facebook Messenger account and provided the court with every single date she says the father and/or the paternal grandmother visited Melanie since she was born. The list of the father’s visits, which include dates when the mother brought Melanie to the father’s home for overnight visits, is not long. The mother cites 4 non consecutive months since Melanie’s birth during which the father did not visit Melanie at all.

According to the mother’s evidence, the paternal grandmother visited Melanie in her home much more than the father. [ 78 ] The father, who acknowledges that the parties communicated almost exclusively through Facebook Messenger, said the mother’s list of dates he visited Melanie is incomplete yet he provided no documentary evidence to corroborate his claim that he visited Melanie more then she says he did. He said that some of his visits at the mother’s home were unannounced and therefore not referred to by either of them in their Facebook Messenger accounts.

Even if he did see Melanie on additional dates that were not evidenced in writing via Facebook Messenger, it would not amount to the level of involvement the father claimed in his affidavit sworn February 24, 2022. [ 79 ] The difficulty with the father’s evidence on this issue is that if his time with Melanie was as restricted as he claimed at the time of his urgent motion, how would he have been so well situated to care for her full time in February 2022?

His evidence on the urgent motion was, “I have always been familiar with Melanie’s personal needs, such as her sleep schedule; the formula; types of bottles; the kind of diapers and wipes she used. I am a very hands on parent. I feed her; change her; dress her; bathe her; play with her; I put her to bed.

I have looked after Melanie when she had issues such as teething, diarrhea, vomiting.” [ 80 ] It is also noteworthy that both the father and the paternal grandmother gave evidence that Melanie’s transition into their home in February 2022 was seamless because she knew them well and was familiar with them as she had spent so much time with them in their home. They both said s he did not display behaviour that suggested she was having difficulty with the significant change in her life.

This evidence could not be accurate if the mother had been restricting the father’s parenting time to the extent he claims both on his urgent

motion and at trial. [ 81 ] It is difficult to reconcile the father’s claims to have been denied meaningful parenting time but to have acquired substantial childcare skills and an intimate knowledge of Melanie’s needs. [ 82 ] It is also difficult to reconcile the father’s claims on the urgent motion that he had been denied meaningful parenting time with his evidence at trial that the mother never refused a request from him to visit Melanie at her home and that she was always “open and welcoming” and often encouraged him via Facebook Messenger to spend time with Melanie.

His evidence at trial contradicts at least the tone of his affidavit in support of his urgent motion with respect to the restrictions he claimed the mother was imposing on his parenting time. [ 83 ] The court was provided with evidence of many Facebook Messenger conversations between the parties which demonstrate that the mother cooperated to facilitate the father’s parenting time with Melanie but always in her presence.

The father gave evidence at the urgent motion and at trial that he had “hundreds” of messages where the mother denied him parenting time but did not produce a single message to substantiate his claim.

Not one. [ 84 ] The father’s evidence caused the motions Judge to be concerned that the mother was not supportive of Melanie’s relationship with her father and the father allowed the motions judge to be misled even though he knew this not to be true as indicated by his evidence at trial. [ 85 ] The father acknowledged at trial that prior to February 24, 2022, he had never exercised parenting time with Melanie apart from the mother because she would not allow it.

In his affidavit in support of his urgent motion, he did not make it clear to the Motions Judge that he had never exercised parenting time without the mother present [8] . He alleged that it was only six months prior that the mother’s attitude towards him had changed when he refused to marry her and sponsor her family to come to Canada. He deposed, “this triggered her limiting my time with Melanie and impose conditions that she be present”. [ 86 ] The father misled the motions Judge on this issue.

Firstly, he did not clearly delineate for the motions judge that his issue was with the mother insisting on being present during his parenting time, not that he was being denied parenting time.

Secondly, in his affidavit sworn in support of his urgent motion, he said the mother had recently begun imposing restrictions on his parenting time, including insisting on being present when this was not accurate as the mother had always been present during his parenting time. [ 87 ] The father’s evidence at trial did not include a single written message from him in which he complains to the mother about being denied parenting time away from her.

