Court File and Parties

Court File No.: D57349/12

Date: November 17, 2016

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: P.F., Applicant (father)

And: A.W., Respondent (mother)

Before: Justice Robert J. Spence

Trial Heard: November 7, 8, and 9, 2016

Reasons for Judgment Released: November 17, 2016

Counsel:

• Ms. Marlo K. Shaw for the applicant, father
• Ms. Pamila Bhardwaj for the respondent, mother

Introduction

1The mother and the father are the natural parents of D., a nine year old boy. Unfortunately, this child has been caught in the middle of litigation which has been ongoing for 4 years.

2Both parents acknowledge that the conflict between them has been persistent. As a result, the mother seeks sole custody. While the father initially sought joint custody he, like the mother, has come to recognize that joint custody is not workable and, accordingly, he also seeks sole custody.

3Each parent seeks quite different parenting schedules. The father seeks week-on, week-off, 50-50 parenting, with specified holiday parenting time. The mother seeks primary residence with herself, as well as specified holiday parenting time.

Background

4The parties met in or about 2002. They began a romantic relationship in 2006, and their son, D. was born in 2007. It appears from the evidence that the relationship was turbulent from the outset.

5The parties' conflicts led to police calls and contacts on a number of occasions.

The Catholic Children's Aid Society ("society") became involved for the first time in 2008. There were at least 4 referrals to the society.

6The first referral to the society occurred on February 21, 2008 which reported domestic violence between the parties. The society investigated and discussed a safety plan with the mother. The society concluded that there was no need to commence a child protection proceeding at that time.

7The second referral came on March 31, 2008, initiated by the mother. Mother complained to the society that the parties had become embroiled in a verbal dispute because she would not agree with the father that having arguments and sex in front of the child was acceptable. The society advised the parents not to argue in front of the child.

8The third referral occurred when the mother contacted the society to express her concern about the child's safety. It appeared that she had arrived home to find the father asleep with the child wandering around the house.

9The fourth referral came on December 18, 2008. Catholic Family Services reported to the society that the mother had reported that the father had pushed her and twisted her arm while she was holding the child, who was then one year old.

10The society investigated this incident and concluded that the child was in need of protection as he had witnessed verbal and physical abuse. The father told the society that he had grabbed mother's arm because he was angry with her.

11In his examination in chief, in reference to this incident, the father said he "accidentally bumped into her in the kitchen".

12In cross-examination the father said he did not twist her arm but, rather, "I held her wrist".

13From early in his childhood, the child displayed symptoms of delay, particularly in his speech. There were referrals from the pediatrician to a number of specialists, including Dr. Goldfarb at the Branson Hospital Child Development clinic.

14There were other referrals and medical/professional contacts with the child, as the parties disagreed about the existence or extent of any speech delays or other possible diagnoses.

15These various professional involvements, which continue up to the present day, led to a number of assessments, and opinions about how to address the child's needs. I will have more to say about these professional contacts and assessments later in these reasons.

16By 2010 the parties had reached the point where they could no longer live in a conjugal relationship. For the sake of expediency, however, they remained under the same roof until October 23, 2012.

17On October 23, 2012, the mother left the home in which the parties had been residing, and she went to a women's shelter, taking the child with her. She and the child remained at the shelter for the next 4 months.

18The father issued the within court application in August 2012, claiming joint custody. At the time of that application, the parties were still living together under the same roof. However, they were sharing the main floor of a house in a non-sexual relationship, together with two other roommates.

19On November 20, 2012, the father amended his application seeking various forms of relief, including a specified shared parenting arrangement and, again, joint custody.

20The mother's Answer/Claim sought, inter alia, sole custody and child support.

21On January 3, 2013, Justice Carole Curtis made an order granting the father alternate weekend access. She also made an order for temporary child support payable by the father to the mother.

22Justice Curtis' order was made on the consent of the parties.

23On April 5, 2013, the parties consented to a variation of the father's access. The father's additional access was to include Wednesday evenings, as well as a periodic extension of the alternate weekend access to Monday mornings, drop-off at the child's school or daycare.

24On June 12, 2013, the parties once again agreed to a variation of father's access. The father's alternate weekend access was extended to drop-offs each Monday at school, as well as Tuesdays from after school until 8:00 p.m. The parties also agreed that father would have two non-consecutive weeks of uninterrupted access during the summer months.

25The matter continued along in court for case conferences and financial disclosure by the father until, on January 31, 2014, they consented to a final child support order. The father agreed to pay $661 per month to the mother for child support, based on his annual income of $72,500. He also consented to fixing arrears of support in the amount of $7,837 as at April 1, 2014, with payment of the arrears to be made in the amount of $100 per month, until fully paid.

26The OCL concluded its investigation and held a disclosure meeting with the parties on March 17, 2014. On March 19, 2014, the OCL issued its written report.

27In that report, the OCL recommended, inter alia, sole custody to mother and a week-on, week-off shared parenting arrangement between the parties.

28The mother agrees with the recommendation for sole custody; she disagrees with the recommendation for week-on, week-off shared parenting.

29The father agrees with the recommendation for the week-on, week-off shared parenting; he disagrees with the recommendation for sole custody to the mother.

