ONTARIO COURT OF JUSTICE
BETWEEN:
B. L. O.
Applicant father
— AND —
L. J. B.
Respondent mother
Before Justice Sheilagh O’Connell
Heard on September 14, 15, 16, 17, 20, 21, 22, and 28, 2021
Reasons for Judgment released on May 6, 2022
B.L.O. .............................................................................................................. Acting in person
Jean Hyndman and Briar Downey for L.J. B.
O’CONNELL J.:
Part 1 – Introduction:
1This eight-day trial concerned decision-making responsibility, parenting time and child support regarding the parties’ only daughter, M., who is three years old.
2M. has been described by everyone as an intelligent, lively, engaging, and happy child who is loved by both parents very much. Since March of 2020, she has lived with her parents in a shared parenting schedule known as a “2-2-3” schedule.
3B.L.O., the applicant father, seeks an order for sole decision-making responsibility and that M. be placed in his primary residence from Monday to Friday and with her mother on weekends. Prior to M. starting school, he seeks an order that M. reside with him from Sunday to Thursday during the week and with her mother from Thursday to Sunday. He also seeks an order that M. formally convert to Judaism as soon as possible.
4L.J.B., the respondent mother, seeks an order that the parents have joint decision-making responsibility, but if the parties cannot agree, then she should make the final decision following a comprehensive consultation process. She further seeks an order that the current shared parenting schedule continue, subject to minor modifications, and that M. attend school in the mother’s neighbourhood when she reaches school age.
5Both parents also seek a specified holiday schedule, including religious holidays, as well as other incidents of travel and communication.
6The father further seeks an order that no child support be payable while the parties continue to share parenting of M. When M. begins to live primarily with him, he seeks child support from the mother in accordance with the Child Support Guidelines.
7The mother seeks child support based on the shared parenting schedule as well as a proportional sharing of section 7 expenses. She also wants income to be imputed to the father at a minimum of $30,000.00 per annum.
8The father chose to represent himself at trial. Given that he was self-represented, the court was guided by the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, as it applies to family law cases1.
9These principles include the following:
Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating.
Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.2
10The trial was conducted by video, in accordance with the court’s pandemic directive, and with the parties’ agreement. The court heard sixteen witnesses in this trial, including the mother and father. The father called five witnesses. The mother called nine witnesses. Most of the direct evidence was by way of affidavit, subject to cross-examination, with the exception of professional witnesses who provided oral evidence in both their direct and cross-examinations.
11The court also heard from Ms Shari Burrows, a clinical investigator from the Office of the Children’s Lawyer, who made recommendations regarding the parenting issues following the completion of a “Section 112” social work investigation and report, filed as evidence in this trial.
Part 2 – Issues:
12The main issues for this court to decide are:
What decision making order is in M.’s best interests?
What parenting schedule is in M.’s best interests?
How should the parents communicate?
Is child support payable by either party, and if so, in what amount?
Part 3 – Overview and Litigation History:
13The father is 48 years old. The mother is 44 years old.
14The father describes himself as an orthotherapist, which is a natural therapy combining massage therapy and movement therapy, as well as an accupressurist and Hatha Yoga teacher. Following a shoulder injury in 2018, he states that he had been unable to return to work doing massage therapy full-time and he is developing a business plan to teach massage therapy to aestheticians. During his recovery from the shoulder injury and surgery, his main source of income was Ontario Works.
15At the time of the trial, the father states that his main source of income was the CERB benefit, one-half of the child tax benefits, and some minimal part-time income from massages. He states that he put his business plan on hold due to Covid and that he is able to focus on being a full-time father to M. as well as to her half-brother from a subsequent relationship.
16The mother is a Thai massage therapist and also practices yoga. She stopped working full-time when she was approximately seven months pregnant with M. and has been a full-time mother for M. Her source of income is Ontario Works, one-half of the child tax benefits and some part-time income from massages and landscaping.
17The mother is a recovering alcoholic and has a history of depression. The evidence is not disputed that she has maintained her sobriety since January 24, 2018, a period of almost four years at the time of trial. She maintains her sobriety with a strong support system, including A.A., support from her sponsor, and counselling.
18M. is the mother’s only child. The father has a son from a subsequent relationship following the parties’ separation. This child was born on […], 2020.
19The mother lives alone with M. in a one-bedroom apartment in a house in the west-end area of Toronto.
20The father lives alone with M., in a two-bedroom apartment in the east-end area of Toronto, although his younger son (2 years old) from a subsequent relationship also spends time with him there.
21The father is currently involved in separate litigation with the mother of his younger son. The applicant mother in that case testified in this trial.
22The father was raised in the Jewish faith. He states that he was raised in a conservative, Orthodox Jewish family, but he now identifies as a member of the Reform Jewish community. He would like M. convert to Judaism formally as soon as possible after this trial, with a naming ceremony so that she can fully participate in Jewish holidays, attend Jewish summer camp and have a Bat Mitzvah.
23The mother describes herself as a spiritual person but not a member of an organized religion. She states that when she met the father, he told her that he had abandoned his religion in his teen years and declared himself an atheist. According to the mother, the father did not practice religion when they were together and that they were both spiritual in the “yoga sense”. The father denies this and states that he told the mother that he “had stepped away from being an Orthodox Jew and he is now Reformed.”
24The parties met in Toronto at a ‘drum circle’ that they both attended on Sunday afternoons. This is an outdoor gathering that occurs in the warm weather where people dance and drum together. Both parties shared common interests in drumming, yoga, and massage therapy. The mother states that they also shared a common interest in spirituality, but the father denies this.
25The parties began living together in June or August of 2017. (The mother says June and the father says August) after dating for several months. The mother told the father about her past struggles with alcohol and depression before they started living together. They had many discussions about this. The mother generally maintained sobriety, with some brief relapses at the beginning of the parties’ cohabitation but was abstinent seven months before their first but not final separation.
26The mother became pregnant on or about September of 2018. The parties were married on April 15, 2018. M. was born on […], 2018.
27On October 25, 2018, the parties separated on a final basis when the mother left the home with M. while the father was at work. M. was approximately four months old.
28The mother states that although the father was never physically abusive towards her, he was verbally abusive, aggressive, and very controlling and he could be quite threatening. She described him as financially and emotionally abusive as well. The father denies this. He describes himself as a “passionate person” and states that he is not emotionally or verbally abusive and that there was no reasonable basis for the mother to fear for her safety on his account.
29The mother states that she separated from the father previously in November of 2017, while she was pregnant with M., because of these issues. The mother states that after she became pregnant, the father became very religious and began to insist that the child be circumcised if he was a boy. The mother did not agree, and they argued over this. She states that the father was aggressive, angry, and forceful regarding this topic and told her that he would rather his son be aborted than have a son who is not circumcised.
30During the first separation in November of 2017, the mother briefly relapsed and started drinking from November 2017 until January of 2018. It is the mother’s evidence that she was not drinking heavily but did drink two or three glasses of wine every two or three days. The mother was pregnant and was aware of the medical advice that no amount of alcohol is safe, so she sought out treatment to regain total abstinence.
31The mother obtained treatment at Women’s College Hospital (WCH) upon referral by her family doctor, Dr. Susan Shepherd. She was treated by an addiction psychiatrist and a psychotherapist. She also was referred to a psychiatrist at the Reproductive Life Stages Program at WCH. This is a one-year intensive program during which she was assessed and prepared for services and provided with tools to maintain sobriety. The mother completed this program successfully.
32The mother also actively engaged in treatment with the Mothercraft program at Breaking the Cycle, the Family Service Association, and Alcoholics Anonymous, where she found a sponsor. Three of the mother’s counsellors, her AA sponsor, and her family doctor testified in this trial, and the reports and psychiatric records from Women’s College hospital were admitted on consent. She continues to have a sponsor and attends AA meetings two to three times a week.
33The mother did not tell the father about her relapse during their first separation because she was afraid that the father would be very upset and angry with her, given her pregnancy. The father states that he did not find out about this relapse and the child’s prenatal exposure to alcohol until the disclosure meeting with the Office of the Children’s Lawyer in January of 2020. The father states that he was devastated upon learning this and since that time, he has been extremely vigilant in monitoring the child for potential signs of Fetal Alcohol Spectrum Disorder (“FASD”).
34The mother agreed to reconcile with the father in the spring of 2018 after he said that he would go for counseling. They attended two counselling sessions together and the mother moved back into the father’s apartment in April of 2018, shortly before their marriage. M. was born eight weeks later.
35The mother states that although the father had promised to continue to attend counselling to help change his behaviour, he did not, and in fact became more controlling and verbally abusive after M. was born. This caused a lot of conflict which frequently happened in front of the child.
36The father does not agree. The parties attended two counselling sessions in September of 2018 shortly before the separation. According to the mother, the father yelled at her during the sessions and was angry that she was not contributing financially.
37The mother stopped working when she was approximately seven and a half months pregnant, around the time that the parties were married. She was not eligible for maternity benefits or employment insurance but received Ontario Works (“O.W.”). According to the mother, the father encouraged the mother to stop working, telling her that he did not want to hurt or exert herself while she was pregnant and that he could and wanted to take care of them.
38The mother states that within a short time, however, the father began to get angry about her lack of contribution to the household expenses and became financially controlling. He was very critical of her spending habits and became angry if she spent more than he thought she deserved. He eventually agreed to give her an allowance of $50.00 per week.
39The father agrees that he wanted the mother to stop working when she was pregnant but denies that he got angry with her over money. He agrees that that she had to ask for him money but that was because it was “his money”. He would ask her why she needed it. He agrees that he started giving her allowance, but he felt that she should have been contributing more from her O.W. and Canada Tax Benefits.
40The father states that while it is true that money was a source of conflict in their relationship, this is because the mother had a very large debt load when they met, and she did not manage her money well. He is a careful budgeter who pays his bills as soon as they come in. They agreed that they would prioritize paying off the mother’s debts.
41The father also denies that the mother was financially dependent on him. He states that the mother received Ontario Works and the Canada Tax Child Benefit. He paid all of the household expenses except the rent which the father states that they agreed to split equally. The rent was $1,800.00 per month, and the mother agreed to pay $900.00 monthly from her OW and Canada Child Tax Benefits. The mother states that this left her with nothing.
42The father also wanted the mother to give him the Canada Child Tax Benefit for a RESP, which she refused, and this was also a source of conflict. In the end, she gave him around $500.00.
M.’s Birth:
43The mother states that after M. was born, the father increased his efforts to isolate her socially and told her that she should not have any visitors. The mother states that she tried to explain to the father that she needed help and support during the first few weeks after M.’s birth and sent him a copy of a handout that she had received at a parenting class called “The First Forty Days”. The father responded by saying that the mother had done a “good highlight job” and told her to “chill out about your support and your rush to get it. You are supported.” The mother states that the father misinterpreted the handout and tried to limit the visitors to only those that he approved.
44The father denies this and states that they both agreed that the mother and child would limit visits for the first 40 days. He denied that he wanted no visits unless approved by him.
45The mother states that she did not feel supported by the father and that throughout their cohabitation following M.’s birth (approximately 4 months), she was the primary caregiver. M. was exclusively breastfed until she was six months old, at which time she was introduced to solid food, but continued to be breastfed for both nourishment and comfort.
46The father disagrees that he was not involved in the direct care of M. during that time and states that he bathed M. and changed diapers frequently. According to the mother, the father generally felt that bathing and diaper-changing and other physical care was her job. The father testified that the mother “spent most of the time lying in bed with the child.”
47The mother states that although the father was infrequently involved in the direct care of the child while they were together, he was very critical of the mother’s care and made statements that she was doing things wrong, or that there was something wrong with the baby. He could not understand why she did not get things done “like other mothers”, when the baby was asleep. The father denies this.
