ONTARIO COURT OF JUSTICE

DATE: April 12, 2016

COURT FILE No.: Brampton 1003/10

BETWEEN:

MONA HEUER

Applicant

— AND —

JOHN HEUER

Respondent

Before: Justice A.W.J. Sullivan

Decision in an Application for Custody and Child Support

regarding the child Connor Heuer

Heard on: February 1, 2, 4 and 5, 2016

Released on: April 12, 2016

Counsel:

• Glen A. Cook for the Applicant
• E. Llana Nakonechny for the Respondent

SULLIVAN J.:

Introduction

[1] This is a decision in an application for custody and child support regarding the child Connor Heuer. Connor was born on May 19, 2007. From all accounts, Connor is a very intelligent and creative child. He is loved by both parents. He has however been reacting to the difficulties that the parents have had in this separation and the present status quo in which he is splitting his time equally between his mother and father's home.

[2] The applicant mother, Mona Heuer, was born May 17, 1974. The respondent father, John Heuer, was born August 4, 1968. They married in March 2006.

[3] Both parents are seeking custody or in the alternative, joint custody, with Connor primarily living in one residence where he would attend school. In the alternative, Ms. Heuer is seeking a parallel parenting plan.

[4] Despite their differences, both parents are in agreement that the current status quo is not meeting Connor's needs. They both recognize that Connor would thrive being in one home from which he would attend school and spend time with the other parent. They both agree that the other is a generally good parent to Connor. Their differences have manifested themselves around communication, timely decisions in Connor's interests and personal characteristics that impact on their ability to parent Connor.

[5] Each parent believes their parenting plan meets Connor's needs on a weekly basis during the school year given Connor's age and stage of development and the particular strengths and weaknesses of each parent.

Orders Requested by the Parents

[6] As set out Ms. Heuer's amended application dated April 4, 2014:

a) custody of Connor;

b) child support;

c) an order that she may obtain travel documents, including Connor's passports and requests the right to travel without the consent of the respondent father or in the alternative with notice;

d) an order that Mr. Heuer shall not communicate with her by phone, mail, text or other electronic means except in the case of emergency;

e) an order that any communication regarding their son Connor shall be by way of communication book only.

[7] In Mr. Heuer's Answer dated April 3, 2014 to the amended application he requests and states the following:

a) he disagrees with the request by the applicant for sole custody of Connor. He requests a final order for sole custody of Connor. In the alternative, he requests an order for joint custody of the child;

b) that the parties continue to share the child's residence as set out in the schedule that has been in place since shortly after the date of separation which the respondent father attached as Appendix "A" to his Answer;

c) an order that the parties continue to share the child's special and extraordinary expenses equally as they have done since separation;

d) in the alternative, an order imputing income to the applicant for the purpose of proportionate sharing of the child's special and extraordinary expenses.

SUMMARY OF WITNESS TESTIMONY

Ms. Heuer's Testimony

[8] After Connor's birth, Ms. Heuer testified that she took a year off work to care for her son. During this time, Ms. Heuer was working outside of the home. She indicated that she was the parent that primarily cared for Connor at birth, looking after his daily needs: bathing, feeding and caring for his emotional well-being. She arranged and took her son to his necessary doctors' appointments and arranged activities for him such as swimming lessons at about three months of age. She recalls that Mr. Heuer in the evenings after work assisted in caring with the feeding and bathing and helped with the evening routine as most parents who work would do.

[9] Ms. Heuer recalled that Connor was not the best sleeper for the first eight months of his life.

[10] When she returned to work, both parents testified that they remember arranging for home daycare for Connor.

[11] Ms. Heuer testified that Connor began to have emotional difficulties in 2010 when he was about 4 years old. This was after the parents had separated when he experienced his first large tantrum screaming, kicking and biting. Ms. Heuer would let it run its course and did speak to the child's doctor, Dr. Bai, about this.

[12] Ms. Heuer testified that when this happened a second time she informed Mr. Heuer of this and his response, as she recalls, was that she simply had to deal with it. Ms. Heuer remembers contacting the Peel Children's Centre in the spring of 2011 and this agency conducted a home visit just after one of these episodes.

[13] Ms. Heuer testified that according to Mr. Heuer, these tantrums did not occur when he was caring for Connor during the current week-about schedule. Mr. Heuer confirmed this in his testimony and there was no evidence to the contrary from other sources.

[14] When asked to describe these tantrums between 2010 and 2015, Ms. Heuer indicated that they consume a small percentage of the time when they are together, but when they do happen they are big and noticeable. She spends her primary amount of time just caring and helping Connor with his schooling and his activities which he enjoys: swimming and skating. They also attend a local church together in New Tecumseth, Ont. where she moved to from Brampton in the fall of 2014 to her parents' home. During every other week when Connor lives with his mother he has between a 45 minute to one hour commute to and from his school in Brampton.

[15] Ms. Heuer testified about Connor's increased tantrums that he has been experiencing while in her care and explained how, in January 2015, there was an incident where Connor used her as a punching bag. Connor had on this occasion lucid hallucinations and started fighting imaginary characters in his room, telling his mother that he was trying to keep safe. After a second night of the same incidents, Connor was brought to a local hospital in Alliston, Ontario, and eventually on January 28, 2015 to the Hospital for Sick Children in Toronto where he was seen by medical staff and discharged the same night. The family was informed by the hospital staff that Connor's actions were most likely caused by stress and anxiety.

[16] The doctors at the Hospital for Sick Children referred the parents and Connor to the Peel Children's Centre, the Brampton Civic Hospital and Youthdale for an assessment and counseling.

[17] Ms. Heuer testified that when she contacted the Peel Children's Centre, they suggested they could assist with some more counseling but not immediately. Youthdale did not seem to be appropriate, according to her research, because of the older children that it tends to deal with are in more serious crisis situations. The Brampton Civic Hospital was ruled out as Dr. Bai, Connor's doctor, indicated that she did not like the approach of certain staff at this facility. There was eventually an assessment at the Peel Children's Centre where both parents attended on June 15, 2015. At this meeting no further recommendations or counseling was recommended.

[18] When Ms. Heuer was asked to describe Mr. Heuer's care of Connor when in his care, she testified that Connor has eczema and mild asthma. He has been prescribed two different puffers. He was given an EpiPen for an insect bite he sustained and reacted to some time ago. He does not often use the EpiPen.

