P.N.R. v. M.Y.R., 2025 ONSC 1802 (CanLII)

[1]         This case was routine for Peel Region, and it was fraught.[1] The Respondent/Mother/M.Y.R. testified in detail to a pattern of intimate partner violence (IPV) and called corroborating evidence. The Applicant/Father/P.N.R. countered with accusations of fabrication, informational gatekeeping, and parental alienation. The Father has never been convicted of a criminal offence, but the record was replete with references to previous investigations conducted by child welfare agencies, police, and the Office of the Children’s Lawyer (OCL). After five years of ongoing litigation, counsel became aligned with their clients and enmeshed in the conflict.[2] The emotional dynamics in the courtroom created a pressure-cooker situation with both parents’ identity, reputation, worldview, and family and parenting relationships tied up in the mix.

[2]         On a balance of probabilities, I find that the Father engaged in a five-year pattern of psychological, sexual, physical, and financial abuse, coupled with controlling behaviors. The cycle of violence typically began with arguments about money, escalated to name-calling and financial abuse, and culminated in a violent incident (such as hair-pulling, pushing or shoving, or sexual coercion). The violent incident was generally followed by a brief separation (for example, the Mother sleeping in another room or going to a shelter), after which the Father would promise to change and plead for her to return to the family. The parents would eventually reconcile after the Father agreed to couples counselling. Things would get better for a time, before the cycle repeated itself. The family dynamics came to a head when the Father was charged with assaulting the Mother and was forced to leave the matrimonial home. Since then, the conflict has continued, with the Father continuing to exert financial control by refusing to pay support, and the Mother being hyper-vigilant about the Father’s parenting role. The upshot is that both children have been exposed to ongoing conflict, and the elder child is now consistently refusing parenting time with the Father.

[3]         This is what the epidemic of IPV looks like through the distorted lens of the adversarial justice system,[3] and this case made me question deeply my role as a judge. Criminal courts hold perpetrators accountable; child welfare courts protect children from harm; and civil courts award damages to victims; but what is the role of family courts when making parenting orders? In my view, our role must be restorative, rather than punitive, preventative, or even reparative. This is because, despite a history of IPV, parents will often maintain a relationship for years into the future because of their strong parental, familial, social, and financial ties to one another, and because maintaining a relationship is generally in their children’s best interests.

[4]         Recognizing this reality, the children’s best interests require courts to make parenting orders that restore family relationships to the extent necessary to meet the children’s ongoing needs. A restorative approach means restoring dignity, trust, emotional resilience, and peace to the family relationship. At its core, a restorative approach acknowledges the complex family dynamics that underpin violent relationships, encourages each party to take responsibility for their role, builds each parent’s capacity to meet their ongoing parenting role within the family, and reduces conflict so that the parents can focus on their children’s current and future needs. It goes without saying that adopting a restorative approach means favouring therapeutic orders over ones that “punish” or “reward” either parent, and approaching quasi-criminal orders with extreme caution. A restorative approach emphasizes that the trial and final order should mark a turning point in terms of the dynamics within the family relationship.

[5]         The parents met online and started dating in 2009. The Father bought a four-bedroom home in Mississauga in July 2011, putting down $200,000 (“the Home”). The Mother started living in the Home permanently in the spring of 2012. They were engaged in 2013 and married on September 5, 2015. They have two children: the Son/G.R. (born September xx, 2016, now eight years old), and the Daughter/E.R. (born, July xx, 2019, now five and a half years old) (collectively, “the Children”).

[6]         The Father was the primary breadwinner and responsible for managing the household finances during the marriage. The parties’ relationship was rocky throughout, with arguments about finances, intimacy, and family dynamics, and periods of separation and reconciliation. The marital discord escalated in the spring of 2020 when the Mother called Peel Children’s Aid Society (“PCAS”) to report that the Son was making concerning statements about the Father. The Son, who was three years old at the time, told PCAS and Peel Police that he had lied to the Mother, but could not explain why. The Father took a polygraph test, PCAS did not verify a risk of harm, and no criminal charges were laid.

[7]         On May 6, 2020, the parents had an argument, and the Father was charged with assaulting and threatening the Mother. In a letter dated November 2020, PCAS verified a risk of harm to the Children due to exposure to “adult conflict.” After being charged, the Father moved in with the Paternal Grandparents because his bail conditions required him to stay away from the Mother; the Mother stayed in the Home with the Children.

[8]         Since moving in with the Paternal Grandparents, the Father has continued to work the nightshift, earning an average of about $93,500 annually post-separation. He has not paid any child support or spousal support. His availability for parenting time is largely dictated by his work schedule,[4] with the Paternal Grandparents facilitating the parenting exchanges. The Father says that the Mother has repeatedly blocked his parenting time in the years since separation. He blames her for his more marginal role in the Children’s lives. He accuses her of using the criminal law to evict him from his Home and keep him away from the Children, poisoning them against him, and refusing to provide him with information about their health and educational progress.

[9]         The Mother says that she is supportive of the Children’s relationship with the Father, but that she is concerned that the Father has not made child-focused decisions in the past. The Son sometimes refuses to attend parenting time with the Father, but he cannot yet articulate his reasons for doing so. The Mother wants the Son to attend counselling, which has also been recommended by his doctor, PCAS, and the OCL. The Father maintains that the Mother is coaching the Son not to attend; he refuses to consent to counselling because the Children are “normal” and “happy” in his care. He is confident that the Son will stop refusing parenting time if the exchanges take place at school, where he will be outside the ambit of the Mother’s influence.

[10]      This matter has been before the courts for four and a half years.[5] As of the trial, the Father seeks joint decision-making responsibility, mid-week and weekend parenting time, imputation of income to the Mother for child support purposes, unequal division of net family property (NFP), and set offs for carrying costs and occupation rent. He asks me to find the Mother in contempt of interim parenting orders, and for the police to enforce his parenting time going forward. The Father denies owing any retroactive support because he paid the carrying costs of the Home post-separation. The Father says the Mother is not entitled to spousal support because she is purposefully unemployed.

[11]      The Mother asks for sole decision-making responsibility and primary parenting time. She agrees with the Father’s proposed schedule for his parenting time, and that parenting exchanges take place at the school to minimize conflict. She is hopeful that the Son will be more willing to attend parenting time after attending counselling, but does not favour police enforcement because it will be too traumatic for the Children. She asks for retroactive and ongoing child and spousal support, based on the Father’s reported income. She says that she is entitled to half the equity in the Home after it is sold because it was the matrimonial home during the marriage, and because she contributed to the carrying costs post-separation.

[12]      Adopting a restorative approach, I find that it is in the Children’s best interests that their daily routines remain stable, the standard of living in both households be roughly comparable, their emotional and psychological needs be met, their relationship with their Father be strengthened over time, their exposure to conflict be minimized, and that the parents take concrete steps to more effectively fulfil their parenting roles. Consistent with the Children’s best interests, the Mother shall have decision-making authority in all domains, save and except that the Father shall have decision-making authority over extracurricular activities. The Father’s parenting time shall be gradually expanded after he builds his parenting capacity by completing the therapeutic interventions recommended by the OCL. Parenting exchanges shall take place at school. If that is not possible, exchanges shall be facilitated by a neutral third-party (ideally, the Maternal Uncle). There will be no police enforcement. The parties will limit their contact to parenting issues and use a parenting communication application (AppClose). The Mother is not in contempt of the interim parenting orders, and the Father is not restrained from contacting the Mother. If the parents want to change the parenting orders in the future, they will use a parenting coach before resorting to the courts.

[13]      The Father shall pay retroactive child support from May 6, 2020, as well as ongoing support based on his income and the Child Support Guidelines (“Guidelines”).[6] The parties shall share s. 7 expenses proportionally. The Father owes retroactive spousal support at the mid-end of the range from the date of separation until the Home is sold (no earlier than July 30, 2025), and ongoing spousal support at the high-end of the range after the Home is sold. The support payable should be calculated based on the Mother’s actual income from the date of separation until January 1, 2026; after that date, the Mother’s income shall be calculated based either on her taxable income or an imputed income of minimum wage, whichever is higher. Spousal support will be reviewable after January 1, 2028. The amount the Father owes in retroactive support will be paid out from his share of the equity in the Home after it is sold.

[14]      For the purposes of their respective NFPs, the Father’s pension shall be valued at $65,000, he is entitled to deduct $43,500 for date-of-marriage debts, and the Mother shall include the $14,000 balance in the Child’s joint trust account in her NFP. The equalization payment owed by the Father to the Mother shall be adjusted to reflect an unequal division of NFP in the Father’s favour, in the amount of $250,000.

[15]      The Mother does not have an equitable interest in the Home post-separation. The Father shall not be allowed to attend the Home to recover his belongings before it is sold.

[16]      To decide this case, I must answer the following questions:

[17]      I answer each question below.