48The father went to Ottawa on [...], eight days after M. was born, for a period of four or five days, and again from July 26 to July 29, 2018. The maternal grandmother came to stay for the first two weeks after M.’s birth and when the father was away the second time as well. Although the father was away, he was upset when he thought the mother had other visitors to the home based on the mother’s Facebook posts that he followed while he was away. He questioned the mother about who else was visiting. The mother did not have any visitors other than her mother and one friend that the father had permitted to come to the apartment. The Facebook posts were references to people bringing food to the door.
49The father agrees that he was upset when he saw the mother’s Facebook post that suggested their home “was now open to visitors” while he was in Ottawa. He states that this was against what they had agreed to during the first 40 days after birth. He wanted to “nest” quietly at home with the mother and child so that they could “bond” together as a family. The father states that he had to go to Ottawa because he had regular massage clients there. He disagrees that he was trying to control the mother.
The Final Separation:
50The father states that the mother took M. and left the home on October 25, 2018, with no advance warning. He returned home from work late that evening to find the apartment in disarray and no sign of the mother or child. He was very concerned for their safety and called the police and the children’s aid society. He states that neither the police or the children’s aid society disclosed any allegations of family violence, but they refused to disclose the mother and M.’s whereabouts to him.
51The mother states that following two incidents, one on October 17, 2018, when the father became very angry when she tried to suggest that he go to counselling and then again on October 24, 2018, she decided that the father was not going to change and that she could no longer tolerate his behaviour. On both occasions, the father was yelling in anger at the mother. M. was in the mother’s arms during the first incident and sleeping but wakened during the second.
52The father denied yelling at the mother during those incidents. He agreed that he told her that he was not going back to the counsellor she wanted because that counsellor was not the right fit, but he did not agree with “what she was trying to program into our relationship.” The father denies ever yelling and testified that the mother perceived “any words of negativity as yelling.”
53The mother described feeling very threatened and fearful. Although the father was never physically abusive, the mother described feeling intimidated by the father and feared that he could become physically violent. She was also concerned about the impact on the baby.
54The father denies being angry and aggressive towards the mother in the presence of the baby or otherwise. He describes himself as a “passionate” person, but not angry or verbally abusive, this is only the mother’s experience given her mental health issues. The father states that he was also in shock at the separation because on the same day that the mother left, they had had sexual relations and were loving and intimate with each other.
55The mother decided to leave the apartment when the father was at work because she wanted to avoid any conflict with him in front of the baby. She spoke to her counsellors at Breaking the Cycle, who provided her with assistance, and she enlisted the help of two of her friends. They helped her take her personal belongings, some of M.’s clothes and her stroller.
56The mother sent the father a text the same evening of her departure advising him that their relationship was not working, that she and the baby were staying elsewhere that night and that she would be in touch the next day. The mother stated that the father was well aware that she had several friends who would open their homes to her.
57The mother’s friend Kurtiss Trowbridge, who helped the mother leave, also exchanged several texts with the father that evening. He advised the father that the mother and baby were safe and that they were staying with a friend.
58The father called the police and reported that the mother had left unexpectedly with the baby and that she may be in danger. The police contacted the mother and she provided them with her address. Officers attended and observed M. to be content and in good health.
59Following the separation, father made several reports to the police and the Children’s Aid Society alleging that the mother was homeless, mentally ill, struggling with alcoholism, and that the child was at risk in her care. It is not disputed that the Children’s Aid Society and the police investigated all of these reports and did not have any protection concerns regarding the mother.
60After the separation, the mother and child lived for a short period of time with her AA sponsor in a house in Newmarket, however, she moved back to Toronto and the parties worked on a gradual expansion of the father’s parenting time, at first with the help of the children’s aid society, and then through the litigation process.
Litigation History:
61The father brought an ex parte urgent motion (without notice to the mother) on December 7, 2018, seeking custody of M. and an order that the child not be removed from Toronto. In his supporting affidavit, the father alleged that M. was at risk in the mother’s care because she homeless and struggling with mental health issues and alcoholism. The father also alleged that the mother was planning to permanently relocate with M. to Prince Edward Island, where the maternal grandmother resided, who also had mental health issues. M. was five months old at this time and still breastfeeding.
62On December 7, 2018, Justice Brian Weagant ordered, on a temporary without prejudice basis, that the father have sole custody of the child and that the mother not remove the child from the City of Toronto. The motion was adjourned to December 19, 2018, before Justice Alex Finlayson.
63Although the father disclosed that the police and the children’s aid society were involved in his motion without notice, he did not disclose that the children’s aid society had thoroughly investigated the father’s allegations and did not have any concerns regarding the mother’s sobriety and mental health. The child protection worker had also visited the mother’s accommodations in Toronto, as did the police at the father’s request, and had no concerns. Both the society and the police declined to tell the father where the mother was residing. The mother and father were in regular contact.
64At the time that he brought his ex parte motion, the father was having semi-supervised visits with the child at the Yonge Street Mission, following earlier supervised visits at the Children’s Aid Society which were very positive. The mother did want to visit her mother with the child in Prince Edward Island for the Christmas holidays. She advised the father that she planned to spend Christmas with M. and her mother. She states that she had no intention of relocating to Prince Edward Island because all of her supports are in Toronto.
65On December 19, 2018, the motion returned before Justice Finlayson. The mother had retained counsel and filed responding materials. On consent, Justice Finlayson set aside the temporary without prejudice order granting the father sole custody. Neither party was permitted to remove the child from the Toronto area without the prior written consent of the other or further court order. The child was to remain in the mother’s primary care and the father was granted unsupervised access every Tuesday and Friday from 11:00 AM to 3:00 PM.
66On January 24, 2019, also on consent, Justice Finlayson ordered that the child’s primary residence shall be with the mother, subject to the father’s access, which was expanded to Tuesdays, Friday and Sundays from 10:00 a.m. to 5:00 p.m. each week, to be reviewed no later than June of 2019. The order also provided that the mother shall invite the father to attend any medical appointments and that either parent was permitted to consent to emergency medical treatment while the child is in that parent’s care, with the other parent being informed as soon as possible. The matter was then adjourned to June 4, 2019, for motions for temporary custody brough by both parents.
67On June 4, 2019, the motions did not proceed. On consent, the mother was permitted to travel to the Ottawa area with the child to visit family and the father was granted make-up parenting time.
68On July 18, 2019, a consent order was made increasing the father’s parenting time to include one overnight from Sunday at 10:00 a.m. to Monday at 9:00 a.m., and some additional parenting time during the week so that the father could take the child for swimming lessons.
69The issue of temporary custody (now called decision-making responsibility) was argued by both parties on July 18, 2019. Justice Finlayson declined to make a custody order but requested the involvement of the Office of the Children’s Lawyer. He made further orders regarding the parties’ communication including that the parties use a communication book “to inform the other of day-to-day care and any significant events or milestones in the child’s life”.
70The issues of whether the child should be immunized, and if so, how and on what schedule, was also argued on July 18, 2019. The mother had not yet immunized the child, given concerns that she had regarding vaccinations and wanted a delayed schedule. The father disagreed with this approach, although he had initially agreed to consider it.
71On July 23, 2019, Justice Finlayson released a written decision3 and ordered that the child be vaccinated by her family doctor, Dr. Susan Shepherd and that the parties meet with the family doctor, Dr. Shepherd, forthwith to have this done. The court also ordered the parties to follow Dr. Shepherd’s directions regarding an immunization catch-up schedule and otherwise regarding the child’s medical care.
72Justice Finlayson also ordered that if Dr. Shepherd requires parental consent to administer the vaccines notwithstanding his order, then the father is empowered to give consent pursuant to section 28(1)(b) of the Children’s Law Reform Act.
73Justice Finlayson also ordered both parties to obtain and produce their health and counselling records. A process was set out for determining whether certain records had to be produced if either party objected. The mother produced all of her health records from Dr. Shepherd, health and psychiatric records from Women’s College Hospital, and counselling records from Ms Gillian Friese. The father produced his counselling records, although significantly redacted, from his counsellor, Ms Juliann Rasanayagan.
The Father’s Second Child:
74In April of 2019, the father became involved in a brief relationship with Vanessa Bradley, which ended in May or September of 2019, however, Ms Bradley became pregnant, and their son was born on […], 2020.
75Ms Bradley testified in this trial about her experience with the father, and her involvement in legal proceedings with him since before the child’s birth regarding decision-making, parenting time and their son’s name.
76The father objected to Ms Bradley being a witness in this trial on the grounds of relevance. Following submissions, the court ruled that Ms Bradley’s evidence is relevant to the issues of decision-making and parenting time and permitted her to testify.
77Ms Bradley described the father as aggressive, controlling and abusive. She describes the father’s behaviour towards her as “denigrating, controlling and emotionally abusive” and that he belittled, demeaned and attempted to control her during their relationship.
78Prior to their son’s birth, at each step of her pregnancy, the father attempted to bully and intimidate her into what he believed is in their son’s best interests. For example, he “barged” into her hospital room while she was having a C section, he refuses to call his son by his given and court-ordered name, and he sought primary residence or at least fifty percent of the time when the child was newly born and in the hospital with the mother following birth.
79Ms Bradley testified that although their relationship had ended, she initially agreed that the father should be involved in the pregnancy and the medical appointments, however when he attended, it became very stressful for her as the father would consistently ask the doctors inappropriate and invasive questions, for example, whether she could have more children.
80Given his actions at the doctors’ appointments and the barrage of emails and text messages that he sent her, Ms Bradley decided to have her sister as her birthing support person instead of the father. The father was invited to wait for the baby to be born with her family in the hospital. Ms Bradley had to retain counsel to negotiate this with the father.
81The father refused and on the day of the child’s birth, he showed up unannounced at the hospital claiming to be Ms Bradley’s husband. The nursing staff denied him entry into the operating room, but he became irate. In an attempt to de-escalate the situation, the doctor allowed him to enter briefly to cut the umbilical cord. The father then calmed down.
82The father denied identifying himself as Ms Bradley’s ‘husband’ but agrees he did attend the hospital and that the doctor eventually allowed him entry to cut the umbilical cord, which he states was his right to do. He further denied being aggressive or that he “barged” into the hospital room. He strongly believed that he had a right to be physically present for the child’s birth even though his relationship with Ms Bradley had ended, and not on good terms.
83Before the child was born, the father sent threatening emails to Ms Bradley in which he stated that he would call the Children’s Aid Society and the police if he did not see the child and that he would take the baby away given that she would need to remain in the hospital following her C section (it was a high-risk pregnancy). The father denies that these emails were threatening.
84On December 19, 2019, still prior to birth, the father sent Ms Bradley an email that he was perfectly capable of taking care of a newborn while Ms Bradley recovered in the hospital and that he had breast milk that he could give the child. Ms Bradley did not know whose breast milk he was referring to and this scared her.
85The father acknowledges that the breast milk in question was the frozen breast milk that the mother in this case had given the father during his visits their daughter. L.B.J., the mother in this case, had no idea that the father was offering her breastmilk to another child until she learned of almost one year later from Ms Bradley.
86On […], 2020, just two days prior to the child’s birth, the father sent Ms Bradley a very lengthy email in which he again stated that he would take the baby to his home while she recovered from her C-section in the hospital. He threatened to contact the Children’s Aid Society if the child was denied his rights “to have his father with him at least 50% of his life”, starting from birth. The father then referenced the court proceedings that he started against L.J.B., the mother in this case, and stated the following:
“I started court proceedings against M.’s mother when M. was 4 months old. M. is now 20 months old, and we are still in court. After 16 months (thus far), with many expensive court appearances and hours with lawyers (ask yourself how much 5 court appearances and 16 months of litigation will cost you), after the court assigned an OCL (lawyer) to my baby girl, here is a pic of the 1st of 11 recommendations given to the court this month that will be implemented in my custody battle for my daughter. Please take a moment to look at the picture to see what it says…Do you know what a good man I am to have the OCL make that recommendation?
