Court File and Parties

Court File No.: D56106/12

Date: September 29, 2015

Ontario Court of Justice

Between:

GENEVIEVE SANG WEBSTER

Applicant

— AND —

CLAUDIU SUTEU

Respondent

Before: Justice Roselyn Zisman

Heard on: April 20-24, April 27, May 5, July 20-24, July 28 and August 24 and 25, 2015

Reasons for Decision released on: September 29, 2015

Counsel:

• Stephen Gillies and Poroshad Mahdi, for the applicant
• Alex Finlayson, for the respondent

ZISMAN J.

1. Introduction

[1] This is a trial with respect to the applicant's ("father's") Motion to Change the final consent order of Justice Zuker dated June 13, 2012. The father seeks to either set aside the consent order or change the order. It is the Respondent's ("mother's) position that this court does not have the jurisdiction to set aside the consent order or in the alternative, that there has been no material change in circumstances.

[2] Both parties' positions changed during the course of the trial. Initially it was the father's position that he was not asking for a change of custody or joint custody but was seeking to expand access to include overnight access and was seeking incidents of custody specifically to require that the child continue to attend his current pre-school for junior kindergarten, and that the child's medical care be managed by his former paediatrician and his former physiotherapist. In his closing submissions, the father sought joint custody with either a parallel parenting plan or no order for custody and an expanded access schedule that would ultimately result in an equal shared parenting regime.

[3] In the mother's opening trial statement and in the mother's evidence she conceded that she was not requesting that the father's access revert to being supervised in accordance with the consent order of June 13, 2012 but that the father's access should be increased in accordance with the child's developmental age and needs. It was further her position that those needs should be determined by the physician or therapist treating the child for autism and that in the event of a dispute the parties would first attempt to resolve the dispute through a parent co-ordinator and if the dispute was not resolved either party could return to court to resolve the dispute. However, in closing submissions it was the position of the mother that the father had not met the onus on him to prove that there had been a material change in circumstances and therefore that access should revert to the original consent order of June 13, 2012 that is, that the father exercise supervised access for one hour on alternate Saturdays.

[4] The issues to be determined are:

(a) Should the consent order of June 13, 2012 be set aside? If so, what order is in the child's best interests?

(b) Has there been a material change in circumstances? If so, what order is in the child's best interests?

(c) Should the court grant the order with respect to the incidents of custody as requested by the father regarding the child's school and medical care?

2. Background

[5] The parties had a short relationship and never lived together. At the time the parties were dating the father was separated from his wife.

[6] The parties have one child, Dean Webster ("Dean" or "the child") born October 26, 2011. Dean was born with bilateral club feet and required an operation shortly after birth and requires ongoing medical intervention. He developed a kidney reflux condition early on in his life. He has also been diagnosed with autism spectrum disorder ("ASD" or "autism").

[7] The mother is 36 years old and single. She is not working and in receipt of Ontario Works. She is the full-time caregiver of the child.

[8] The father is 41 years old and divorced. He is a trained mechanical engineer but as his qualifications from Romania were not accepted in Canada, he works for a tool and die company and does mechanical design work. He earns about $50,000 per year.

[9] The father was briefly involved prior to the birth of the child. He attended two ultrasound appointments, a few other medical appointments and a genetic counselling appointment with the mother.

[10] After August of 2011 he lost contact with the mother and then did not see the child who was born on October 26, 2011, until his first supervised access visit on November 17, 2012. The reasons for his lack of contact with the mother and his lack of involvement are in dispute.

[11] It is the mother's position that the father did not want a child, that he asked her to have an abortion multiple times, that he threatened to take the child to Romania to be cared for by his mother, that he caused her to give up her residence and then changed his mind about living with her and that the last time she heard from him was in August 2011. The mother moved out of Toronto but never told the father where she moved, when she moved or when she returned to Toronto. She did not advise the father when the child was born.

[12] The father admits that he asked the mother on one occasion to have an abortion as he was concerned about the financial burden of having a child but he regretted it and then apologized. The father denied that he threatened to remove the child to Romania but only suggested that they might go to Romania as his mother was ill. The father produced his cellphone records and emails as proof that he had contacted the mother through her email address and her cellphone through the Fall of 2011 but that she did not respond.

[13] It is not disputed that the mother only began court proceedings as a result of her being required to do so by Toronto Social Services as she was in receipt of Ontario Works.

3. Litigation History

[14] The mother began an Application on February 10, 2012 seeking custody and child support. The father in his answer sought custody or in the alternative joint custody, or in the further alternative access. The father also sought a paternity test.

[15] At the first appearance on April 13, 2012 the parties agreed to the paternity test that the father sought. The test confirmed that the father was the biological parent of the child.

[16] At the case conference on June 13, 2012 the parties and their counsel negotiated a final settlement. The mother was represented by her current counsel Stephen Gillies and the father was represented by Wendy Yee Shin. The parties settled the financial issues and agreed the father pay child support of $447 per month as of June 1, 2012 and that with prior consent they share the child's special extraordinary expenses. The father also agreed to pay costs to the mother of $1,500 in lieu of paying any retroactive child support.

[17] With respect to the parenting issues, the parties agreed that the mother have custody and that the father have access as follows:

(a) Supervised access at a supervised access centre ("APCO") at Bay Street and Davenport Avenue or other location as agreed upon;

(b) Supervised access to occur on alternate Saturdays for one hour;

(c) Other access as agreed upon by the parties;

(d) Supervised access to be expanded to reflect Dean's growth and developmental stages;

(e) Supervised access can be moved to another location or other supervisor as the parties may agree;

(f) The parties through their respective solicitors shall co-operate to have the records of the Registrar General amended to show the father as the child's father at the father's sole expense; and

(g) The father shall have access to medical, education and other like records in regard to the child with the mother's address and contact information redacted.

[18] In April 2013 the father, who at that time was unrepresented, consented to suspend his access due to the fact that the treatment for the child's club feet had regressed and he needed both of his legs to be recast for a minimum of 6 weeks. The father executed Minutes of Settlement to this effect but those Minutes of Settlement were not taken out as an order of the court. Over the next several months the father contacted the mother's counsel to try to arrange the resumption of supervised access.

[19] The father retained his present counsel in November 2013 who corresponded with mother's counsel in order to obtain an agreement for access to resume. There were further delays due to a dispute about the location of the supervised access and the parties were also put on a wait list as by this time their file at APCO had been closed. It was finally arranged that the father's supervised access would resume on February 22, 2014.

[20] The father commenced this Motion to Change and a case conference was scheduled for February 21, 2014.

[21] On February 10, 2014 the mother filed an ex parte motion for a restraining order. Justice Sherr directed that the motion be served on the father and his counsel and adjourned the motion to the next day.

[22] On February 11, 2014, the parties argued the motion. Having only been served that morning, father's counsel was permitted to file a handwritten affidavit that he prepared that day. Justice Spence dismissed the motion. On consent, the parties agreed that the police records with respect to both parties and the child be released with the mother's contact information redacted.

[23] On February 21, 2014 at the case conference, the parties agreed that the father could amend his pleadings to request an order to set aside the order of June 13, 2012 and the subsequent consent suspending access, if necessary. The parties also agreed:

(a) that the father be permitted to contact the Hincks-Dellcrest Centre and have contact with any health professionals who are involved with the family and provide any materials that are filed with the court to Hincks-Dellcrest;

(b) The parties and/or counsel were permitted to received information and documentation from Hincks-Dellcrest concerning either party or the child; and

(c) Either party or counsel were required to exchange any information received from the Hospital for Sick Children about the alleged address change.

[24] On April 23, 2014 the matter was spoken to regarding a motion by the father to expand access. Counsel for the mother sought a motion date in 4 to 6 months for the completion of an assessment as the child had been identified by Hincks-Dellcrest with possible autism. A motion date was set for June 2, 2014 with filing timelines.

[25] On June 3, 2014 Justice Spence released his decision that provided as follows:

(a) Father shall have unsupervised access each Saturday from 10:00 a.m. to 1:00 p.m.;

(b) Access pick up and drop off at APCO or at 31 Division police station;

(c) Father to refrain from giving the child food or drink (other than water) except as specifically authorized by the mother in writing at the time of the scheduled visit;

(d) The mother shall notify the father of the child's medical appointments which the father may attend solely for the purpose of listening to the doctor and asking questions of clarification. He shall not challenge the doctor or engage the mother in argument. The sole purpose of the father attending these appointments is to hear what the doctors have to say about the child's medical issues; and

(e) The father shall follow all other written guidelines provided to him by the mother, as well as information she may wish to convey about possible health issues that may arise for the child during the access visits.

[26] All other relief including a request for the appointment of the Office of the Children's Lawyer by the mother was dismissed. The mother was subsequently ordered to pay costs of $5,364 to be set off from the next 12 months of child support.

[27] A telephone conference call was scheduled as mother's counsel sought clarification with respect to the June 3rd order being a final order. Justice Spence clarified that the order was temporary only.

[28] At a further case conference on August 27, 2014, the parties consented to an order that:

the parties cooperate fully with any assessments and any medical appointments at the Holland Bloorview Children's Rehabilitation Hospital ("Holland Bloorview"), any other appointments regarding the child including, following and cooperating with any testing and process that the medical staff wish to implement including observation of the interaction of the father with the child and receiving information from the father.

[29] The parties were again before the court on December 3, 2014. The assessment by Holland Bloorview had been completed and the child was assessed as having moderate to severe autism. The father wished a further motion for overnight access. The mother rejected Justice Spence's suggestion that that matter be argued as a motion to resolve all issues on a final basis. The case was then adjourned to the trial assignment court and the endorsement noted that, "This case needs to go to trial as quickly as possible as the level of dysfunction is in the extreme."

[30] At the assignment court on January 5, 2015 the parties were directed to file each party's evidence in chief by affidavit with a further 30 minutes to conduct additional direct examination subject to the trial judge's direction and the trial was set for 5 days. Counsel were directed to meet to discuss further means of reducing the time for trial such as agreeing on the evidence, time limits for examinations and joint document briefs. Father's counsel was also required to clarify the relief he was seeking with respect to custody and if he was still seeking to set aside the consent order of June 13, 2012.

[31] At the trial management conference on March 6, 2015 before myself, counsel for the father confirmed that he was not seeking custody, only access but with ancillary orders with respect to incidents of custody and he was also seeking to aside the order of June 13, 2012. Timelines were set for filing affidavits. The parties consented to obtaining the updated records of the children's aid society.

[32] On March 25, 2015 a telephone conference call was necessary as father's counsel was having difficulty arranging to meet in preparation for trial with Dr. Smile and Sarah Duhaine with respect to the assessment of the child at Holland Bloorview despite agreeing that both counsel could be present. Father's counsel was provided with a motion date.

[33] On April 1, 2015 a motion to question both Dr. Smile and Sarah Duhaine was heard. Neither Dr. Smile or Sarah Duhaine nor counsel on their behalf attended and the order requested was made for questioning and also that they produce their records.

[34] The trial commenced as scheduled on April 20th. Due to the unavailability of a witness in the afternoon of April 22nd, the parties and counsel consented to attend before another judge in an attempt to settle the case which ultimately they were not able to do.

[35] On April 27th, during the trial, the parties also consented to a temporary order, on a without prejudice basis to any final order, regarding the child's health care as follows:

a) Both parties shall be permitted to attend and participate in the occupational therapy/behavioural therapy assessment feedback session, subsequent intervention block and any other services provided to the child by Surrey Place Centre as well as all services provided by Toronto ABA and Under the Umbrella;

b) The parties shall be able to receive from or provide to these services any information they wished;

c) Both parties shall receive notice of appointments, information sessions or next steps related to service provided to the child by Surrey Place, Toronto ABA and Under the Umbrella; and

d) Both parties shall co-operate and abide by any protocol or process as may be requested by these services for the conduct of such assessment feedback session, appointments, information sessions or next steps.

[36] Although both parties filed affidavits that comprised their direct examination both the length of the additional examinations and cross-examinations were much more extensive than initially anticipated. As the trial unfolded, it became clear that the complexity of the case and the extent of the number of professionals involved required further trial time than initially envisioned at the assignment court. Unfortunately as the trial could then not proceed on consecutive days new evidence emerged when the trial resumed that also lengthened the trial.

[37] In addition to the affidavits filed by the parties as their direct examinations, the parties filed document briefs containing the child's medical records, children's aid society records, police records, daycare records, supervised access observation notes, the records from the various service providers and correspondence and communications between the parties. In total 60 exhibits were filed.

[38] Father's counsel also filed Notices to Rely on Business Records and a Request to Admit.

4. Evidentiary Issues

[39] At the commencement of the trial, counsel for the father filed a summary of evidentiary issues and his objections to the admissibility of various aspects of the mother's affidavits and the documentary evidence filed on her behalf. The issues were not addressed at the commencement of the trial due to scheduling issues of professional witnesses and it was agreed that counsel would address the issues in their closing submissions. Prior to the closing submission counsel advised that they had been able to agree on various issues. The annotated summary is attached to this decision in the event of any appeal or subsequent review of this decision so that the evidentiary basis of the decision is clear. I will briefly review the general evidentiary issues.

4.1 Hearsay

[40] In the various affidavits filed by the mother she refers to statements made to her by unidentified persons and third parties regarding the services for the child, medical opinions, issues with respect to supervised access and comments about the father. It was agreed that these various statements were hearsay, had no probative value and were not admissible for their truth. The statements that the parties agreed should be deleted are outlined in the summary attached.

[41] The mother also attached to her affidavits various letters from professionals and it was agreed that those letters were admissible as an exception to the hearsay rule as business records. Specifically, it was agreed that a letter from Mary Katharine Lowes, a social worker, was admissible only the basis that it contains statements that the mother made to the worker with respect to her fear of the father that is, the letter is admissible not for the truth of its contents but with respect to the mother's state of mind. However, as the mother removed Ms Lowes from her witness list when father's counsel requested that she produce her notes, I find that the letter does not corroborate the mother's stated fear of the father just because the mother repeated her alleged fear to Ms Lowes. Without the ability to review Ms Lowes' notes or make her available as a witness, there is no way to assess the mother's credibility. Letters from Dr. Khan the mother's family doctor and Dr. Barkin the mother's obstetrician were also admitted on the same basis. Again the mother reported her fears and other information to Dr. Khan. I find that the information the mother provided to Dr. Khan was not proven in this trial. I put no weight on the facts in that letter. Similarly give no weight to the letter from Dr. Barkin indicating the father did not attend any medical appointments with the mother as the evidence at trial contradicted this statement.

4.2 Admissibility of photographs and video of the child produced by the mother

[42] The mother introduced several photographs of the child purporting to show marks and bruises that she alleges occurred while the child was in the care of the father.

[43] The mother also attached to her affidavit of April 6, 2015 a video of the child which purported to provide evidence to the court of the child's behaviour and tantrums.

[44] In order for photographs or video to be admitted into evidence they must:

a) accurately depict facts;

b) there must be an absence of any intention to mislead; and

c) they have to be verified by the photographer or videographer.

[45] Father's counsel initially objected to the admissibility of both the photographs and video but then agreed to their admissibility. However, it was submitted that the same criteria should be considered by the court with respect to the weight to be attached to this evidence and that the court should also consider the purpose for which this evidence was tendered and draw negative inferences from this evidence.

[46] Throughout this proceeding the mother reported to various professionals including the children's aid society that the child returned from access visits with marks and bruises. At various points in her testimony the mother testified that she was not accusing the father of intentionally harming the child but was simply seeking that he provide an explanation of these alleged marks. However, when the father explained that he thought one set of marks was caused by the lack of padding on his car seat (which he immediately rectified), the mother did not accept this explanation. It is therefore apparent that the only possible reason for the mother to introduce these photographs is to bolster her case that the father should not have increased access or that his access should revert to being supervised as a result of either the father's intentional infliction of these injuries or as a result of his lack of vigilance in caring for or supervising the child.