30In subsequent case conferences, Justice Curtis noted that the parties were still awaiting further doctors' reports. The parties continued to adjourn the matter on a number of occasions. Finally, on June 27, 2016, Justice Curtis, ordered the parties to proceed, as the case had been ongoing for almost 4 years.

31Subsequently, at a court attendance on August 29, 2016, Justice Curtis endorsed that the father was no longer seeking joint custody. She orally amended his application to reflect father's request for sole custody.

32On September 6, 2016, Justice Sherr assigned this matter to me for a three-day trial, to commence November 7, 2016.

The Position of the Parties

33The father's position, can be summarized as follows:

• He was the primary caregiver from the time of the child's birth until the parties separated in 2012;
• During their cohabitation, the mother was both verbally and physically abusive toward him;
• The mother was drinking to excess during their relationship;
• The mother's claims that he was drinking to excess and that he was the one who was abusive to her are false;
• The mother was unable to control her temper toward the child;
• The father attempted to co-parent and cooperate with the mother, but she refused to cooperate with him;
• The mother interfered with his attempts to secure appropriate medical/professional advice for the child, and she proceeded to make appointments unilaterally without advising him;
• She interfered with his attempts to arrange extra-curricular activities for the child;
• She embarked on a campaign of alienating the child from him;
• She does not do homework with him and she makes it difficult for the child to have a meaningful relationship with him; and
• He should have sole custody because he is the parent who is better suited to meet the child's needs and he is the parent who will ensure that the child has maximum contact with the mother.

34The mother's position can be summarized as follows:

• During the course of the relationship, the father was both verbally and physically abusive toward her;
• There was a power imbalance in the relationship, in favour of the father;
• The repeated incidents of abuse by the father led to police involvement, as well as involvement from the society and, eventually, the mother's decision to leave the home and move into a shelter;
• The father chose to make professional appointments for the child without involving the mother;
• The father made unilateral decisions about the child's schooling, including enrolling him in Kumon for extra tutoring, without properly considering the mother's input;
• The father has obtained documents from the child's school and he has refused to provide copies to the mother;
• The father has made attempts to undermine assessments and counselling which were necessary in the child's best interests;
• The father has involved the child's school in the conflicts between the parents;
• The father has exposed the child to the parents' conflicts;
• The father remarried in August 2015 and failed to inform the child until just before the marriage occurred;
• The child is unhappy with both the father as well as the child's new stepmother;
• The mother is best positioned to meet the child's needs and to make important decisions for him; and
• The mother has demonstrated that she wishes the child to have a meaningful relationship with the father and she will ensure this happens, in accordance with the child's needs and best interests.

Statutory Provisions Pertaining to Custody and Access

35The Children's Law Reform Act ("Act"), sets out the statutory provisions to be considered by a court in making decisions pertaining to custody and access. The relevant provisions follow:

Merits of Application for Custody or Access

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

Best Interests of Child

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

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

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the child's care and upbringing;

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

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

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

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

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

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

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

Past Conduct

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

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

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

Violence and Abuse

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

(a) his or her spouse;

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

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

(d) any child.

Credibility

a. Introduction

36It would be difficult to discuss the statutory considerations in the context of this case without first examining the parties' credibility. For example, on the issue of "violence and abuse", the parties' positions are at the opposite ends of the spectrum. Each accuses the other of violence and abuse. Each denies the other's accusations.

b. Father's Credibility

37There were numerous problems with the manner in which the father gave his evidence. I turn first to the way in which he responded to questions on cross-examination.

38Many of his answers to questions on cross-examination can be characterized as evasive and lacking in forthrightness.

39For example, he was asked about comments made by the society to the OCL investigator. In particular, he was asked whether he had received the society file well prior to trial. He denied that he had received the file, saying only that he has some "material" from the society.

40He was shown a report dated September 21, 2010 from the Toronto Preschool Speech and Language Services, prepared following an assessment of the child. He was asked: "do you recognize this?" He responded "I know what it is but I don't recognize it".

41At page 3 of that report, father was directed to the following assessor's comment about the child: "D. presented with a severe expressive language delay". Father was then asked whether he remembered that comment by the assessor. The father responded: "I remember . . . what other concerns do you [referring to counsel, Ms. Bhardwaj] want to ask if I remember"?

42Father was shown a Speech and Language Pathologist report, prepared following an assessment of the child when the father alone took him to the appointment, without the mother. He was then asked whether he shared the report with the mother after he received it. He responded: "I can't confirm that I did not share it with her".

43Referring to the child's involvement with Dr. Levichek, pediatrician, father was asked whether he told Dr. Levichek that her report would influence the custody decision in court. He responded: "I may have asked her that but I didn't state it".

44I have cited just a few instances of the father's evasiveness and his combativeness in the manner in which he gave his evidence at trial.

45I turn next to father's sometimes self-contradictory evidence. In his amended application he stated:

[he] was and has always been the primary caregiver of D. [he] worked from home while the [mother] went to her job. [he] was solely responsible for almost all day to day upbringing obligations, including diaper changes, feeding, sleep training, play time and so on.

46In the father's evidence in chief he stated:

Between 2009 and 2012, in order to make co-parenting easier, on the nights I was taking care of D. I generally had him out of the house to some play area such as . . . and I put him to bed and went to sleep at the same time as he did. It was my objective to not be awake when [mother] came home. On the nights when she took care of D. I made it a point to stay out of the house until she had gone to sleep . . . .