87The “pic” referred to in the above email is a screen shot of the first recommendation in the OCL Report which states that “it is recommended that the father have sole custody and primary residence of M.” This screen shot was attached to the above email and did not contain the full report or all of the recommendations.
88Ms Bradley states that she felt very intimidated by this. The father acknowledged sending this email and the screen shot but strongly denied that it was intended to be intimidating or threatening.
89Ms Bradley commenced court proceedings shortly after the child’s birth in light of the above, however, there was delay as a result of the pandemic.
90Ms Bradley testified that the father made it clear that he believes he is the superior parent. He seeks to gain primary residence because he that is what he wants, and it is his right. He has told her that he intends to have both the child in this case and their child together in his care during the week so that he can be a ‘stay at home’ Dad and both mothers can see their children on weekends.
91After receiving the father’s email about the court proceedings in this case, Ms Bradley decided to review this court file and reach out to the mother in May 2020. It is not disputed that this was the first time that the mother became aware that the father had been in a relationship with Ms Bradley and may have another child. The mother testified that she was not sure if she believed this, so she did not engage with Ms Bradley at the time. The mother only later believed that this was true when M. started talking about her little brother “baby Jake”, several months later.
92It is also not disputed that the father did not disclose his relationship with Ms Bradley and the fact that he was going to have another child to the OCL clinical investigator in this case during the course of her investigation. The OCL first heard of this relationship and the father’s second child during her cross-examination in this trial.
93The father stated that he did not tell Ms Burrows because he had been advised by her at the beginning of her investigation that she only wanted to hear about significant relationships, and he was also not sure if he was really the child’s father.
94On November 4, 2020, Justice Finlayson ordered that the father shall have access (as it was then called) to the child from 11:00 AM on Thursday to 11:00 AM on Friday. He also ordered that the father was required to follow the details of the child’s routine, and formula, and that the father shall refer to the child by his legal name of “Jordan” unless and until the court addressed the issue of the child’s name change.
95According to Ms Bradley, the father has refused to comply with this Order. The father continues to call the child “Jacob” or “Jake”, a name that he has insisted on since before the child’s birth. He also used a different formula when the baby was with him despite Ms Bradley’s request and court order that they use the same formula.
96During his testimony in this trial, the father states that he is using the child’s Hebrew name and he therefore does not believe that he is breaching the court order. He also did not agree that he had to use the same formula as the mother for the child.
97On March 5, 2021, the father brought a second motion in Ms Bradley’s case seeking sole decision-making, an increase in his parenting time and again seeking to change the child’s name to Jacob. The motion was argued on May 5, 2021, before Justice Heather Katarynych. The Court dismissed the father’s motion for an expansion of parenting time. The Court again ordered that the father call the child by him name and stop referring to him as “Jake” or “Jacob.”
98The father continues to call the child “Jake” or “Jacob”, according to his witnesses in this case. They testified that this was the child’s name and what they heard the father calling him. It is also not disputed that M. refers to her little brother as “baby Jake”.
The Office of the Children’s Lawyer’s Section 112 Report:
99Ms. Burrows was assigned to conduct her investigation and report on September 3, 2019, in accordance with section 112 of the Courts of Justice Act. Separate disclosure meetings were held with the father and with the mother and her counsel on January 3, 2020. The Children’s Lawyer Report (“OCL” Report) was filed as evidence in this trial.
100Ms Burrows has a Bachelor of Social Work (B.S.W.) and a Master of Social Work (M.S.W.) from McGill University, obtained in 1974 and 1975. She was a social work agent and panel social worker for the Office of the Children’s lawyer from 1984 to 1987 and again from 1994 to 2000. From June of 2000 to October 31, 2016, she was the Regional Clinical Supervisor for the Office of the Children’s Lawyer. Following her retirement from that position, she has continued to conduct full and focused clinical investigations and section 112 reports as a clinical social work agent for the office. She also conducted section 30 assessments under the Children’s Law Reform Act for both private individuals in parenting disputes and for the Peel Children’s Centre for many years.
101Ms Burrows observed that M. is an adorable, engaging toddler who seems to be meeting all of her developmental milestones. She was developing well.
102Ms Burrows observed in separate home visits that both parents are devoted and loving parents to M. and each demonstrated good parenting skills. M. is comfortable with both parents and loves each of her parents. She found that the parents have done well in protecting M. from their conflict.
103Ms Burrows testified that she had great difficulty and struggled in formulating her recommendations. She found that although both parents have similar interests in yoga and massage therapy, they have very different philosophies regarding parenting which have intensified their conflict.
104She found that the parents have very different ideas about providing for M.’s health needs, with the father preferring the medical model, and the mother preferring the naturopathic model. The mother was also hesitant about vaccines. She further found that they have different views around schooling and education. She believed that the mother wanted to home-school the child and the father did not. For these reasons, she determined that joint decision-making to be unworkable.
105In determining which parent should have sole decision-making, Ms Burrows testified that she balanced a number of risk factors regarding both parents.
106Ms Burrows wrote that she considered the following risk factors regarding the mother: the mother’s history of alcohol misuse, her recent sobriety at the time of the investigation, her mental health issues, the fact that she and the child were living with the maternal grandmother, and some of the parenting decisions that the mother had made.
107Ms Burrows was very concerned that the mother’s plan to live with M.’s maternal grandmother, who herself struggles with mental health issues, enjoys drinking alcohol, and uses cannabis daily for pain and relaxation. According to Ms Burrows, “This living arrangement is worrisome. In order to stay sober, the mother needs to be free of triggers of the use of substances in her home.”
108However, Ms Burrows was also concerned about the father’s power and control issues, as identified about the father by professionals, including herself, and her concern that he would discount the mother’s opinion and not include her in the decision-making process. She stated that the father does not realize that his communication style may come across to others as “controlling, disrespectful and abusive.”
109Ms Burrows testified that she did consider that the father could be abusive, but in the end, she had to “weigh what was the least detrimental for the child: [the father] being abusive or the mother’s problems which was her long history of alcohol dependence and only recently being sober with intensive supports.”
110During her testimony at trial, Ms Burrows agreed that what she ultimately recommended was “the lesser of two evils” given her concerns about both parents.
111Ms Burrows initially considered only giving interim recommendations, subject to a review in six months given her struggle in weighing the above concerns. However, during her separate disclosure meeting with him, the father learned for the first time that the mother had consumed alcohol during her pregnancy and that M. had undergone an assessment regarding the prenatal exposure to alcohol.
112Ms Burrows described the father as being very upset with this disclosure and that he would not agree to an interim recommendation by her. He did not want to delay a decision regarding custody any further. He did, however, agree to address his communication style in therapy and agreed to provide a copy of the OCL Report to his therapist.
113Ms Burrows was very concerned that the mother had not disclosed her relapse or the child’s FASD assessment to the father. In the end, in weighing the mother’s risk of relapse and some of the poor parenting decisions that she made (her relapse during the pregnancy, not disclosing this to the father, and delaying M.’s immunizations), against the father’s controlling and abusive conduct, Ms. Burrows released her final report on January 8, 2020, with the following recommendations:
The father should have sole custody (now known as sole decision-making responsibility) with M. living with her parents in a “3-2-2” shared parenting schedule.
The father should continue to attend individual counselling to gain insight on how he can address his communication style and gain some insight into his contribution to the relationship issues. He may want to provide his therapist with a copy of the OCL Report.
The mother and the child should continue to engage in the Breaking the Cycle Program through Mothercraft.
The mother should continue to attend AA meetings.
The mother should participate in trauma counselling focusing on her childhood sexual abuse.
If the mother is concerned about her mental health or that she may relapse, she should contact the Centre for Addiction and Mental Health (CAMH).
Should the mother relapse and begin to use alcohol, then her parenting time with M. should be supervised by an agreed upon third party.
The parties should communicate through Our Family Wizard.
114On February 12, 2020, the mother served and filed her Notice of Dispute of the Report of the Children’s Lawyer.
115On January 14, 2020, the parties consented to an order increasing the father’s parenting time by adding an overnight on Wednesday at 9:00 a.m. until 10:00 a.m. on Thursday and increasing the Sunday overnight parenting time as well.
Current Parenting Schedule:
116In March of 2020, following the OCL Report, the parties agreed, although not incorporated into an order, to implement a shared parenting arrangement on a schedule as follows:
Days 1 to 3 with Father from Sunday at 9 a.m. to Wednesday at 9:00 a.m.
Days 4 to 5 with Mother from Wednesday at 9:00 a.m. to Friday at 9:00 a.m.
Days 6 to 7 with Father from Friday at 9:00 a.m. to Sunday at 9:00 a.m.
Days 8 to 10 with Mother from Sunday at 9:00 a.m. to Wednesday at 9:00 a.m.
Days 11 to 12 with Father from Wednesday at 9:00 a.m. to Friday at 9:00 a.m.
Days 13 to 14 with Mother from Friday at 9:00 a.m. to Sunday at 9:00 a.m.
117At the time of trial, this parenting schedule had been in place for 1.5 years. Both parties acknowledged at trial that M. is doing well under this the schedule, although the father did not believe it was a good schedule for M., particularly once she starts school.
Part 4 – Position of the Parties:
The Father:
118The father submits that he is the better parent to make decisions about M.’s health and education.
119Although he states that he will consult the mother and solicit her input, he asserts that he should be given final decision-making authority. The father states that the mother is an alcoholic and a drug user with several mental health diagnoses, including depression, anxiety and Post Traumatic Stress Disorder (PTSD). He states that he is very concerned about the mother’s ability to maintain her sobriety and he believes that M. could be at risk in her care.
120He submits that the mother has made poor medical decisions regarding the child, including drinking during her pregnancy, refusing to allow M. to receive the ordinary course of immunizations for infants, refusing anti-biotics for a bacterial infection in M.’s eyes, and not bringing M. to see her family doctor until M. was five months old.
121The father submits that as a result of the mother’s actions, the child has been tested for Fetal Alcohol Spectrum Disorder (“FASD”) and that the results of the FASD test are not conclusive until further testing is completed. He wants to be responsible for monitoring the child’s FASD assessment because he believes that he is the more responsible parent. He states that the mother has manipulated him and lied to him throughout their relationship and did not tell the full truth about her history of alcoholism.
122The father submits that the mother has not consistently informed him of medical appointments for the child, including, for example, when the mother had M. tested for FASD in September of 2019. The father was very upset to discover this information during the OCL disclosure meeting and does not trust the mother to share information with him.
123The father also submits that the parties have very different views about parenting. For example, he wants the child vaccinated, the mother does not. He states that the mother wants the child to be home-schooled and he does not.
124The father acknowledges that M. is doing well and thriving in the current parenting arrangement, however, he submits that it involves too many transitions for the child, and it will not work once M. starts school given the distance between the parents’ homes.
125The father feels “vindicated” by the OCL Report and the clinical investigator’s recommendations, which he believes confirm that he is not abusive. He submits that the recommendations regarding decision-making should be implemented, but not the recommendations regarding the regular parenting schedule, nor does he agree that the parties should communicate through “Our Family Wizard”.
126The father is seeking to have M. convert to Judaism formally and to hold a naming ceremony and a Bat Mitzvah for her. He wishes that M. “identify as Jewish”, as does his family. He agrees to “allow the mother to expose M. to whatever form of spiritualty she wishes, so long as it is not exposing her to a health risk or undermining Jewish religion”.