[19] Ms. Heuer was critical of Mr. Heuer's care of Connor, indicating that at times he does not pay attention to Connor's eczema. According to Ms. Heuer, at times when Connor returns from his father's, his eczema reappears around his ears, elbows, groin, and in particular the back of his knees where there might be extra dry skin and some bloody areas and scabbing. Ms. Heuer indicated the eczema medication is very effective and that when it is applied the eczema clears up within 10 days. When asked if she communicated with Mr. Heuer about this, she indicated she might have sent an email but does not recall his response but probably was simply told off by Mr. Heuer as their communication is difficult.

[20] Ms. Heuer, in her amended application, claims that Mr. Heuer is a cyberbully through emails and texts, questioning her capacity to parent and generally seeking to harm her self-esteem. This is one reason she is seeking a non-communication order against Mr. Heuer and that all communication take place through a communication book restricted to issues about Connor only. Ms. Heuer did not present any specific evidence as exhibits to substantiate these claims and support this request at trial.

[21] Ms. Heuer described the home setting in New Tecumseth where she lives with her parents and Connor. She testified that the grandparents support her parenting of Connor and help out with Connor with Mr. O'Meara, the maternal grandfather, bringing Connor to swimming and skating as well as to church. Ms. Heuer testified that Connor will go to his grandfather to ask questions. Connor's relationship with his grandmother is not as physical as with the grandfather. She described Connor's grandmother as Connor's personal chef, as she will prepare meals that he enjoys. Connor's grandmother will read to Connor and they will banter back and forth and will do more outside activities in the summer. Ms. Heuer described that Connor directs his relationship with his grandparents and they wait to see what he wants to do.

Connor's Montessori School: Testimony of Teacher

[22] Both Mr. and Ms. Heuer report that Connor is doing well at school. Connor is in grade 3 at Rowntree Montessori School in Brampton. There appears to be no negative feedback from the school regarding Connor's behavior other than a few incidents described below. Both parents testified that Connor is popular with his peers as well the younger children and gets along well with staff.

[23] Connor's grade 3 teacher Ms. Abeya Singh was called as a witness by Mr. Heuer and informed the court of the following:

[24] Ms. Sonia Abeya Singh is Connor's third grade teacher at the Roundtree Montessori School located in Brampton.

[25] Connor has been going to the school since grade 1 which now makes that 3 years.

[26] Ms. Abeya Singh has been teaching for some 13 years and has been Connor's teacher for the past six months.

[27] She describes Connor as an active and smart child. She testified that he processes information at a fast pace. However, he needs to focus more and learn to focus in order to sustain information and better learning methods.

[28] Ms. Abeya Singh describes Connor as a student that is fun to teach, very sociable and creative in his activities and liked by his peers.

[29] From her testimony and a review of his academic record, he is thriving at the school, is open to learning, responds well to the teaching methods of the school that always attempts to excel its students beyond the Ontario academic standards.

[30] When describing her interaction with Connor's parents, Ms. Abeya Singh testified that she has had only a pleasant experience with both parents and both are fully involved in Connor's education. When asked if Connor showed any fluctuations in performance at school after being asked if she knew of the access schedule between each household, she did indicate that there are periods of time when he has not attended school. When he misses school there is a dip and difficulties for Connor in his concentration which takes for him to learn the techniques and regain focus. From her perspective, Connor's favorite subjects are French, music and composition. Connor is currently preparing for a speech night and had finished his first draft of the speech as well as preparing for this science test. Connor generally is a happy child and pleasant with staff.

[31] Ms. Abeya Singh did describe how she, along with other senior staff at school, developed an IEP (Individual Educational Plan) for Connor, filed as Exhibit 24 at trial. This was developed based on observations of the staff to assist Connor with his studying. Specifically, the IEP consists of the following accommodations for Connor:

• extra time to complete tasks;
• priority seating to avoid distraction;
• extra time with the teacher one-on-one.

[32] Ms. Heuer testified that Connor does well in science, math, French and English, although he needs some assistance in English. He obtains A+ and A- as his overall marks. His lowest marks tend to be in gym and computers with Bs and Cs. Ms. Heuer does report that his spelling tends to be weak and he has some accommodation with this in that he is permitted to have the assistance of a scribe. He does have some difficulty in organizing writing and composition. Here he is allowed to provide oral answers to exams rather than always have to write them out.

[33] It is interesting to note that Connor's school IEP was developed prior to the parents obtaining the complete psychological assessment of Connor. This assessment was submitted in evidence at trial, entered as Exhibit 30, and prepared by Boomerang in part by Dr. Susan Lambert Ph.D. C.Psyc., child psychologist. The school's IEP does provide accommodation for the specific areas of Connor's needs as identified in the Boomerang psycho-educational assessment, specifically around organization and accommodation for Connor's attention span as well as his writing skills. The Boomerang Report was entered as Exhibit 30 at trial.

[34] In the Boomerang Report, Dr. Lambert concludes that Connor's symptoms appear to be consistent with Mild Attention Deficit Hyperactivity Disorder with a combination of insufficient in attention symptoms DSM –V, 314.01. Importantly, Dr. Lambert indicates the following regarding Connor:

[35] Information gathered during the course of this assessment highlighted additional issues with Connor's social, emotional and behavioral functioning. Connor's mother has been having ongoing issues with Connor's behavior at her home where he can be aggressive and disruptive. Connor's parents notice that his behavior tends to be related to changes in his environment. In particular, Connor's parents have different parenting styles and there is a lot of conflict between them in relation to their divorce. During the assessment. Connor himself identified his own social and emotional issues. He reported various problems with home and school, with his mood and overall feelings about himself and his family. Connor's behavioral and social emotional issues may be explained by difficulties adjusting to changes in family dynamics. At this time, Connor's symptoms appear to be most consistent with an adjustment disorder with mixed disturbance of emotions and conduct (DSM – V, 309.4)…... Connor's social, emotional and behavioral functioning may present differently once family dynamic issues have been resolved.

[36] Mr. Heuer also testified that Connor was doing well at his school and that it would be his intention to have Connor remain at his current school if granted custody as he recognizes the benefits that the school provides Connor and this would maintain a stable feature and routine in Connor's life. This, however, appeared to be somewhat contingent on Mr. Heuer not having to pay child support in order to pay for the school tuition.