47Father denied that he had made certain statements to the OCL investigator. For example, according to the OCL investigator, father stated to the investigator: "they established a one day on/one day off shared parenting schedule". In yet another example of lack of forthrightness/evasiveness, the father said in response to what the investigator reported: "[that statement] may be an incomplete expression of what I said".

48The OCL investigator said the father told her that mother had made all the baby food and that she was a good mother. Father testified that he had no recollection of making that statement.

49The OCL investigator spoke to D.'s grade 1 teacher, Ms. Bockner. Ms. Bockner told the investigator that in her interaction with father, he would consistently blame mother for any issues associated with D. Father denies this, stating that the faults were with the teacher herself, and that there was a "gap" in the evidence.

50The OCL investigator also spoke with the supervisor at D.'s daycare, where D. has been attending since July 2013. I extract the following from the OCL report:

[the supervisor] reported that staff's interaction with [father] has been challenging. She said that there had been numerous times when [father] was demanding and hostile towards staff in his approach.

51Father denied this behavior, as reported by the supervisor to the OCL investigator. However, it is significant that despite this denial by father, when the supervisor gave similar evidence in her own testimony at the trial, father's counsel did not challenge that evidence in cross-examination.

52In her evidence in chief, the mother said that she was very concerned about the state of the house when she was not there to clean it. In particular, she expressed her concern that D. was being exposed to dirty and unhygienic conditions. In support of her position she provided a number of photographs of various locations inside the home. These photographs revealed the home to be very cluttered and messy, with papers and garbage piled up and strewn about the house. Father's own counsel asked him about this in her re-direct examination, asking whether these were indeed photos taken inside his home. He acknowledged this to be true and then stated "I don't know what this is all about".

53He testified that the daycare refused to release information to him because it was the mother who had registered D. in daycare. More significantly, he testified that the mother had told the daycare that she had custody of D. when no such custody order existed.

54In fact, the evidence from the daycare supervisor, who testified on this very point, revealed that mother had never told the daycare that she had a custody order.

55All of the foregoing, taken cumulatively had the effect of greatly diminishing the quality of the father's evidence. He presented overall as someone whose evidence simply could not be trusted by the court.

c. Mother's Credibility

56In contrast to the manner in which the father gave his evidence, the mother testified in a straight-forward manner. She cooperated fully with father's counsel in her attempts to be as direct as possible in her responses, and still provide comprehensive answers to the questions posed. There was nothing about the way in which mother testified which suggested evasiveness or obstructionism on her part.

57For example, on the issue of lateness for pickups and drop-offs, she was asked if she has ever been late. She replied directly, stating, "yes, I have been late". She then went on to explain that when she has been on the subway and could see she would be late, she would call or text the father to let him know. She acknowledged her occasional lateness without hesitation.

58On the subject of D.'s needs, and his various medical/professional appointments, the father spent a lot of time criticizing the mother and downplaying the existence of any real problems for D.

59On the other hand, the mother was asked about what she meant by her reference to D.'s "special needs" in her evidence in chief. She replied, directly and in a straight-forward manner that D.

• Has trouble with loud noise;
• Is unable to manipulate buttons on his shirts;
• He will walk around with his shoe laces undone because he cannot manage laces;
• When he puts his pants on he does so in a "sideways" fashion, without realizing this;
• He had real difficulty learning how do perform bowl movements after he had graduated to wearing underwear.

60Following her direct and succinct description of these problems, she stated, in effect, that these can't be the normal kinds of problems for a 9 year-old child. And, because of that, it is her belief that D. has special needs which ought to be addressed.

61And yet the father did not talk about, or acknowledge, the existence of any of the problems described by mother.

62She was asked whether she had in fact failed to tell the father about certain appointments she had made for D. to see professionals. She was also asked whether she had lied to one of the doctors when she told the doctor that the father was aware of the particular appointment that she had attended with D.

63She acknowledged both the two failures and the one lie to the doctor. She did not attempt to cover this up. However, one of the big issues between the parents has been the father's failure to recognize the possible existence of serious problems with the child, whereas mother believes he has not been fully assessed because of the father's intransigence and his belief that a full assessment would be damaging to him in court.

64And because the mother was, in the view of the court, genuinely concerned about the father's obstructionism, she acted in perhaps an underhanded way, but in the way she felt was necessary in order to ensure that D.'s issues would be addressed. In other words, because she was frustrated by father's lack of insight into D.'s problems, she believed it was necessary to take matters into her own hands, with or without the father's cooperation.

65The important thing for this part of my reasons is that mother never attempted to obfuscate or deny when presented with these questions in the course of her testimony. She readily acknowledged what she had done, but with the explanation that her actions were in furtherance of D.'s best interests – an explanation which the court accepts as sincere.

66The independent evidence, which I will refer to later in these reasons, supports the sincerity of mother's positon.

67The independent evidence also buttresses much of what the mother has said about her relationship with the father, despite the father's assertions to the contrary.

68On the issue of hostility and aggression, whereas the father has not only denied any such behavior, he has blamed the mother for acting in an aggressive and abusive way toward him. The evidence does not support the father's assertions.