127The father also seeks an order that the mother shall not directly contact the clergy, staff or leadership of any Synagogue with which he and M. are involved. If the mother has any questions about any matters regarding the child’s involvement in Judaism, she may address her questions to the father only, and not to his Rabbi.
The Mother:
128The mother acknowledges that the applicant is a good father to M. and that the child benefits from and enjoys spending substantial amounts of time with him. She further acknowledges that he genuinely loves M. and wants to make the best decisions for her.
129However, the father is unable or unwilling to acknowledges that the child similarly benefits from and enjoys her time with her mother and that she is a good, loving mother who also endeavours to make the best decisions for her.
130According to the mother, the father has repeatedly and relentlessly made allegations to the court, the children’s aid society, the police and the OCL clinician that the mother is unfit, mentally ill, abusing drugs and alcohol and has lied to the father. He does not respect the mother and is seeking to diminish her role in M.’s life by relegating her to a visiting parent notwithstanding she was M.’s primary caregiver for almost the first two years of her life.
131The mother also submits that the father’s is very controlling and domineering. His communication with her continues to be angry, disrespectful and dismissive. This makes it very difficult to make decisions together. The father has great difficulty considering opinions other than his own, and if he is granted sole decision-making responsibility, he would not consult with her than other in a perfunctory manner and continue to diminish her role in the child’s life.
132The mother therefore seeks a comprehensive and mandatory joint decision-making process, with her having the final decision-making authority if they are unable to agree.
133The mother has no issue with the father involving M. in Judaism, however, his request to prohibit the mother from communicating with the father’s Rabbi or Synagogue, or participating in M.’s Bat Mitzvah, is another example of his efforts to diminish the mother’s role in M.’s life.
134Further, it is the mother’s position that M. should fully participate in Judaism, religious holidays, and attend Synagogue but without having to formally convert now at the age of 4 years. When M. is 12 years old, she should be able to participate in this decision and the decision to have a Bat Mitzvah.
135The mother submits that while it is true that she had reservations about giving M. immunizations immediately, so did the father. The mother wanted a delayed schedule and the father agreed. He proposed a compromise which the mother accepted, but the father then decided that he would pursue a motion to have the standard vaccinations for M. immediately.
136Once the court decided this, the mother has fully complied with the order and Dr. Shepherd’s recommendations. She had attended all of those appointments and participated in the inoculations by holding the child and breastfeeding to comfort her after each shot. She proposes that the Order of Justice Finlayson continue and that the parents continue to follow the recommendations of Dr. Shepherd.
137Regarding education, the mother submits that it is in fact the father who wants to home-school the child, not the mother. The father wants M. to be in his full-time at home care from Monday to Friday and not start school until grade 1. The mother has changed her mind about home-schooling and no longer believes that would be beneficial for M. She would like M. to start school in junior kindergarten so that she can socialize with her peers.
138The mother submits that in the initial OCL Report, the OCL clinician identified concerns about the father’s communication style, which the clinician stated in her report, “may come across as controlling, disrespectful and abusive”. However, she was more critical of the mother for failing to disclose to the father that she had consumed alcohol earlier in her pregnancy and that she had M. assessed for FASD without informing the father. Ms Burrows was also concerned about the risk to M. given the mother’s relatively recent sobriety.
139She submits that while she did not tell the father about her relapse during pregnancy because she was fearful of his reaction, she did not withhold this information from any other professional and fully disclosed her history to all of her service and treatment providers, including both the CAS and the OCL. She also initiated and fully cooperated in the FASD assessment.
140The mother submits that the father also failed to provide similarly important information to both the mother and to the clinician. He hid the fact that he had become involved with a new partner who was pregnant with his child during the OCL investigation, as well as the fact that he was involved in litigation with this person during the OCL investigation. He did not inform the clinician of this information. He did not disclose this to the mother until she was contacted by the father’s (now former) partner several months later and their daughter M. started talking about her baby brother.
141Finally, the mother submits that she has been sober and healthy for almost four years now, while the father’s aggressive, controlling and abusive nature has not changed.
142The mother agrees with the OCL’s recommendations that the parents should communicate through Our Family Wizard. While that will not necessarily stop the father’s denigrating communication, it will place some control on the participants and allows the parties to share all of the information in one place.
Part 5 – Credibility and Reliability Findings:
The Father’s Witnesses:
143The father testified on his own behalf and called the following five witnesses: two family friends, Shawn Stevens and Loren Hassan, his therapist, Juliann Rasanayagan, neighbour and babysitter Megan Bourne, and naturopath Luis Akhanda, a naturopath used by the mother for the child. The father had one other witness, Chris P., his friend and former roommate, but he withdrew this witness at the beginning of the trial for reasons unknown.
144I found that the father’s friends, Shawn Stevens and Loren Hassan, were credible witnesses and testified sincerely about the father’s love and devotion to his daughter. These witnesses described the father to have excellent parenting skills.
145However, their knowledge of the parties’ intimate relationship and history was significantly limited, as they both fairly acknowledged. Shawn Stevens had not seen the mother since the separation and had not seen the child in 1.5 years. He testified that he was very surprised, and in fact shocked that the parties had separated, but he acknowledged that “we never know what goes on behind closed doors.”
146Megan Bourne, a neighbour/friend and babysitter for the father, who provides babysitting in exchange for receiving massages from the father, was also a credible, but again, limited in her knowledge. She described the father’s parenting as “fun, and engaged”, “creative” and that he is very open, loving and caring with both of his children. However, she had no information about what the father was like as an intimate partner or spouse and she had only met the mother very briefly.
147I found the father’s therapist, Ms Juliann Rasanayagan to also be a credible, albeit limited witness based on the father’s self-reporting to her. Ms Rasanayagan testified in a fair and balanced manner. During their sessions, they focused on the stress and anxiety that his two court cases were causing him. Parenting was not a big focus of their sessions. She spoke to the OCL investigator over the telephone and did receive the OCL Report.
148She agreed with the OCL’s observations of the father’s communication style and discussed communicating effectively in their sessions, including how tone can play a big role. She testified that when the father is speaking, he is very loud, and she could see how it could come across as aggressive. Anger management issues were not addressed from a “psycho-educational perspective”, but they discussed triggers.
149Ms Rasanayagan acknowledged that she did not observe his communication with either of his former partners outside of their sessions but believed that he is more mindful of his communication. She testified that she wrote down his words verbatim in her counselling session.
150I found Luis Akhanda, a naturopath whom the mother saw with the child on three occasions after the separation, to be an obviously hostile witness, and it was unclear why the father summoned him, except perhaps in an attempt to claim that he was the mother’s “lover”, as the father described him.
151Mr. Akhanda was clearly very unhappy to be summoned. He testified that he was threatened or felt threatened by the father if he did not attend this trial and appeared very upset. He had just been discharged from the hospital following an illness.
152Mr. Akhanda’s testimony regarding the naturopathic treatment that he provided the child for her conjunctivitis was straightforward and well-explained. He sounded comfortable and assured in explaining his field of practice and how he administered the treatment to M. However, his testimony regarding his relationship and interactions with both parents was evasive. He denied being the mother’s “lover”. He testified that he did not want to be involved with their custody dispute or this trial and that he “has had a bad experience with both of them” upon which he would not elaborate.
The Mother’s Witnesses:
153The mother also testified on her own behalf and called the following nine witnesses: Dr. Susan Shepherd, the family doctor, Maryn Smyth-Commodori, the mother’s counsellor at Breaking the Cycle; Gillian Frieze and Dilcio Dantas Guedes, the mother’s counsellors at Family Service Association; Sharole Gabriele, the mother’s AA sponsor; Cassandra Thompson, the mother’s Doula during M.’s birth and post-natal care; Kurtiss Trowbridge, a close friend of the mother who also knew the father; Sonia Pellerino, a more recent friend and the mother of M.s playmate, and Vanessa Bradley, the mother of the father’s younger child.
154I found Dr. Susan Shepherd, the family doctor, to be a credible witness. She has been the mother’s family doctor since 2009, according to her electronic records. The father then became a patient following the parents’ relationship and then M., the child. Dr. Shepherd’s testimony was professional, balanced, child-focused and based on her own medical notes and records which she had with her, as well as her independent recollection of both parents and the child. She described both parents as civil and very loving towards M. She described M. as a healthy child who is meeting all of her developmental milestones. She has no concerns about M.’s physical or cognitive development.
155Dr. Shepherd testified that she was aware that the parents disagreed on some major points: immunization; parenting style; and circumcision (if M. had been a boy). The father felt very strongly about circumcision and the mother was very stressed about this issue during her pregnancy. Regarding immunization, the mother initially did not want to immunize M. She was concerned about side-effects, worsening side-effects and the ingredients in the vaccine. She was doing her research. Dr. Shepherd and the mother discussed the issue, and she gave the mother some literature from the Canadian Pediatric Association to review.
156Dr. Shepherd was very aware of the mother’s own history. She testified that she had no concerns about her parenting, her mental health and she has not seen any signs of relapse. The mother appeared to quite stable and abstinent for a significant period of time.
157In cross-examination, Dr. Shepherd agreed that she would give antibiotics over a natural remedy to treat an eye infection if warranted, and she would not recommend silver colloidal as the mother’s naturopath had done.
158I found Maryn Smyth-Commodari, the mother’s addiction counsellor at the Mothercraft Program of Breaking the Cycle to be a credible, balanced and professional witness, as were the mother’s personal counsellor, Ms Gillian Frise and psychotherapist, Dilcio Guedes from the Family Service Association. All three counsellors testified consistently that the mother was very committed to her sobriety and recovery, she was engaged in her programming, and very proactive in seeking help and support and that she appropriately sought out mental health and addiction services and therapy.
159Cassandra Thompson, the mother’s doula and midwife was also a credible and balanced professional witness. She testified about her direct observations of the father’s interactions with the mother in a straightforward manner and readily acknowledged any limitations in her knowledge of issues between them.
160Ms Thompson followed the mother post-partum and had weekly home visits following M.s birth in June of 2018, and then as needed. She provided advice and support about caring for M., but also spent time discussing concerns that the mother raised about the father, including his restrictions on visitors and not wanting the mother or the baby to leave the home. The mother also needed reassurance about her parenting because of the negative feedback that she was getting from the father.
161On one occasion in late August or early September, when M. was approximately ten weeks old, Ms Thompson was present when the parties had an argument. The father stated that he wanted to have another baby right away, but the mother did not agree. The father’s tone changed when the mother said no, and he made reference to the mother’s “biological clock” running out.
162Ms Thompson observed that the father was quite angry. He got up and walked away. Ms Thompson went to talk to him about the mother needing time to physically heal before considering another baby. She also talked to him about the mother’s need to have visitors and to be able to leave the home to benefit her mental health. She suggested counselling. The father was quite resistant and said that he did not see any benefit in looking at the past. After that, he was quite cold to her.
163Ms Thompson never observed the father involved in caring for M. but acknowledged that she did not see the father a lot. She did not observe him changing diapers or providing other care for M. When M. needed a diaper change during her visit, either the mother or she would do it. The father never volunteered to do so.
164The mother’s A.A. sponsor, Ms Sharole Gabriel, was also a credible and forthright witness. Ms Gabriel has been the mother’s sponsor for a number of years. They meet each other once per week, and have telephone or video calls on between. She testified that the mother is very committed to her recovery. She has also had an opportunity to observe the mother parent M. and described her as very positive, caring, open-minded, compassionate and understanding. She has never heard her yell and “treats [the child] like a little human being.”
