ONTARIO COURT OF JUSTICE

Date: March 21, 2016

Court File No.: Halton 74/12

BETWEEN:

T.E.H.

Applicant

— AND —

G.J.R.

Respondent

Before: Justice Sheilagh O'Connell

Heard on: February 2-6, April 22-24, May 6, 12, July 13, 15, 2015, January 11, 15, and February 3, 2016

Reasons for Judgment released on: March 21, 2016

Counsel:

• A. Sam Zaslavsky and Victoria Colby for the Applicant
• Linda Joe and Modupe Ehinlaiye for the Respondent

O'CONNELL J.:

Introduction

1In this trial, each parent seeks sole custody of the three children. The children are now eight, five and three years old.

2This is what has been described as a 'high conflict' case. The parties have been in family court proceedings involving their children since 2012.

3The applicant mother ("the mother") seeks sole custody and primary residence of all three children, to reside in Scarborough with her and her parents, and to attend school in Scarborough. At the beginning of the trial, the mother sought an order that the father's access to the children occur every weekend or alternating weekends from Friday after school until Sunday evening.

4However, at the trial's conclusion, the mother revised her position on access. She now requests an order that the father's access to the children be supervised at a supervised access centre.

5The respondent father ("the father") also seeks sole custody and primary residence of all three children, to reside in Oakville with him. He requests an order that the mother have access to the children three out of every four weekends of each month.

6In the alternative, the father seeks sole custody of the two older children and an order that he have access to the youngest child every Sunday and one full weekend of each month.

7Currently the two older children live with the father in Oakville, and the youngest child lives with the mother in Scarborough.

8The two older children see their mother and younger brother every weekend from Friday after school until Sunday at 5 p.m. The youngest child sees his father every Sunday prior to the father's pickup of the two older children from the mother's home.

9The trial in this matter continued over several days and a number of months. The parties filed over 100 exhibits, including police and CAS reports, medical reports, psychiatric reports, photos of alleged injuries, and voluminous text and email messages between them. Nine volumes of transcript were filed. The witnesses included the OCL clinical investigator, child protection workers, school teachers, a housing worker, a psychiatrist, landlords, other professionals, family members and friends.

10After the trial concluded, the mother brought an urgent motion for temporary custody pending my reasons for judgment based on a change in the father's circumstances. The father and his common-law partner had separated and the father and the two older children were facing possible eviction and homelessness. The father has now secured temporary housing for the children and him in the Oakville area and is seeking more permanent housing.

11The father brought a motion to re-open the trial to introduce new evidence of his revised plan of care. In an earlier ruling, I granted leave for further evidence to be heard and adjourned the mother's motion pending these reasons.

The Issues

12The issues to be determined are:

1. What custody and access order is in the children's best interests?
2. What child support should be ordered, if any, depending on the custody and access ordered?

The Mother's Position

13The mother submits that the current parenting arrangements were never made with the children's best interests in mind. It is her position that the current status quo was created by the two ex parte orders obtained by the father on the basis of false allegations about her mental health and her capacity to parent. Prior to the establishment of the current "false" status quo, she states that she had always been the children's primary caregiver and had met all of the children's physical and emotional needs.

14According to the mother, the father's allegations regarding her mental health are baseless and reflect a pattern of abusive and controlling behaviour by the father against the mother throughout the parties' relationship. The mother submits that any mental health problems that she may have had in the past were the result of her abusive relationship with the father.

15The mother also submits that the older children are at risk of physical harm in the father's care. She asserts that the older children have consistently suffered injuries and a number of medical conditions while in the father's care due to the father's neglect, corporal punishment and abuse, often leaving physical bruising on the children.

16Finally, the mother submits that the father lacks the stability to be the children's primary caregiver. He has been evicted from at least three homes. She states that he is incapable of sustaining employment, housing, or relationships. He is once again looking for permanent housing for himself and the children after facing eviction. According to the mother, the father is simply using the children for financial benefit, namely to collect the child tax benefit and social assistance in order to support himself as he is unemployed.

The Father's Position

17The father submits that the two older children have been in his primary care and custody since 2013, and that they are thriving in his care. According to the father, he has been able to provide the children a loving home and to meet all of their physical and emotional needs. He asserts that he has been actively involved in parenting all of the children and he is the only father that the oldest child has ever known.

18The father further submits that he has the better ability to act as a parent for the children. It is the father's position that the mother has significant mental health issues, including a previous diagnosis of borderline personality disorder or a bipolar disorder which has significantly impacted her ability to parent and to make good parenting decisions. He submits that these concerns have been corroborated by the OCL clinical investigator and the Halton Children's Aid Society.

19Finally, the father asserts that he is the better parent to actively encourage a relationship between all of the children and both parents. He submits that mother is actively sabotaging his relationship with all three of the children, causing them emotional harm. He states that the mother has told the oldest child that he is not her real father and prohibits her from calling him "Daddy" while in her care and that the mother repeatedly interrogates the older children and falsely accuses him of physically abusing the children.

Summary of Relevant Evidence

Background

20The mother is 27 years old and lives in Scarborough, Ontario. The father is 33 years old and lives in Oakville, Ontario.

21The parties were involved in a relationship from on or about May of 2009 to February of 2013. They were never married, although they lived together for periods of time throughout their relationship. The lengths of cohabitation are disputed by the parties.

22There are three children of their relationship, K.L. (eight years old), M. (five years old), and P. (three years old).

23K.L. is not the father's biological child. At the time the parties became involved, K.L. was seven months old. The mother was in a previous relationship with K.L.'s biological father.

24It is not disputed that K.-L. has had no contact with her biological father and that the father in this proceeding is the only father that she has known. K.-L. believed that he was her biological father until after the parties separated.

25The father has no other children although he was previously married in London, Ontario. Although separated from his first wife, they have never divorced. The father was also involved in a relationship with M. M. From on or about 2013 to December 2015. They lived together with the children until December 2015 when M. M. left the home.

26Although the exact dates are in dispute, the parties separated initially in 2011. The mother brought her first application for custody in February of 2012. At that time, K.L. was in the mother's care and M. was in the father's care.

27After the commencement of the first custody application in February of 2012, the father was granted temporary custody of M. pursuant to an urgent, ex parte (without notice to the mother) motion. The father alleged that the mother had unlawfully removed M. from his care and that she had serious mental health concerns. K.L. remained in the mother's care.

28The parties later reconciled and the mother's custody application was dismissed in October of 2012. The parties' third child, P., was born shortly thereafter in December of 2012. At that time or shortly thereafter, the parties were living in emergency housing in Oakville after they had been evicted from their home.

29The parties separated on a final basis in February of 2013. It is not disputed that the Halton children's aid society was actively involved with the parties at that time and advised the parties to separate because their conflict was causing the children emotional harm.

30According to records filed, at the time of the parties' final separation, the police had been involved with the parties regarding domestic disputes on at least fourteen different occasions between May of 2010 and January of 2013. On almost all of those occasions, the children were present.

31The application for custody was reinstated in March of 2013. The father then initiated emergency proceedings for custody of all three children again on an ex parte basis, alleging that the mother had very serious mental health issues and had abducted the children. The father was granted temporary custody of all three children.

32At the time that this order was granted, P. was only eight weeks old and still breastfeeding. The father agreed that P. could remain with the mother, on condition that she live in a supervised setting in Oakville. The mother and P. moved into the home of Cathy Bales, a foster parent working with young mothers, in Oakville.

33On April 25, 2013, both parents brought motions for custody. The court referred the issues of custody and access to the Office of the Children's Lawyer (OCL) for a social work investigation and report. The court also made a temporary order that the two older children shall primarily reside with the father in Oakville and that the youngest child shall reside with the mother and her parents in Scarborough, pending the completion of the OCL investigation. The mother and the youngest child then moved to Scarborough to live with her parents.

34Since that time, the mother and P. have lived almost continuously with her parents in Scarborough, but for a very brief period when she rented an apartment close to her parents' home.

35The mother's parents and her extended family, all of whom live in Scarborough, are an integral part of her plan of care for the children and provide active support to the mother.

36The father re-partnered after the parties' separation and he and his new partner, Ms M. M., started cohabiting in Oakville with the two older children in approximately May of 2013.

37During this trial, the father was still living with M.M. and the two older children until December 2015. M.M. worked full-time and financially supported the family. She was also actively involved in the primary care of the children. The father was unemployed.

38Following M. M.'s departure, the father can no longer afford his housing and was facing eviction for non-payment of rent. The landlord has also sold the property and the new owners are planning demolition. The father and the children will need to leave this housing imminently.

39The father is now actively seeking affordable housing. His mother and his younger brother are currently living with him. They are currently assisting with child care and some financial support.

40A member of the father's extended family has offered the father temporary housing in an area close to the children's school until the father is able to secure permanent housing. He and the children plan to move into this housing while he looks for more permanent housing. The father testified that his mother and brother will move in with him and the children to provide support and financial assistance.

41At the time of trial, the mother had recently started full-time employment in the food and beverage industry and has now been promoted in that position. Her mother and other family members are involved in the care of P. when the mother is working.

42The father testified that he recently secured part-time employment for a carpet installation company and he is actively seeking full-time employment. He is also in receipt of Ontario Works.

The Mother's History

43The mother described a troubled adolescence and a difficult relationship with her parents in her youth. She left home as a teenager. She lived in foster care under the care of the children's aid society and with her grandmother. She also lived in shelters from time to time, although eventually returned to her parents' home.

44The mother did not complete high school. However, while living with the father, she returned to school in 2011 to obtain her high school equivalency. It was not clear from the mother's evidence whether she has now completed this. She does not have any post-secondary education.

45The mother testified that her relationship with her parents is now very close and supportive. The mother's parents did not testify during this trial.

46Prior to meeting the father, the mother was involved with a man whom she described as extremely violent and dangerous, and who was also a sexual offender. She met him while living in a shelter as a teen. She testified that he physically and sexually assaulted her. During that relationship, she became pregnant with the oldest child, K.L. At some point in this relationship she moved to Newfoundland with him. K.-L. was born when the mother was 19 years old.

47The mother left that relationship and returned to Ontario. On March 27, 2009, she was granted final custody of K.-L. and an order that the biological father have no access. K.L. was approximately five months old at that time. The biological father continues to live in Newfoundland.

The Father's History

48Like the mother, the father also described a troubled adolescence and childhood. He did not know his father growing up and he described his mother as struggling throughout her life with mental illness. He described the challenges of growing up with a parent struggling with mental illness and poverty. He testified that in the past, the relationship with his mother has been strained and difficult. He has a younger brother and he testified that he has always looked after him.

49The father now describes his relationship with his mother and his extended family as very close and supportive. The father's mother did not testify at this trial. He does not have a close relationship with his father. His mother is now living with him to assist in the care of the children. His mother source of income is ODSP. The father testified that his mother now suffers from a number of physical limitations and cannot walk unassisted.

50The father did not complete high school and started working at the age of seventeen. He lived with his grandmother for a period of time and he has also lived in shelters from time to time.

51The father has a criminal record. When he was 18 and 19 years old, he was convicted of two counts of theft, possession of stolen property and carrying a concealed weapon. The father has not been convicted of any criminal offences since that time. He described this time as a difficult period in his life and that he has been attempting to obtain a pardon for a number of years.

52Although the father testified at length about numerous accomplishments and employment opportunities, his employment history appeared actually very sporadic. He was unemployed for approximately three to four years during his early 20s while he was going through a difficult period and then a number of different jobs which he left after short periods of time. The father provided many different reasons for this.

53The father attempted to start his own landscaping and contracting business during the parties' relationship, however this was unsuccessful. He blames the mother for this. He occasionally worked as a contractor or in construction and has been looking for steady employment for a significant period of time.

54The father continues to struggle with employment and does not appear to have sustained full-time employment for a number of years. The father states that his criminal record and his lack of high school equivalency were major obstacles. The father recently obtained his GED or high school equivalency in November of 2015. He testified that he is now training to be a millwright.

The Parties' Relationship

55The parties became involved through an online dating site in May of 2009, shortly after the mother's previous relationship ended. The mother and K.-L. moved into the father's home with his brother and father in Burlington Ontario soon after the parties became involved.

56The mother testified that she had only recently left the abusive relationship with K.L.'s biological father and then moved almost directly into an abusive relationship with the respondent father.

57The mother does not dispute that the respondent acted as a father towards K.-L. throughout their relationship and that K.-L. believed that he was her father and called him "Daddy". She further acknowledged that the father appeared to love K.-L.

58The father described being very happy at being a father to K.-L. He testified about his relationship with K.-L. during the parties' relationship in great detail.

59It is also not disputed that the parents' relationship was fraught with conflict. They separated and reconciled on a number of occasions. Post-separation, the parties' relationship continues to be highly conflictual. The Halton and Toronto police services and the Halton and Toronto children's aid societies have been almost continually involved with the parents during their relationship and since the separation, including throughout this trial.

60Both parties testified that the other was physically, emotionally and verbally abusive in the relationship.

61The mother described the father as extremely abusive, controlling and jealous. He would demean and belittle her and repeatedly call her "crazy", "whore" and other profane words. Mother testified that the father told her that she needed help because of her mental health problems and encouraged her to have a psychiatric assessment because there was something wrong with her.

62The father testified that the mother was emotionally unstable, jealous, controlling and very volatile. He acknowledged that when the mother became pregnant with M., he initially wanted her to terminate the pregnancy because he was concerned about their relationship and the mother's stability. He was concerned that she had significant mental health issues and believes that she has a bipolar or personality disorder.

63The father testified that he did not want to leave the relationship after M. was born because he was concerned for the safety of his son and for K.-L. with whom he had become very attached to and had become a daughter to him. He testified that he wanted to remain actively involved with the children.

64The mother testified that the difficulties in the parties' relationship started when she became pregnant with M., the middle child. The father's lack of financial stability and history of unemployment was the source of much conflict.

65According to the mother, she provided most of the financial support for the family while the parties were together. However, the father controlled the finances and expected her to give him all of her earnings. The mother testified that she was forced to reach out to food banks and to other community resources to supplement for food and diapers.

66The father denies this and testified at great length about starting his own landscaping business, which was always his dream. He testified that he was working very hard in establishing this business and that it would have been very successful, but for the mother sabotaged its success.

67The mother described a history of very unstable housing while she was with the father. She described moving on at least four different occasions between 2009 and 2013. They were evicted from their housing on at least three of those occasions and were forced to rely on emergency housing and shelters. The father does not dispute this.

68The father is also actively involved in a game called "Airsoft". Airsoft appears to be a game in which participants simulate military type exercises using "BB" guns that are replicated firearms. The hobby can be expensive as the guns cost between $1000 to $5000 and there are additional expenses for equipment, tactical gear, and tournaments. However, the father testified that he uses inexpensive guns and has made many close friends through this game, including police officers and fire fighters. According to the father, these have been valuable connections to future employment opportunities for him.

69According to the mother, despite the father's unemployment and his unsuccessful attempts to establish a landscaping business, the father spent significant sums of money on his Airsoft hobby, which was another great source of friction in the relationship.

70The mother testified that the parties were first evicted in 2012 because the father used their rent money of $2300 to purchase a new Airsoft gun. In 2011, the father demanded all of the child tax credit money to further finance his Airsoft hobby. The father denies this and testified that although he enjoys playing Airsoft, the cost was very reasonable and he has he has never paid more than $500.00 for an Airsoft gun.

71The mother testified that during the relationship, she was the primary caregiver of the children and that the father was rarely involved in any childcare. She testified that she was responsible for all of the children's physical needs, including bathing, feeding and clothing them. She was responsible for all of their health and medical needs as well and attended all medical appointments without the assistance of the father.

72The father testified that he was very actively involved in the care of the children and vehemently denies that the mother was the primary caregiver. In 2011, with his encouragement, the mother returned to school to complete her high school diploma. At the time the middle child, M., was less than a year old. The father cared for K. - L. and M. during the day while the mother attended school.

73The mother acknowledges that she returned to school at this time, however, the mother testified that the father made this very difficult for her, and insisting that she should come home immediately after school. He accused her of sleeping with other students, and he would still leave the household responsibilities for her even though he was home all day. The father testified that the mother would not return home until very late after partying with other students and acted like she was back in high school, leaving him alone to care for two small children.

74In 2011, the mother obtained a psychiatric assessment through a referral from their family doctor, at the father's request. The mother was diagnosed with a possible bipolar disorder and a personality disorder. A copy of the assessment report was produced in these proceedings, although the assessing psychiatrist was not called to give evidence. The mother now disagrees with this assessment and believes that the symptoms that she was exhibiting at that time were a result of the father's abuse.

75The mother testified that during the parties' relationship and afterwards, the father continually used this diagnosis against her to threaten taking custody of the children from her. She testified that the father continually called her "crazy" and mentally ill, and told this to everyone else, so she started to believe this herself.

76The father denies threatening the mother in this manner, however he testified that he actively encouraged the mother to seek help for her what he described as mental illness.

77The mother described four incidents of physical abuse during the parties' relationship (all of which the father denied and testified that they fought with each other):

1. In 2010, when she was pregnant with M. the father became jealous because she was talking on her phone. They both started fighting over the phone. The father let go of the phone and the mother fell backwards hitting her back and her head.

2. Later in 2010, they got into another fight and were both screaming at each other. To stop her from screaming, the father put her in a "choke hold". The mother testified that she dug her nail into the back of his head and neck in self-defense.