69I earlier referred to the involvement of the society and the investigations which it conducted. For example, when the mother left the home and went to a shelter with D. in October 2012, he accused her of doing so for no good purpose. He said that mother had done this, instead, to gain a "litigation advantage".

70However, the independent evidence from the society, as related to the OCL investigator reveals otherwise. In the spring of 2012, prior to the commencement of the litigation, the society worker checked in with the mother to see if she had acted on the society's suggestion that the mother leave the home of the father.

71It is apparent from the evidence the OCL obtained from the society that the society was concerned about the level of aggression in the home and the impact of this on the child. So rather than leaving the home in October 2012 to gain a litigation advantage, the mother ultimately decided to do so because she had reached her breaking point and was following the earlier advice from the society.

72The father portrays himself as a victim of abuse and effectively denies any suggestion that he himself acts aggressively or abusively.

73D.'s grade one teacher, Ms. Bockner testified that she had concerns about the father in her interactions with him. She described him as "aggressive and inappropriate". She said he had "problems with boundaries and seemed disingenuous".

74She gave some examples. Instead of first going to the principal's office when he arrived at the school to speak to the teacher, he failed to follow protocol and would go straight to where the teacher happened to be. This made her "very uncomfortable".

75He invaded the teacher's personal space by coming very close to her, touching her on the shoulder, and calling her by her first name. He would cut her off when she tried to explain something to him, "as though he was the professional" and her opinion wasn't important.

76He would directly criticize the mother to the teacher; and he would do so in D.'s presence.

77He told the teacher that when birthday invitations were being sent out from the school, they should go to him only "because the mother wouldn't take D. to birthday parties".

78She believed he was disingenuous because, for example, he would demonstrate a disinterest in the answers she gave to the questions he would ask of her.

79She said that D. was "acutely aware of the discord between the parents and it stressed him . . . he would talk about it openly . . . that nobody was getting along". She had to tell the father to stop speaking negatively about the mother in front of D.

80Overall, Ms. Bockner perceived father as someone who was trying to make an impression, rather than having a genuine interest in what the school had to say. And, she believes, his involvement with the school parent council and his volunteer work at the school was designed for the same purpose.

81She also testified that his aggressive behavior toward the former daycare provider had resulted in the loss of that daycare for D. In cross-examination, father's counsel asked how it was that she knew this to be so. She replied "I got this from the daycare for sure, and it was discussed by the parents as well".

82The supervisor of the child's current daycare, which is attached to his school, also testified.

83The supervisor has 40 years of experience in daycare work. She has been the director of this daycare for 15 years; and she has a private practice in psychotherapy.

84She testified about her interactions with the parents. The father was "quite aggressive and hostile" at the outset of D.'s attendance at daycare. The daycare staff was so concerned about his behavior that they arranged a "buddy system" so that no daycare person would ever be alone in the father's presence.

85On one occasion father showed up at the daycare and walked straight into the office and started going through a binder which contained confidential information about the children attending the daycare. When the supervisor confronted him about his actions, he insisted he had the right to do this because D. was going to this daycare.

86The supervisor talked about how the father's "body language" was aggressive, that he would show up in the daycare room and get right into the staff's "face".

87There was a lot of conflict with the father at the outset. Although the father has since settled down, the staff is still quite nervous around him.

88She said the mother is often in a hurry when she drops off D. in the morning because she has a taxi waiting for her to take her to work. The supervisor described the mother as "very protective" of D.

89When the mother is about to leave after dropping him off in the morning, the supervisor has noticed that D. has become "very clingy" with her and this clinginess has "accelerated in the past week or two".

90The supervisor expressed concerns about D.'s wellbeing. She said that he has been withdrawing emotionally. In the past year he has been more introverted in his presentation. For example, he may start to "share" something and he then "closes down". He isolates himself from the other children. She said "he's a loner a lot now".

91Whereas D. used to be quite "bubbly and share", he now "seems to be afraid to talk about too much". She is worried about his social skills because the "friendships don't seem to be there".

92She testified that she once asked D. the name of his stepmother. She said "he wouldn't tell me . . . he said I don't like her". The supervisor said that to this day she still does not know the name of the father's spouse who he married in August 2015.

93The court concludes that all of this evidence supports the mother's contentions regarding father's aggressiveness, his hostility and his abusive behavior.

94The court also concludes that there is little or no credible evidence which suggests that mother has acted in either a verbally or physically aggressive manner, as asserted by the father.

95The court is of the view that as between the mother and the father, the parent who is more likely the cause of the conflict to which D. has been exposed, is the father, rather than the mother.

96Overall, on the evidence presented, the court finds that the mother's evidence is far more believable than the father's evidence. And, importantly, where their evidence conflicts on material issues, such as abuse, hostility, and caring for D., the court resolves that conflict by accepting the mother's evidence over the father's evidence.

Medical/Professional Evidence Concerning D.'s Challenges

97The court received documents briefs filed by both parents. The court also heard oral testimony from a number of professionals, apart from those previously mentioned in these reasons.