[37] Ms. Heuer's plan, if granted custody, is to move Connor to a school in the New Tecumseth area. This is in part because she recognizes that Connor dislikes the commute to and from his present school in New Tecumseth. According to Ms. Heuer, Dr. Bai had concerns about how this drive was affecting Connor and influenced, in part, Ms. Heuer's thinking when she offered to Mr. Heuer temporary sole custody of Connor in February 2015, and a second time in March 2015. Ms. Heuer testified that each offer was rejected by Mr. Heuer which he contests and in his testimony provided two emails, entered as Exhibit 2. He testified that when the February 2015 offer was made he needed a short time to prepare for this. This was confirmed in Exhibit 2.

Missed School While in Ms. Heuer's Care

[38] Ms. Heuer testified that in 2015 Connor missed 28 days of school while in her care. When asked by her counsel about missed days for this year, 2016, she indicated that it appears to be in the same ballpark; in other words he might again miss 28 days or some 2.2 days per month if he continues to experience some of the same emotional difficulties and tantrums while in her care as in the recent past.

[39] Ms. Heuer testified that at times Connor wakes up and is not in a very good "headspace". She indicated that something as simple as turning on a light might trigger a tantrum. When this happens she describes asking the question "is this going to be a good day or not?"

[40] Ms. Heuer explained that Connor's tantrums have grown in intensity and physicality. In 2015 he was screaming and kicking. When asked if there appears to be this behavior at his father's home Ms. Heuer indicated that this does not seem to be the case.

[41] Ms. Heuer explained that she believes that since the parties change the exchange days from late in the weekend to Friday evening there have been less of these difficult mornings.

Ms. Heuer's Mental Health

[42] Ms. Heuer explained that in 2013 she has had a diagnosis of Borderline Personality Disorder and has struggled with depression and some emotional health issues since she was 19 years old and attending university. She has experienced anxiety and at times suicidal thoughts. Ms. Heuer also described her struggle with her abuse of prescription drugs and at times obtaining these illegally, causing her to receive four criminal charges. When asked by her counsel if this affects her ability to parent Connor, she testified that she felt it did not.

[43] In 2014 she went to the Center for Addiction and Mental Health (CAMH), in Toronto where she underwent a form of Dialectical Behavior Therapy. Ms. Heuer testified that she is not on medication presently. When cross-examined on this she indicated that she only recently stopped her medication with the knowledge of her psychiatrist Dr. Hussain. She was taking at one point Ativan and Zoloft but in January 2016 had stopped this. No information was presented from her psychiatrist in terms of his participation in this decision. The only evidence received at trial from Dr. Hussain was in the OCL section 112 report, dated July 23, 2015 prepared by the clinical investigator, Ms. S. Kuiack, entered as Exhibit 1 at trail. Ms. Kuiack reports that when Dr. Hussain was interviewed by her he said that he last saw Ms. Heuer in June 2014 and that he had 3 appointments with her and that there was no plan for future follow- up. This evidence was accepted by all at trail.

[44] Ms. Heuer, when explaining her recent struggles with prescription medication, testified that around 2008 she started having problems with the medication given to her to manage her migraines, and she began using her medication in non- prescribed ways.

[45] When Ms. Heuer returned to work after Connor's birth, she indicated that she was feeling stress and had difficulties at work. She testified that on one occasion she fainted at work. She claims this was linked to her medication for migraines rather than potential abuse of medication. This is unclear from the testimony. She was dismissed by this employer and she sued for wrongful dismissal.

[46] Ms. Heuer eventually reached an out-of-court settlement in this lawsuit. No actual evidence on the settlement was presented; however, Ms. Heuer testified that Mr. Heuer misappropriated her settlement funds. Mr. Heuer completely disagrees with this. In his evidence he indicated that the funds were used as agreed upon between the parties. Ms. Heuer's testimony and evidence on this point is somewhat confusing. In her amended application she claims she had no control over her finances. In Mr. Heuer's testimony he presented a prepared spreadsheet, Exhibit 18 in the trial, in which he shows that Ms. Heuer withdrew funds from their joint bank account in July 2010, just prior to her return from the United States where she was attending therapy for her drug use, just after the time that this settlement money was paid.

[47] Ms. Heuer also testified that Mr. Heuer was to repay her parents who advanced funds for her to attend treatment in the United States for therapy. However, again Ms. Heuer's testimony about this is not accurate. Mr. Heuer, in his testimony, provided emails, Exhibits 19 and 20 at trial, that clearly suggests that Ms. Heuer was defending Mr. Heuer against a lawsuit commenced by her parents against Mr. Heuer for the repayment of money that they provided to her to go to the Malibu treatment centre. Upon the plain reading of these emails, there is no suggestion contained within this exchange of correspondence that Ms. Heuer felt that Mr. Heuer misappropriated any funds from her settlement with her former employer or that they were obligated to repay her parents for a loan.

[48] In Mr. Heuer's testimony he submitted Exhibits 16 and 17 which indicate that he also contributed towards the rehabilitation program that Ms. Heuer attended in the United States in the spring of 2010 at the Malibu Beach Recovery Center in California. Exhibit 16 and 17 show expenses paid by Mr. Heuer for a total of $23,166.00.

[49] Ms. Heuer, in her pleadings and testimony, indicated that she was unaware of their financial circumstances and that Mr. Heuer controls their finances. Further, Exhibits 19 and 20 presented by Mr. Heuer indicate that they both were in agreement regarding defending the lawsuit brought by her parents.

Ms. Heuer Attending Drug Rehabilitation Treatment in United States

[50] In 2008/09 Ms. Heuer experienced a cluster of self-harming activities that she experienced. At trial she did not explain in detail what form this self-harm took. Mr. Heuer, in his testimony, did testify that there were some cutting incidents that he remembers or was made aware of. Ms. Heuer testified that at no time did she ever feel suicidal. She testified that when she attended the program in California she felt overall it was helpful to her. It was here where she took counseling and it was during this time that she realized the difficulty she was having in her marriage to Mr. Heuer.

[51] It is not certain who initiated the separation between the mother and father. However, in the spring of 2010 when she returned from California the parents both testified that this is when the separation occurred.