In fact in his affidavit sworn on February 24, 2022 in support of the urgent motion, he deposed that he “didn’t agree” with the restrictions the mother put on his parenting time “but I didn’t want to argue with her.” He did not protest the mother’s insistence on being present during his parenting time. [ 88 ] The father did not start court proceedings to obtain a court order for parenting time nor did he make any enquiries about pursuing such a court order before February 2022.

There was no written communication between the parties put to the court in which the father told the mother that he would commence court proceedings if she did not allow him parenting time without her being present. [ 89 ] Not being permitted parenting time without the mother being present is not the same thing as being denied parenting time or being restricted to minimal or unmeaningful parenting time.

The father led the motions judge to believe on his urgent motion that he was being denied meaningful parenting time with Melanie when this was not the case. [ 90 ] It is very difficult for the court to accept the father’s claims that the mother denied him parenting time or did not facilitate parenting time when he requested. There is no documentary evidence to support these claims despite the father stating in his evidence on the urgent motion over a year ago that he has “hundreds of messages” between the parties when he asked to see Melanie and the mother refused.

He repeated this claim in his trial evidence but when asked could not produce a single message to support his claim. To the contrary, the father gave evidence that the mother always facilitated parenting time when he asked to see Melanie. Conclusions as to whether the mother supported and promoted Melanie’s relationship with her father prior to February 2022 [ 91 ] The father gave evidence that the mother always facilitated his requests to see Melanie and even encouraged him to see her more.

He agrees that she never refused a request by him to see Melanie and was always open and welcoming. [ 92 ] The very fact that both the father and the paternal grandmother described a close and loving bond with Melanie before she came to live with them which resulted in a seamless transition for Melanie from her mother’s home to their home contradicts the father’s claim that the mother was denying him meaningful parenting time with Melanie. [ 93 ] The evidence demonstrates that the mother was at most overprotective and would not leave Melanie alone in the father’s care in the first year and a half of her life.

The evidence does not support the father’s claim that the mother was denying him meaningful parenting time or negatively impacting his relationship with Melanie by restricting his parenting time. His own evidence is that he was a very involved father with intimate knowledge and understanding of his daughter’s needs which contradicts his claim that his parenting time was severely restricted. [ 94 ] I find that the mother improperly denied the father parenting time without her being present but she did not outright deny the father parenting time.

The mother facilitated parenting time regularly and at the father’s and paternal grandmother’s request. Her refusal to leave Melanie alone in the father’s care in the first year and a half of her life may have been unreasonable or overprotective but it does provide a basis for a finding that the mother minimized the child’s relationship with the father or did not promote it. Furthermore, the father did not complain to the mother, at least in writing, about the restrictions she put on his parenting time or commence court proceedings to obtain a regular parenting

schedule without restrictions. (

c) Is the mother currently a flight risk?

[ 95 ] Given that the court has found that the mother did not obtain Melanie’s government issued documents without identifying the name of the father as part of a secret plot to remove Melanie from this jurisdiction, has the mother adequately demonstrated that she is no longer a serious flight risk or does a serious risk remain that Melanie will be removed from this jurisdiction without the father’s consent? [ 96 ] For the following reasons, I find that the mother is not a flight risk and Melanie is not at risk of being removed from the jurisdiction without the father’s knowledge or consent: (

a) The mother has been living in Canada continuously since May 2017 and wishes to reside here permanently. (

b) Prior to trial the mother had a temporary residency permit and a temporary work permit. (

c) By the completion of trial the mother had been approved in principle for permanent residency in Canada based on humanitarian and compassionate grounds and now only must complete the Government of Canada’s requirements to finalize her status. (

d) The father’s evidence that the mother asked him to marry her so she can remain in Canada supports the mother’s claim that she wishes to reside permanently in Canada. (

e) The mother is making a life for herself and Melanie in Canada. (

f) The mother supports Melanie having a relationship with her father, who did not have his father in his life, and has made efforts to foster one. She said it is important for Melanie to have her father in her life and that she does not want her to grow up without him. (

g) The maternal grandmother gave evidence that it is her daughter likes living in Toronto and it is her plan to remain in Canada and raise her daughter here so that she can enjoy many of the benefits of Canada including universal education and health care. (