3. On another occasion, the father ripped a necklace off of her neck. He also threw a 'Bacardi' bottle at her head and slapped her in the face.

4. In 2011, when she attempted to leave the apartment with M. to go to the store, the father did not believe that she was going to the store and would not let her leave. The parties then started arguing and the mother started yelling. In order to stop her from yelling, the father put his hands on her neck and started choking her. The mother then left the apartment, but then changed her mind and tried to push herself back into the apartment. The father closed the door on her.

78The father recalls these incidents, however, he testified that these incidents were actually initiated by the mother and that both parties were engaged in the physical altercation. He testified that he would have to restrain her from physically attacking him.

79The mother testified that after the last incident above in 2011, she left the apartment immediately and called a friend who then brought her to the police station. The father was charged with two counts of assault.

80The father completely denies this and testified that the bruising on the mother's neck were a result or consensual rough sex that the parties were engaged in at the time.

81The criminal charges were eventually withdrawn after the mother wrote a letter to the Crown in February 2012 saying that the incident never happened and that the marks on her neck were a result of consensual rough sex between the parties. Shortly thereafter the parties reconciled.

82Shortly before the commencement of this trial, the mother obtained an updated psychiatric consultation report, dated May 2014, conducted by Dr. Imraan Jeeva. Dr. Jeeva diagnosed the mother as having "Cluster B" personality traits as opposed to a personality disorder. A copy of this assessment report was entered as an exhibit in these proceedings Dr. Jeeva was cross-examined on the contents of the report.

The First Separation and First Ex Parte Order

83In July of 2011, after the father was charged with assaulting the mother, the father. left the family home. He was subject to bail conditions prohibiting any direct or direct contact between the mother and him.

84It is not disputed that both parties breached those bail conditions on several occasions and resumed communication. Both parties acknowledged this fact in their testimony.

85The father testified that during this time, the children were going back and forth between the parties in a voluntary arrangement, in what he described as a shared parenting arrangement. The mother acknowledged that the father spent time with the children but she did not agree that it was a shared parenting arrangement.

86The father testified that he became increasingly concerned about the mother's erratic behaviour and testified that she was going out drinking and partying on a regular basis and raising the children in what he described as very unfit conditions at a friend's home that she was staying at in Oakville. He described the mother's friend and the mother as being engaged in the escort business.

87The father testified that on one occasion after he became very concerned about the mother's lifestyle after watching in a parked car outside of her home one evening. After that, he did not return M. to the mother's care. M. remained with him for a number of weeks. He testified that K.-l. was living with the maternal grandmother in Scarborough at the time.

88The mother denied this and testified that this was another example of the father's controlling and jealous behavior. She testified that the father then unlawfully withheld M. for several weeks. At the time, K. L. was living with the maternal grandmother in Scarborough while the mother lived with her friend in Oakville.

89The mother did not bring an emergency motion for custody of M., notwithstanding her evidence that she had not seen M. for several weeks at that time. However, on February 27, 2012, the mother commenced the first application for custody.

90Both parties attended the first court appearance in this custody application on March 28, 2012. The father came to court with M. After court, the mother asked to hold M. and then immediately attempted to leave with him. The police intervened, but given that there was no custody order in place for M., the mother was permitted to leave with M. and according to the police report filed, the father appeared to acquiesce. The mother then returned to her parents' home in Scarborough.

91Two days later, on March 30, 2012, the father obtained an ex parte order for custody of M., but not K.-L. In his motion materials, he deposed that the mother had absconded or "abducted" M. from his care and that the mother had serious mental health issues. M. was returned to the father's care pursuant to the ex parte Order he obtained.

92On cross-examination, the father admitted to permitting the mother to leave the court house with the child on that day, after the police became involved and that there was no court order in place. He was aware that she likely was returning to her mother's home in Scarborough. The father later attended court and claimed that the mother had kidnapped or abducted the child.

93Shortly thereafter, the parties reconciled. After their reconciliation, the mother admitted herself to the "Barrett Centre" at the request of the father. The Barrett Centre is described as a mental health crisis centre that responds to the needs of individuals who are experiencing a mental health crisis but do not need hospitalization.

94The mother testified that the father also told her that the only way their relationship could work was if she went to treatment. The mother testified that this was the only reason that she agreed to attend the Barrett Centre. The mother remained at the centre for two weeks.

95M. and K.-L. remained with the father while the mother was at the Barrett Centre. The mother gave the father "temporary guardianship" of K.-L. while she was in treatment. The mother agreed to sign a document which provided for this. The father's copy was entered as an exhibit at trial, although the mother testified that she immediately ripped her copy up after signing it and did not agree with it.

96On April 16, 2012, the father's ex parte motion returned to court. The mother did not appear. According to the endorsement of the case management judge, Justice Zisman, the father now had care of K.-L. as well and the mother had "checked herself into the hospital to deal with her mental health issues." The father's motion was then adjourned to April 30, 2012.

97It is now clear, based on the mother's testimony in this trial, her pregnancy with P. and P.'s date of birth that the parties had reconciled by the time of the April 2012 court appearance. Neither party advised the court.

98There were a number of further court appearances, including a motion brought by the maternal grandmother to be added as a party, which was dismissed by Justice Zisman on May 16, 2012. The mother did not attend any of these appearances, only her counsel.

99Both parties acknowledged that throughout this period of time (April 2012 to October 2012), the parties and the children were in fact together, notwithstanding the bail conditions and the ongoing family court proceedings.

100The mother initially testified that her family lawyer did not advise her of the several family court dates that she missed. She later testified that she stopped communicating with her family lawyer after she reconciled with the father because her lawyer had advised her that this was not a good idea.

101The mother did not disclose or confirm where she and the children were living to her mother until late August of 2012 when she sent her mother a text saying she and the children were fine. The maternal grandmother had attended at the father's apartment on one occasion in the summer of 2012 looking for the mother and the children. The mother hid in the bedroom.

102The mother testified that she had no contact with her family during this time as a father had "brainwashed" her and made her believe that her family was "the enemy". She testified that the father would not let her talk to her family and that they had to be cut out of her life completely. She was only allowed to go outside of the apartment late at night, because the father was worried that the police would see her and he would be criminally charged for breaching his bail conditions.

103During the period that the parties were secretly living together with the children, the maternal grandmother brought a motion to be added as a party in May of 2012. The father opposed this motion and filed an opposing affidavit. In cross-examination, the mother admitted to helping the father prepare the affidavit. Her hand written notes were filed as an exhibit at trial, although the mother testified that she was forced to do this by the father and that she was completely under his control.

104By October 10, 2012, the settlement conference in this matter, the court was finally advised that the parties had reconciled and had resumed cohabitation. The mother did not attend. The mother's counsel at the time was granted leave to be removed as solicitor of record at this court appearance.

105The mother testified that she was not aware of this family court date and thought that it was the return of the criminal proceedings. She also testified that she did not attend because she was heavily pregnant with the youngest child and it would be clear that the parties had reconciled and the father had breached his bail conditions.

106Justice Zisman made a without prejudice order dismissing the custody application given their reconciliation. However, according to her endorsement, Justice Zisman expressed concerns regarding the children's safety, and directed that the Halton Children's Aid Society become involved to commence an investigation of the parents' plan of care.

107The mother's family did not see her again until October 2012, until she was approximately seven or eight months pregnant with P.

The Involvement of the Halton Children's Aid Society and the Final Separation

108Pursuant to justice Zisman's request, the Halton Children's Aid Society ("the society") became involved with the family in October of 2012. P. was born on December 28, 2012.

109According to the evidence of Amanda Charlebois, the child protection worker assigned to the family at the time the society identified a number of child protection concerns with the family, including unstable housing, lack of stable finances, serious domestic conflict, the mother's mental health, among other concerns.

110It is not disputed that prior to the final separation, the society verified that the children were at risk of emotional harm as a result of being exposed to parental conflict. Ms Amanda Charlebois recommended that the parents separate because the children's exposure to serious conflict was causing them emotional harm.

111Both parents acknowledged that they were advised by the society worker that their conflict was causing the children emotional harm and that if they did not separate, then child protection proceedings may be commenced.

112At the time of their final separation, the parties were living in an emergency housing unit in Burlington, Ontario, after having been evicted from their apartment for non-payment of rent. While living in emergency housing, the parties received assistance from the Halton Children's Aid Society, a Halton Region housing worker, Ontario Works, and the public health nurse.

113The parties finally separated in February of 2013 after a meeting with the children's aid society and other service providers to discuss the separation and a parenting plan.

114The father testified that the parties agreed to a 'split' or shared custody arrangement, with the middle child remaining with him. The mother testified that although the parties discussed this, it was never agreed upon.

115It is not disputed by the parties that the parties discussed who would remain in the emergency housing unit the children. The parties were advised that only families or adults with children could remain in the emergency housing. The mother testified that the father wanted to remain in this housing unit and that he did not want to return to a shelter for single men. She testified that the father wanted custody of at least one of the children so that he could remain in the housing unit.

116Initially, the mother took K.L and P., who was only eight weeks old at the time, to her parents' home and left M. with the father. She later returned and then left with all three children to her parents' home in Scarborough.

117After the mother left with all three children, the father attended court on February 26, 2013 and obtained another emergency ex parte custody order. The father deposed once again in an affidavit that the mother had absconded with the children and that she had serious mental health concerns.

118The father requested the immediate location, apprehension and return of the children to his care, with police assistance. The order was granted and the court directed that a copy of the order be sent to the Halton Children's Aid Society.

119At the time of the father's ex parte motion, the children were residing in Scarborough with the mother and her parents, with the approval of the Halton children's aid society. The father was aware that the children were residing with the mother in Scarborough, although he testified that he was not sure what the mother was capable of doing.

120It is not disputed that the parties were texting throughout the day when the father attended court to obtain this emergency order. Many of these texts were identified and entered as exhibits at trial.

121In cross-examination, the father admitted to 'texting' the mother throughout the day while at court before obtaining the second ex parte order. It was clear that he knew where the mother was located. At one point the father texts to the mother while at court, "Don't say I didn't warn you, all I wanted was M."

122The father also admitted that he failed to disclose to the court that the mother had final custody of the oldest child from a previous court order. The father could not explain how the mother could abduct a child of which she already had custody.

123The father also admitted that he waited for six days before picking up the children from the mother's home with her parents. He testified that he waited so long after obtaining the second emergency custody order because he was busy preparing and cleaning the emergency housing unit after the mother had taken everything with her.

124However, in cross-examination, the father also admitted that prior to picking up the children, he spent one evening with friends relaxing and smoking marijuana. When confronted with this evidence, the father testified that he was very stressed after a long day of cleaning. He also testified that the mother had asked to have the children for a day longer.

125The father testified that when he did eventually retrieve the children, he agreed that P. (two months old at the time) would remain with the mother because she was breastfeeding him, so long as her care of him was supervised. The two older children were returned to his care.

126Notwithstanding the fact that the father waited six days before acting upon the ex parte order, and the mother's awareness of the order on the day that it was obtained, the mother did not bring a motion to set aside the ex parte order or seek custody of all three children at that time.

The Involvement of Cathy Bales and the Father's New Partner

127The mother testified that after the father obtained the second ex parte order removing all three children from her care, she was completely devastated. She agreed to live with Cathy Bales, a foster mother who assists young mothers in Oakville, so that she could keep P., whom she was exclusively breastfeeding, and to be closer to K.-L. and M.

128Arrangements were made between the parties in which the mother's care of P. was to be supervised by Cathy Bales, a foster parent who works with young mothers. The mother's access to M. and K.-L. was also supervised by Cathy Bales or her designate. The father's access to P. was to be facilitated by Cathy Bales.

129On March 11, 2013, at the return of the father's ex parte motion, temporary minutes of settlement were entered into whereby that parties agreed on a without prejudice basis that K.-L. and M. would reside with the father and P. would reside with the mother subject to the supervision of Cathy Bales. Both parties have counsel.

130Both parties admitted that while the mother was living with Cathy Bales, they continued to secretly communicate. The mother testified that they had sexual relations and that she still loved the father and that he had "brainwashed" her. She admitted to lying to Cathy Bales about being in contact with the father and continued to see him after Ms Bales told her to stay away from the father.

131The father admitted to calling Cathy Bales "a cunt" after he became angry at her for what he perceived as "siding with the mother" in a dispute.

132The father also became involved with his new partner M. M. shortly after the parties separated. He met M.M. through an online dating service. The father testified that he brought M.M. to the parties' second family court appearance on March 11, 2013, just weeks after the parties separated and after he obtained the ex parte custody order because he needed support.

133The mother testified that she was very upset when she learned about the father's relationship with M.M. and was very upset that she attended the second family court appearance with him. She admitted to approaching M.M. in court but that she only wanted to "warn her" about the father. She denied being jealous but testified that she wanted to "push his buttons as he did to me" because she still loved him. She told him that she had "a date" as well because she "wanted him to feel the same emotion as me."

134After the March 11 th court appearance, the father remained in the emergency housing unit with K.-L. and M. until on or about April of 2013 when he found rental accommodation for he and the two older children with the assistance of community supports. The mother and the youngest child remained living with Cathy Bales.

The Temporary Custody Motions before Justice Zisman

135On April 25, 2013, both parents brought motions for temporary custody of all three children. The father's plan was to remain with the two older children in Oakville with continued supervised access to the mother. And the mother's plan was to have custody of all three children in Scarborough with her parents. The motions were argued before Justice Zisman.

136On that date, Justice Zisman made a temporary order that the father continue to have care and custody of the two older children and that the mother continue to have care and custody of the younger child.

137Justice Zisman further removed the conditions of supervision placed on the mother's custody of P. and access to K.-L. and M. In her reasons for decision, Justice Zisman stated the following:

"I find both parents have had a role in parenting the children K.-L. and M. As P. was only born on December 28, 2012, he has been almost exclusively in the full-time care of the mother. Despite various allegations by both parents against each other, they have reconciled numerous times during their relationship and left the children in the other parent's care.

When this case with originally before the court on March 30, 2012, there was a finding by Justice O'Connell that the mother had "abducted" M. after the parties had both been at the first appearance court. Although the mother denies doing so, as it was her understanding that since there was no court order in place, she was entitled to take M. from the father. At the very least, this was impulsive, immature and not child focused.

The mother now appears to have taken very positive steps to obtain help in counseling regarding her personal and parenting issues. She has the support of her parents and to move to their home with all three children in Scarborough. In the past the mother has had difficulties residing at her parents' home for any length of time.

At the present time the father, based on the motion materials, has not had a stable residence and is not employed. But the children, M. and Krysta- Lee, are in subsidized daycare, the children's aid has been involved in there are no concerns that are made by the society about his ability to care for the children.

The only stability the children currently have is their daycare as neither parent has shown any stability in his or her lifestyle.

On an interim motion the status quo is an important factor. I would have ordered that the children reside in a shared custodial arrangement but the mother does not have adequate accommodation in this jurisdiction. Further if the children reside in a shared arrangement the father may lose his daycare subsidy. I am not prepared to jeopardize the only stability the children have had, even if it is only been for the last several months. On the other hand, the children need more contact with their mother and maternal grandparents and in the long term the mother's plan may be the more stable.…"

138Justice Zisman ordered that the two older children shall have access with the mother from every weekend Friday afternoon after daycare until Sunday at 5 PM and that P. shall have access with the father "one or two times a week as arranged between the parties".

139This temporary order has remained in effect pending the completion of this trial. It is not disputed that the father is exercising access to P. on Sundays only.

140Notwithstanding an order for weekly access between the father and the youngest child, the father testified that he is unable to exercise access to the youngest child during the week due to his transportation costs and other commitments. He further testified that the mother has restricted his access during the week. The mother testified that the father has made no effort to exercise access with the child during the week. The father's former partner also acknowledged that the father did not exercise access with P during the week as a result of travel and other commitments.

141Currently, the Halton Children's Aid Society works voluntarily with the father and the children in Oakville. Once the mother moved to Scarborough, the Toronto children's aid society worked voluntarily with the mother until 2015, when they closed their file.

142However, the Toronto agency have re-opened its file on a number of occasions as a result of several reports by the mother and her family that the father is causing the children physical and emotional harm through neglect and physical abuse.

The Involvement of the Office of the Children's Lawyer

143At the motion argued on April 25, 2013, on consent of the parties, the issues of custody and access was referred to the Office of the Children's Lawyer ("OCL") for a social work investigation and report, pursuant to section 112 of the Courts of Justice Act. Ms Krystal Dorion was assigned as the clinical investigator.

144The OCL conducted its custody and access investigation over the course of 2013 and 2014. The report was released on March 11, 2014. The OCL's recommendations were, in essence, that the mother would have sole custody and primary residence of P., while the father would have sole custody and primary residence of K.-L. and M.

145With respect to access, the OCL recommended that the mother have all three children in her care on Friday after school until Sunday at 6 PM for the first three weekends of each month and every Tuesday from pickup after school until 7:30 PM for K.-L. and M. The OCL further recommended that the father have access with P. every Sunday from 11 AM to 6 PM and that all three children remain in his care on the fourth weekend of every month from after school for the duration of the weekend.

146The OCL further recommended that the above parenting schedule be reviewed in one year.