[47] Based on the criteria of admissibility, it was arguable that these photographs could have been ruled inadmissible, but I find that the photographs are relevant with respect to the mother's intention to diminish and interfere with the father's relationship with the child. The photographs are also relevant to the long term effect on the child of the mother's persistence in taking such photographs.

[48] I find that the photographs tendered by the mother do not support her position that the father inflicted these injuries or that they occurred as a result of some negligence by the father while the child was with him. I draw these conclusions from the fact that:

a) the mother only tendered 4 photographs of alleged hundreds she has taken, the photographs tendered are not, except possibly for one the photograph, the photographs that were shown to the professionals;

b) there is no "before" and "after" photographs of the child relating to particular visits;

c) there are no photographs to compare to the mother's testimony that the child does have "normal" cuts, scrapes and bruises but that those are "different" from the one's following the father's visits; and

d) there are also concerns about the timing of the taking of the photographs, evidence that contradicts the mother's testimony that these marks or bruises occurred when the child was in the care of the father, and the lack of production of any photographs with respect to other incidents that the mother reported of alleged marks and bruises to the child when in the care of the father.

[49] With respect to the video, the mother simply attached the video to her affidavit. The mother did not provide any evidence with respect to the context of the short clips on the video. The mother attempted to justify the taking of the video for the child's treatment and that she was told to video the child by Dr. Smile. However, Dr. Smile was never cross-examined on this issue and never shown the video. Erin Yuffe, a behaviour therapist who also assessed the child testified that a video of a child's behaviour can be useful but she was also not shown the video. Therefore, the court did not hear any expert or professional evidence that would have assisted in explaining the behaviours. To the extent that the video shows the child playing quietly and at other times having a tantrum, it provides the court with a very limited observation of the child's behaviour. However, it does not assist with respect to verifying the very extreme behaviours the mother alleges are exhibited by the child.

[50] The photographing and videoing of children for court purposes is troublesome. What message does a child receive when after each visit with the other parent he is examined and photographed? What message does a child receive when instead of comforting him, his parent videos him crying or having a tantrum? The mother is this case was cautioned about taking photographs of the child by SCAN and continued to take such photographs on many occasions. I find that this evidence is not helpful for the purpose tendered by the mother but does reflect on the mother's inability to put the child's needs ahead of her own need to discredit the father.

4.3 Admissibility of literature regarding autistic spectrum disorder

[51] The mother attached to her document brief the following academic literature:

a) Sheila Jennings, "Autism in Children and Parents: Unique Considerations for Family Court Professionals" (2005) 4:3 Family Court Review 582;

b) Daniel Pickar and Robert L. Kaufman, "Parenting Plans for Special Needs Children: Applying a Risk-Assessment Model" (2015) 53:1 Family Court Review 113

c) Margaret Price, "Special Needs and disability in custody cases: the Perfect Storm" (2012) 46:2 Family Law Quarterly 177.

[52] It is submitted by father's s counsel that the only expert qualified with respect to ASD was Dr. Smile and that no expert evidence was tendered by counsel for the mother to provide opinion evidence on the issue of this literature which generally deals with appropriate parenting plans for children with special needs. Dr. Smile was not cross-examined on this literature. It was the evidence of Dr. Smile that it was not her role to provide an opinion about a parenting plan for this child and that she declined to do so when asked by the mother. It is mother's counsel's position that this literature can be considered by a court as a secondary source with legal commentary.

[53] During the trial, I advised counsel that I was not prepared to consider these articles. The issue of an appropriate parenting plan is the pivotal issue in this case and the general comments by professionals are not notorious facts that are so well known that the court should take judicial notice of these articles. A determination of what is in a child's best interests is based on a consideration of the specific needs and circumstances of the particular child before the court. It would be wrong to decide what parenting plan is in this particular child's best interests based on general information about children with autism. The diagnosis of ASD includes the word "spectrum" that is, a continuum. How the needs of this particular child fit on that spectrum and the ability of each parent to meet those needs must be determined by the evidence presented at this trial and should not be influenced by articles expressing general opinions about the type of parenting plans that are generally suitable for children with special needs. As has been said many times by courts, the determination of a child's best interests is based on the unique circumstances of each individual child.

[54] The mother produced in her document brief various pamphlets and information that are not objected to and are admissible for the limited purpose that these are documents the mother obtained and read. The father's counsel submitted that the court should find that the mother has tailored her evidence regarding the child's behaviours based on these pamphlets that is, that she has exaggerated or even made up behaviours that the child has not displayed. I am not prepared to make this finding and rely on the objective evidence of the child's behaviours as witnessed by the neutral professionals.

4.4 The Rule in Browne and Dunn

[55] During the mother's testimony, various objections were made to breaches of the evidentiary rule that is commonly referred to as the rule in Browne and Dunn. It is submitted by father's counsel that the mother's failure to cross-examine various witnesses about substantive issues impacts on her credibility.

[56] It is submitted by mother's counsel the "rule" in Browne and Dunn is flexible and does not require every piece of conflicting evidence to be put to a witness and therefore there was no contravention of the rule by the mother. But if the court finds that the mother did contravene the rule then the father could have testified in reply with respect to these issues It is also submitted that with respect to other non-party witnesses the evidence or omission to cross-examine did not impeach the credibility of those witnesses.

[57] This is an important issue in this case, as it is the father's position that the mother caused various professionals to no longer be involved in the child's care as they were sympathetic to him or shared information with him; whereas the mother alleged that were valid reasons why the professionals were no longer involved or why the mother disagreed with the evidence of these witnesses. The Browne and Dunn issue arose because in the cross-examination of these witnesses the proposed evidence of the mother was not put to these witnesses.

[58] In the case of R. v. Quansah, the Ontario Court of Appeal has recently reviewed and restated the principles relating to the rule in Browne and Dunn as follows:

a) If a party intends to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while in the witness box, to explain any contradictory evidence;

b) The rule is rooted in the following considerations of fairness:

(1) fairness to the witness whose credibility is attacked so that the witness is given an opportunity to explain;

(2) fairness to the party whose witness is impeached so that the party has notice of what aspects of the witness' testimony is being contested and the party can decide whether or what confirmatory evidence to call;

(3) fairness to the trial judge so that she can discharge her function in assessing credibility; and

(4) to ensure that the trial is run efficiently and to avoid having to re-call witnesses;

c) The failure to cross-examine supports an inference that the opposing party accepts the witness' evidence in its entirety or at least on the specific point;

d) Compliance with the rule does not require a party to cross-examine on "every scrap of evidence" but on matters of substance; and

e) The failure to cross-examine on matters of substance impacts the opposing party's credibility.

[59] It is clear from these principles that the failure to cross-examine impacts not just on the credibility of the particular witness, as submitted by mother's counsel, but on the credibility of the opposing party. In this case, the issue of the failure of mother's counsel to cross-examine several witnesses impacts on the mother's credibility and is not related to the credibility of the non-party witnesses. The failure to cross-examine resulted in these third parties not having been given an opportunity to provide their response to the mother's allegations.

[60] I find that it was the mother's obligation to cross-examine the above-noted witnesses on these substantive issues. I find that that the father to the extent possible addressed these issues in his reply evidence. However, to expect the father to recall these witnesses is an unrealistic expectation both with respect to expense and trial time. I find that the mother's failure to afford these witnesses an opportunity to reply to her various allegations negatively impacts on her credibility.

[61] I find that the areas of substance upon which the mother's counsel failed to cross-examine are as follows:

a) Barbara Harvey was the child's physiotherapist assigned to monitor the child's club feet. The mother alleged in her affidavit that she asked that Ms Harvey be removed from caring for Dean because she was inappropriate and shared her personal life with the mother. Ms Harvey was called as a witness by the father and she denied that she shared personal information with the mother. However, when the mother testified she alleged that Ms Harvey was removed because she prescribed the wrong angle of a device the child needed to wear. Ms Harvey was never asked if she had put on the wrong angle and whether she was aware that this was the reason she was removed from the care of the child. This is an important issue in this case, as the father alleged that the mother has mismanaged the treatment of the child's club feet and is also relevant to the issue of the mother's changing health care professionals;

b) Dr. Lindzon was the child's paediatrician. Dr. Lindzon was called by the father and he testified as to meetings with the father and also with respect to his appointments with the mother. It became clear during his evidence that the mother had not shared very critical information and concerns about the child with him. The mother testified that she changed paediatricians in March 2015 to Dr. Flanders because of how difficult it was to obtain an appointment with Dr. Lindzon and how Dr. Flanders had better coverage, if he was not available, from other doctors in his clinic. Dr. Lindzon was not cross-examined on any of these issues. Further, when Dr. Lindzon testified on April 20th, 2015 the father was not aware that the mother had already seen Dr. Flanders in March 2015 and that she had changed paediatricians. This is an important issue in this case as it had been recommended by Dr. Smile that there was a need for consistency and continuity of care for Dean. It is also relevant to the issue of the mother changing health care professionals with whom the father had contact. The mother also testified that the child had significant sleep issues early on and that she told Dr. Lindzon about this but he was never cross-examined on this issue or why any such concerns are not reflected in his notes. The issue of the child's sleep difficulties is relevant and important in this case as the father is requesting overnight access;

c) Karen Stemer is the supervisor of the 'Yes I Can' Preschool and was also called as a witness by the father. There was a recommendation that Dean attend daycare on a full-time basis. The mother testified that only part-time daycare was available but this issue was never fully explored in cross-examination of Ms Stemer; although I find that there was sufficient evidence to find that full-time daycare was available. More importantly, Dean's attendance record from January to April 2015 was tendered as evidence that showed he was absent 14 of a possible 24 days and significantly late 10 times. When the mother testified she disputed the accuracy of the attendance records but no questions were asked of Ms Stemer about those records. The mother chose not to call any evidence with respect to the further attendance records that were entered as an exhibit that not only continued to show a pattern of Dean's lack of attendance at daycare but also that he was present on June 18, 2015. This particular date was relevant as the mother initially testified that she did not attend a feedback session at Surrey Place because Dean was ill but when challenged and shown that he was at daycare, she challenged the time he arrived as being incorrect. This evidence is relevant to the ability of the mother to meet the child's needs to attend daycare and for continuity of care as the mother is now proposing to change the child's schooling;

d) Natalie Sosa is a family service worker with the Children's Aid Society of Toronto that has been involved with the family due to various concerns reported by the mother with respect to the child's marks and bruises. The mother accused Ms Sosa of misinforming SCAN about the number of photographs that she had on her phone of the child relating to alleged marks and bruises. Ms Sosa was not cross-examined about this accusation. This is an important issue in this case, as subsequent to Ms Sosa testifying, the mother complained that Ms Sosa lied in her testimony to the court about this issue, asked that she be removed as the worker assigned to her case and filed a complaint to the Child and Family Service Review Board and yet she never gave Ms Sosa an opportunity to respond to this serious allegation. The issue of the number of photographs the mother took of the child to document marks and bruises to support her allegations and the number of times the mother is inspecting the child is relevant to her overall parenting abilities. The mother's request that Ms Sosa be removed is relevant to the father's position that the mother requires anyone who does not agree with her to be removed from any involvement with her or the child;

e) Erin Yuffe is a behaviour therapist and Christie Raffaele is an occupational therapist. They are both employed by Surrey Place and conducted an assessment of the child. The mother alleged that it was their responsibility to involve the father in the assessment and she further alleged that they will not provide services because of the "legal situation". The mother did not cross-examine either witness with respect to these allegations. This is an important issue in this case as it is alleged by the father that there is a pattern of the mother not informing him of services or assessments for the child and that it is the mother that is continually informing service providers of past issues and that she is the parent that is jeopardizing the child's treatment; and

f) The mother denied telling two different police officers in May 2012 or in February 2014 that she did not fear for her safety. She also denied that she told the police officers in February 2014 that she had a restraining order. However, the notes were admitted into evidence pursuant to a notice pursuant to the Evidence Act and also pursuant to a Request to Admit. The mother did not compel the attendance of the police officers. This is an important issue as it relates to the mother's credibility respecting allegations of domestic violence and the mother's ongoing position that she is fearful of attending jointly with the father for appointments.

[61] I find that it was the mother's obligation to cross-examine the above-noted witnesses on these substantive issues. I find that that the father to the extent possible addressed these issues in his reply evidence. However, to expect the father to recall these witnesses is an unrealistic expectation both with respect to expense and trial time. I find that the mother's failure to afford these witnesses an opportunity to reply to her various allegations negatively impacts on her credibility.

[62] I agree with the submissions of father's counsel that the failure to permit the witnesses to respond to the mother's allegations is supportive of the mother's pattern of behaviour namely, that any service provider who is willing to share information or who is sympathetic to the father is no longer involved in the case, that the mother questions the truthfulness of any service provider who is critical of the mother and that the mother's allegations against the father are exaggerated.

4.5 Credibility issues

[63] As in cases such as this where there is high conflict and there are allegations by the parties against each other and many contradictions between versions of events, the court must assess the credibility of the parties and their respective witnesses. Although I will detail specific issues regarding credibility in my review of evidence, I wish to generally outline my findings of credibility.

[64] The mother would not concede anything positive about the father. The mother testified that she could not attend appointments with the father or would need to speak to service providers before they met the father as the father would "trash" her. Both the mother and maternal grandmother testified that they had to "crash" an appointment that Dr. Flanders, the new paediatrician, set up to meet with the father so that they could hear what he said and ensure he did not "trash" the mother. But none of the professionals who testified stated that the father said anything negative about the mother rather he was only trying to obtain information about his son. On the other hand, the mother went out of her way to portray the father in a negative light to almost every professional involved in the child's care.

[65] In many instances I found that the mother exaggerated, was inconsistent, nonresponsive, and contradicted the evidence of neutral professional witnesses and of the written reports. Where there is a discrepancy between the evidence of the mother and any neutral professional witnesses or statements in any written medical, police or therapist report I accept that evidence over the mother's evidence.

[66] Although I expected the maternal grandmother, Vivienne Sang to be supportive of the mother, she tended to exaggerate her evidence in the hope of bolstering the mother's case. She seemed to be aware of evidence especially with respect to the society worker Ms Sosa, despite the existence of an order excluding witnesses. Further after she testified she remained in the courtroom and had to be admonished not to gesture to the mother during her testimony.

[67] The father presented as a caring and concerned parent who despite all of the obstacles the mother has put in his way has persevered to maintain a relationship with his son. I find that where there is a contradiction between his evidence and the evidence of either the mother or the maternal grandmother, the father's evidence is to be preferred.

[68] I also found credible the evidence of the father's former spouse Marinela Muscan who testified as to the father's character. She candidly admitted that she acted inappropriately during one access exchange during an ophthalmologist appointment. The father's landlord also testified with respect to his character and his observations of the father and child; his credibility was not impeached in any way.

[69] In view of the mother's allegation that Natalie Sosa lied in court, I find that is incumbent to comment on Ms Sosa's testimony and the reliability of her case notes that were entered as an exhibit on consent. I find that Ms Sosa's evidence and recollection of events as documented in her case notes is an accurate depiction of the mother's behaviour and statements. I find that she professionally followed up on the mother's allegations of marks and bruises on the child. I found Ms Sousa to be a credible witness and with respect to any contradictions between her evidence and that of the mother's evidence I prefer her evidence.

[70] With respect to the mother's witnesses, the evidence of Kate Mitchell a social worker at the Geneva Centre for Autism was particularly concerning in its lack of objectivity and in the many discrepancies in her notes. I find that instead of providing neutral and objective evidence she became an ally and advocate for the mother and that she exceeded her role as in intake and family support worker. She outlined her role as being to help parents review available supports, make appropriate referrals for services, assist with funding applications and provide and help parents understand ASD and how to deal with it. She unfairly gave father's counsel only two page of notes from her file but provided mother's counsel with her complete file. She made bald statements of the father's lack of understanding or acceptance that Dean had ASD based on an acceptance of the mother's versions of events and based on her limited contact with the father. When it was pointed out that there was nothing in her notes of any concerns about the father, she testified that her notes were only a summary of what occurred and that she based this conclusion on her impression of the father. She concluded that the mother should be fearful of the father and not be required to sit in the same room as him without any objective evidence. She perpetuated an impression that the father was to be feared by requiring that a co-worker be present during her two interviews with the father. She reported historic concerns to the children's aid society about the father prior to even meeting him. She then refused to accept the results of Ms Sosa's investigation that there were no protection concerns and persisted in advocating for mother. She did not provide similar services or information to the father as she did to the mother and if she sincerely believed that the father needed to more fully understand ASD then she failed her professional duties to provide him with appropriate services, referrals and information. I put no weight on any of her evidence about her observations or opinions about the parties.

