R.H. v. S.C., 2023 ONCJ 507

ONTARIO COURT OF JUSTICE CITATION: R.H. v. S.C., 2023 ONCJ 507 DATE: November 14, 2023 COURT FILE No.: DFO-19-15633 BETWEEN: R.H. Applicant — AND — S.C. Respondent Before Justice W. Kapurura Heard on October 16, 17, 18, 19, 20, 23, 24 and November 1, 2023 Reasons for Judgment released on November 14, 2023 Dumoluhle Siziba................................................................................... counsel for the applicant Leah Simeone.............................................. counsel, acting as agent for the respondent at trial JUSTICE W.

KAPURURA: Part One – Introduction [ 1 ] This trial was about parenting arrangements for the parties’ eight-year-old child, OLC (“the child”). [ 2 ] The child presently resides primarily with the respondent mother (‘the mother’) and has unsupervised daytime parenting time with the applicant father (‘the father’) on Wednesdays and Thursdays from 3:10 p.m. until 8:00 p.m., and on Sundays from 9:00 a.m. until 5:00 p.m. [ 3 ] The parties attended a seven-day trial.

They testified in person. [ 4 ] Each party seeks orders for sole decision-making responsibility for the child, and incidents of decision-making responsibility. If an order for sole decision-making responsibility is not granted to him, the father seeks an alternative order for joint decision-making responsibility. [ 5 ] The mother seeks primary residence of the child. She seeks an order for the father’s parenting time to occur on alternate weekends from Friday until Monday, and every Wednesday overnight until Thursday morning (with all pick-up and drop off occurring at school).

The father seeks an equal time-sharing parenting arrangement, on a week-about basis. [ 6 ] Each party seeks orders for a holiday schedule. [ 7 ] The mother seeks a restraining order against the father. [ 8 ] At the commencement of the trial, the parties executed final minutes of settlement on the child support issue and

section 7 expenses. Both parties are in receipt of Ontario Disability Support Program (ODSP) benefits. They agreed that no child support be paid to either parent.

[ 9 ] At a trial management conference held on August 30, 2023, Justice M. N. Sirivar provided the parties with trial directions. Both parties called additional witnesses. [ 10 ] On the first day of trial, the court was advised that the father’s pending criminal charges against the mother were to be resolved on October 27, 2023. The parties agreed to have the trial adjourned before closing submissions to allow the court to receive the outcome of the father’s criminal charges. The father’s criminal charges were stayed on October 27, 2023. [ 11 ] The primary issues for the court to decide are: i.

What parenting orders are in the child’s best interests? In particular, what orders for primary residence, decision-making responsibility, parenting time, and incidents of parenting are in the child’s best interests? ii. How much child support, if any, should be paid? iii. Should a restraining order be made against the father, or in the alternative, should the court make communication and contact orders pursuant to

section 28 of the Children’s Law Reform Act (“the Act”)? Part Two – Brief background facts [ 12 ] The mother is 39 years old, and the father is 59 years old. [ 13 ] The mother was born in Halifax, Nova Scotia. In 2008, she moved to Ontario. [ 14 ] The father was born in Kingston, Jamaica. He immigrated to Canada in 1974 when he was about 11 years of age. [ 15 ] The parties are both biological parents of the child. The child is currently attending Grade 3 at […] School in Toronto. She has an Individual Education Plan (IEP) at school.

Through the Empower Program at school, she spends about 5 days a week with a special educator assisting her with reading. [ 16 ] The mother has four other children from a previous relationship who are not in her care, one of whom is an adult. The father has six other children, five of whom are now adults. After he separated with the mother, he commenced a relationship with B.O. around 2021, and they have a 3-year-old child together, namely R.H. [ 17 ] The mother has a child welfare history with her four older children.

The children were removed from her care by the Children’s Aid Society of Toronto (“the society”) in February 2014 due to concerns related to substance misuse. A final order was made placing the children into the care and custody of the maternal grandmother. [1] [ 18 ] The parties began residing together around 2014. [ 19 ] The child was born in 2015. She was taken to a place of safety at birth as the society had concerns about the mother’s ability to care for the child due to her history of substance misuse.

The society commenced a child protection proceeding and the child was placed in the temporary care of the society. [ 20 ] On February 7, 2017, Justice M. Pawagi made a final order finding the child in need of protection (as it relates to the mother) and made a 6-month supervision order placing the child into her care. [2] As part of the supervision terms, the court ordered the following: i. The parents were to ensure that the child attended for regular medical appointments and immunizations. ii. The parents were to continue working with Debbie Bridge from LAMP. iii.

The mother was to attend for addictions counseling. iv. The child was to be registered in daycare. v. The parents were to immediately notify the society if police attended at their home for any reason. [ 21 ] On September 17, 2017, Justice Pawagi made an order terminating the supervision order of February 7, 2017. [ 22 ] The parties’ five-year on-and-off relationship was characterized by several incidents of domestic conflict, leading to several calls to the police.

The parties accused each other of abusive behaviour. [ 23 ] The parties separated for the last time on April 19, 2019, after the father was charged with four counts of assault and one count of unlawful confinement against the mother. He was required to leave the home due to his no-contact release conditions. The child briefly remained in the home with the mother. [ 24 ] Following the arrest of the father on April 19, 2019, the police attended with the father at the mother’s home in May 2019 to retrieve his personal belongings.

Upon entering the home, the police (and the father) became concerned about the condition of the home. The police officers immediately contacted the society advising them that the home was not suitable for a child. The father then picked up the child from daycare and did not return her to the mother’s home. [3] [ 25 ] The mother commenced her visits with the child at the society’s office sometime in 2019.

Around September 2019, her visits were suspended. [4] In February 2020, she resumed her visits at the society’s office. [ 26 ] The child remained in the primary care of the father from May 2019 until September 2022 when the parties agreed to have a

week-about parenting schedule. The week-about

schedule was in place from September 2022 until July 2023. [ 27 ] The society closed its file relating to the child in this proceeding in August 2023. [ 28 ] On July 11, 2023, the father was charged with two counts of assault against his partner at the time, B.O, with whom he has a 3-year-old child, R.H. The charges are still pending. The father had to leave his home with B.O. due to his no-contact release conditions. [ 29 ] After he was arrested, the shared parenting arrangement that had started in September 2022, ended.

Since July 2023, the child has remained in the primary care of her mother, with the father having daytime parenting time on Wednesdays and Thursdays from 3:10 p.m. until 8:00 p.m., and on Sundays from 9:00 a.m. until 5:00 p.m. [ 30 ] The father has a lengthy criminal record showing several convictions between the years 1986 and 2014. The convictions include drug-related offences, assaults, break and enter, home invasion, theft and fail to comply. [ 31 ] The mother was convicted of fraud in 2005 and assault on a police officer on January 25, 2018.

