Court File and Parties
Court File No.: Toronto DFO-15-13339-00 Date: 2020-12-07 Ontario Court of Justice
Between: S.R.V.M., Applicant Father
— AND —
J.S., Respondent Mother
Before: Justice Alex Finlayson
Heard on: December 1 and 2, 2020
Reasons for Judgment released on: December 7, 2020
Counsel:
- David K. Sherr, counsel for the applicant father
- J.S., on her own behalf
ALEX FINLAYSON J.:
PART I: NATURE OF THIS JUDGMENT
1The parties are the parents of an 8 ½ year old boy named E.R.V.M. They share joint custody of him pursuant to the Final Order of Justice Cohen dated July 15, 2016. E. resides primarily with his mother, and has access to his father on Tuesdays and every weekend from Friday to Sunday, also according to that Order.
2This is the father's Motion to Change the Final Order of Cohen J. dated July 15, 2016. Initially in his Motion to Change, the father sought an order empowering him to make decisions about E.'s education only; he did not seek sole custody, nor a change to E.'s primary residence. However, the father's position has changed. In early 2020, the father amended his Motion to Change and now seeks sole custody of E., an Order that E. shall reside with him primarily, and an Order that the mother's access shall be in accordance with E.'s wishes, or alternatively according to a set schedule.
3The mother's principal position is that this Court should grant her sole custody of E. Essentially, she wants the Court to reinstate an earlier Consent Order of Justice Paulseth dated August 21, 2013. However, that Consent Order was made when the child was 1 years old. And it is no longer the governing Order, as Cohen J. varied it in 2016.
4The mother also wants the Court to transfer this case to the "Criminal Court". Additionally, although she did not claim any relief against the father's current partner, S.C., nor did she serve her with any pleading or Notice of Motion, the mother told the Court that it should issue a restraining Order against S.C. Plus, she wants an Order prohibiting the father from purchasing travel and life insurance for E., too.
5Regarding the father's access, the mother asserts that it should be supervised. Inconsistently, the mother also says that the father may have unsupervised access to E. in his home. The latter appears to be based on her view that using an access center is not ideal, nor even possible during the Covid-19 pandemic, and that she does not know how E. will tolerate an access center. However, her alternative position for unsupervised access has conditions attached to it, namely that the father must immediately inform her if the child suffers any harm while with him during a visit, and that S.C. not be present.
6The Court has serious concerns about the mother's mental health, that it remains untreated, and that it is impacting her parenting of E. At the conclusion of the trial, the parties informed the Court that the father would be having access during the upcoming weekend. On the afternoon of Friday, December 4, 2020, I released an Endorsement directing that the father was to keep E. in his care after picking him up for his weekend access visit, pending the release of this decision.
7For the reasons that follow, I find it to be in E.'s best interests that the father shall have sole custody of him. Regarding the mother's access, although one of the father's proposals would be that the child will decide when and how to see his mother, this Court is not comfortable making such an Order. The Court is also not comfortable making a specified access Order either. During closing submissions, the Court canvassed alternatives for access. In my view, the most appropriate Order would be that access between the mother and E. shall be in the father's discretion on certain terms, which I will set out below.
PART II: BACKGROUND INFORMATION ABOUT THE PARENTS AND ABOUT THE CHILD
8The father is 51 years old. According to his Form 35.1 Affidavit in Support of a Claim for Custody or Access sworn May 16, 2019, he works on a full-time basis for a real estate company.
9The parties never lived together.
10The father lives with his mother in Scarborough, Ontario.
11The father has been in a relationship with S.C. for the past four years. S.C. lives in Waterdown, Ontario. I am told that she and the father spend time together most weekends. The father regularly takes E. with him to visit S.C. at her home on weekends. Sometimes S.C. comes to the paternal grandmother's home in Scarborough instead.
12S.C., who testified at this trial, is employed as a personal support worker in Hamilton, Ontario. She has 5 children from a prior relationship, some of whom are adults and independent. Two of her children, ages 20 and 13, still live with her, as does her mother.
13There is no air of reality to the mother's suggestion that either S.C. (nor the father, nor anyone else for that matter) might have done something to harm E., or others. Rather, S.C. presented as one of several adults in E.'s life who is concerned about his well-being.
14The mother is 49 years old. She is not in a relationship.
15According to the mother's Form 35.1 Affidavit in Support of a Claim for Custody or Access sworn June 12, 2019, she lives in Etobicoke with her parents.
16English is the mother's second language. The mother told this to the Court numerous times during the trial, either as an explanation for various things that happened in the past, or in response to questions during this trial.
17Despite English being her second language, she did not require the assistance of an interpreter. The mother studied nursing at a college in Toronto, in English. She was able to express herself to the Court in English, she presented both affidavit and viva voce evidence in English, and she cross-examined the father and his witnesses in English. The Court had no difficulty understanding her at all.
18It appears to the Court that the mother is currently unemployed. She used to work as a nurse, however.
19The mother informed the Court, multiple times during the trial, that she has a Certificate in Neuroscience Nursing from George Brown College. She obtained it on April 6, 2015. She referred to her having this nursing certificate as evidence of her ability to parent E.
20The mother's work history as a nurse appears to go back many years before she obtained this certificate. During the limited cross-examination of the mother to which she would agree to submit (I explain this later), it was revealed that the mother was initially registered as an RN with the College of Nurses of Ontario in 2000. However, apparently her certificate of registration with the College of Nurses of Ontario was suspended in 2015, at least on a temporary basis, if not, in effect, on a longer term basis.
21Mr. Sherr tendered into evidence a decision of the Discipline Committee of the College of Nurses of Ontario dated February 18, 2015. The decision explains that in 2013, the mother was given a letter of caution, citing nine allegations of improper behaviour. A discipline panel at the time determined that the mother lacked insight into her behaviour, and ordered her to complete specified continuing education.
22According to the decision of February 18, 2015, the mother did not comply with that earlier Order. The Discipline Committee of the College of Nurses found that the mother demonstrated "a profound lack of professionalism and unwillingness to be governed by the College". So it reprimanded the mother, suspended her certificate of registration for two months, and ordered professional education overseen by a nursing expert.
23In cross-examination, the mother claimed to have been unaware of the decision of the College. Instead, she maintained that she was a victim of workplace bullying and that she had to resign. Other than saying that, she refused to answer most questions that Mr. Sherr tried to put to her about these past professional discipline proceedings.
24Except for that which I have just described, there is little other information about the mother's employment history or past training before the Court. And in her Form 35.1 Affidavit, the mother self-describes herself as a stay at home parent.