[52] Mr. Heuer testified that he remembers being asked to leave the grandparents' home in Brampton where he was living and caring for Connor just before Ms. Heuer returned. Mr. Heuer and Connor were residing at the maternal grandparents' home in the spring of 2010 when Ms. Heuer left for California for treatment as the parties were in the process of selling their matrimonial home in Brampton and they had planned to purchase the maternal grandparents' home which never materialized as the parties separated.

[53] Mr. Heuer testified that in 2010 he remembers having to stay with friends for a few weeks and then he got his own place and has had his own place ever since. Mr. Heuer testified that he recalls that his son Connor would have been about 3 when he was asked to move from the grandparents' home. He remembers Connor being confused when the move took place and recalls talking to his son about going to spend time with friends and remembers how Connor felt he was on a camping trip.

[54] Ms. Heuer testified that upon her return in July 2010 from the United States treatment program that this was a "tricky time" for her.

[55] Upon her return, Ms. Heuer began living with her parents in Brampton. Mr. Heuer, in his testimony, recalls that on June 11, 2010 he brought Connor to his mother's. He remembers trying to be friendly with Ms. Heuer. At this time he was seeing Connor on Wednesdays and had daytime access on the weekends. He recalls feeling that his access was somewhat restricted at the time. He recalls this changed in mid-August 2010 when he met with Ms. Heuer at a local coffee shop to discuss the separation. It was here that the 5/2/2/5 parenting schedule was put in place for Connor to be with each of them. At the time they both were living in Brampton, Ontario.

[56] Mr. Heuer recalls shortly thereafter voluntarily paying monthly child and spousal support to Ms. Heuer in the amount of $600.00 for child support and $1500.00 spousal support. The spousal support remained in place for 2.5 years.

[57] In the fall of 2010, Ms. Heuer's parents left for the Middle East as Mr. O'Meara, her stepfather, had a an employment contract. Within a few months after living at her parents' home it appears that Ms. Heuer was asked to leave her parents' home by them. This was in part due of the difficulties in the lawsuit that the maternal grandparents had with Mr. Heuer for the funds advanced by them to assist their daughter to attend treatment in the United States. When Ms. Heuer was asked in cross-examination if she has had rifts with her parents, as she resides with them currently and this arrangement is part of her current plan for Connor, she felt that things were generally ok now and in the past. When in cross-examination she was reminded of how her parents in 2011 had asked her to leave their home, Ms. Heuer was not certain as to the reason. In questioning, Ms. Heuer eventually agreed that her stepfather had to smooth over a rift between her and her mother caused by the lawsuit between them and Mr. Heuer. This she agreed to after being shown an email of March 28, 2011, Exhibit 13, from her stepfather to her, promising to withdraw all claims in the lawsuit.

[58] Mr. Heuer testified that when Ms. Heuer was told to leave her parents' home in March 2011 he assisted her in finding an apartment in the same building complex in which he lives. She eventually returned and is living with her parents. Ms. Heuer admits that her relationship with her mother has its ups and downs.

[59] Both parents testified that the 5/2/2/5 schedule for Connor between each of their homes which eventually transformed into a week about which is currently the status quo. Mr. Heuer, in his testimony, recalls this period of time, March 2011 to June 2012 as being cooperative between them both for Connor's sake. He recalls them having dinners together and doing joint activities. On one occasion they vacationed in Vancouver and this period was very friendly between them both. Mr. Heuer testified that when Ms. Heuer returned to live with her parents in June 2012 this is when their relationship began to deteriorate. It appears that there were difficulties with his attempting to be involved with Connor's health issues which lasted up to mid-2015.

[60] On one occasion around this time when Mr. Heuer called Dr. Bai's office for a meeting, he was informed that there was a restraining order against him in relation to Ms. Heuer. It remained unclear where exactly this information originated?

[61] Mr. Heuer recalls that in 2013 he learned of difficulties that Ms. Heuer was having, including a cluster of self-harm activities such as cutting as he noticed fresh marks on her. This led to criminal charges against Ms. Heuer for uttering false documents, and related charges in relation to her use of prescription drugs in a non-prescribed manner. There appears to be four charges in total; the last being in April, 2015. Regarding the last charge, Ms. Heuer received a conditional discharge in April, 2015. On cross-examination, Ms. Heuer described this last charge to be based on the fact that she obtained the prescription from someone not authorized to provide her with a prescription. She did not herself forge this document. It should be noted that Ms. Heuer did not updated her 35.1 affidavit found as part of the trial record about her 2015 charges. This was pointed out by the court to the parties.

[62] When questioned by her counsel if Ms. Heuer needed to attend hospital because of her improper use of her medications she indicated she did not need to. In cross-examination on this issue it was pointed out to Ms. Heuer that on at least three occasions she did need to attend hospital because of her misuse of her medication. On two of these occasions Mr. Heuer needed to bring her to the hospital. Ms. Heuer's response was generally evasive on this issue.

Ms. Heuer's Move to New Tecumseth

[63] Ms. Heuer is currently living in New Tecumseth, Ontario, with her mother and father. Connor spends every other week there with his mother. This is approximately 86 km between this home and Connor's current school (Exhibit 25 Google Maps). It is between a 45 minute to 1 hour drive both ways twice a day for Connor to attend school. There was some contradiction in Ms. Heuer's testimony as to when she knew about her plan to move to New Tecumseth. She indicated that it was known for quite some time. When asked if that was the case why it was not put in her amended application there was no clear answer. However, when Mr. O'Meara (Mr. Heuer's stepfather), testified he indicated that at best to his recollection was that the plan to move took just 2 to 3 months from deciding to sell the Brampton home. He recalls that they were looking for a location somewhat in between a country and urban and about one hour's drive to the Lakeshore campus of Humber College where he continues to teach.

[64] Ms. Heuer's plan of care for Connor in New Tecumseth is as follows:

• Ms. Heuer, Connor and his dog are living with her parents in a 4000 ft. house where they have their own rooms. This is in a newer subdivision. In this neighborhood Connor has several friends on his street and he enjoys playing outside in this city / rural setting.

• Conner attends church which is part of Ms. Heuer's support network. Connor also enjoys karate and skating, as well as his scooter and his bike. Ms. Stewart testified that she gave Connor the martial arts course as part of his Christmas present. The philosophy this particular program combines is martial arts and Tai-Chi which has assisted Connor in his moods and energy level. The children in the neighborhood are popping in to each other's homes and there is always constant supervision between the parents in the local households. Families in the neighborhood get along together fairly well and there are local barbecues.