5. Summary of relevant evidence regarding the child's special needs

[71] As much of the evidence related to the child's medical needs and the impact of those needs on each parent's ability to meet those needs, I will review Dean's various medical needs before relating those needs to the issues before the court. In view of the concerns raised about the mother's credibility, I rely on the medical reports and evidence of the treating professionals where there is a contradiction between that evidence and the evidence of the mother.

5.1 Dean's club feet

[72] Dean was born with bilateral club feet which is a congenital condition. This condition was known to both parents prior to his birth. The parents met with Dr. Wright for prenatal counselling.

[73] Within several weeks of his birth, Dean was treated with the Ponseti method that involves three steps, weekly manipulation and casting for 5 to 6 weeks, then minor surgery to release the Achilles tendon and then further bracing for 3 weeks to maintain the corrected position. As the casting is from the upper thigh to the tip of the toes and the child cannot move, it is done within the first 3 months. Thereafter, the child is required to wear a device known as Denis Browne Brace or "boots and bar" for 23 hours a day for about 3 months and thereafter he is reassessed and the time he is required to wear the boots and bar is reduced to 12 to15 hours a day, generally at night time and further reduced at about 2 years old when the child is walking to 10 to 12 hours at night only. If the child does not sleep well the brace can be worn at naptime. The child is required to continue to wear the brace at night for up to 3 to 6 years. The child is also prescribed orthotics by the treating physician or physiotherapist. The goal of the treatment is for the feet to be flat and have a full range of motion for normal activity.

[74] Dean was seen regularly at the Hospital for Sick Children ("SickKids"). Although Dr. Wright was the treating physician Dean's progress was monitored by Barbara Harvey who is a physiotherapist and the only physiotherapist in Ontario trained to provide direct treatment. She has over 25 years of experience, her entire practice is the club foot program at the SickKids and she has treated 600 to 700 children.

[75] The evidence of Ms Harvey and the medical records confirm that on January 18, 2012 Dr. Wright prescribed the angle of the boots on the bar. This contradicts the mother's evidence that she asked Ms Harvey be replaced as she prescribed the wrong angle of the boots and bar.

[76] By March 2013 concerns were noted in the child's regression because of a significant loss of ankle stiffness and alignment. The medical records indicate that the mother reported only 10 hours of use of the boots and bar as Dean was crying and he was not tolerating them; whereas at this stage the child should have been wearing the boots and bar 12 to 15 hours a night. The mother testified that the medical note is wrong and Dean was wearing the boots and bar for 9 hours at night and 3 hours in the day. I do not accept the mother's evidence on this issue.

[77] The child needed to be recast which was then done on April 10, 2013 and he needed to wear the full leg cast for 7 weeks. Ms Harvey testified that there was no need to hold the child the whole time or with his legs straight out if he was in a cast and she was not aware of the need to cancel access as a result of the casting. This evidence again contradicts the mother's evidence as conveyed to the father and to APCO. I accept the evidence of Ms Harvey.

[78] As of April 2013, Ms Harvey did not see Dean as a result of the mother's request that she be removed from his care. A new physiotherapist Jennifer McDermott was assigned. Ms Harvey trained Ms. McDermott and did not agree with her prescribing a different type of boot and bar although she testified that this device was better than nothing.

[79] Dr. Wright then took over the care of Dean directly as Ms McDermott left the hospital and Dr. Wright and Ms Harvey are the only clinicians in the department. However, based on the medical chart, Dean was seen by two other different physicians on February 6th and then on September 24 th , 2014.

[80] In the medical report of September 2013, the notation indicates Dean was only wearing the boots and bar for 9 hours. The medical chart of February 6, 2014 states that the mother was only putting on the boots and bar at night for 6 to 7 hours and the importance of compliance was explained to the mother. In Dr. Wright's reporting letter to Dr. Lindzon dated February 6, 2014 he confirms that the mother is only using the boots and bar for 6 to 7 hours. There is no reference in any of the medical reports that the mother told the doctors the child was also wearing the boots and bar at nap time except for the notation in the September 24, 2014 when the father was present and by which time the mother was aware the father was questioned her care of the child's club feet.

[81] I accept the evidence of Ms Harvey that the primary reason for regression is the lack of proper use of the boots and bar device as prescribed that is, if the device is not worn for the recommended times or the prescribed angle.

[82] At the last appointment on September 24, 2014, there is a discrepancy as to whether or not the child was seen walking. Although the mother testified that the doctor reported that she was providing excellent care and Dean's feet were progressing well, the note for that appointment does not confirm her evidence. The mother did not call as a witness either Dr. Wright or the doctor who examined Dean on September 24 th . A further appointment was to be scheduled in 6 months.

[83] During the mother's evidence, it became clear that there was an appointment on April 18 th , 2015 that she cancelled on March 18 th because the child had another appointment and that the mother cancelled further appointments on June 3 and July 15, 2015 as she alleged the child was ill. As a result, no updated report was available for this trial. It was extremely important for the court to have had this evidence as the father is requesting that he be the parent responsible for the care of the child's club feet. The mother did not provide any proof that the child was so ill that he could not have attended this important appointment. I note that the mother has on another occasion alleged that the child was too ill to attend daycare but when Ms Yuffe and Ms Raffaele in any event went to her home that day they testified the child was not ill. I draw the inference that the mother intentionally did not take the child to these appointments so the court would not have updated evidence about the condition of the child's club feet.

[84] Until the order of June 3, 2014 permitting the father to attend medical appointments, he attempted to obtain information about the child's club feet but was prevented from attending any appointments and was restricted to obtaining the medical records. He attempted to arrange an appointment with Ms Harvey on his own but she advised him that she was unable to see him without the child but she did provide him with general information about the treatment for club feet. As a result of his inability to obtain specific information about the treatment of the child's club feet and based on his impression that there had been regression in the Spring of 2013 he contacted the children's aid society. The mother was critical of the father's reporting his concerns to the children's aid society but she had not permitted him to attend appointments to obtain information directly before the court order.

[85] Dr. Wright recently sent a letter advising the mother that he is relocating to the United Kingdom and offered to provide her with names of other physicians who could oversee the care of Dean's club feet. The mother testified that she was thinking of changing to another hospital closer to her home due to the distance of attending the SickKids and the cost of parking. This is despite the fact that appointments are only once every 6 to 9 months and she had no idea of the cost of parking at the new hospital. When I expressed my concern about such a change of hospitals, the mother quickly responded that she was thinking about the change and had not yet made up her mind.

5.2 Dean's kidney condition

[86] Dr. Lindzon monitored Dean's bladder and kidney reflux condition and referred him to a urologist. At 7 months old, Dean was diagnosed with a right urinary infection and bilateral vesicoureteral reflux. He was prescribed antibiotics and diagnosed with a small right kidney and duplex left kidney. He was seen again in six months and was doing well. It was recommended that he continue on the antibiotics and pegFlakes to avoid constipation. Dean was seen again at 20 months on July18, 2013 and he was reported to have no further urinary tract infections and was doing well. The mother reported that he continued to be constipated and therefore the antibiotics were continued. The report filed indicates that the mother had stopped giving the child the pegFlakes previously prescribed as it caused him gastrointestinal pain and the nurse discussed with the mother management of the pegFlakes.

[87] Dean was seen again on September 25, 2013 and the report filed indicates that he is doing well and has had no further urinary tract infections. It was decided to keep him on antibiotics until he was fully toilet trained.

[88] He was seen again on September 25, 2014 and his right kidney was normal and there were no concerns.

[89] Dr. Lindzon testified that the child's reflux and kidney issues are under control and there is no indication that there are any further concerns. Prior to testifying he checked the child's medical chart at the SickKids and confirmed that Dean is doing well and no further urinary tract infections were noted.

[90] Dr. Lindzon was shown the mother's affidavit sworn April 16, 2015 with her description of the child's bladder and kidney condition and he testified that the mother's description was more severe and that the child only has a mild or moderate condition that is being well managed.

[91] With respect to the mother's concerns and conditions that she stipulated were required as a result of Dean's bladder and kidney condition, Dr. Linzdon clarified that there were no dietary restrictions or dietary concerns, a parent cutting his hand and accidently dropping blood on a child with a bladder reflux issue was not a risk and like any child diaper changes were important but not critical with a child with this condition. These issues were all reported by the mother as her concerns with the father's care of the child.

[92] The father attempted through the communication book to inquire about toilet training the child as this is a pre-requisite to him being taken off the antibiotics. Instead of proving a detailed schedule or information of what the mother is doing with respect to toilet training, the mother provided the father with a general pamphlet about toilet training.

5.3 Autistic Spectrum Disorder

[93] The mother contacted the Hincks-Dellcrest Centre in April 2013 due to concerns about the child's difficulties with sleep and with separating from her. She did not advise the father of this referral nor did she advise Dr. Lindzon who was the child's paediatrician of her concerns or of the referral. Due to the waitlist the assessment was not begun until sometime in February 2014 and concluded in April 2014. The existence of the assessment was not revealed until the mother filed her affidavit of February 18, 2014 in response to the father's motion to change.

[94] Although the assessment team recognized that the child had many stressors due to the medical interventions early in his life and the mother's reported stress of the father seeking increased access, a further developmental assessment through the Holland Bloorview Hospital or Surrey Place Centre was recommended. The assessment team was concerned about the child's general development and the manner of the child's interactions and suspected autism. There was also a recommendation for the mother and child to participate in a play-based therapy model such as Watch, Wait and Wonder to strengthen the relationship and capacity to respond between the mother and child as this can be helpful for emotion regulation and sleep difficulties. The mother never filed any evidence or clearly testified about whether or not she had followed through with play therapy.

[95] Despite the consent court order on February 21, 2014 permitting the father to contact the Hincks-Dellcrest and receive any information and documentation about either the party or the child, the father was not able to obtain any information nor did the mother advise him of an upcoming appointment. The mother testified that she did not understand the consent and would not release information in "her file" although she never called a witness from Hincks-Dellcrest to clarify the difference between the child's file and her file. As a result, Hincks-Dellcrest would not release any of their file and it was necessary for father's counsel to issue a summons for the file to be produced for this trial.

[96] Dr. Sharon Smile, a developmental paediatrician conducted the assessment of the child through the Holland Bloorview Kids Rehabilitation Hospital. On consent, Dr. Smile was qualified as a developmental paediatrician with expertise in the diagnosis and treatment of autism. The assessment was completed in August and September 2014. Dr. Smile's report was filed and she testified.

[97] Dr. Smile described autism as a disorder involving the impairment of social skills and restrictive and repetitive behaviours. Other issues may or may not relate to autism such as feeding and sleep issues that are both common in all children but there is a higher prevalence with these issues with children with autism.

[98] Dr. Smile opined that it is unusual for children to regress after 36 months. When Dr. Smile assessed Dean he was 34 months and she saw no signs of regression which is contrasted with the mother's sworn affidavit of April 6, 2015 wherein she deposed that Dean was exhibiting more severe and worsening behaviours. This is important evidence as the mother has attempted to link Dean's behavioral issues as a result of access with his father. Dr. Smile also opined that it was unlikely that Dean's behaviours would have all developed between January 2014 and August 2014. This evidence was in provided in relation to Dr. Lindzon's evidence that the mother did not report any developmental concerns to him when he last examined the child in January 2014. The mother also did not advise Dr. Smile that Dr. Lindzon was the child's paediatrician and accordingly she did not receive his medical notes that she testified would have been helpful. If Dr. Smile had known about Dr. Lindzon she would have also discussed with the mother why she wanted to change paediatricians as continuity of care was important for Dean.

[99] On the first appointment of August 20, 2014, the parents met together with Dr. Smile but when the father excused himself to answer a telephone call the mother advised Dr. Smile that she was not comfortable in the same room as the father and he was asked to wait outside while the mother completed giving further information to Dr. Smile. Up to this point, Dr. Smile testified that although there were disagreements in the information provided by each parent, they were well behaved and no voices were raised. The mother would not agree that the father and child be observed, she would not agree to be in the same room as the father and that she would not agree to permit the father to observe her interactions with the child through a two way mirror.

[100] Father's counsel needed to intervene and obtain the court order of August 27, 2014 that was then granted on consent. The order required both parents to co-operate with the assessment including observations of the father and child.

[101] I do not accept the mother's evidence that the assessment was delayed because of the father rather I find that the mother caused the assessment process to derail.

[102] This issue of excluding the father is relevant not only with respect to the mother's pattern of attempting to exclude the father from medical and therapeutic appointments but it is also relevant to the overall reliability of the assessment as part of the assessment is based on the subjective reporting of the parents. Although Dr. Smile was able to observe the father and child it was on the same day as the feedback session. Dr. Smile testified that as she was aware of the custodial dispute between the parents, she primarily based her opinion on her observations of the child and the objective test results. Although I accept this evidence, nevertheless as the mother described many of the child's behaviours that Dr. Smile was not able to observe, it would have been helpful to have permitted the father more input in the assessment process.

[103] Dr. Smile's notes indicate that for the majority of time the mother spoke about the conflict between her and the father and needed to be re-directed to speak about the developmental needs of Dean. No such concern was noted about the father.

[104] During the assessment the mother reported that when the father's access resumed in February 2014, Dean began to have behavioural problems of tantrums, pulling at doll's hair, night awakening episodes and onset of repetitive language "no park, no cow, no bug" and post-access his tantrums became more frequent. The mother also reported that she had difficulty putting Dean to sleep and that he did not nap and that a sleep routine was difficult to maintain.

[105] During the assessment the father reviewed his contact with Dean. Initially in November 2012 when Dean was a year old the father reported that Dean seemed to accept him as a person and that the meeting was quite neutral and that Dean had few words. Between March 2013 and February 2014 the father had no contact with Dean. When access resumed the father noted that Dean's eye contact was intermittent, he had difficulty introducing play and Dean had few words but that there seemed to be some improvements and some signs of affection.

[106] In cross-examination, Dr. Smile was asked about her observations of the child with both parents, she testified that he was comfortable with both parents but that he did not interact with either parent and played on his own. Dr. Smile has no concerns about either parent.

[107] Dr. Smile testified that initially the father did not know what behaviours to look for but once she pointed them out, he understood the issues. On one occasion that father stated that he did not believe the child had ASD and was not sure what ASD was but he would follow her recommendations. In cross-examination, Dr. Smile testified that it is hard for parents to accept a diagnosis of ASD but the father pursued the ability to obtain more information and accepted her diagnosis. It was Dr. Smile's opinion that both parents needed education about ASD and she included this in her recommendations.

[108] Dr. Smile diagnosed Dean with global developmental delay with significant delays in his communication skills, daily living skills, social and motor skills. She opined that this was not an indication of his cognitive function and that it was imperative that he have a psycho-educational assessment through the school board once he is enrolled in school and receives appropriate interventions.

[109] Dr. Smile also diagnosed Dean with ASD with accompanying language impairment of a moderate to severe level and that he will require very substantial support.

[110] With respect to his sleep difficulties, Dr. Smile recommended that the parents will require some assistance in establishing a sleep routine and implementing sleep hygiene techniques and made a referral to a sleep specialist.

[111] With respect to his temper tantrums, Dr. Smile noted that due, to Dean's ASD, self-regulation difficulties and communication challenges his tantrums may occur more frequently and appear more intense in its quality as compared to his peers. Dr. Smile noted that it was important that positive parenting strategies are used to address these behaviours. A referral was made to the Infant Psychiatry Program at the Hospital for Sick Children and that the parents access the services at the Hincks-Dellcrest and participate in a play-based therapy model.