25Like she did regarding her past training in nursing, the mother also referred to certain parenting courses that she took to illustrate her parenting skills. She referred to the parenting courses that she had taken in the past, when cross-examining the father and S.C., too. For example, she asked the father whether he had taken any parenting courses. He testified that he did not. The mother asked S.C. whether she had taken any parenting classes. S.C. said that she did, but she did this years ago (again 4 of her 5 children are now adults).
26Later in the trial, the mother tendered three certificates of such parenting courses that she took. They are all dated in 2012 and 2013, between E.'s birth and age 1. There is no other evidence that the mother has sought out any more current assistance or additional education regarding her parenting of E. To the contrary, she has blocked the efforts of the child's school and the Children's Aid Society to assist this family. And this issues in this case do not turn on whether one of the parents has taken a parenting course.
PART III: PRIOR PROCEEDINGS
27Although this is a Motion to Change a Final Order rendered in 2016, because the mother is asking this Court to reinstate the earlier Final Order of Paulseth J. that is no longer in force, I will summarize the prior proceedings back to 2013.
28On August 21, 2013, in the initial proceedings between the parties, Paulseth J. granted a Final Consent Order that the mother would have sole custody of E. The child was 14 months old at the time. There is some suggestion, in Cohen J.'s subsequent Judgment of July 15, 2016, that the father was already aware of some of the mother's mental health troubles at the time of Paulseth J.'s Final Order, but not the full extent of it. Although the August 21, 2013 Final Order was a Consent Order, the mother asserted that Paulseth J. awarded her sole custody because of concerning behaviour on the part of the father at the time, and due to his impaired judgment because of medication that he takes. This was not borne out in the evidence at this trial.
29The Final Consent Order of Paulseth J. dated August 21, 2013 also contained a graduated access schedule, culminating in the father having access on Tuesdays and on alternating weekends from Fridays to Sundays. And it makes provision for the father to pay child support to the mother based on his income at the time.
30According to the father, prior to the parties entering into this Final Consent Order, he had to bring two motions just to obtain some parenting time with E., on a temporary basis.
31The father says that soon after Paulseth J. granted this first Final Consent Order, he was approached by the Children's Aid Society of Toronto. The father learned that the Society had protection concerns about the mother, and that it had been unaware that he was E.'s father. The father also learned that the Society had an open protection file, dating back over the past year or so, to the child's birth. The Society's protection concerns were apparently based on reports by the mother's psychiatrists to it.
32At some point during this time frame, the Society launched a protection application. As explained in Cohen J.'s Judgment of July 15, 2016, on May 1, 2014, E. was placed in the mother's temporary care and custody in the child protection proceeding, but subject to certain conditions. By 2016, the Society wanted to withdraw the protection application, but it did not move to do so due to concerns about the underlying Children's Law Reform Act Order of Paulseth J. resuming in force. The Society took the position that it would not have protection concerns, provided the maternal grandmother remained involved in supporting the mother in her parenting of E., and provided the father obtained the legal ability to assume custody, should the mother become unable to care for the child.
33It was in that context that the father launched his first Motion to Change. He says he did so at the behest of the Society. In it, the father did not pursue an Order for sole custody or to change E.'s primary residence.
34On February 4, 2016, Weagant J., who was the case management judge, directed that the Motion to Change would proceed to a hearing by way of summary judgment.
35Cohen J. heard the summary judgment motion on June 7, 2016.
36On July 15, 2016, Cohen J. made a Final Order for joint custody, with E.'s primary residence to remain with his mother, and with the father having access on Tuesdays from 4:00 pm to 8:00 pm and now on every weekend from Fridays at 4:00 pm to Sundays at 8:00 pm.
37Cohen J. was not asked to determine whether E. should reside with his father primarily as this was not claimed. But she did order that in the event of the mother's incapacity, E. would reside with his father, and that the father would have sole decision-making authority, during the period of the mother's incapacity.
38Cohen J. made a finding of fact that Society workers had observed the father and E. together. To the Court, the Society represented that he provided good instrumental care, and that he had a loving relationship with E.
39The father commenced this current Motion to Change on April 16, 2019, based on what he says has been a pattern of concerning behaviour by the mother since Cohen J.'s 2016 joint custody Order. Initially in this round of the proceedings, the father only sought decision making respecting E.'s education, along with other orders incidental to custody and access, perhaps as a reaction to certain events that had occurred. However, on January 3, 2020, the father amended his Motion to Change to claim sole custody and an Order that the child would reside primarily with him.
40In her Response to Motion to Change dated June 4, 2019, the mother asks the Court to dismiss the father's Motion to Change, and to transfer this case to the "Criminal Court". She also claims an Order that the father not buy travel or life insurance for E. Her request for a restraining Order, referred to earlier in this Judgment, was an oral request made at this trial.
41Regarding the reference to the "Criminal Court", the mother says that she and her family "consider the behaviour of the individuals who seek to change the court order dated August 21, 2013 is not only violation of the Constitution Act, Canadian Charter of Rights and Freedoms, harassment and hate crime, but also financial crime because those individuals got paid for their actions on public funds". I note here again that the Final Order of Paulseth J. dated August 21, 2013 was changed by this Court over four years ago.
42While case managing the interim proceedings within this current Motion to Change, Weagant J. made several interim orders. Two of those Orders were for the appointment of the Office of the Children's Lawyer, and that the father would have the authority to make educational decisions about E. on an interim basis. As I will explain, Weagant J. ordered the latter after the mother banned the child from participating in school trips and activities. And although the Children's Lawyer accepted Weagant J.'s referral, it was ultimately unable to investigate and report to the Court, as the mother would not cooperate with the clinical investigator assigned to conduct the investigation.
PART IV: THE CONDUCT OF THIS TRIAL
43On November 12, 2020, this matter came before me for a Trial Management Conference. At the TMC, the mother complained about the case proceeding at all during the Covid-19 pandemic. At that point, I understood the complaint to be about the form of the trial. I advised the mother that she could request a virtual trial, or that the trial might proceed in some hybrid form since the father's counsel told me he and the father intended to appear in person. This is reflected in my trial management Endorsement as part of the directions I gave for the conduct of this trial. But the mother then made no such requests.
44The trial proceeded in person, beginning on December 1, 2020. Having heard the trial, I now understand the mother to view the Court's process itself as harassment, quite apart from Covid-19. I gather that the mother views the fact that this proceeding occurred during Covid-19 as an aggravating factor. She is upset at those who she views as having brought her to Court during Covid-19, and at various participants in the justice system itself.
45In discussions with the parties about how the trial would proceed at the TMC, I also endorsed that they would each file affidavits for themselves and their witnesses as their evidence in chief. But I also made provision for each side to testify in chief in addition, and there was to be cross-examination.
46The father as the moving party, called his case first. He tendered affidavit evidence of himself, his mother and S.C. The mother cross-examined the father and his witnesses.