h) The father gave evidence that he was less concerned about the risk of Melanie being removed from Canada once all her government issued documentation was changed to include his information in August 2022 and she is registered with passport control. For this reason, he began facilitating unsupervised parenting time in August 2022 as he knew it was much less likely that the mother would be able to remove Melanie from Canada without his knowledge. (

i) The father’s own evidence is that he no longer considers the mother to be a flight risk. When he questioned about different parenting scenarios that could be implemented following the trial such as an equal parenting regime, the father did not cite the mother being a flight risk as a reason why a shared parenting regime would not be in Melanie’s best interests. (

j) The father began facilitating overnight parenting time by the mother to Melanie in April 2023. This suggests he is now even less concerned about the risk of the mother attempting to remove Melanie from Canada. (

k) If Melanie is returned to her primary care, the mother is agreeable to the father holding Melanie’s Canadian and Vietnamese passports as well as all other government issued documents in Melanie’s name other than her OHIP card. [9] Conclusion as to whether the mother remains a flight risk [ 97 ] The evidence reveals that the mother incorrectly thought she had the right to make major decisions regarding Melanie without the father’s consent.

The evidence does not support a conclusion that the mother was trying to remove Melanie or flee with her from Canada without the father’s knowledge or that the removal would be permanent. [ 98 ] Whether it was appropriate for the mother to send Melanie to Vietnam with the maternal grandmother without first obtaining the father’s consent is a separate issue from whether she continues to be a serious flight risk. [ 99 ] For the reasons set out above, the court finds that the mother is not a flight risk and there is little to no risk that she will attempt to remove Melanie from this jurisdiction without the father’s knowledge or consent. [ 100 ] While the weight of the evidence supports the conclusion that the mother is no longer a flight risk, her failure to comply with Justice Zisman’s order to deliver up Melanie’s passports and citizenship documents will not be ignored.

Her conduct in this regard will result in orders that provide additional assurance that even though the mother is not currently a flight risk, should that change, she will not be able to remove Melanie from this jurisdiction without the father’s consent or a court order. (

d) Other issues with the father’s evidence on the urgent motion that impacts his credibility at trial [ 101 ] The father’s affidavit sworn February 24, 2022 upon which he relied on his urgent motion contain several inaccuracies, some of significance, others not as much. They include the following: (

a) The father deposed that the mother first raised the prospect of Melanie going to Vietnam, with her grandmother on January 17, 2022 but at trial he admitted that the topic was raised with him in the summer of 2021. In addition, the paternal grandmother said she told the mother on August 1, 2021 that Melanie should stay with their family when the maternal grandmother returns to Vietnam which demonstrates that the issue came up long before January 2022. (

b) The father’s evidence on the urgent motion was that the mother told him she was getting a passport photo for Melanie on October 26, 2021 but just for “identification” purposes. The mother sent him a photo of Melanie’s passport photo on November 16, 2021 to which he responded, “oh god that face”. His claims that he did not know the mother obtained a Canadian passport for Melanie are very difficult to believe given the evidence. (

c) For a second time in his affidavit sworn February 24, 2022 he states that the mother told him she was obtaining a passport photograph of Melanie but “didn’t tell me about any plans to travel with[sic] Vietnam” which has proven to be untrue.

(

d) The father deposed that he quit his job after Melanie was born “in order to have time to look after Melanie” but gave evidence at trial that he did not work between December 2019 and September 2021(Melanie was born on August 8, 2020). (

e) Contrary to his affidavit sworn February 24, 2022, Melanie did not have her own bedroom at his house. In fact, Melanie moved into the unfinished basement in the father’s grandparents’ home which he shared with his mother and which he described at trial as “inappropriate” accommodations for Melanie. (

f) The father’s February 24, 2022 affidavit incorrectly states that he attended doctors’ appointments with Melanie and the mother for “her checkups and her needles”. The father clarified at trial that this was not accurate and he in fact did not attend any of the child’s doctors’ appointments in the first year and a half of her life and did not meet Melanie’s doctor until June 2022. (

g) The father’s claims of the mother using drugs, which was repeated at trial, was completely unsupported by any reliable or persuasive evidence and will be addressed further below in this judgment. (

h) The father swore in his reply affidavit dated March 7, 2020 that he has been Melanie’s primary caregiver since she was placed in his care on February 24, 2020. For reasons set out below, I find that the father has not been and is not Melanie’s primary caregiver. [ 102 ] As credibility is an issue given the various competing claims by the parties, it is important to set out the inaccurate evidence provided by the father on his urgent motion.