165I also found Ms Sonia Pellerino, the mother’s friend and the mother of M.’s playmate to be a credible witness. Their daughters are very good friends and have done a lot of things together. They met at a yoga conference and now take their daughters to yoga classes for mothers and toddlers. They are also in a mother’s group together with their children and they meet at the playground with their children. During Covid, their daughters participated in a live craft workshop on Instagram which both children enjoyed.
166Ms Pellerino described M. to be a very sociable, happy and confident child who speaks very clearly and has a great vocabulary. She knows her letters, colours, and shapes, which the mother teaches her.
167Last summer, they rented cottages near by each other and they and the children spent a lot of time together. The mother is always well prepared with healthy snacks and extra food for M. which she shares, and clothing changes for all types of weather.
168Ms Pellerino has only met the father on two occasions in passing and does not know him well. The mother has told her that he is a very involved parent with M. which she respects. She has never heard the mother speak ill of the father in front of the child. She has noticed that M. gets happy when the mother mentions “Daddy” and she talks about him fondly in front of the mother and her.
169I also found the mother’s friend Kurtiss Trowbridge to be a credible and balanced witness. Although he is a very close friend of the mother, and has known her for twenty years, he has also spent time with both parties when they were together. He was careful and fair in his testimony. He acknowledged during the father’s cross-examination that he has never seen, nor does he believe that the father has ever been physically abusive to the mother. However, during the time that he spent with both of them, he directly observed that the father presented as controlling towards the mother, and even more so after M. was born.
170Mr. Trowbridge also observed the father to be a good father and quite attuned to M.’s needs shortly after her birth, but much less attuned to the mother’s needs. In Mr. Trowbridge’s presence, the father talked about wanting to have another baby right away and made comments about getting the mother pregnant again very shortly after M.’s birth. The mother was very tired after M.’s birth, she was still physically healing, and did not agree. She also told Mr. Trowbridge that she was feeling very isolated and lonely because the father did not want her going out or having any visitors to their apartment.
171Mr. Trowbridge testified that he and his partner attended the home on the date of the separation after receiving a text from the mother asking for help. They helped the mother pack her things. He received a text from the father on the same night asking him “Where is L. and M.?” He responded the same day and told the father that the mother and M. were staying with a friend and that they were safe. They had a further exchange of messages, and then the father informed him that he was calling the police and later texted that the police were on their way.
172Mr. Trowbridge was also struck by the father’s immediate attack of the mother’s mental health in his text messages as the only reason she would have left and that he did not appear to reflect at all on his own actions. These messages were admitted on consent as evidence at trial.
173Mr. Trowbridge was aware of the mother’s history of struggling with alcohol and her efforts to maintain sobriety. He testified that the mother has maintained her sobriety and has immersed herself in the role of motherhood and excels at it.
Vanessa Bradley:
174I found Ms Bradley to be a credible witness. The court appreciates that Ms Bradley is a litigant in a separate contested family court proceeding involving the father and another child. Both the father and Ms Bradley are seeking sole decision-making responsibility and primary residence in that case. The court therefore considered her evidence with caution, given this context. Nevertheless, Ms Bradley’s evidence was not shaken in cross-examination and indeed, the evidence of the events leading up to their son’s birth, including the father’s emails to her, was not disputed or seriously challenged by the father.
175Ms Bradley’s evidence about the father’s emotionally abusive and controlling conduct towards during her pregnancy and shortly before their son’s birth, as well as his parenting conduct afterwards, was credible.
The Mother:
176I found the mother to be a credible witness. She was balanced and forthright. She testified in a calm and even manner. She acknowledged that the father was a good and loving parent to M. She took full responsibility for her past mistakes and was forthright about her history of addiction and depression. Her evidence, corroborated by all of her service providers, regarding the steps that she has taken to maintain her sobriety and mental health, was credible and compelling.
177During the father’s cross-examination of her, the mother apologized to him for not disclosing that she had consumed alcohol during her pregnancy and for failing to tell him about the FASD assessment of M. that she had arranged through Mothercraft. This apology became an emotional experience during the trial for both parents.
178I found that the mother’s explanation for why she did not tell the father to be credible and understandable at that time in her life. It was clear from the mother’s evidence that she was overcome by guilt for drinking alcohol during her pregnancy. She was also very fearful of the father’s reaction, in particular given what I find to have been an emotionally abusive relationship. The mother’s evidence on this issue was consistent and credible.
179It is also significant and not disputed that the mother did not withhold this information from any of the professionals from whom she sought help or that she was involved with, including those that were involved in assessing any risks to M., such as the Children’s Aid Society and the OCL clinical investigator. The mother was candid and open about her history of alcohol misuse and depression to every professional involved, according to these witnesses’ testimony.
The Father:
180I did not find the father to be a credible witness. The father’s evidence was inconsistent, evasive, and non-responsive. He was often aggressive and argumentative during cross-examination. Where his evidence was contradicted by another witness, I preferred the evidence of that witness, for the following reasons:
The father’s testimony that he did not tell the mother about the impending birth or existence of his second child because “he did not have a chance to” and because the December 19, 2018 Order of Justice Finlayson prevented him from doing so was not credible. Justice Finlayson’s Order provided that the parties shall not communicate with each other except… “through a communication book to inform the other of day-to-day care and any significant events or milestones in the child’s life.” The father would not concede that having a new brother was a significant event or milestone for M. He then later said that “he was not going to write it in a book.” His evidence was also contradicted by the evidence of the multiple occasions that he communicated with the mother outside of the communication book about events not directly related to the child. He also repeatedly tried to blame Ms Hyndman, the mother’s lawyer, during her cross-examination of him, for not agreeing to change the court order to permit him from speaking to the mother outside of the communication book, thus prohibiting him from telling the mother.
The father acknowledged that he sent the mother a text on November 18, 2020, stating, “Hey, my schedule has altered” and that he now has “an ongoing appointment” that required him to change his parenting time with M. The father did not disclose that the “ongoing appointment” was a weekly visit with his undisclosed son. When asked why he did not mention that he had a son in that text to the mother, the father again testified, “I was not allowed to disclose.” This is simply not true. He continued to blame Ms Hyndman for not agreeing to change Finlayson J.’s order.
The OCL’s Report was released at the same time that the father’s second child was born. The father’s testified that he did not tell the clinical investigator during the course of her investigation about his soon to be born child because he “was not sure if he was the father”. This was not credible. This is contradicted by the undisputed evidence of the father’s presence at the pre-natal medical appointments for his son, his demands to be present for the child’s birth, and his demands that the child be with him at least 50% of the time immediately after his birth and his demand that the child be named after his grandfather. The father then testified that during the OCL investigation, Ms Burrows only asked him if he was involved in a relationship and he said “no” because the child’s mother, Ms Bradley, was “no one” to him. It was clear that the father did not want Ms Burrows to know that he was about to have a second child in an already conflictual relationship (involving lawyers) with Ms Bradley. I find that he deliberately misrepresented these circumstances to the clinical investigator.
The father denied telling his therapist in 2019 that he was estranged from his parents and that when his parents came for a visit in July of 2019, he was only letting them visit “to create the impression that he allows access” to them. He also denied telling his therapist he had “won” M. after a court hearing [which was untrue] and testified that that these were the therapist’s words. The therapist contradicted this evidence and testified that those were the father’s exact words, which she wrote down. The court prefers the evidence of the therapist.4
The father’s evidence was not balanced. He was generally very negative about the mother, although in closing submissions he did concede that she was a good mother. He testified that that their child “is in danger at every single moment” because the mother is “at risk of relapse”. He disagreed with all of the professional evidence regarding the mother’s sobriety and stability. He did not agree that the Children’s Aid Society had closed their file because they had no protection concerns regarding the mother, despite the evidence in the business records filed. He repeatedly stated that the CAS closed their file because the mother was no longer in the jurisdiction at the time.
The father’s evidence regarding his employment and sources of income was also not credible. He gave evidence that he was not able to work in massage therapy and that he did very little teaching, but all three of his character witnesses (and apparently close friends) testified that he was working as a massage therapist and that he runs a massage business. Further, his sworn financial statement deposes a rental income of $1,800.00 per month and an ongoing monthly operating deficit of $2,000.00 per month based on his declared income, with no corresponding debt unless there are additional undisclosed sources of income.
Ms Sherri Burrows, the OCL Clinical Investigator
181I found the OCL clinical investigator, Mr. Sherri Burrows, to be a credible witness. She presented as balanced and professional and did not appear to be favouring one party over another. She is a very experienced clinical investigator.
182However, as noted below, she was unaware of significant and relevant information when formulating her recommendations, through no fault of her own. She readily acknowledged that this evidence raised concerns that could have changed her recommendations. The weight to be given to her Report in light of the passage of time and other significant events that have transpired since her recommendations will be addressed later in these reasons.
183Ms Burrows was unaware that during her investigation, the father was in a brief relationship with Ms Bradley and that he was imminently going to be the father of a second child.
184When questioned by the father about this in re-examination, Ms Burrows told him that he should have told her about his relationship with Ms Bradley and her pregnancy because having a child with someone would be a significant relationship, as he was going to be in a caregiving role with his son.
185During cross-examination, Ms Burrows was presented with the father’s emails to Ms Bradley and in particular the email he sent to her two days before the birth of their son in which he threatened to contact the Children’s Aid Society if the child was denied his rights to be with him at least 50% of the time from birth. This email also referred to the court proceedings that he started against the mother in this case, including a partial screen shot of the OCL’s recommendation that the father have sole custody. The email also included the father’s statement, “’Do you know what a good man I am to have the OCL make that recommendation?” and that this recommendation would be implemented that month.
186Ms Burrows read the email and agreed that this email was intimidating and abusive. Ms Burrows also did not agree that her recommendations meant that the father was “such a good man”, or that her recommendations would be implemented that month.
187When presented with the evidence that the father barged in and demanded to be at the birth of his son against Ms Bradley’s wishes, and demanded that he take the baby to his home and away from Ms Bradley while she recovered from surgery and feed him frozen breast milk that he got from someone else, the mother in this case, Ms Burrows clearly thought that this was poor judgment on the father’s part and told him so during his re-examination.
188Ms Burrows tried to explain to the father why she thought it was poor judgment during his re-examination, which the father did not seem to understand, nor agree with.
189Ms Burrows was also not aware that the father was estranged from his parents in the summer of 2019, and that he was only agreeing to let his parents see the child “to create the impression that he allows access to his grandparents”. She testified that it would have been helpful to know this. The father did not disclose this to her, nor did his therapist.
Part 6 – The Law and Governing Principles:
190This court is governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (“the Act”). Any proceeding regarding a child must be determined based on the best interests of the particular child before the court. The “best interests” test must be considered in accordance with the factors set out under section 24 of the Act.
191Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are (1), (4), (5), (6), (7) and (8). They read as follows:
Parenting Orders and Contact Orders
28 (1) The court to which an application is made under section 21,
(a) may by order grant,
(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),
(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or
(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
Allocation of decision-making responsibility
(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.
Allocation of parenting time
(5) The court may allocate parenting time with respect to a child by way of a schedule.
Parenting time, day-to-day decisions
(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.
Parenting plan
(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.
Right to ask for and receive information
(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,
(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and
(b) any other person who is likely to have such information.
192Subsection 24 (1) of the Act provides that in making a parenting order, the court shall only take into account the best interests of the child in accordance with section 24.
193Subsection 24 (2) of the Act provides that in determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, and in so doing, the court shall give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being”.