47At the TMC, the mother told me that she did not wish to prepare a new affidavit for trial. She said she wanted to rely on all of her affidavits, previously filed in the Continuing Record. Mr. Sherr agreed to compile those affidavits into a brief for the Court. The brief was marked as Exhibit 1. I reviewed the various affidavits that Mr. Sherr included in the brief with the mother at the outset of the trial. The mother confirmed for the Court that Mr. Sherr had in fact included them all, as he said he would. Then, despite her earlier submission at the TMC that she would not prepare an affidavit for trial, the mother tendered a new affidavit for trial too, sworn December 1, 2020. It is marked as Exhibit 2.
48The mother testified in chief, in addition to relying on her various affidavits. Then it came time for cross-examination. Mr. Sherr started his cross-examination towards the end of the first day of the trial, but he did not make much headway on account of the late hour at which his cross-examination began. At the outset of the second day of the trial, the mother complained that Mr. Sherr had been unduly aggressive in his questioning of her. She told the Court that she felt she was being harassed, and that she would not submit to any more cross-examination.
49Without detailing in this decision each thing that transpired next, about one half of the second day of trial was devoted to managing the mother's refusal to resume being cross-examined. The Court directed the mother to return to the witness box, but she would not do so. The Court requested that duty counsel speak to the mother about the consequences of her refusal to be cross-examined. After discussing the matter with duty counsel, the mother returned to the court room and I was told by duty counsel that she would agree to resume cross-examination. However, when she returned to the witness box, she began to refuse to answer questions on a question by question basis, or she said she could not recall certain things. In addition to Mr. Sherr's so-called aggressive questioning of her the day before, she also told the Court that she was stressed out due to Covid-19, and for other reasons.
50After numerous warnings from the Court as to the consequences of proceeding in this fashion, Mr. Sherr abandoned his cross-examination of the mother. Before doing so, I asked him to advise the Court as to the areas that he had intended to explore with the mother. I specifically cautioned the mother that the Court might draw adverse inferences against her on these topics.
51Also on the morning of the second day of the trial, before returning to the witness box for the resumption of cross-examination, the mother informed the Court that she and her mother had questioned E. the night before as to his views and preferences. She told the Court that she had a letter, written by the child, that she wished to introduce into evidence. The Court told the mother that it would address this after her cross-examination concluded.
52After Mr. Sherr abandoned cross-examining the mother, the Court held a voir dire as to the child's statement. The mother had no difficulty whatsoever telling me about the circumstances surrounding the taking of the child's statement, how the child was not pressured into writing this statement, and how the written note was an accurate reflection of E.'s wishes. But when it came time for Mr. Sherr to cross-examine her on the voir dire, the mother retreated into her earlier position that she would not answer most of his questions.
53With the father's consent, the child's written statement was admitted into evidence as Exhibit 5. However, the father objected to it being relied upon for the truth of its contents. I will have more to say about this note, later in this Judgment.
PART V: APPLICABLE LEGAL PRINCIPLES
54Pursuant to section 21 of the Children's Law Reform Act, a parent may apply for an order respecting custody of or access to the child, or determining any aspect of the incidents of custody of the child. However, section 29 states that where there is already an order from an Ontario court in place, a court shall not make an order varying a custody or access order unless there has been "a material change in circumstances that affects or is likely to affect the best interests of the child."
55Various, well-established principles govern a material change analysis. See Gordon v. Goertz; see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60. Regarding the material change threshold:
(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;
(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;
(c) the focus is on the prior order and the circumstances in which it was made; and
(d) the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.
56And if the Court finds that a material change has occurred:
(e) the Court should consider the matter afresh without defaulting to the existing arrangement;
(f) the Court must consider all factors relevant to the children's best interests in light of the new circumstances;
(g) the Court must be guided by the statutory criteria set out in section 24(2) of the Children's Law Reform Act. The Court will consider the applicable statutory factors, in light of the evidence before it;
(h) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and
(i) the Court should limit itself to whatever variation is justified by the material change in circumstance.
57With these principles in mind, I turn to the evidence before the Court.
PART VI: ANALYSIS
A. The Mother's Mental Health
58I begin the analysis with a discussion about the mother's mental health.
59This Court made a number of findings of fact about the mother's mental health when it disposed of the last Motion to Change on July 15, 2016. Cohen J.'s findings are found at ¶ 9 and 10 of her Judgment dated July 15, 2016. They were based on the "undisputed medical evidence" before the Court at that time.
60In particular, Cohen J. found:
(a) that the mother has a history of schizophrenia and psychosis, about which the Society had been aware since 2012;
(b) that during 2013, several psychiatrists, who had treated the mother, made referrals to the Society. It was revealed that the mother had a history of psychosis and was refusing medication;
(c) that the mother suffered from paranoia, which caused her to have poor judgment;
(d) that in a letter authored by a doctor working in an outpatient clinic at CAMH, the doctor reported that the mother suffered from schizophrenia, paranoid type, that her illness had been present for at least 5 years but likely much longer, and that she experienced delusions and auditory hallucinations; and
(e) that the mother was at the time declining medication and further medical appointments. And the maternal grandmother was supporting the mother in declining medication.
61Unfortunately, no current evidence about the mother's mental health was placed before me for this trial. The mother said nothing about any steps that she took to address her mental health since the date of Cohen J.'s Order. She testified that she did not have any current medical records, but that her mental health is stable.
62Unquestionably, the mother's mental health would have been explored by the clinical investigator of the Office Children's Lawyer, had the mother cooperated with the investigation. But she did not.
63And in the absence of more current evidence, the father also chose not to take steps to obtain updated health information about the mother himself, such as by way of rule 19(11) motion or otherwise. And then, the Court was deprived of the opportunity to perhaps hear more from the mother about her mental health, as she refused to participate in cross-examination.
64Consequently, the Court has been put in the position of having before it medical evidence about the mother's mental health status as found by Cohen J. from four years ago only. It could be argued that as Cohen J. had the same information before her about the mother's mental health as I do now, and she still made an Order placing E. in the mother's primary care, that no material change has occurred insofar as the mother's mental health is concerned. But I would nevertheless find there have been a number of other material changes in circumstances based on the mother's subsequent behaviour and its impact on E. since the Final Order of Cohen J. dated July 15, 2016.
B. The Mother Has Refused to Allow the Child to Participate in School Trips and Activities
65One such material change pertains to the mother's conduct respecting E.'s schooling. What transpired is as follows.
66In late January 2019, the father received a phone call from a social worker at the Children's Aid Society of Toronto. The father learned that the child's school had reached out to the Society regarding the mother's interactions with the school, and in particular regarding the mother's refusal to allow the child to participate in school trips and activities.