A party moving on an ex parte basis has a duty to provide scrupulously accurate evidence given that the motions judge is being asked to make orders in the absence of the other party. The litigant moving on an ex parte basis is held to a very high standard in terms of providing all the relevant evidence; not just the relevant evidence that assists their case. Father’s claims on the urgent motion and at trial of drug use by the mother [ 103 ] Both the father and the paternal grandmother gave evidence of concerns that the mother uses drugs.

The father first raised this in his reply affidavit on his urgent motion in February 2020. He says that he did not pay the mother child support as he was concerned the money “could go to drug use”. He referenced a posting on the mother’s Facebook page of her holding a white tablet and commenting, “This drug never make me disappointed”.

He repeated these exact same concerns in his evidence at trial but provided no new additional evidence to support his concern. [ 104 ] The father was asked if he had any other evidence to support his concerns around drug use by the mother other than the single posting by the mother on Facebook? He said the mother sent him a video prior to her pregnancy of her using cocaine and he referenced marijuana use in a very vague manner without specifics.

Other than the video and the photo, the father says he has no other evidence to support his concerns. [ 105 ] The paternal grandmother gave evidence that the mother used cocaine in her home before she was pregnant. In her evidence she referenced the mother’s “drug habit” as the reason why her son did not provide the mother with child support. [ 106 ] The mother says she has never used cocaine and that the photo of the little white pill was an antibiotic her mother brought from Vietnam which she took after she gave birth by cesarian section.

The mother provided a picture of the box from which the pill was taken. [ 107 ] The father’s and his mother’s evidence on this issue was hypocritical given the father’s evidence that he previously smoked “a gram every couple of days” of marijuana until he cut back to once every week or two. He also confirms his mother smokes marijuana and they use to do so together but have “cut back”. [ 108 ] I find the father’s and paternal grandmother’s evidence of drug use by the mother to be disingenuous. There is absolutely no evidence to support the father’s concerns.

Neither the father nor his mother ever called a children’s aid society out of concern that the mother was using drugs and putting the child at risk. On the return of the urgent motion on March 9, 2022, the father’s lawyer even said that the father did not come to court because the mother uses drugs and that this is a “peripheral issue that’s not important for today” as it was only raised in response to the mother’s evidence that the father did not pay child support.

If he was truly concerned about drug use impacting the mother’s care of Melanie, he should have done something about it long before February 2022. [ 109 ] The evidence given by the father and his mother of their apparent concerns of drug use by the mother is a specious claim that should never have been advanced by the father. His willingness to try to make this an issue on the urgent motion and at trial when it is clearly not an issue, says a lot about his character and credibility then it says about the mother. [ 110 ] There are consequences for making unfounded allegations in family litigation.

The father’s willingness to raise such a serious concern without any real evidence brings his credibility into serious question. His mother’s credibility is also severely damaged. It was not enough for the paternal grandmother to raise a concern that the mother may use drugs when in a caregiving role, she went further and used the words “drug habit” when giving evidence. She was willing to make a very serious allegation about the mother with absolutely no reliable evidence to support her claims. Her evidence was a transparent effort to bolster her son’s evidence on this issue.

Her willingness to make very serious allegations against the mother without any supporting evidence comes at a cost to her credibility. [ 111 ] The father’s and his mother’s willingness to at best grossly exaggerate and at worse fabricate a concern that the mother abuses drugs will negatively impact the court’s assessment of the father’s evidence. When the court is faced with having to decide whose version of events to accept, the court will be mindful of the fact that the father was willing to grossly exaggerate and possibly fabricate allegations at other times, including on his urgent ex parte motion. (

e) The mother’s relationship with the paternal grandmother and the impact it had on the parties’ relationship prior to February 24, 2022 [ 112 ] On August 1, 2021, after spending the weekend at the father’s home with Melanie, the paternal grandmother accompanied the mother and Melanie home on public transit. When walking from the bus to the mother’s home, it is not disputed that the paternal

grandmother told the mother that she wanted Melanie to be able to spend time at their home without her present. She said that Melanie should stay at their home while the maternal grandmother is in Vietnam.