98Specifically, the following persons testified:

1. Dr. Leigh Solomon, a psychiatrist who saw D. twice, each time for about 45-60 minutes, and each time in the presence of one or both of the parents. Following the second visit in October 2014, Dr. Solomon concluded "I do not feel any further assessments or treatment is required at this time".

2. Dr. Zina Levichek, a pediatrician, who saw D. twice, in August and September 2014. Dr. Levichek was assessing D. for his "general development, focused on why he had school difficulties". She saw "features" of Autism Spectrum Disorder and Attention Deficit Disorder, but she concluded there were insufficient such features to make a diagnosis of either of these disorders. She did say that D. "needs to be monitored over time and reassessed if needed". She stated that D. had a "unique profile of strengths and weaknesses."

3. Dr. Robin Alter, a psychologist at Hincks-Dellcrest Centre, specializing in treating children. She saw D. on July 6 and 26, 2016. The purpose of her involvement was to explore the possibility of learning disabilities that could have been impacting on D.'s functioning at home and at school. Dr. Alter stated that D. has experienced the stress of his father recently getting married", something which "many children experience when the other parent gets married". She noted that D. has "negative affect", that he "worries". D. said to Dr. Alter, "I'm brave . . . dad is sometimes mean to me". Dr. Alter didn't pursue this spontaneous statement as she was concerned it could be used in a custody assessment in a courtroom. Dr. Alter had "some concern" that D. seemed to be struggling with his father, and she "wondered if dad was more of a disciplinarian". D. also said to Dr. Alter that if he had a number of wishes, "he'd like to go to Mexico with mom" and "mom to be safe and never die". This seemed to imply to Dr. Alter that D. has a strong emotional connection to mother. D. also stated that he felt he "excelled in mathematics thanks to mom".

4. Crystal Clarke, who worked as a child and family therapist at Hincks-Dellcrest from September 2009 until February 2016. Her active involvement with the family took place between April 2015 and January 2016. She said mother initiated this Hincks-Dellcrest involvement and, initially, she was the only person to meet with the Hincks intake department. When Hincks subsequently contacted the father he stated that he wanted to be part of the process. Active treatment did not begin until father came on board. She testified that mother had made it clear at the outset that she was there without father because of her belief that father had been blocking mother's prior attempts to get help for D. Ms. Clarke reported the following:

• a. D. was expressing a lot of idealization about his mother;
• b. He compared his parents, favouring his mother over his father;
• c. He often said he didn't want to go to his father's house;
• d. He was unhappy that his father had remarried, perceiving this to be a negative consequence of his own relationship with the father;
• e. He felt the rules in mother's home were better than the rules in father's home.

She testified that because he viewed his mother's home in a more favourable light, any deviation in the father's home would be perceived by D. in a negative way.

In the end, Hincks decided to put any further treatment on hold until the litigation was over because the overhang of the court process would make it difficult to be child-focused.

5. Katherine Maxwell, D.'s current teacher in grade 4. It was obvious to the court that Ms. Maxwell was very careful in how she gave her evidence due to the necessity for her to have an ongoing relationship with both parents. Without pointing fingers at either parent, Ms. Maxwell did note that D. is performing at a "low" grade 4 level. He struggles academically and is "often distracted with his focus".

99In addition to the foregoing witnesses, there were a number of reports filed by the parties. For the purpose of this judgment I do not find it necessary to discuss those various reports, beyond what is in these reasons.

What Does This Evidence Imply for D.'s Needs and Best Interests?

100Without doubt, this young boy has been seen by many professionals over the past several years.

101The various reports and the professionals who testified had different things to say. But there does appear to be a common thread, particularly among those most recently involved with D.

102The Hincks-Dellcrest evidence, when examined together with the evidence of the daycare supervisor presents the picture of a young boy who has some serious challenges.

103While there is no expert evidence directly on this point, it is reasonable to infer that, additionally, the emotional/social difficulties that D. is exhibiting are likely impacting on his lower academic functioning at school, about which Ms. Maxwell testified, and which the report cards themselves revealed.

104His spontaneous expressions of negativity about his father, and his father's wife are concerning to the court. Equally, D.'s seeming inability to adjust to the different routines in his father's home, as compared to his mother's home, appears to be impacting him in a negative way.

105The thrust of mother's evidence is that D. has real challenges. As I noted earlier in these reasons, she was very clear and very specific in her evidence as to some of D.'s challenges and why she believes D. requires help.

106On the other hand, the father does not seem to be nearly as proactive or nearly as concerned as the mother.

107For example, mother tried to get counselling services for D. from Here to Help. But father would not consent. He stated "that's not what was requested of me".

108He was specifically asked in his testimony whether he had made independent arrangements for counselling for D. He responded, "I would say no".

109While I have no reason to doubt father's love for D., he has not demonstrated his ability or willingness to actively seek out help for D.'s challenges, the existence of which are apparent from the evidence.

The Stepmother

110What this court finds difficult to comprehend is how the father has treated the existence of his wife in the context of this litigation. In his 178-paragraph affidavit, which constituted his evidence in chief, he does not even mention the existence of his wife, D.'s stepmother.

111Had this not been raised by the mother, or by the other witnesses, the court would not even know of her existence.