[18]      The parents agree on some aspects of the parenting plan going forward. They agree that the Mother will stay in the Home with the Children until the end of the schoolyear, and that the Father will continue living with the Paternal Grandparents until that time. After the Home is sold, both parents will relocate to their own accommodation, while remaining within 25 kilometers of the Home. The Children will remain enrolled in their current school, and parenting exchanges will take place at the school whenever possible. While the Mother is currently unemployed, she hopes to obtain work before the Home is sold so that she can afford rental accommodation or subsidized housing in Mississauga. The parents will continue to communicate about child-related issues only, and through AppClose.

[19]      The parents agree that the Children should continue to be raised as Catholics, be exposed to their respective races and cultures, and have a relationship with their grandparents and extended families. They agree that the Children should be involved in extracurricular activities (soccer and swimming), but do not agree on when the activities should take place vis-à-vis their parenting time, or the maximum total cost for these activities. The Mother wants to keep the Children enrolled in a subsidized before- and after-school care program, which will allow her to start working a nine-to-five job. The Father does not want to contribute towards the costs of before- and after-school care because he does not need it; the Paternal Grandparents are available to help with exchanges during his parenting time.

[20]      The Father asks for joint decision-making authority because he wants to be more involved in the Children’s schooling, extracurricular activities, and healthcare. The Father acknowledges that the Mother has always been the Children’s primary caregiver and that she has made good parenting decisions, but says that she is not supportive of his parenting role. He testified that he is worried that the Mother will not keep him “in the loop” on important parenting decisions. While the Father maintained that the parties can effectively communicate about parenting issues through AppClose, he also admitted that he has ignored the Mother’s communications about the Children in the past, accusing her of repeatedly “harassing” him about counselling for the Children.

[21]      The Mother asks for sole decision-making authority because she has always been the Children’s primary caregiver, the Father has not made child-focused decisions in the past, the Paternal Grandparents have exposed the Children to conflict during exchanges, and because she cannot communicate or co-parent with the Father effectively. She is particularly concerned about the Father’s refusal to agree to counselling for the Son. The Mother recognizes that her past experiences of IPV have made her hyper-vigilant and that this has sometimes stood in the way of her effectively co-parenting with the Father. She testified that she has undertaken extensive counselling precisely so that she can move on and foster a positive relationship between the Father and the Children. The Mother denies fabricating the allegations of IPV, coaching the Children, or intentionally gatekeeping information.

[22]      On January 3, 2025, Tina Jowrey, a Regional Clinical Supervisor with the OCL submitted a report to the court.[7] Ms. Jowrey recommends that the Mother have sole decision-making authority (after consulting with the Father), and that the Father have parenting time every other weekend. The Father disputed the report, and the OCL responded without changing its findings. Ms. Jowrey was cross-examined at trial by both parties. In support of her recommendation of sole decision-making authority to the Mother, Ms. Jowrey states that the parties are not able to communicate effectively, and that the Father has a history of refusing to make timely decisions or withholding his consent to interventions recommended by professionals. She said that an alternating weekend schedule that allowed the Children to see both their parents at equal intervals was preferrable to the one that accommodated the Father’s work schedule, and required the Children to spend two weekends in a row away from their Mother.

[23]      To decide the parenting issues, I must answer the following questions:

[24]      I address each question in turn.

[25]      When making parenting orders, I must stay laser-focused on the child’s best interests.[8] Parental preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child.[9] “Past conduct” is not relevant to determining the best interests of the child, “unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.”[10]

[26]      There is no presumption in favour of joint parenting time and the term “maximal contact” is not found in the Divorce Act or the Children’s Law Reform Act (“CLRA”). The legislation states that, “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”[11] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s best interests. The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents so long as it is in their best interests.[12]

[27]      To judicially determine a child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being,” while considering “all factors related to the circumstances of the child.”[13] I turn now to the statutory factors.

[28]      After marriage, the parties’ relationship was traditional, with the Father responsible for bread-winning and the Mother responsible for managing the household and caregiving. The Father worked night shifts and was available and engaged with the Son as much as possible given his schedule. He was less involved with the Daughter, who was just a few months old when the parents separated. The parents are Catholics with strong family values. Both expressed wanting their Children to grow up in an intact family, which was part of the reason they stayed together for so long.

[29]      By all accounts, the Father’s parenting time post-separation has been sporadic. After the Father was charged criminally in May 2020, his release conditions restricted him from communicating or being in the vicinity of the Mother. Because of her concerns about IPV, the Mother refused to allow any unsupervised parenting time without a court order. The Father eventually brought an urgent motion in December 2020, and Justice Kumaranayake ordered unsupervised parenting time on Wednesday evenings and during the day on weekends, with the Paternal Grandparents facilitating the exchanges. In May 2022, after the Father brought a second interim parenting motion before Justice Kumaranayake, she ordered that the weekend parenting time be expanded to two consecutive weekends per month (from Friday at 6:00 p.m. to Sunday at 4:00 p.m.), and every Wednesday evening from 4:00 to 7:00 p.m.

[30]      While the Paternal Grandparents have played an important role by facilitating the exchanges when there was a no contact-order in place, they both admitted to engaging in verbal conflict with the Mother. To minimize conflict, the Paternal Grandmother started waiting in the car while the Paternal Grandfather would ring the doorbell, come back to the car, and wait for the Children to get into the car by themselves. Perhaps unsurprisingly, it was at this point that the Son began refusing to enter the car. The Paternal Grandparents concluded that the Mother must have been coaching him to refuse to attend and told the Father as much. The OCL recommends that parenting exchanges take place at school to minimize conflict. When the Children are not at school, the OCL recommends that the Paternal Grandparents (or another third-party) facilitate the exchange.

[31]      The Father says that he has generally been exercising his parenting time, but that there are still many instances when it has been unilaterally cancelled by the Mother. His evidence is that the Mother blocked his parenting time 107 times; with the most recent being during the month of December 2024 such that the Children missed celebrating Christmas with him. To substantiate his claim, the Father relied on his own testimony, informal notes, correspondence between counsel, and correspondence on AppClose. The Father says that he has asked the Mother to consent to expanding his parenting time, but that she will only agree to some extra hours and days as she sees fit.

[32]      While the Mother admits that the Children have sometimes missed parenting time with the Father, she does not know how many times, but disputed it was over one hundred. She says the Children sometimes miss parenting time because of illness, because the Father will not facilitate their extracurricular activities, or because the Children refuse to attend. The Mother acknowledges that the Son has a history of refusing parenting time with the Father, but denies coaching the Son to do so; she says that she actively encourages the Children to spend time with him. The Paternal Grandparents themselves admitted that they never heard the Mother discourage the Son from attending parenting time, though they both added that she never encouraged him either. The Mother describes the Son as “shaking and crying” out of fear when he refuses to go. This evidence was corroborated by Amber Munroe, a babysitter who sometimes cares for the Children after school. She witnessed the child breaking down emotionally before parenting time, refusing to go, and being coached by the Mother over the phone to attend and telling him that he “had to go.” While the Mother acknowledges that Justice Kumaranayake’s 2022 order cautioned her not to allow the Son to unilaterally dictate parenting time, she also says she will not apply physical force to make him go. The Paternal Grandparents expressed the very same conundrum.

[33]      In terms of communication, the parents have been using AppClose for years. The Father says that he communicates with the Mother as “minimal as possible,” and characterizes the Mother as providing “long responses back,” or “long excuses.” He does not ask the Mother how the Children are doing, preferring to communicate directly with their teachers. He says that he responds to the Mother’s inquiries about the Children promptly unless he deems the Mother to already know his views on a subject, for example, counselling for the Children. He admits that he does not respond to the Mother’s inquiries about the Home, preferring that those go through his counsel (despite the cost to both parties). Overall, the Father says that AppClose “is not an effective form of communication” but failed to propose an alternative.

[34]      The Mother says she was sending the Father photos of the Children at first, but that the Father was not responsive, so she stopped. As of the trial, the Mother says that she communicates with the Father about the Children’s educational and health needs, as well as about issues with the House. The Mother says that she is trying her best but that it is “very difficult” to communicate with the Father because he is still very angry with her for “speaking up about what happened in our marriage,” and because he is “not very communicative.”

[35]      “Family violence” is defined broadly in s. 2(1) of the Divorce Act and in s. 18(1) of the CLRA as conduct by a family member towards another family member that is violent, threatening, or that constitutes a pattern of controlling behaviour; causes that other family member to fear for their own safety or for that of another person; and/or in the case of a child, “the direct or indirect exposure” to such conduct.