[112] Several referrals were made with respect to specific ASD therapy such as Toronto Partnership for Autism ("TPAS"), Toronto Autism ABA Services, Geneva Centre for Autism, a referral to for speech and language therapy and occupational therapy at Holland Bloorview and several useful reading resources were outlined. A referral was also made to the Infancy and Early Childhood program at Surrey Place that offered a range of services for children with developmental disability and their families.

[113] Dr. Smile testified that Dean required 20 hours a week of intensive behaviour intervention ("IBI") which is one on one therapy with respect to speech, language and motor and social skills but it is not a certain outcome and was not the sole or most important recommendation. She noted that the cost of IBI is prohibitively expensive for most families in the range of about $70,000 to $80,000 and this is the reason she triages her recommendations. While a child is on a wait list for publicly funded IBI, parents should learn strategies to pursue at home.

[114] Dr. Smile also recommended that the parents participate in applied behaviour analysis ("ABA") which is done in a group setting to help identify and understand and develop strategies to deal with behaviours associated with autism.

[115] It was also recommended that the parents participate in a parenting workshop such as Triple P Parenting to provide strategies that will assist in building positive relationships with their child and learn strategies to deal with common behavioural issues in childhood.

[116] There was a strong recommendation for Dean to be enrolled in a structured daycare program with a resource worker to help him develop his play skills, fine and gross motor skills, language skills as well as early academic skills. Dr. Smile noted the importance of Dean being around his peers and that he interact with other children daily that may include the park, local drop in centres or an Ontario Early years Centre. Dr. Smile testified that she recommended regular and fulltime daycare immediately and that this was the most pressing recommendation. In response to my question, Dr. Smile clarified that full time meant from 8:00 a.m. until between 1:00 to 3:00 p.m.

[117] Dr. Smile testified that the research was clear that for the best outcomes early intervention before a child is 4 years old is required. In this case, Dean received early intervention through daycare and ABA.

[118] There was also a recommendation that due to the child's multiple medical diagnoses that his development be monitored by his paediatrician over time. The mother asked for a referral to a paediatrician in her community. As previously indicated the mother did not advise Dr. Smile that Dean already had a paediatrician namely, Dr. Lindzon. It was also recommended that his orthopaedic and nephrology medical issues continue to be monitored by his team of physicians at the Sick Kids.

[119] With respect to the relationship between the parents, Dr. Smile noted that:

We recognize that there is an element of family dysfunction and this may impact Dean's overall development particularly his psychological development. Parent-child relationships are important and impact a child's psychological and mental health. Thus it is imperative that these relationships are built in a positive environment and supported. It is important that both parents participate in education workshops, intervention workshops and parenting workshops about autism spectrum disorder. It is essential that there be consistency with both home environments with regards to behavioural strategies used to foster development. Interactions with Dean should be done using social stories, and visual aids. It is important that enough time is given for day to day transitions and strategies are used consistently in all environments to ensure success. Behaviourally, Dean is having a difficult time with self-regulation and thus consistency and routines are imperative to achieving success in his day to day activities.

[120] When questioned about this portion of her report, Dr. Smile testified that given the high conflict between the parents that she wanted to ensure both parents work together to ensure Dean's progress. She suggested that the mother use a visual aid to help with transitions. The mother did not testify that she implemented this suggestion and none of the witnesses who observed the transitions, the maternal grandmother, Natalie Sosa or Mary LaFramboise, testified that they observed this.

[121] When questioned about the transitions for access, Dr. Smile testified that the number of transitions for a short 3 hour visit were a lot for the child namely, leaving mother's home, arriving at APCO, leaving APCO, going to the father's home, leaving father's home, arriving at APCO and then leaving again to the mother's home. Assuming the mother's evidence to be accurate about the child's difficulty with these transitions, Dr. Smile suggested that decreasing the number of transfers could decrease the behaviour.

[122] Prior to the release of her report, the mother requested Dr. Smile include in her report her opinion about the effect of Dean's autism on access which she declined to do but instead referred the mother to the Infant Psychiatry Program at SickKids. The mother did not follow through with this recommendation but instead mid-trial, without prior notification to the father, attempted to obtain a psychiatrist assessment of Dean that would include a recommendation for access.

[123] The parents were referred to Lisa Artero, an occupational therapist at Holland Bloorview. She was not called as a witness but her notes were admitted on consent as part of the Holland Bloorview assessment of Dean. Ms Atero recommended deep pressure input that has been found to be very calming and roughhousing that is, a type of play that provides children with deep pressure to their muscles, joint and skin to help them be more aware of their bodies and be organized for everyday activities. The mother had a lengthy telephone discussion with Ms Atero and expressed concerns about her recommendation as there was a history of domestic violence between her and the father that he abused her in the past and she was worried about how the father would interpret "roughhousing" and "deep pressure". She reported that the child returns from visits with the father with small bruises. Ms Atero had to redirect the mother to discuss issues around occupational therapy and what was within her scope of practice. She advised the mother to report any concerns to the children's aid society but that she did not witness any harm when the parents and child attended the pervious occupational therapy assessment. The mother requested that Ms Atero remove this recommendation from her report which is refused to do but did add an addendum to the report clarifying the terms and also demonstrated them at a joint feedback session.

[124] The mother testified that she did not agree with this type of therapy and testified that the occupational therapist at Surrey Place, Ms Raffaele also did not agree. But the mother did not call Ms Artero as a witness. Ms Raffaele testified that she had not spoken to Ms Atero about her recommendations and only testified that she would not recommend roughhousing as it was worded in the report but agreed Deanwould benefit from deep pressure techniques.

[125] The mother did not explain in her testimony the relevance of her disagreement with Ms Atero's recommendations although I infer that this relates to her ongoing allegations that the father is causing marks and bruises on the child as a result of his "roughhousing" or inappropriate application of "deep pressure". But the father was never cross-examined with respect to how he handled the child or if he was using these techniques.

[126] Dr. Smile referred the parents to Sarah Duhaine, a social worker at Holland Bloorview whose role is to support families with children diagnosed with ASD, interpret recommendations and help set up services. She saw both parents, the mother attending with a male friend, and had several telephone discussions. As the primary recommendation was for daycare, the parents agreed that the mother would be in responsible for applying for a subsidy and then she would write a letter to support the child receiving priority. The father kept calling her to find out the progress of the daycare and she left several messages for the mother that were not returned. She found out later that the mother had gone to another society worker, Kate Mitchell, to write the supporting letter. She also was found out later that the mother had told Dr. Smile that she was not comfortable with her being part of her support team. Despite not wanting Ms Duhaine involved the mother sent her a long email outlined her concerns about the father and their relationship history. The mother testified that she was not comfortable with Ms Duhaine as she only spoke to the father not to her and flirted with the father. These allegations were denied by Ms Duhaine. The father called her again about the daycare in January 2015 and she told him that she could not speak to him as she was no longer involved. He also called again in the Spring to find out the Triple P parenting workshop and after checking with her superiors was told that she could tell the father that the program was no longer offered at Holland Bloorview. This evidence is relevant to the mother's refusal to communicate with the father and of the mother's refusal to work with any service provider who she deems to be sympathetic or who is prepared to involve the father.

5.4 Further observations and developments with respect to Dean

[127] Following Dr. Smile's report the mother followed up with Surrey Place as recommended but she did not advise the father and he was not included in the assessment. Surrey Place's assessment model is not for direct services. An assessment is completed followed by a block of intervention for 4 to 6 months that educates parents, present strategies and help to implement them at home and in any educational setting. Christie Raffaele an occupational therapist and Erin Yuffe a behavioural therapist were both involved. At the time they testified their assessment had been completed but the report was not yet competed. On consent the report was subsequently filed.

[128] Ms Raffaele and MsYuffe observed the child at the mother's home on two occasions and at daycare.

[129] At the first home visit on December 17, 2014 the child was observed to have a temper tantrum over a broken necklace that lasted about 10 minutes. They observed him briefly banging his head and flickering his eyes. These behaviours are typical of children with ASD and the mother dealt with the child's behaviours calmly and appropriately.

[130] At the second home visit on March 25, 2015 Ms Raffaele and Ms Yuffe decided to attend despite the mother advising them that the child was ill. The child appeared fine and played nicely. No particular concerns were noted.

[131] On February 26, 2015, the child was observed for an entire morning at his daycare, despite this being only his 4 th time attending, Ms Raffaele testified that she was surprised at how well he managed and was expecting to see more problems as she was looking for sensory issues based on his sensory profile from the previous occupational therapy, the interview with the mother and the first home visit. She observed that he transitioned well from one activity to another and he transitioned well between the gym to another room despite the fact he had never been in the gym before. She observed that there were no behavioural issues and he played in an appropriate way. She noted that he did not get upset when he fell back and bumped his head or when another child took his toy and although he was bothered by singing during circle time and covered his ears he did not get upset. Ms Raffaele did observe that he did not love playing in the sand and the loudness of the other children.

[132] Ms Yuffe agreed with the observations of Ms Raffale and noted that the only behavioural issue was when the mother lingered at dropping Dean off at daycare.

[133] Ms Raffaele and Ms Yuffe reported that they were advised by Dean's teacher that he was coming late or not at all and that the mother would report that he was recovering from visits with his father. The teacher also reported that she felt that the mother sometimes kept Dean at home when he was not really sick. She also reported that the mother was prolonging the drop off and had been told to drop him off quickly and leave. The mother did not cross-examine either witness about their observations regarding Dean at daycare, did not refute the teacher's comments or cross-examine Karen Stemmer, the supervisor of the daycare about these comments or call his teacher as a witness.

[134] The recommendations in the Surrey Place report provide strategies to avoid sensory issues such as giving warnings if there was going to be a loud noise or avoiding environments that could be problematic such as amusement parks or movie theatres but did not recommend avoiding other households. It is noted that any of the strategies recommended flow from the mother's reported behaviours and not those necessarily observed. The recommendations were clarified at the feedback session on June 28, 2015 that the mother did not attend. The mother did not testify that she implemented any of the recommendations.

[135] Dean attended Toronto Autism ABA Wednesdays and Fridays from April 8 th to June 19 th , 2015 through the Toronto Autism ABA Services. There is a parent component to these sessions. The mother attended all sessions and the father attended separately from the mother as of April 29 th . I find that the mother intentionally did not provide the father with all of the information about this program in a timely or complete fashion. The report filed indicates that Dean transitioned with no difficulty and did well in the program. A further group placement was recommended.

[136] Dean's daycare report was also filed. Despite the number of absences and number of times he was late, Dean adjusted to and did well in the program and showed some improvements although he continued to need to improve his ability to interact with his peers.

[137] Dean also attended speech and language classes and the report filed indicates that he transitioned well into the group and is attentive and cooperative and follows instructions but he is still not interacting with his peers.

[138] Dean was registered to attend a summer camp run by the daycare on a full time basis for a half day but as of July 20 th of a possible 15 days he had only attended 5 days. During the resumption of the trial for the week of July 20th I asked the mother if the child was attending summer camp and the mother advised that he was home being cared for by Kevork Marsh and another friend. There was no plausible explanation as to why either or both of these caregivers were incapable of taking the child to this program especially as Mr. Marsh was well known to the child and frequently attended with the mother at many appointments.

ANALYSIS

[139] Against this background I will review any further relevant evidence and the applicable legal principles as they apply to the issued in this case

6. Should the consent order of June 13, 2012 be set aside?

6.1 Legal principles with respect to setting aside an order

[140] The Family Law Rules do not have a specific provision that permits a court to set aside its own orders. Subrule 25 (19) [formerly 15 (14)] provides that:

The court may, on motion, change an order that,

a) was obtained by fraud;

b) contains a mistake;

c) needs to be changed to deal with a matter that was before the court but that it did not decide; or

d) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[141] Some courts have interpreted this provision liberally to read "to change" to include or to mean "to set aside" and other courts have relied on the inherent jurisdiction of the court to control its own process recognizing the limitations of so doing in the Ontario Court of Justice as a statutory court. Other cases have relied on subrule 1(7) that permits a court to refer to the Rules of Civil Procedure by analogy if the Family law Rules do not cover a matter adequately.

[142] The Divisional Court in Diciaula v. Mastrogiacomo, considered this issue in the context of a motion to set aside a final default order and stated at paragraph 11 as follows:

The Family Law Rules are comprehensive and carefully drafted. They are the result of much careful consideration, based upon input from many and varied interested parties, by the Family Law Rules Committee. The concept of setting aside orders or the registration thereof is not foreign to the Committee. Of the many examples where this power might be found in the rules, see Rule 14(6)(g) and Rule 15(6)(a),(b),(c). It would be a disservice to the Family Law Rules Committee to suggest that the failure to include the words "set aside" in Rule 15(14) was a mere oversight which should be corrected by reading in those words. Rather it is far more likely that the omission was intentional, particularly if one recalls on whom the onus lies and the nature of the onus in seeking an order de novo as opposed to varying an existing order.

[143] The court further suggested that the motion judge could have resorted to applying the Rules of Civil Procedure by analogy to setting aside the default order.

[144] Applying this reasoning, the court can apply by analogy Rule 59.06 (2) of the Rules of Civil Procedure that states as follows:

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order:

(c) carry an order into operation; or

(d) obtain other relief than originally awarded.

[145] In order to set aside a consent order, there must be proven grounds of common mistake, misrepresentation, fraud or any other ground which would invalidate a contract.

[146] The jurisdiction to set aside a consent order was canvassed by the Ontario Court of Appeal in the case of Ruffudeen-Coutts v. Coutts that concluded:

Consent orders have their foundation in contract. It follows that they may be appealed on the basis that the circumstances surrounding the consent were such that there was no enforceable agreement. This engages standard contract principles…

It follows that in cases where the issue relates to the validity of consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent. Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence.

[147] Applied to the circumstances of a motion to set aside a consent order, the Court of Appeal stated in McCowan v. McCowan:

The general principle set out in these authorities was accepted by this court in Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 at pp. 16566 : A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified.

In my view, it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance. Evidence of non-performance may, however, be relevant to the issue whether the underlying agreement was so tainted in its formation that it should be invalidated.

6.2 Summary of relevant evidence

[148] The father initially met with counsel Seema Jain to discuss the legal proceedings and she assisted him on a limited scope retainer. The father waived legal privilege and Ms Jain testified that she generally explained the legal process to the father. Based on the Application filed by the mother she explained that it was a "run of the mill" family case dealing with parenting and child support. She explained that supervised access was a starting place, that it was not unusual to request a paternity test in these circumstances and that it would not realistic for the father to obtain custody.

[149] The father attended the first appearance on his own. The father consented to the late filing of the mother's Reply and at the first appearance the parties agreed to the paternity testing.

[150] The father met with Ms Jain again after the first appearance as he was upset about the allegations about domestic violence in the mother's Reply and was concerned that by agreeing to the late filing that he agreed to the allegations and was concerned about the impact of not being able to respond.

[151] Based on a referral from Ms Jain, the father retained Wendy Yee Shin at a lower hourly rate and she drafted his case conference brief. The father testified that Ms Yee Shin telephoned him and advised him that she has spoken to the mother's counsel Mr. Gillies and the mother was prepared to withdraw her claim for child support if he agreed not to seek access in the future.

[152] The mother testified that it was the father's idea to give up access in exchange for not paying child support and that she offered, in her case conference brief, supervised access every week and as a compromise the father agreed to access on alternate weeks.

[153] I find that it was the mother's counsel who made this offer. Mother's counsel attempted to correct the mother's answer on this issue in re-examination and she conceded that perhaps it was her counsel's idea. This is another example of mother attempting to portray the father in as bad a light as possible. I further find that Ms Yee Shin, father's counsel at the time, did not provide him with a copy of the mother's case conference brief and that he was unaware of the offer of supervised access every week.

[154] I also accept the father's evidence that he was not clear that he had agreed to a final order, that he thought supervised access would only continue for a few months and that he thought the mother had the right to protect her privacy when he agreed to an order that her address be redacted.