67Attached to the father's trial affidavit is a letter dated February 25, 2019, authored by the child's grade one teacher, listing the various trips and activities that the child had missed, and describing the corresponding learning and other experiences that E. had been deprived of as a result. The father also tendered a letter dated March 12, 2019 that he had received from a certain Society intake worker and the Intake Supervisor. The Society's letter advises that it was closing its file following its investigation of this school incident. While the Society's letter states that the child was then 6 years old and did "not appear to be significantly impacted by the restrictions [the mother] had been placing on him at school", it also states that the Society worker and supervisor were nevertheless worried about the future impact of this behaviour on the child. The letter further expresses concerns that the mother was messaging to the child that school was not important, that the child might come to see the world in an unsafe way, and that the child might become socially isolated. The letter concludes by reminding both parents of their responsibility to ensure that the child's needs were being met, and the Society warned them that it was prepared to take more intrusive measures, if similar concerns were reported in the future.
68This evidence, tendered by the father in the form of letters from the school and the Society, is inadmissible for the truth of its contents. The father did not call any direct evidence from either the school teacher, or from a Society worker, nor did he tender any admissible business records on these important points. So while I accept the father's evidence that these letters were prepared by the school and the Society, I am unable to rely on their contents. I therefore decline to make a specific finding as to the number of trips and activities that the child missed as a result of the mother's prohibition, nor do I place any weight on the opinion of the teacher or the Society workers that is contained in the letters.
69However, there is other admissible evidence on these points that leads me to the conclusion that the mother has acted contrary to the child's best interests in a significant way here. Moreover, the Court does not need the opinion of a social worker or a teacher to find that a parent blocking a child from participating in school trips and activities, is not in his best interests, and that it may have both a short term and longer term impact on his learning and emotional well-being.
70The admissible evidence before the Court is five-fold.
71First, the father deposes that he was aware that the mother was doing this, and that it was a source of regular conflict between he and she. He gives two examples of arguments that he had with the mother about this topic in his trial affidavit. He also says that the mother shared with him her view that the Society and the school were "harassing" her, and that she said she would book a one-way ticket to take the child to Russia in response to that harassment. The mother did not deny any of the father's statements to these effects in her evidence, and the father was deprived of the opportunity to cross-examine her about it for the reasons articulated above.
72Second, the father instructed his lawyer to write a letter to the mother dated April 2, 2019 indicating that unless the mother allowed the child to participate in school trips and activities, he would seek an order from the Court. The mother did not respond to the father's counsel's letter. Instead, the father says that she responded to him directly, and told him that she would tell the child that he was a bad father. He also says that she said she would tell the school that the child was sick to keep him from participating in activities and trips. Likewise, the mother did not deny any of the father's statements to these effects in her evidence, and the father was deprived of the opportunity to cross-examine her about it for the reasons articulated above.
73Third, the mother essentially admits that she was withholding the child from school trips and activities, by attempting to justify in her affidavit evidence why she withheld the child from school trips and activities in the first place. Specifically, the mother tells the Court that the child had told her that he did not want to go on school trips. She goes on to accuse the father of not acting in the child's best interests, by wanting him to participate.
74Fourth, the mother obtained two different letters from the child's doctor to support her position that the child not participate in school activities and field trips. By medical letter dated April 20, 2018, the child's doctor wrote that "due to a suspected medical condition it would be reasonable for [the child] to have additional supervision during swim classes in the upcoming school year of 2018/2019", and "he should avoid any physical activity during gym class that increase the risk of serious injury (such as ice skating/hockey)". By further letter of April 1, 2019, the doctor wrote a similar note, but added that the mother was now requesting that E. not attend school trips. This second letter concludes by saying "[t]his is not a medical request but a parental request".
75After receiving these letters, the father spoke to the child's doctor. He says that the doctor told him the "suspected medical condition" was based on the mother's own reports, and that the letter of April 20, 2018 had been written at the mother's request. In a much lengthier report subsequently dated July 10, 2019, the doctor now explained the context in which the earlier notes had been written. She also set out child's medical history and then wrote that there was "no clear medical evidence at this time" nor was it "medically necessary that [the child] need[ed] to refrain from activities such as school trips".
76Fifth, the fact that the mother was disallowing school activities and trips was brought to Weagant J.'s attention in case management, as was the so-called medical evidence. On August 14, 2019, Weagant J. ordered that the father would have decision-making authority over education on a temporary without prejudice basis. He also ordered the mother to pay costs of $1,500. The costs remain unpaid. In her opening trial statement, the mother mischaracterized Weagant J.'s Order as having required her to stay away from the child's school, a proposition with which she did not agree.
77The mother did not explain her behaviour in relation to the child's school trips and activities in her evidence in chief, nor was Mr. Sherr able to cross-examine her about it. In response to a question from the Court during closing submissions, the mother told the Court that there were not that many trips that the child missed, without elaborating on the details.
78Based on this, I find there is sufficient, admissible evidence before the Court about the mother having withheld the child from participating in school trips and activities. I make the following findings:
(a) The mother withheld the child from school trips and activities;
(b) The mother obtained two doctor's notes to justify her prohibition on E. participating in school trips and activities;
(c) Her behaviour caused the child's teacher to be concerned. The school made a report to the Society, and this caused the Society to investigate;
(d) As I will explain below, the mother refused to cooperate with the Society. She wrote letters of complaint about both the school and the Society;
(e) The mother's position about school trips and activities was a significant issue between the parents. It caused two arguments between them;
(f) The father instructed his counsel to attempt to intervene, and to ultimately to seek a temporary Court Order from Weagant J.;
(g) There was no medical evidence to justify the mother's position;
(h) It was not in the child's best interests for him to be separated out from the other children in his class in this manner, to be denied the opportunity to participate in school trips and activities, and to miss out on the corresponding learning experiences; and
(i) This behaviour occurred after the Order of Cohen J. dated July 15, 2016. I find it amounts to a material change in circumstances.
79To this I would add that even if the mother's withholding of the child from school trips and activities was ad hoc in nature or infrequent, the Court heard nothing from the mother to give it any comfort that the mother would not re-engage in such behaviour in the future. And as we are currently in the midst of the Covid-19 pandemic, the Court cannot know with any confidence that the mother would not do this again, once school operations return to normal, and when there are school trips and activities once more.
C. The Mother's Increasing and Disturbing Allegations
80The father argues that the mother's allegations used to be consistent, but they have become more varied in nature. He also says the mother has become increasingly "unhinged".
81At ¶ 13 of Cohen J.'s Judgment dated July 15, 2016, Cohen J. wrote:
In argument on the motion, the mother focused on purported violations of her human rights, and on harassment by the society as well as the court proceedings. In her affidavit/letter filed on the motion, the maternal grandmother endorses these concerns.