[36]      Subsection 16(4) of the Divorce Act and s. 24(4) of the CLRA provides guidance about some of the factors I must take into account when determining the impact of “family violence” on children, including: the nature, seriousness and frequency of the family violence; whether the family violence is directed toward the child; whether the child is directly or indirectly exposed to the family violence; the physical, emotional and psychological harm or risk of harm to the child;  any compromise to the safety of the child or other family members;  whether the family violence causes the child or other family members to fear for their own safety or for that of another person; and any steps taken by the person engaging in the family violence to prevent further family violence from occurring, and improving their ability to care for and meet the needs of the child.

[37]      The Association of Family and Conciliation Court-Ontario’s Parenting Plan Guide summarizes the most current research about the effects of family violence on children:

[38]      The Mother testified to a pattern of violent, coercive, and controlling behaviour throughout the relationship. The Mother said that the first time the Father was violent was on their wedding night, when she refused to have sexual intercourse with him. The Mother testified that the Father grabbed her arm, put it behind her back, pushed her onto the bed, and slapped her when she struggled. The Mother said the incident ended when she fled to the spare room and locked herself inside. The Mother said that the parties’ verbal arguments also began shortly after marriage, and revolved around financial transparency, lack of trust, and extended family dynamics. The Mother testified that when he was angry the Father would shout, clench his fits, furrow his eyebrows, and throw things. The Mother said that the Father would tell her that she talked too much, or to “shut the fuck up.”

[39]      The Mother stated that the Father was financially controlling because he required her to turn over to him all her earnings during the marriage, and controlled access to all the funds (even for small items like personal hygiene products). The Mother testified that she became entirely financially dependent on the Father in 2016, when her government benefits ran out. That year, the Father became resentful when her creditors launched legal proceedings against her. He persuaded her to declare bankruptcy; she agreed because she trusted the Father to provide for her and the Son. However, after the bankruptcy, she had poor credit such that all the credit cards and loans were in the Father’s name, which made her more vulnerable and dependent on him.

[40]      The Mother said that there was another shift in the relationship after the birth of the Son. The Mother testified that the Father became more and more angry about the lack of intimacy in the relationship, accusing her of making excuses and pressuring her to have sexual intercourse with him. The Mother said that sometimes the Father would pull her hair and throw her on the bed, and that she would eventually agree to sexual intercourse in order “to get it over with.” She admitted that she did not tell anyone else about the abuse during the marriage because she did not want to create “bigger issues.” The Mother said that in 2016 she told the Father that she would not continue in the marriage unless he agreed to attend marriage counselling.

[41]      The Mother said that she left the Home shortly after the Daughter was born in 2019 because she was scared about how the Father might react to the birth; she was worried that the Father would demand sexual intercourse again. After spending a few days in a shelter, the Mother went back to the Father because he convinced her that she was “in [her] head too much,” that it was important for the Children to grow up in an intact family, and because things would change. The Mother reconciled with the Father after he agreed to try Catholic marriage counselling. At first, the Mother saw a change in the Father’s behaviour and was hopeful. She said that they were still getting into arguments, but that the Father would only raise his voice, and was not shoving her or pulling her hair anymore. He was being more respectful about her boundaries around intimacy and helping around the house.

[42]      This honeymoon period did not last very long. The Mother says that the relationship took a turn for the worse after she found out that the Father had accrued large debts during the marriage, and was going to enter a consumer proposal to pay them off. The Mother says that it was also around this time that the Son started to make allegations of inappropriate touching by the Father. The Mother said that she was reluctant to discuss the Son’s disclosures with the Father because things were going relatively well, and she knew that the disclosures would anger him.

[43]      Instead, the Mother reported the Son’s disclosures to PCAS, who in turn informed the police, and who eventually interviewed the Father. The Son finally admitted that he had not told his Mother the truth, the Father took a polygraph test, and the allegations of abuse were not verified. No charges were laid. The Mother said that the Father’s tone with her changed afterwards—he began accusing her of siding with the Son over him. He started to threaten the Mother that he would kill her or burn the Home down before letting her take the Children or a penny from him. The Mother said that she became scared that he might become physically violent again.

[44]      On May 6, 2020, the Mother said that she approached the Father about taking a “break” and proposed that he move in with the Paternal Grandparents for awhile, in order to reduce the anger and tension in the household. The Mother says that the Father became angry, told her to “shut the fuck up,” grabbed a sponge and threw it at her, walked towards her with clenched fists, and contacted the side of her head with his left hand. The Mother says that she screamed, which prompted the Son to ask, “Mommy, are you okay?” The Mother said that she told the Father she was calling the police because she had promised herself that she would not let the Children witness IPV. She said, the Father responded, “I am leaving anyway, you stupid bitch,” and never returned. The Father was charged with assaulting and threatening the Mother in relation to these incidents, and the charges were ultimately withdrawn by the Crown in June of 2021.

[45]      The PCAS became involved with the family on a voluntary basis in May 2020 because of “concern of risk of emotional harm to [the Children] due to exposure to adult conflict.” The PCAS remained involved with the family until November 2020.

[46]      In 2023, the Mother made further complaints to the police about sexual assaults dating back to the marriage. She explained that she came forward to the police so long after-the-fact because she was processing her experiences through therapy, and because she wanted to empower other women to speak out about sexual abuse in intimate relationships. She expressed regret about not speaking up sooner. In May 2023, the Father was charged with four counts of sexual assault and one count of assault, related to incidents alleged to have occurred between October 2016 and June 2019. The Father was later charged with five counts of failing to comply with his bail conditions after the Mother said that she saw him driving his car near the Home. The Father was acquitted of the 2023 charges after a trial in the Ontario Court of Justice in November 2024. The Mother said that the criminal trial focused on specific incidents during the marriage and that she found the whole process “very difficult” and “triggering.” Even though the Father was acquitted, the Mother says that she took comfort in the trial judge’s reasons and the fact that she was found to be a credible witness. 

[47]      The Father denies ever being psychologically, sexually, or physically abusive to the Mother or Children. He accuses the Mother of fabricating the allegations of IPV, and then weaponizing the criminal law and child welfare processes to take exclusive possession of the Home, and gatekeep his access to the Children. The Father stresses that the criminal trial “vindicated” him such that there is no factual basis upon which to conclude that the IPV occurred as alleged by the Mother.

[48]      As an analytical matter, I disagree. The criminal charges are not determinative of whether family violence occurred within the meaning of the Divorce Act.  This is because the criminal trial involved an entirely different inquiry to the one before this court. The criminal court was tasked with deciding whether the Crown had proven beyond a reasonable doubt that the Father sexually assaulted the Mother on the dates particularized in the Indictment. The burden was on the Crown and the standard of proof was high to protect against the possibility of a wrongful conviction. In a parenting case, the parent alleging family violence as defined in the Divorce Act has the onus of proving it on a balance of probabilities. The burden is on the litigant and the standard is relatively low because it is important that the court have all the information relevant to the children’s best interests. In short, the fact that an accused might have been acquitted of charges related to specific incidents in a marriage, is not dispositive as to whether family violence occurred, what that violence might have entailed, or its ultimate impact on the family dynamics. Moreover, I would stress that family court judges must also go beyond simply deciding whether family violence occurred during the marriage, to consider how it ultimately impacts the children’s needs and their best interests. This is precisely why Parliament directs family courts to consider not only the nature of the violence, but also the child’s exposure to it, the relative safety of the different family members and their fears, and any steps they have taken to prevent and respond to it.[15]

[49]      On a balance of probabilities, I find that the family violence generally occurred as the Mother described. First, and crucially, the Mother was not challenged in cross-examination on her account of the violent events during the marriage. While the Father denied abusing the Mother in his evidence in chief, his counsel never put to the Mother in cross-examination that she had fabricated the allegations. Nor did counsel challenge her on the specifics of any of the alleged assaults, or her overall narrative about the cycles of IPV. The Father himself admitted in cross-examination that the Mother has never been found to have fabricated the allegations against him, including in the criminal trial. Indeed, her narrative is internally consistent and has not changed over time.

[50]      Second, the testimony of the Mother’s therapist, Laura Sandor, corroborated her account. While I refused to qualify the counsellor as an expert witness on trauma, I found her to be a credible and reliable witness as to her observations of the Mother and the clinical impressions she developed as a result. Ms. Sandor testified that the objective of the Mother’s counselling was to deal with her heightened stress and anxiety due to reported sexual abuse during her marriage. Under cross-examination, Ms. Sandor maintained that the Mother’s emotional presentation during their therapy sessions was consistent with having experienced psychological abuse. For example, she pointed out that the Mother experienced flashbacks and nightmares about the abuse, that her fears were interfering with her day-to-day responsibilities, and that she would exhibit emotional distress when discussing the abuse or related court proceedings. While Ms. Sandor conceded that it was “possible” that the Mother was lying about the abuse, she said it would be very difficult for the Mother to convincingly pretend to have been abused over such a long period of time.