Significant Events Post-Separation

147There has been ongoing police and children's aid society involvement with the parties since the separation. The father has admitted to calling the police on the mother on a number of occasions because she has refused to return the children's clothing and other items after access visits. The mother has admitted to refusing to return the clothing, however she states that the clothing is in the laundry when the father comes to pick up the children and she intended on returning the clothing the following week.

148The mother has also admitted to calling the police on the father on a number of occasions. For example she called the police when the father walked into her home in Scarborough to pick up the children. Although she had previously allowed the father to come into her home, she did not want him to be there so she called the police. On another occasion, the mother called the police and asked them to meet her at the father's property while she was picking up the children because she did not trust him and was terrified of what he may be capable.

149The parties testified at length regarding the involvement of the police since the separation. The evidence establishes that both parties have called the police on a number of occasions. The children have been involved in almost all of these instances.

The Mother Tells K.-L. that the Respondent Is Not Her Father

150The mother testified that after the parties separation, she told K.-L. that the father was not her biological father. The mother testified that K. L., started questioning why she looked different from her siblings. The three children are all white and according to photographs reviewed in this trial, not dissimilar in appearance. The mother explained to K-L. that her "real father" lives in Newfoundland. According to the mother, K.-L. had a right to now this. K.-L. was approximately 5 years old at the time,

151The mother denied coaching K.-L. to call the father by his first name instead of "Daddy". She testified that "I told my daughter that she has the option and she should not be forced now to call him Daddy. It's her choice."

152The mother further testified that K.-L. chooses to call her father by his first name at her home and that while she is at the father's home, she is forced to call him "Daddy". She testified that the father yells at her or puts her in her room if she does not call him Daddy.

153The mother further testified that, notwithstanding her evidence about the extremely abusive relationship that she had with K.L's biological father, and the fact that K.L. has had no contact with him since birth, pursuant to a no access order, she is the process of making arrangements for K.L to meet her biological father and family in Newfoundland

The Middle Child's Name

154The parties' second child was born on August 23, 2010. Since birth, and throughout the parties' relationship, he was referred to as "M." However on or about March 2014, approximately one year after the parties' final separation, and when M. was approximately four years old, the mother and her extended family members started calling the child a different name while he was in their care.

155The mother testified that the new name for the child was actually the child's real or legal name and which is on his birth certificate. She testified that she always wanted to call the child this name, but that the father insisted that the child's be called M. and have his last name. She wanted the child to have her last name or a hyphenated last name, including both of their last names. She also did not like the name M.

156The mother testified that this was the name she had registered the child at the time of his birth, however she acknowledged that she did not obtain an issued birth certificate reflecting this name until 2014, one year after the parties' separation. She further acknowledged that shortly after the child's birth, she obtained the child's health card which reflected the child's name as "M." and the father's last name, not the name on the birth certificate that was issued in 2014.

157The mother testified that she did not believe that it was confusing to the child to be called a different name at the age of four years old, after he had been called M. since birth. She believed that the child now understands that M. is his "nickname" and that the name that she and her family members call him is his real name.

158The mother acknowledged that the child's school teachers, day care teachers, the father, and his friends at school all continue to call him M.

159The mother further acknowledged that she has attempted to contact the child's school and to direct the child's school teachers to call the child the new name instead of M. while at school. In cross-examination, she acknowledged that she would cross out the name M. on the child's knapsack, school clothing and school homework and replace it with the name that she and her family have now chosen for him.

Mother's Concerns Regarding Children's Hygiene, Physical and Medical Needs While in the Father's Care

160The mother testified that the father is incapable of meeting the children's medical and physical needs and that he is actually caused the children physical harm due to neglect. She expressed great concern over the children's hygiene and medical issues while in the father's care.

161She testified that K.-L. developed both vaginal and anal dermatitis as a result of poor hygiene and inattention to proper wiping by the father. She testified that she took K.-L. to a walk-in medical clinic on a number of occasions during her weekend visits with her and obtain a medical prescription which she provided to the father. According to mother, the father failed to properly administer the vaginal cream, or did not administer it at all, resulting in K.-L. suffering from the condition for a period of approximately 4 months, which the mother described is very painful for her.

162The mother further testified that M. had developed balanitis which is a rash like condition or infection on the penis area. She testified that she took M. to a walk-in clinic while he is with her on the weekend and a doctor confirmed the diagnosis and provided a prescription. The mother testified that Matt's suffered from this condition for approximately 6 months because the father again failed to administer the cream and the prescription that she provided to him properly.

163The mother arranged for M. to attend a urologist. The mother testified that the father made this greatly difficult for her and would only allow her to pick up M on the morning of the appointment and not the evening before. The urologist was in Scarborough. The mother acknowledged that she provided her address and the name that she chooses to call M to the urologist.

164The mother acknowledges that by the time M. attended the urologist appointment, the balanitis had cleared up. However she testified that this is only because the father finally started administering the cream prior to the appointment.

165The mother further testified that the father was not aware that M. was suffering from a double ear infection for approximately four weeks. Again, the mother testified that she took M. to a weekend medical clinic during her weekend during M.'s weekend with her and received the diagnosis and obtained the antibiotics for the child. She testified that she gave the father the antibiotics to administer to M.

166When asked, the mother confirmed that she took the children to doctors at weekend medical clinics on or about every weekend that the children were with her to confirm various medical ailments and to report her concerns of possible physical abuse by the father towards children. She is also attended at the hospital emergency on a number of occasions with the children during her weekends with them because of her concerns of suspected physical neglect or abuse.

167The mother also testified that she became aware that K.-L. had developed lice in February 2016. She obtained the necessary treatment for the lice and conducted a thorough lice treatment. She provided detailed instructions to the father as to how to administer the lice treatment. She testified that the father did not follow through with the lice treatment that she provided and did not appear to believe that K.-L. had lice.

168The father denied not being attentive to the children's medical needs. He testified that the mother routinely took the children to the various walk-in clinics and doctors during her weekends without informing him, notwithstanding that he is the custodial parent. He testified that although he did not administer the cream on K.-L.'s vaginal area, he taught her to do it while supervising her or his partner assisted K.-L. He also denied failing to address M's balanitis, however he acknowledged that he was not immediately aware that M. had developed this as well as the double ear infections.

169The father acknowledged that the mother told him that K.-L. had lice and had offered to keep K.-L. an additional night so that she could administer the lice treatment. The father testified that he did not believe the mother and thought this was another tactic for her to keep K.-L. longer. He later came to understand that K.-L. did have lice and also made attempts to treat her with the lice treatment, although it appears the mother's treatment may have been more effective.

Mother's Reports Regarding Father's Physical Abuse of The Children

170Since the separation, the mother and her family members has made a number of reports to various professionals, including doctors and the children's aid society that the children come to her home on the weekends with many marks and bruises. Throughout her testimony, the mother accused the father of intentionally harming the children while they are in his care. The mother believes that the marks and bruises were caused by the father's neglect, excessive physical discipline, or physical abuse by the father. There have been numerous CAS investigations as a result of the mother's reports.

171The mother testified that the children are terrified to return to their father's home and that they do not want to return to their father's home after her weekend with her. She further testified that the children told her, in particular the middle child, that their father had hurt them. She testified that the middle child has told her that the father spanks him. The oldest child will not tell her what is happening, despite her repeated questions. She acknowledged that K.-L. has developed anxiety and started hyperventilating. The mother believes this is because she is terrified to return to her father's care.

172The mother regularly brings the children to a weekend medical clinic when the children are with her to show the doctor the bruises on the children. She has asked the Toronto children's aid society workers to attend with her at the doctor to examine the children's bruises.

173The mother introduced medical charts regarding her reports to doctors about the children's bruises. The mother also introduced numerous photographs that she took of the two older children of various bruises that she observed on them. She stated that these bruises demonstrate "grab" and finger marks on the children.

174Counsel for the father objected to the admissibility of the photographs. Based on the criteria of admissibility, the photographs could have been ruled inadmissible. Although the mother testified that she had taken the photographs, there was no evidence when the bruises occurred, how the bruises occurred, or whether these were just the normal scrapes and bruises that active children can sustain. However I allowed the photographs to be introduced, not for the truth of their contents and subject to cross-examination, on the basis of relevancy to the issues that I must determine.

175The mother did not dispute that she and her family members persistently takes photographs of the children when the children are with her on weekends to document their allegations of physical abuse by the father.

176The father vigorously denied causing the children physical harm. He was very upset and angry at the mother's allegations. He acknowledged that in the past he had spanked the children and locked them in their room for time-outs. However, during the course of the OCL investigation, he was cautioned by Ms. Dorion and by the children's aid society about spanking the children. He testified that he has never engaged in any physical discipline with the children since that time, more than one year ago. The mother's allegations of physical abuse and the reports to the children's aid society continued throughout this trial.

177Notwithstanding the mother's numerous reports of alleged abuse to children's aid society, none of the mother's allegations have been verified. Neither the Halton Children's Aid Society nor the Toronto Children's Aid Society have verified abuse. The mother testified that her children are voicing what's happening to them and there is nothing I can do because nobody is listening.

Disney Land

178Prior to proceeding to trial, the mother brought an urgent motion on November 6, 2014 requesting permission to allow K.-L. to vacation in Disney World with her maternal aunt and uncle. The father refused to consent to the trip. After a contested hearing, Justice Starr granted the motion permitting K.-L. to travel to Disney World in Florida from November 28, 2014 to December 14, 2014. The father was ordered to pay the mother's costs of the motion fixed in the amount of $750.

179The father testified that he refused to consent to the trip because he did not think that it was fair that the middle child could not go as well, he was concerned that KL was missing school, and that the mother had lied to him.

The Father's Housing

180The father acknowledged that he was evicted from his housing with the children in March 2014, after he had left emergency housing. He acknowledged owing approximately $8000.00 in rental arrears to his former landlord. He further acknowledged being served with eviction proceedings, however, he testified that part of the reason he did not pay rent was because of the landlord's refusal to address a number of concerns with the apartment, including problems with other tenants. The father acknowledged that he did not defend the eviction proceedings at the landlord and tenant's tribunal.

181The father acknowledged that he did not disclose that he was in the process of being evicted to the OCL clinical investigator. The father moved into his new housing on or about March 2014.

182The father acknowledged that he had a very difficult relationship with his previous landlord, Ms. Janik, however he initially testified that the relationship he had with his current landlord was very positive and that he has consistently paid his rent on time.

183However, the father later acknowledged when this trial re-opened that since his common law partner left the family home, he has fallen into arrears again and he can no longer afford to pay his rent. He agreed that he was facing eviction and that he and the children must now leave his current residence.

184The father testified that he negotiated an arrangement with the new owners of the rental premises which will permit he and the children to remain in the property until it is demolished over the next few months. He will then move into temporary housing provided by a relative, until he can find permanent housing. He is also looking for full-time employment.

The Professional and Community Witnesses

The Psychiatric Evidence: Dr. Jeeva

185The mother obtained a psychiatric report from Dr. Imraan Jeeva in the spring of 2014, after this matter had been scheduled for trial. Dr. Jeeva is a staff psychiatrist at the Center for Mental Health and Addiction (CAMH) in Toronto. He has been a staff psychiatrist at CAMH for 14 years, in general psychiatry. He works at the Access and Transitions program, which is the general "intake hub" for the rest of the hospital.

186The mother was referred to Dr. Jeeva by the mother's family doctor. According to Dr. Jeeva, the referral was for "diagnostic clarification and treatment recommendations". Dr. Jeeva acknowledged that the referral information from the family physician indicated the mother had been in an abusive relationship and may have exhibited symptoms of borderline personality disorder that are no longer present.

187Dr. Jeeva met with the mother on one occasion. Although he cannot recall how long he spent with her, the mother testified that the meeting lasted for approximately one hour. The interview was conducted with the mother alone.

188Dr. Jeeva did not meet with or speak to anyone else, nor did he review any other psychiatric assessments or reports regarding the mother, including both the 2011 and the 2013 reports produced in this trial. Dr. Jeeva did not conduct any psychometric testing or other testing. The evaluation was based entirely on the clinical interview and the referral information provided by the family physician.

189Dr. Jeeva testified that the mother stated that she did not believe her previous diagnosis of borderline personality disorder was correct. Dr. Jeeva was aware that the mother was involved in a custody battle with the father and that it was possible that she was motivated to give him facts that painted her in the best possible light. He described his report as a "consult" not an assessment.

190In his report, Dr. Jeeva stated that the mother had never been hospitalized for mental health reasons. Dr. Jeeva was unaware that the mother had stayed at the Barrett Centre. The mother did not disclose this to him.

191When asked what Dr. Jeeva meant when he diagnosed the mother with "cluster B personality traits", Dr. Jeeva explained that there are ten identified personality disorders and that they are grouped into three "clusters". Each cluster of personality disorders shares some personality traits. "Cluster B" personalities generally involve eccentric, emotional, and dramatic behaviors.

192When asked what the difference between borderline personality disorder and cluster B personality traits, Dr. Jeeva testified that "cluster B personality traits" is a term used when one sees some characteristics of a personality type but not sufficiently significant, rigid, or enduring enough that one would say there is a personality disorder. He explained that "cluster B personality traits" suggest much milder, but similar symptoms that you would see in borderline personality disorder.

193Dr. Jeeva acknowledged that the mother blamed her history of emotional dysregulation, past history of anger and self- harm through cutting on her relationship with the father and on other past relationships which she described as abusive.

194Dr. Jeeva acknowledged that an abused person can exhibit signs of borderline personality disorder but given that borderline personality disorder refers to long-standing, enduring, rigid and inflexible personality traits, one would have to examine the person over a lengthy period of time to properly assess. At the time of his clinical interview with the mother, Dr. Jeeva did not believe that she had a borderline personality disorder.

Ms Victoria Barbosa, Housing Worker

195Ms. Victoria Barbosa is an outreach worker for the region of Halton. Her role is to support homeless families in securing accommodation and financial assistance and to provide them referrals to community resources.

196Prior to the parties' separation, she has assisted the parents when they were homeless on at least two occasions.

197She first worked with the parties in 2011 when they were staying in emergency housing at a hotel in Burlington and receiving social assistance. She assisted the parties again in 2013 when the family was staying in another emergency family shelter in Oakville. She was also aware that both parties had previously stayed at shelters for single persons and the mother had also previously stayed at a shelter for abused women.

198Ms. Barbosa testified that at a "service coordination" meeting on February 26, 2013, it was clear that the parents were separating and would not be staying together. Ms Barbosa recalls that there was a lot of discussion between the parties and service providers about various parenting options including shared or split custody arrangements.

199She suggested that because the couple could not stay together, one of the parents would have to go to the Lighthouse Shelter, which is a shelter for single individuals. She testified that she suggested the Lighthouse Shelter to the father as it appeared to be her understanding that the children would remain with the mother. The father advised her that he would not go to the Lighthouse Shelter because he had been there before and did not like it.

200Ms. Barbosa testified that the father asked her if the children remained with him, would he be it was he able to stay in the family shelter. She advised the father that the person who has the children would be able to stay in the family unit. She further testified that the father asked her what would happen if he had custody of the children. She explained to him that he could stay in a family unit if he had custody of the children.

201Ms. Barbosa testified that shortly after that meeting, the mother left with the three children and returned to her parents' home in Scarborough. The maternal grandmother had picked up both her and the children.

202Ms Barbosa was advised that she learned that the father had later attended the Milton court house and filed an emergency motion for custody, which he obtained. As a result of the custody order, the father was able to remain in the family shelter.

Ms Cathy Bales, Foster Parent and Supervisor of Young Mothers

203Ms. Bales is a foster parent who works with single mothers. She supervised the mother's care of P. for a two month period after the father obtained his second ex parte order for custody in March of 2013.

204Ms Bales works with the children's aid society and with other agencies in the Halton area. Ms. Bales testified that she typically works with young mothers and infants up to twelve months old. She provides support, mentoring and direction to the mother.

205Ms Bales testified that after the father obtained the emergency order for custody of all three children, he contacted her and explained to her that he had custody of all three children but the mother was still breast-feeding P.. He told her that he was only agreeable to allowing the mother to keep P. if she lived with Ms. Bales and her family.

206Ms. Bales testified that the father told her that the mother was mentally ill and that she had been diagnosed with a personality disorder.

207Ms. Bales testified that the mother and P. remained in her home for just under two months. They left in April 2013 when Justice Zisman permitted the mother and P. to return to her parents' home in Scarborough under the existing temporary order.

208Ms. Bales described the mother as very easy to live with. The mother was sociable, cooperative, and she integrated very easily into Ms. Bales' family. She was good at receiving direction and took instructions very well. She did not see any signs of a mental illness while the mother was living with her. Ms Bales has no issues with the mother's parenting.

209Ms. Bales described the relationship between the parties as "toxic". She described a very unhealthy dynamic between the parties. She testified that their relationship did not bring out the best in them. As she described it, "they can't stay away from each other and they don't like each other."

210Ms. Bales testified that once the mother had removed herself from the relationship, she appeared healthier. However, she described it as "very strange" because as much as the mother would be angry at the father for all of the things that he had put her through regarding the children, the mother really desired to re-unite with him and be a family together.

211Ms. Bales described both parties as being engaged in "ugly" conversations through texting and social media, calling each other names and using bad words. She described it as "very unhealthy" and repeatedly advised the mother to "just stop talking to him".

212Ms. Bales recalled seeing some of the text messages between the parties and testified that they were "very ugly and immature", with both parties using "foul language and name-calling" It was concerning to her that adults would still resort to that. She described it more like "a high school spat between two immature kids rather than two adults that have kids that are trying to work things out".