82Like with the medical evidence, it could also be argued that as Cohen J. had information before her about the mother's allegations and yet she still made an Order placing E. in the mother's primary care, no material change has therefore occurred. However, I agree with counsel for the father there are new allegations. But it is not just the proliferation of allegations that gives rise to a material change. Rather, it is the impact of these continuing and expanding allegations on E. that in my view meets the threshold. Further, the mother's continuing allegations and related behaviour has created difficulties, if not an outright inability, of outside agencies like the Society to maintain any oversight of her parenting of E. This too exposes E. to risk.
(1) The Mother Believes That the Child Suffered A Head Injury at School and that the Father's Partner May Have Poisoned the Child
83On a particular school day in the fall of 2018, the child fell while at his school. The school telephoned the father, and the father came to get the child and took him to the hospital.
84The mother alleges that the child suffered a "head injury". The medical evidence, and the father's testimony, reveals that the child did not suffer a head injury. Yet two years later, the mother remains fixated on discovering what caused the child to fall and suffer a head injury. She attributes nefarious motives and/or actions to the father and his partner, S.C.
85The mother suspects that S.C. put poison in E.'s food. She asked questions of S.C. in cross-examination, in an attempt to explore exactly what E. ate before the fall at school. She told the Court her theory about the poisoning.
86Not only that, the mother is further worried that the father and S.C. might do things to E. to render him disabled, or perhaps to even kill him, so that they may obtain insurance money. She said this to the Court.
87The mother tried to question S.C. about whether she might have poisoned her former spouse. And then, she wanted to question the paternal grandmother about whether her recently deceased younger brother died as a result of some exposure to S.C., and as a result of S.C. poisoning him.
88These are some of the bases upon which she has asked the Court to issue the restraining Order against S.C., to impose restrictions on the father's access and to make the Orders referred to above prohibiting the purchase of travel and life insurance. She elaborated that she wants the restraining Order too, because S.C. is part of the group of individuals who brought her before the Court, and that by testifying, S.C. caused her to experience stress.
89The mother has not accepted the medical evidence that her child did not have a head injury. She is instead engaging in wild theories about the cause of something that did not occur. I find that in itself to be a material change in circumstances. Moreover, by the mother believing that others, who have important relationships with E., are capable of harming and even murdering him, this places E.'s important relationships and his emotional well-being at risk, too.
(2) The Mother Refused to Have Internet to Aid the Child's Education During the Covid-19 School Closures Earlier This Year
90The father alleges that the mother refuses to have internet in her home. During the Covid-19 school shutdown at the end of the last school year (ie. between March and June, 2020), the father says that E. was unable to do school work while in his mother's care as a result, and so he had to step in.
91The mother has not specifically denied this. Indeed, the mother says in her affidavit of September 1, 2020 that she had been the victim of a cyber attack. But the mother mostly deflects this allegation of the father's, by saying that the child's educational needs were met otherwise. She says she told the child's teacher that she was instead working with him using her own "Canadian curriculum". I was not given any further details about exactly what this curriculum was, or how closely it approximated the school curriculum, or not.
92Even though the child was only seeing his father on weekends, after the Covid-19 school closures, the father began doing school work with E. on his weekends. The father says he coordinated his lesson plans with the teacher.
93On September 22, 2020, Weagant J. made a temporary order that if there was another lockdown or a quarantine within the child's school during this school year, then the child would have to reside with the father during the week.
94The mother's failure to follow the school curriculum, and instead to embark upon her own learning with E., without satisfying this Court as to the sufficiency of the content, and without any good reason for this, is a material change. This evidence reveals that the mother lacked the insight into E.'s educational needs, and it reveals her inability to meet those needs. By contrast, it reveals that the father stepped forward to fill in the void when needed.
(3) The Mother's Other Allegations About the Father
95The father says that the mother has made false allegations against him about domestic violence, drug use and mental health issues on his part. The fact that she has been making such allegations was borne out in her affidavits, in her questioning of the father and his other witnesses at this trial, and in her statements to the Court.
96For example, the mother has raised old complaints about the father. The mother believes that the father engaged in some fraudulent activity surrounding the child's birth certificate, many years ago. She referred to this many, many times in her affidavits and orally during the trial. I make no findings that this occurred. However, even if it did, this would have occurred prior to the date of Paulseth J.'s and Cohen J.'s Final Orders.
97The mother also accuses of cutting the child's finger nails too short back in 2014. I make no findings that this occurred. However, even if it did, this would have occurred prior to the date of Cohen J.'s Final Order. I note that the child is also considerably older now.
98It is true that the mother has not specifically accused the father of violence. However, she believes that there is a history of domestic violence within the father's family, or possibly within S.C.'s family. Indeed, during her cross-examination of the father, the mother asked him whether there was a history domestic violence within his family. She also suggested that there might have been domestic violence between S.C. and her former partner, too. She wanted to ask the paternal grandmother where there was domestic violence between her and her former spouse. I did not allow her to pursue the latter, when I realized/learned that the paternal grandmother and her former spouse had separated some 20 plus years ago.
99The mother believes or wanted to explore whether the father takes medication that impairs his judgment. However, the only evidence that I heard about any medical condition from which the father suffers is that when he was in his 20s, the father had a seizure. He was prescribed and takes medication for that. He told me that he has not had a seizure since that time. He is currently 51 years old.
100Related to this, the mother asked both the father and S.C. whether S.C.'s former spouse (and father of her children (most of whom are now adults)) is aware that the father and E. have been visiting her home. She seemed to be suggesting that S.C. was acting irresponsibly by allowing the father and E. to visit, without first obtaining the permission of her former spouse, or at least by not bringing it to his attention.
101In the end, the mother seeks to impose restrictions on the father's relationship with E., based on these other allegations. There is no basis for the Court to order such a thing.
(4) The Mother's Allegations About Others Involved in the Justice System, and Her Behaviour During This Proceeding
102Seemingly similar to the statements she made when Cohen J. last considered this matter, the mother now says in her affidavit material that she and her family consider the behaviour of individuals who claim that she suffers from untreated mental health issues to be a violation of the Constitution Act, the Canadian Charter of Rights and Freedoms, harassment and hate crimes towards her family. However, what has become apparent to this Court at this time, is that virtually every professional that has come into contact with this family, has been the subject of such a complaint.
103For example, the mother has made a number of comments about Mr. Sherr in her affidavits. She also reported Mr. Sherr to the Law Society of Ontario.