[51]      Third, I find that the Mother’s account of financial abuse was corroborated by her brother’s evidence (the Maternal Uncle). While the Maternal Uncle did not witness any violence or abuse, he testified that he was concerned when, after 2016, the Mother began to ask him for small loans for necessities, including items for the Children. He testified: “It is strange to see your sister who had money and made decisions, not having that anymore…not having that freedom.”

[52]      Fourth, I find the Son’s behavior since separation to be consistent with a child who has witnessed violence. At trial, the OCL investigator testified that the Son disclosed witnessing IPV, “including an incident where his father pushed his mother.” He has also heard the Paternal Grandparents say negative things about the Mother which upsets him. The OCL investigator testified that the Son’s “perception and belief and reality about the family dynamics” cannot be ignored. The OCL investigator states the following regarding the Son’s exposure to violence:

[53]      Finally, key aspects of the Mother’s description of the cycle of violence and pattern of coercion and control were corroborated by the Father himself. The Father admitted that the parents had a rocky relationship, with a history of separating and reconciling. The first separation was around the time of the Mother’s bankruptcy in 2016. The Father said that the parties went to marriage counselling between 2016 and 2018, and that things got a bit better. He said that the parties separated again after the Daughter’s birth in 2019, but that the Mother was open to reconciling and came back home. They continued to fight throughout 2019 and 2020, until the Father was criminally charged and removed from the Home. The Father admits that the Mother always wanted full financial transparency in their relationship but he was never fully transparent with her. He admits to controlling the finances.

[54]      Having found that IPV occurred during the relationship, I now turn to its impact on the family dynamics and, ultimately, the Children. IPV has clearly had an impact on the parents and their parenting dynamic. Regarding the Mother, the OCL states that the Mother may, “face significant challenges in her parenting and ability to co-parent effectively,” because of “trauma responses such as hypervigilance,” and “overprotectiveness or difficulty relaxing in interactions involving the children or the other parent.” The OCL also noted that the lack of trust can hinder the Mother’s “ability to engage in open and cooperative co-parenting, as she may struggle to feel safe or confident in the other parent's intentions or behaviour.”

[55]      The Mother’s testimony shows that she remains hyper-vigilant when it comes to the Father, for example, by refusing even-moderate increases in his parenting time without a court order, and refusing parenting time when the children have minor ailments. On the stand, the Mother maintained that both Children continue to complain about inappropriate touching by the Father. She described the situation as “beyond my comprehension as a parent.” She testified that she accepts the findings from various investigations which did not verify a risk of child abuse, but maintains that the parents need “some kind of guidance” to “understand why [the Son] is saying this,” and to “assist with transitions.” While there is no evidence that the Mother has coached the Children into making disclosures about abuse by the Father, it is hard to know the Children’s motivations for making these statements. It may be that the Mother’s own dynamic with the Children—her experiences of sexual violence and associated hypervigilance, along with their desire to protect her—lay at the core.

[56]      The Mother acknowledges that she has found it hard to cultivate a positive relationship with the Father because he refuses to acknowledge or take responsibility for the IPV that she and the Children experienced. She is sometimes afraid of him—like when she has seen him driving near the Home—but acknowledges that there have been no further incidents of physical or sexual violence since 2020. The Mother articulated the steps she has taken to address the trauma arising from the relationship. Because of her therapy with Ms. Sandor, the Mother says that she is now better positioned to manage her fears and ensure that the Children have a relationship with the Father. Ms. Sandor stated that she has been “impressed” with the progress the Mother has made, because she is now able to process her “automatic negative thoughts” without becoming emotionally overwhelmed. Ms. Sandor testified that the Mother is now more focused on the future than the past. Still, as late as December 2024, the Mother was texting the Father, “There is a special place in hell for people like you,” after he again refused counselling for the Children.

[57]      In contrast to the Mother, the Father denies the IPV and has not accepted any responsibility for the dynamics in the family. Despite admitting that the parties argued and separated multiple times during their marriage, the Father refuses to accept any role whatsoever in the breakdown of their relationship. The OCL noted that during his interview, the Father blamed the Mother for his actions, stating that she was provoking him. Perhaps unsurprisingly, then, the Father showed no insight into how his violence might have caused or contributed to the Mother’s anxieties post-separation, including some of her hyper-vigilant behaviors. Indeed, his pleadings are littered with statements blaming and demonizing the Mother for his limited parenting role. The OCL arrived at the same conclusion as me about the Father, adding that, “his avoidance of parenting responsibilities, driven by fear of being investigated, raises concerns about his ability to provide consistent and reliable support for the children.” The OCL highlighted the Father’s refusal to consent to therapy for the Children as showing, “a concerning lack of insight into the potential long-term effects of IPV and parental conflict on their development.” In her evidence before me, the OCL investigator testified that the Father showed a lack of “accountability for his own actions,” choosing instead to blame the court system as being “biased against Fathers.” When asked in cross-examination whether the Father could have been “provoked” by the Mother into behaving in certain ways, the OCL investigator testified that, “ultimately you are responsible for your own actions.”

[58]      The OCL recommends that the Mother continue with counselling, and to enroll in “Family Transitions Triple P” to assist her with addressing her own parenting dynamics with the Children. The Father should complete the “Caring Dads” program, which is geared towards men whose relationship with their children or children’s mother is “problematic.” The OCL also recommends that the parents work with a parenting coach once the Father has completed the Caring Dads Program. The parenting coach would “provide guidance to the unique family dynamics, addressing challenges such as communication, discipline, and managing conflict.”

[59]      As discussed, the Son witnessed at least one incident of physical violence in the Home during the marriage. He was interviewed by the police, child welfare agencies, and the OCL about it, and has been exposed to parental conflict post-separation. As a result, the Son has been attached to and overly protective of his Mother, anxious around parenting transitions, fearful of his Father at times, and ultimately refused parenting time with his Father multiple times. The OCL investigator states that, “[w]hile he does not articulate specific reasons for occasional reluctance to visit his father, [the Son’s] responses suggest emotional hesitancy in fully expressing his needs in that environment.” The OCL Investigator also notes that the Son has expressed some fear when the Father raises his voice, and that his hesitation to communicate openly with the Father is indicative of “emotional discomfort.” The fact that the Son could not clearly articulate to the OCL investigator his reasons for his refusal of parenting time shows that he has not developed any insight into what he has experienced. The OCL recommended that the Son be provided counselling to address his fears and promote emotional resiliency. The OCL did not recommend counselling for the Daughter at present, but did not rule it out in the future.

[60]      In general, the Children are happy and healthy, do not have any diagnosed mental or physical disabilities, and are doing well in school. They have needs in two areas: therapeutic interventions, and extra-curricular activities.

[61]      The Mother notes that numerous professionals, including their pediatrician, PCAS, and the OCL have all recommended counselling for the Son. The Mother testified that she has been trying to implement counselling for the Son since separation (and, more recently, the Daughter as well). She said that the Father gets angry when she brings it up, describing him as “closed off about the whole situation.” The Father’s reasons for refusing to consent have morphed over time: first, they were financial; later, he was worried about “alienation”; whereas, at trial, he voiced concerns about qualifications and training of the various counsellors proposed by the Mother.

[62]      After the OCL recommended therapy for the Son in its January 2025 report, the Mother raised the matter again with the Father via AppClose. He admitted that he ignored the Mother’s messages because they had “already talked about it and she knew my position.” This shows that the Father is rigid in his decision-making, and not able to have productive discussions with the Mother in the face of new or evolving information about the Children’s needs. As of trial, the Father had still not provided his consent to counselling for the Son. He testified that it is simply not necessary because the Children are “normal” and happy in his care. The Father’s explanations show that he does not view his Children’s life experiences wholistically or realistically.

[63]      The Mother points to a similar pattern with extracurriculars. The Mother wants the Children to have developmentally-appropriate childhood experiences—like playing in “Little League” and learning to swim. At first, she did not enroll them because the Father refused to consent. Again, his excuses evolved over time. First, they were financial, and later, it was because the activities occur during his parenting time, which would take away from it. Having made his decision, he refused to have any further communication about it. As a result, the Mother incurred expenses for swimming and sports, without making a claim for retroactive contributions, and withheld the Son from the Father’s parenting time if he had an extracurricular activity that conflicted with it.  While the Mother’s self-help measures cannot be condoned, the Father’s refusal to consent to extracurricular activities shows his inability to prioritize the Children’s best interests over his own resentment of the Mother.

[64]      The OCL describes the Son as “articulate, bright, and actively engaged in discussions about his family dynamics, daily routines, and emotional experiences.” He loves school, has lots of friends, and is respectful and kind. The Son has a close relationship with the Mother, his sister, and his extended family. The Son appreciates aspects about his relationship with both parents but prefers living with his Mother because he feels safe and well-cared for by her. He worries about leaving his current school because he loves it and does not want to start over. The Son’s three wishes for the future are that his family reunite, that his parents do not fight, and that his Mother get a job to improve their financial situation. The OCL’s clinical impression is that the Son craves consistency and routine, along with financial and family stability.