Part Three – Procedural history [ 32 ] The father issued his application on June 10, 2019, seeking parenting and support orders. He also sought a restraining order in his application. [5] [ 33 ] The mother filed her Answer/Claim on September 12, 2019, seeking parenting and support orders. She also sought a restraining order. [ 34 ] On September 25, 2019, Justice Pawagi made a temporary order allowing the father to apply for the child’s birth certificate and health card without the mother’s consent.

Her consent was dispensed with. [ 35 ] An order for the involvement of the OCL was granted on February 12, 2021. [ 36 ] On March 26, 2021, Justice S.R. Clark made a temporary parenting order, on consent, with the following terms: i. The mother shall have supervised access with the child in the community (and not in her residence) each Monday and Wednesday, from 4:00 p.m. to 6:00 p.m., and on Saturday from 2:00 p.m. to 4:00 p.m. ii. The father shall determine the appropriate supervising party and shall endeavour to maintain consistency. iii.

The mother shall not consume non-medically prescribed drugs at least 24 hours before each access visit or during each visit. iv. The mother shall provide the child’s birth certificate to the father forthwith. [ 37 ] On July 20, 2021, Gabriella Zazzarino, an OCL clinician, filed a report pursuant to s.112 of the Courts of Justice Act, RSO 1990, c C.43 . She was unable to make recommendations pertaining to decision-making responsibility.

She recommended that the mother have parenting time with the child weekly on Mondays and Wednesdays from 4:00 p.m. until 6:30 p.m., and weekly on Saturdays from 11:00 a.m. to 4:00 p.m. She also made several recommendations for both parents, including the following: i. They shall refrain from substance misuse prior to and during their parenting time. ii. They shall refrain from disparaging the other in the presence of the child. iii.

They shall refrain from exposing the child to adult conflict. [ 38 ] On November 12, 2021, Justice Sirivar made an order, on consent, providing for a December holiday schedule, and providing names of individuals who were to supervise the mother’s parenting time (that is, the mother’s partner, M.M. and, if not available, the paternal grandmother). [ 39 ] The mother filed a parenting motion which was heard before Justice Sirivar on February 28, 2022. Justice Sirivar made the following orders: i.

Commencing March 4, 2022, the mother shall have parenting time every weekend in her home, supervised by her current partner, M.M. ii. Commencing April 1, 2022, the mother’s parenting time shall be partially supervised by her partner such that the supervisor checks in periodically throughout the course of the weekend. iii. Commencing May 6, 2022, the mother’s parenting time shall be unsupervised. [ 40 ] The mother brought a motion on June 13, 2023, seeking permission to travel with the child to Yarmouth, Nova Scotia, to attend her older daughter’s high school graduation. Justice S. O’Connell granted the request.

In her endorsement, Justice O’Connell noted that the parties acknowledged that they had been in a “week-about” parenting arrangement since September of 2022. [ 41 ] On July 21, 2023, Justice Sirivar endorsed that the father had been arrested and charged with assault of his partner. Criminal conditions prevented him from returning to his home. The mother was permitted to bring a parenting motion. The motion was heard by Justice Sirivar on July 28, 2023, and she made the following orders:

i. The father’s parenting time shall take place up to three times a week from 3:00 to 9:00 p.m. including Wednesdays and Thursdays. ii. The father shall designate a third party to facilitate the exchanges. iii. The court asks the OCL to provide an update given the recent events involving the father’s new charges and the week-about schedule. [ 42 ] A trial management conference was held on August 30, 2023, and Justice Sirivar provided directions for this trial. [ 43 ] An updated OCL report was not provided as the father was late in providing his intake form. Part Four – Parenting 4.1 – The father’s position [ 44 ] The father is seeking an order for a week-about parenting

schedule and a shared holiday schedule. He testified that he wants his daughter to reach her full potential. He prefers to have direct communication with the mother, and not communicate through a third party. [ 45 ] The father testified that when he met the mother around 2014, she was involved in child protection proceedings at that time pertaining to her four other children. He stated that he helped her with transportation to appointments and helped her with her plan of care. He stated that she had drug addiction challenges at the time, and he encouraged her to go for treatment.

Around that time, the mother moved into his home on Dundas Street in Toronto. [ 46 ] The father stated that he attended at the hospital when the child was born in March 2015, and he cut the umbilical cord. He was emotional as she spoke about the society’s removal of the child to a place of safety immediately following her birth. He attended supervised visits with the child and attended parenting programs as recommended by the society. He stated that the society did not have drug-related concerns with respect to him. [ 47 ] After the child was returned to the mother’s care, both parents provided care to the child.

The father described the mother as a “social butterfly” who would be in and out of the home for days and weeks, with her whereabouts unknown to him. He would be the sole caregiver to the child during that time. [ 48 ] The father identified the following as the main sources of arguments and conflict in their home: i. Financial issues. ii. The mother leaving the home to unknown places, for days and weeks. iii. The mother’s drug use. iv. The mother’s questionable lifestyle and the suspicious individuals whom she associated with.

He described them as “all kinds of people…drug dealers and alcoholics”. [ 49 ] On several occasions, the police attended at the parties’ home due to conflict. He described their relationship as very volatile, and he feared that he would get into trouble given his lengthy criminal record. Every time they had an argument, either party would call the police. [ 50 ] In April 2019, the father was charged with assault against the mother. He was also charged with assault against the mother’s friend (with the charges stemming from the same incident).

He was placed on no-contact criminal conditions, and he left their home. [ 51 ] The father stated that when he attended at the mother’s home in May 2019 to pick up his personal belongings in the company of police, the place was a “total write-off, with three mattresses on the floor, broken glass, used condoms and pornographic materials on the floor. With the assistance and involvement of the society and the police, the child came into his care on that day due to the condition of the mother’s home.

He moved into a shelter in Mississauga for 18 months, and then moved back to Toronto to a property on Rathburn Avenue. [ 52 ] The child remained in his primary care in 2019 and 2020. The court matter was adjourned several times in 2020 due to scheduling-related challenges associated with Covid-19. [ 53 ] The father testified that following Justice S.R. Clark’s order of March 26, 2021, the mother started having her supervised visits in the community, with her current partner, M.M, as the supervisor.