213Ms. Bales testified that it was "a very, very toxic situation and the drama between the two of them just became very exhausting."

214Despite her repeated warnings, Ms. Bales testified that she caught the mother repeatedly lying to her so that she could be with the father behind her back. Both parents would be told "don't talk to each other because you don't know how to talk to each other it always turns ugly", but they would totally disregard her direction.

215Ms. Bales testified that the mother's repeated lying to her about her involvement with the father very frustrating. At one point she gave the mother an ultimatum and told her that either she cut off her relationship with the father or she move from her home.

216Ms. Bales found it difficult to answer who was more toxic in the relationship. However, she did find that the father's personality could be very abrasive and controlling and that if he did not get his way, things could spiral very quickly downwards.

217Ms. Bales testified that the father can be a very sociable guy and can present as very nice and cooperative, however if he does not get his own way, then he quickly escalates into something very negative and very concerning. She recalled one occasion when the father became very angry at her because he felt that she had taken the mother's side against him and he sent her some very vile and abusive text messages, including calling her a "cunt".

218In cross-examination, Ms. Bales acknowledge that the father did apologize, however she pointed out that he did not apologize for the abusive name-calling and bad language towards her, but rather he apologized for having "misinterpreted her actions".

219Ms. Bales also acknowledged that when the mother's emotions get engaged, she does not always listen to reason. Ms. Bales recalled the time when the mother approached the father's new girlfriend in court at an early appearance notwithstanding her repeated advice not to approach her or to look at her.

220Other than her relationship with the father, and the mother's inability to regulate her emotions in that regard, Ms. Bales did not have any issues with the mother's parenting.

221Ms. Bales testified that prior to testifying in this trial, the father attempted to contact her on Facebook about her evidence and wanted to discuss the time when, as he described it on Facebook, he had "gotten upset with her". Although the message was not threatening, Ms Bales testified that she was very afraid about testifying at trial so she brought her husband with her because she was not sure how the father would react.

222Ms. Bale further acknowledged that she considered her relationship with the father good when she did not have to deal with the dynamics of the parties' relationship. As soon as the mother was out of the relationship, the father and she could have a "normal, neighbourly" kind of relationship.

223Throughout her testimony, Ms Bales referred to the middle child as "M." and not the new name that the mother had given him since the parties separated. It was clear that Ms. Bales found that unusual and had difficulty referring to M by the name that the mother now used for him, and she so testified.

Ms. Wioletta Janik, Father's Former Landlord

224Ms. Janik was the father's landlord from May of 2013 to March of 2014. This was shortly after the parties separated. She owns a semi-detached duplex in Oakville which is divided into two apartments. The father and the two older children moved into the main floor apartment in May of 2013.

225Ms. Janik described the father as "the tenant from hell". When she first met him, he seemed very nice and very caring. He had two little children and he told her that their mother was "crazy". Although he told her that he had bad credit, he would assist with fixing things around the apartment.

226Ms. Janik testified that her opinion quickly changed. As soon as the father moved in, there were constant problems. He frequently complained about the other tenants and the other tenants frequently complained about him. Much of what the landlord said about the other tenants' complaints was inadmissible hearsay.

227Ms. Janik testified that the father stopped paying rent in September of 2013. The father repeatedly "lied" to her about obtaining employment and promised to pay the rent. By January of 2014, she started eviction proceedings. A first hearing was scheduled before the Landlord and Tenant Board on January 24, 2014. The father sought to delay the hearing at least twice and threatened to sue Ms. Janik as he had "a big case" against her. In February of 2014, Ms. Janik received one payment of $1,400.00. The total arrears owing were $7, 145.25.

228At the third and final hearing on March 28, 2014, judgment was granted in the Ms. Janik's favour. The father did not attend nor did he sue Ms. Janik. Ms. Janik has not recovered any of the rental arrears from the father, which were approximately $8,000.00 when judgment was granted.

229Ms. Janik testified that when she finally obtained possession of the apartment, it was "disgusting". The apartment "smelled like pot." There was "garbage everywhere" and it took two weeks to clean. She removed twelve large commercial bags of garbage from the apartment. There was significant property damage and the father had removed a number of items that were the property of Ms. Janik. Ms. Janik called the police but no charges were laid. When she contacted the father to retrieve those items, he threatened to sue her for harassment. Ms. Janik described the father as "a vindictive man."

Ms. Amanda Charlebois, Child Protection Worker

230Ms. Charlebois is a child protection worker with the Halton children's aid society. She was assigned to work with the family in November 2012 after Justice Zisman directed the Halton children's aid society to become involved.

231Ms. Charlebois worked with both parents while they were together from November 2012 to February of 2013. After the separation, she remained involved with the mother until April 2013, when the mother moved to Toronto pursuant to the temporary order of Justice Zisman. At that time, the Toronto children's aid society started working voluntarily with the mother.

232Ms. Charlebois continued to remain involve with the father and the two older children in Oakville until August of 2013, when the file was transferred to another child protection worker.

233Prior to the parents' separation, Ms. Charlebois, the public health nurse, and the housing worker met regularly with the family to provide support and assistance.

234Ms. Charlebois testified that while the parties were living together, the child protection concerns identified were: 1) lack of stable housing, 2) lack of stable finances, and 3) the conflict between the parents. The conflict was described by Ms. Charlebois as "a lot of arguing in front of the children" and the police being called repeatedly for non-emergency situations.

235Ms Charlebois testified that during the course of her involvement, the mother did not report any physical abuse or violence against her by the father.

236Ms. Charlebois observed that the mother was the primary caregiver of the children at the time. Ms. Charlebois testified that she had no concerns with the mother's ability to parent the children. The children were always clean and they interacted well with her. P. was being breast-fed at the time and she observed that the mother was doing everything to meet the children's physical and emotional needs.

237Ms. Charlebois testified that financial issues were an ongoing stress for the family. They were in emergency housing as a result of their rent not being paid. The society would often give them vouchers to help with food and basic necessities as well as assist them in accessing food banks.

238Ms. Charlebois testified that an ongoing issue between the parties was the father continuing to spend money on his Airsoft hobby and equipment, notwithstanding the obvious financial constraints that the family was experiencing. This created conflict.

239Ms. Charlebois also expressed concern that when the mother was having an "episode" or emotional breakdown and getting very upset, the father would then videotape her and call the police rather than remove the children from the situation. Ms. Charlebois advised the father to remove the children from the situation when the mother was having a breakdown rather than videotape her in front of the children, as this just made her more upset.

240Ms. Charlebois never observed the mother having one of these episodes, but she understood that both the father and the children would be present.

241Ms. Charlebois testified that she became increasingly concerned about the ongoing conflict between the parties. She stated that it had reached a point where she was in contact with either of the parties or someone related to them, whether it was the police or someone else, on almost a daily basis. According to Ms. Charlebois, the conflict was "huge" and she was very worried about the children and their exposure to it.

242Ms. Charlebois acknowledged that she advised the parents to separate or else the society would legally intervene. Ms. Charlebois testified that it was the father who finally ended the relationship. The mother had gone to her parents' home with the children for a weekend and the father advised her that he enjoyed having the peace and quiet and that he no longer wanted to continue with the relationship.

243At a meeting with the parents, the parties discussed various parenting options upon separation, including K.-L. and P. remaining with the mother and M. remaining with the father.

244Ms. Charlebois testified that she was surprised when she learned that the father had obtained the ex parte custody order for all three children. She believed that the father obtained custody of all three children based on exaggerated and misleading motion materials.

245At the time the father obtained the ex parte order, the mother had gone to her mother's home with the children. Ms. Charlebois knew that the mother was there and she had actually arranged an appointment to go out and see her. When Ms. Charlebois drove out to Scarborough to see the mother's home, she was advised by the mother that the father had obtained the ex parte custody order. Ms. Charlebois testified that upon conducting the home visit, she observed it to be a safe and appropriate home with the bedroom for the children. She had no concerns about the home or the mother's care of the children.

246After she learned of the custody order, Ms Charlebois consulted with her legal department because she was concerned about what would happen if the father was caring for all three children, including a two month old infant who was being exclusively breast-fed by his mother since birth. Her legal department advised her that the child protection concerns were not sufficient to apprehend the children from the father.

247Ms. Charlebois instead wrote letters of support for the mother in the court proceedings and confirmed that the society had no concerns with her being alone with the children.

248Ms. Charlebois also testified that she did not have concerns about the mother's mental health. The mother was able to articulate her concerns and stresses about her family situation during her meetings with her. She always found the mother to be coherent.

249After the mother moved to Scarborough in April of 2013, the Halton society's involvement with the mother ended and the file was transferred to a child protection agency in Toronto, as P. was living with the mother. Ms. Charlebois had no further involvement with the mother after that time.

250Ms. Charlebois continued to remain involved with the father until August of 2013. Ms. Charlebois testified that she continued to have concerns about the father's stability, in particular, his ability to maintain stable housing and to maintain employment and provide financial stability for the children.

251She saw the father at his home approximately once per month. She described the home as chaotic and cluttered. She testified that despite the father not working and the children being in daycare all day, the father appeared unable to care for the children at an acceptable level. She further did not understand why the children were at daycare for quite extended periods of time during the day when the father was not working.

252Ms. Charlebois further expressed concerns about the father introducing his new partner to the children so quickly. She came to believe that the father's new partner was living at the father's house most of the time by May of 2013, only three months after the parents have separated. She had advised the father against introducing a new partner to the children so quickly after they had been through so much upheaval.

253However, Ms. Charlebois testified that other than her serious concerns about the father's lack of stable housing and finances, she did not have any concerns about his parenting of the children and she observed that the children were well bonded with him.

Ms Linda Brooks, Child Protection Worker

254Ms Brooks is also a child protection worker with Halton Children's Aid Society She assumed carriage of the father's file in August of 2013 from Ms. Charlebois. She has been the child protection worker for the father and the children since that time.

255Ms Brooks explained that the society is working with the father to ensure that the children have a stable environment. This was the protection concern identified when the file was transferred.

256Ms Brooks testified that this is a "voluntary working arrangement" in which the father has been cooperative. She visits the father and the children approximately once each month. In addition, she investigates any complaints made against the father, including interviewing the father, the children or any collaterals when necessary. She makes announced and unannounced visits to the home and will also meet the children at school, depending on the investigation.

257Ms. Brooks does not work with the mother as she and the youngest child had already moved to Toronto at the time the child protection file was transferred to Ms Brooks. At the time of trial, Ms. Brooks had never met the mother, although she had spoken to her on the telephone. It was Ms. Brooks' understanding, as expressed by the father to her, that the mother has mental health problems.

258Ms. Brooks testified that throughout her involvement with the father, there have been numerous reports made by the mother, and her family members, about bruising on the children and alleged maltreatment caused by the father. She and her colleagues, including the Toronto children's aid society have investigated all of these complaints.

259According to Ms. Brooks, in 2015, there had already been three further reports of alleged maltreatment in the months leading up to the trial. In addition, the weekend prior to Ms Brooks' testimony, the society received a further report from the mother about bruising on the middle child. Ms. Brooks was aware of this report and explained that the Toronto society assisted with this investigation as the report was made by the mother while the children were at her home. Workers from the Toronto society attended at the mother's home and interviewed the mother and the middle child's.

260Ms. Brooks testified that she and other CAS workers, including Toronto CAS workers, have interviewed the children on numerous occasions regarding all of the reports made by the mother and her family.

261Despite numerous investigations, Ms Brooks and other child protection workers have never verified maltreatment.

262Ms. Brooks testified that she meets with the children individually and alone, at school, at daycare, shortly after they arrived home from daycare, after school, and at various points during the day. She testified that the children speak openly with her. The father is not present for the interviews. Ms. Brooks has seen bruising on the children, however, the children have not reported to her that bruises were caused by the father's maltreatment.

263During cross-examination, the mother's counsel attempted to introduce several photographs as exhibits of the children's arms and legs that were apparently taken by the mother or the mother's sister-in-law on the mother's behalf. One of the photos was allegedly of "a four point bruise with a thumb print" on M. This was not permitted, and counsel was directed to introduce the photos through the person taking them to determine admissibility.

264Ms. Brooks further testified that as a result of the more recent reports and the photographs taken by the mother and her family, a referral was made to the SCAN team by the Toronto CAS. Ms. Brooks testified that the SCAN team did not require seeing the children nor did they have any immediate concerns.

265Ms. Brooks testified that she has directly observed the children with their father on many occasions. She observed that the father is very playful with the children. They play imaginary games with him, they like to jump on him and hang onto his legs when he is walking around. She observed the children to be "happy and playful" with their father.

266She has observed that there appears to be a close bond between the children and the father and that they are not frightened of him. She has observed the father discipline the children while she is at the home and he gives them a verbal warning if they are not behaving. She has also observed him attending to their needs appropriately.

267Ms. Brooks has not observed the father favour one child over the other. Both children refer to him as "Daddy". K.-L. does not appear to be coached or pressured to call the father "Daddy" at home with him.

268Ms. Brooks has also interviewed M. about his name. In August of 2014, she became aware that he was being called a different name in the mother's home. M. confirmed this in an interview with her. M. reported to Ms. Brooks that he does not like his "new name" and that he wants to be called "M."

269At the time of her testimony, the father and the two older children were living with the father's partner in a rented three bedroom, two storey house in Oakville. This is the home that the father must now leave as he was facing eviction for nonpayment of rent.

270Ms. Brooks testified that the home was furnished appropriately and she did not observe any safety hazards. She had no concerns about food or the level of food available for the children. The fridge is always appropriately stocked and the family receives weekly food assistance through a program called "Food for Life" coordinated and funded by the society and grocery stores in the community.

271Ms. Brooks testified that she does not have any concerns about the father's marijuana use, his mental health or his ability to care for the children. She described the father as acting like a caring parent.

272In cross-examination, Ms. Brooks acknowledged that she was unaware of the circumstances leading to the two ex parte orders that the father had obtained for custody of the children. She agreed that it would be concerning if the father had lied to the court. She further testified that during her involvement, he advised her that he was going to court to get another ex parte order that the mother have supervised access because her mental health was "out of control." He was advised by duty counsel to speak to his lawyer.

273Ms. Brooks acknowledged that she has never required the father to obtain a mental health assessment nor had she seen a mental health assessment of the father.

274Ms. Brooks was aware that a previous worker had found the father to demonstrate "a controlling and jealous nature", however, she had never observed that behaviour during her involvement. She testified that he has been upset when they have had "discussions" but he has never exhibited threatening or concerning behaviour towards her.

275Throughout the course of her involvement with the father, Ms. Brooks conducted a risk assessment, which is a standardized Ministry tool to measure potential risk to children. The tool assesses past history, the ages of children, mental health factors, drug use, the home, developmental and behavioral issues of children, among other factors.

276Ms. Brooks testified that she personally completed the risk assessment and scored the potential risk for the children as "high". However, she explained that the tool only rates potential risk and it must be assessed in the totality of the current circumstances, including all of the mitigating risk factors.

277She further testified that if the father no longer chose to work with the society on a voluntary basis, then she would have to consult with her supervisor to determine whether to take further steps towards legal intervention. She corrected the father's testimony that it was his choice to remain involved with the society and clarified that the decision was up to the society.

278Ms. Brooks testified that she was aware that M. had been infected with balinitis and K.-L. had been infected with both vaginal and anal dermatitis, however, it was her understanding that the father had followed through on the proper medical treatment, based on her discussions with the father about these issues.

279Ms Brooks also testified that during the course of the OCL investigation, the clinical investigator reported concerns to her about the father locking the children in the bedroom at night or when they misbehaved which concerned her. Ms. Brooks followed up with that investigation and cautioned and directed the father. It was her understanding that the father had accepted her direction and stopped doing this.

280Ms. Brooks further acknowledged that in the past she has directed the father to clean and organize his house and that she described his home to the OCL investigator as "a disaster". She was not aware of the state of the father's previous home when he was evicted, according to the testimony of his previous landlord, nor was she aware that the apartment smelled like marijuana.

281Ms. Brooks was further unaware that there had been a number of police complaints, both by the father and by other tenants at his previous rental, however she explained that if the police had any concerns, then they had a duty to report these to the children's aid society under the established protocol, which she did not receive.

282Ms. Brooks further acknowledged that there have been a number inconsistencies between what the father has told her and what other professionals involved with the family. She conceded that the father's situation may not be as stable as the father has "led her to believe", however she pointed out that this was why the society remained involved with an "open file". When asked what that meant, she clarified that the society would not have an open file with the father unless they had some child protection concerns.

283Ms. Brooks acknowledged that one of the society's main concerns is the father's inability to maintain employment, leading to a lack of stability for the children. At the time of her trial testimony, the father's finances were stable, but only because his partner, Ms M., had steady employment. She agreed that if Ms. M. leaves, then the father's stability would be jeopardized. She identified as accurate a case note of a discussion that she had with her supervisor that "the father has many excuses as to why he does not have a job. Always seems to have a plan with no action." She agreed that nothing had changed since that 2014 case not and that this had been an ongoing issue for a number of years.

Ms. Cindy Morley, Director of KidLogic Daycare

284Ms. Morley is the Director of the Montessori education and daycare program that the two older children attended from March of 2013 to the end of August of 2014 in Oakville.