104In its letter dated September 19, 2019, the Law Society wrote that the mother had accused Mr. Sherr of violating the Constitution Act, the Canadian Charter of Rights and Freedoms, and that his behaviour constituted harassment and hate crimes. She wanted Mr. Sherr to pay 50% of his annual income to Sickkids as a penalty for his alleged professional misconduct. The Law Society dismissed the mother's complaint, and closed its file.
105The mother complained to the Ombudsman about the school, and about the Children's Aid Society. By undated letter, she wrote that the school and the society talked to the child"who had injuries in the school" and created a "stressful time for him". She alleges that this too was a violation of the Constitution Act, the Canadian Charter of Frights and Freedoms, and was "an act of cruelty and a financial crime because those individuals got paid for their actions on public funds". The letter of complaint also states that she had complained to her MPP in addition, but that the MPP did not respond.
106The mother wrote a separate letter of complaint to the Children's Aid Society of Toronto dated December 3, 2019. To the Society, the mother said she felt discriminated and harassed by Justice Weagant. She went on to complain that the Society, by coming to the child's school to talk to him, created a situation of the child being left alone with a child protection worker. That, she said, created stress for him, and she went on to allege that the child could have been subjected to a sexual assault by the worker. Her complaint letter concludes by saying that "we do not give you permission to approach our child and any attempt to do so our family will consider those actions as discrimination, kidnapping and hate crime towards our family".
107On November 5, 2019, Weagant J. requested the involvement of the Children's Lawyer. But according to the Report of the clinical investigator, Shari Burrows, dated January 8, 2020, the mother refused to participate in the Children's Lawyer's investigation. The mother refused to talk to Ms. Burrows, apart from saying that she had sent a complaint letter to the Office of the Children's Lawyer. I was not given a copy of this complaint letter during this trial.
108In her affidavit of September 1, 2020, the mother asked for an Order that the Court "close the court case". She said she was opposed to Justice Weagant's Order of August 14, 2019 "due to his hate and discrimination towards [her] as the mother of the child". She made similar statements in her affidavit of December 1, 2020.
109The mother has accused the father and his partner of trying to kidnap the child by proceeding with this court case during Covid-19. And at the conclusion of the trial, the mother seemed to warn this Court that if it granted the father sole custody, she would consider that to be an act of kidnapping, also. She told the Court she would not allow such a kidnapping to occur. When the Court inquired, multiple times, as to what the mother meant by that and what, if anything, she was planning to do, the mother told the Court that she would take the matter up with the appropriate authorities.
110Concerned about this child after having reviewed and heard all this, and after having taken a short time to reflect on this matter, I released the aforementioned handwritten Endorsement dated December 4, 2020, directing that the child was to remain with his father at the end of his upcoming access visit, pending the release of this Judgment.
111Cohen J.'s joint custody Order of July 15, 2016 was premised on there being oversight and protective factors in place to aid the mother in her parenting of E. and to ensure his well-being in the face of the mother's troubled mental health. It is abundantly clear that the mother is refusing to work with the father, and she is unwilling to even engage in discussions with any third parties that have become involved with this family. It appears to the Court that over the past two years or so, whenever a professional comes into contact with the mother, be it a lawyer, a social worker, a school teacher, or the Court, there is a complaint that follows. The protective factors and the oversight upon which Cohen J.'s July 15, 2016 Order was premised, are now ineffective.
D. The Impact on the Child
112It would have been very helpful to have had some evidence from the Office of the Children's Lawyer about this family. However, that did not occur due to the mother's refusal to cooperate with its investigation. Nevertheless, the Court has evidence about the child from his father, from the paternal grandmother and from S.C. There is also some albeit limited, but problematic evidence about the child from the mother, which I address in this part of my Judgment, too.
113At the time of Cohen J.'s July 15, 2016 Order, the child was 4 years old. He is now 8 ½. The evidence reveals that the mother's behaviour is now impacting him in a more profound way, whereas his relationship with his father appears to have strengthened and is a source of refuge and comfort for him.
114In his trial affidavit, the father says that E. is always happy to see him when he picks him up on Fridays. He says E. will "burst out" of the mother's building and rush to his car. The father does not recall the last time he saw E. have a warm goodbye exchange with his mother at the outset of a visit with his father.
115The father says that E. refers to his house with the paternal grandmother as "home". The father says that E. craves his attention during visits. The father helps him with his homework, they plan activities together on weekends, and they go to visit S.C. together.
116The paternal grandmother describes her home as warm and happy, and full of chatter, fun and energy. She describes E.'s relationship with his father as a very good one, and says that E. looks up to, and respects and loves his father. She also tells the Court that she loves E. "to pieces" herself. And, she says that there are two dogs and two parrots in her home, that E. loves as well.
117S.C. describes her partner as a "caring and compassionate person and father". She says that it is "obvious to [her] that [the father] would do anything for [E.]".
118I find that E. is struggling under the current parenting arrangement. In his trial affidavit, the father deposes that he has noticed E.'s mental health to be deteriorating. He explains that E. becomes anxious and fidgety as his weekends with his father come to an end. He says that E. has become emotional, and says things like he does not want to return to his mother's home.
119The father says that E. has started to say that he "hates" his mother, and that living with her is a "nightmare". The paternal grandmother has observed similar behaviour and statements on the part of E.
120The father even explains that during a weekend visit in the summer of 2019, E. mused about wanting to kill himself, twice. He says that he was able to take E. aside and talk to him about this after the first statement, and E. calmed down afterwards. After the second statement, E. seemed to calm down after eating some lunch. The father says that E. has not made such a statement since that time.
121About one week after the child made this statement, the father sent an email to the same Society worker who had authored the aforementioned letter about the mother's behaviour vis à vis the school. The father sought out her support and assistance.
122As the worker was on vacation, the intake supervisor responded to the father by email, and basically told the father that the Society's file was closed. She indicated that he could contact the screening department, which would then determine whether to get re-involved or not, but her email reads to the Court somewhat as if she was discouraging the father to do this. For example, she commented that the Society had not been successful in engaging with the mother in the past.
123In the same email, the intake supervisor did recommend to the father that he connect with the Etobicoke Children's Centre or the George Hull Centre for counselling for E., including possibly accessing the Etobicoke Children's Centre walk-in service. Unfortunately, the father did not do this, again relying on the fact that things seemed to calm down after the child made these statements. (Whether he would have been empowered to arrange this without the mother's cooperation under the governing joint custody Order is quite another matter).
124At a case conference held on November 5, 2019, the father disclosed to the Court the child's earlier statements about self-harm. According to the Endorsement of that date, Weagant J. made a referral to the Children's Aid Society. There is no detailed evidence before the Court as to what, if anything, the Society did in furtherance of the Court's report to it. The father just says that he was informed that the Society did not have protection concerns. Related to this, the father also told the Court that when he phoned the Society from time to time in the past, not much else happened.