[155] I do not accept mother's counsel's submission that an adverse inference should be drawn from the fact that the father did not call Ms Yee Shin as a witness. The father had early on in the proceedings waived solicitor client privilege and produced Ms Yee Shin's file. The father's evidence with respect to his understanding of the process was introduced, not for the truth, but as evidence of the father's state of mind. He was not impugned in cross-examination and if mother's counsel wished to contradict him then he could have called Ms Yee Shin as a witness.

6.3 Application of facts to the applicable legal principles

[156] I do not consider that the negotiations leading up to executing the Minutes of Settlement are relevant to the issue of setting aside the order. Although they are relevant to credibility issues and the mother's desire that the father not be involved in the child's life.

[157] I find that the final order was flawed in that it only refers to supervised access, refers to supervised access changing with the child's age and stage of development but does not provide any clear mechanism for increasing access The order is legally flawed as although the parties were to share future special expenses in accordance with income only the father is required to produce his tax return. I further find that there was no basis for the requirement that the mother's address be redacted.

[158] However, all of these flaws are relevant to the father receiving inadequate legal advice. There is no question that it would have been fairly standard practice for the parties to enter into a temporary order for supervised access at the first conference. They would then return to court for either a further case conference or settlement conference so that the court could monitor the supervised access and assist the parties in moving forward to less restrictive access as supervised access is considered to be a short term solution. It is also very unusual for parents not to be aware of the address of the other parent. Any concerns about inappropriate conduct by either parent would usually be dealt with by outlining the terms of contact in an order.

[159] I have also considered that the ramifications of supervised access and the redacting of the mother's address have had a serious impact on the father's ability to obtain information about his son and how he has been viewed by various service providers and that his desire to set aside the order is related to his desire to set the record straight. However, this is not a basis for setting aside an order.

[160] Although the father may not have had a precise understanding of the order, he did understand the fundamentals namely, that he would exercise supervised access for a limited period of time and then the access would increase. Although the order refers to supervised access increasing there is another clause that refers to further access as agreed upon and if the parties agreed about an increase in access then that clause could have been utilized. I find that the issues complained about relate more to the performance of the consent rather than a lack of understanding of the terms. With respect to the redacting of the mother's address, it is the subsequent manner in which the mother portrayed the reasons for the redaction and the interpretation by third parties of that provision that is more relevant to a change in circumstances rather than the basis for setting aside the order. The issue of the lack of a provision for the mother to provide the father with her income information is not relevant to the current issues before the court and can be easily remedied if a formal request for a contribution for special expenses is sought.

[161] I find that the father has not met the onus on him to prove any of the factors that would warrant the consent order being set aside.

7. Has there been a material change in circumstances?

7.1 Applicable legal principles

[162] Section 29 of the Children's Law Reform Act provides that:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[163] In Gordon v. Goertz the Supreme Court of Canada outlined a two stage test to change a final custody or access order. The test can be summarized as follows:

a) First, the moving party must first meet the threshold test of demonstrating that, since the last court order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

b) Second, if the threshold test is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the Children's Law Reform Act. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

[164] Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought.

[165] The aging of a child does not necessarily constitute a material change in circumstances. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct.

[166] In order to determine if the conditions for a variation exist, the change of circumstances must be material as opposed to trivial or insignificant.

8.2 Application of facts to the applicable legal principles

[167] The mother seemed to accept that there had been a material change in circumstances when she testified that she was not asking the court to return to an order of supervised access by the father but then in closing submissions she resiled her position. After hearing this submission I again clarified with counsel that if the mother was taking the position that there was no material change in circumstances then this would mean a return to supervised access. The matter was held down briefly and counsel again confirmed that this was the mother's position.

[168] Counsel for the mother submitted that there is no material change in circumstances in this case as the passage of time and the child's chronological age are not sufficient circumstances to trigger a variation of the access. It was further submitted that as the parties are now unable to agree as what access is appropriate the father wished a "re-do" of the access provisions in the consent access order.

[169] I find no merit in these submissions. While I agree that the mere passage of time and the increased age of a child are not necessarily in and of themselves a material change of circumstances. Those are factors a court can consider as a child's needs change as he or she becomes older, and it is necessary for the court to consider if those changes make the original order inadequate.

[170] The mother's position ignores the fact that at the time of the consent order that father had no relationship with the child and the child had not yet been diagnosed with any special needs. Further, there has now been the intervention of a period of unsupervised access. These changes have affected every aspect of the child's life in a very profound way and have affected the ability of the father to meet the child's needs.

[171] I find in this case there is overwhelming evidence that there has been a material change in circumstances that has affected or is likely to affect the best interests of this child. I find that the following material changes in circumstances have occurred:

a) The father and child have become bonded whereas at the commencement of supervised access they were strangers to each other;

b) The supervised access visits went well;

c) The mother suspended the father's access for months whereas the original order contemplated access would not only continue but expand;

d) The supervised access was varied on a temporary basis and the unsupervised visits have gone well based on the observations of the children's aid social worker, the evidence of the father and his witnesses whose evidence I accept;

e) The child is older; although age alone may not be a material change in circumstance there is a significant difference between the needs of an infant and a three and a half year old;

f) The child has been diagnosed with moderate to severe autism with accompanying language delay and developmental delay and a reduced capacity to adapt to change; these conditions were not known at the time of the consent order

g) With the Court's and counsel's assistance the father has been able to get involved in the diagnosis and treatment of the child's health issues, but he does not have unfettered access and his involvement to date has not happened without considerable difficulty; whereas the order contemplated ha the father would have unfettered access to the child's medical information and there was no restrictions on his ability to attend appointments;

h) The father has demonstrated a strong commitment to the child; whereas when the order was made there was no history of his commitment and certainly the mother questioned his commitment to the child;

i) The mother has actively interfered with father's relationship with the child and has taken steps to block the progression of the father's relationship with the child;

j) The mother has refused to consent to a reasonable expansion of access and the lifting of supervision and conditions in accordance with the provision of the consent Order that in theory could have allowed the progression of father's relationship with the child;

k) The mother is either raising unfounded allegations against the father or her stated concerns and fears are irrational;

l) The mother has used the existing Order to frustrate father's attempts to become more involved in the child's life;

m) The ramifications of redacting the mother's address has had unforeseen consequences as to how the father is viewed by third parties and on his ability to obtain information about the child. By way of example, the Surrey Place file had a brightly coloured cover sheet that said in large capital letters, "HIGH RISK ALERT DO NOT GIVE FATHER HOME ADDRESS";

n) The ongoing conflict between the parties and the actions of the parties, in particular the mother is completely contrary to the spirit of the custody Order; and

o) The current Order is simply not workable and needs to be clarified or fine-tuned.

8. What order is in the child's best interests?

8.1 Position of the parties

[172] The mother seeks a continuation of an order for sole custody to herself. It is further her position that if the court found that there was a material change in circumstances that the consent Order is still adequate. In other words, that the father should continue to have supervised access and that his access should increase based on the child's developmental needs and stage of growth. It is proposed that the parties retain a parent coordinator to assist them in reaching an agreement regarding access or any other parenting disagreements and if they are not able to reach an agreement that they return to court to resolve the dispute. The mother does not agree that there be any restrictions on her choice of school or medical professionals.

[173] The father now seeks joint custody with a gradual increase in unsupervised access to overnight access and then to an equal shared parenting plan. He seeks a detailed order with specific provisions for decision making. As the father changed his position in closing arguments, it is necessary to determine his ability to do so and the effect on trial fairness.

8.2 Can the father seek new relief at the conclusion of the trial?

[174] The short answer is yes as long as there is no procedural unfairness to the mother. The factual basis for this conclusion is based on the following findings of fact.

[175] When the father commenced his motion to change dated December 11, 2013 his focus was on obtaining access. He had a limited understanding of the child's medical needs as he was experiencing difficulty in obtaining the records from the Hospital for Sick Children.

[176] The father then amended his motion to change on April 17, 2014. The mother was still opposed to his request for unsupervised access based on concerns about attachment issues and the father discovered that the child was being seen at the Hinks-Dellcrest and he was attempting to gain access to these records.

[177] The father gained unsupervised access as a result of the temporary Order on June 3, 2014 and as a result of the order of August 27, 2014 he was able to participate in the assessment of the child through the Holland Bloorview that concluded that the child suffered from autism and related language and global delays. The father spent the late summer and fall trying to obtain information regarding the status of the primary recommendation for daycare.

[178] At the assignment court on January 5, 2015 the father was given until January 21, 2015 to advise if he was pursuing a claim for custody or joint custody.

[179] It is submitted by father's counsel that based on the limited time the father had with his son, his limited ability to obtain information and the total lack of communication with the mother, the father advised that he was only seeking access and some incidents of custody and access that is, he did not withdraw his claim for the ability to make claims regarding decision making.

[180] Except for the father becoming aware of the location of the child's daycare, the father only came into possession of significant records after the trial management conference through summons issued to witnesses, orders for questioning and through vive voce evidence. At the time of the deadline imposed by Justice Sherr at the assignment court, the father was unaware of the extent of the evidence that impacted on his decision to now pursue joint custody.

[181] I find that the father is entitled to now pursue his claim for joint custody despite this earlier position. It is the court's overriding duty to make decisions that are in a child's best interests. Section 24 (2) of the Children's Law Reform Act, sets out the legal criteria for all decisions regarding custody and access namely, the best interests test and the criteria stipulated in that section applies to all forms of custody and access.

[182] Counsel for the father filed his written submissions prior to the dates set for oral argument so that counsel for the mother was aware of the relief he sought and was able to address the issue in his submissions. Counsel for the mother could not point to any witness he would have called, any line of cross-examination he would have pursued or any different way he would have approached the mother's case if he had been aware of the father's intention to claim joint custody. The only comment mother's counsel made was that he may have explored the issue of the parties' inability to communicate more fully but the father's submission and all of the evidence confirms that these parties do not communicate.

[183] I find that there is no prejudice to the mother to permit the father to seek joint custody. The mother and her counsel were clearly aware that the father was seeing to have final decision-making in several aspects of the child's life and it was obvious, regardless of what he called the claim he was making that the was seeking a form of joint custody.

8.3 Statutory Framework and Applicable Legal Principles regarding Custody and Access

[184] In determining the issues of custody and access the sole consideration is what is in the best interests of a child. Each case must be decided by a careful consideration of the unique circumstances and needs of the individual child. In determining what custodial orders are in a child's best interest, a court is guided by section 24 of the Children's Law Reform Act and the factors set out in section 24(2).

[185] Section 24 provides as follows:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[186] I have also considered the principle that children should have as much contact with both parents, provided that such an order is consistent with their best interests.

[187] The willingness of a custodial parent to foster a relationship between the child and the access parent is also a relevant consideration.

8.4 Application of legal principles to the findings of fact

8.4 (a) Allegations of domestic violence

[188] I have considered that the mother has alleged one incident of physical violence wherein she states the father was drunk and shook her. She somewhat embellished this later to include more than one incident. The mother portrayed the father as verbally and physically abusive and controlling to almost every professional and service provider she has had contact with. I watched the mother when she testified and at one point she rather dramatically moved her chair so as not to be in direct view of the father. But I had been watching the father and noticed that he never made any gesture towards her. I found this gesture by the mother was done to portray how afraid she was or how intimidated she was by the father. I find that there is no basis for the mother's fear of the father. I find there is no basis in the evidence presented to find that the father ever verbally or physically abused or threatened the mother.

[189] I accept the father's denial of the mother's allegations. I accept the evidence of his former wife that when the father becomes upset he tends to become quiet and withdrawn rather than lash out. The father's landlord also confirmed that he has never seen the father get angry or upset and that he does not drink to excess. Even if I had accepted the mother's evidence of this one incident of shaking several years ago that certainly would not have impacted on the father's current parenting abilities.

[190] When the mother commenced her Application, she did not mention any allegations of domestic violence in the Application or her Form 35.1 affidavit and blamed the City who prepared her documents for the deficiency. In cross-examination she testified ha that she had not even read the affidavit. I do not accept this evidence but find that once the mother realized the father wished to participate in Dean's life, she then alleged incidents of violence.

[191] The mother contacted the police on May 7, 2012 to ask if the father was breaking the law by wanting to attend medical appointments. Two police officers recorded in their notes that the mother did not fear the father and there were not threats.

[192] The mother again called the police on February 9, 2014 to report that she saw the father driving behind her and she reported that he followed her from an intake appointment at APCO. Again, two police officers noted that the mother did not report any threat or fear or assault. The mother advised the police she had a restraining order however, the police checked and there was no restraining order in place. There is uncontroverted evidence that the father was home and could not have possibly followed the mother.

[193] I find that the mother has used the stipulation in the consent Order of June 13, 2012 that her address be redacted and that the father has supervised access or later that access exchanges be at a police station or supervised access centre to perpetuate her image of the father as an abuser and someone to be feared. She has told numerous professionals that these stipulations are in the court Order for a purpose.

[194] I find that there is no evidence to suggest that the father has committed any acts of violence or abuse that in any way impact on his parenting abilities.

8.4 (b) Relevant findings of fact regarding the best interest test

[195] I find that both parents are loving and affectionate parents and have a loving relationship with Dean. The mother has devoted herself to meeting Dean's needs.

[196] Both parents are committed to the care of Dean and understand his needs. I specifically reject the mother's evidence, that she has repeated to many professionals, that the father does not accept that Dean has autism, that he does not understand his needs and is not able to safely care for Dean. As an example justifying this position, the mother and her friend Mary LaFramboise testified that the father arrived at the first unsupervised access visit with a car seat that was not properly installed and it took a police officer an hour and half to help the father properly install it. The father did not dispute this evidence but thereafter there were no other problems with the car seat. The mother also testified that the father did not know how to use Dean's boots and bar as a reason for not expanding access but she would not permit him to attend the initial orthopedic appointments with her so he could learn. Later she testified that it was easy to learn how to put them on Dean.

[197] The mother has been proactive in obtaining services for Dean and has had more contact with the many professionals involved in his life than the father, but this was largely due to her insistence that the father not be involved. Despite the many hurdles that mother has put in his way, the father has persevered in his desire to be an important part of his son's life. As the father has been permitted to participate in more appointments and obtain more information about his son's special needs he had shown that he is a parent that can understand and meet those needs.

[198] The mother has the assistance of her mother who has been helpful in providing childcare and attending appointments with Dean. The mother has also been assisted by Kevork Marsh who has attended many appointments with her and has taken an active role in caring for Dean. During the second week of this trial he and another friend were the child's caregivers. He was present during and after some of the access transitions. Although he was on the mother's original witness list he was then not called as a witness. He would have been an important witness as to his observations of Dean and with respect to his behavior especially after access visits. I draw a negative inference from the fact that he was not called as a witness.

[199] The father has the assistance of his former wife Mariella Muscan. She has accompanied the father on the pickups and been present for almost all of the access visits. I find that she is a good support for the father despite her involvement in one unfortunate incident at an ophthalmology appointment where there was a great deal of conflict between the adults in Dean's presence. She admitted that her behavior was inappropriate. However, the maternal grandmother as well as the mother's own overreaction also escalated the incident. I note that during this entire incident the father remained calm and rather than cause any further conflict for Dean told Ms Muscan that they were leaving and he gave up his access visit for that day.

[200] The mother has been Dean's primary parent and he has lived in a stable environment with her. She has been described by all of the professionals as a good parent.

[201] The mother testified that she wanted the father to respect her role as Dean's mother and to acknowledge all of her efforts to obtain assistance for Dean. While the evidence substantiates her efforts to obtain services for Dean, the evidence also substantiates that she has spent an inordinate amount of time and energy in continually attempting to exclude the father from the child's life and to interfere with him from obtaining all of the necessary medical and other information that would assist him in meeting Dean's needs when he is in his care. At times her focus on excluding the father has caused her to make decisions that are detrimental to the well-being of Dean such as changing pediatricians, changing the professionals involved in the care of his club feet and not providing professionals with all of the necessary information.