[65]      The OCL Report describes the Daughter as enjoying school, being helpful at home, and playing with her family and friends. The Daughter is sad that her parents are not together anymore and sometimes feels “caught in the middle,” but generally values time spent with both. The Daughter would like to spend one more evening a week with her Father and wishes her Mother could visit them at her Paternal Grandparent’s house. The OCL’s clinical impression is that the Daughter craves consistency and connection with both her parents despite their challenges.

[66]      The most salient feature of the Children’s circumstances is their early exposure to IPV, and their ongoing exposure to family conflict. Based on my analysis of the statutory factors, I find that it is in the Children’s best interests that:

[67]      I now turn to determining the appropriate parenting orders considering the Children’s best interests.

[68]      There is very little written about restorative justice in family law, let alone an agreed-upon definition.[16] Fundamentally, restorative justice is about mutual responsibility and interdependence within relationships.[17] The starting premise is that individuals are responsible for how their actions impact others and the larger whole of which they are a part (i.e. their family, the community, and our society).[18] Restorative justice assesses actions not only based on their impact on individuals, but also based on their impact on social units as a whole.[19] Each individual is responsible for the well-being of the whole because the parts of the whole are interdependent; harm to one is harm to all, and good for one is good for all.[20]

[69]      In criminal law, the federal government defines restorative justice as “an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for harm to communicate about and address their needs in the aftermath of a crime.”[21] Bearing in mind the fundamental nature of restorative justice, the federal government’s definition, and the statutory goals of the Divorce Act, I would define restorative justice in family law as an approach to justice that aims to restore family relationships to the extent necessary to meet the children’s best interests in the aftermath of family violence.

[70]      Having defined restorative justice, I turn next to what it entails. In general, restorative justice is organized around the values of respect, responsibility, and peacefulness, with some sort of encounter at a procedural level that is designed to repair and transform.[22] The literature highlights how restorative justice includes both justice processes (generally, non-adversarial) and justice outcomes (generally, recovery-focused). My focus here is on restorative justice outcomes rather than processes because this is more consistent with my role as a trier of fact. For example, while I can imagine ways of incorporating restorative justice processes into family case conferences, we were well-beyond that point by the time the parents appeared before me at trial.

[71]      Moreover, while restorative justice processes—like criminal law diversion programs, or sentencing circles—are generally predicated on the perpetrator admitting to wrongdoing, this is unrealistic in the context of a contested family law trial. However, after the trial is over, the perpetrator’s denial of the abuse is not a complete bar to the pursuit of restorative outcomes. This is because the trial itself serves a truth-seeking function. While findings of fact made by a trial judge cannot replace a perpetrator’s own acknowledgement or apology, they can validate the survivor’s experiences and offer a lens through which the perpetrator is able to re-evaluate their past conduct and ultimately take responsibility for it. While I do not favour ordering hollow apologies, final orders can creates the conditions under which the perpetrator is able to move towards acknowledgment and incentivize the perpetrator to take concrete action to repair the harm they have caused (for example, by requiring family reunification therapy before beginning parenting time, by tying expansion of parenting time to engagement in therapeutic interventions, or by requiring the parents to use a parenting coordinator to resolve disputes). In this way, focusing on restorative outcomes may ultimately lead to parents to adopt restorative processes in the future when confronting decisions or disagreements about their children.

[72]      Having justified my focus on restorative outcomes, I now turn to articulating them. Unlike other approaches that may focus on assigning guilt or blameworthiness, restorative justice focuses on the following outcomes:

[73]      When making parenting orders, it is appropriate for courts to focus on restorative justice outcomes because of the widespread and insidious nature of IPV, and its ubiquity within family units. This focus meshes with the reality that most families with a history of IPV will maintain contact with one another after dissolution of the family unit, and that doing so is usually in the children’s best interests. By focusing on parenting orders that restore dignity, trust, emotional resilience and peace within the family unit, courts are positioning parents to meet their children’s evolving needs into the future.

[74]      I would also note that focusing on restorative justice outcomes is an antidote to stereotypical reasoning about the nature of IPV. A restorative approach calls upon judges to delve deeply into the dynamics and patterns that underpinned the violent relationship and isolate how those dynamics and patterns have impacted the parents and children. It calls upon judges to acknowledge that IPV occurs on a spectrum and may include forms of violence for which there is no criminal sanction or tortious remedy (for example, financial abuse, or name-calling). It requires judges to isolate how IPV impacts people differently depending on their own role within the family, and their social and economic circumstances. This depth of analysis forces courts to move beyond an episodic approach and the binary victim-perpetrator dichotomy to isolate the broader family and social dynamics at play. These family dynamics may include, for example, coercive and controlling behaviour by the perpetrator, hyper-vigilance on the part of the survivor, and heightened anxiety in the children. The social dynamics may include socialization of males and females, prescribed gender roles, power differences in social and economic structures, and other issues of oppression.[24] By highlighting the social structures that perpetuate IPV, restorative justice in family law may offer a pathway towards transformative justice, or social change through a deeper understanding of how violence manifests itself in intimate partner relationships and families.[25]

[75]      Finally, I am mindful that, while restorative justice is gaining traction as a response to sexual violence in the community, it has historically been seen as incompatible with family violence because of the inherent and ongoing power imbalance present in violent intimate partner relationships.[26] Indeed, one can imagine that a restorative  process would have to be alive to the very real possibility that the process itself could become another site for coercive and controlling behaviour. That is why restorative justice approaches will generally not be appropriate in cases where there is a history of serious violence, where the violence is ongoing, or where there are ongoing risks to victims, children or the broader community.[27] Restorative justice will be best suited to situations of IPV that fall at the less extreme end of the spectrum or where the incidents of IPV have de-escalated since the marriage. Even in cases where there is a risk of ongoing psychological or emotional harm because of past trauma or ongoing conflict, a focus on restorative outcomes may offer more effective protections than, say, a restraining order backed by police enforcement.[28]

[76]      I would award the Mother sole decision-making responsibility in all domains (health, education, childcare, religion), save and except in relation to extracurricular activities. In relation to extra-curricular activities, the Father shall have sole decision-making authority.

[77]      Foremost, allowing the Mother to make most of the decisions is in the Children’s best interests because they are doing well in her care. The OCL found the Children to be happy, respectful, and well-liked by their peers. Even the Father admitted that the Mother has generally made good decisions and that the Children are well looked after. The Children need and crave stability which favours maintaining the status quo of the Mother making most major decisions for them. The Children are bonded to the Mother, identify her as their primary caregiver, and feel safe in her care. On the other hand, the Father has not always made child-focused decisions, most notably, by refusing to consent to counselling for the Son or extracurricular activities during his parenting time. The Mother’s main challenge is the economic precarity of her current situation. That said, the OCL noted that the Mother has shown resilience and adaptability in the face of economic challenges, and consistently prioritized the Children’s needs. For example, she has obtained government subsidies to enroll them in extracurricular activities when the Father would not consent to them and found low-cost options when the Father raised concerns about the cost of counselling.

[78]      Second, granting the Mother decision-making in most areas will minimize the Children’s exposure to ongoing family conflict because it will minimize the parent’s need to communicate. While the OCL recommended an information sharing protocol, along with a requirement for the Mother to seek the Father’s input before making decisions, I am weary of imposing obligations on the parties to communicate further before decisions are made. Given the Father’s continued allegations of informational gatekeeping by the Mother, it is best that the Father obtain information about the Children directly from third parties. This will force him to become more involved in their day-to-day lives. To facilitate this, the Mother will provide the Father with contact information pertaining to all medical professionals, schools, and professional services being used by the Children, and sign any necessary consents for the Father to receive information directly.

[79]      Finally, I would grant the Father sole decision-making in relation to the Children’s extracurricular activities (i.e. sports, extra lessons, tutoring, and optional school programs, but not childcare or religious programming). This will allow the Father to select activities that accommodate his work schedule and which he can participate in with them. This is consistent with a restorative justice approach because it allows the Father a pathway to build trust with the other family members in terms of his ability to make decisions and cooperate with the Mother for the benefit of the Children. Over time, after engaging in the further therapeutic interventions I order below, it may be that the Children’s leisure activities become a site for time-limited, positive child-focused interactions between all members of the family unit, provided they take place in a neutral, public location where everyone feels safe.

[80]      His work schedule permitting, the parties agree that the Father shall have parenting time two weekends in a row every month (Fridays after school to Mondays return to school), and that the weekend parenting time should be extended for PA days. They also agree that, on the weeks that the Father does not have the Children for the weekend, he shall have parenting time from Tuesdays after school to Wednesdays return to school. While the OCL investigator testified that it would be in the best interests for the Children to have alternating weekend parenting time rather than consecutive weekends, I am mindful of the Father’s work schedule and the importance of him continuing to contribute financially to the family. This is also the scheduled to which the Children are accustomed.

