Power imbalance between the parties is not conducive to joint decision-making arrangement, court says
It is not in the child’s best interests to put the mother in a position to have to jointly make decisions with the father due to the history of family violence, the Ontario Court of Justice said.
In L.B. v P.E., 2021 ONCJ 114, the parents, who cohabited from June 2013 until April 18, 2015, when the father was criminally charged for assaulting the mother, disagreed about parenting and child support arrangements for their six-year-old son. The child has lived with the mother after the parties separated.
Although she was the respondent, the mother was the party who brought the application to court. She sought sole decision-making responsibility for the child and for the father to have a regular parenting schedule and provide child support, retroactive May 1, 2016.
The applicant father, meanwhile, sought joint decision-making responsibility and equal parenting time with the child and asked for an order for sole decision-making responsibility if the court found that a joint decision-making arrangement was not in the child’s best interest or some decision-making responsibility allocated to him if the order was not granted. The father also asked that no child support be ordered and for the court to dismiss the mother’s claim for retroactive support.
This was not the first time the parties have been involved in litigation due to parenting arrangements. On June 5, 2015, after going several months without seeing his child, the father issued an application for custody of the child to which the mother responded by seeking a custody order, supervised access and a restraining order.
On July 14, 2015, the court granted the father temporary supervised access with the child at Access for Parents and Children in Ontario. The following month, the mother withdrew criminal charges against the father, deposing that after discussions with the father, she wanted to give him another chance to be a good parent for the child.
The father claimed that from August 2015, he had equal parenting time with the child, but the mother started restricting his parenting time in April 2019. The mother denied this and said the father did not exercise his parenting time from April 2019 until June 2019. The parties would have more disagreements on parenting time.
The mother said that her application to the court was a “cry for help” and described the father as abusive, controlling and demanding. She deposed that the family violence took place both during their relationship and after their separation and often happened in the presence of the child. The father, on the other hand, claimed that the mother has fabricated evidence about family violence to marginalize him from the child’s life and destroy his relationship with the child.
The Ontario Court of Justice issued a final parenting order granting the mother final decision-making responsibility for the child and for the child to have his primary residence with the mother. The mother must also inform the father with respect to any major decision regarding the child, but if the parties disagree, the mother will make the final decision.
The court pointed out that its findings of family violence showed that a joint decision-making responsibility order or allocating any decision-making responsibility to the father was not in the child’s best interest.
“There is a power imbalance between the parties,” wrote Justice Stanley B. Sherr. “The father can be controlling and coercive. The mother is submissive with him. A joint decision-making responsibility order, or any allocation of decision-making responsibility to the father would run too high a risk of exposing the mother and the child to family violence and escalated conflict.”
The court also granted the father increased parenting time from alternate weekends to two out of every three weekends and will continue to have overnight parenting time with the child on alternate Wednesdays.
“It was apparent to the court how much the father loves his child,” wrote Justice Sherr. “There was no issue that the child loves the father and that they value their time together… the evidence informs the court that it is in the child’s best interests to increase his parenting time with the father.”
On the issue of retroactive child support, the court found that the mother’s request to start support on May 1, 2016 was appropriate and ordered the father to pay the mother $19,140 for retroactive support up until May 31, 2019. The father was also ordered to pay $480 for child support each month starting June 1, 2019, $528 each month starting January 1, 2020 and $480 each month starting January 1, 2021.
“The father engaged in blameworthy conduct by failing to pay any child support to the mother until July 2019, and only after legal intervention,” Justice Sherr wrote. “Due to the degree of the father’s blameworthy conduct, this case falls within the exception from the general principle that retroactive support should start on the date of effective notice.”