He described his interactions with M.M. as pleasant, describing their communication as ‘rocky sometimes’ but generally positive. [ 54 ] According to the father, the parties had a week-about parenting arrangement from September 2022 until July 2023. He stated that the arrangement allowed her more parenting time than what had been ordered by the court as he wanted the child to spend more time with her mother. [ 55 ] The father described his relationship with the child as very close and inseparable. He stated that they have an open relationship where she can share anything with him.

During his time, they do several age-appropriate activities, including field trips, going to parks, and winter activities. He described the child’s relationship with her mother as ‘affectionate, very strong, very close, inseparable…they have a lot of fun together”. He stated that the mother has come a long way and he has seen much change in her for the better. He described her as a good parent.

[ 56 ] The father has no worries about the child. [ 57 ] The father provided the following examples of his involvement with the child: i. For about a year before separation, the mother was leaving the home consistently and he would be the child’s primary caregiver. ii. From May 2019 until July 2023, he was the primary caregiver to the child. iii. From September 2022 until his arrest in July 2023, he agreed to a week-about parenting

schedule to allow the mother to have more parenting time. iv. He has attended medical and parent-teacher meetings for the child. [ 58 ] At trial, the father accused the mother of “over-doctoring” the child by taking her to multiple medical appointments. He disputed her claims that he had failed to meet and address the child’s needs. He also accused her of making several calls to the society making accusations against him. 4.2 – The mother’s position [ 59 ] The mother described the child as very artistic, very fun and very thoughtful towards her parents and other people.

On Mondays and Saturdays, the child goes to Kumon, and has karate on three days per week. Both parents have been involved with taking the child to these activities. [ 60 ] The mother stated that she has been able to support and maintain the child’s relationship with her half sibling, R.H. (the father’s son with B.O.) and B.O.’s older son from a previous relationship. She stated that she has also supported the child’s relationship with both maternal and paternal extended family members. [ 61 ] The mother described her current partner, M.M., as very supportive.

She met him in 2019, and they have been together for four years now. They recently got engaged. She stated that he helps with household chores, takes the family to appointments and family activities, and is currently facilitating the father’s parenting time with the child. She testified that both her and the father are blessed to have M.M. present in their daughter’s life. She described him as a “big kid sometimes”, meaning that he can bring himself down to the child’s level and engage meaningfully with her. [ 62 ] The mother seeks primary residence and sole decision-making responsibility for the child.

She proposes to consult with the father before making a final decision. She prefers to have any communication with him through email and asserts that the communication should be respectful, and child focussed. She seeks to have the father’s parenting time occur on alternate weekends, with one overnight during the week. She proposes a shared holiday schedule. [ 63 ] The mother stated she converted to Islam in 2021. She supports each parent raising the child in their own faith. She stated that the father has been taking the child to his church.

The child sings and she does not object to the child joining the choir at the father’s church. [ 64 ] The mother admitted that she previously struggled with drug addiction issues. She stated that there were times when she used non-prescribed drugs with the father. After the child went to live with the father in May 2019, she stated that she had a slip and she used drugs about three times in a period of about three months.

She stated that from around 2020 and onwards, she has never had any drug addiction challenges. [ 65 ] The mother stated that at one point in 2015, the father punched her the day before her child protection court appearance. She attended court with a black eye. She stated that the father could not hold his anger and it was a red flag for the judge in the child protection matter as she made a lot of excuses for him. [ 66 ] The mother’s evidence was that after the child was returned to her care from foster care in 2017, the parties had constant fights in the home.

She spoke of the father pulling off her hair, describing him as someone who is “very bad with his hands”. She stated that around 2018, she was “getting tired of getting smacked”, and called the society. However, she feared that her daughter would be removed from her care again by the society. She briefly went into a shelter in 2018 but soon returned to the home after the father agreed to add her name to his lease. [ 67 ] According to the mother, the family violence continued after she returned.

She stated that ‘a couple of times’ the father smashed glass over her head, and at one point he pointed a knife to her neck, threatening to throw her over the balcony. She recalled being thrown out of the house in 2019, in her pyjamas, with no shoes. [ 68 ] The mother testified that in April 2019, the father put his hands around her neck until she was unconscious.

He was arrested and charged with assault. [ 69 ] The mother described her absences from the home around 2019 as her being kicked out by the father, and the father apologizing after. [ 70 ] In 2020, the father was on criminal court conditions prohibiting him from having contact with the mother. She stated that despite the no-contact terms, she attended his home several times in 2020, to spend time with the child.

She stated that he would pick her up and bring her to his home, and there were times when he left her alone with the child in his home. [ 71 ] When the child was in Grade 1, the child started showing some behavioural challenges. The mother testified that the child would leave class and not tell her teachers where she was going. She would also engage in unsafe behaviours. She stated that when the

parents switched to a week-about parenting

schedule in September 2022, the child started regulating herself better in class and her performance in class also improved as the mother started paying more attention to her. She would also assist the child with her homework. [ 72 ] The mother accused the father of failing to follow dietary recommendations for the child from her doctor, leading to multiple visits to doctor’s offices and to the hospital due to stomach issues. She testified that when the parties had a week-about schedule, she would follow the dietary recommendations in her home, but the father would not follow the recommendations during his week.

According to the mother, the child’s medical challenges have now stabilized since the child is now residing primarily in her home and all her needs are being met. She also stated that the child is progressing very well in school and her teacher is satisfied with her progress. She sees the child as now happier as she is no longer anxious about exposure to domestic conflict in the father’s home. [ 73 ] According to the mother, the child has been subjected to several incidents of family violence in her father’s home.

She feels that limiting the amount of time the child is in his care would help him focus on his parenting time and limit further exposure to family violence in his home. She wants him to understand that the child has been impacted by the family violence. She stated that when the parties started a week-about parenting

schedule in September 2022, the child exhibited symptoms of anxiety due to the conflict she was witnessing between him and his partner at the time, B.O. [ 74 ] The mother recorded a telephone conversation she had with B.O. after B.O. advised her that she was having an altercation with the father. B.O. wanted the mother to come and pick up her daughter. In the audio, the father can be heard yelling and screaming, with the father’s son with B.O., RH, crying loudly in the background. In the audio, the mother asked to speak with her daughter, and instructed her to “go upstairs”, away from the fighting.

She then told the child that she was coming to pick her up. [6] [ 75 ] The father has been involved in incidents of family violence with respect to female partners that he has been involved with.

The mother wants sole decision-making responsibility and to reduce the amount of time the child is in the father’s home to limit the child’s exposure to family violence. 4.3 – Findings of contested facts [ 76 ] The court finds that there were genuine concerns with respect to the mother’s substance misuse around the time of separation in 2019 and for a few months following separation. [ 77 ] The court finds that both parents exposed the child to domestic conflict during the period they resided together. [ 78 ] The court believed the mother’s evidence that the father instigated family violence against her, for the following reasons: a.