[81]      After January 1, 2026, subject to the Father completing at least ten sessions of individual counselling as recommended by the OCL, I would further increase the Father’s regular parenting time to include two mid-week overnights during the weeks in which he does not have weekend parenting time, with exchanges occurring at school. I have the jurisdiction to make this therapeutic counselling order because doing so is in the best interests of the Children.[29] In my view, the focus of the Father’s individual therapy sessions should be on acknowledging harm, working towards an apology to the family, and exploring and committing to further steps to repair the harm to the Mother and the Children. The Father shall provide the therapist with a copy of the OCL report, and this decision to inform their approach.

[82]      In terms of the summer parenting time, both parents ask for two consecutive weeks of parenting time in addition to the regular schedule. Given their young ages, it would be in the Children’s best interests to spend more consistent and extended time with both their parents throughout the summer. This is also the summer schedule recommended by the OCL. A week-about schedule will allow the Father to build his parenting skills and facilitate the Children’s exposure to extended family members. During the summers, the parties shall have week-about parenting time, subject first to the Father completing the “Family Transitions” and “Caring Dads” programs recommended by the OCL.

[83]      The parties shall follow the holiday parenting time as recommended by the OCL (notably, with shared December and March breaks), save and except that there shall be no-court ordered calls. If the Children ask to speak to the other parent, the call shall be facilitated. When the Children have their own devices, they will be free to communicate with each parent directly at their sole discretion.

[84]      To ensure that the Mother consistently facilitates the Father’s parenting time, she must continue to uncover and address the way her traumatic experiences have affected her parenting role. Until the Mother can build up her own emotional resilience, the Children will not be comfortable during transitions or in the Father’s care for extended periods of time. To this end, and consistent with the OCL’s recommendation, the Mother shall complete the “Family Transitions” program and continue with individual counselling with Ms. Sandor (or another qualified therapist). Again, making this order is in the best interests of the children because of its restorative focus. The goal is to try to build the Mother’s parenting capacity so that she can consistently facilitate the Father’s parenting time, which is ultimately in the children’s best interests.

[85]      If the parents wish to make any future changes to the parenting schedule that are not on consent, they shall retain and participate in parent coaching services as recommended by the OCL before bringing any motions before this court. A parenting coach can provide guidance on the unique family dynamics, address challenges such as communication, discipline, and manage conflict. The parenting coach shall be provided with a copy of the OCL Report and this decision to aide in developing a co-parenting plan. Again, requiring the parents to participate in parent coaching is consistent with a restorative approach because it encourages the parties to adopt less adversarial approaches to resolving their problems after their immediate emotional needs have been addressed and met through programs and counselling. The cost of parent coaching will be shared proportionally as a s. 7 expense.

[86]      The parenting exchanges should take place at the school wherever possible. This will minimize the opportunities for family conflict and will allow the Children to see their Father play a deeper role in their day-to-day lives. The exchanges at the school can be facilitated by the parents or their designate (i.e. a babysitter, the Paternal Grandparents, the Maternal Uncle, etc.). While the Mother will likely keep the Children enrolled in before- and after-school care, there is nothing stopping the Father from picking the Children up early from school if he is able to.

[87]      Where exchanges at the school are not possible, I would order that they be facilitated by a neutral third-party at a public location with cameras (i.e. a gas station in between the parties’ homes). I would recommend that the parties ask the Maternal Uncle to facilitate the exchanges since he appears to have respect for both parents, has not been privy to their conflict, and seems generally conflict-averse himself. While the Paternal Grandparents have played an important role in exchanges to date, they are now too enmeshed in the conflict to play a helpful ongoing role.

[88]      I decline to order police enforcement since it risks the Children’s further exposure to police and child welfare authorities.[30] In general, I see police enforcement of parenting orders as anathema to the goals of a restorative approach; they should be avoided unless there are ongoing safety concerns.

[89]      The parties shall limit their contact to parenting issues and continue using AppClose. The parties shall communicate about all other issues—including in relation to the House and this litigation—via counsel. Again, this is important because it is the best way to minimize conflict between the parents.

[90]      The Father asks me to find the Mother in contempt for blocking his court-ordered parenting time over one hundred times.[31] He asks me to order the Mother to pay a fine of $5,000 for each incident of contempt, and that she be imprisoned in the event of non-payment. To find the Mother in contempt, I must be satisfied beyond a reasonable doubt that: (1) the order states clearly and unequivocally what should and should not be done; (2) the Mother had actual knowledge of the order; and (3) the Mother intentionally failed to do what the order required of her.[32]

[91]      Here, I am not prepared to make a contempt order against the Mother. Foremost, there is no cogent evidence that the Mother has intentionally blocked the Father’s parenting time in violation of a court order. At its highest, I find that the Mother has not been particularly effective in managing her hyper-vigilance and the Son’s heightened anxiety around parenting transitions. However, I would assign some blame to the Paternal Grandparents for exposing the Son to conflict, and to the Father for refusing to allow the Son to explore these issues in therapy.

[92]      Finally, I am mindful that a finding of contempt should not be made lightly, especially where it might escalate the conflict, where there are alternatives to making such a finding, and where the children’s best interests favour encouraging professional assistance.[33] Indeed, contempt orders are generally at odds with a restorative approach because they are punitive. A contempt motion might serve a useful purpose where it is structured to compel one parent to meet their role and responsibility within the family unit, or to decrease conflict between the parents. [34]

[93]      That is not the situation before me. Taking the Father’s contempt motion on its face, he seeks to impoverish the Mother and, after she is penniless, to deprive her of a parenting role through a complete loss of liberty. The remedy sought is completely at odds with the Children’s best interests. I also have no trouble concluding that the Father’s rationale for pursuing it is to exert complete financial control over the Mother well into the future. The Father’s contempt motion was a form of litigation abuse because the primary goal was to inflict financial and emotional harm on the Mother. I am also not willing to make an order for make-up parenting time in lieu of a finding of contempt. I agree with the OCL that ordering any make-up time “could potentially lead to increased conflicts between the parties, contrary to fostering a cooperative co-parenting dynamic.”

[94]      The Mother asks for an order restraining the Father from coming within 700 meters of her whereabouts.[35]  To get a restraining order, the Mother must satisfy me that there are reasonable grounds for her to fear for her physical or psychological safety.[36] The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities.[37] However, a restraining order cannot be imposed lightly given the Father’s liberty interest and the potential for imprisonment if the order is breached.[38] So, while I must assess the Mother’s subjective fear, I must only grant the order where that fear has a “legitimate basis.”[39] While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father’s actions or words with the Mother’s fears.[40]

[95]      As of the trial, there was no evidence to ground the Mother’s claim that she has reasonable grounds to fear for her or the Children’s physical or psychological safety because of the Father’s conduct. Her fears are largely based on the cycle of IPV during the marriage, rather than any new incidents. Given that the parties have been separated for over five years with no new incidents of psychological or physical violence, I am not prepared to restrain the Father’s contact through the threat of criminal sanction. I am concerned that doing so may lead to more conflict. Moreover, limiting the parents’ communication to AppClose and ordering that exchanges take place at the school are effective ways to limit the parties’ communication without resorting to a restraining order.

[96]      The Father admits that he has not paid child support since separation. He says that he paid all the carrying costs of the Home, which exceeds the amount owed in support. He says that he did not have enough money to “survive” himself, let alone pay child support, because of legal fees. The Father also says that it would cause him undue hardship to pay any child support until the Home is sold.[41]  He admitted to the OCL investigator that he preferred to make the payments towards the Home rather than pay child support, because he was skeptical that the Mother would use the child support for the benefit of the Children. This is despite there being no evidence that the Mother has ever misappropriated the Father’s funds or spent money on frivolities. Again, the Father’s refusal to pay support is a continuation of his financially controlling behaviour from the marriage.

[97]      The Mother says that because of the Father’s refuses pay child support she has sometimes not had enough money for necessities for the Children, such as baby formula, haircuts, and clothing. Her evidence in this regard was corroborated by the Maternal Uncle, who she went to for money. As of the date of trial, the Father refused to transfer the Mother money directly for the Children’s expenses, preferring to buy the items himself. The Son told the OCL that he was unhappy that the Father insisted on buying his winter boots himself, rather than letting his Mother do so, because the Father did not know which ones he wanted and ended up getting the wrong size.

[98]      To decide this issue, I must answer the following questions:

[99]      I answer each question below.

[100]   The Mother says that the parties separated on May 6, 2020, when the Father was arrested and moved out of the Home. Meanwhile, the Father says that the parties were separated as of November 28, 2019, because they were arguing a lot, sleeping in separate bedrooms, and came to a mutual decision to “call it quits.”