125The mother chose not to provide the Court with very much evidence about her relationship with the child, instead choosing, like she apparently did when she was before Cohen J., to focus on alleged violations of her human rights. The mother also chose not to have the maternal grandmother testify at this trial, as she would not allow her to submit to cross-examination. This is a significant and problematic omission from the mother, since the maternal grandmother was identified by the Society back in 2016 to have been a protective factor (this is explained in Cohen J.'s July 15, 2016). As such, I have no evidence about how, if at all, the maternal grandmother is behaving in a protective way for E. To the contrary, from what I do know, it appears that she is enabling the mother. For example, she has co-signed some of the mother's complaint letters. And as I will explain below, she also participated with the mother in a mid-trial interview of the child to conscript evidence for the mother to use when the trial resumed.
126Regarding the evidence about the child's statements about self-harm, the mother did not provide any evidence of any steps that she took to address that either. Instead, she chose to criticize the father for his handling of the incident. During her evidence in chief and in her cross-examination of the father, she focused on the fact that the father did not tell her about it right away in a communication book they use.
127The father admits that he did not use the book, but maintained that he telephoned the mother the week after the statement. I believe him. What became clear to the Court was that the mother was more focused on the method of communication that the father used, rather than the substance of the message. And so the mother understands, it was perfectly appropriate for the father to talk to her about this important situation orally, rather than just writing it in book.
E. Analysis Regarding E.'s Best Interests
128As I have found a number of material changes in circumstances have occurred since Justice Cohen's July 15, 2016 Final Order, I now turn to the factors in section 24(2) of the Children's Law Reform Act. I will apply those factors to the evidence before the Court. In so doing, I have in mind and am applying the other legal principles, which I have already referred to above.
129Having regard to section 24(2)(a), I accept that both parents love E. Having regard to sections 24(2)(a) and (h), I find that his paternal grandmother and S.C. love him too. I did not hear from the maternal grandmother, so I make no findings about her.
130I accept that E. loves these adults in his life. His statement that he "hates" his mother is probably more a reflection of his age and the fact that he is in distress and is struggling with this situation, rather than an expression his true feelings. It will be important that the father access counselling for E. immediately so that he can process what he has experienced in an age appropriate way, and so that he will have support regarding his future relationship with his mother.
131Pursuant to sections 24(2)(b) and 64 of the Children's Law Reform Act, the Court is to consider the child's views and preferences, per section 24(2)(b) if they can be reasonably ascertained, and per section 64, to the extent that the child may reasonably express them.
132It is here where the mother's blocking of the Children's Lawyer from undertaking an investigation is particularly problematic. The Court is without third party evidence of the child's views and preferences. This is directly the fault of the mother as a result of her refusal to engage with Ms. Burrows from the Children's Lawyer's Office.
133I was not asked to conduct a judicial interview under section 64 of the Children's Law Reform Act. I say nothing more about whether that would have been appropriate or not.
134And to make matters worse, in this context the mother and the maternal grandmother then saw fit to interview the child themselves, during the evening after the first day of the trial, before the trial resumed on the second day, so that the mother would have some child hearsay evidence to attempt to introduce. The mother claimed that this was done in a manner that was devoid of pressure. I take no comfort in that statement from her.
135In his note, the child writes that he wanted to live with his mom and see his dad on weekends. He wrote that he likes to go to school, he likes his teacher and his friends in his school. He also wrote "I do not want to be around S.C."
136Above, I indicated that the child's handwritten note was entered into evidence as Exhibit 5, but that the father objected to the Court accepting it for the truth of its contents. I place absolutely no weight on the mother's note as an expression of the child's views and preferences. The manner in which it was taken is suspicious and inappropriate. And like other areas of the evidence, the mother obstructed Mr. Sherr's attempt to ask questions of her about it in cross-examination, on the voir dire. Similarly, the mother insulated her mother, who was involved in the taking of this statement, from cross-examination by choosing not to call her to testify.
137The note is, however, more evidence of the mother's lack of insight and judgment. It demonstrates that she thought it was appropriate and even preferable to interview the child herself, rather than allowing the Children's Lawyer to conduct a thorough investigation out of which such information could have been placed before the Court, in its full context.
138I find the father's evidence about the child, summarized above, to be more reliable. The father and his witnesses have described their observations of the child during access visits, and each has placed statements that the child made into the context in which they were made. The mother chose not to cross-examine the father on these topics, other than to criticize the father for the manner in which he informed her about the child's statement about self-harming.
139To be clear, given the child's age, his wishes would not tip the scales one way or the other respecting the Order that I intend to make. But I do find the father's evidence about the child to be illustrative of the child's state of mind, that the child is in distress, and that is relevant to the remedy that the Court intends to Order.
140With regards to the factors in section 24(2)(c)-(g) of the Children's Law Reform Act, the custodial and residential arrangement set out in Cohen J.'s Order is no longer appropriate or in his best interests.
141Mr. Sherr submitted that this case has been teetering on the brink of raising protection concerns. I would take a stronger position on that point. Based on what I have heard and reviewed, the Court is concerned that the child was being exposed to a risk of harm in the mother's care. Although I acknowledge that neither side called any evidence from the Society and so the Society was not given an opportunity to explain its apparent inaction in the face of this, the Court is still left wondering why the Society has not yet taken a more interventionist approach, particularly after the father reached out in the summer of 2019, and then again after Weagant J. then made a referral to it in the fall of 2019.
142Regardless, as this is not a child protection proceeding, it is not a child protection legal test that applies to this Court's determination. It is of course the best interests of the child test in section 24(2) that the Court must apply, since I have found numerous material changes in circumstances have occurred. The Court's application of the best interests' test militates in favour of a change to the child's custody and residential arrangements.
143The mother is clearly mentally unwell. She needs to address this. It is no longer acceptable, nor healthy for E., nor in his best interests, to leave him in his mother's primary care, while she refuses to deal with her mental health with the prospect of a temporary change to custody or decision making existing as a possible solution if things get worse. The protective factors that were once adequate are no longer working. The Court's attempts to manage issues as they arose by way of temporary orders are no longer sufficient, either.
144The father says he is ready and able to be a full-time parent. He has already demonstrated the ability to step up and take action regarding E.'s education and health. And he has made representations to the Court about being willing to support the child's relationship with his mother going forward, in whatever form it might take.
F. The Father's Plan Respecting the Mother's Access
145The Court is not prepared to order either of the father's positions respecting access.
146It is not appropriate for the Court to make an Order leaving it to E. to decide about his access with his mother. E.'s reactions so far, as expressed by the father and his witnesses, are already that he is not coping respecting his relationship with his mother. This young boy is not capable of navigating this on his own, and he should not have to.