She was clear and consistent in her testimony around family violence, and she presented with elaboration. She described several incidents of family violence by the father against her during cohabitation. b. In 2017, he was charged with assault against her. The charges were subsequently stayed or withdrawn. c. He was charged with assault against her in April 2019. Even though the charges were recently stayed, the court accepted her evidence that he physically abused her leading to the criminal charges. d.

He has not taken responsibility for exposing the child to the several incidents of family violence that the child was exposed to in his home, despite admitting that he had conflict with B.O., with the child present in the home. [ 79 ] The court accepted the father’s evidence that the mother has contributed to the conflict, for the following reasons: a. After he left the parties’ home in April 2019, she broke and trashed his belongings. b. She made a false allegation to the police against him. For example, she once called the police alleging that the father had damaged her bicycle [7] .

The police checked their records and told her that the bicycle had been damaged previously. c. On August 23, 2021, her parenting time was supposed to be supervised. She took the child to Dr. Mazurek’s office, unsupervised, leading to conflict with the father after he attended the doctor’s office to remove the child from her care. [ 80 ] The evidence revealed that the father has engaged in a disturbing pattern of family violence against partners and family members: a. He admitted that he had engaged in domestic conflict with an ex-partner by the name of L.M. The date of the incident was not provided. b.

In 2019, he was charged with assault on the mother’s friend, J, after the mother attended with him at the parties’ home. c. After the child came into his care in 2019, he briefly resided in the home of another ex-partner, A.P. He admitted during cross- examination that he had previously been involved in domestic conflict with A.P. leading to police involvement. He admitted that the mother was concerned about the child attending at A.P.’s home due to a history of conflict between him and A.P. d. On January 26, 2020, he was involved in an altercation with a female friend (L.B).

He denied being in an intimate relationship with her. He stated that she came to his hotel room, banging on the door and he called the police to have her removed. It was not clear whether the child was with him at the hotel, however, the child was in his primary care around that time. e. In 2021, the father and B.O., his partner at the time, were charged with assault against each other. During his testimony, he accused B.O. of being an aggressive person. The charges were resolved after each signed a peace bond. B.O. signed a 2-month peace bond, and the father signed a 12-month peace bond.

They continued to reside in the same home after signing the peace bonds.

f. He admitted to the OCL clinician that he and his partner would argue at times, which he described as ‘some yelling’. He told the OCL that when he argued with B.O., he would often contact the police to request their assistance as a way to diffuse the situation. g. On June 2 nd , 2023, he attended the Brampton Courthouse and applied for a peace bond against B.O. The matter was scheduled for August 14, 2023. B.O. did not attend, and a new date was scheduled for November 28, 2023.

Even though he is seeking a peace bond against B.O., he is also prohibited from contacting her due to his pending criminal charges against her. h. The father testified that he called the police on several occasions to have B.O. removed from his Rathburn unit but she refused to leave and remains in the property. i. On July 11 th , 2023, the father was charged with two counts of assault against B.O. The charges are still pending. j. In August 2023, he served B.O. with a ‘Notice of No Trespassing’ regarding the Rathburn property, seeking to have her removed from the unit.

B.O. stated at this trial that the document has no legal standing and is ‘fake’. He accused her of taking over his Rathburn unit “through instruction from” the mother in this case. k. He has engaged in conflict with his adult son, T, in the presence of the child. The child reported to her doctor about this conflict with T. A note from Dr. Mazurek dated March 25, 2022, states that: . ..Pt reports (the father)’s son T who is in his 20s was arguing with father then throwing beer bottles which broke a window, and glass went to their infant child..” l.

The mother’s partner, M.M., has been facilitating parenting exchanges for the father. Both parents appreciated M.M.’s assistance in this regard. However, M.M. testified that there are times when the father has threatened him and has called him out to fight him. M.M.’s evidence was that he has refused to fight with him, but rather, has focused on making sure that the child is able to have parenting time with her father. [ 81 ] The mother was not credible with respect to breach of court orders as follows: i. In 2021, she attended at the father’s residence when the father was prohibited from having contact with her.

She accused him of breaching his bail conditions several times, and yet she was also part of the problem. ii. She attended the child’s school in 2021 and had unsupervised contact with the child on school property. The court order at the time required her contact with the child to be supervised. [ 82 ] The mother tried to minimize the potential risk that her 21-year-old son, C, poses to the child in her home. C resides in Nova Scotia but recently traveled to Toronto and resided in the mother’s home. He has briefly returned to Nova Scotia but will be coming back to Toronto.

He has pending domestic criminal charges against him in Nova Scotia and has alcohol and drug addiction challenges. There was no evidence to suggest that C has taken any programs or steps to mitigate his challenges. [ 83 ] The evidence supported the father’s allegation that the mother made multiple calls to the society making reports against him. However, the court does not agree with the suggestion that the reports were being made for litigation advantage. The mother had a genuine concern about the child’s exposure to family violence while in the father’s home.

The mother also had a genuine concern that the father was not following the dietary recommendations made by the child’s doctor. [ 84 ] The court does not accept the mother’s allegations that the father was not meeting the child’s hygiene. Ms. Satnam Dhillon is a child protection worker with the society. She was involved with the family from November 2022 until August 2023. She testified that she had met with the father, and he was always open to society meetings. She told the court that she did not have any concerns with respect to the child’s hygiene while in the father’s care.

She had also met privately with the child and did not have concerns. [ 85 ] The evidence supported the father’s allegation that before separation, he provided primary care to the child during periods when the mother left the home. The parties’ evidence provided conflicting positions with respect to the reasons for the mother’s absence from the home.

However, it is undisputed that when the mother left the home, the father provided care to the child, except for the incident when the mother briefly went to a shelter with the child. [ 86 ] The evidence of the mother’s support person, Debbie Bridge [8] , was neither credible nor reliable with respect to the parties’ challenges around the time of separation. Her evidence was largely biased in favour of the mother. She was not in the mother’s home when the child had to be removed from the mother’s care in May 2019 due to the status of the mother’s home.

Yet, she accused the police of misunderstanding the situation, stating that she never observed the mother’s home in disarray. The court will give little weight to her evidence in this regard. However, the court accepted her evidence with respect to the support she provided to the mother. 4.4 – The parties’ strengths and challenges [ 87 ] The evidence identified the following strengths concerning both parents: a. The society’s file involving their child was closed on August 14 th , 2023, after the society became satisfied that its protection concerns had been addressed. b.