[101]   While there is some evidence to suggest that the parties separated in 2019—including the Mother’s own bankruptcy filings, and letters from counsel—I find that the 2019 separations were temporary. They were consistent with the larger pattern in the relationship of the parties separating and then reconciling again. During 2019, the Father admitted that they were having “rough patches on and off,” that they were seeing a marriage counsellor, and that he “stayed longer” than he should have. Even in his Amended Application, the Father states, “[t]he parties have separated several times throughout their relationship, the last being on May 6, 2020.” I find that the parties separated on a full and final basis, with no chance of reconciliation, only as of May 6, 2020, which is the relevant date for determining retroactive support and equalization.

[102]   For the purposes of calculating support (including s. 7 expenses), the Father asks me to impute $79,000 in annual income to the Mother. He points out that the Mother was working in customer service before marriage, and that she upgraded her skills as a project manager during the marriage. He says that project managers can make good money, and estimates that they can make over $100,000 annually. The Mother resists any income being imputed to her.

[103]   I can impute income to a spouse where the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of the child or the reasonable education or health needs of the spouse.[42] The parties seeking to impute income do not have to show bad faith, rather, the question is whether a spouse is choosing to earn less than they could.[43]

[104]   I start by reviewing the Mother’s work history. The Mother worked on and off while the parties were dating and before the Son’s birth in 2016, earning roughly minimum wage. After the Son’s birth, she stopped working, began upgrading her skills in project management, and started receiving employment insurance. In 2016, she filed for bankruptcy in relation to her student loans and was discharged in 2017. In 2016 and 2017, the Mother received about $15,000 in government benefits annually. In 2017, she underwent surgery and treatment for cancer and became pregnant again. She did not earn any income in 2018. The parents had the Daughter in 2019, and the Mother did not earn any income that year either. In 2020, the year of the pandemic, the Mother started receiving social assistance and remained at home with the Children. During 2020 and 2021, the Mother testified that she was caring for the Children full time and could find neither childcare nor a job because of pandemic restrictions. Her evidence in this regard was not seriously challenged.

[105]   From 2022 through to the trial, I accept the Mother’s evidence that she was still involved in full-time caregiving for the Daughter (who just started full-time school this past year), while also upgrading her education and employment in the field of construction project management. Her efforts to upgrade her skills were “reasonable” because they were recommended to her by an employment agency assisting her with her job search and involved deepening her skillset in her chosen field. This is not a case where the Mother’s educational upgrading was “unrealistic” or in aid of “unproductive career aspirations.”[44]

[106]   Since upgrading her skills, I accept that the Mother has looked for work but was not successful in obtaining employment; she submitted proof of her extensive job search efforts within her field of project management but also in the field of customer service. She has been unsuccessful in her job search over the past year because she has been out of the workforce for nearly ten years, and because she has very little relevant work experience in the field of project management. There is no cogent evidence upon which to find that the Mother was intentionally under-employed or unemployed. I would not impute any income to the Mother for the purposes of calculating retroactive support.

[107]   I now turn to the Mother’s income for the purposes of calculating ongoing support and s. 7 expenses. The Mother is actively looking for work, and I am confident that she will be able to find a job before the next school year, even if that means lowering her standards in terms of what jobs she will accept. Ongoing support payable shall be calculated based on the Mother’s actual income until January 1, 2026. After that date, the Mother’s income shall be imputed at minimum wage. This will provide an appropriate incentive for the Mother to increase her job search efforts, including in customer service or areas outside her field.

[108]   The presumptive rule is that child support must be paid pursuant to the Guidelines.[45] I can only depart from the Guideline amount if I find that the Father would suffer “undue hardship” if he was ordered to pay child support.[46] Here, I reject the Father’s argument that it would cause him undue hardship if I made a child support order in advance of the sale of the Home.

[109]   Foremost, the Father has been consistently and gainfully employed for over 25 years. He has worked for the same employer before, during, and since the marriage. The Father was earning about $85,000 annually when the parents separated, and his income has increased to over $105,000 annually in the years since separation. Moreover, The Father’s most recent Financial Statement dated December 2024 does not support his narrative that he is impecunious. This is because his annual income exceeds his annual expenses by more than $6000, after accounting for paying down his debts. He owns at least $50,000 in assets, including four vehicles with a net value of at least $15,000, and an RRSP worth at least $35,000.

[110]   In terms of his debts, the Father entered a consumer proposal in August 2019, agreeing to pay about $39,000 in relation to various credit card debts accrued during the marriage. However, that loan has since been paid off. Beyond the mortgage and home equity line of credit (which will be paid off after the Home is sold), the Father’s only other significant debt is a $150,000 “loan” that the Father says he received from his parents post-separation. There is no evidence before me that these amounts were used for the benefit of the family; the Paternal Grandparents testified that they loaned the Father money to help him pay his legal fees. As such, the loans from the Paternal Grandparents are not relevant to my determination of “undue hardship.” (As an aside, I find that the Paternal Grandparents’ transfers to the Father were more in the nature of a gift or support rather than a loan, and did not total anywhere near $150,000.[47])

[111]   Consistent with the goals of a restorative approach, it is very important that the Father show that he can abandon his financially controlling ways and begin to build trust by paying regular child support, so that the Children can experience the same standard of living in both of their parent’s homes. To the extent that the Father has been solely responsible for the carrying costs of the Home post-separation, I find that this can be adequately addressed through calculation of appropriate setoffs to the Mother’s equalization claim.

[112]   According to his own calculations, the Father owes about $79,000 in child support arrears based on his actual income. The child support arrears shall be paid out of his share of the equity in the Home when it is sold. Based on his annual income of $105,412, the Father owes $1,538 in ongoing, monthly support. A support deduction order shall issue. The parties shall exchange income information annually to adjust the support payable.

[113]   The Mother does not make a claim for retroactive s. 7 expenses. Going forward, the parents shall share s. 7 expenses proportionally based on their incomes for support purposes (determined above). There is no reason, on the evidence before me, to put a cap on either parents’ annual spending on s. 7 expenses. I trust both parents to be reasonable. The Mother has consistently pursued subsidized or low-cost options for the Children’s special and extraordinary expenses. Based on my parenting order, the Father now has decision-making responsibility in relation to extracurricular activities and can choose lower cost options.

[114]   The Mother makes a claim for retroactive and ongoing spousal support. She says that the Father owes retroactive spousal support arrears of $46,061 to January 1, 2025, based on the parties’ actual incomes and support payable at the mid-range of the Spousal Support Advisory Guidelines.[48] The Father resists paying any support; he says that the Mother cannot show entitlement. If I order support, he says that I should impute income to the Mother, that the quantum of support should be at the low range, and that it should be for a short duration on account of the short marriage.

[115]   The legislation emphasizes that a spousal support order will generally be appropriate where it accomplishes one of the following overarching goals, namely to:

[116]   Against this backdrop, to determine the appropriate support order, I must take into consideration the “condition, means, needs and other circumstances of each spouse,” including: the length of cohabitation, the functions performed by each spouse during co-habitation, and any agreement or arrangement relating to support of either spouse.[50]

[117]   To decide this issue, I must answer the following questions:

[118]   I answer these questions below.

[119]   I have discussed the nature of the parties’ relationship at length already. Some relevant factors for determining spousal support are that:

[120]   I have no trouble concluding that the Mother is entitled to spousal support based on the nature of the parties’ marriage. The parents made a joint decision for the Mother not to go back to work after the Son was born. This is because it did not make financial sense to pay for daycare given the Mother’s modest earnings. The Mother’s role as the primary caregiver to the Children has been beneficial to the Father’s career. It has allowed him to work night shifts, and was detrimental to her own career because she was unable to gain practical experience in her chosen field. Spousal support is also warranted because the Father has purposefully impeded the Mother’s ability to be financially independent by, for example, pressuring her to file for bankruptcy during the marriage, and refusing to pay child or spousal support since then.

[121]   I have already found that the Father has the assets and income to pay retroactive and ongoing support, and that he has overstated the extent of his legal fees and debts post-separation. While the Father has been paying all the expenses for the Home as well as the Mother’s car payments, he was not paying any rent while living with the Paternal Grandparents. The Father could not point to any cases where the court considered criminal legal fees when determining “unconscionability” or income for support purposes. In the one case the Father referred to in his submissions, the judge said this: “I am skeptical of his argument that he should be able to use the claimed legal fees as a deduction in calculating his income for the purposes of this proceeding…”[51]

[122]   In situations where one party has primary residency of the Children and the parties are low-to-mid income earners, spousal support should be in the mid-to-high end of the range.[52] This is because of the significant compensatory claims associated with children, coupled with the needs in the home of the primary care parent. The authors of the user’s guide caution that: “A simple default to the mid-point likely leaves many of these recipients under-compensated.” The SSAG also cautions against judges making definite orders, even in short marriages where the children are young, stating: “These are usually cases with strong compensatory claims. The compensatory claim derives less from the past disadvantage during the marriage and much more from the future disadvantage for the parent with ongoing primary care of the children, as identified in s. 15.2(6)(b) of the Divorce Act.”