• If granted custody of Connor, Ms. Heuer's plan is for Connor to move from his current school which as indicated at trial is a source of support for Connor. If this court was to keep the current status quo this would require Connor traveling in the morning and evening for approximately 45 minutes to one hour twice a day while with Ms. Heuer.

• Ms. Heuer's source of income currently is her monthly ODSP pension as well as $600 per month that Mr. Heuer pays in voluntary child support. Most, if not all of these funds are spent on Connor. Mona Heuer contributes $450 per month towards Connor's education at the Montessori school where he attends.

• Ms. Heuer indicated that if she is granted her proposal for parallel parenting she would want to maintain decision-making over areas of Connor's school and religion and that Mr. Heuer could have decision-making over any health care issues for Connor.

Robert O'Meara

[65] Robert O'Meara is the stepfather of Ms. Heuer. He provided his main testimony by way of affidavit, Exhibit 6 to the trial. In this affidavit, Mr. O'Meara testified that Connor and Ms. Heuer have lived with him and his wife since July 2012. This would have been from 2012 to 2014 in Brampton and from 2014 to the present at 71 Caruthers Crescent, New Tecumseth, Ontario.

[66] He recalls that except for the period of time that he was out of Canada working from 2010 to 2012, he has had contact and shared activities with Connor weekly, if not daily. He describes these activities as bringing Connor to school as needed, attending some school field trips and helping to bring Connor to doctor appointments. He described how he helps with Connor by bringing him to skating and swimming activities. Mr. O'Meara also explained how he spends time with Connor around the house and attends church with him and how he teaches Connor about his Christian upbringing as Connor was baptized as a Catholic.

[67] Mr. O'Meara recalled that Connor acted as a normal child in the first two years of his life. Between the second and third year, Mr. O'Meara described Connor as starting to act out much more so than being a "terrible two". Mr. O'Meara testified that by this he meant that Connor's behavior seemed to be radically different by screaming and running off, and it appears that individuals had difficulty calming him down and other than making sure Connor would not hurt himself very little could be done when Connor acted this way. He testified that it is difficult to determine what sets Connor off other than an intense reaction to being asked to or told to do things such as taking a bath, preparing for bed or putting away his toys.

[68] In Mr. O'Meara's affidavit he indicates that after returning to live in Brampton in July 2012 from his overseas employment, he began to notice Connor's "extreme acting-out behavior". This was towards both the grandparents and his mother such as shouting, kicking and punching. Again, this was usually triggered by a refusal to listen and behave in a manner expected for a child of his age.

[69] According to Mr. O'Meara, this acting-out also occurred in transition periods when moving from either the father's home or the mother's home with the shared custody arrangement that is currently in place.

[70] According to Mr. O'Meara, last fall in 2015 Connor said that he didn't want to live with his father. Mr. O'Meara testified that Connor told him of how his father was strict with Connor when doing homework together. He testified that Connor said his father on one occasion physically threw a book at him. Mr. O'Meara testified that he always tries to talk to Connor and particularly explains that his father will always be his father.

[71] Mr. O'Meara explained in his affidavit how Connor would refuse to come out of the car during some transitions between his mother and father's home. The grandfather indicates that he witnessed Connor expressing anger towards his father.

[72] On one of these occasions, Ms. Heuer recorded one of Connor's difficult episodes and gave this to Connor's pediatrician, Dr. Bai. It appears that Connor missed school for one week after an angry episode which occurred in November 2015.

[73] Overall, Mr. O'Meara suggested in his affidavit that Connor does not want to live with his dad according to Connor's expressed desire.

[74] Mr. O'Meara testified that Connor's more intense and physical tensions began in earnest in January 2015.

[75] Mr. O'Meara supplemented his affidavit testimony with in-court testimony indicating that presently there are mild and sometimes less mild outbursts.

[76] He described his understanding of his stepdaughter Ms. Heuer's illness which he described as a mental illness as well as a lifetime struggle with addiction to prescribed medication.

[77] Mr. O'Meara reviewed with the court his understanding of the dispute with John Heuer around the $45,000 provided to Ms. Heuer in order for her to obtain treatment in California. His understanding of this was that this money was a loan that he and his wife extended to his daughter and Mr. Heuer and not a gift. In other words, it is a debt that needed to be repaid and that the money that was coming to Ms. Heuer for a settlement with her former employer should have been paid towards this advancement. He testified that as a Christian he does not hold any animosity against anyone. However, in cross-examination, he indicated that he believes Mr. Heuer stole this money and that it was Mr. Heuer's responsibility to pay back this money although the money was advanced to both Mr. and Ms. Heuer.

Questioning of Ms. Stephanie Kuiack of OCL

[78] Stephanie Kuiack's report was filed as the first exhibit in this trial. Ms. Kuiack was asked to testify to provide further explanation. Additional information surrounding the OCL report is the Notice of Dispute filed by Ms. Heuer, entered as Exhibit 14. The court also received Ms. Kuiack's curriculum vitae ; Exhibit 15 in this trial.

[79] Ms. Kuiack, when questioned by Mr. Cook on behalf of Ms. Heuer, stated that she did not agree that the primary concern that dictated her recommendations is the distance that Connor currently resides between Ms. Heuer's home and his school in Brampton. When questioned by Mr. Cook about whether she was aware of Mr. Heuer's plan to have Connor in pre-and after school care during the week, Ms. Kuiack indicated that she was unaware of this. When asked if this would change her recommendations, she indicated that it would not.