They were able to work out a week-about parenting arrangement on their own from September 2022 until the father was criminally charged in July 2023. c. The society does not have any concerns with respect to any parenting arrangement that can ordered by the court. d. The parents have successfully been able to utilize M.M. for their parenting exchanges and exchanging messages. Despite some

challenges, they have generally done so in a child-focused manner. e. Both parents want the best for their daughter. f. The evidence from Ms. Shiffo Farah (the child’s therapist), and society workers was that the child enjoys spending time with both parents. g. Both parents have been able to support their daughter in her current therapy. h. They both agree to have the other parent raise the child in their own faith. i.

The parents have been able to coordinate with respect to their daughter’s soccer and other activities. [ 88 ] The evidence identified the parents’ main challenge being the issue of communication and conflict between them. Ms. Shiffo Farah, a registered social worker, provided therapy sessions to the family following a referral from the society. During her testimony, she stated that both parents had spoken of their conflict and how it was impacting their daughter, with the father expressing disappointment that they could not set aside their conflicts for the child’s sake.

She also reiterated that the mother had expressed her concerns around the father’s alleged failure to adhere to medical recommendations, and his recurring charges related to family violence. [ 89 ] The evidence identified the following as the father’s strengths: a. He provided support to the mother with respect to her four other children around 2014/2015 when she had child protection proceedings in court. b. The society does not have any concerns with his involvement with his other child, RH (his son with B.O.). c. There have been no concerns with respect to the father’s engagement with the society. d. Ms.

Patricia Dunn, a care manager specialist at Yonge Street Mission, testified that she has been working with the father since October 2021. They meet weekly, and sometimes monthly. She testified that, through Yonge Street Mission, the father attended anger management and parenting programs, continues to receive mental health services, and is receiving individual counseling.

She stated that she will continue to work with him and feels that they have made a lot of positive progress together. [ 90 ] The evidence identified the following as the father’s challenges (over and above the issue of family violence stated above): a. Ms. Kayla Cruz is the current family service worker assigned to a file involving R.H., the father’s son with B.O. According to Ms. Cruz, there have been several reported incidents of conflict between the father and B.O., with the police being involved several times.

The society has an open file regarding the family due to concerns around exposure to domestic conflict, and B.O.’s alleged alcohol misuse. b. The father and B.O. have exposed their child, R.H., to family violence. According to Ms. Cruz, the society felt that the two parents should not be together due to the level of conflict. c. According to Ms. Farah (the child’s therapist), the child expressed feelings of fear and discomfort regarding B.O.’s behaviour. [ 91 ] The evidence identified the following strengths with respect to the mother: a.

Even though there were previous concerns that she was not willing to engage with society workers, Ms. Cruz noted that the mother was now open to the society’s involvement and was engaging. b. Ms. Cruz visited the mother’s home. She does not have concerns with respect to the mother’s home. c. The mother no longer has any drug-related concerns or issues. d. The mother was able to work out a safety plan for the child with B.O. to have the child removed from the father’s home during moments of conflict between the father and B.O. a. Ms.

Dhillon, the society’s child protection worker, testified that the mother is good with “following up with phone calls and is able to get things done”. [ 92 ] The mother’s main challenge appears to be the numerous telephone calls she made to the society complaining about the father. Some of the concerns raised were not verified. The society delayed closing the family’s file due to the frequency of her calls, even though they no longer had any protection concerns. [ 93 ] The child is only 8 years old. She has been exposed to several challenges as summarized below: i.

She was taken to a place of safety at birth, and her parents had to work with the society for several months before being returned to the care of her mother. ii. For half of her life (since 2019), her parents have been involved in this high-conflict litigation. iii. She was exposed to family violence while in her parents’ home. iv. She has been exposed to further domestic conflict in her father’s home. In a medical note from December 2022, Dr. Mazurek suggested a possible connection between the child’s abdominal challenges and some of the psycho-social

stressors that the child was experiencing. The child was reporting several incidents of exposure to domestic conflict in the father’s home. According to the OCL report, the child described the physical altercation that took place in January 2021 between her father and B.O. The child described feeling uncomfortable and worried when this occurred. v. She has had a challenging relationship with her father’s partner, B.O. vi. She has not had consistent residential arrangements since May 2019. vii. She witnessed her father having a physical confrontation with her adult sibling, T. viii.

She has had some challenges at school. Part Five – Decision-making responsibility and primary residence 5.1 – Legal considerations [ 94 ] Subsection 18 (1) of the Act defines decision-making responsibility as follows: “decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to, (

a) health, (

b) education, (

c) culture, language, religion and spirituality, and (

d) significant extra-curricular activities. [ 95 ] Subsection 24 (2) of 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. [ 96 ] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows: 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 particularwith 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 issuesaffecting the child; and (

k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (

l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issuesaffecting the child; and (

m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [97] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos,2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holisticlook at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480. [98] In Barendregt v.

Grebliunas, 2022 SCC 22, the court stated that determining the best interests of the child is a heavyresponsibility, with profound impacts on children, families and society (para 8). [99] Subsection 33.1 (2) of the Act addresses the importance of protecting a child 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 theproceeding. [100] The Ontario Court of Appeal in Kaplanis v. Kaplanis (ON CA), [2005] O.J. No. 275 sets out the followingprinciples in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It cannot be ordered in the hope that it will improve their communication. 3.

Just because both parents are fit does not mean that joint custody should be ordered. 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, theymust be able to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. [101] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard ofperfection is not required and is obviously not achievable.

See: Griffiths v. Griffiths 2005 ONCJ 235 , 2005 CarswellOnt 3209(OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so thatthe best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, (ON S.C.). [102] A starting point to assess a child’s best interests when making a decision-making or parenting order is to ensure that the childwill be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver bephysically and emotionally safe. See: I.A. v.

M.Z., 2016 ONCJ 615 . Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S.,2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266. [103] In the Supreme Court of Canada decision of Barendregt v. Grebliunas, 2022 SCC 22, the court wrote about the impact of

family violence, stating: [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12.

Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S.

Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [ 104 ] The amendments to the Act define family violence in the following terms: 18(1) In this part; “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 5.2 – Analysis [ 105 ] This court must decide what parenting arrangements are in the child’s best interests.

Each parent is seeking sole decision- making responsibility. [ 106 ] The parties do not communicate. In his own words, the father stated that since his arrest in 2019, the parties have had “no real commitment to real communication”. He accused the mother of making it “very difficult for communication and for things to work as planned.” [ 107 ] The evidence was overwhelming that these two parties cannot jointly make decisions for the child in a child-focused manner, for the following reasons: i. The severity of family violence makes a joint decision-making responsibility inappropriate in this case. ii.