The paternal grandmother told the mother that the father has rights to have Melanie in his care at least every other weekend and that in Canada even criminals are allowed to be alone with their children. [ 113 ] The version of what occurred on August 1, 2021 as told by the mother and the paternal grandmother only differs in that the mother says that the paternal grandmother told her if she did not agree to her demands, they would take her to court and take Melanie away from her.

The paternal grandmother denies making this statement and said she only mentioned “visitation”. [ 114 ] In a conversation the parties had via Messenger in January 2022, the father tells the mother that he spoke to his mother about the threats and says that she understands and apologizes for the misunderstanding. He writes that his mother did not mean that she would take Melanie away from her and that she would never want to do that.

It is noteworthy that the father’s response was to apologize for his mother and try to smooth things over, not to complain about the mother’s refusal to let him have parenting time alone with Melanie. [ 115 ] At trial the mother produced written messages to the father, her friend and the paternal great grandmother in which she references the threats made by the paternal grandmother.

In these messages the mother specifically references the paternal grandmother’s threats to take Melanie away from her. [ 116 ] There is an evidentiary basis for the court to conclude that the paternal grandmother did in fact threaten the mother that she will seek primary care of Melanie if the mother does not allow her to spend time with the father in her home without the mother present. The messages filed by the mother are persuasive.

Findings regarding the evidence for the period of Melanie’s birth to February 24, 2022 [ 117 ] Based on the review of the evidence as set out above, I make the following findings: (

a) The father was not denied parenting time by the mother during this period. He was denied parenting time away from the mother. (

b) The mother cooperated to arrange the father’s parenting time at his request. (

c) The father never strenuously complained to the mother about her being present during his parenting time. When the paternal grandmother mother voiced her concerns about this with the mother, the father apologized for his mother’s conduct. (

d) The mother did not impede the father’s relationship with Melanie during this period, rather she supported it to the extent that she encouraged the father to have regular contact with Melanie, she never denied a request from him to see his daughter and she welcomed him into her home. However the mother did all of this on her term that she be present during his parenting time. (

e) The father was not concerned about the mother’s care of Melanie during this period. (

f) The mother’s decision to register Melanie’s birth and obtain a birth certificate without including the father’s identity demonstrates extraordinarily bad judgment and immaturity but was not done as part of a plot to remove Melanie from this jurisdiction without the father’s knowledge. (

g) The mother’s willingness to obtain Vietnamese citizenship for Melanie without at least advising the father also demonstrates poor judgement on her part. (

h) The mother made an enormous mistake believing she could send Melanie to Vietnam for 2 to 3 months without the father’s consent or that being away from her parents for that long at such a young age was in Melanie’s best interests. (

i) The mother’s conduct and choices will impact the terms of the final order. (

j) The mother never intended to “abduct” Melanie or remove her from the father’s life permanently. (

k) The mother is not a flight risk. (

l) The mother wishes to live permanently in Canada. (

m) There is no reliable evidence to suggest the mother abuses or misuses illicit drugs. (

n) The paternal grandmother threatened to commence court proceedings and attempt to obtain primary care of Melanie if the mother did not allow Melanie to start spending time in the paternal family’s home without her being present. B. The evidence for the period of February 24, 2022 to trial i. The uncontested evidence [ 118 ] After the motions judge ordered Melanie to be delivered into the father’s care and that he has decision making responsibility for her, there are several relevant facts not in dispute. They are as follows: (

a) The mother did not have any in person parenting time with Melanie until March 20, 2022, when she had her first one hour visit supervised by the father. (

b) Prior to the first in person parenting time on March 20, 2022, the mother had frequent video calls with Melanie.