[80] Ms. Kuiack was asked if her recommendations would change if Ms. Heuer would plan to move back to Brampton. She answered no. Importantly for the court is that Ms. Kuiack indicated that her recommendations are primarily formulated on the interaction between the mother and the father, both with her and how they operated in relation to their plans and care for Connor needs. Ms. Kuiack's in-court testimony and her report, filed as Exhibit 1, was similar in terms of what were the principal issues that influenced her recommendations. Ms. Kuiack testified as follows:

"So I had to choose sole custody for one or the other. And over the course of the time that I spent with the family it was my decided opinion that Mr. Heuer was not only claiming but in his actions working very hard to try to cooperate, to be inclusive, to co-parent as effectively as possible. And what I witnessed or observed with Ms. Heuer was that she was making unilateral decisions, she was making choices around Connor's health care without consulting Mr. Heuer or anyone, and that, I found, was very, very worrisome, especially given that we were in the midst of trying to figure out what was the best course of action and care for Connor with such serious behavioral issues. And we had, in the time that I was with the family; I also feel that Ms. Heuer misrepresented her behavior in terms of finding care to myself. What I discovered is that she had talked about finally getting an appointment for Peel Children's Services but she had failed to tell me that she had actually revoked consent or it was a no show for another appointment that Children's Aid Society finally had to come and step in and require that she attend. This was all very worrisome to me in terms of trying to imagine these two people working together."

[81] Ms. Kuiack was questioned as to why in her report she claimed that Connor's tantrums grew worse when he moved to New Tecumseth with his mom? Her reply was that this information was found in the discharge summary from Connor's visit on January 28, 2015 to the Hospital for Sick Children in Toronto. This is what the hospital staff were informed by Connor's mom, Ms. Heuer, when they were asking for background information about Connor's tantrums. This document was not entered into the record but used to question Ms. Kuiack. She remembered this document but pointed out to Mr. Cook that it was missing a cover page which contained the information that she was speaking about.

[82] Ms. Kuiack also testified, in response to Mr. Cook's questions, that although Connor did indicate at times wanting to live at his mother's home and that he expressed this as being his "principal home", she indicated that from her perspective Connor's views were fluid. An example of this was one of Connor's last statements to her which is noted on page 15 of her report when she asked Connor if he had anything else to offer and he stated the following: …. he wishes he could continue to go to school at Roundtree Montessori school and spend weekends and summers with his mother. Connor said that he would like to spend Father's Day and his father's birthday with his dad and Mother's Day, her birthday and his own birthday with his mom...

Francis Young

[83] Ms. Young testified that she was an outreach youth worker with the Anchor Church. It was in this capacity that she met Connor and his mother and has known them for about 2 years.

[84] Ms. Young testified that she has not seen Connor that much since the beginning of 2016. The last time was around Christmas 2015. Before then they would see each other every two weeks. Ms. Young testified that she was aware of Ms. Heuer's addictions struggles as Ms. Heuer had talked to her about this. She was also aware of Ms. Heuer's criminal convictions for creating false prescriptions for her own use. Ms. Young indicated that Ms. Heuer is in the process of completing some of the community service hours though the church that she received as part of a sentence in relation to her criminal convictions.

[85] When asked if she had observed Ms. Heuer and Connor together, she indicated that she had. Ms. Young indicated that Ms. Heuer takes the time to listen to Connor. This, she noticed, in particular, when Connor would have outbursts. She noticed that Ms. Heuer would talk to him. These outbursts, from her point of view, were not extreme belligerent behavior, but sometimes Connor would talk over the children and just generally want attention when it was not appropriate. Ms. Young stated that Ms. Heuer spends time to find the best path for Connor when he has had these outbursts.

[86] Ms. Young testified that Connor is an incredibly bright child. When asked what this means, she indicated that he processes information in the forward manner. She gave an example of what she meant and explained how Connor told her he knew he was caught in the middle of his parents' separation. She explained how she talked to him about how it wasn't his fault but that it was just the way it was.

[87] Ms. Kuiack stated that when she first met Connor she noticed that he did try to attract special attention by mainly speaking over children in a group setting but nothing extraordinary.

[88] She has had time to spend with Connor in a one-on-one chat situation, speaking about his school and she knows how he is very proud of his school work. At times he would declare that he is a year ahead of other students. He was quite proud of his math work and his recitation that he is working on for a school project.

[89] Ms. Young did testify that she was aware of Connor's psycho-educational assessment as her church had been asked to assist with some funding for this.

[90] When asked if she was aware of her reporting obligations under the Child and Family Services Act of Ontario, she indicated that she was. Ms. Young added that on one occasion she had seen a journal of Connor's that concerned her, although she did not think it was worth reporting to the CAS but she did bring it up with Ms. Heuer so that Connor's doctor, Dr. Bai, would know. Ms. Young did not give examples of what concerned her nor was this journal entered into evidence. Later when Dr. Bai testified it was not clear whether this issue was ever raised with her.

Dr. Bai's Testimony

[91] Dr. Bai testified that she has been providing Connor's principal medical care since about July 2009.

[92] He is overall a healthy boy. He had tonsillitis in 2009. This was about the time when his parents were looking for a pediatrician.

[93] When Connor was younger she would see him on average about 4 to 5 times per year. This is not unusual for young children who have a tendency to catch colds and infections from daycare and school. As a child grows older there are fewer visits in her experience.

[94] She indicated that she would see Connor with both his parents at times. However, usually it is his mother, Ms. Heuer who brings Connor to appointments. Over the past year, 2015, both parents have been present. She noted that it is not unusual for one parent to be busier with work and therefore not able to attend all the appointments. Over the years Ms. Heuer has been the principal parent bringing Connor to appointments and as Dr. Bai indicated she is very involved with Connor's health issues.

[95] Last time both parents were present was in April 2015 for Connor's vaccination.

[96] When questioned, she did note that the parents have had difficulty around consensus on Connor's treatment; in particular when it came to the counseling and locating a resource to conduct an assessment for Connor's emotional well-being that has caused his tantrums.

[97] Dr. Bai said that her relationship with both parents is generally good, as it is with the other hundreds of parents to her patients. She did, however, voice some frustration and indicated that as Mr. and Ms. Heuer have had their communication difficulties, it made her practice difficult as she could not coordinate with them visits at her office. The parents need to deal with that better, as she put it.

[98] She did indicate that her relationship with John Heuer was reasonably stable. In February 2015, he did complain to the College of Physicians that he was not being included in treatment plans for Connor. This was eventually resolved with Mr. Heuer and he withdrew this complaint.

[99] Dr. Bai was asked if she had ever seen Ms. Heuer in a one-on-one basis, in other words for Ms. Heuer's own needs. She testified that she had not, contrary to what Ms. Heuer had suggested.

[100] Dr. Bai was asked if she had any comments to make regarding her statements as recorded by the OCL in Exhibit 1 to this trial. Dr. Bai reviewed her statements found on page 29 and 30 of this report and testified that the only comment she would make is that the stressors in this separation on Connor affect him both physically and mentally. In other words, they have an impact holistically on Connor.

