Recent case: Best interests of the child and family violence

McIntosh v Baker 2022 ONSC 4235

This case provides a thorough analysis of the best interest of the child test in the context of family violence. While this case touches on property issues and child support, it will not be the focus of this case comment.  

The applicant mother and respondent father have three young children from their union, they were never married to each other. They separated in August 2018 when the mother left the jointly owned property with the children and lived with her parents.

From October 2018 to June 2019, the mother and father resided in the property separate and apart with the children. However, matters escalated to the point where a physical altercation between the father and the maternal grandfather occurred. The father was not permitted to live in the property after that or have any direct contact with the mother. The mother eventually purchased the father’s interest in the property. The mother and children have lived primarily in the property with the father having parenting time since June 2019. At trial, the father demanded equal parenting time and decision-making responsibility for the children.

In considering which parent should have decision-making responsibility for the children and when each parent should have parenting time, Justice Fowler Byrne provides a nuanced analysis of the best interests of the child test. She urges courts to take a more holistic look at the children, their needs and the people around them [para 15].

In considering the best interests of the child test along with the facts of this case:

a)    Children’s needs, including stability – As a result of the mother purchasing the father’s interest in the property, the children have lived in the same house their entire lives. The children have also been consistently looked after by the maternal grandparents. The mother’s parenting plan includes staying in the same house and keeping the children in the same school while the father’s plan envisions the children changing school. The mother’s parenting plan provides for more stability in the short term [para 24].

b)    Children’s relationship with each parent, siblings and grandparents – the children love and are attached to both parents, grandparents and the extended maternal family. The father does not support the grandparents in playing a role in the children’s lives. The father has undermined the role of the grandparents in the children’s lives in the presence of the children. This has adversely impacted the mother [para 27].

c)    Each parent’s willingness to support the children’s relationship with the other parent – Based on the evidence and the relationship history between the mother and father, it was clear that the mother was willing to support and maintain a healthy relationship between the father and the children. When the father was removed from the property by the police in June 2019 following another incident of family violence, the mother ensured that the father resumed parenting time within weeks. The mother also agreed to expanded parenting time on a gradual basis and continued to encourage the children to have parenting time despite the continued and escalated conflict [paras 30-31].

d)    History of care of the children – Based on the evidence, it was clear that both parents were involved in the care of the children and neither one of them was the “primary care” provider. With the help of the maternal grandparents, the children were well looked after [para 38].

e)    The children’s views and preferences – the OCL declined involvement in the case but the views and preferences of the children have come through the evidence of the parties and Peel Children’s Aid Society (“CAS”) records.

Her Honour found that given the ages of the children she did not believe that the children were seeking equal parenting time with each parent, rather they were expressing their views when the time came for them to change homes. The children were interviewed by CAS multiple times. CAS found that the children were at risk of physical harm by the father [para 54]. The views and preferences of the children as told to the CAS are the most reliable [para 56].

f)      The children’s heritage – the mother is of Trinidadian heritage and is a person of colour. The father is white. The children share the heritage of both parents. While the mother appears to respect both heritages of the children the father harbours misconceptions about the general mental health of people from the Caribbean and how they raise their children. Her Honour says that the children should be raised to be proud of their heritage on both sides of the family. Exposing these opinions of the father to the children, even as an unconscious bias, are not in the children’s best interest.

g)    Plans for the children’s care – the mother’s plan of care involve continuing with the children in their current school and continuing to use the grandparents and her extended family as support and childcare while the father’s plan was to enrol the children in a school in the father’s catchment area and reduce the grandparents involvement in the children’s post-school care.

h)    The ability and willingness to care for and meet the needs of the children – the Father’s ongoing habit of involving the children in adult conflict and the incidents of family violence indicate that the father is unable to put the children’s best interests ahead of his own agenda.

i)      The ability and willingness to communicate and cooperate – In cases of family violence, particularly spousal violence, it is critical that the court consider whether a cooperative parenting arrangement is appropriate. Victims of family violence might be unable to co-parent due to the trauma they have experienced or by reason of ongoing fear of the perpetrator. Cooperative arrangements may lead to opportunities for further family violence. Rather than communicate in a reasonable manner, the father uses the police when he does not believe his parental rights are being respected. The father has called the police to do “wellness checks” on the children, or threatened to do so, when he was not happy with the quality of their phone conversations. Her Honour also had concerns about the father’s willingness to comply with court orders.

j)      Impact of family violence – Her Honour found physical violence and psychological abuse against the mother, and emotional harm to the children perpetrated by the father. The impact of this family violence is such that cooperative parenting is not possible or appropriate.

Physical Violence

  • The father has perpetrated physical violence upon the mother on a number of occasions and on the grandfather at least once. A few of the incidents of violence against the mother and grandfather were committed in the presence of at least one child [para 84]
  • While the father claimed that he had been a victim of physical violence at the hands of the mother throughout the relationship, his allegations lacked credibility [para 101]

Psychological Abuse

  • Constant denigration of the mother including threatening the loss of the children and insisting that she had a mental health disorder is a form of psychological abuse [para 111]
  • The ease with which the father diagnoses the mother with a mental illness to reduce her parenting time, without any evidence shows he does not understand that his behaviour makes cooperative parenting unlikely [para 111].

Emotional Abuse Against the Children

  • The father shows no hesitation in involving the children in the conflict. The father had a habit of leaving voicemail messages for the mother when the children are audibly present, saying negative things about the mother or involving the children directly in their dispute [para 112]
  • There is no evidence that the father has done anything to address his anger issues beyond attending a PARS programme in 2017 [120]

In ultimately deciding parenting time, Justice Fowler Byrne indicates:

  • The mother in this case was able to demonstrate that she can make child-focused decisions related to the children’s health, education and general welfare of the children [para 124].
  • While the degree of physical and psychological abuse by the father against the mother and the amount of emotional harm the father subjects the children to, impacts his ability to meet the needs of the children. The father took no responsibility for his actions and blames the mother’s non-existent “mental health issues” for her decision to leave the relationship and protect the children from any further exposure to adult conflict [para 124]
  • Generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it is consistent with the children’s best interest. However, it does not create a presumption in favour of equal parenting time or maximum time with each parent [para 127]
  • If the evidence indicates that increased parenting time with a parent would not support the children’s best interests, it should not be ordered [para 127]