There is no effective communication between the parties and the court will not force the parties to communicate with each other in these circumstances. iii. The parties have disagreed over school issues. iv. The parties have a deep distrust of the other. In the absence of trust and respect between the parents, an order for joint decision-making responsibility is not viable. v. The parents have disagreed over matters about the child’s health. At trial, the father accused the mother of ‘over-doctoring’ the child by taking her to multiple medical appointments unnecessarily.

He concluded that she was trying to gather evidence against him for use in this litigation. However, a review of the medical notes from the child’s primary physician, Dr. Mazurek, and other hospital records shows that the child had genuine medical issues, including recurrent constipation, infections (February 2022), and vision issues. The medical notes also show that he also was concerned about the child’s health and development. He attended medical appointments with the child and was able to consult with the child’s doctor.

On May 16 th , 2022, he reported concerns about the child’s ongoing difficulty with reading in school and wondered whether the child had dyslexia. vi. On August 23, 2021, the parents had an altercation at Dr. Mazurek’s office after the father accused the mother of trying to take the child to a medical appointment while being unsupervised as was required by a court order at the time. The court is concerned that an order for joint decision-making responsibility between the parties may result in the conflict between the parents spilling over to such places as the child’s school and medical offices. vii.

The father’s chronic challenges with family violence involving partners, which the child has been exposed to, present a distressing pattern of behaviour. [ 108 ] The issue of family violence militates against the father’s parenting plan. He has exhibited poor judgment in this regard, and has failed to protect his daughter.

Even though he has attended several programs through Yonge Street Missions, he does not seem to have changed or learned much from the program, particularly around the issue of conflict and family violence. [ 109 ] The mother exhibited good judgment when she worked out a safety plan with B.O. to shield the child from exposure to family violence while in the father’s home. [ 110 ] The father has not seen anything wrong with his conflict involving partners. He refuses to find any fault with himself and blames others for everything that has happened to him.

He tried to justify his conflict with A.P.(his ex-partner) as emanating from the mother (in this case) colluding with A.P. He also tried to justify some of his conflict with B.O. as emanating from the mother in this case colluding with B.O.

He blamed some of his conflict with B.O. as emanating from B.O.’s drinking and her refusal to vacate the Rathburn property. [ 111 ] In considering the best parenting arrangement for the child, the court seeks to provide the child with stability in her life and in her relationships. [ 112 ] The court finds that it is in the child’s best interests for the mother to have sole decision-making responsibility and for the child to have her primary residence with her. Summarizing some of the relevant best interest factors set out in subsections 24 (2) (3) and (4) of

the Act: i. The mother has provided the child with stability. The father’s residential arrangements have largely been unstable. After the child came into his care in 2019, he briefly stayed with the child in his ex-partner, (A.P.)’s home. He then moved with the child into a shelter in the Peel Region. He subsequently moved back to Toronto with the child to the unit on Rathburn Avenue. Following an incident in 2021 between himself and B.O., he temporarily moved into the paternal grandmother’s apartment with the child for a few months and returned to Rathburn Avenue in May 2021.

After he was charged with assault on B.O. in July 2023, he moved into another residence in Toronto where he is currently exercising his daytime parenting time with the child. He stated that this is a temporary arrangement, and he may move again. The court is concerned about the impact of these moves on the child’s school and on the child’s stability. On the contrary, the mother has remained in the same home since the parties’ separation in 2019. ii. The father has been unstable in his relationships with partners. His relationship with B.O. remains volatile.

B.O.’s position is that they are still in a relationship. [9] Given the previous police and society involvement, including applications for eviction and peace bonds between the two, the court is concerned about the instability and lack of clarity with respect to their relationship. iii. The mother is in a stable relationship with her current partner, with whom she is now engaged to get married. Her partner, M.M., appears to be child-focused and has been instrumental in facilitating parenting exchanges between the father and the child, albeit with some challenges.

He continues to support the child’s relationship with her father. iv. The mother is the parent who has been able to put the child first. She clearly expressed her concerns with respect to the child’s exposure to conflict between the father and B.O., and conflict between the father and his other ex-partner, A.P. At the same time, she continues to support the child’s relationship with him.

When he could not locate a third party to assist with parenting exchanges (after M.M. expressed that he no longer wanted to be involved), she convinced M.M., to continue facilitating the visits as she wanted the child to have time with him. v. The mother is the parent who provides the child’s physical, emotional, and psychological safety, security, and well-being. During moments when the father exposed the child to conflict, she took steps to protect the child by developing a safety plan for the child with B.O. vi. The father’s domestic criminal charges against B.O. are still pending.

The father’s continued accumulation of criminal charges against partners militates against granting him decision-making as such allegations are directly relevant to the child’s safety, security, and well-being. vii. The father has not taken steps to address his chronic challenges with family violence involving domestic partners. He totally denies it and blames others. viii. There have been no reported incidents of the child being exposed to domestic conflict in the mother’s home after the parties separated. ix. The child’s needs are being met in the mother’s home.

She is attending school and the mother continues to support her in her education. x. The mother is the parent who has been able to meet the child’s medical needs on an ongoing basis. The father’s accusations that the mother has been “over-doctoring” the child unfairly exaggerate her genuine concerns about the child’s health. xi. The child has a positive relationship with both paternal and maternal extended family members, including her half-siblings from both parents. The mother is supportive of that relationship. xii. The mother’s proposal for communication is child focused.

The father testified that he would prefer to have direct communication with her. Her position is that she does not wish to have direct communication with him. Given the history of conflict between the parents, direct communication between them is not in the child’s best interests. xiii. The mother remains conscious and accommodative of the father’s faith. She is Muslim. Her proposal for the child’s winter break is for the father to have the child for the first half of the break since he celebrates Christmas.

She proposes to have the child in the second half of the winter break. [ 113 ] The court will require the mother to advise the father of any major decision and obtain his input before implementing the decision. She stated during her evidence that she would want the father’s input (through consultation) before implementing any major decision since “he is also a parent to the child”. [ 114 ] Both parties have acted unreasonably with respect to issues of travel and the child’s documents.

In September 2019, the father had to bring a motion to dispense with the mother’s consent and signature when applying for the child’s documents. On September 25, 2019, Justice Pawagi granted his request on a temporary basis. [ 115 ] The mother had to bring a motion to seek permission to travel with the child to Yarmouth, Nova Scotia, to attend a high school graduation ceremony for the child’s half-sister (the mother’s older daughter).