(

c) By August 2022, the father had obtained all new government issued identification for Melanie with the father’s information included and the full name the parties had previously agreed to for Melanie. (

d) The mother’s visits with Melanie were supervised by the father or his family for 6 months until August 21, 2022, when she had her first unsupervised visit in the community for 4 hours. The parties cooperated to arrange two weekly unsupervised visits for approximately 4 hours each. (

e) Commencing in September 2022, the parties agreed that the mother would have unsupervised parenting time on Tuesdays and Sundays from 9:00 a.m. to 2:00 p.m. (

f) The mother requested overnight parenting time with Melanie as of February 2023 through counsel. The father required a photograph of Melanie’s bed before agreeing to mother having overnight parenting time. (

g) The mother did not commence overnight parenting time with Melanie until April 2023. (

h) Melanie was diagnosed to be on the Autism spectrum as of March 2023. (

i) After being diagnosed with Autism, Melanie began receiving weekly speech therapy. (

j) The mother has taken Melanie to some of her speech therapy sessions during her parenting time. (

k) The parties have attended doctors’ appointments for Melanie together and with the paternal grandmother. (

l) The mother and father have socialized together with Melanie on a few occasions. (

m) The mother works full time as a waitress. (

n) The father works Thursday to Sunday at Freshco from 10:30 p.m. to 7:30 a.m. (

o) The mother was exercising parenting time every Tuesday and Saturday from 9:00 a.m. to 2:00 p.m. until April 2023 when the parties agreed to extend the Saturday parenting time until Sunday at 12 p.m. (

p) The mother’s lawyer is holding the mother’s and Melanie’s passports and did not deliver them to the father’s lawyer as ordered by Justice Zisman. (

q) The mother did not deliver up Melanie’s birth certificates to the father’s lawyer as ordered by Justice Zisman ii. The contested evidence [ 119 ] The disputed evidence for this period centres around the following issues: (

a) The quality of the mother’s parenting time and whether she has missed many visits or been late excessively. (

b) Who is Melanie’s primary caregiver in the father’s home? (

c) Whose prospective plan for Melanie’s care best meets her emotional, physical and psychological needs? (

a) The mother’s parenting time [ 120 ] The father’s evidence is that after Melanie was ordered into his care, he “remained concerned about the risk of abduction”. He said that he immediately provided the mother with updates as to how Melanie was doing and he tried to set up video calls right away but that the mother had blocked him on Facebook Messenger. He said the first video call occurred on March 3, 2022. [ 121 ] The father did not immediately try to arrange in person parenting time because he said he was taking time to “calm down” after the transition of Melanie from the mother’s care to his care.

As a result, Melanie did not see her mother in person between February 24, 2022 and March 20, 2022. [ 122 ] The father says that the mother did not attend for parenting time as often as he offered and she “has often been late; doesn’t show up; cancels for reasons such as headaches or sleeping in”.

The father also says that during supervised visits, the mother would “complain she was too tired; ask to lay down in the back room; ask for Advil as she said that she had head aches; lie down; be on her phone constantly; go out for vapes.” [ 123 ] After the parties agreed to a court order on June 7, 2022, providing the mother with two specified supervised visits per week, the father says the mother was “usually late”. He also says that the mother deferred to him and the paternal grandmother to provide care for Melanie and that she “spends a lot of time on her phone”.

He also said that when Melanie would go to her mother to play, Melanie was told to go see her father as “mommy is too tired to play”. [ 124 ] The mother’s two supervised visits per week continued until the end of August 2022 when the father agreed that the mother could exercise unsupervised parenting time. [ 125 ] The father’s evidence is that after the visits became unsupervised, the mother attended to pick up Melanie unprepared without a stroller, rain cover or extra blankets when it was cold.

He also says that the mother forgets to return items he sent with Melanie and that Melanie is “often” returned with a “soaked diaper”. [ 126 ] The mother’s evidence is that the “bad mother” narrative adopted by the father and paternal grandmother is simply untrue. The

mother and father live in different ends of the city and the mother relies on public transportation where there are delays which she says sometimes results in her being late. She takes at least one bus, sometimes two and a subway to get from her home to the father’s home. She says she asked the father, who drives, to help with the transportation but he refused.

The mother says that she always lets the father know if she is running late and the reason for the delay. [ 127 ] The mother says that her time with Melanie is so limited and precious that she gives Melanie her full attention and only uses her phone to take photographs and videos. She says she has her own stroller which she began bringing with her on visits as of August 2022 when her parenting time became unsupervised.