[202] With respect to the ability to encourage a relationship with the other parent, I find that the mother has continually marginalized the father's role and limited his contact and involvement with Dean. The following are examples of her actions:

1. The mother moved when she was pregnant and withheld her whereabouts from the father and did not advise him of the child's birth;

2. The mother instructed her lawyer to send instructions to the access center during the first block of supervised visits imposing additional conditions on the father's supervised access namely, that the father not give the child any food and that no guests be allowed to attend the visits. A further letter was sent that the child needed to wear his boots and bar brace and needed to be held while wearing this device. The evidence at trial substantiates that none of the conditions were in fact necessary. A further letter send in April 2013 advising that the father agreed to suspend access because Dean had both legs in casts but is misleading that it implies that the duration of casting was unknown as was the length of treatment when the mother was aware of the length of time of casting which may been the only legitimate time that access should have been suspended. The mother did not produce these letters until the trial and then she omitted one of the letters from her productions. All of the letters were finally produced;

3. The mother instructed her lawyer to tell the father that "her" schedule was none of his business in response to father's request for information about Dean's schedule relating to when he wore the boots and bar brace;

4. The mother sent Dean to APCO wearing his boots and bar brace in 2012 and in early 2013, even though it was not medically mandated that he wear the brace during the day. When the father asked the brace not be worn during the access visit, the access note states that mother told the access supervisor to tell the father that "this is the life she leads." The mother claimed that she changed the time of the access visit to a different time because father complained and she allowed him to visit with Dean at APCO without the brace. She then sent Dean wearing the brace on the first visit after the times changed. Dean wearing his boots and bar significantly impacted on the ability of the father to interact with his son. The mother's comment clearly shows that she had Dean wear the boots and bar to interfere with the father's access and not because it was medically necessary;

5. The mother demanded that the father's visits be temporarily suspended in April 2013, after the father had only exercised 71/2 hours of access, because Dean's legs had to be recast for a minimum of 6 weeks. The father was not represented at the time and the mother refused to agree to alternatives proposed by the father to maintain contact with Dean during the 6 week period and threatened to bring a motion. The mother insisted that the suspension be incorporated into a court order, but then did not proceed to take out an order;

6. Before consenting to the suspension, the father asked for permission to speak to medical staff and for confirmation of the medical basis for the suspension and was rebuffed. He was been told on several occasions that such information was " bluntly speaking none of his business";

7. The mother refused the father's requests to attend Dean's medical appointments to learn firsthand about Dean's condition and treatment;

8. The mother refused the father's request made at the suggestion of hospital staff that he participate in one of Dean's medical appointments electronically;

9. The mother delayed the resumption of supervised access for 9 months after the suspension and the father did not resume access again until February 22, 2014. Although there was conflicting evidence on this issue, I accept the father's version of events and find that the mother was primarily responsible for the delay and that she unilaterally changed the location of the supervised access visits to a location with a longer waiting list. I also find that there was no reason initially for the father's access to have been suspended;

10)The mother attempted to obtain an ex parte restraining order against the father in February 2014 after the father, through counsel, indicated the father intended to attend one of Dean's medical appointments. Before proceeding ex parte, the mother's counsel contacted father's counsel and the father agreed, through counsel, that he would not attend and would raise the issue in court;

11)Four days later, on February 10, 2014, the mother filed an ex parte motion and an affidavit alleging that the father stalked her on Sunday, February 9, 2014 and alleged that the father repeatedly caused Dean's address and contact information on file at the Hospital for Sick Children to be changed to his address;

12)The mother launched this motion 12 days before the resumption of supervised access. She asked for a restraining order knowing that the father was seeking permission through the court process to attend medical appointments;

13)The day before her ex parte motion, the mother telephoned the police again. The mother claimed she had a restraining order already. In cross-examination, she denied she lied to the police but two different officers recorded this;

14)While the father's access was suspended due to the child's legs being re-cast, the mother contacted the Hincks-Dellcrest Centre in an attempt to have Dean assessed. The father was not told until this information was set out in the mother's affidavit of February 18, 2014 filed in response to the Motion to Change and only after her failed ex parte restraining order motion;

15)In 2014, the mother first attempted to delay the father's interim motion for increased access on the basis of the Hincks-Dellcrest's referral to the Holland Bloorview;

16)The mother then actively resisted the father's interim motion based on exaggerated symptoms related to Dean's kidney condition, his club feet, and his possible mental health issues;

17)The mother excluded the father from appointments and significant meetings and yet at many of these appointments she brought her mother and/or Kevork Marsh and/or other family members and/or an elderly neighbor who is parenting a child with autism. Examples are as follows:

a) the Hincks-Dellcrest's entire process;

b) portions of the Holland Bloorview Assessment during which she provided information about Dean's symptoms;

c) the Surrey Place assessments and observations for Occupational Therapy and Behavioural Therapy (there were multiple meetings and contacts between mother and Surrey Place of which father was unaware);

d) the intake process at the 'Yes I Can' Preschool;

e) the sleep study, after complaining that Dean's sleep was irregular and problematic. The mother also withheld the report from the court and only produced it after it came to light through production of the file from Surrey Place at trial as a result of the father's summons; the report did not indicate any sleep disturbances and the mother then explained that this was Dean's best night of sleep;

f) the first two meetings with the new pediatrician, Dr. Flanders;

g) Dean's four hour assessment by Dr. Sloman at CAMH on June 4 th , 2015;

h) several emergency room visits; and

i) several sessions of the classes at the Toronto Autism ABA services.

22. The mother has complained to multiple professionals about the father resulting in repeated involvement and investigation by the children's aid society;

23. The mother has cancelled a number of access visits, and in particular between the trial breaking in early May and resuming in July, the mother consistently arrived late at a number of those visits and was warned about her lateness by APCO so that the parties' ability to use the supervised access centre as a pick up and drop off may be jeopardized;

24. The mother regularly refuses to communicate with the father other than in a cursory fashion while being critical of the level of detail he supplies in the communication book.;

25. The mother did not involve or advise the father in a timely fashion of her efforts to find an appropriate school placement for junior kindergarten. The mother only produced the Catholic School Board JK Intake Assessment , to the father on July 11, 2015 in the communication log but the registration date on the form is January 2015 and she provided him with no information at all about the Toronto School Board program until she testified about this at trial;

26. The mother has continually omitted the father's contact information or not named him at all in various forms. Examples are as follows:

a) the mother named the father as Dean's father when she had contact with the Hincks-Dellcrest but she failed to provide his contact information, which she admitted in cross-examination that she was aware of it at the time;

b) she drew a giant "X" through the section for Parent #2's information on the 'Yes I Can' Preschool contact form;

c) she wrote "n/a" regarding "Dad's Name", address and contact information on the Toronto Autism ABA services Emergency Contact Information Form but listed her mother and Kevork Marsh as emergency contacts #1 and #2; and

d) she redacted Dean's student number from the Catholic School Board junior kindergarten Intake Assessment and refused to answer why she did this.

[203] It is clear that the mother has expended a great deal of energy to exclude the father from this child's life. The mother's actions in this case are a stark example of how a sole custodial parent can use her sole decision making power to the determinant of the child's well-being.

[204] It was submitted on behalf of the mother that she was the sole custodial parent, according to the consent order of June 13, 2012, and therefore had the authority to make decisions without involving the father. However, the mother continued to exclude the father from obtaining information or attending medical appointments even when there were courts orders in place. In some of these instances the mother's lack of notification to the father of medical appointments in advance so he could attend would constitute contempt. Examples of appointments the mother failed to advise the father of and failure to abide by court orders are as follows:

a) The order of June 3, 2014 required that the mother notify the father of the child's medical appointments and that he was able to attend those meetings. But the mother told Dr. Smile during the assessment at Holland Bloorview that she was not comfortable with the father being in the same room. Dr. Smile expressed concern that the mother was interfering with the assessment process as the outstanding order clearly indicated that the father could be present;

b) A further order dated August 27, 2104 was necessary to again clarify that both parties were to co-operate with the assessment and medical appointment at Holland Bloorview and with any other appointments regarding Dean including but not limited to the current assessment for autism. Despite these orders, the mother then failed to notify the father of the Surrey Place assessment that followed a recommendation by Dr. Smile. The mother's excuse being that she was not sure that this was a medical appointment. She then testified that the assessors were to notify the father. But Ms Sosa, Ms Yuffe and Ms Rafaelle all testified that the mother said she would notify the father;

c) The order of February 21, 2014 specified that the mother agreed to the release of the information of both the child and herself. The mother then refused to release any information in "her file" at Hinks-Dellcrest but did not clarify what information was hers, testified she did not understand the order despite the fact she had counsel and the order was on consent. As a result Hinks-Dellcrest refused to release any of the file and a summons for the production of the file was necessary;

d) The mother attended an appointment with Dr. Flanders who she retained as Dean's new pediatrician without prior notice to the father. The mother's excuse was that this was just a consultation and not an appointment despite the fact Dean was present and examined. The appointment record entered on consent indicates that it was an "initial appointment";

e) The mother attended with Dr. Sloman, a child for a psychiatrist, for a 4 hour appointment with Dean without prior notice to the father. The mother testified that she attended for a consultation and assistance in managing certain aspects of Dean's behavior. If this was the real purpose of the consultation then there is no excuse for the mother not advising the father of the initial appointment so he could attend. Instead, after this first meeting the mother then advised the father that Dr. Sloman wanted to see him but did not reveal the reason. It became clear through the evidence that the mother's true purpose had been for Dr. Sloman to conduct an assessment mid-trial and give an opinion about access;

f) The mother attended at the emergency department of the hospital on 3 separate occasions on November 20, 2014, February 5 and 10, 2015. The text messages the mother sent to the father were entered into evidence. All of the times the mother sent the texts were either shortly before she was leaving or after she had already left the hospital. The mother testified that the times were wrong that is, that she sent them much earlier than the time stamp as to when the father received them. I considered whether or not I could take judicial notice of when text messages are sent and received, but determined that would not be appropriate. Instead, I find that based on the mother's pattern of not advising the father of appointments that it is more probable that the mother purposely sent the texts late so that the father would not be able to attend at the hospital; and

g) The mother did not advise the father of the details of the classes at the Toronto Autism ABA services and an order was made on April 27, 2015 mid-trial so that the father could attend and participate in Toronto ABA, Surrey Place and Under the Umbrella.

[205] The mother has been unwilling to communicate with the father. The mother has given numerous excuses for her inability to communicate such as not always having access to the internet, not always having a reliable phone and not having time to respond to texts or emails. The mother is unwilling to communicate more than once a week and then only through the communication book. The father has requested that the parties communicate through email or text. He testified that he does not have enough time during his short access visits to write any detailed comments. The mother then complained that the father does not communicate with her about what the child did on the visits. In reviewing the communication book I found no problems with the father's entries regarding the access visits.

[206] However, I find that only relying of the communication book does not provide enough scope for any detailed entries regarding a child with special needs and is problematic in dealing with issues that require a more timely response. The parties require ongoing communication to ensure all of Dean's needs are being met, to keep each other aware of changes to those needs and to keep track of his many appointments. During the mother's counsel's opening trial statement he submitted the mother was willing to communicate through using Our Family Wizard which would be an ideal mode of communication for these parties. But the mother in cross-examination testified that she would not communicate more than once a week and could only do so through the communication book. She blamed her counsel for suggesting the use of Our Family Wizard.

[207] I find that this is another example of the mother excluding the father by not being willing to share information in a meaningful and time sensitive way. There are many examples of her lack of proving details to the father of the services in place for Dean or his needs. For example, she attached to her affidavit a detailed summary of Dean's routine but nowhere in the communication book does she provide such details to the father.

8.4 (d) Plans proposed by the parties

[208] The mother testified about her plans for schooling and services for Dean. However, she was asked in direct examination, cross-examination and I permitted her to be asked again in re-examination what her plan was with respect to the father's access, the only response was that access should increase based the child's developmental age and needs as set out in the final consent order of June 13, 2012. She proposed that a professional determine when and how the father's access be increased. When I advised the mother that this is the issue the court was to determine at this trial, the mother again would not provide any input into when and how the father's access should be expanded. When I asked the mother her views about the holiday access schedule proposed by the father that they would share holidays such as Christmas and Easter, the mother replied that she had a lot of family and every part of those holidays was important to her.

[209] The mother mentioned several times that the father had not yet taken the Triple P Parenting workshop and seemed to imply that before access should not be expanded the father should take this program. The father tried to take this program through Holland Bloorview as Dr. Smile had recommended the program. But he was unable to do so as he later found out the program was no longer offered there. In the meantime, the mother took the program through the Geneva Centre but never told the father he could take the program there. If the mother felt this program was so vital then there is no reason she should not have done all she could to ensure the father took the program and advised him where it was being offered. I also note that the mother has not insisted that Dean's other caregivers, the maternal grandmother or Kevork Marsh or her friend take this program.

[210] Counsel for the mother submitted that a parent coordinator be appointed to help the parents resolve future disputes. When the court pointed out that the court did not have the jurisdiction to delegate decision making to a third party unless the parties agree, counsel proposed that if the parties could not resolve their dispute based on the recommendations of the parent coordinator then either party would be able to return to court for a determination. Counsel for the mother did not question the mother about this proposal or how she would have the funds to pay for such a service. I find that given the level of conflict in this case this is an unrealistic and impractical proposal.

[211] The father's plan is to continue to exercise access at his home that was inspected by Ms Sosa and deemed appropriate and safe. He has proposed a plan to expand his current access to day access, then to three overnights a month and then to an alternate week schedule. He proposed that if the court was not prepared at this junction to order a future alternate week schedule, that I remained seized of the case and that a mechanism be put in place for a future focused court proceeding to deal with this issue. He also proposed a sharing of holiday access and a detailed parenting plan with respect to sharing of and obtaining information, attendances at all appointments, communication issues and decision making.

[212] It is submitted by mother's counsel that the father did not provide any evidence that his proposed access schedule would be in Dean's best interests or that it would be consistent with Dean's therapeutic needs. However, it is clear from the evidence that I have accepted that the father has a good relationship with Dean, that he understands and can meet his needs, that there is no need for supervision, that the current access regime involves too many transitions and does not provide sufficient time for the child to spend with his father.

[213] There is also overwhelming evidence that the mother is intent on interfering with and marginalizing the father's role in his son's life to such an extent that it is impacting on this child's well-being. The mother subjected Dean to an examination at SCAN and despite their findings that the marks she complained about were not unusual and despite being told to stop checking Dean for marks and bruises by a social worker at SCAN she not only has continued to do this but her complaints are escalating. She is now reporting not just marks and bruises but welts and that the father is shaking the child. She has repeatedly reported these alleged marks or other injuries to the children's aid society, doctors and service providers and caused numerous investigations to occur. The continuation of such allegations, inspections of the child for marks and bruises, photographing and videoing the child, unnecessary hospital emergency attendances and ongoing investigations may, if this continues, raise child protection concerns about the emotional risk to the child due to the mother's conduct.

[214] Unfortunately, the mother is so intent on destroying a relationship between the father and Dean that she has used her rights as a sole custodial parent to jeopardize Dean's best interests.

[215] The difficult decision is how to fashion an order that ensures the mother who is Dean's primary parent continues to have an important role in Dean's life but also ensuring that she is no longer able to undermine the important role of the father in Dean's life.

8.5 Applicable legal principles regarding sole, joint and parallel parenting

[216] The term custody refers to decision-making and authority over a child's upbringing. An order of sole custody permits one parent to be responsible for the care and upbringing of a child including making decisions regarding the education, religion, health and well-being of the child. The parent is able to make decisions generally to the exclusion of the other parent.

[217] An order of joint custody requires both parents to be equally responsible for the care and upbringing of a child including jointly making decisions about all aspects of a child's life. This is regardless of where the child resides. Ideally, a child benefits if both parents, despite not being able to get along as partners are still able to get along as co-parents and discuss and agree upon issues that affect the upbringing and care of their child.