285Ms. Morley testified that during that period, she had interactions with both parents. The mother generally would pick up the children on Fridays and they would talk about how the children were doing. She described this as a "normal parental interaction".

286Ms. Morley recalled that the mother spoke negatively about the father in front of the children. Further, the father on occasion did not provide instructions or medication (such as nasal spray) to the staff for the children when they had sinus infections. She expressed no other concerns about the parents. The daycare did not have any concerns about the children's care or hygiene. She recalled that the father attended class trips with the children which were reported as positive.

287Ms. Morley had been asked by the mother to write a number of letters about the children's absenteeism and other issues. These letters were entered as exhibits at trial. Ms. Morley testified that the children between March 25, 2013 and September 5, 2014, the children were absent a total of 52 days. Many of these days were the Friday when the mother attended to pick up the children. Ms. Morley testified that she would call the father to see where the children were and he advised that he would be on his way with them.

288In all of the letters filed, M. is referred to as "M.", not the name that the mother and her family now use.

289Ms. Morley testified that when children are in the daycare for the whole year, they are allotted 31 days of absenteeism. Initially, the children's absenteeism was not unusual, however, towards the end, they were absent more often than some of the other children.

290Ms. Morley testified that between April and June of 2014, the daycare started to notice some unusual behaviours for K. who was normally "a well-behaved child". She described K. as being "unfocused", "unmotivated" and "sad" during this time period. K. had to be constantly reminded to do her work. The same issues were not observed in the summer of 2014, however, in the summer the program switches to a "play based camp style" program and does not include the same amount of work as the school year.

291K. moved directly from this program into grade 1 in September of 2014. Ms Morley testified that this was an appropriate level for K. because the Montessori learning program provided at Kidlogic is actually superior to kindergarten programs.

Ms Deanna Beach, Junior Kindergarten Teacher

292Ms. Beach was M.'s junior kindergarten teacher at Mount Clair Public School in Oakville for the September 2014 to June 2015 school year.

293Ms. Beach knows M. as "M." and testified that he identifies himself as "M." at school. He does not identify with the new or different name that the mother requested he be called.

294Ms. Beach first became aware of the different names for M. in January of 2015 when she met the mother. She testified that the mother told her what M.'s actual name was her to call him this name in the classroom. She was unaware that this was actually M.'s legal name and was surprised to hear this at trial.

295Ms. Beach testified that M. prefers to be called "M." At the time of her conversation with the mother, M. was in the room, so she suggested that they ask M. what he would prefer to be called and he said "M." Neither counsel objected to this hearsay statement from the child, and the court only considered this evidence under the state of mind exception to the hearsay rule.

296Ms. Beach described M. as a "very curious learner" who interested in class activities. He appears to be well-fed and well rested when he comes to school and he brings a proper lunch and snack. He wears seasonally appropriate clothing.

297She described their main challenge with M. is moving him from one activity to another. He is sometimes impulsive. He can be re-directed and responds appropriately to consequences. He is beginning to play with other children but still enjoys playing on his own. Ms Beach did not express this as a concern, but rather developmental. She recalls discussing this with the mother and exchanging an email with her about her observations and suggestions.

298Ms Beach testified that there were now concerns identified regarding M.'s speech difficulties. He was referred to a school speech pathologist for a screening, the results of which she had not yet received at the time of her testimony.

Ms Michelle Hoytema, Grade One Teacher

299Ms Hoytema is K.-L.'s grade one teacher at Mount Clair Public School in Oakville.

300She testified that K-L. attends school consistently, appears to be well rested and fed, and she brings a proper lunch and snack to school. She wears seasonally appropriate clothing. She completes her homework. She has been late a number of times but Ms Hoytema did not identify this as a concern.

301Ms Hoytema described K.-L. as generally well-behaved in the classroom. Academically, K.-L. is sometimes unable to complete multiple step activities which is a concern. She is sometimes easily distracted.

302Ms Hoytema expressed other more recent concerns that developed a few months before this trial, according to her testimony. She observed that when K.-L. became frustrated K. L. would cry so much that she would start to hyperventilate. Ms Hoytema observed these "meltdowns", as she described them, over a number of weeks in February and March of 2015.

303Ms Hoytema spoke to both parents about the "meltdowns". She spoke directly to the father and sent an email to the mother. In her email to the mother, Ms Hoytema described the crying and hyperventilation occurring over seemingly small problems, for example, if K.-L. is unsure of how to do an activity. She expressed concerns to both parents and also reported her concerns to the CAS social worker at the school.

304Ms Hoytema testified that she communicates equally with both parents, although she would see the father more often at the school.

305Both parents acknowledged Ms Hoytema's concerns. The mother responded by email and advised Ms Hoytema that she noticed this as well and wrote that "K.L. withdraws whenever she is asked any sort of questions" or starts hyperventilating and crying and gets "extremely upset." The father advised that he was seeing this behaviour as well.

306Ms Hoytema testified that after the March school break, she spoke to K.-L. and asked her how she was doing and if she had any of her meltdowns during the break. Ms Hoytema wanted to determine whether there was any improvement.

307According to Ms Hoytema, K.-L. testified that she had a meltdown on the previous weekend because "Mom and her Aunt wouldn't stop asking where the bruises came from." Ms Hoytema did observe a bruise on K.-L.'s leg. K.L. did not know where it came from and Ms Hoytema could not identify it. Ms Hoytema reported this to the school social worker and it is her understanding that an investigation ensued.

308K.-L.'s statement to the teacher is obviously hearsay. Neither counsel objected. The court is not relying upon the statement for the truth of its content, however, the mother admitted in her testimony that she and other family members frequently questioned the children about bruising as they were concerned that the father was abusing them.

309In cross-examination, the mother's counsel showed a number of photos to Ms Hoytema of alleged bruising on K.-L. Ms Hoytema was unable to identify the bruises or what they looked like. She was not able to comment on the photos provided. Ms Hoytema testified that she is not qualified to comment on the reason that K.-L. is hyperventilating in class. She has communicated with both parents about her concerns in an attempt to try to understand K.-L.'s emotional responses.

310Ms Hoytema also acknowledged that the K.-L. is often late coming into class, but she testified that "many of the other students are late as well." She did not appear to be concerned by the number of lates, although agreed that it could be a concern.

Ms M.M., Father's Former Partner

311Ms M. is a communications consultant with Bell in Oakville, Ontario. She was 24 years old at the time of her testimony at trial in May of 2015. Ms M. provided further affidavit evidence in January of 2016 which was admitted on consent and not subject to cross-examination.

312Ms M. testified that she first met the father in February or March of 2013 through an online dating service. She acknowledged that she came to an early family court appearance in March of 2013 to provide support for the father, but she testified that they did not become involved in a relationship until May or June of 2013. In cross-examination, she conceded that it was May of 2013, which is what she had reported to the OCL clinical investigator.

313Ms M. testified that she started living with the father and the children in December of 2013. It is not disputed that the father was living on Napier Avenue in Oakville at that time. In cross-examination, Ms M. denied moving in with the father earlier than December of 2013, however, she did admit that she spent time with him and the children at his residence prior to moving in with him.

314While they were living together, Ms M. described being very involved in the children's care. She described her responsibilities in the household and with the children. She often did the morning routine with the children while the father usually did the evening routine. She assisted the children with their homework, as did the father and the paternal grandmother. She testified that homework is shared between her, the father and the paternal grandmother. Ms M. was also responsible for laundry, dishes, tidying up and cleaning. If she was able to end work early in the evening, then she would help get them ready for bed.

315At trial, Ms M. described a very strong relationship with the father and described him as "her mentor" and that she had become a different person because of him. She acknowledged suffering from depression in the past and telling this to the OCL investigator, however, she testified that this occurred a number of years earlier and not immediately prior to her relationship with the father.

316Ms M. described a very close relationship with the children but testified that she was careful never to act as their mother or replace the role of their mother. At one point in her testimony at trial, she became emotional in describing the children and her growing attachment to them. She described how affectionate the children were with her and the activities that they did together.

317Ms M. testified that occasionally she and the father have argued and sometimes there would be raised voices, but the father never called her names or was abusive towards her.

318Ms M. described the relationship between the children and the father as very strong and loving. She testified that they have a lot of fun together. The children always want to be around him. She described the father pretending to be a tree and the children climbing on him. She described the children and the father as "inseparable" when they are together. They go camping together and enjoy a number of activities.

319She also described a very loving and happy relationship between the father and the youngest child, although she acknowledged that given the very busy schedule during the week and the costs of transportation, he does not see P. during the week.

320Ms M. testified that she has never seen the father physically discipline or abuse the children. She acknowledged that the children may have bruises because they are very active children, but she has never seen the father spank, hit or grab the children at all. She described the father's discipline as taking away privileges, such as not being able to watch a show before school or getting a treat.

321Ms M. acknowledged that there was one occasion when K.-L, may have walked into their bedroom during an intimate encounter between her and the father because the door was unlocked, although she was not certain. She was aware that the mother had reported this incident to the Children's Aid Society.

322Ms M. acknowledged that she was working full time and providing the financial support for the family. She also had ensured that the children and the father were placed on her benefit plan at work. She acknowledged that the father was not working.

323Ms M. testified that she did not have a lot of interaction with the mother. She recalls the mother approaching her at family court to warn her about the father, but she did feel threatened by that. She understood that the mother was upset. She left the courthouse shortly afterwards and waited for the father outside of court.

324However, on another occasion, the mother and several other people approached her while she was waiting in the car during an access exchange. They started yelling and screaming at her and banging on the car for cutting K.-L.'s hair. She described feeling threatened by this and she did not open the door or roll down the window.

325On another occasion, she received a handwritten note from the mother, left in K.L.'s school agenda. The note was received after Ms M. had signed K.-L.'s book log.

326Ms M. testified that this was not "a friendly note" as described by the mother. Ms M. described it as "more of a warning or a very light threat". The mother told her to stop signing the book log for her daughter as she was not a parent and "of no relation to her children". The mother accused her of doing this "out of spite". The note told her to "Stop" and to "BACK OFF".

327In her testimony, the mother fully admitted admitted to sending this note to Ms. M. However she described this as "a friendly note" and testified that she was attempting to reach out to Ms. M as a mother.

328Ms M. testified that she never intended to sign the book log as a parent. She did this out of concern for K.-L. as she was having some difficulty with reading. She wanted the school to see that K.-L. had completed her reading homework.

329In December of 2015, Ms M. and the father separated. At the re-opening of the trial in February of 2016, Ms M. provided a sworn statement in response to several new allegations raised by the mother. This was admitted on consent of the parties.

330Ms M. denied any physical or emotional violence in her relationship with the father and stated emphatically that this was not the reason that she separated from him. She described several factors, including taking care of the children, supporting the father financially and emotionally, and dealing with unwanted contact from the mother. As well, in August of 2015, the paternal grandmother moved in with them because of her own housing difficulties and all of this became "too much to handle."

331Ms M. deposed that she left the relationship in December of 2015 because she "was exhausted physically, mentally and emotionally". After some time away, she was able to evaluate the relationship in light of several considerations and decided to "part from the relationship." Based on the evidence filed, there appears to be no prospect of reconciliation.

332Ms M. reiterated her evidence at trial that the children have a close and loving relationship with their father and that they are "free and happy when they are with him". She expressed sadness at the pain and confusion that the conflict is causing the children. She explained that although she cares for the children, she believes that for the time being, it is better not to see them as she does not wish to cause them any more hurt and confusion.

Ms A. H., Mother's Sister-in-Law

333Ms. H. is engaged to the mother's brother. She is a registered early childhood educator. She has known the children since their birth. She sees the children on the weekends when they are with the mother at her home. Ms. H. lives approximately 10 minutes from the mother's home by car. She is very close to the mother and the children as our members of the extended family.

334Ms H. has known the mother for approximately seven years and the father for approximately six years. She described the father is very controlling, manipulative, violent, and a liar. She testified that he has no regard for court orders.

335Ms. H. testified that K.-L. does not want to go back to her father's home after her weekend visits with her mom. She testified that "we sit her down and say only four more sleeps and you will come back to mommy." She testified that K.-L. is extremely sad when she has to leave her mother.

336Ms. H. further testified that she takes photographs of K.-L. while she is saying goodbye to her mother to show how sad she looks. These photos were produced at trial. Ms. H. testified that the middle child was initially very excited to see his father when he comes to pick him up at the end of the visit. According to Ms. H, he now hides behind beds, becomes very emotional and will refuse to leave.

337Ms. H. is actively involved in taking photographs of the children to prove that they are being abused by the father. She testified that she has photographed Mason's arms and legs, Krysta's legs and Mason's left side. Numerous photographs of the children's various body parts were entered as exhibits, all taken by Ms. H..

338Ms. H. became very emotional in her testimony. She described her belief that the children were being harmed by the father. She confirmed that the mother takes the children's to doctors, on an almost weekly basis to report concerns about the father's care of the children. She testified that he has accompanied the mother to some of these visits and that she also has reported her concerns to the children's aid society.

339Throughout her testimony, Ms. H. referred to M. using the different name that the mother started calling him in 2014.

340In cross-examination, Ms H. conceded that she has never observed the father in a parenting role. She further conceded that she has never seen the mother and father parent together. She acknowledged that she told Ms Dorion, the clinical investigator, that the parents' relationship was toxic, but did not report any domestic violence by the father.

The Father's Landlord from March of 2014 to January 2016

341At the time of his testimony, the father's landlord indicated that the father was a good tenant and that he and Ms. M. paid the rent on time. He had no concerns with the father's upkeep of the premises and he always had a friendly and cordial relationship with him.

342However, the landlord was not called to give further evidence at the re-opening of the trial in February 2016 when the father was facing eviction for non-payment of rent and had fallen into arrears for a number of months.

343It is not disputed that the landlord has now sold the property to new owners and has indicated that he does not wish to pursue the rental balance owing by the father as that is now the new owners' problem. The new owners are building a new home on the property. The new owners appear to be content to allow the father to remain in the property over the next few months until they begin demolition, so long as he pays monthly rent.

Mr. M. J., Father's Family Relative

344Mr. J. is related to the father by marriage. Mr. J. is a lawyer by training and is currently employed as a lead legal writer by Carswell Corporation. His wife, the father's cousin, is a teacher and head of the English department at a secondary school.

345Mr. J. has known the father since he was a child, although he acknowledged that he saw him sporadically growing up and over the years. He testified that the last time he saw the father was at a summer party in 2013. Prior to that, he did not recall seeing the father for a number of years. He recalls taking the father to a Blue Jays game when he was 12 years old.

346Mr. J. testified that he and his wife became aware of the father's housing and financial situation early this year and offered to allow him and the children to stay at one of their homes, a two bedroom bungalow, which is currently vacant, while the father finds permanent housing. The home is owned by his wife.

347The home is located on 1062 Kent Avenue in Oakville. It is on the same street that the father is currently living on with the children. The children would not need to change schools as a result of having to leave their current residence on Kent Avenue. Mr. J. testified that the home is in good condition and that there are no immediate plans to sell it.

348Mr. J. testified that although they will charge the father rent, it will be substantially below market rent to assist the father financially while he gets established. They will also provide him support and advice in finding stable employment.

349Mr. J. acknowledged that he knows very little of the family history, the father's past housing history, the custody and access issues, the father's rental history, and his relationship with previous landlords. He was not aware that there was a previous judgment against the father for approximately $7000 for non-payment of rent. He was not aware that the father had been evicted approximately three times in the past, nor was he aware of the father's difficult relationship with Ms. Janik, his former landlord.

350According to Mr. J., they are helping the father and the children by providing him a place to stay until the father is able to get himself established. He testified that he and his wife are looking at giving the father "interim support and we are hoping that will be a short order." He estimated that this will hopefully not be longer than a few months.

Ms Krystal Dorion, the OCL Clinical Investigator

351Ms Dorion is a clinical investigator with the Office of the Children's Lawyer (OCL). She has a Master's degree in social work and has been a clinical investigator with the OCL. She is also a supervisor and social worker with a Toronto Catholic Children's Aid Society, and has been a social worker in that capacity since 2004. Ms Dorion has conducted approximately fifty to fifty-five OCL investigations.

352Ms Dorion was assigned by the OCL to conduct the custody and access investigation in this matter on June 20, 2013, following the Honourable Justice Zisman's request for the OCL's involvement.

353Ms Dorion's 37 page Report, dated March 11, 2014 was filed with the court as evidence at trial, pursuant to section 112 (1) of the Courts of Justice Act. Ms Dorion also testified at trial.

354As part of her investigation, Ms Dorion meets with both parents, the children, conducts home visits in each parent's home, meets with significant collaterals, interviews personal and professional collaterals, receives and reviews all police reports, medical reports, and any other professional reports provided by the parties or that she obtains.

355In this case, Ms Dorion met and interviewed each parent individually on three separate occasions, conducted two observation home visits, and met with and interviewed K.-L., the oldest child, at her office on two separate occasions. The two younger children were ages three and one at the time of the investigation and unable to be interviewed due to their age and stage of development.

356Ms Dorion also interviewed the children's maternal grandmother, the mother's sister-in-law (Amber H.,), the father's former partner (Ms M.), the children's family doctor, the mother's family doctor, the three child protection workers involved with the family (Amanda Charlebois, Linda Brooks, Andrea Hayes,), Cindy Morley, the children's daycare provider, and Cathy Bales, the foster parent who supervised the mother's care of the children. She received and reviewed all police reports involving the family and the father's criminal record.

