Recent case: Parenting & child support under the revised CLRA
L.B. v P.E. 2021 ONCJ 114: This is a trial decision in a parenting and child support case. It is of interest primarily because, although the case was heard before the March 1st implementation of the revised Divorce Act and Children’s Law Reform Act, the decision was issued on March 2nd, and Justice Sherr makes some comments about the applicability of the revisions.
This summary focuses on the parenting component of the decision, in which Justice Sherr thoroughly and thoughtfully canvasses the issues of parenting time and decision-making responsibility in the context of family violence. This is a case well worth reading in its entirety, but for those who only have time for a quick look, this summary should help. I have bolded those comments that I think you will find the most relevant and helpful.
The mother, who was the respondent, sought to have the six-year-old child live primarily with her and to have sole decision-making responsibility. She wanted the father to have parenting time on alternate weekends and alternate Wednesday nights. The father, who was the applicant, sought equal parenting time and joint decision-making responsibility or, in the alternative, sole decision-making responsibility.
The father had been charged with assaulting the mother in 2015, when the parties, who had lived together but were not married, separated.
Immediately after separation, the father did not see the child for several months. He brought an application for custody, and Justice Zusman ordered that he have supervised access. After the criminal charges were withdrawn, at the mother’s request, the parties also withdrew their family court claims.
The father claimed that for the next 3 ½ years, he had equal parenting time until the mother began restricting his time in April 2019. The mother claimed that the child lived primarily with her and said that the father did not see the child at all from April to June 2019.
In August 2020, after various back and forths between the parents, Justice Zusman made a temporary order that the mother have custody and primary residence of the child and that all communications between the parents be through Our Family Wizard.
At trial, Justice Sherr discusses the applicability of the revisions to the Children’s Law Reform Act, noting:
Section 76 of the [CLRA] does not address whether the amendments should be applied to cases started but not determined by March 1, 2021. This is unlike section 53.3 of the Divorce Act, which does expressly state that the amendments to that legislation will apply to any case decided on or after March 1, 2021.
He decides to apply the amendments for several reasons:
- The result in this case would be exactly the same whether or not the amendments were applied
- Courts have always and will continue to consider all relevant factors concerning the child’s best interests, so the differences between the test before and after the amendments is not significant
- The amendments modernize the language and are much clearer than the old language
- They reflect the government’s intention of what is now in a child’s best interests
- The amendments, to a large extent, codify the existing jurisprudence about a child’s best interests
- They provide a comprehensive and useful definition of family violence and set out best interests factors relating to family violence
Justice Sherr found the mother to be a “compelling witness” and said that her “fear and distrust of the father was palpable.” He did not find the father’s claims about positive co-parenting to be true, preferring the mother’s evidence that the father was controlling and very difficult to deal with.
The father, in Justice Sherr’s opinion, had abused the mother financially after they separated and lacked credibility in his attitude to the family violence he had engaged in, which Justice Sherr found “impacted his credibility about the parenting history.”
The court found that, contrary to the father’s claim, “at no point did the parties have a shared parenting arrangement.”
Also: “despite many challenges in dealing with the father, the mother has worked very hard to facilitate his relationship with the child. The court rejects the father’s evidence that she is trying to destroy it.”
With respect to decision-making responsibility, Justice Sherr notes that “Mutual trust and respect are basic elements for a joint decision-making responsibility to work effectively. . . . Parents who require such detailed court interventions about their interactions are not good candidates for joint decision-making responsibility orders. . . . “
He concludes:
The court’s findings of family violence reinforce its findings that a joint decision-making responsibility order is not in the child’s best interests. . . it is not in the child’s best interests to allocate any decision-making responsibility to the father. . . There is a power imbalance between the parties. The father can be controlling and coercive. The mother is submissive with him. A joint decision-making responsibility order, or any allocation of decision-making responsibility to the father would run too high a risk of exposing the mother and child to family violence and escalated conflict. 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 his primary residence with her.
He then sets out the factors in the best interests of the child test that were relevant to his decision:
- The mother is best able to provide for the child’s physical, emotional and psychological safety, security and wellbeing
- The child has had a stable parenting arrangement, which should not be disrupted
- There was no independent evidence about the child’s views and preferences
- The mother has facilitated and promoted the child’s relationship with the father
- The mother has worked very hard to communicate and cooperate with the father “despite her trepidation in dealing with him”
- The mother “has been a victim of family violence by the father on a continuing basis. He has, at times, been controlling, coercive and abusive to her. He has financially abused her. This has been a pattern of conduct. It has caused the mother to fear for her physical and emotional safety with him. The mother has taken steps to limit her interaction with the father and conducts herself in a manner not to trigger his abusive conduct”
- The child has been exposed to the family violence, which has the potential to emotionally harm him
- The father has not taken any steps to address the family violence. He totally denies it
- It is not in the child’s best interests to put the mother in a position to have to jointly make decisions with the father due to the history of family violence.”