She says when she has forgotten to return items to the father’s home she does so on the very next visit. [ 128 ] The mother says that Melanie was only returned to her father in a wet diaper on one occasion due to the long commute home during which Melanie wet herself. [ 129 ] The father provided a chart which he says details the mother’s parenting time from March 20, 2022 to January 31, 2023. At trial the father could not find support in his chart for his claims that the mother cancelled or missed many visits.

When asked to explain the discrepancy between his oral evidence and his chart, the father first said the chart does not include cancellations. When it was pointed out to him that his chart shows a cancellation on September 20, 2022, he said that he had not finished his chart and that he is still working on it. [ 130 ] I reject the father’s evidence that the mother has cancelled or missed a lot of her scheduled parenting time.

His contradictions in his own evidence bring the veracity of his claims in this regard into question as does his propensity to be loose with the truth when he swore his affidavit in support of the urgent motion. [ 131 ] The mother’s evidence including her own chart of when her visits occurred is more reliable as she kept contemporaneous notes of her visits and she did not contradict herself in cross examination. She also provided reasonable explanations for and responses to the father’s complaints and concerns.

Analysis of the evidence regarding mother’s parenting time post February 24, 2022 [ 132 ] On February 24, 2022, when Melanie was ordered into the care of her father she was a year and a half old. The mother had been Melanie’s caregiver since birth and the father had never once complained about the quality of care the mother had provided. [ 133 ] It was poor judgment on the part of the father to deny Melanie in person parenting time with her mother for almost a full month after the order of February 24, 2022.

His explanation that he needed time to “calm down” before allowing Melanie to see her mother in person was selfish and is an example of his putting his needs before his daughter’s. [ 134 ] The father’s poor judgment continued as he required the mother, who had been Melanie’s primary caregiver since birth, to exercise parenting time supervised by him or his mother until August 2022, six months after Melanie was ordered into the father’s care. The mother had not attempted to abduct Melanie and he knew that.

She made plans with notice to the father, albeit without his formal consent, for Melanie to travel to Vietnam with her maternal grandmother for two to three months because she was losing her childcare. That travel did not take place. The mother’s and Melanie’s passport(

s) have been with her lawyer since approximately March 9, 2022. It was entirely unreasonable for the father to require the mother to exercise parenting time supervised by him or his family for six months. [ 135 ] The father’s poor judgment did not end once the mother began exercising unsupervised parenting time. At first she was permitted only 4 to 5 hour visits in the community. Why was her parenting time so restricted? [ 136 ] Despite requests to have overnight visits as early as February 2023, they did not commence until April 2023 and they have only been for one overnight.

The father explains the delay being due to the mother’s refusal to send him a picture of Melanie’s sleeping arrangements. He said at his home Melanie was sleeping in her own bed so the mother’s proposal of “co-sleeping” at her home was unacceptable to him. [ 137 ] The court has difficulty accepting the father’s concern around Melanie’s sleeping arrangements in the mother’s home given that the mother was the child’s primary caregiver for the first year and a half of Melanie’s life and the father had no concerns with the mother’s care of Melanie during this time.

In addition, it is hard to place much weight on the father’s concerns given that he allowed Melanie to sleep in the unfinished basement of his grandparents’ home for the first 6 months she was in his care which he agrees was not appropriate accommodations for her. [ 138 ] The father’s evidence is that despite his concerns, Melanie is happy to see her mother and returns from visits happy. He says he has no doubt that Melanie and her mother love one another and “are very bonded”.

For these reasons, he knew or ought to have known that it was in Melanie’s best interests to facilitate more parenting time sooner then he did. [ 139 ] When pressed on the possibility of a shared parenting regime for Melanie, the father said that this would not work as the mother would have to leave Melanie in the care of a third party when she works from 10:00 a.m. to 10:00 p.m. The father was asked if a shared parenting regime would work if the mother worked a day shift. He said the mother has never offered to do this before as she has always put her job before Melanie.