It was evident from Dr. Bai's testimony and other information that she had provided through the OCL's report that Dr. Bai's principal interest is focused on Connor's welfare. It was also evident that she is prepared to work with both parents now and in the future to continue to address Connor's overall health needs.

Mr. Heuer's Main Evidence

[101] Mr. Heuer was born on August 4, 1968. He has no history of criminal charges or major health issues.

[102] He is employed as a risk management consultant. His employer requires him to do some traveling but primarily he works from home.

[103] Mr. Heuer recalls meeting Ms. Heuer online. They began living together in 2002. He described some ups and downs before their wedding which took place in Jamaica on March 23, 2006.

[104] He testified that when Connor was born he assisted in parenting when he would return from work. For the first year and a half of Connor's life he indicated that Ms. Heuer was Connor's primary caregiver during the day. As most parents that work, Mr. Heuer testified that he would help out as best he could caring for Connor in the evening.

[105] When they both were working full-time around 2008, he recalls that they arranged for a private daycare spot for Connor and they both became evening and weekend parents to Connor.

[106] When asked about when he noticed Ms. Heuer's drug dependency and how it might have affected Connor in the early part of his life, Mr. Heuer indicated that he recalls times when Ms. Heuer would have missed some work and was sleeping more on the weekends. He noted that playdates were being missed and he picked up the role of interacting more with Connor and spending time in the community with his son.

[107] Mr. Heuer recalled the following incidents during which Ms. Heuer had difficulties either with regards to her emotional health and/or misused or mixed her prescribed medication:

1. In 2009 Ms. Heuer was found in the washroom at her workplace where she had fainted. She was brought to the hospital and eventually was laid off at work and settled a lawsuit against this employer.

2. The next event that Mr. Heuer recalled was an incident in the community when paramedics needed to assist Ms. Heuer. He was informed by the attending paramedics that while shopping, Ms. Heuer had apparently consumed a bottle of Tylenol cough medicine, causing difficulties for her which required the assistance of the paramedics.

3. The third incident that he recalled was when he was required to bring Ms. Heuer to a local hospital while they were visiting in Midland, Ontario. She had taken too much medication on that occasion. She was released on the same day.

[108] Mr. Heuer recalls that after Ms. Heuer did not return to work in mid-2009, she began interacting less with Connor and sleeping more during the days. He recalls returning home and caring for Connor and there was more conflict in the relationship.

[109] Things came to a head on March 23, 2010. On that day they were preparing to attend a memorial service. Prior to leaving, he was checking emails on the home computer and noticed that on the previous work page that Ms. Heuer had left open she was preparing, for herself, a false prescription for medication.

[110] When he discussed this with Ms. Heuer there was a dispute between them and he recalls that Ms. Heuer left with Connor to spend that evening at her parents' and returned the next day. It was at this point that discussions began about the extent of Ms. Heuer's drug use and the need for her to obtain treatment.

[111] Based on this, Ms. Heuer began to research programs in Ontario that might assist her. Unfortunately there were long wait lists and therefore other options were investigated. It was shortly thereafter that Ms. Heuer and the family settled on her attending counseling and treatment in the United States at the Malibu drug rehab center.

Communication Breakdown and Difficulties

[112] Mr. Heuer testified that he recalls that approximately from November 2014 through January 2015 there had been increasing difficulties in communication and decision-making regarding Connor's welfare and with basic communication between himself and Ms. Heuer.

[113] He recalls that at one point feeling that most, if not all decision concerning Connor had become battles.

[114] In June 2014 the parties altered the initial parenting time of a 5/2/2/5 schedule between their respective homes, to the current week-about. This was done on consent and Connor enjoyed the longer stretches of time that he had in each home. Mr. Heuer recalls that it has provided more stability for Connor to anticipate his week. At the time, in June 2014, Ms. Heuer was still living in Brampton at her parents' home.

[115] Mr. Heuer testified that he was not aware of the move that Ms. Heuer made to New Tecumseth in 2014 until it was about to happen. Ms. Heuer testified that this move was planned for some two years. Mr. Heuer indicates in his testimony that this was never raised as an issue before it occurred and in response he filed a motion to stop this in order to have Connor remain at his school in the Brampton area but this was denied, as he put it. The move causes Connor to travel 63.1 km an hour twice a day between his mom's home in New Tecumseth to and from his school that remains in Brampton. A Google map was presented Exhibit 25 to this trial outlining this distance.

[116] Mr. Heuer clearly recalls that initially Connor's reaction to this move was excitement, as this move allowed Connor to live in a large house in a country setting where he would have a dog.

[117] After this move Mr. Heuer recalls that he had greater problems in communication with Ms. Heuer. Several times he testified that Connor was returned late to Mr. Heuer's on Sunday evenings. This was the exchange time in order for Connor to begin school on Monday.

[118] Mr. Heuer testified to two particular difficult exchanges that occurred as examples of some of the escalation of difficulties between the parents as follows: one occurred on Thanksgiving 2014. They had exchanged Connor at the beginning of that weekend at a mutually-agreed parking lot plaza in front of a restaurant. At the end of Thanksgivings weekend, Ms. Heuer was to pick up Connor at the same drop-off location but did not show up. Mr. Heuer waited for about one hour in front of the same restaurant during which he exchanged emails with Ms. Heuer. Mr. Heuer testified that he recalls that the parking lot was empty and in the exchange of emails Ms. Heuer indicated that she had no idea where he and Connor were. Ms. Heuer did not appear and informed Mr. Heuer in an email that she did not know what he was doing and to bring Connor to school the next day. Mr. Heuer provided to the court Exhibit 26 which was an exchange of emails on this date indicating that he was waiting since 9:55 a.m.to exchange Connor. It was never certain in the evidence at trial where Ms. Heuer was or why she did not appear.