357In her Report, Ms Dorion makes the following findings at pages 15 to 18:

The children, K.-L., M. and P. are beautiful, loving children. All three children have been exposed to a significant amount of conflict between their parents and a great amount of disruption in their short lives. Despite the ongoing chaos that appears to have taken place since their birth, K.-L., M. and P. appear to be doing well medically and meeting developmental milestones. The daycare has reported no significant concerns with regards to K.-L. and M. 's behaviour and overall care.

Adult Conflict:

Halton Regional Police Records revealed that Ms. Hughes and Mr. Roy have had 11domestic disputes requiring police intervention since May 2010 and the majority of these domestic occurrences were in the presence of the children. Toronto Police have attended Ms. Hughes home on two occasions since January 2014 due to domestic disputes between Ms. Hughes and Mr. Roy during exchanges that again, were in the presence of the children. Based on the information provided it appears that both parents have contributed and are responsible for exposing the children to conflict.

Parenting:

There were no concerns reported by the family physician with regards to Mr. R.'s care of the children. Dr. Sayed noted that the children are seen as required and are medically well. There have been several occasions that Ms. H. has reported concerns about the children's hygiene, specifically regarding K.-L.. Dr. Karagosav indicated that Ms. H. complains that the children have rashes and fungal infections caused by their father. Dr. Karagosav indicated that skin issues in young children are common and are not an indication of poor hygiene. The daycare was contacted on two occasions and on each occasion the daycare reported that there is no concerns with the children's overall care, appearance or hygiene. Ms. H. also expressed concerns with the children's attendance at daycare, which was also reported as not being an issue by the daycare.

The day prior to the disclosure meeting, Mr. R. reported that he was planning to move into a larger home. Mr. R. acknowledged that he is struggling financially, however reported always being able to provide the basic needs for the children. Nevertheless, it is questionable how long Mr. R. can continue to maintain providing for the children consistently under these circumstances. It is critical that Mr. R. demonstrate the ability to maintain stability in his life by obtaining and maintaining employment while providing consistency for the children by remaining at the same residence for an extended period of time.

Halton Children's Aid Society reported that at this time both parents present with significant deficits with regards to their ability to parent. In order to ensure the safety and well-being of the children, Children's Aid Society will be required to remain involved with either parent if they remain in a caregiving role.

Halton Children's Aid Society also reported that it appears that both parents present with underlying mental health issues. There has been ongoing conflict between parents and an inability to consistently provide for the children. To address allegations of concerns of mental health issues, it will be recommended that both parents attend

ongoing counselling to obtain strategies on how to parent in a child focused manner.

Both parents should follow thru with any additional recommendations made by the

assigned therapist, including support to assess or manage an underlying mental health

issue.

Ms. H. and her family have informed K.-L. that Mr. R. is not her father despite Mr. R. being a primary caregiver and her psychological father since she was an infant. Based on observations, reports from Halton Children's Aid Society and the daycare, K.-L. is very comfortable in the care of Mr. R., she seeks him out for love and affection and Mr. R. acts, cares and has been the only father she has ever known. Halton Children's Aid Society reported that "[the mother] and her family present as sabotaging [the father's] relationship with K.-L." and indicated that the family calls on a weekly basis reporting concerns about the care K.-L. receives while in Mr. R.'s care. Toronto Children's Aid Society also reported concerns with the amount of negative messaging K.-L. is being exposed to by Ms. H. and her family. Toronto Children's Aid Society Family Service Worker, Ms. Hayes stated, "I have never met a more coached child" when referring to K.-L. and indicated that Mr. R.'s home presents with less conflict for the children…

It is imperative that Ms. H. recognize the long-term emotional harm she may be

causing to K.-L. and refrain from this behaviour. She would also need to ensure

those around her do the same. In the event Ms. H. continues to interfere with Mr.

R.'s relationship with K.-L. the Courts may need to re-consider Ms. H. access with K.-L. given the negative impact this could have on K.-L.'s overall well-being.

Ongoing Supports:

It important for the safety of the children that both [parents] continue to be supported by their families and community organizations, specifically Children's Aid Society. The maternal grandmother, Ms. J. H. is a primary caregiver of P. and is actively involved with K.-L. and M. during their access time with Ms. H. [The grandmother] reported caring for the children when needed and providing Ms. H.s with emotional and financial support.

Mr. R. reported being supported by his current partner, Ms. M. Ms. M. reported providing Mr. R. with support caring for the children and the children identified Ms. M. as a caregiver as she cooks and cares for them on a daily basis.

358Ms Dorion concluded that despite a number of significant concerns regarding both parents, the children appear to be well settled in their respective homes and are doing reasonably well given "the amount of conflict and chaos they have been exposed to by the parents". She found that any further disruption to the children's stability and home environment would not be in their best interests.

359In addition to numerous other recommendations regarding individual counseling and treatment for the parents and the children, and recommendations regarding parental conduct, Ms Dorion made the following core recommendations:

1. The father to be granted sole custody and primary residence of the children, K.—L. and M.

2. The mother to be granted sole custody and primary residence of the child, P.

3. Both parents to consider the wishes and preferences of the non-custodial parent prior to making any final decisions pertaining to the children.

4. The mother to have the children on Friday after school/daycare until Sunday at 6:00pm the first three weekends of each month. The mother is responsible to pick the children up from daycare/school.

5. The mother to be granted access every Tuesday from pick-up after school until7:30pm. The mother to be responsible for pick up and drop off

6. The father to have the children, K.-L. and M. from Sunday at 6:00pm until drop off at school/daycare Friday morning. The father to be responsible to pick up the children from an agreed upon community location close to the mother's home.

7. The father to be granted access to P. every Wednesday from 4:00pm until 7:30pm.

360Ms Dorion also noted the following at page 19 of her Report:

"The parents have been engaged in continual conflict for the duration of this investigation requiring police intervention, yet Mr. R. revealed explicit pictures that Ms. H. had sent of herself to him in an attempt to reconcile. Ms. H. denied wanting to reconcile, yet, reported that she and the father were intimate throughout the investigation.

The nature of their current relationship is unclear to the professionals at this time. Hence, one might wonder how the children understand or make sense of the relationship. The investigation has revealed that each parent has their own parenting struggles that they need to address and should refrain from focusing on the deficits of the other parent. It is hoped that parents will ensure the safety and well-being of their children while obtaining the professional support they require in order to move forward parenting in a child-focused manner. "

361In cross-examination, Ms. Dorion readily conceded that the father had not been entirely truthful with her during the course of the investigation, in particular about his housing, his attention to the children's medical needs, and the commencement of his relationship with Ms. M.

362However, she also testified that this was not surprising to her given that the father's housing and stability was one of her major concerns when conducting her investigation, based on the reports that she received from the children's aid society and the mother, and in her interviews with the father.

363During the course of her investigation, Ms. Dorion testified that in October of 2013, the father admitted to her that as a form of discipline he sometimes locked the children in their bedroom and has occasionally spanked the children. Ms. Dorion reported this information to the children's aid society and an investigation ensued. Ms. Dorion was satisfied that the father no longer engaged in these forms of physical discipline however, she testified that she would be concerned if the father continued to do this after the CAS investigation.

364Ms. Dorion also had very significant concerns about the mother's active undermining of the children's relationship with their father and the impact that this had on the children, based on her direct observations.

365Ms. Dorion testified that she "really could not put into words how concerning the observation visit" at the mother's home was to her. She testified that notwithstanding Ms. Dorion's attempt to redirect the mother, the mother blatantly spoke very negatively about the father in front of the children throughout the visit. Ms. Dorion testified that she "had never seen anything like it". She observed the children to be very uncomfortable with the level of negativity about their father in front of them. She reported that neither the maternal grandmother nor the sister-in-law intervened at all.

366Ms. Dorion also observed that the children, particularly K.-L., appeared to be very coached by the mother prior to the home observation visit. Ms. Dorion described K.-L. running into the living room directly towards her after she arrived and stating to her, "I don't want to go back to G's. No more back and forth." K.-L. referred to her father as "G." for the duration of the visit.

367Ms. Dorion testified that her observations were supported by observations made by other collaterals that she interviewed, including the children's daycare supervisor, Cindy Morley, and one of the child protection workers, Ms Andrea Hayes. Ms. Dorion testified that she observed it first-hand during the observation visit.

368Ms. Dorion testified that she was also concerned about the "absolute difference" in how K.-L. reacted in her interviews when she was first brought by the father and then brought by the mother.

369In the first interview, in which she was brought to Ms. Dorion's office by the father, K.-L. was happy and playful and called her father "Daddy" throughout the interview. She answered questions readily and comfortably.

370In the second interview, when K.-L. was brought to Ms. Dorion's office by the mother, K.-L. was quiet, withdrawn, uncomfortable, and referred to her father as "G." throughout the interview. She did not readily respond to questions and answered "I don't know" to several of the questions that were asked of her.

371Ms Dorion described in her testimony, "She saw a child that was one way with her Mom and one way with the Dad." Ms Dorion observed K.-L. as a five-year-old child's, playing, easy-going, engaged, very comfortable with her father, referred to them naturally as daddy throughout the visit. She was a happy, engaged child.

372Ms. Dorion observed that K.-L. was more withdrawn and quiet with her mother. She felt that K.-L. had to tell her something and she sensed the weight of it. She observed K.-L. and the other children to be very uncomfortable with the negative statements made by the mother about their father. She observed that throughout she observed that she specifically and only referred to her father as Garrett in the presence of her mother. Ms. Dorion observed that K.-L. in particular was very impacted by the mother's negative statements about her father.

373Ms. Dorion did not see any evidence of coercion or fear in K.-L. when she calls her father Daddy. She observed it to be very natural. She disagreed with the mother's testimony that K.-L. was forced to call her father daddy or she would get into trouble or be yelled at by the father.

374Ms Dorion also observed that the children appeared happy and content during the home visit with the father and that they were safe and comfortable in his presence. She observed K.-L. climbing all over her father, including his shoulders, in an activity that appeared familiar and comfortable to them. She found that K.-L. actively sought out his love and affection.

375Ms. Dorion testified that although the maternal grandmother and the maternal aunt or sister-in-law are important supports for the mother, she did not see them as a safety factor for the children. She observed that they never interfered or prevented the mother from her negative statements about the father in the presence of the children and did not seem to be concerned by this conduct. Notwithstanding these concerns, Ms. Dorion observed that overall the children appeared safe and comfortable while in the care of their mother and also in the care of the maternal grandmother and the mother sister-in-law at the mother's home.

376Ms. Dorion acknowledged that she received conflicting information about the mother's mental health during the course of her investigation, but she did not put much weight on the information regarding the mother's mental health. She was more concerned with how the mother appeared to actively undermine the children's relationship with the father, based on her direct observations of the mother and the children during her investigation and the mother's statements to her about the father.

377Ms. Dorion testified that, in her view, if the mother had custody of the children, then she would not support and meaningful relationship between the children and the father. In fact, Ms. Dorion testified that the mother actually told her this, with respect to K.-L. Ms. Dorion testified that the mother reported to her that she would not support a relationship between K.-L. and the father because he was not her biological father.

378Ms Dorion also reported that during her interview with the maternal grandmother, the grandmother also stated to her that K.-L. should not have any contact with the father because he is not her biological father. Based on her interview with the grandmother, it was Ms Dorion's understanding that she was actively involved in the care of the children currently and in the past and cares for the youngest child for extended periods of time when the mother is working.

379Ms. Dorion testified that during the course of her investigation she became aware that the mother told K.-L. that her biological father lives in Newfoundland and that the father was not her "real father". The mother advised Ms. Dorion that K.-L. had a "right to know". The mother further advised Ms. Dorion during the course of the investigation that she was planning on reintroducing K.-L. to the biological father in Newfoundland.

380Ms. Dorion testified that this information greatly concerned her because the mother had reported to her that the biological father was very abusive to her and had physically and sexually assaulted her while they were living in Newfoundland and that the children's aid society was involved because of the protection concerns regarding the biological father.

381Ms. Dorion testified that during the course of her investigation, the mother advised Ms. Dorion that she started "playing dirty" with the father and pretended to be friends with him so that she could see M. after their first separation in February 2012. Ms. Dorion testified that there was no mention of fear by the mother when she discussed this. Given the amount of conflict and abused that the mother had described to her Ms. Hughes was shocked by this statement.

382Ms. Dorion did not learn that the mother had started calling the middle child a different name until after her investigation was completed. She testified that this also speaks to the amount of confusion conflict and that these children are exposed to by the parents.

383Ms. Dorion also testified that at the beginning of her investigation the mother told her that she wanted the oldest and youngest child and that the father could have the middle child. Ms. Dorion was concerned that the mother did not have the insight to recognize the importance of the sibling relationship between M. and K.-L., who she observed to be very close. However by the end of the investigation, the mother changed her position as stated she wanted custody of all three children because she was concerned that the father was harming the children while they were in his care.

384Ms. Dorion acknowledged that both parties have contributed to the conflict between them and that both parties have exposed the children to the conflict. She further acknowledged that the father also said inappropriate things about the mother in the presence of the children but when specifically asked, the father was clear that he would support a relationship between K.-L. and their mother, contrary to the mother's position when she was asked the same question.

385Ms. Dorion testified that she was very concerned about these children. Although the children did not present as traumatized children during the course of her investigation, she was very concerned about when the trauma would start to show if they continue to be exposed to the conflict between the parents. She did not believe that either parent could parent all three children at the same time. Both required significant support. She was concerned that these children could end up in foster care.

Other Collateral Witnesses

386The father also called three friends as witnesses. The friends described their relationship with the father as positive however, these friends had very little involvement in the custody and access issues and limited involvement in observing the father in a parenting role, nor had they observed the father and mother together in parenting roles. The evidence is that these witnesses provided did not assist the court in determining the custody and access issues.

Credibility Findings

387The court had significant difficulty with the credibility and reliability of both parents' evidence in this trial. This made the exercise of factual findings more difficult.

388Both the father and the mother misled or failed to disclose to the police and the Crown throughout the father's criminal proceedings that they were living together, notwithstanding the bail conditions that they have no contact.

389Both the father and the mother misled or failed to disclose to the family court judge for several months during the first custody proceedings that they had reconciled and had been living together since April of 2012. The case management judge was not informed until October of 2012 that the parties had reconciled, notwithstanding a number of court appearances.

390In addition, both parties were not credible in other areas of their evidence as set out below.

Father's Credibility

391I had great difficulty with the father's credibility.

392The father greatly exaggerated and misrepresented the evidence upon which he obtained both urgent ex parte custody orders. He was well aware that the mother had returned to her parents' home with the children each time that he obtained the ex parte order and that she had not "abducted" the children. I did not believe the father's evidence on this, which changed repeatedly.

393Regarding the first ex parte order, the father admitted in cross-examination that he permitted the mother to leave the court house with the middle child on that day, after the police became involved. He later attended court and claimed that the mother had kidnapped or abducted the child. He admitted at trial that he knew where the mother and the child were likely staying and after obtaining the custody order, he provided the police with the grandparents' home address to retrieve M. The older child remained with the mother at the grandparents' home.

394While he was at court bringing the second ex parte motion, the father admitted to 'texting' the mother throughout the day while at court before obtaining the emergency custody order for all three children. It was clear that he knew where the mother was located. It is very clear from reviewing the texts that the father was negotiating custody with the mother and wanted to keep M. while she kept K.-L. and/or P. after the parties separated. At one point the father texts to the mother while at court, "Don't say I didn't warn you, all I wanted was M."

395During the second ex parte motion he failed to disclose that the mother had final custody of K.-L. from a previous court order.

396I also find that the father greatly exaggerated his concerns about the mother's mental health when he obtained the second ex parte order on February 26, 2013 and in particular when he deposed that the mother had abducted the children.

397After obtaining the second ex parte custody order, the father admitted that he waited for six days before picking up the children from the mother's home with her parents. The father was well aware that the mother, with the approval of the children's aid society, had planned to return with the three children to her parents' home in Scarborough.

398The fact that the father waited for six days after obtaining his emergency ex parte custody order before he contacted the police to have the children removed from the mother's care in her parents' home in Scarborough speaks volumes to the father's apparent concern about the children's welfare.

399The independent evidence of the professional witnesses, including Victoria Barbosa, the housing worker and Ms. Charlebois, demonstrates, that once the father learned that he was going to lose his subsidized unit if the mother retained custody of the children, he brought the ex parte motion for custody based on exaggerated allegations about the mother's mental health.

400The father testified that he waited for six days after obtaining the second emergency custody order because he was busy preparing and cleaning the home after the mother had taken everything with her. However, the father also admitted that prior to picking up the children, he spent one evening with friends relaxing and smoking marijuana after a long day of cleaning. He also testified that the mother had asked to have the children for a day longer. Finally, when he finally was in the position to take all three children, he agreed that the youngest child could remain with the mother, albeit under the supervision of Cathy Bales.

401These are not the actions of a father who believes that his children are being abducted and are in danger of imminent harm. The father did not seem to understand the gravity of obtaining an emergency 'without notice' court order for custody on the basis of misrepresentations and omissions about the safety of the children.