194Subsection 24 (3) of the Act sets out a list of factors for the court to consider in determining the best interests of a child. It reads as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
195Subsections 18 (1) and (2) of the Act defines “family violence” referred to above under subsection 24(3) (j) of the best interests factors as follows:
“Family violence”
(1)“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”)
(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
196Subsection 24 (4) of the Act sets out other factors relating to family violence. It reads as follows:
Factors relating to family violence
(4) In considering the impact of any family violence under clause 24 (3) (j), the court shall take into account,
i. the nature, seriousness and frequency of the family violence and when it occurred;
ii. whether there is a pattern of coercive and controlling behaviour in relation to a family member;
iii. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
iv. the physical, emotional and psychological harm or risk of harm to the child;
v. any compromise to the safety of the child or other family member;
vi. whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
vii. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
viii. any other relevant factor.
197Subsection 24 (5) of the Act provides that in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.
198Subsection 24 (6) of the Act provides that in allocating parenting time, of parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
199Subsection 33.1 (2) of the Act addresses the importance of parents protecting a child from conflict. It provides that a party in a proceeding governed by the Act shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
200The list of best interest considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
201In considering a child’s best interests it will also often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.
202The best interests of the child have been held to be met by a child having a loving relationship with both parents. Such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical, emotional or mental well-being. See Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).
203A child should have maximum contact with both parents if it is consistent with the child’s best interests. See Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. This applies even when a child may be reluctant to see a parent. The “maximum contact” principle is well enshrined in Canadian family law.
204I have also considered the well-established principle that if one parent does not facilitate a child’s relationship with the other parent, or undermines the child’s relationship with the other parent, it will be a relevant factor in determining the person’s ability to act as a parent (a listed best interests factor under s. 24 (2) of the Act). See: Leggatt v Leggatt, 2015 ONSC 4502.
205In S.S. v. S.K., 2013 ONCJ 432, Justice Stanley Sherr wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict;
b) more or less likely to expose the child to parental conflict; and,
c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
206In this case, these are also helpful factors to consider when court determining whether a sole decision-making responsibility order is appropriate, in particular paragraph (c) above, as set out by Justice Sherr.
Part 7 – Application of the Law to the Findings of Facts in this Case and Analysis:
207In determining what parenting orders are in M.’s best interests, I make the following findings of fact and considered the following relevant best interest factors under section 24(3):
24 (3)(a): M.’s needs, given her age, stage of development, such as her need for stability:
208M. is 3 years old. I find, and it is not disputed, that M. has thrived in the parenting plan that has been in place since March of 2020, a period of approximately two years. Both parents acknowledge that, given M.’s age, the plan has provided her with regular and frequent parenting time with both parents. M. has been described by both parents and by all of the witnesses to be a happy, lively, engaged, and articulate child who very much enjoys her time with both of her parents. All of the witnesses at trial, including the OCL investigator, support a parenting order for shared parenting.
209I find that the father’s proposal to disrupt a parenting schedule that has been in place for more than two years by placing M. in his primary residence is not in M.’s best interests. The father’s plan will significantly reduce M.’s parenting time with her mother and result in her spending longer periods of time away from her mother. Both parents testified that if M. is away from either parent for a period of more than three or four days, such as on holidays, she expresses that she misses the other parent. The father admitted that even on the current “2-2-3” schedule, M. misses her mother and asks to call her.
210The father’s understanding of stability is very much tied to only having only one primary residence and parent, which should be him, however, the evidence demonstrates that M. has understood that she has had two homes and two parents since she was less than two years old.
211The father’s plan will effectively exclude or significantly minimize the mother’s ability to participate in M.’s education and school activities during the week. It is in M.’s best interests that both parents continue to be actively involved in her education and schooling and the current parenting schedule will allow for this.
24(3)(b): The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life:
212I find that M. has a close and loving relationship with both parents and that she is strongly attached to both parents. The evidence is undisputed that M. loves both parents very much and that both parents love her very much and are very proud of her. M. also loves her half-brother from the father’s subsequent relationship. The maternal grandmother and paternal grandparents did not testify in this trial, but M. appears to be close to them all.
24 (3)(c): Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent:
213I find that the mother is more willing to support the father’s relationship with the child than the father and that the mother has in fact done so. It is true that the mother was initially fearful or cautious about providing unsupervised and overnight parenting time to the father when she first left the family home, however, the father’s parenting time grew over time, in accordance with the child’s needs and development, particularly while she was still breastfeeding. M. was only four months old and exclusively breastfeeding when the parents separated.
214It is not disputed that every increase in the father’s parenting time since the separation was made on consent. The mother steadily agreed to increases in the father’s parenting time in a child-focused manner, even while continuing to breastfeed M. by providing the father with bags of her frozen breastmilk during longer periods away from her.
215The father is not willing to support the development and maintenance of the child’s relationship with the mother. The father is seeking to reduce the mother’s parenting time with M. while the mother is proposing to maintain the 50/50 schedule that has been in place for over two years.
216The father’s proposal to virtually eliminate the mother’s ability to have any time with the child during the school week is an attempt to marginalize the mother in the child’s life, by reducing her to a visiting parent on weekends, notwithstanding my finding that the mother was the child’s primary caregiver for first 1.5 years of the child’s life.
217The father is also very critical of the mother and her parenting, (more about this addressed later), but it was very apparent in his evidence that he sees himself as the superior parent and that the mother is not capable of making good decisions about the child. For example, when the mother attempted to make a dental appointment for the child and emailed the father about this, the father became very angry. He unilaterally cancelled the appointment and told her in writing, “I am in charge of M.’s medical needs” and that she is not permitted to make an appointment without the father ever unless it is an emergency and that she must contact him immediately.
218The father’s statement that he is charge of M.s medical needs is not correct. There is no current order giving him responsibility over M.’s medical needs. The only temporary order that was in place at the time of his email was Justice Finlayson’s order providing that if Dr. Shepherd requires parental consent to administer the child’s vaccines, then the father is empowered to give consent. The father has used this provision to attempt to take control over all medical and dental decisions.
24(3)(d): The history of care of the child:
219I find that prior to the separation, the mother was the child’s primary caregiver. The father was content to leave M.’s care to the mother. The evidence is undisputed that the mother was a loving and devoted parent to M. during that time.
220The mother continued to be M.’s primary caregiver until March of 2020 when the parties entered into the shared parenting schedule, on consent. All of the evidence in this trial, except the father’s, is that the mother is a loving, child-focused and very confident parent, who puts the child’s needs first. She breastfed on demand until M. was a toddler. She pumped milk so that M. could have the benefit of breast milk during the father’s parenting time with her.
24(3)(e): The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained:
221M. is only 3 years old so too young to clearly articulate her views and preferences, however, it is undoubtedly clear that she loves both of her parents.
24(3)(f): The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage:
222The father is Jewish, and the mother describes herself as a spiritual person but not a member of an organized religion.
223Both parents are entitled to share his or her ordinary lifestyle, including religion with a child. A custodial parent has no right to interfere with how a child spends his or her own time with another parent, unless the activity poses a risk to the child, or is not in the child’s best interests. See: Young v. Young 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.).
224The best interests of a child usually means that a child’s relationship with the other parent is more important than exclusive conformity with the religious practices of one parent. H. (B.) v. Z. (S.), 2000 CanLII 26912 (ON CJ), 2000 CarswellOnt 4641.
225I find that the mother fully supports that the child should be able to share in her father’s Judaism, attend Synagogue and participate in all significant Jewish holidays with her father, just as the child should be able to share in her mother’s spirituality.
226I am concerned that the father’s desire for a court order that the child fully “identify as Jewish” through a formal conversion and naming ceremony immediately after this trial, as well as the orders that he is seeking that the mother not be able to communicate directly with his Rabbi or Synagogue, is a pretext for limiting the mother’s relationship with the child. See: H. (B.) v. Z. (S.) 2000 CanLII 26912 (ON CJ), 2000 CarswellOnt 4641. This concern is further deepened by the father’s position that the mother can only “expose” the child to her spirituality, so long as it is not “undermining Jewish religion.”
227M. can attend Synagogue, fully participate in religious holidays and Judaism whether she has formally converted or not. She is only 3 years old. When M. approaches age 12, close to the age of Bat Mitzvah, she should be able to participate in that decision.
228The final order will include the appropriate orders to ensure that the child shares Jewish holidays with the father.
24(3)(h): The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child:
229I find that both parents are willing and able to care for and meet the needs of the child.
230The father has been consistently very critical of the mother’s ability to meet the child’s medical and educational needs. He has testified and believes that the mother will always be at serious risk of relapsing, placing the child in danger and that she has made very poor decisions.
231The court finds, based on overwhelming medical and professional evidence in this trial, that the mother’s history of alcohol misuse and depression does not pose a risk to the child at this time.
232A significant amount of time has elapsed since the OCL investigation and report and much has changed. The mother has maintained sobriety for four years and has actively sought out and maintained important medical and professional supports, which she first obtained when she was pregnant with the child. The mother moved out of the apartment that she shared with her mother very shortly after she received the OCL Report, given Ms Burrows concerns about that living arrangement. She has maintained her own loving and stable home with M. since that time.
233There is no doubt that the mother made a poor decision when she drank alcohol during the early part of her pregnancy. It is clear that the mother deeply regrets this decision. She took immediate proactive steps to address this, and saw Dr. Shepherd in early January 2018, who referred her to the Women’s College substance abuse program, and they in turn referred her to the Mothercraft Program at Breaking the Cycle. The mother successfully completed both programs.
234The mother has been candid with every professional involved about her history, including Ms Burrows and the Children’s Aid Society protection workers, who assess risk and did not have protection concerns. The evidence of the professional witnesses who testified in this trial as well as the reports admitted on consent from the Women’s College Hospital are all overwhelmingly very positive. The mother’s family doctor, and all three of the mother’s counsellors testified in this trial that they have no concerns about relapse. The mother continues to be actively engaged in recovery and treatment. She has had an AA sponsor for 3.5 years (one previously before Ms Gabriel who has been her sponsor for two years).
235The Children’s Aid Society records, admitted as business records, clearly indicate that the society actively investigated all of the father’s reports and did not have child protection concerns about the mother. The primary child protection worker had several interviews with the mother, as well as her counsellor at Breaking the Cycle, her psychiatrist at Women’s College Hospital, and her family doctor. The Society also arranged for an assessment of M. by an infant nurse specialist and no concerns were noted.
236The mother also took responsible action in arranging to have the first Fetal Alcohol Assessment of M. done at Breaking the Cycle in 2019. It is not disputed that the assessment noted no concerns, but that M. should continue to be followed.
237The evidence in this trial demonstrated that only the father believes that M. may have FASD or still be at risk of developing FASD. The evidence in this trial demonstrates that M. is a thriving, intelligent child meeting all of her milestones. Although both parents agree that M. should continue to be followed, it was clear in listening to the father’s evidence that he is on a relentless campaign to prove that the child had FASD, despite none of the professionals who have assessed M. finding any concerns in her development.
238Dr. Shepherd testified that M. appears to be very well adjusted, developmentally normal, and very happy little girl who has a very close attachment to both parents. She described the mother as very pleasant, very appropriate and child focused. The baby was followed by the midwife during birth and for the first six weeks following birth. The mother breast fed M. The baby’s first visit to the office was November 26, 2018. Both standardized assessments were completed and there were no concerns for M. on either scale. According to Dr. Shepherd, there were no concerns at all. The child was meeting all of her milestones.
239Dr. Shepherd was aware that the father is concerned about what he described as M.’s “falling” issues and FASD due to pre-natal alcohol exposure. Referrals were made to both an eye, ear and nose specialist and a neurologist. Dr. Shepherd testified that this was not because she had these concerns herself, nor did she notice any concerns. The referral was made based on the father’s concerns and to “rule out” any issues. No issues were found by the specialists. It was determined that M. was neurologically normal and did not need further investigation. Dr. Shepherd testified that she has not observed anything that would cause her to be concerned. Furthermore, the follow-up FASD assessment at Mount Sinai Hospital also did not note any concerns, notwithstanding the father’s attempt to interpret this otherwise.