[218] The ability of parents to communicate or the inability of parents to communicate is generally the pivotal issue in determining if there should be an order of sole or joint custody. The case law has established that in order for a court to order joint custody there must be some evidence before the court that, despite their differences, the parties can still communicate effectively with each other.

[219] The cases have also recognized that just because one party states that the parties cannot communicate does not preclude a court from ordering joint custody where an examination of the past and present relationship indicates that the parties have the ability to behave appropriately with each other in the presence of the child and put their conflict aside for the sake of their child.

[220] However, although joint custody is not usually ordered where there is a history of a lack of ability to communicate, courts have increasingly been prepared to make such orders in high conflict cases where one parent has engaged in behaviours to exclude the other parent and it is in the child's best interests to preserve the other parent's relationship with the child.

[221] Parallel parenting is a parenting arrangement that has evolved to deal with high conflict cases where neither a sole custody order to one parent nor a cooperative joint custody order will meet a child's best interests. Parallel-parenting orders can take two different forms. A "divided parallel parenting" regime where each parent is given separate areas of parental decision–making, independent of the other parent or a "full parallel parenting" regime where parents are given the right to make major decisions regarding the child while the child is with them without the consent of the other parent.

[222] In V.K. v. T.S., Justice D. Chappel thoroughly reviewed the case law and set out in paragraph 96 of her judgment factors the court should consider in determining whether a parallel parenting regime, rather than sole custody, is appropriate: as follows:

a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[223] In K.H. v. T.K.R., Justice S. Sherr adopted the above-noted factors and added the following further considerations:

1. The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

2. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?

3. The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

4. The family dynamics. The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents' conflict.

8.6 Application of finding of facts to legal principles of an appropriate parenting order

[224] For the facts set out earlier, it is clear that the mother can simply not be trusted any longer to be the sole custodial parent. Although traditionally joint custody is only ordered where there is co-operation and respect between parents, as indicated above courts are increasingly ordering joint custody where it is necessary to preserve the balance of power between the parties and where one party is primarily responsible for the lack of co-operation and lack of communication.

[225] Throughout the father has been respectful of the mother and contrary to the mother's evidence he has not spoken disparagingly about her. He has demonstrated extreme patience with the many demands made of him by the mother and tolerated some very disturbing behavior and allegations against him by the mother. He has tolerated sitting in appointments by himself while the mother brings an entourage with her for these appointments. If the father had a more developed relationship with Dean I might have considered a change of primary residency and if the mother continues on the same path she has followed this may be the end result. I find that the father would discharge his legal obligation to encourage a relationship with the mother if the roles were reversed. By contrast the mother has disparaged the father at every opportunity she has had and has not been able to separate her views about the father from her child's best interests. She has maintained a rigid and distorted view of the father as a dangerous outsider and abuser.

[226] I have considered the recent comments of Justice Benotto in the case of M. v. F. wherein speaking for the court she opines that court can make no order for custody:

For many years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of "custody" and "access". These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this "winner/loser syndrome" in child custody battles has long been recognized.

It was therefore open trial judge to adopt the "parenting plan" proposed by the assessor without awarding "custody". It was also in keeping with the well-recognized view that the word "custody" denotes "winner" so consequently the other parent is the "loser" and this syndrome is not in the best interests of the child.

[227] However, in this case given the multiple medical and other professionals involved in Dean's life and the difficulty that the father has encountered obtaining medical and other records from the various institutions, I find that using the traditional terms of "custody" and in this case the term "joint custody" is necessary to ensure there is no further misunderstanding about the ability of both parents to access information about their son. Based on the evidence before me, I find that the reputable institutions involved in this case have been stymied by the mother and their own internal regulations about the release of information and that clear language indicating that both parents are custodial parents is required in addition to a detailed parenting plan.

[228] During the father's reply evidence he testified about a further difficulty in obtaining medical information despite the fact that the court order of June 13, 2012 permits him to do so. The SickKids took the position that despite the order, it was the mother's responsibility and not the hospital's to provide him with information.

[229] Further despite section 20 (5) of the CLRA that provides that an access parent shall have the same right as the custodial parent to make inquiries and to be given information as to the health, education and welfare of a child, the language of the Personal Health Information Protection Act restricts an "access parent" from accessing medical information and records regarding the child if the "custodial parent" withholds consent. The only recourse for the access parent is then to apply to the court pursuant to section 20 (7) of the CLRA to obtain a specific order for the release of medical information. Father's counsel has proposed specific language that will ensure that there are no ongoing difficulties with accessing medical information and complying with the language of the PHIPA that I propose to order.

[230] A joint custody order that clearly specifies each parent's decision-making, that is a parallel parenting order, is the only feasible alternative to meeting the needs of this child and ensuring both parents have a role in his care. I am under no illusion that there may still be ongoing disputes over the definitions or situations that have not been contemplated by my order. But I am hopeful that this trial and this decision will have some beneficial effect and that the mother in particular will have seen the negative impact that her behaviour has had and that she can recognize that, in view of Dean's special needs, it is in his best interests that both parents be fully involved in all aspects of his life so that he can achieve the best possible outcome.

[231] Both parents have agreed to follow through with taking a program for separated parents through Families in Transition and this may also assist them in learning better ways to communicate.

9. Incidents of custody and access

9.1 Applicable legal principles

[232] The term "custody" is not defined in Ontario legislation. However, it is generally understood to consist of a bundle of rights and obligations, referred to as "incidents" of custody in sections 20 and 21 of the CLRA. Section 28 of the CLRA, that was introduced in 2009, now clearly states that the court may determine any aspect of the incidents of custody and access and that a court can make specific orders that the court considers necessary and proper in the circumstances. Section 28 provides as follows:

28. (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child's residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child's passport, the child's health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. R.S.O. 1990, c. C.12, s. 28 ; 2009, c. 11, s. 12

9.2 (a) Application of legal principles to findings of fact

[233] As this is a motion to change and I have found that the threshold has been met, the second stage of the inquiry requires the court to consider the issue anew. Both parties bear the evidentiary burden of demonstrating what decision making arrangements regarding Dean's education, medical needs and his other general needs are in his best interests.

[234] I will outline generally the basis for the orders I intend to make and then deal more specifically with decision making regarding Dean's education and medical needs.

[235] It is my intention to use the statutory powers in section 28 of the CLRA to make various conduct orders and ensure that there are no further barriers to the father being a fully participating parent and being able to access all records and information about Dean and to remove the unnecessary restrictions that have been placed on the father's contact with the child.

[236] I find that it is in the child's best interests to make orders that:

a) remove the unnecessary restrictions placed on the father pursuant to the final order of June 13, 2012 and the temporary order of June 3, 2014. I find that the redacting of the mother's address had no evidentiary basis at the time the order was made and has no basis at this time. Further, the restrictions placed on the father in the temporary order of June 3, 2014 with respect to not feeding the child and restrictions on the father's participation at medical appointments was based on misleading information provided by the mother at the time and that based on the evidence and findings made at this trial those restrictions are not warranted;

b) ensure that the father is aware of any changes in the mother's address and contact information and that there are restrictions on the mother's ability to move without consent so that the father's ongoing participation in the child's life is not disrupted;

c) ensure that there are no longer any barriers to the father obtaining medical, educational and other information about the child and ensuring that he is entitled to fully participate in all aspects of the child's life and that the mother is no longer able to block or interfere with his participation;

d) ensure that all third party service providers are aware that the father is not someone to be feared and that the mother be refraining from continually portraying him as an abusive, uninvolving and uncaring parent;

e) ensure that the child's medical and educational needs are met and that the parents abide by the advice of the child's treating health care providers and the recommendations made by Dr. Smile regarding services recommended to treat the child's autism; and

f) ensure that the child receive continuity of care as recommended by Dr. Smile and that the mother be prohibited from engaging new health care providers and not taint them against the father by continually bringing up past issues.

9.2 (b) Decisions regarding Dean's education

[237] At the end of the oral submissions on August 25, 2015, the court was asked by father's counsel to make a ruling with respect to which school Dean would be attending as of September for Junior Kindergarten as the trial decision would not be rendered by the start of school. It was his position that the child should attend junior kindergarten at the 'Yes I Can' Pre-School as long as the mother was eligible for a subsidy.

[238] During the mother's testimony, she stated that she was still considering where Dean should attend junior kindergarten although she was leaning towards the specialized program at the Toronto District School Board ("TDSB"). During oral submissions mother's counsel submitted that the child would be attending the TDSB.

[239] For oral reasons I indicated that Dean should continue to attend his current daycare in their junior kindergarten program. I indicated that the decision was not based on the fact that the mother had not included the father in the decision-making process. I indicated that despite the fact that the mother, as the custodial parent, was entitled to choose the child's school the court may scrutinize her decision if it found that the decision was not in the child's best interests.

[240] I made the order for the following reasons:

a) The Education Act only requires compulsory school attendance when a child turns 6 years old and Dean will only be turning 4 years old on October 26, 2015;

b) Karen Stemer, the supervisor of 'Yes I Can', testified that all of the teachers had degrees as early childhood educators and were trained in ABA and autism in genera. The child is placed in an appropriate program based on his developmental age as opposed to his chronological age;

c) Ms Stemer believed that a subsidy would be available for junior kindergarten;

d) The mother selected this pre-school on the basis that it had experience with autism and attempts to integrate autistic and neurotypical children;

e) Dean is familiar with the teachers and has shown improvements in the pre-school program and has additional supports for his language and speech delays;

f) The mother emphasized throughout her evidence that transitions court were difficult for Dean so if a change of schools is not necessary it will benefit him to remain in a familiar environment. Mother's counsel submitted that in any event Dean will need to transition to the public school system but a further year or two in pre-school may improve his abilities to handle another change; and

g) The mother had not provided any documentation or called any evidence about the TDSP program although she was aware that the father was challenging her decision about the school placement. Ms Stemer was not cross-examined about the adequacy of the program at the pre-school or the pre-school facilities or services.

[241] The order made was made conditional upon the mother being able to obtain a subsidy for Dean to attend pre-school as opposed to free public school education. The mother was required to provide copies of documentation for her subsidy application and if there was any dispute regarding the mother's attempts to obtain a subsidy then she was required to sign a consent to enable counsel to obtain that information. If the subsidy was not available then Dean would be enrolled in full-time junior kindergarten at TDSB. The order also provided that if there were any problems or a dispute about the schooling that counsel were to appear before me prior to the commencement of the school year.

[242] Counsel for the father submitted a Form 14B motion for directions as there were problems with the implementation of my order. A telephone conference call was arranged for September 17, 2015. Both counsel filed affidavits from their clients.

[243] If was mother's position that she applied for the subsidy and was turned down and that no written reasons were provided although she attached to her affidavit the email exchange regarding obtaining a subsidy. She had not previously provided this to father's counsel or signed the consent he provided. After filing the affidavits I was told by mother's counsel that she would be signing the consent and it would be forwarded to father's counsel. The mother did not explain why she had not agreed to accept Ms Stemer's assistance in applying for a subsidy or why she had not signed the consent to permit Ms Stemer to speak to the subsidy office.

[244] Based on the materials filed, it is clear that although a subsidy is normally not available for kindergarten as free public education is available, if there are special circumstances such as the special needs of a child then a subsidy may be available. The mother did not provide information that indicating that Dean has special needs and why continuing at his pre-school would be in his best interests.

[245] The mother then enrolled Dean at the Flemington Public School in the TDSB and in her affidavit details the deficiencies of the 'Yes I Can' pre-school program and the benefits of the junior kindergarten program Dean is presently enrolled in through the TDSB. As indicated to counsel I am not prepared to consider this new evidence as it is clearly evidence that was available to the mother and should have been presented at the trial.

[246] I granted the relief sought by the father for the mother to sign the directions and consents for father's counsel to receive the disclosure previously and made further orders to ensure compliance with my original order and reserved costs of this motion. I endorsed that:

It is clear from the affidavits of both parties that the Applicant has not complied with my order. She has essentially attempted to ensure that she would not obtain a subsidy so that she could continue with her plan to enroll the child in the public school system.

[247] I find that the mother breached not only the spirit and intent of the order with respect to Dean's schooling but the actual terms of the order. This is further evidence that the mother is intent on pursuing what she believes is in Dean's best interests regardless of any court order. I am therefore persuaded that the father is the parent who should have the final decision making authority regarding Dean's schooling. I have confidence that the father will consult with and include the mother in any decisions regarding schooling and that he will be willing to follow recommendations of the school or any other service providers.

9.2 (c) Decisions regarding Dean's medical needs

[248] There will be many ongoing decisions that need to be made regarding Dean's medical needs and in particular to monitor the treatment of his club feet and services for his diagnosis of autism. Since his birth the mother has been the parent responsible for making these decisions. It is submitted that she is the parent with the most knowledge of Dean's needs, that she is the parent that has been responsible for obtaining funding to obtain special services for Dean and for following through and arranging for those services.

[249] I agree that the mother has more knowledge currently than the father about Dean's needs and has taken on the role of advocating and obtaining services for the child but this is based on her refusal to permit the father to take an active role in the child's life. There is no reason to believe that he is not as capable as the mother and when permitted to attend services such as the ABA sessions he has shown an eagerness and ability to improve his skills and his understanding of dealing with Dean's autism.

[250] There are valid concerns raised by the father as substantiated in the medical records that there are concerns about the mother's management of Dean's club feet, that she is not following the prescribed regime for him wearing his boots and bar and has caused him to unnecessarily be monitored by a multiple of health care providers for no good reason and to Dean's detriment.

[251] The mother has not followed the primary recommendation of Dr. Smile that Dean needed to attend daycare on a regular and full-time basis. In fact, in one of the notes of Ms Atero the mother is quoted as saying that she feels that "daycares are just glorified babysitting" places which may explain why she has been so lackadaisical about taking him. But again the mother has not followed advice to the detriment of Dean.

[252] Dr. Smile also emphasized the importance of continuity of medical care but yet again the mother did not follow this advice and changed pediatricians. The mother initially led the father to believe that Dr. Flanders' office was more convenient which turned out not to be true. Then she attended the first appointment with Dean without the father. On the first appointment the father attended, he testified that he was greeted by a comment from Dr. Flanders that he was "the father who does not accept his son has autism".

[253] I also find that the mother involved Dr. Sloman not for the purpose of helping Dean but to obtain an opinion regarding curtailing the father's access. No professional recommended a psychiatrist become involved. The mother simply asked Dr. Flanders for a recommendation and he made it without exploring the need or purpose of such a referral and based on information he obtained solely from the mother. I agree with the father's position that Dean has enough professionals involved in his life and unless there is a specific need to involve a new professional no one else should become involved. In this case the underhanded nature of the mother's actions are also concerning as is the doctor agreeing to prepare an assessment without first fully informing both parties of his intentions especially at he was aware that there was an ongoing court case.

[254] Based on the evidence I also have concerns that the mother has exaggerated some of Dean's symptoms to bolster her position that the father's access should not be increased but should be decreased and revert to being supervised. It is of course detrimental to Dean if his service providers do not have accurate information about him. One stark example is the mother repeatedly reporting Dean's sleep difficulties but the report of the sleep clinic of February 18, 2015, that the mother did not voluntarily disclose, states that he had no sleep difficulties.

[255] By way of another example, after the first unsupervised access visit the mother noted the child's cheek was red and the father explained that he fell on the grass. The mother testified that several hours later she called Telehealth who sent an ambulance and "made her" take Dean to the hospital and she blamed the father. Her own witness, Mary LaFramboise did not see any concerning mark and as a retired children's aid society social worker she understood her obligation to report any concerns. The hospital report indicated the mother reported Dean fell on the grass, she was worried about a head injury and he was vomiting. The report indicates that he only had a slight rash on his face

[256] There are numerous references in the medical notes and the notes of various service providers that the mother needed to be redirected to speak about Dean's needs rather than to focus on the issues between her and the father. Again this interferes with Dean receiving the care he requires.