147Likewise, the Court is concerned about making an order for specified access between the mother and the child, such as on alternating weekends as also suggested by the father in the alternative. It may be that the child can spend weekends with his mother provided that it is safe and healthy for him to do so, but there may be times where that is going to be inappropriate. Currently, the child is having adverse reactions to returning to his mother's care after visits.
148Not can this Court, as the father has requested, appoint the Children's Lawyer to aid respecting the development of a new parenting schedule, or pending some kind of review. The Children's Lawyer can only be appointed within a pending proceeding and for the purposes set out in the legislation. I have heard a trial, not an interim motion. I have been asked to make a Final Order. There will no longer be a proceeding in which to appoint the Children's Lawyer. And at this point, I question the utility of doing this, when there is already evidence of the mother refused to work cooperatively with the Children's Lawyer.
149I will make an Order, however, that if the mother launches a further proceeding respecting her access, she will have to commit at the outset of it to working cooperatively with the Children's Lawyer. I do so in anticipation that the Court will want to reappoint it in that proceeding.
150Consequently, the only real option that arose out of the various positions placed before the Court, is for the Court to make an order for access in the father's discretion. In making that Order, the Court accepts the father's statement that he does not intend to restrict or to sever E.'s relationship with his mother. There was no evidence before me to suggest that the father was being disingenuous about this, or that he would not allow E. to see his mother. I would note too, that in cross-examination the paternal grandmother also acknowledged to the mother, more than once, that she "is E.'s mother", and that she "will always will be the mother". I am trusting the paternal grandmother (and S.C.) to understand the importance of the mother's role, and that they will help the father support E.'s relationship with his mother, provided that it is safe and healthy.
151E.'s access to his mother must be safe and healthy. Therefore, in addition to requiring the father to enrol the child in counselling, I am directing that this Judgment be sent to the Children's Aid Society of Toronto. I am specifically requesting that the Society support the father in accessing counselling for E., and that it help him to manage the mother's access, including considering to provide some supervised access, if necessary.
152I further ask that the Society consider any protection concerns that might arise in connection with access, once it reviews this Judgment.
153In making the Orders set out below, including an order for counselling, I note that I inquired with the father as to whether he was prepared to enrol E.R.V.M. into counselling. He agreed to do so. As the child's sole custodial parent, he will now have the legal authority to arrange this, and it is the Court's expectation that he take immediate steps to set this up. By the same token, the Court is mindful that there may be wait lists and other limitations now due to Covid-19.
154In conclusion, the Court rejects the mother's request that the Court reinstate the Order of Paulseth J. dated August 21, 2013, and that it impose restrictions on the father's contact with the child, and the Court rejects the mother's oral request for a restraining Order.
155Again, I have asked the Society to consider this judgment and the Society may see fit to take steps. But separately, I intend to set some parameters in the event of a future proceeding under the Children's Law Reform Act. I am doing so to ensure that in any future proceeding there is a current assessment of the mother's mental health before the Court, and to try to secure some cooperation regarding a future Children's Lawyer appointment. Before making such Orders, I raised these parameters with the parties in closing argument, and heard submissions from them both.
PART VII: ORDER
156Based on the foregoing, I make the following Orders:
(a) The father shall have sole custody of the child, E.R.V.M;
(b) The child shall reside primarily with his father;
(c) The mother shall have the right to make inquiries about and to receive the information about the child set out in section 20(5) of the Children's Law Reform Act;
(d) The father shall be permitted to apply for a passport for the child, E.R.V.M., without the mother's consent or signature;
(e) The father shall retain possession of the child's passport;
(f) The father shall be at liberty to travel out of Canada with the child, without the mother's consent;
(g) The mother shall not remove the child from the province of Ontario without the father's written consent or a Court Order;
(h) The father is free to provide a copy of this Order to Passport Canada and to the Canada Border Services Agency;
(i) Access between the child and his mother shall be in the father's discretion;
(j) The father shall enrol the child in counselling to ensure that the child is supported following the change in his primary residence, the other changes that will come with this decision, and regarding his future relationship with his mother;
(k) The father is to provide a copy of this Judgment to the social worker and the supervisor from the Children's Aid Society with whom he has been in prior contact. He shall seek an appropriate referral for counselling from the worker/supervisor, and any other resources to assist him in parenting E.R.V.M. under the circumstances. A copy of this Judgment shall also be provided to the therapist whom the father engages to support E.R.V.M. in accordance with (j) above;
(l) The Court directs that appropriate persons at the Society read this Judgment. The Court requests that the Society support the father respecting managing the child's access with his mother. This request includes a request that it consider providing some supervised access, if necessary. And it includes a request that the Society shall consider whether any protection concerns might arise in connection with how the father decides to implement access. The father will need to know this from the Society;
(m) The access terms of this Order may be reviewed by either party in the future. I do not intend to impose a timeframe before or after which the review may be brought. However, if the mother initiates a review, it must be accompanied by a comprehensive mental health assessment from a psychiatrist, a completed intake form for the Office of the Children's Lawyer (as the Court may wish to appoint the Children's Lawyer in a future proceeding), and a signed undertaking that she will comply with any investigation of the Office of the Children's Lawyer;
(n) In the event of a future proceeding, the Court recommends that the parties obtain and place admissible evidence before the Court as to the Society's involvement after the date of this decision, and any positions it may take;
(o) During submissions, counsel for the father asked the Court to terminate the father's child support. The father still pays child support to the mother pursuant to the Consent Order of Paulseth J. dated August 21, 2013. However, when the father amended his Motion to Change in early 2020, he did not make any claims respecting child support. The Court is not prepared to do so in the absence of a proceeding before it, on proper notice to the mother;
(p) Therefore, as there shall be a further date set before me to address costs, child support may be dealt with at that time. The next date shall be on March 15, 2021 at 2 PM, to proceed in person (subject to further direction if appropriate). If the father intends to proceed with a variation of the child support Order, then he is to serve a Motion to Change and the accompanying documents upon the mother by January 15, 2021. The mother has until February 15, 2021 to respond. If the father does this and the matter can be dealt with summarily on the next court date, then I will address it. Otherwise, it will have to be dealt with in due course. And if the father does not follow the procedure that I have set out, then he is of course free to bring a Motion to Change child support in the ordinary course at a time of his choosing;
(q) If either party seeks costs, then costs may be argued orally on the next return date, too. Each party shall provide a Bill of Costs, any Offers to Settle and any applicable case law. This is to be done 7 days before the return date (ie. on or before March 8, 2021); and
(r) The father's counsel may submit the draft Order containing these terms to my attention by way of email to the judicial secretary. The mother's approval as to form and content is dispensed with.
Released: December 7, 2020
Signed: Justice Alex Finlayson