240The father clearly does not accept this in his evidence. He took the position that the experts have just not found out what the problem is, however, no one but the father has identified any problem with M.’s development.
241I find that the father does not listen to medical advice that he does not agree with. I find that the father appears to be almost obsessively looking for evidence that the mother has caused harm to M. by the prenatal exposure to alcohol, even though there is no evidence that this is the case.
242The concerns about the father’s approach are the following. First, the child may get the message that there is something wrong with her, even though there is no evidence to support this, and second, the father’s relentless campaign is emotionally abusive to the mother. He is trying to make her feel worse than she already does about drinking during her pregnancy and that she potentially has caused harm to their daughter.
243Regarding the mother’s hesitancy over vaccinations, the mother acknowledged her hesitancy. Both parents were initially agreeable to delaying the schedule of vaccinations. Yet the evidence is clear that following Justice Finlayson’s Order regarding immunization, as directed by Dr. Shepherd, the mother has fully complied.
244Dr. Shepherd testified that although the mother was not comfortable with immunization, she listened, she was non-confrontational, non-argumentative, and expressed her concerns. Dr. Shepherd further testified that following Justice Finlayson’s Order, the mother has attended all immunization appointments and fully participated. She breastfed M. both before and after each injection to comfort her.
245The mother is prepared to accept that Justice Finlayson’s order regarding immunizations continue in any Final Order.
246Regarding the treatment of the child’s conjunctivitis, (eye infection), the father was very critical of the mother for first engaging in naturopathic treatment and not applying antibiotics immediately. He withheld the child for a number of days from the mother as a result. The police were involved.
247Dr. Shepherd testified that based on the nurse practitioner’s medical chart, it was not clear whether the eye infection was viral or bacterial, so the antibiotics were prescribed in case the infection was bacterial. It is not unusual to wait 24 hours to see if the infection clears up before starting the antibiotics, which is what the mother did in this case. However, Dr. Shepherd would not recommend silver colloidal to treat eye infections, which the mother arranged through a naturopath.
248The court is also concerned about the father’s decision that M. remain at home with the father for junior and senior kindergarten and that M. should not start school until grade one. The father did not tell the clinical investigator that this was his education plan. Ms Burrows was very surprised when she learned of this at trial during cross-examination. She did not agree that this was in M.’s best interests, nor does the mother.
249The mother’s education plan has changed since the OCL report. She believes that M. should start school immediately in junior kindergarten and that she should socialize with other children. The father’s decision to home school M. until grade 1 is not in her best interests.
24(3)(i) and (l): The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child:
250The mother has demonstrated her ability to cooperate with the father and follow court orders. Despite her concerns about immunization, she has fully complied with Justice Finlayson’s order.
251The father has not demonstrated an ability to communication and cooperate with the mother or comply with court orders. The father has told the mother not to make any medical appointment for the child and that only he alone has the court ordered authority to make medical decisions and appointments. The father is either misunderstanding Justice Finlayson’s 2019 order or wilfully not following it.
252Further, despite Justice Finlayson’s order advising both parties to immediately inform the other if the child requires emergency medical treatment, the father failed to inform that mother until the next morning that the child was at the hospital emergency for most of the night after she accidently ingested the father’s anti-smoking medication left on the table. The father was with the child at the hospital for several hours and had ample opportunity to call the mother. He admitted that he did not do so until the next morning when the child had been discharged.
253The father is also not complying with court orders made in his other contested family case with Ms Bradley. Both Justice Finlayson and Justice Katarynych ordered the father to call the child Jordan, his legal name. The father’s witnesses all testified that the father calls the child Jacob or “Jake”, which is not his legal name. The mother has heard M. repeatedly refer to her baby brother as “baby Jake” following visits.
254The father acknowledged during his testimony that he calls the child his Hebrew name, or the name of his paternal grandfather, which is not his legal name. The father did not see anything wrong with this decision, nor did he think it was confusing for the child.
255It is no doubt confusing to the father’s second child to be called different names in each household. A court transcript of Justice Katarynych’s oral ruling regarding this issue was filed at trial. Justice Katarynych wrote, after once again ordering the father to call the child by his legal name:
“Justice Finlayson made very clear to both parents that the child’s name is Jordan. Here you have someone, 16 months old, who needs to know what name people are calling him, and if he is coming back to his mother’s parenting confused, I am not surprised. Whatever father wants his name to be is not what his name is.”
24(3) (j) and (k): Any family violence and its impact on, among other things, on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child:
256Although I find that the father has never been physically violent to the mother or others, I find that some of father’s conduct meets the definition of family violence, as defined under the Act, and specifically, that the father has engaged in a pattern of coercive, controlling, threatening and abusive behaviour towards his intimate partners, specifically, the mothers of both of his children:
The father’s relentless and unwarranted reports to the Children’s Aid Society and to the police after the separation alleging that the mother was missing, homeless, an alcoholic and drug addict with mental health issues and that the child was at risk in her care. This was vindictive and controlling behaviour and not verified by either the police or the society.
The father’s controlling and psychologically abusive conduct towards the mother during their relationship, such as his financial control, as previously described, both before and after M.’s birth, isolating her from friends and support, and denigrating her parenting skills and opinions.
The credible evidence of the mother’s midwife Cassandra Thomson and friend Kurtiss Trowbridge of the father’s controlling and aggressive behaviour towards the mother after M.’s birth.
The harassing, and verbally abusive texts sent to the mother. The OCL clinical investigator agreed that some of the text messages that she saw during her investigation were abusive and that some of the texts or emails put to her in cross-examination, addressed to both the mother and Ms Bradley, were abusive, intimidating, and controlling.
The corroborating evidence of Ms Bradley, the mother of the father’s second child of the father’s denigrating, emotionally abusive and controlling behaviour towards her during her pregnancy and afterwards.
For example, the father’s emails to Ms Bradley shortly before the birth of their son demanding to be present for the birth, threatening in writing to call and report her to the Children’s Aid Society if the newborn infant was not placed in his care immediately while Ms Bradley recovered in the hospital, and barging into the hospital room after the birth, as detailed previously in this judgment. In particular, the email that he sent to Ms Bradley two days before the birth of their son describing the lengthy court proceedings that she will face if she does not agree to his demands.
The father’s threats or implied threats to Dr. Shepherd, an important service provider and support to the mother. In cross-examination, the father suggested to Dr. Shepherd that she was in breach of her ethical duty by not telling the father about the FASD assessment which was sent to her medical file following completion. He strongly suggested that she should have told him about this and about M.’s pre-natal exposure to alcohol and implied that he may report her to her professional body. Dr. Shepherd has been the mother’s family doctor for almost 20 years and is an important support to her, as well as to the child. The court found the father’s cross-examination of Dr. Shepherd to be threatening, and the threat of a potential complaint against an important medical professional in the mother’s support system to be an indicator of the father’s pattern of coercion and control.
The father’s relentless campaign that the child has FASD, despite the evidence of all medical professionals to be otherwise, is emotionally and psychologically abusive to the mother. He is trying to make her feel worse than she already does about drinking alcohol during her pregnancy and that she potentially caused harm to their daughter.
The father’s statements to his own therapist, as indicated in her notes, and in the father’s own words, that he hopes to get the child, “in his hands” and that after the court hearing, he had “won” the child, whom he views in a proprietary sense.
257Although the father has engaged in counselling to address his “communication style”, which can appear to be “controlling disrespectful and abusive”, as recommended by the OCL investigator in her report, this has not been successful. It was clear in listening to the father’s evidence in this trial that he does not believe that he can be abusive and controlling towards his intimate partners. He is deeply offended by the suggestion and appears to have no insight at all regarding his conduct.
258The court is deeply concerned that granting the father sole decision-making responsibility in these circumstances would be detrimental to the child. The child’s mother would continue to be subjected to this conduct, to the child’s detriment, and the mother’s role in the child’s life would be completely marginalized.
The Weight to be Given to the OCL Report:
259The OCL Report is an important piece of evidence in this trial and the court respects Ms Burrows’ knowledge and experience. However, the father failed to disclose very significant and relevant information to her during the course of her investigation, as noted. Ms Burrows testified that had she known this information at the time of her investigation, it could have changed her recommendations.
260Further, much has changed in the two years following Ms Burrows’ report. The mother had maintained sobriety for almost four years at the time of trial. She moved out of the apartment that she shared with her mother shortly after the report was released, a major concern for Ms Burrows. The mother is stable and healthy and supported. The shared parenting schedule has now been in place for two years and M. is thriving.
261The father is now engaged in very high conflict litigation with the mother of his second child and the evidence demonstrates that he continues to engage in abusive and controlling behaviour with his intimate partners and has made poor parenting decisions, such as refusing to call his second child by his given legal name.
262Ms Burrows acknowledged this and testified in this trial that she could not say that her recommendations would be the same today, but that she would need to conduct a new investigation.
Part 8 – Conclusion and Final Order:
263Although the father is a loving and devoted father to M. and by all accounts, has strong parenting skills (except in relationship to the other parent and his desire for complete control), the court finds that it is not in this child’s best interests that the father be granted sole decision-making responsibility and primary residence.
264The evidence of the father’s controlling and coercive behaviour towards this mother and the mother of his second child is overwhelming. It has not changed since the OCL Report, and if anything, appears to have worsened, particularly towards Ms Bradley, the mother of his second child.
265Conversely, the mother has now maintained sobriety for more than four years. She is also a loving and devoted mother to M. and has strong parenting skills and she will not undermine the father’s relationship with the child. She has a stable and loving home for M. and has been fully compliant with all court orders, contrary to the father.
266The court therefore finds that it is in the child’s best interests to continue with the current shared parenting schedule in place for more than two years, where, by all accounts, M. is thriving, and that the decision-making process proposed by the mother should be implemented. This would permit both parties to be involved in any important decisions regarding the child but will grant the mother the ability to make the final decision in the event of a disagreement to minimize conflict. The mother will not marginalize the father in the child’s life, contrary to the father.
267The court also finds that the mother should be responsible for choosing the child’s school in her neighbourhood, given that the father does not want the child to start school until grade one, and the concern that he will restrict the mother’s involvement with the child’s school should the child attend school in his catchment area.
268The court will continue Justice Finlayson’s order regarding the child’s vaccinations and medical care, as directed by the family doctor, with some modifications, as set out below.
269The court had very limited evidence about the parties’ income for child support purposes, however, will include provisions regarding disclosure and child support in this judgment.
270I make the following final orders:
Decision-Making Responsibility:
The parents shall have joint decision-making responsibilities and shall attempt to make decisions jointly, following the consultation process set out below. However, in the event that the parties cannot agree after full consultation, the mother shall have the final decision with respect to all major decisions regarding the child, including medical and educational decisions, subject to the court orders below.
Both parties shall have the same rights to make inquiries and be given information concerning the child, including but not limited to matters of education, extracurricular activities and health, directly from the relevant sources including teachers, school officials, doctors, dentists, other healthcare providers and other professionals involved with the child, without the necessity of any release, direction or acknowledgement executed by the other party. If this clause is not sufficient for any third party, the parties shall execute any required authorization or direction required by the third party for the release of information to the other party promptly upon request.
Consultation Process:
The parties shall consult with each regarding all important decisions with respect to the child, including decisions about education, non-emergency medical care, religious and spiritual upbringing and significant extracurricular activities. In order to best make joint decisions, the parties shall keep themselves and each other informed about the child's health and education and shall, whenever possible, attend medical appointments, parent-teacher meetings and similar appointments concerning the child together.