The father gave no evidence to suggest that the mother’s parenting time should be restricted in the manner it currently is. [ 140 ] In retrospect the father was able to show some self awareness and critical thinking when he acknowledged at trial that he should have facilitated extended and even overnight parenting time by the mother over the 2022 Christmas holidays. [ 141 ] As a result of the limited parenting time the mother has had since February 24, 2022, I find that it is in Melanie’s best interests for the final order to provide the mother with an unequal amount of parenting time with Melanie over the 2023 summer months.

Findings regarding the mother’s parenting time post February 24, 2022

[ 142 ] The father has not exercised the discretion given to him by Justice Zisman on February 24, 2022, to determine the appropriate parenting

schedule for the mother reasonably or in Melanie’s best interests. Given that Melanie is very bonded to her mother, Melanie should not have been denied physical contact with her mother for almost a full month and have been subjected to such limited time with her mother for the past 15 months. The father is expected to exercise the court ordered discretion in a manner that fosters and maintains the bond that he knew Melanie had with her mother before she was ordered into his care.

He did not do that. [ 143 ] It is unclear to the court why the mother did not bring a motion before the case management judge for an increase in her parenting time. [ 144 ] I find that the father has fabricated or exaggerated his concerns regarding the mother’s parenting time. If the mother was not engaging with Melanie during her visits and deferring to the father and his mother for Melanie’s care, why would the father agree to unsupervised parenting time that eventually increased to overnight?

He contradicts himself when he says the mother is not engaging with Melanie during visits but that Melanie is “very bonded” to the mother and returns home from visits happy. [ 145 ] The mother acknowledged that she returned Melanie to the father on one occasion with a wet diaper. Her explanation was compelling. Young children who wear diapers will wet their diapers. Sometimes it happens in transit and there is a little a parent can do. I do not believe that the mother neglects Melanie and would leave her in a wet diaper for an extended period if there was another option.

The evidence is that the mother has always provide Melanie with appropriate care and been attentive to her needs. The father’s complaint in this regard is petty. [ 146 ] I reject the father’s evidence that the mother has provided Melanie with questionable care during her visits. The father’s evidence was inconsistent. He admitted without hesitation that he never had any concerns about the mother’s care of Melanie prior to February 24, 2022, and that her plans to allow Melanie to travel to Vietnam was the sole reason for his urgent motion, not her care of Melanie.

I find that his evidence of concerns regarding the mother’s care of Melanie following February 24, 2022, are self serving and without merit. [ 147 ] The father’s willingness to make petty complaints about the mother’s parenting time since March 2022 was impactful. The court found his focus on these trivial issues to be misguided and unhelpful when having to determine a parenting plan for Melanie that is in her best interests. [ 148 ] For the reasons set out in this

section of the Judgment, where the parties evidence differs on the quality of the mother’s parenting time after February 24, 2022, I prefer the mother’s evidence to that of the father. (

b) Who is primarily responsible for Melanie’s care in the father’s home? [ 149 ] The father says that he is Melanie’s primary caregiver and that his mother and grandparents provide him with support when he is working or unable to care for Melanie.

Yet in cross examination when he was asked how he and his mother divide the caregiving tasks, he said “we try to keep it equal”. [ 150 ] For the reasons set out below, I find that the paternal grandmother has been Melanie’s primary caregiver since Melanie went to live with the father on February 24, 2022. [ 151 ] The father and his mother both gave evidence about Melanie’s care and routine since coming into their home. Both said that the father is Melanie’s primary caregiver and gave the same evidence with respect to the following: (

a) The paternal grandmother is responsible for Melanie’s care at night which includes getting her ready for bed and putting her to bed including when the father is working Thursday to Sunday from 10:30 p.m. to 7:30 a.m. (

b) The paternal grandmother is responsible for cooking for Melanie. (

c) The paternal grandmother is responsible for Melanie’s care when the father sleeps during the day Thursday to Sunday prior to going to work at 10:30 p.m. (

d) The paternal grandmother quit her employment in April 2022 and continues to be unemployed. [ 152 ] The father’s and paternal grandmother’s evidence about Melanie’s care and routine that differs creates significant doubt that the father has been Melanie’s primary caregiver since February 24, 2022.

[…]