Recent case: Parenting arrangements under the updated Children’s Law Reform Act

Ammar v Smith 2021 ONSC 3204: This case culminated in a five-day trial that focused on parenting arrangements, ownership of the family residence and child and spousal support. This summary focuses on the parenting arrangements issue only. For those interested in the other issues, I encourage you to read the full 88-page decision.

The parents were common-law spouses, so the parenting arrangements element of the case relied on the Children’s Law Reform Act, including the revisions that came into effect on March 1, 2021.

There are two children, a girl aged 8 and a boy aged 7 at the time of the trial. The mother sought a parenting order that continued the status quo, with her as the primary parent with sole decision-making and with the father to have time with the children twice during the week after school and alternate weekends. The father sought an order for equal parenting time and shared decision-making responsibility. 

While the parents’ evidence differed in many respects, the father’s evidence largely supported the mother’s with respect to her role as the primary parent throughout the relationship. He agreed, when asked by the court, that:

• the children had never been left in his sole care
• he had never looked after the children from morning to bedtime on his own, prepared their meals or conducted bath and bed time routines on his own
• had not attended parent-teacher meetings for the past two years
• he left the task of telling the children about the separation to the mother.

When the mother made the decision to end the relationship in 2016, the father refused to leave the family home, even though he owned other accommodation nearby, so the family remained living under the same roof for some time. The mother disengaged herself from communicating with the father, stopped cooking for him, doing his laundry or telling him about her daily plans. The father remained in the family home until the end of 2020, during which time the atmosphere became toxic and hostile. He left at that point because he was charged with assaulting the mother. This was after the police had been called to the home on numerous occasions.

Audio tapes provided during the trial established the father’s psychological abuse of the mother, as well as his inappropriate comments about the mother to the children, none of which the father denied. At one point, he reported the mother’s family to Crime Stoppers, claiming they were engaged in criminal activity, despite having no evidence of this. Crime Stoppers ignored the report.

In her decision, Justice Kraft reviewed the evidence in detail and then applied it to each relevant factor in the best interests of the child test noting:

• the children’s needs for stability and consistency support the mother remaining the primary parent
• the children were bonded to both parents, but more to the mother because of the primary parental role she had played throughout their lives
• both parents were willing to support the children’s relationship with the other
• the mother had been the primary parent and “fully responsible for all aspects of the children’s lives”
• the father would need to make changes to his life including finding suitable housing and adjusting his work schedule before he would be able to care for and meet the needs of the children

While Justice Kraft was not able to reach a conclusion about whether either or both parties used force during the December 29, 2020 incident, she did find that the father had engaged in psychologically abusive behaviour to her, particularly after they separated but were still living under the same roof:

“Michael regularly insulted Vivian, he was critical of her parenting, her mood, the way in which she spoke to him and her decisions relating to the children.”

She referred to the expanded definition of family violence in the CLRA and found that the father’s ability to care for and meet the needs of the children was affected by “his anger and hostility toward Vivian, such that he cannot stop himself from involving the children in the dispute.” Justice Kraft identified this as a concern with respect to the parents’ ability to cooperate on decision-making related to the children.

She found that the father’s proposal for parenting time did not focus on the children’s needs or best interests but rather on what he saw as his right to have time with the children, noting that there was, in law, “no presumption of equal time-sharing of children after a child’s parents separate.’

Justice Kraft’s order provided for a gradual step-up process to increase the father’s time with the children, during which he had to find suitable housing and make changes to his work schedule. Her order also set out a detailed regime for both regular and holiday parenting schedules, travel, parenting rules and parental communication.

With respect to decision-making, Justice Kraft carefully reviewed the evidence of the father’s psychological abuse towards the mother, including post-separation, as well as relevant legislation and case law, noting that joint custody (ie. shared decision-making) should not be ordered where there is poor communication. Her decision pointed out that the conflict evident before separation increased after the parents separated and the father repeatedly involved the children in the parental conflict without consideration about the impact on them.

“Although I do not doubt that Michael believes that he has [the children’s] best interests at the forefront, his demanding and inflexible personality and his inability to have insight into or refusal to acknowledge his own contributions to the marital difficulties and conflict since the separation do not bode well for cooperative communicative parenting with Vivian. By way of example, Vivian demonstrated from the outset that she would facilitate maximum contact between the children and Michael.”

Justice Kraft awarded sole decision-making responsibility to the mother, spelling out exactly what was meant by each area of major decision-making. This paragraph (274) of the decision is worthy of being read thoroughly. For example, in the section dealing with medical decisions, Justice Kraft included decision making about such issues as vaccinations, therapeutic supports and “individual counselling, group counselling, in-person or virtual therapy, brief or long-term.” The order also required the father to sign any and all required consent forms.

Given how often abusers try to prevent children from accessing counselling, women might want to propose this language for inclusion in parenting orders.

This is a long decision, but Justice Kraft’s attention to the revised CLRA coupled with her careful consideration and analysis of the evidence makes it an important one to read.