The parties shall follow a consultation process with respect to all such important decisions as follows:
Medical Decisions:
Dr. Susan Shepherd shall continue to be the child’s family doctor. Both parents shall follow the medical advice of Dr. Susan Shepherd, or any successor attending family doctor. Both parents shall follow Dr. Shepherd’s advice regarding vaccinations and immunizations for the child.
Should Dr. Shepherd no longer be available, this shall be considered a major medical decision that requires consultation and be subject to this consultation process.
The mother shall provide the father with information about any medical decisions that are required to be made, the options, if any, provided by the child's family doctor or any specialist that she has been referred to and her preferred option. If the family doctor or specialist has provided any written advice or information, the mother shall provide that to the father, unless the father also attended at the appointment and was provided with the same information.
In the event that the father takes the child to an appointment and the mother is not present and it results in the need for a medical decision, the father shall provide the same details to the mother.
Unless the father is present at the appointment, the mother shall provide the information required to make the decision to the father at least seven days before the decision must be made. If he is present at the appointment and received the same information, the mother shall advise him of the decision that she wishes to make at least four days before the decision must be made.
Upon receiving the details, the father shall provide his input within seven days, failing which he shall be deemed to accept the mother's decision.
Neither party shall arrange any non-urgent medical appointments with the child's family doctor or appointments with any other doctors or medical personnel to whom the child is referred without first advising the other party of the purpose of the appointment, and the other parent’s availability for the appointment. The other parent shall respond to such a request within 24 hours to advise if they wish to attend and provide their availability. The parent making the appointment shall forthwith advise the other of the appointment time and location. The purpose of such attendance is to allow both parents to obtain information directly from the doctor or other medical personnel and not for the purpose of direct consultation between the parties, which shall be in writing.
Medical care includes dental care and orthodontic care, and the mother shall inform the father of any dental appointments for the child and the father may attend if he wishes to do so.
Either party may consent to emergency medical treatment for the child if a medical emergency occurs while she is in that parent's care. The parent who obtains such emergency medical treatment shall immediately inform the other parent of the medical emergency and invite the other parent to attend wherever the child is receiving treatment.
Educational Decisions:
The child shall attend school in the mother’s catchment or residential area.
The mother shall provide the father with any major educational decision that is required to be made, including the options (if any) and her preferred option for the child’s school. If she has obtained any written information about the school or program, including any recommendations from the school or any additional programs or tutoring, she shall provide this to the father as well.
If the father provides input that suggests a different option than that preferred by the mother, the mother shall consider it and without limiting the generality of the foregoing, shall speak to the principal or other appropriate professionals or service providers to consider the option proposed by the father. If applicable, the father shall provide any written information or recommendations that he has obtained with his input.
After considering the father's input, the mother shall provide her feedback to the father and shall advise of the final decision that she wishes to make.
Communication:
Except in the case of an emergency, the parties shall communicate about the child through "Our Family Wizard", subject to the parties mutually agreeing to communicate in a different way in the future. This shall include communication with respect to the consultation about important decisions regarding the child's health and education. The annual cost of using "Our Family Wizard" shall be shared equally by the parties.
In the case of an emergency or a time sensitive issue, such as being late for a pick- up or drop off, the parties shall communicate by text message.
The Mother shall retain the child's health card, birth certificate and any other government issued identification in her possession, including the child’s passport. She shall provide scanned, colour copies of all documentation to the father by uploading such documents to "Our Family Wizard" within one week of the program being initiated between the parties. The mother shall be responsible for ensuring the documents in her possession are reissued before expiring and that new copies are uploaded to "Our Family Wizard" once they are issued.
The father and the mother shall not communicate with each other except:
a) To inform the other of any medical appointments or treatments for the child, which may be done through "Our Family Wizard".
b) To inform the other parent if there will be a delay in dropping the child off or picking her up, or if there are any significant events during access, which may be done by text message or through "Our Family Wizard”.
c) To inform the other of day to day care any significant events or milestones in the child's life. This shall be done through Family Wizard. For greater clarification, a new brother or sister for the child is a significant event in the child’s life.
d) Any medical reports or consultation notes, school progress reports, government issued identification for the child or other significant documents concerning the child shall be uploaded to "Our Family Wizard" by the party receiving the original document.
e) To make requests to change parenting days. Such requests shall be made at least 48 hours in advance and the party receiving the request shall respond within 24 hours of receiving the request unless there is an emergency. Either parent can indicate that they are prepared to make the requested change, that they cannot accommodate the requested change or make an alternative proposal. Unless there is an alternative proposal made, there shall be no further discussion about that specific request.
- All communication shall be restricted to sharing information, asking questions or making requests concerning the child and all such communication shall be brief, child focused and respectful.
Regular Parenting Schedule:
The parties shall share regular parenting time with the child pursuant to the following parenting schedule:
Days 1 to 3 with Father from Sunday at 9 a.m. to Wednesday at 9:00 a.m.
Days 4 to 5 with Mother from Wednesday at 9:00 a.m. to Friday at 9:00 a.m.
Days 6 to 7 with Father from Friday at 9:00 a.m. to Sunday at 9:00 a.m.
Days 8 to 10 with Mother from Sunday at 9:00 a.m. to Wednesday at 9:00 a.m.
Days 11 to 12 with Father from Wednesday at 9:00 a.m. to Friday at 9:00 a.m.
Days 13 to 14 with Mother from Friday at 9:00 a.m. to Sunday at 9:00 a.m.
Once the child begins to attend school, the parenting exchange shall change such that the parent whose parenting time is ending shall drop the child off at her school at the beginning of school day and the parent whose parenting time is commencing shall pick the child up from school if she is attending school on a parenting exchange day. On days when the child is not attending school, the parent who is receiving the child shall pick her up at the other parent's home at the same times.
Where the child is not attending school on a parenting exchange day, the parent who is picking the child up for their parenting time with her, shall attend outside the other parent's home to receive the child. Once the parent arrives, they will text the other parent and the child will be brought outside for the parenting exchange.
In the event that either parent is unable to attend to pick up the child personally, they may arrange to have another person, who is known to the child and the other parent, pick her up for their parenting time. In that event, the parent who is receiving the child shall provide the other parent with a minimum of two hours notice that another person will be attending and provide the name of said person.
Holiday Schedule:
The holiday schedules set out below shall take priority over the regular parenting schedule and the regular parenting schedule shall be suspended.
Summer holidays: During the school summer vacation, which commences on the day following the last official school day and ends on the day before the first official school day in the Toronto District School Board calendar, each parent may have two non-consecutive weeks of uninterrupted time with the child. These weeks shall be taken in two one-week periods until the child is six years old, after which time they may be taken in two consecutive weeks.
Each party shall advise the other in writing of the two weeks that they want to have for summer vacation with the child on or before June 1st each year, commencing in 2022. In the event that there is a conflict in the dates requested, the father shall have first choice in 2022 and each even-numbered year thereafter and the mother shall have first choice in 2023 and each odd-numbered year thereafter.
Mother’s Day and Father’s Day: The child shall spend every Mother's Day with the mother from 10:00 a.m. to 7:00 PM, if she would otherwise be with the father, and every Father's Day from 10:00 a.m. to 7: 00 PM if she would otherwise be with the mother, unless otherwise agreed.
M.'s birthday: The child shall spend her birthday with mother in even-numbered years, commencing in 2022 and with the father in odd numbered years.
New Year's Eve and New Year's Day with the mother in even-numbered years commencing in 2022 and in odd numbered years with the father.
Halloween with the father in even-numbered years commencing in 2022 and with the mother in odd-numbered years.
Religious Holidays:
The child shall be with the father for the following Jewish holidays each year:
Rosh Hashanah
Yom Kippur
First day of Passover
The first and last day of Hanukkah
The Mother shall be invited to attend any major ceremonies at Synagogue that the child is involved in, such as the child’s Bat Mitzvah. The child shall be able to participate in the decision to have a Bat Mitzvah or formal conversion to Judaism at the age of her Bat Mitzvah.
The child shall be with the mother for the following holidays each year:
Christmas Eve and Christmas Day
Good Friday through Easter Sunday
Thanksgiving Day dinner
The parties may agree to changes in the parenting schedule from time to time to accommodate special occasions, travel, the child's activities or either parents' work schedule provided advance notice is given. Neither party shall unreasonably withhold his or her consent to accommodate such a request and the child's best interests shall be the paramount consideration.
Extracurricular Activities:
Neither party shall enroll the child in extracurricular activities or recreational programs that occur on the other parent's parenting time without their prior, written consent, through "Our Family Wizard". Such consent shall not be unreasonably withheld and in determining whether to consent, the child's wishes, and best interests shall be the predominant consideration.
Where the parties have agreed that the child be enrolled in extracurricular activities or recreational programs, each parent shall be responsible for taking the child to those activities or programs during their parenting time and for ensuring that the child has any equipment, uniforms, materials or similar items for the activity.
Travel:
If either party plans a trip outside of Canada with the child during their parenting time, then the travelling parent shall provide the other parent with a detailed itinerary and a draft Travel Consent at least 21 days before the intended travel, which the other party shall sign and have notarized and returned to the travelling parent not less than 14 days before the intended travel.
Neither party shall unreasonably withhold their consent for the child to travel with the other, but it shall not be considered unreasonable if the other party proposes to travel to a country that is subject to a travel advisory by the Government of Canada or that is not a signatory to the Hague Convention.
Both parents are free to travel within Canada with the child during their parenting time, but if they are travelling for more than three consecutive days, the travelling parent shall inform the other and provide a telephone number where they may be reached during the travel. The non-traveling parent shall have a video chat time with the child once per week when the child is travelling with the other parent.
Child Support:
Given the parties shared parenting schedule, each parent shall pay to the other the child support table amount based on their current income.
Each parent shall provide the other with a copy of their most recent income tax return and notice of assessment on or before July l , 2022 and each July thereafter so long as the child remains a dependent and eligible for child support.
The child support table amount shall be adjusted on July 1st of each year in accordance with paragraph so long as a shared parenting schedule remains.
Each parent shall pay their proportional share of any special expenses as defined in the Regulations in proportion to their respective income except as provided in paragraph 3 (l). For greater certainty, the special expenses include:
Any necessary medical or dental expenses that are not covered by OHIP, Ontario Works or benefits.
Any necessary educational expenses which include any tutoring or other programs that are recommended by the child's teacher or other school personnel, and post secondary educational expenses.
Any extracurricular activities that the parents agree upon, but neither parent shall be responsible for any proportional share of such expenses unless they have provided their prior, written consent.
Should the parties not be able to resolve the issue of ongoing child support for the child in accordance with the above process, then either party shall schedule a further hearing before me by way of a 14b motion.
271The final orders made above replace all other court orders in this case.
272If the parties are unable to resolve the issue of the costs of this trial, then they may make written submissions to the court. The party seeking costs shall deliver written submissions, including any offers to settles and bill of costs no later than 30 days from the date of this decision. The other party shall have thirty days to respond and will also file written submissions including any offers to settle and bill of costs.
Released: May 6, 2022
Signed: “Justice Sheilagh O’Connell”
Footnotes
- See Catholic Children’s Aid Society of Toronto v. C.G. and D.S., [2018] O.J. No. 1612, 2018 ONCJ 193, per Justice Stanley Sherr at paragraph 15, and the decision of Justice Laura Fryer in Gray v. Gray, 2017 ONSC 5028
- See Catholic Children’s Aid Society v. C.G. and D.S., supra, paragraphs 14 and 15.
- B.L.O. v. L.J.B., 2019 ONCJ 534.
- The father’s parent(s) attended and observed the trial by Zoom so it no longer appears to be the case that they are estranged, although neither grandparent testified.