[123]   Here, balancing the Mother’s strong compensatory claim against the Father’s contribution to the family expenses post-separation, I would award support at the mid-end of the range from the date of separation until the Home is sold. After the Home is sold, the Father shall pay spousal support at the high-end of the range. The Mother’s income for spousal support purposes will be the same as her income for child support purposes.[53] My spousal support order will be reviewable after January 1, 2028, which will allow both parents sufficient time to obtain stable housing and employment, and settle into their new financial reality.

[124]    “Net family property” is the value of all the property that the spouse owns on the valuation date, after deducting the spouse’s debts and other liabilities, as well as the value of property already owned on the date of the marriage.[54] The spouse whose NFP is lesser of the two NFPs is entitled to receive one-half of the difference between them as an equalization payment.[55] The purpose of the equalization provisions is to “recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise.”[56]

[125]   The parties have agreed on most of the values contained in their most recent NFP statements. The parties’ main asset is the Home and the Father’s pension. There was about $553,000 of equity in the Home as of the date of separation (or $276,500 each).[57]

[126]   To decide this issue, I must answer the following questions:

[127]   I answer these questions below.

[128]   As of November 28, 2019, accepting the Father’s unchallenged evidence that he intends to retire at 65, his pension was valued at $62,000. There is no evidence before me about the value of his pension on May 1, 2020, because he did not obtain a valuation as of that date. On this basis, I am willing to draw an adverse inference against the Father and value his pension at $65,000 as of the date of separation. I refuse to order that his pension be divided at source and not be included in the equalization payment because, unlike the case law he refers to, the Father is able to equalize the pension due to the increased equity in the Home post-separation.[58]

[129]   The Father seeks to deduct from his NFP, his credit card debts ($32,000), and the balance on the home equity line of credit ($55,000).[59] The Mother says including deduction of these debts in the Father’s NFP would be unconscionable because the Father never told her about them during the marriage.[60]

[130]   The person claiming the deduction or exclusion has the onus of proving it on a balance of probabilities.[61] The business records entered at trial establish that the Father incurred these debts during the marriage. The Father testified that he entered a consumer proposal to pay off the credit card debts in 2019. The Father also admitted that he never told the Mother about the debts because he was solely responsible for the family finances, but testified that the money he borrowed was used for household expenses and vacations. The Mother did not proffer any evidence to suggest otherwise, though she was understandably shocked when she learned about the Father’s level of indebtedness. The Father admitted in cross-examination that he was never financially transparent with the Mother.

[131]   I accept that the Father incurred the debts to fund the family’s lifestyle—the parents both recalled fond memories of vacations in Europe and the Caribbean, even after the Mother had stopped working. At the same time, I find that it would be unconscionable for the Mother to become equally responsible for these debts when the Father purposefully hid them from her, never sought her agreement to this level of indebtedness, and was generally financially abusive. On the balance, I would allow the Father to deduct from his NFP $43,000, which is about half of the total amount of his indebtedness on the date of separation.

[132]   Finally, the Father has not proven the existence or value of the $20,000 in furniture and household items that he seeks to exclude as of the date of marriage. He cannot exclude this amount from his NFP.

[133]   The Mother claims an exclusion of roughly $14,000 for a trust account that she held jointly with the Son on the date of marriage. In her evidence at trial, the Mother admitted that she accessed and used the funds for household expenses post-separation. On that basis, the balance in the trust account as of the date of separation should be included in the Mother’s NFP for equalization purposes.

[134]   The Father bought the Home on July 15, 2011, for $492,000. He paid $187,911 as a downpayment. The Father now asks for an unequal division of NFP in that amount of $200,000 in his favour. He says that equalization would be “unconscionable” because of the “circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.”[62]

[135]   Unconscionability does not require unconscionable conduct per se, but rather that equalizing the NFP would lead to an unconscionable result.[63] The unchallenged evidence is that the Father paid the entire downpayment, and that the money came from an inheritance and his own savings. This all happened before the parties were living together. The Mother contributed nothing. I agree that it would be unconscionable for the Father to lose all his pre-marriage savings simply because they were invested into the matrimonial home rather than into some other asset, which would have been excluded from his NFP. The Father is entitled to an unequal division of NFP, with a credit to him of $188,000 as of the date of separation.

[136]   The Father says that he has paid about $105,000 towards the carrying costs of the Home post-separation and asks me to order a set off in that amount.[64] He also makes a claim for occupational rent in the amount of $168,000 (based on rent of $2,900 per month). I accept the Father’s evidence that he has paid nearly all the carrying costs of the Home since separation, and that the Mother has never paid rent.[65]

[137]   Weighing these factors, I am prepared to set off $20,000 in relation to the carrying costs of the Home, which accounts for the amount the Father paid towards the utilities. The Father’s payments towards the mortgage, property taxes, and home insurance do not entitle him to a set-off because those were primarily aimed at preserving his equity in the Home as the sole titleholder.

[138]   I also would set off a further $30,000 to account for the occupational rent that the Mother owes as of the date of the trial.[66] I am not prepared to order occupation rent in the amount of $2,900 per month on the facts of this case. This is because the Father refused to consent to the Mother relocating with the Children into subsidized housing in Burlington in 2023, and refused the Mother’s offers to contribute to the carrying costs of the Home because he was worried that she might “screw” him over. Most importantly, the Mother has remained in the Home precisely because the Father was removed due to criminal charges, and because he refused to pay any support since separation.

[139]   Moreover, the Father did not act like a conventional landlord because he refused to make basic repairs to the Home, which the Mother paid for herself. The Mother testified that she has made about $9,500 in necessary repairs to the Home post-separation: she replaced two kitchen appliances, replaced the furnace, and addressed urgent plumbing and pest issues. The Father admitted that the Mother asked him to cover these expenses and that he refused, testifying that he could not afford to deal with these issues.

[140]   In summary, I would allow the Father to set off a total of $50,000 against the equalization payment to account for expenses related to the Home post-separation and occupation rent.

[141]   The Mother claims that she has an equitable interest in the increased value of the Home from the date of separation until its sale. She says that her contributions and repairs to the Home post-separation justify me granting an equitable remedy. The Father opposes the claim; he says that the Mother cannot demonstrate that he was unjustly enriched because she did not contribute to the downpayment and has never paid the mortgage or carrying costs.

[142]   To decide this issue, I must determine: (1) whether the Father was enriched; (2) whether there was a corresponding deprivation to the Mother; and (3) whether there was a juristic reason for the benefit and corresponding detriment.[67] 

[143]   It is uncontroversial that the Mother made about $10,000 in repairs to the Home post-separation because the Father refused to do so. That said, I do not find that these improvements increased the value of the Home in any significant way because the expert valuator testified that the Home was in “average” condition when she visited it in January 2023. The repairs the Mother made to the Home will not result in an unjust enrichment to the Father when the Home is sold. Indeed, I have already considered the Mother’s contributions towards the Home by ordering her to pay only a modest sum of occupation rent post-separation.

[144]   The Home shall be listed for sale no later than April 1, 2025, with a closing date no earlier than July 30, 2025.

[145]   The Father asks that he be allowed to retrieve his belongings, namely, a couch, bed set, TV, table and chairs, coin collection, etc. prior to the sale of the Home. I refuse to make such an order. First, I am concerned that allowing the Father to return to the Home will breed further conflict. Second, at trial, the Father could not prove the value of any of the items in the Home let alone their continued existence. Third, the Mother and Children have been using the furniture for going on five years, and it would be unduly disruptive to have these items removed at this late stage. Finally, I note that the Father was already allowed to return to the Home once with the police to retrieve his belongings back in May 2020, and again with the Paternal Grandfather in July 2021.

[146]   Pursuant to these reasons, the parties shall endeavour to agree on the terms of the Final Order. The Final Order and appropriate consents shall be sent to my assistant on or before April 4, 2025, at Jasmin.Chhokar@ontario.ca, and uploaded to Case Centre. If the parties are unable to agree on the terms of a Final Order, they shall send their draft orders, supporting Divorce Mate calculations, and comparative NFPs to my assistant on or before April 4, 2025, and upload them to Case Centre.

[147]   The Father was more successful on the property and trust issues, while the Mother was more successful on the parenting and support issues. The parties are encouraged to resolve the issue of costs between themselves. If the parties are not able to agree on the matter of costs, they shall each send to my assistant their costs outlines, any relevant offers to settle, and written costs submissions (maximum 5 pages, double-spaced, 12-point font) on or before April 4, 2025, and upload them to Case Centre.

[148]   The Mother owes outstanding costs from the order of McGee J. dated November 23, 2023, which shall be deducted from any equalization payment owed to the Mother after sale of the Home.

[149]   I remain seized of this matter pending issuance of a Final Order.