402The father also greatly exaggerated his employment history. All of the evidence overwhelmingly indicates that the father has not been steadily employed for most of his adult life, yet the father repeatedly exaggerated his employment history. In this trial, the father testified that just prior to this trial he was "working for a custom home builder making a major renovation", which was clearly not true, based on his reports to the children's aid society during the same time period, when he was accessing food banks and social assistance.

403The father told the OCL clinical investigator in 2013 that he had completed his high school equivalency (GED) and that he was in the process of obtaining employment. At trial, the father admitted that he did not obtain his GED until November of 2015, more than two years later. He was still in the process of securing employment.

404The father did not take responsibility for his inability to maintain employment or housing and blamed his financial instability on others, such as employers who treated him unfairly, jealous co-workers, the mother, this court process, unfair landlords, among a number of other excuses. As Linda Brooks, the father's child protection worker noted, the father seemed to have many excuses for why he could not maintain employment.

405The father repeatedly and with apparent ease changed his evidence on many issues when presented with documentary evidence, such as emails, texts, or photographs which would contradict his earlier testimony. It was difficult to keep up with the many changes and inconsistencies in his evidence. One small example, he emphatically denied that he was driving with an expired license plate and that he was sure that he had renewed his plates. When presented with incontrovertible evidence that he was driving with an expired license, he then testified that he was under the impression that his plates were up to date. He later testified that someone removed the stickers from this plate.

The Mother's Credibility

406I also had great difficulty with the mother's credibility.

407The mother's testified that she was terrified, intimidated and brainwashed by the father throughout their relationship, and that he was extremely emotionally and physically abusive. Yet the voluminous text and email messages filed as exhibits in these proceedings between the parties (exchanged both before and after their separation) do not reflect that the mother was at all intimidated or brainwashed by the father, in fact quite the opposite.

408Further, despite a close working relationship over a significant period of time with Amanda Charlebois, the mother's child protection worker, the mother never disclosed to her that she was being abused by the father. When directly asked, Ms Charlebois did not describe the relationship as abusive but rather a couple that was "very caught up in the conflict between them".

409Cathy Bales, the mother's witness, described the relationship between the parties as "toxic". She described a very unhealthy dynamic between the parties. She testified that their relationship did not bring out the best in them. As she described it, "they can't stay away from each other and they don't like each other." She did not describe the mother as an abused woman.

410Ms. Bales further described both parties as being engaged in "ugly" conversations through texting and social media, calling each other names and using bad words. She described it as "very unhealthy" and repeatedly advised the mother to "just stop talking to him".

411Although there is evidence that the father was manipulative and controlling of the mother, the mother greatly exaggerated her evidence.

412During her direct examination, the mother often presented as very emotional and would sob uncontrollably. She requested, rather dramatically, that the father be blocked from her line of vision while she was testifying. However, under cross-examination, the mother presented in an entirely different manner than her performance in her examination in chief. She was often quite angry and defensive, aggressive and argumentative with counsel for the father and she frequently interrupted and challenged her.

413The mother further acknowledged sending suggestive photos of herself to the father in November 2013 during the course of the OCL investigation. She said that she sent the photos because she was in an abusive relationship with him, notwithstanding that the parties had now been separated for approximately ten months and the father was in a new relationship with Ms M.

414The mother testified that she was "devastated" when the father obtained the second ex parte order on February 26, 2013. Yet she was clearly aware that the father was in court obtaining an emergency order as the parties were texting throughout the day while the father was in court. The text messages were admitted into evidence. The mother's texts did not present as someone who was devastated. The mother did not attend court. She testified that was aware that the father had obtained the order on that day yet she did not take any steps to go to court herself.

415Further, notwithstanding that the father waited for six days until he attended at her home to retrieve the children, the mother did not attend court during that time or do anything to set aside the ex parte order. At the first return date after the father obtained the order, the mother was represented by counsel and she sign a consent permitting the father to have custody of the two older children.

416The mother's testimony that after the final separation, K.-L. had somehow figured this out at the age of five that the father was not her biological father was unbelievable. The court had great difficulty believing that five year old K.-L. asked the mother why she looked "different" from her brothers and then "guessed" that she was not biologically related to the father.

417Even if this were true, which the court does not accept, the mother's complete lack of insight into the emotional harm that she caused to K.-L. by telling her at a young and vulnerably age shortly after the parties' separation that the only father she has ever known was not her 'real' father is deeply concerning.

418Further, the mother's evidence that after the separation, 5 year old K.-L. now "chose" to call the father by his first name rather than "Daddy" in the mother's home was not believable. When asked to when it became a problem for the doctor to call the father daddy, the mother testified that it became a problem after the parties broke up because she assumed her daughter would have been with her. She testified that she wouldn't have seen the father in the picture after their separation. Again, the mother's refusal to acknowledge how difficult this would be for K.-L. is very concerning.

419The mother testified at length that K.-L.'s biological father was extremely violent and that he had sexually and physically assaulted her throughout their relationship. She further testified that he had a criminal record involving sexual offences against minors, and that there was an order prohibiting any access to K.-L. Her testimony that she was now arranging for K.-L. to meet her biological father after having no contact with him since birth, was frankly alarming to the court, unless her evidence about the biological father was false.

420The mother acknowledged that the middle child had been called "M." until he was approximately four years old when she and her family members unilaterally started calling him a completely different name, more than one year after the parties' separation. The mother's inability to see how confusing this would be for M., to be called different names in different households, greatly concerned the court.

421She testified that she and her family members only refer to him by this different name which she states is his correct legal name. She did not understand at all how this could be confusing to M., given that his father and everyone else, including his school teachers and friends, call him M.

422The mother further acknowledged crossing out the M.'s name on his school knapsack, school jacket and all articles of clothing that he wears to school, and writing the name Mason over the name M. When put to her in cross-examination, the mother acknowledged that she had done this and responded by saying, "I am not going to deny that… the child should be registered as Mason" at school. Again, the mother failed to see how that would be stressful and confusing for the child.

423The mother testified that she became very close with her parents once she became a mother, after having a very difficult and trouble relationship with them as an adolescent, leading to foster care. However, the mother admitted that she did not speak to or have any contact with her parents for several months in 2012 when she was living with the father and the two older children. The mother's testimony that the father forced her to do this and made her believe that her parents were the "enemy" was not credible

424When the maternal grandmother brought a motion to be added as a party to the custody proceedings in May of 2012, the mother admitted to helping the father draft an affidavit opposing this motion and described very serious concerns about her parents. The mother's own handwritten notes at the time, entered as an exhibit at trial, are very critical of her parents and strongly opposed her mother being involved in the custody and care of her children.

425The mother testified that the father forced her to recount her allegations of assault in her lengthy letter to the Crown. This was not credible. This letter, which is handwritten by the mother and four single-spaced pages long was entered as an exhibit in this trial.

426The mother repeatedly changed her evidence on this issue and several others when presented with documentary evidence, such as emails, handwritten notes or texts which would contradict her earlier testimony.

427The mother denied being hostile to the father's new partner. She testified that she sent her a note to Ms M. in K.-L.'s school log because she was trying "to reach out to her as a woman" and to "make friends" with her as she was caring for her children. The handwritten note, entered as an exhibit at trial, clearly contradicts this testimony. In the note, the mother tells Ms M. to "BACK OFF" and to " Stop " signing the oldest child's school log because she has no relationship with the children. She writes: "Stop trying to be there Mom…I know you are doing it out of spite. I'm a girl I know how other girls think."

428When presented with the note at trial, the mother still attempted to describe the note as "friendly". The court prefers the evidence of Ms M. on this issue, as well as the handwritten note itself.

429The mother denied that she was talking in a negative way about the father in front of the children to Ms. Dorion. She testified that she was just "addressing her concerns". Further, she blames Ms. Dorion for this because as she put it, Ms. Dorion never once asked the children to leave or have somebody escort the children out of the room.

Credibility and Reliability of Other Relevant Witnesses

430The professional witnesses in this trial were consistent and straightforward in their testimony and generally very reliable witnesses.

431Notwithstanding a very vigorous cross examination, Linda Brooks, the father's child protection worker, testified in a clear, straightforward, and generally objective manner. It was clear that she was not aware of some very relevant information regarding the father, and that the father had not been entirely truthful with her. She candidly conceded this. More significantly, her direct observations of the children's relationship with the father were consistent, credible, and reliable. Ms. Brooks has seen the children and the father on numerous occasions over a period of one year. She has also met the children individually and separately at their school, their daycare, before and after school, at the father's home.

432The clinical investigator, Ms. Dorion was a good witness. She testified in a careful, consistent and straightforward manner. She readily conceded that the father had not been entirely truthful with her during the course of the investigation and that there was information that had not been disclosed to her which could have impacted her recommendations. She also found that the father had significant parenting deficits.

433However, her evidence of her interviews with the parents and her direct observations of the children in the mother's care and the father's care was very consistent, compelling and credible. She was not shaken in cross examination when she described how the children reacted in the mother's home and the father's home and how the children, particularly K.-L., as being like different children in the mother's care and in the father's care. Her evidence is supported by the evidence at trial, including the mother's own evidence, that she is actively undermining the children's relationship with their father.

434The mother sister-in-law, Ms. A. H.'s testimony was unreliable. She was very aligned with the mother and actively involved in undermining the children's relationship with their father. Her understanding of the relationship between the father and the mother was almost entirely based on what the mother has told her. Her failure to see how damaging it would be for the children to be persistently photographed during access exchanges between their parents in an extremely conflictual and toxic environment is very concerning.

435The father's former partner, Ms M. M., was a careful and balanced witness who did not overstate her evidence. The father's relative, Mr. M. J., was a good and credible witness, however, it was clear from his testimony that his knowledge of the current custody and access situation, the father's housing history and his circumstances, was very limited.

Factual Findings

436I make the following factual material findings of fact:

1. Both parents love their all of their children very much. The children appear to have a close and loving relationship with both parents.

2. Both parents have significant parenting deficits. Both parents require support in their care of the children.

3. This was and continues to be a toxic relationship in which both parties display immature and unhealthy behavior. A number of witnesses confirmed this (Cathy Bales, Amanda Charlebois, Krystal Dorion).

4. Both parties are responsible for the conflict in their relationship and greatly minimized their role in the conflict during their relationship and post-separation. Both parties repeatedly blamed the other for all of the conflict.

5. The children have been emotionally harmed by the parents' conflict.

6. Both parties appear to have mental health issues and lack insight into how their behaviour and conduct harms the children. The mother, in particular, has minimized her mental health problems.

7. There is evidence that the father is manipulative and controlling. His decision to bring the emergency ex parte order for custody of all three children appeared to be motivated by a desire to punish the mother for taking all three children and not leaving M. with him so that the father could remain in the subsidized family unit.

8. The father has a very lengthy history of unstable housing and finances. He does not have the ability to provide the children with financial stability and a stable home environment over a lengthy period of time. He has been forced to relocate with the children as a result of eviction and imminent eviction on two occasions in the past two years. He is once again seeking permanent housing for the children.

9. The father has a history of relying upon different partners to provide the financial assistance and support to maintain his households.

10. The mother currently does not have the ability to foster a relationship between the children and their father. She is actively and intentionally undermining the children's relationship with their father in a way that is emotionally harmful to them. The children have been traumatized by the mother's conduct.

11. The mother's repeated allegations that the father is physically abusing the children and leaving bruises on them is not substantiated by any of the evidence of independent witnesses, including the children's aid society. There is no basis in these allegations, as demonstrated by repeated child protection investigations.

12. The father is much more capable than the mother in fostering a relationship between the children and both of their parents and in providing the children an environment in which they can feel secure and happy in loving both of their parents.

13. The father has not consistently and regularly exercised the access to the youngest child living with the mother. However, the mother has also restricted his access to this child on the weekends. Notwithstanding this, the evidence of both parties and the father's former partner confirm that the father has a loving relationship with the youngest child and has recently exercised extended overnight periods of time with him.

The Law and Analysis

437In 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 each individual child.

438In 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. I must consider the best interest factors set out in section 24(2), (3) and (4) of the Act. Section 24 provides as follows:

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,

(ii) 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.

439I have carefully considered all of these factors in reaching my decision.

440I 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. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C).

441The best interests of the child have been held to be met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical, emotional or mental well-being. See Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).

442I have also considered the well-established principle that if one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent (a listed best interests factor under s. 24 (2) of the Act). See: Leggatt v Leggatt, 2015 ONSC 4502.

443I have also considered the fact that frequent moves and a lack of a permanent plan by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of children, also a relevant factor under s. 24(2) of the Act. See: Madill v. Madill, 2014 ONSC 7227 (CanLII); Lambert v Limoges, 2015 ONSC 6487.

444I have also considered that there are three siblings who live in separate households. It is generally in the best interests of children that siblings are raised together in their formative years, in the absence of compelling evidence to separate them. See: Hurdle v. Hurdle, 1991 CanLII 12850 (ON SC), [1991] O.J. No. 657; (1991) 31 RFL (3d) 349.

445In considering the issue of custody, I am mindful that at the beginning of trial, both parties sought sole custody. However, in the mother's pleadings, she also sought in the alternative, joint custody in accordance with a parallel parenting arrangement, or joint shared custody.

446The case law is clear that joint custody should only be considered where both parents are fit custodial parents and have strong claims to custody, having regard to the factors set out under the Children's Law Reform Act in custody disputes. This is a threshold issue that must be determined before considering whether or not the parents are capable of effective communication and cooperation or that joint custody is appropriate. The leading case is the Ontario Court of Appeal's decision in Kaplanis v. Kaplanis [2005] O.J. No. 275, 249 D.L.R. (4 TH) 620, 10 R.F.L. (6 th) 373, 2005 CanLII 1625, 2005 CarswellOnt 266 (C.A.). In that case, the Court set out the following factors:

1. "There must be evidence of historical communication between the parents and appropriate communication between them;

2. Joint custody cannot be ordered in the hope that it will improve the communication between the parents;

3. Even if both parents are fit custodial parents, this does not necessarily mean that joint custody should be ordered;

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody;

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis;

6. The younger the child, the more important communication between the parents."

447However, the Court of Appeal has upheld joint custody or parallel parenting in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. So, for example, such an order was upheld where a mother had engaged in a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the relationship with their children. See Andrade v. Kennelly, 2007 ONCA 898, 46 R.F.L. (6th) 235, [2007] O.J. No. 5004, 2007 CarswellOnt 8271 (Ont. C.A.).

448In V.K. v. T.S., ONSC 4305 (CanLII), Justice Deborah Chappel conducted a thorough review of the case law and set out the following factors to consider when determining whether to make a joint custody/parallel-parenting order:

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.

Application of the Law and Governing Principles to the Facts of this Case

449In determining what custody and access order is in the children's best interests, I consider the following relevant factors, having regard to the statutory framework and the applicable legal principles set out above.

1. The love and affection and emotional ties between the children and the person claiming access and other members of the child's family or persons involved in the care and upbringing of the child

450The evidence demonstrates that the children have a close and loving relationship with both parents. Contrary to the mother's evidence, the direct evidence of the OCL clinical investigator, the child protection workers and the father's former partner, corroborate that the children are loving, playful and engaged with their father. They are not fearful of him. The children are also safe and happy in their mother's care, however, Ms Dorion did observe that the older children and K.-L. in particular appeared quiet and withdrawn and very uncomfortable when the mother spoke very negatively about their father in front of them.

2. The views and preferences of the children where such views and preferences can reasonably be ascertained

451Although there was no evidence of two younger children's views and preferences, there was evidence that the oldest child, when asked by the clinical investigator to name three wishes, K.-L. wished "to live with Mummy and Daddy." The court permitted this evidence under the state of mind exception to the hearsay rule. However, the court does not place a lot of weight on this statement, give the age of K.-L. at the time (six years old) and for cross-examination in this trial.

3. The length of time the children have lived in a stable home environment

452The father's inability to maintain stable housing and to maintain employment causes the court great concern. Since 2013, the father will have moved three times with the children because he has been unable to maintain their housing due to non-payment of rent. The father and the children were evicted from their home in March of 2014. They also faced eviction again in December of 2015.

453Ms. Brooks, the father's child protection worker testified that the father's inability to sustain stable housing and employment are the main reasons that the society remains involved with the father and the children.

454The father and the children are currently in temporarily housing. The father plans to move again into temporary housing offered by a family relative until he finds permanent housing. The father will therefore have to move twice with the children over the next several months.

455The father was very fortunate to have such a stable partner in Ms. M., who not only financially supported the family but also provided a great deal of the primary care and emotional support for the children. The court is very concerned about the stability of the father's and children's household now that relationship has broken down.

456The mother has remained in stable housing with her parents since 2013, but for a very brief period when she rented her own apartment near the parents' home. The mother and the children can remain with her parents indefinitely and it is not disputed that the mother's parents, the children's grandparents, provide a great deal of stability for the mother, both financially and in terms of housing.

4. The ability and willingness of each person applying for custody of the children to provide the children with guidance and education, the necessaries of life and any special needs of the children

457I find that both parents have been able to meet the children's physical, educational and medical needs with the support of others. However, I find that they both parents require significant support in their care of the children. The father relied heavily on the support of his former partner when caring for the children and now that she has left, he relies on the support of his mother and younger brother. The mother relies on the support of the maternal grandmother and her sister-in-law in caring for the children. Ms. Dorion observed that the maternal grandmother was actively involved in the children's primary care.

458The mother's evidence regarding the father's neglect of the children's medical needs and their hygiene was exaggerated and was not supported by the independent evidence of the children's daycare supervisor and school teachers.