112The father seeks 50-50 parenting time, for D. to live in a home, with a stepparent who, as far as this court is concerned, is somewhat of a phantom. The court knows nothing about this person, other than that D.'s perceptions of her are very negative. I do not state this for the purpose of somehow condemning the stepmother, or casting aspersions on her bona fides.

113Instead, the court is being asked to make parenting decisions where one of the persons who would be acting in a parenting role is unknown to the court, and who is also perceived in a negative light by the child.

114In my examination of the trial record, I note the inclusion of first Form 35.1 affidavit which the father completed on August 17, 2012, when he commenced this proceeding. However, he has not completed an amended Form 35.1 as mandated by Rule 35.1 of the Family Law Rules.

115This is important – and particularly so in this case - because question number 10 in that affidavit asks the deponent to answer the following:

10. My plan for the care and upbringing of the child(ren) is as follows:

a) I plan to live at the following address:

b) The following people (other than the child(ren) involved in this case) will be living with me:

116While the court can sometimes overlook the filing of an amended 35.1 affidavit, where the changes from the first affidavit are minor, it is difficult to ignore this lapse when the change is a major is this one, namely, the father having acquired a new spouse or, to put it another way, the child having acquired a new stepparent.

117Even then, it might be possible to overlook the filing of an amended affidavit so long as the trial evidence had been clear and forthcoming about all the necessary details concerning the new spouse.

118However, in such a circumstance, particularly where the child perceives the stepmother in such a negative light, in the court's opinion it would have been almost mandatory for that person to attend court to testify, at least so the court could lay eyes on her and assess her ability to be child focused; and, additionally, to perhaps enable the court to have a better understanding of why D. sees her in such a negative way.

119And yet, what the court is left with, insofar as the stepmother is concerned, is virtually nothing, apart from D.'s negative impressions.

120In M.M.B. v. L.J.G., 1999 CanLII 14167 (MB QB), the trial court found that both parents were equally capable. The mother had re-married, and the issue before the court was the impact of the relationship between the child and her stepfather. At paragraph 10, the court stated:

I am now looking at two parents who have, as much as it is possible, the same good personal relationship with A.G. and the same abilities to parent her well. But these parents do not stand alone. Each has acquired a new family with whom A.G. is intimately connected and who have had and will continue to have a huge impact on her.

121The court noted that the child was "uncomfortable" around the stepfather and "dislikes being in his home when her mother is not there "to protect her from his inappropriate remarks and behaviour."

122This was the primary consideration for the trial court in awarding custody to the father, rather than the mother.

123In the present case, while there is no direct evidence that the stepmother is acting inappropriately, there is evidence that the child does feel uncomfortable in the father's home; and the stepmother is clearly a factor which is impacting on the child's discomfort.

124The court is also left to question the father's judgment in deciding to effectively hide the stepmother away from the scrutiny of the court. It is trite to say that when assessing parenting abilities, the putative caregiver's judgment is an important consideration. If the father is unable to grasp why it was necessary for the court to get to know and understand the stepmother, who she is, what her role is in D.'s life, and anything else that could impact on D., this is a considerable red flag in the mind of the court.

Best Interests in the Context of the Children's Law Reform Act

125Earlier, I set out the provisions of section 24 of the Children's Law Reform Act. In these reasons, I have implicitly directed myself to those factors and, accordingly, I do not intend to go over each of the factors in that section of the Act in great detail. Instead, I will highlight what I conclude are the important factors in that section, and which apply to the facts of this case.

Section 24(2)(a) – Love and Affection

126While it is clear that the child has a very strong bond with the mother, the OCL report does reveal a close connection between the child and his father.

127On all of the evidence, while there may be a temptation to suggest that perhaps the love and affection D. has for his mother is greater than his father, I am not prepared to conclude that is the case here.

Section 24(2)(b) – The Child's Views and Preferences, If They Can Reasonably Be Ascertained

128The evidence discloses that the child is in emotional turmoil. At least in part, this is connected to the dynamics of what is occurring in the father's presence with D., and the child's relationship with the stepmother.

129At the same time, D. is very close to his mother, and he seems to want to be with her as much as possible.

130The court recognizes that the evidence presented does not amount to a full-blown custody and access assessment where there might be clearer views and preferences expressed. Nevertheless, the consistent thread of the child favouring his mother over his father, is clear from the evidence.

Section 24(2)(c) – Length of Time Child Has Lived in a Stable Home Environment

131D. has lived with his mother as the primary de facto custodial parent for the past 4 years. The father's access has been as set out in the "Background" section of these reasons. While the father accused the mother of alienation, there is no credible evidence to support that assertion. Furthermore, the father never brought a motion to change the status quo.

132There is no credible evidence to suggest that the mother is failing to meet D.'s needs on a day-to-day basis. On the contrary, as these reasons disclose, the mother has been more proactive in reaching out to professionals in her attempts to better understand and address D.'s needs.

Sections 24(2)(d), (e), (f) and (g)

133I treat all of these subsections as part of one discussion. And I include in this, the importance of one parent's ability and willingness to maximize contact with the other parent.

134It was the mother, more than the father, who pursued D.'s developmental needs. The father was willing to accept at face value the advice of Dr. Solomon in 2014 to not proceed with any further assessments – this despite the thrust of most of the other third-party evidence which reveals the existence of some serious challenges for D.