Justice O’Connell granted the travel request on June 13, 2023. [ 116 ] The court will make an order requiring either parent’s consent or signature with respect to travel and documents. Part Six – Parenting time

6.1 – Legal considerations [117] The test for determining parenting time is what order is in the best interests of the child. [118] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child shouldhave as much time with each parent as is consistent with the best interests of the child. [119] In Baredregt v.

Grebliunis, 2022 SCC 22, the Supreme Court of Canada wrote the following about the maximum time principleat paragraphs 134 and 135: [134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are thesole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can andshould restrict contact”: Gordon, at para. 24; see also para. 49.

But in the years since Gordon, some courts have interpreted what isknown as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equalparenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14 ; Slade v. Slade, 2002 YKSC 40, atpara. 10 ; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the CanadianCourts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98.

Indeed, the term “maximum contact principle” seems to imply that asmuch contact with both parents as possible will necessarily be in the best interests of the child. [135] These

interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant tothe extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended DivorceAct recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in languageis more neutral and affirms the child-centric nature of the inquiry.

Indeed, going forward, the “maximum contact principle” is betterreferred to as the “parenting time factor”. [120] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly whenthe child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child.This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, wouldbe an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v.

Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A.,2019 ONCJ 962. 6.2 – Analysis [121] The father has several strengths as a parent identified above. [122] Both parents agree that the child loves her father and that they value their time together. [123] The father was the child’s primary caregiver from May 2019 until September 2022 when the parties switched to a sharedparenting arrangement. From September 2022 until July 2023, the parties had a week-about parenting arrangement. [124] The evidence was clear that when he is with the child alone, the father treats the child well and meets all her needs.

He is alsoinvolved in her extra-curricular activities. [125] The child is bi-racial. It is important for the father to have meaningful parenting time with the child which will give himsignificant involvement in all her activities. Clause 24(3)(

f) of the Act requires the court to consider the child’s cultural, linguistic,religious, and spiritual upbringing and heritage when considering the child’s best interests. The child needs meaningful learning,participation, and involvement in her father’s Jamaican heritage through increased parenting time for the father. [126] In Van de Perre v.

Edwards, 2001 SCC 60, the court stated that race can be a factor in determining the best interests of the childbecause it is connected to the culture, identity and emotional well-being of the child (para 40). [127] The court finds that it is in the child’s best interests to increase the father’s parenting time. [128] The court considered the contents of the OCL report dated July 15, 2021. The OCL recommended that the child resideprimarily with the father, with the mother having daytime parenting time on Mondays, Wednesdays, and Saturdays.

The court will givelittle weight to the OCL recommendations given that the report was prepared more than two years ago.[10] The report is very limited inscope. Significant developments have taken place since the writing of the report. The child’s residential arrangements with the parentschanged to a week-about basis from September 2022 until July 2023 when the father was charged with assault against B.O. Since then,the child has resided primarily with the mother. [129] The father seeks a week-about parenting schedule.

It is the court’s position that given the challenges regarding family violence,conflict, and poor communication stated above, such an arrangement is not in the child’s best interests. Further, communication andcoordination between the parents is very poor. [130] The father’s current residential arrangements are only temporary. A week-about residential arrangement would require a stableand consistent residential arrangement for the child. If he moves from his current home, that may impact the distance between his homeand the child’s school.

Currently, it is unknown whether he will return to the Rathburn property (which B.O. is refusing to vacate), orwhether he will stay longer in his current residence. [131] In 2021, when the father was facing criminal charges against B.O., with no contact terms, he reported to the OCL that in lateMay 2021, B.O. entered his home without permission, and she would not leave the home. The father contacted the police to request theirassistance. After the police attended, he was charged with breach of his bail. This incident is another example of a pattern of instability

and conflict in the father’s home that the court does not wish to expose the child to through a shared parenting arrangement. [ 132 ] The court will increase the father’s parenting time with the child to alternate weekends, with pick-up on Friday after school and drop-off on Monday at school. He will also have parenting time every Wednesday after school, with drop-off on Thursday morning at school. To minimize conflict, all pick-up and drop-off shall occur at the child’s school. [ 133 ] The court will include terms to minimize the child’s exposure to domestic conflict while in the father’s home. [ 134 ] A shared holiday

schedule will allow the father to spend more time with the child. Both parents agree to a shared holiday schedule. The parents also agreed to have the child reside with the father during the first half of the winter break (in December) every year, given that the father celebrates Christmas. Part Seven – Child support and

section 7 expenses [ 135 ] At the commencement of the trial, the parties executed final minutes of settlement providing for no child support payment to either parent. They agreed to share

section 7 expenses equally. [ 136 ] Both parents are in receipt of ODSP benefits. [ 137 ] The parenting order made by this court results in the child residing primarily with the mother. The father will be required to pay child support to the mother due to the child’s residential arrangements. [ 138 ] The court will require the father to pay child support to the mother, for the child, in the amount of $25.00 per month, commencing December 1 st , 2023. The father will be required to notify the mother once he obtains employment, or if he stops receiving ODSP benefits. [ 139 ] The court will grant the parties’ request to equally share

section 7 expenses. However, the court is not inclined to make an order with respect to the child’s cellphone bill. Part Eight – Restraining order 8.3 – Legal considerations [ 140 ] The mother’s request for a restraining order is made pursuant to

section 35 of the Act. Subsections 35 (1) and (2) of the Act read as follows: Restraining order 35

(1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15 . Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate: 1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody. 2. Restraining the respondent from coming within a specified distance of one or more locations. 3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2. 4. Any other provision that the court considers appropriate. [ 141 ] Clause 28 (1) (

c) of the Act sets out contact and communication orders that the court is permitted to make. It reads as follows: Parenting Orders and Contact Orders 28

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

section 21, (

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. [ 142 ] Justice S.B.

Sherr recently set out the legal principles to apply in determining whether to grant a restraining order in G.P. v. R.P ., 2023 ONCJ 437 as follows:

a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469 .

b) Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T ., 2023 ONSC 2365 .

c) A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See : F.K. v. M.C., 2017 ONCJ 181 .

d) It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195 .

e) Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T ., supra .

f) Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res , 2013 ONCJ 254 .

g) The test for a restraining order is both obective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(

s) expressed by the requesting party. See: A.H. v. M.T ., supra ; McGowan v. McGowan , 2018 ONSC 5950 , at paragraph 38 . [11]

h) The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke , 2020 ONSC 2970 ; S.S.L. v. M.A.B., 2022 ONSC 6326 .

i) It is not necessary for a respondent to have actually committed

an act, gesture or words of harassment to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda , supra .

j) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda , supra.

k) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195 .

l) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242 ; Jumale v. Mahamed , 2022 ONSC 566 .

m) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C. , supra; M.H.S. v. M.R., 2021 ONCJ 665 .

n) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent if the restraining order is granted. See: D.C. v. M.T.C. , supra ; M.H.S. v. M.R. , supra.

o) A court is not precluded from making a final restraining order if a party has complied with a temporary order under

section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C. , supra. 8.4 – Analysis [ 143 ] The mother testified that she is not afraid of the father. However, she clarified that she does not want him to visit her home. She does not want to have contact with him except for parenting exchanges.