459Notwithstanding this, I find that the mother is more proactive in addressing the children's medical needs when they arise, for example, the mother took steps to address the children's ear infections, M.'s balinitis, and K.-L.'s lice and vaginal infection more quickly than the father.

460Both parents are able to meet the children's educational needs. Contrary to the mother's evidence, the father was proactive in arranging Montessori daycare for the children which has proven to be very beneficial to them. The father and the mother are both engaged in assisting the children with their homework. They also both involved with the school in addressing M.'s speech impediment and K.-L.'s recent emotional outbursts and hyperventilation.

5. Any plans proposed for the care and upbringing of the children and the permanence and stability of the family unit

461The father does not have a permanent plan for the children. He is currently living in temporary housing. He will be moving into further temporary housing while he looks for permanent housing for the children.

462Given the father's history of repeated evictions and loss of housing over the years, the court is very concerned about the permanence of any plan that the father may have for the children. The court is very concerned that the children will once again lose their housing if they remain in the father's care.

463Although the father testified that his mother will now be living with him and providing support, the father acknowledged that his mother has struggled with mental health issues throughout her life and that she also has significant physical limitations. At times their relationship has been strained and difficult. The court was concerned that the father did not call the paternal grandmother to give evidence in support of his plan of care.

464The mother has a far more permanent and solid plan for the children. She has permanent housing for the children and she has a built-in support network involving her mother, her father, her sister-in-law and other extended family members. Her support network is stronger.

465Further, the mother's plan will permit all three children to live together in the same home. The youngest child has lived with the mother since he was eight weeks old. He is now three years old. Although the evidence establishes that the father has a positive relationship with the youngest child, it is not disputed that he has had limited overnight access with him although that has increased recently.

466However, the court was concerned that the mother did not call the maternal grandmother as a witness in this trial, given that she is an integral part of the mother's plan of care. There was evidence that the maternal grandmother will not support a relationship between the children and their father, nor does she actively intervene when the mother speaks about the father in negative and disparaging ways in front of the children. The evidence of Ms. Dorion, who directly observed this, greatly concerned the court.

467There was also evidence of a difficult and strained relationship between the mother and the maternal grandmother in the past. The court would have liked to have heard directly from the maternal grandmother on this issue and the willingness of the grandparents to offer housing to the mother and the children on a permanent basis if necessary.

6. The ability of each person applying for custody of or access to the children to act as a parent

468The mother has little or no ability to foster a relationship between the children and their father. She is actively and intentionally undermining the children's relationship with their father in a way that is emotionally harmful to them. The children have been emotionally harmed by the mother's conduct.

469Since the separation, the mother has actively sought to damage the father's relationship with K.-L. by telling her that he is not her biological father and by influencing her to only refer to him by his first name rather than "Daddy", which is what she calls him in the father's home and what she has called him throughout the parties' relationship.

470The mother's decision to tell K.-L. after the separation that the father was not her 'real' father and to actively discourage her from calling her the father Daddy demonstrates very poor judgment and very harmful conduct.

471The mother has also sought to actively change the middle child's name since the separation. She and other family members only refer to him by a different name in their household, despite the fact that he is referred to as "M." by everyone else, including his school teachers, daycare workers, school friends, and the father's family since he was born. This causes him great confusion and distress.

472The mother's repeated allegations that the father is physically abusing the children and leaving bruises on them is not substantiated by any of the evidence of independent witnesses, including the children's aid society. There is no basis in these allegations, as demonstrated by repeated child protection investigations.

473The repeated photographing and interrogation of the children by the mother and her family is placing the children at risk of emotional harm. It must stop.

474The court wishes to point out that it did not admit the photographs of the children's bruises as evidence that the children were being physically abused by the father. The court reviewed the photographs very carefully. They are inconclusive and did not prove the mother's allegations, nor did they meet the criteria for admissibility of photographic evidence. However, the photographs are relevant with respect to the mother's intention to diminish and interfere with the father's relationship with the child. The mother's persistence in taking such photographs is very damaging to the children.

475The mother's behavior and judgment with respect to the children, including her complete lack of insight regarding the emotional harm that she was causing the children caused the court significant concern.

476The evidence of the OCL clinical investigator supports the court's concerns. The court gave the OCL report and the evidence of Ms. Dorion considerable weight. The mother admitted to Ms. Dorion that she would not support a relationship between KL and her father.

477Ms. Dorion testified that she "could not put into words how concerning the observation visits of the children in the mother's home". The mother had no insight into how uncomfortable the children were in hearing the mother speak so negatively about the father. Ms. Dorion's evidence is supported by the evidence at trial, including the mother's own evidence, that she is actively undermining the children's relationship with their father.

7. The relationship by blood or through an adoption order between the children and each person who is a party to the application

478The mother is a biological parent for all three children. The father is the biological parent of the two younger children only. However, the evidence is undisputed that he has acted as a father towards K.-L. since she was an infant. Although he is not K.-L's biological father he is most definitely her psychological father and the only father that she has ever known.

CONCLUSION

479Regrettably, although the court is tasked with determining what custody and access order is in the children's best interests, the determination of best interests in the circumstances of this case involved a determination of the least detrimental alternative for these children.

480In order to ensure that the older children live in a stable home environment where they are not at risk of repeated evictions, the older children should reside with the mother and youngest child in the mother's home in Scarborough during the school week. The mother also has the support and assistance of the children's grandparents and extended family.

481In order to ensure that the children continue to maintain a close and loving relationship with their father, there will be an order for joint custody and a shared parenting arrangement for all three children. Following the principles established in the case law, a joint and shared custody order will hopefully safeguard the children's relationship with the father in the face of the mother's alienating behaviour.

482Sadly, many of the OCL clinical investigator's observations and concerns in 2014 about both parents and the impact of their parenting on the children have been borne out by the evidence in this trial, almost two years later.

483Although I attach great weight to the findings of Ms. Dorion, her recommendations are no longer viable, given the significant changes in circumstances since 2014, including the loss of the father's permanent housing for the children once again.

484The father's housing and finances continue to remain unstable and in fact, are more unstable at this time. The father's former partner, Ms. M., an integral part of the father's plan, is now no longer involved. The continued disruption of the older children's housing and stability in the father's care is detrimental to them.

485The mother's plan of care offers more stability to the children in the long run. The mother has a stronger support network than the father. The mother's plan will also permit all three children to live together.

486However, the mother's campaign to undermine the father's relationship with the children causes the court grave concern. In my view, the children, particularly K.-L., are now demonstrating the effects of this conduct. The teacher's reports of K.-L.'s hyperventilating, increased anxiety and emotional outbursts in class are very concerning to this court. Furthermore, M.'s need for speech therapy and is difficulties in speech are, as Ms. Krystal Dorion indicated in her testimony, often indicators of children who are exposed to high conflict families.

487The mother needs to understand that if she or by extension, her family members continues to engage in this conduct, then the mother is at risk of losing custody of the children and having her contact with the children restricted to supervised access.

488Ms. Dorion testified that she was concerned that these children may end up in foster care in light of both parents' significant parenting deficits. The court is also very concerned about this.

489In light of the court's concern, the court is directing that both the Halton children's aid society and the Toronto children's aid society continue to be involved with this family. The court directs counsel to provide a copy of these reasons for judgment to be delivered to Ms. Linda Brooks of the Halton children's aid society, Ms. Andrea Hayes of the Toronto children's aid society, and Ms. Krystal Dorion, the OCL clinical investigator.

490At the resumption of this trial in February of this year, I saw some evidence of hope. Both parties testified that they agreed together to take the children on an outing for the day. The father described the children as being happy and excited about the outing. However the children were also confused as they did not know whether this meant that their parents were reconciling.

491The mother described the outing as somewhat positive however she still took the opportunity to be very critical of the father during the course of the day they spent together, including accusing him of almost losing the youngest child in the crowd. Nevertheless, the parents were at least capable on that day to focus on the children's interests instead of their own.

492The court will also include in the final court order a provision that the mother and by extension her family members shall immediately cease and desist in referring to the middle child as Mason in public and on school or official documents as an incident of custody under section 28 of the Children's Law Reform Act. The parents will also cooperate in applying under the Change of Name Act to change all three children surnames to reflect the surnames of both parents in a hyphenated last name and that the middle child's forename shall be changed back to "Maxwell". "Mason" can be the child's middle name

493The new shared custody arrangements that I am ordering will not take effect until the end of the children's school year, so as not to cause the children further immediate disruption. They will start the September 2016-2017 school year at a school in the mother's neighbourhood in Scarborough. The father has temporary housing for the next approximately four months, according to the evidence of his relative, so the children can remain with him to complete their schooling in Oakville.

494Given the father's temporary housing situation and the fact that he is now looking for permanent housing, the court encourages the father to look for housing in the Scarborough area in the same school catchment area as the mother's home.

FINAL ORDER

495For the reasons above, I make the following final order:

1. The parties shall have joint custody of three children.

2. Commencing July 1, 2016, the parties shall have the following shared residential schedule:

   a) In Week 1, the children shall reside with their mother from Monday after school until Thursday morning. They shall reside with their father from Thursday after school until return to school on Friday morning. If Friday is a school holiday, the father shall deliver the children to the mother's home no later than 12 noon;

   b) In Week 2, the children shall reside with their mother from Monday after school until Thursday morning. The children shall reside with their father from Thursday after school until return to school on Monday morning. If Monday is a school holiday or long weekend, then the father shall deliver the children to school on Tuesday morning unless the day is specifically dealt with under the Holiday Schedule below;

   c) At all times, the two older children shall be picked up and dropped off at their school and or day care. The younger child shall be picked up and dropped off at the mother's home until he starts school and or day care.

   d) During the school summer vacation or any other time that the children cannot be dropped off at school, daycare or summer camp, all drop offs and pick-up shall be at the same times at the mother's home.

3. The children shall be registered in a school in the catchment area where the mother resides.

4. If the mother moves from her home in Scarborough with the children, then this shall be a material change in circumstances warranting a review of this order.

5. The following Holiday Schedule shall override the Regular Schedule out above:

   a. The children shall be with the father every Father's Day from 10:00 a.m. until the start of school the following day or 8:00 a.m. whether or not it is his week for access.

   b. The children shall be with the mother every Mother's Day from 10:00 a.m. until the start of school or 8:00 a.m. the following day whether or not it is her week for access.

   c. School Summer Vacation: Each party shall have two non-consecutive one-week vacation periods with Children. In even numbered years the Father shall have first choice and in odd numbered years the Mother will have first choice. Parties to notify each other by April 30th of their choice of weeks in writing. If the party having first pick fails to notify the other party by April 30th, then they shall forgo their opportunity to first pick of summer vacation in that year. The party having second pick of summer vacation shall advise the other party of their choice by May 15th. The regular residential schedule shall resume at the beginning of the first day of school following the summer vacation.

   d. Easter: In even numbered years the children shall reside with the Mother commencing from Thursday after school until return to school Tuesday morning. In odd numbered years, the children shall reside with the Father from Thursday after school until return to school Tuesday morning.

   e. Thanksgiving: In even numbered years the children shall reside with the Father from Friday after school until return to school Tuesday morning. In odd numbered years, the children shall reside with the Mother from Friday after school until return to school Tuesday morning.

   f. Christmas: The parents shall equally share the Christmas vacation with the children. In even numbered years, the Mother shall have the children in her care from the last day of school until Christmas Day at 1:00 p.m. If this time equals less than seven days, then the Mother shall have make-up time after New Year's Day. The Father shall have the children in his care from Christmas Day at 1:00 p.m. to until New Year's Day at 1:00 p.m. In odd numbered years, the Father shall have the children in his care from the last day of school until Christmas Day at 1:00 p.m. If this time equals less than seven days, then the Father shall have make-up time after New Year's Day. The Mother shall have the children in her care from Christmas Day at 1:00 p.m. to until New Year's Day at 1:00 p.m. The regular residential schedule shall resume at the beginning of the first day of school following the Christmas vacation.

   g. March school break: In even years, the children shall reside with the Father from Friday after school for the week and return to school on the following Monday morning; in odd years, the children shall reside with the mother from Friday after school for the week and return to school on the following Monday morning.

   h. Children's birthday: a child's shall spend his or her birthday with the party who has care of him or her in accordance with the regular residency schedule. The other parent's permitted to call in which the child a happy birthday.

   i. All other holidays and special occasions including but not limited to Family Day, Victoria Day, Canada Day, August civic holiday, the parties birthdays and Halloween shall follow the regular residential schedule. The party in whose care the children is for Halloween shall be responsible for purchasing his costume.

6. The residential and holiday schedule shall only be altered on the prior written consent of both parties or by further court order. There shall be no make-up time for missed parenting time, unless the parties mutually agree in writing otherwise.

7. If the children are sick, the transition from one parent's care to the other parent's care is to proceed unless the children is too sick to travel between the parties' homes as per the determination of the children's doctor. A written, signed and dated letter, from the children's doctor listing his/her recommendations must be provided to the parent whose care the children would normally be in, within 24 hours of the doctor's visit.

8. There shall be no restrictions placed on the children with respect to personal items, toys and gifts they wish to take between the residences of the parents. Should the children wish to take a gift, toy or article of clothing, they shall be permitted to do so, without the intervention of the other parent. Any belongings travelling between homes shall be treated with care and respect.

9. Neither party will arrange activities for the children when the children is scheduled to be with the other parent without the other's parent's prior written consent. This includes suggesting or discussing the possibilities of activities with the children when the children are scheduled to be with the other parent, without that parent's prior written consent.

10. The Mother and the Father may enrol the children in additional activities at their own expense and on their own time.

11. Each party is responsible for ensuring the children's attendance at their extracurricular activities during his or her scheduled time. The party responsible for the children may use third party assistance where he or she deems it to be appropriate. The other party may attend the children's activities to support the children but shall not in any way interfere with the other party. The party shall attend only to observe the event and shall refrain from making any derogatory comments or gestures towards the other party or any third party in attendance such as a new partner or family member.

12. Each party shall be entitled to attend the children's school events and parent-children meetings regardless of the residential schedule.

13. Each party shall ensure that any homework or class projects assigned to the children are completed while the children are in their care.

14. Neither party shall remove the children from school for the purpose of personal vacations during the school unless with the prior written consent of the other party. Neither parent is to discuss with the children any vacation plans that would involve the children missing school prior to receiving written consent from the other party.

15. The children shall be allowed to travel abroad for the purposes of a vacation with either party during their scheduled time with the travelling party. The travelling party shall obtain the written consent of the other party; such consent shall not be unreasonably withheld. The vacationing party is to provide the non-travelling party with an itinerary which shall include the flight numbers and departure/arrival times, as well as address(es) and telephone number(s) where the children can reached, three weeks prior to the trip.

16. The Mother shall keep the children's health card in her possession, and she shall provide the Father with a copy of the same with the version code and provide it to him if it is required. After use, the Father shall return the card promptly.

17. Once the children moved to the Scarborough area during the school week, the children's family doctor and dentist shall be chosen by the mother. The mother shall be responsible for making all medical appointments for the children however she shall provide the doctors' names and contact information to the father forth with. She shall also inform the father of all medical and dental appointments in advance.

18. Neither party shall make any derogatory comment about the other or their partners in the presence of the child. They should ensure that their friends, partners or family members follow this requirement. The party shall not engage in any verbal or physical aggression in the presence of the child anytime.

19. Both parents and family members shall actively encourage a relationship between the children and the other parent.

20. The parties shall facilitate regular phone and email access with the children when they are with the other parent. The parties shall utilize an email system for communication about issues relating to the children. Emails shall be used strictly for the sharing of information pertaining to the children. If the parties agree they may use the Our Family Wizard where extracurricular activity schedules can to be posted and so that the child may have access to email each parent when it is not their access time. The cost shall be equally divided.

21. Although neither party should rely on the other parent to provide information about the children's school and sporting events, they should use their best efforts to keep the other party informed of all matters relating to the well-being of the children and they should not deliberately withhold information.

22. The mother shall directly and indirectly immediately cease and desist in referring to the middle child as "Mason" in public and on school or official documents, pursuant to section 28 of the Children's Law Reform Act. The parents shall also cooperate in applying under the Change of Name Act to change all three children surnames to reflect the surnames of both parents in a hyphenated last name and that the middle child's forename shall be changed back to "Maxwell". "Mason" can be the child's middle name.

23. Neither parent may bring any motions, emergency or otherwise, regarding this Order without prior leave of this Court. Any motion for leave is to be brought by Form 14B, with notice to the other party in accordance with the Family Law Rules.

24. Given the shared residential schedule that I have ordered, the lack of updated financial disclosure regarding the parties' current incomes, and the fact that both parties appear to be currently in minimum wage positions, (the father part-time), there shall be no order for child support, subject to review upon receiving full financial disclosure from both parties.

25. A copy of these Reasons for Judgment shall be delivered to the Halton and the Toronto children's aid societies. The court requests that the appropriate children's aid society depending on the jurisdiction where both parents are residing, remain involved with this family.

496If the parties are unable to resolve the issue of costs, they may make written submissions to the court. The mother's submissions, including any offers to settle and bill of costs are to be served and filed no later than 30 days from the date of this order and father's submissions are to be served no later than 30 days after receiving the mother's submissions.

497Finally, I wish to thank counsel for their very thorough and professional representation in this difficult case.