135In fact, the father's mantra of "no further assessments" became a significant cornerstone of his case at trial.

136Whether or not that was the correct advice for Dr. Solomon to provide in 2014, with the passage of time since Dr. Solomon saw D. two years ago, the evidence reveals that D.'s social/emotional/educational needs were not being fully addressed. He has clearly become a more vulnerable and needy child. The mother recognized this. The father did not. The mother continually insisted on pursuing further help for D. The father did not.

137As I interpret the evidence, the father's insistence on bringing the fact of the ongoing litigation to the attention of the potential assessors/therapists, caused those assessors to become wary, even to back off. They were afraid of being drawn into the litigation. Most notably and recently, this was made clear in the evidence of Crystal Clarke at Hincks-Dellcrest.

138Father's "disingenuousness" in dealing with the teachers demonstrates to the court that while he might have been prepared to ask questions about D., he wasn't prepared to listen to their professional advice.

139Father's anger and hostility toward the teachers and daycare staff make it far less likely that he would work cooperatively with them; and correspondingly, his attitude makes it that much more difficult for those professionals to work with him.

140Mother demonstrated her ability to be child focused. Even though the parenting consent order gave her only alternate weekends with D., she was ultimately prepared to give up her Saturdays to allow D. to participate – with the father – in hockey.

141Similarly, notwithstanding the fact that father unilaterally chose to enroll D. in Kumon, against the mother's wishes, once he did that, mother felt it was better to leave him there because she recognized that D. had difficulty with changes.

142In my view, the fact of father's unilateral decision-making regarding extra-curricular activities and tutorial classes, demonstrates to the court a power imbalance between the mother and the father. These actions by the father, together with the somewhat haughty and dismissive way in which he gave his evidence revealed to the court his clear view that he was to blame for nothing; the mother was to blame for everything.

143The court did not hear from father any indication that, just perhaps, he may have made some mistakes in the way he went about making decisions for D. To review the father's evidence is to see the picture of a parent who regards himself as just about perfect; and who regards the other parent as deficient in almost every way imaginable.

144In her evidence, mother attempted to describe in detail how she goes about establishing a routine for D. Father does describe the parenting schedule which is currently in place; however, he fails to describe in any detail his home routine for D.

Section 24(4) – Violence and Abuse

145The court is required to consider this issue in the context of best interests. I have concluded that the father, more likely than not, was both verbally abusive and physically abusive toward the mother in the past.

146His abusive behavior seems to be a pattern for him, not only in the way he dealt with the mother but, also in the way he dealt with a number of the professionals who were involved with D.

147Father's counsel argues that even if the court makes this factual finding, the evidence of abuse – particularly as against the mother - is historical rather than recent and, as such, it should be given no weight by the court. I reject this argument for the following reason.

148Absent evidence of a change in attitude, or therapy to address past bad behavior, the best way to predict how a person will behave in the future is to examine past conduct. As Justice W. L. MacPherson stated in CAS v. C.T., 2015 ONSC 32:

The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents.

149Not only did the father not demonstrate any change in his attitude and his tendency to act with hostility and aggression, he simply flat-out denied that it ever existed. In the mind of the court this reveals a singular lack of insight.

150It might have been different had the father come to court and said, in effect, yes, I did do this, I did act that way previously but my life is different now. I have come to understand that this is not a desirable way to lead my life; it is not the best way to be an effective parent; I have learned all of this through counselling or therapy. And I can now demonstrate to the court how my past attitudes and behavior have since changed. In other words, the parent I was back then is not the parent I am today.

151Unfortunately for the father – but more importantly for D. - none of that happened.

152The court can have no confidence that the father has any insight whatsoever into how his poor behavior can negatively impact on the child's wellbeing. And, more significantly, it appears from the evidence that not only is this negative impact a possibility but, rather, it has very likely affected D.'s social/emotional wellbeing.

153In coming to this conclusion, I am mindful of Ms. Bockner's testimony that the father openly criticized the mother, in D.'s presence.

Conclusion

154Before setting out my order, I will comment on the authorities briefs which each party submitted to the court in support of final arguments. Usually, trial judgments about what is in the best interests of a child in a particular case are very much fact-based. To a large extent, the cases presented by both counsel, which each argues supports his and her respective position, are almost entirely dependent on the facts found by the courts in those cases. For that reason, for the most part, I did not find the cases in those briefs to be of real assistance in the analysis contained in these reasons.

155As a result of my findings that mother is the more child-focused parent and the parent who is better positioned to make decisions in the best interests of D., and for all of the other reasons set out in this judgment, it follows that it is in D.'s best interests that she be the sole custodial parent.

156As well, because D. has difficulty adjusting to the different routine in the father's home, I conclude that at least during the school week, his academic functioning issues are more likely to be addressed by remaining in the mother's home each night.

157Mother has proposed a parenting schedule which is more liberal for the father than what I would have been inclined to order, particularly given father's apparent insistence on keeping his current wife hidden from the mother's scrutiny and the scrutiny of this court.

158Nevertheless I will incorporate into my order much of what the mother has requested in terms of father's parenting schedule.

159The court makes the following order:

Order

Custody

1. The Respondent mother, A.W. ("mother"), shall have sole custody of the child, D. [child's full name to be inserted in the formal order taken out by counsel] born […], 2007 ("the child").