[ 144 ] Both parents have engaged in conflict with each other. [ 145 ] Both parties engaged in a breach of the father’s criminal release conditions when the mother attended at the father’s home several times in 2020, knowing that there were no-contact terms from the criminal court. [ 146 ] The society described the current family arrangements for the parents as stabilizing given that the parents are not residing together. [ 147 ] The court considered that there has been no physical violence between the parents since their separation in 2019. [ 148 ] The father’s bail conditions were updated in July 2023, after he was charged with assault against B.O.

The updated bail conditions reflected the two sets of charges relating to B.O. and the mother in this case. The updated bail conditions only had no-contact terms relating to B.O. It appears that the no contact terms relating to the mother were dropped at that stage. From July 2023, until his charges were stayed on October 27, 2023, the father did not have any direct contact with the mother. [ 149 ] In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C. , supra; M.H.S. v.

M.R. , 2021 ONCJ 665 . [ 150 ] Given that the mother has not expressed any fear of the father, the court will dismiss her request for a restraining order. [ 151 ] The court finds that there should be restrictions on the parents’ communication and contact with each other pursuant to

section 28 of the Act. Such restrictions will minimize conflict and reduce the child’s exposure to further conflict. The terms and restrictions will be mutual between the parents. Part Nine – Orders [ 152 ] A final order shall go on the following terms: Primary residence, decision-making responsibility, and incidents of parenting a. The mother shall have final decision-making responsibility for the child. b. The child shall have her primary residence with the mother. c. The mother shall inform the father with respect to any major decision regarding the child.

She shall advise him of the contemplated decision in writing and within 7 days the father shall provide her with his view. If the parties do not agree, the mother will make the final decision. d. The father may obtain information directly from the child’s doctors, teachers, or other service providers. If required by a service provider, the mother shall execute authorizations or consents to give effect to this order. e. The father shall have regular parenting time with the child as follows: i. Alternate weekends with pick-up on Friday after school and drop-off on Monday at school. ii.

He shall have additional parenting time every Wednesday, with pick up from school and drop off at school on Thursday morning. iii. The father’s parenting time shall be extended by one day if the child is not otherwise in school on the Friday before his parenting weekend, or on the Monday following his parenting weekend. iv. If school is not in session, pick-up and drop-off shall occur at a mutually agreed exchange location. f. The father shall not expose the child to adult conflict while the child is in his care.

If conflict occurs in his home while in a caregiving role, he shall immediately notify the mother to attend and pick up the child from him. g. Either parent may travel with the child within Canada and outside the country when the child is in their care without the other parent’s prior written consent. The traveling parent shall provide the non-traveling parent with itinerary details for the trip and emergency contact information. The traveling parent shall notify the non-traveling parent not less than 30 days prior to the intended travel. h.

Both parents shall be responsible for applying and/or renewing the child’s passport, health card, and other official government- issued identification documents. Contact, communication, and information a. The mother’s request for a restraining order is dismissed. b. The following terms shall apply pursuant to

section 28 of the Act: i. The parties shall not attend at each other’s residence, except if they agree to use either parent’s residence as a parenting exchange location when school is not in session.

ii. Except in case of an emergency, the parties shall communicate parenting issues through a parenting application such as OurFamilyWizard or AppClose, or a similar parenting application. If unable to use a parenting application, they shall communicate through email. iii. All communication between the parties shall be respectful. Neither party shall criticize, demean, or make disparaging comments about the other in the child’s presence. iv. The mother shall advise the father of all appointments with any doctors, teachers, or other service providers for the child.

She shall keep him updated with their names and contact information. v. The mother shall provide the father with all contact information for any professionals providing services to the child. vi. The mother shall list the father as an emergency contact person at the child’s school. vii. The parties shall immediately notify each other if the child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment, and the name of any doctor treating the child.

Both parties shall be permitted to attend while the child is being treated. Parenting

schedule during holidays and special occasions The following holiday

schedule shall take priority over the regular parenting schedule: Winter school break i. The child shall spend the first half of the winter school break with the father and the second half with the mother, each year. March/spring break ii. In odd-numbered years, the child shall reside with the father from Friday (last day of school before March break), until Wednesday at 1:00 p.m., and with the mother from Wednesday at 1:00 p.m., until return to school. iii.

In even-numbered years, the child shall reside with the mother from Friday (last day of school before March break), until Wednesday at 1:00 p.m., and with the father from Wednesday at 1:00 p.m., until return to school. Summer vacation iv. Starting in 2024, the child shall spend two consecutive exclusive weeks with each parent, each month, in July and August, each year. In even-numbered years, the father will choose his weeks by April 15 th . In odd-numbered years, the mother will choose her weeks by April 15 th . Father’s Day and Mother’s Day v.

If the child is not otherwise with the father on the Father’s Day weekend, the child shall stay with him from Friday after school until drop off at school on Monday. vi. If the child is not otherwise with the mother on the Mother’s Day weekend, the child shall stay with her for the full Mother’s Day weekend. Child support c. Commencing December 1 st , 2023, and the 1 st day of every month thereafter, the father shall pay child support to the mother (for the child), in the amount of $25.00 per month. d.

The father shall immediately notify the mother if he stops receiving ODSP benefits or if he obtains employment. e. Arrears of child support and

section 7 expenses (from separation date until the date of this order), are set at $0. f. The father shall pay half of the child’s karate and Kumon expenses within seven days of being presented with an invoice or receipt. g. The parties shall equally share the portion of the child’s medical, dental, and other health-related expenses within seven (7) days of being presented with an invoice or a receipt. h. All other special expenses shall require the prior written consent of the other parent, such consent not to be unreasonably withheld. i. Support deduction order to issue. j.

Beginning in the year 2024, the father shall, by July 1 of each year, provide to the mother a copy of his income tax returns and notices of assessment and reassessment for the previous years. Other k. All other claims made by the parties are dismissed.

[ 153 ] The mother was the successful party. If she seeks costs, she shall serve and file written submissions by December 1, 2023. The father will then have until December 22, 2023, to serve and file his written response. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. The submissions are to be eit

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