[257] Based on the mother's knowledge of autism and the contacts she has established with various agencies, I considered that perhaps the father should be given final decision making regarding medical issues and the mother regarding issues regarding autism. But based on the mother's lack of compliance and her interpretation of previous court orders, I find that the mother would find ways of misinterpreting what constituted medical versus autism decisions and that such a division of decision making would cause more conflict between the parties and confusion for the service provides.

[258] I therefore find that the father should have final decision making with respect to all health related decisions including any decisions with respect to Dean's autism. There should not be many decisions that should cause disputes in view of the very detailed order that will be made that includes a requirement to follow the recommendations of health care professionals. I find that father is the parent who can be trusted to consult with the mother and if they cannot agree then I find he can be trusted to make a decision that is in the child's best interests. The father has no hidden agenda against the mother whereas the mother has shown herself to be a parent whose anger against the father has clouded her judgment so that she has made decisions that are not in Dean's best interests.

10. Parenting schedule

[259] The father has provided a detailed schedule for a gradual increase in his parenting time with the child.

[260] The mother has submitted that Dean has trouble with transitions which is of course not uncommon for children with autism. Several strategies have been suggested to the mother with respect to transitions such as verbal warnings and visual aids.

[261] The mother testified that Dean has particular problems transitioning to access visits and she described troublesome behaviours and tantrums that can last for hours after an access visit. But I find that the evidence does not support this allegation. In coming to this conclusion I rely on the following evidence:

a) The father's evidence that initially at the access centre there were a few occasions when the Dean cried but he then settled down and since the unsupervised access there have not been any issues with Dean coming to him for the visits or any serious problematic behaviours;

b) Since September 27, 2014, when exchanges occurred at APCO the notes do not indicate any issues with transitions except for May 30, 2015 when the mother called to say Dean was outside and did not want to come in and the mother wished APCO staff to document statements he was making. But once inside then Dean transitioned to his father without incident;

c) Ms Muscan and Mr. Finck, the father's witnesses also testified that they had not observed any problems on the transitions or while the child was in the father's care. Neither of these witnesses' credibility was impugned on cross-examination;

d) Ms Sosa, a trained children's aid society social worker, observed an entire visit on December 13, 2014. She observed a visit at the mother's home, during the transfer, at the father's home and after at the mother's home. She did not observe any of the behaviours that the mother described or any problems with the transitions. Although she did comment that there was a long ride between the parent's homes for such a short visit. She did not see the mother use any visual aids to facilitate the transition;

e) Mary LaFramboise, the mother's witness, attended at the mother's home before and after a visit on April 4, 2015. She testified the mother told the child to get ready in a positive voice and he did with the mother's help and with no problem. She then re-attended at the mother's home after the visit for about 1 1/2hours to 2 hours and there were no incidents or problems and that Dean played and then had a nap. She also was at the mother's home after the father's visit on June 13, 2015 and stayed for about 1 ½ hours and noted that Dean played again with Mr. Marsh and nothing remarkable happened;

f) Viviene Sang, maternal grandmother did not testify as to any problems she witnessed on the transitions and that sometimes they (she and the mother) do not even tell Dean where he is going; and

g) MsYuffe and Ms Raffaele testified that there were no transition issues at the daycare except some concerns about the mother lingering too long.

[262] I find that there is no evidence to suggest the father cannot provide a safe and secure home environment for Dean nor is there any evidence that because of Dean's special needs he cannot gradually transition to spending more time in his father's care.

[263] I find that quite to the contrary due to Dean's special needs and the amount of time and energy each parent needs to devote to caring for him that sharing his care is to his benefit.

[264] However, in considering the final phase of the father's parenting plan, which is a week about schedule, I find that the court would require further evidence with respect to how Dean has transitioned into spending a considerable amount of time with his father including overnights before such an order should be considered by the court.

[265] If the father wishes to pursue an alternate week schedule or if the mother wishes to alter the schedule in place after the final phase of the parenting plan that is being ordered, a more focused court process will be ordered. But the process will be in the nature of a review of the parenting plan without the necessity of either party proving a material change in circumstances.

[266] Neither party will be permitted to bring such a review or initiate any further motions to change without prior leave of the court. I make this order because of the enormous financial costs of this trial and the emotional toil of such a highly contested trial on both parents. Further, as with any change some dysregulation is expected and it is not to anyone's benefit for either parent to return to court every time there is some upset or tantrum by Dean.

[267] I expect the parties to abide by the terms of the order and if they can appreciate that each parent has an important role in this child's life and if they can learn to co-operate then I believe Dean's transition to spending more time in his father's care will proceed much more smoothly. I will remain seized of the matter to deal with any issues with respect to the implementation of this order and any future court proceedings.

11. Conclusion

[268] There will be an order as follows:

Paragraphs 1, 2, 6 and 8 of the Consent Order of Zuker J. dated June 13, 2012 are varied and are replaced with the following terms:

A. Decision Making

1. The Applicant, Genevieve Webster and the Respondent, Claudiu Suteu, shall have joint custody of the child, Dean Webster, born October 26, 2011.

B. Incidents of Custody and Access

2. For clarity, there shall be no restriction on the father from providing food and drink to the child, as set out in the interim order of June 3, 2014, while he is in the father's care.

3. For clarity, the limits on the father's participation at Dean's medical appointments, as set out in interim order of June 3, 2014, namely that the father may only listen and ask questions of clarification, are deleted.

4. The father shall be informed by the mother immediately of the address of her and Dean's residence and he shall be fully kept apprised in the future of any changes to Dean's residence. The mother shall provide the father with 90 days' notice in advance of any intended move and shall provide complete details of the new address and any new contact information. The father shall similarity be required to provide to the mother any change in his address and any new contact information.

5. The mother shall not move Dean's residence from the City of Toronto without obtaining the father's prior written consent or a Court Order.

6. If either party wishes to take Dean on a trip, he or she shall first obtain the consent of the other parent, with such consent not to be unreasonably withheld. If consent is not forthcoming, then either party may apply to the Court on motion for permission to travel with Dean. To secure the consent, the traveling party must provide the other with a proposed travel itinerary and contact information while away.

7. The parties shall continue to communicate about Dean using their communication book. They shall also exchange email messages or text messages between visits about issues concerning Dean that need to be discussed and/or addressed prior to the next transfer, or to share important information regarding Dean's needs between visits. In the case of an emergency or some very pressing reason, they may speak on the telephone concerning Dean between visits. All text or email messages shall be responded to in a timely fashion and in any event no later than within 24 hours. If the parties agree they can, in the alternative, utilize Our Family Wizard for communication purposes.

8. Each party shall have the right to receive information and documentation regarding Dean, including medical and health information and records, education records and more generally any other information and records from any third parties concerning Dean, directly from those third parties, without the need for the third parties to seek the other party's consent to the release of that information. Both parties shall execute any consent or authorization that may be requested by any third party for the release of such of information or documentation.

9. More particularly, the mother shall not object to the disclosure of Dean's files nor shall she cause any confusion to the record keeper by claiming portions of Dean's files are "her files" as a result of the fact that she may have provided information about herself to a third party providing care or treatment to Dean, or who is otherwise involved with Dean.

10. For clarity, these clauses governing the release of information are intended to include the release of any information or documentation supplied by either parent to the third party. To be clear, any and all information in any of Dean's files shall be released to both parents.

11. The terms of this Order respecting the release of Dean's medical files shall be sufficient authority for the release of information and documentation in accordance with the Personal Health Information Protection Act, 2004.

12. The requirement that the mother's and Dean's address need to be redacted from any records in Dean's charts or files held by third parties prior to the release to the father is deleted. There shall be no requirement to redact such information.

13. It is no longer necessary for father's counsel, Alex Finlayson, to only provide records to the father with the mother's address redacted and any records in Mr. Finlayson's file may be shared with the father, whether or not they contain the mother's address.

14. The mother shall keep the father apprised of Dean's medical, therapeutic, treatment, assessment, educational or other appointments as soon as she is aware of the date, time, and location of those visits, and both parties shall be at liberty to attend those appointments. The father shall provide the mother with similar information if he first learns of such an appointment. Neither parent shall unilaterally cancel an appointment for Dean. Nothing in this paragraph prohibits a third party from advising either party about an appointment directly. For clarity, just because the parents are ordered to keep each other informed, this is not mutually exclusive and any third parties shall inform either party upon request.

15. The father may participate in and attend all medical, specialist, treatment, assessment, educational, therapy, and any other appointments of a health care nature without securing the mother's consent. The mother has similar rights.

16. The father is at liberty to attend Dean's school or day care or any educational program or any sessions with a third party in connection with any health or educational issue that he may have without securing the mother's consent. The mother has similar rights.

17. Either parent shall also be at liberty to attend activities with Dean and special events that may be scheduled for any activities in which Dean is enrolled without securing the other parent's consent. Neither parent shall schedule any activities or special events when Dean is in the care of the other parent unless with prior written consent.

18. Only the parents shall attend at medical, specialist, treatment, assessment, educational, therapy, and any other appointments of a health care nature or at meetings with Dean's educational providers.

19. If any of the aforementioned professionals request to see a parent individually then he or she may attend alone but the mother shall not complain that she is afraid or uncomfortable in the father's presence to give rise to such a request by the professional, or suggest or request that the professional provide separate appointments.

20. Both parents shall ensure he or she fully follows the advice of any doctor, physiotherapist, occupational therapist, speech and language therapist or behavioural therapist working with Dean regarding prescribed treatments and techniques for managing any condition that he may suffer from.

21. Dean's pediatrician shall remain Dr. Aaron Lindzon.

22. Dean's club feet treatment shall continue to be provided at the Hospital for Sick Children and the parents shall follow whatever options are provided to them regarding the treatment of Dean's club feet. If Barbara Harvey is an option then mother shall withdraw any objection she may have to Barbara Harvey monitoring and treating Dean and Barbara Harvey may treat Dean. The father shall be responsible for arranging and taking Dean to these appointments. The mother may attend if she chooses.

23. The father shall also be at liberty to arrange as many appointments as are necessary with Barbara Harvey or any other medical professional to practice the use of Dean's boots and bar and the father shall have Dean in his care as required for the purpose of attending at the Hospital for Sick Children to do this even if the appointment(s) he is able to schedule fall on days that Dean is not otherwise in his care. He shall provide the mother with notice of the appointment(s) as soon as it/they are scheduled and then the father shall have Dean at that time. The father will be able to pick Dean up for attending at these appointments either from school or the mother's home.

24. Dr. Sloman shall not be involved in the assessment, diagnosis or treatment of Dean and he shall not be involved in Dean's care in any way.

25. The mother shall not involve any new medical professional, specialist, therapist, or educational professional unless already provided for according to the terms of this Order, without obtaining the father's prior written consent.

26. The mother shall not attend any appointments with any new professional involved in Dean's care without first securing the consent provided for in paragraph 25 and further she shall provide the father with 7 days advance written notice of any such appointment and invite him to attend.

27. Prior to making any important medical or educational decisions about Dean, the parties shall consult with each other. The duty to consult means that the parent with the information shall notify the other and provide him or her with sufficient details and his or her proposal and he or she shall ask for and consider the other's views. This shall be done at least 30 days prior to any decision or on shorter notice if necessary. In the event of a dispute the father shall decide any educational and medical decisions and advise the mother of his decision.

28. The mother shall not make any disclosure of, or complaints of historic domestic violence, verbal abuse, emotional abuse, intimidation, or of threats by the father towards her, nor shall she discuss in any way her version of these details, nor the details of her relationship with the father and its breakdown, to Dean, to the Children's Aid Society and to any third parties who have a duty to report to the Children's Aid Society. For clarity this paragraph refers to any such complaints or disclosures regarding facts that allegedly occurred prior to the date of the trial.

29. The mother shall be prohibited from inspecting and examining Dean for marks and bruises after spending parenting time with the father and from taking repeated photographs or videos of these inspections of Dean.

30. Neither parent shall disparage the other parent to Dean, or in Dean's presence, and he and she shall ensure that others in Dean's presence do not do so either.

C. Residential Schedule

31. Dean shall reside with his father as follows:

(1) Commencing immediately and for the next 2 months, every Sunday, from 10:00 am to 6:00 p.m. If the mother cancels a visit then the father shall have a make-up visit on the next Saturday in addition to his regular Sunday access;

(2) Thereafter, for three weekends out of four, from Saturdays at 10:00 am until Sundays at 6:00 pm for the next two months; and

(3) Thereafter, from Fridays after school or day care until Monday mornings, when he returns to school or day care, every three weekends out of four.

32. The child shall remain in the care of the mother at all other times.

33. The following holiday schedule shall override the regular schedule:

(i) The Father shall have Dean from Christmas Eve at 12:00 pm until December 25 at 12:00 pm in odd numbered years and the mother shall have Dean from December 25 at 12:00 pm until December 26 at 12:00 pm in odd numbered years and the parties shall alternate in even numbered years. Commencing in 2016, the balance of the break shall be split with the mother having the first half and the father having the second half in even numbered years and alternating in odd numbered years;

(ii) The father shall always have Dean on Father's Day from 10:00 am until his return to school or daycare on Monday morning;

(iii) The mother shall always have Dean on Mother's Day from 10:00 am until his return to school or daycare on Monday morning;

(iv) For Easter 2016, the father shall have Dean from Thursday at 6:00 pm until his return to day care or school on Tuesday morning. The mother shall have Dean from Thursday at 6:00 pm until his return to day care or school on Tuesday morning in odd numbered years;

(v) The father shall have every Orthodox Easter Sunday from 10:00 am until his return to school or daycare after the weekend, unless Orthodox Easter Sunday falls during the regular Easter weekend in which case paragraph (iv) above shall apply instead;

(vi) After Dean starts school with the Toronto District School Board the March Break shall be alternated such that he shall reside with his father from Friday after school until his return to school after the Break in one year and with the mother in the next year and so on. The March Breaks shall be alternated with the mother having the first March Break;

(vii) Commencing the summer after grade 1, each parent may have Dean for two weeks uninterrupted vacation in each of July and August. The parents shall notify each other of his and her chosen week by April 1, with the father choosing first after Dean's first year of school and the mother choosing first the next year and so on.

34. Transfers will continue to occur at APCO when it is open, otherwise all access transfers shall take place at the police station at 53 Division or at Dean's daycare or school when exchanges shall take place on days when Dean is in daycare or school, unless Dean is not in daycare or school that day in which case the transfer shall be at the police station. This requirement is in place only to avoid conflict between the parties and not as a result of any concern for safety or supervision.

D. Enforcement

35. I shall remain seized of the implementation and enforcement of this Order and of any future proceedings to change this Order unless there is an emergency or I am not available. No further proceedings shall be commenced without prior leave of the court to be obtained by submitting a Form14B setting out the relief requested and with a supporting affidavit, not to exceed 3 pages, briefly setting out the basis for the relief sought.

E. Other

36. The mother or her counsel shall within 14 days forward to the father or his counsel the necessary executed forms to have the records of the Registrar General for the Province of Ontario amended to show the father as Dean's father. Any costs shall be the responsibility of the father.

37. In the event that the mother is claiming any contribution from the father for any special or extraordinary expenses, as set out in paragraph 4 of the order of June 13, 2012, she shall provide him with a copy of her Notice of Assessment and tax return for the preceding taxation year.

38. The father who is currently on a wait list for the Triple P Parenting program shall provide to the mother proof of his completion of that program.

39. Both parents shall enroll in a program for separated parents through Families in Transition and provide proof to each other of completion of that program.

40. The orders of August 25 and September 17, 2015 relating to Dean's education remain in full force and effect. The order of August 25, 2015 is amended to replace the words "September 2014" in paragraph 1 with September 2015.

41. If either party is claiming costs, counsel shall within 30 days submit brief written submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle to be attached. The other party shall within 30 days of receipt of the submissions of costs submit a brief written response not to exceed 3 pages with any Offer to Settle and his own Bill of Costs, if desired, to be attached. Counsel may refer to any authorities but copies of cases are not required.

Released: September 29, 2015

Justice R. Zisman