2. Both parties shall have the right to obtain information about the child from medical and education professionals involved with the child pursuant to section 20 (5) of the Children's Law Reform Act. The Applicant father ("father") may obtain any information he requests in writing.

3. If the child has a medical emergency while in the care of a party, that party shall immediately notify the other party of the emergency. The party with the child shall make any decision that is necessary for the treatment of the child in the absence of the other party to address the urgent situation.

4. Both parties shall have the right to attend parent-teacher interviews and any school functions. Each parent may individually schedule such appointments with the teacher.

5. The father shall not attend the school/daycare premises outside his parenting time or unless he is attending a scheduled school/daycare event or function.

6. Both parties shall have the right to attend the child's extra-curricular activities.

7. The parties shall communicate concerning child related issues only through email, or other electronic means, such as text message.

8. Neither party shall speak ill of the other to the child, directly or indirectly. Nor shall either party knowingly permit any other person to do so.

Parenting Time

9. The father shall have parenting time during the academic school year with the child as follows:

• (i) Alternate weekends from pick up from Friday after school until Monday morning drop off to school.
• (ii) Every Wednesday from after school until 8:00 pm.

10. The father shall have parenting time during the summer holidays from school as follows:

• (i) In alternate weeks from pick up from daycare on Wednesday to Monday morning drop off to daycare.
• (ii) In the week the father does not have a weekend parenting time, pick up from daycare on Wednesday to drop off to daycare on Thursday morning.

Vacation Time

11. On an annual basis, the father shall be entitled to vacation time with the child for a period of 10 days (consecutive or non-consecutive). The father shall choose his vacation time so that it does not conflict with the child's schooling or a previously-planned vacation by the mother. The father shall provide the mother with notice of his proposed vacation, by electronic means, not less than 90 days prior to the start of his proposed vacation period.

12. The vacation schedule may not conflict with the daycare subsidy. As such, the father shall ensure that the vacation schedule is in compliance with the subsidy rules for days absent from the daycare. More specifically, the mother shall be entitled, in her sole discretion, to determine the number of days during the daycare year that the father may be permitted to remove the child from the daycare so long as the child is attending subsidized daycare.

Holidays

13. The parties shall share the Christmas holidays from school which shall be divided in half. The first half shall be from the last day of school to the half way point of the break. The mother is entitled to parenting time for the first half of the Christmas Break.

14. The Christmas school holidays shall be divided into Part 1 and Part 2 which shall rotate: Part 1 shall commence on the last day of school until half way through the holiday at 12:00 pm noon. If the half way point falls on or before December 25, Part 1 shall be extended to December 26 at 12:00 pm noon. Part 2 shall end the day school begins with drop off to school. In 2016 the father shall have the child for Part 2 of the holidays.

15. New Year's shall alternate between the parties. The regular Christmas access will suspend on December 31 at 12:00 pm and the party who has the child that year will pick him up from the other party's residence and return him on January 1 at 12:00 pm. In 2016, the father, shall have the child for New Year's.

16. The parties shall each have March Break in alternate years in which the March Break will commence on the Monday of the March Break week unless it is the party's weekend access with the child. The March Break access will conclude on the Friday unless it is the weekend access with the child. In 2017 the mother shall have the child for March Break.

17. The parties shall have the Easter weekend with the child in alternate years. Easter weekend shall commence from the pick-up from school on Thursday before Good Friday to drop off to school on Tuesday morning after Easter Monday. In 2017 the father shall have the child for Easter.

18. If the child's birthday falls on a weekend, the party who does not have the weekend parenting time shall spend time with the child from the birthday day at 6:00 pm to the next morning at 9:00 am or drop off to daycare/school. If the child's birthday falls on a weekday, the party who does not have parenting time that day may pick up the child from school to 8:00 pm return to the home of the other party.

19. Each party shall be entitled to have parenting time on his/her respective birthdays with the child from 9:00 am on the birthday to 9:00 am the following morning or drop off/pick up from school.

20. For Thanksgiving, the party who has the weekend access shall drop off the child to the other party on Monday of Thanksgiving at 9:00 am to drop off to daycare/school the following morning.

21. For Family Day, the party who does not have weekend access shall pick up the child on Monday of Family Day at 9:00 am and drop off to school/daycare the following weekend.

22. The child shall attend the daycare on PA days and the regular parenting routine shall continue.

160In the event the mother asks questions of the father about the stepmother, questions which may be relevant to D.'s care, I encourage the father to become more transparent and responsive to the mother. It is in both parties' interests to ensure that D. begins to develop a comfort level in his father's home and, in the court's view, this kind of cooperation would be a way to at least begin to open the door to allow the light to enter.

161In the event either party seeks his or her costs, that party shall contact the other to advise of same within the next 10 days. Thereafter the party seeking costs shall do so in writing, no later than 21 days following the date of this judgment. Submissions shall not exceed 3 pages in length, double-spaced, exclusive of any Bill of Costs and other attachments. The responding party shall provide similar submissions in writing within 14 days thereafter.

162Finally, the court thanks both counsel for the respectful and efficient manner which marked their conduct of this trial.

Justice Robert J. Spence

November 17, 2016