[119] There was again confusion in August 2015 around Mr. Heuer taking a holiday with Connor outside of Canada. Mr. Heuer presented as Exhibit 6 to this hearing an agreement showing that, through counsel, consent was reached permitting Mr. Heuer to travel with Connor. This holiday was to begin a few days after the OCL held its disclosure meeting with the parties and provided to them the OCL'S recommendations. This appears to have caused Ms. Heuer to insist that Mr. Heuer provide her with a notarized letter that required the involvement of the parties' lawyers. Mr. Heuer testified that he called the OPP to assist him on this day, hoping to leave as planned. This did not happen. Mr. Heuer apparently requested that the police meet him at Ms. Heuer's home at the agreed upon pick-up time. The OPP officer that attended Ms. Heuer's home where the exchange was to take place indicated that Ms. Heuer was insisting on receiving a hard copy of a notarized letter, signed by her lawyer before she would release Connor. This required Mr. Heuer to rebook flights as it could not be arranged in time.

[120] Mr. Heuer testified that he also had involved the police during the Thanksgiving 2014 drop-off that did not happen. On the Thanksgiving weekend when Ms. Heuer did not appear to collect Conner he drove to a local police station to report the fact that Ms. Heuer did not attend. When asked why, he said he did this "to protect myself". Mr. Heuer said that Connor did not accompany him to the counter in the police station while he chatted with the police about the Thanksgiving mis-exchange. Connor, however, was aware of the police attending at his mother's home during the August 2015 holiday exchange, and Connor actually asked his father if they were there because he had called them? Mr. Heuer testified that he told his son yes, but not to worry about this.

[121] Mr. Heuer was questioned by his counsel about when he noticed some of the changes in Connor's behavior. He indicated that he found out about the difficulties that Connor was having at his mom's in November 2014. This was when Connor had a complete meltdown while he was vacationing with Ms. Heuer and her parents in Jamaica.

[122] The next time that Mr. Heuer was aware of Connor's difficulties was the very serious incident that caused Connor to go to the Hospital for Sick Children on January 28, 2015. On this day Mr. Heuer was initially out of town when he heard about Connor's difficulties and when he arrived at the hospital this is when he witnessed for the first time the level of difficulty that Connor was experiencing. Mr. Heuer indicated that when he arrived at the hospital Connor was coming down from a very excitable state.

[123] Mr. Heuer testified that at this time he recalls asking about for assistance for his son and was told that a Dr. Balmer, who is a child psychologist, would possibly be a good fit for Connor. Mr. Heuer testified that he passed along this information to Ms. Heuer. Mr. Heuer testified that he spoke with Dr. Balmer who indicated that she would be prepared to see Connor.

[124] At this time Ms. Heuer had brought Connor to Dr. Bai and informed her of what happened that required Connor to go to the Hospital for Sick Children. It was at this time in early February 2015 that Dr. Bai changed Connor's medication. Mr. Heuer testified that nothing came of the possible referral to Dr. Balmer as Ms. Heuer refused this resource.

[125] Mr. Heuer recalls that during this period of time, in the spring, summer and autumn of 2015, Connor was a happy little man and there were no incidents with Connor that he knew of.

[126] Mr. Heuer was questioned about Exhibits 2 and 3, which are emails from Ms. Heuer to Mr. Heuer, stating that she felt he should care for Connor full-time and have custody of Connor. Mr. Heuer testified that as he could not immediately rearrange his work schedule Ms. Heuer withdrew this offer. The second offer was made while the parties were at court and withdrawn almost within the same day with Ms. Heuer indicating that it would be best to keep the week-about schedule, as they were very close to going to trial.

[127] Mr. Heuer testified that in early November 2015 Connor had a major tantrum out of the blue. Mr. Heuer explained that during an exchange from Ms. Heuer's to Mr. Heuer's, Connor had a major tantrum in the car. Mr. Heuer testified that he recalls Connor saying that he wanted to hurt his father. Mr. Heuer said he was surprised at Connor's behavior as this was different than what he had seen in January 2015. He recalls Connor saying that he hates his father and that he wants to live at his mom's. Mr. Heuer testified that on this occasion Connor went on to say that… "he now knows how things work." …. "You make the cheques….." "mom says I can live with her."

[128] On this occasion Ms. Heuer was present with her stepfather. The upshot is that the exchange did not take place. According to Mr. Heuer, Connor missed four days of school over the next week being November 4-7. On November 8, Ms. Heuer brought Connor to an exchange with his father and there was again a problem between Ms. Heuer and Mr. Heuer. According to Mr. Heuer's testimony he indicated that Ms. Heuer said…. "try to get your son out of the car". Mr. Heuer testified that Ms. Heuer began screaming and Connor told his father, "I get to choose where I can stay."

[129] Mr. Heuer testified that he tried to speak to Connor regarding choices and who makes decisions given his age. Mr. Heuer testified that at this time Ms. Heuer started yelling that when Connor is at her home he has choices. Given the situation, Mr. Heuer said that he did not insist on Connor going with him and asked to pick up Connor from school the next day, Monday. Mr. Heuer provided the court with Exhibit 28 which was a screenshot of text messages asking Ms. Heuer whether or not Connor was in school on November 9, 2015 or was going to be in school.

[130] When asked if Mr. Heuer had discussions with the school about this situation, he testified that he spoke to Mr. Bailey, the school principal, about some difficulties as to why Connor was not at school, and Mr. Bailey requested both parents be present for a meeting but at the time Ms. Heuer said she would not attend.

[131] It was around this period that the Peel CAS became more involved with the family given the amount of time that Connor was missing from school. With the Peel CAS intervention, Connor returned to school on or about November 15, 2015 according to Mr. Heuer's testimony.

[132] After this incident, Connor spent his week with his dad and then transferred back to his mom. This seems to have gone smoothly. From the discussions that Mr. Heuer had with Connor's school it was clear the Connor was happy to get back to school. Mr. Heuer recalled that Peel CAS continued to monitor this situation a little closer and became more involved with his family.

[133] Around this time, November and early December 2015, Connor did speak to his dad about going to a new school closer to his mom's house. This school was called King's College. It appears that Ms. Heuer spoke to Connor about this or that they had visited this institution. Mr. Heuer testified that he was not aware of this discussion. He remembers how Connor was excited about this as the school had the word "college" in its name.

[134] Mr. Heuer recalled the process in which the Boomerang service began its assessment of Connor. He testified that he remembered that it was through Dr. Bai that he and Ms. Heuer agreed to an initial appointment with Boomerang on or about November 10, 2015. Initially there was going to be counseling for Connor rather than a full assessment. This counseling through Dr. Lambert cost $210 per hour. Mr. Heuer indicated that this work started but stopped because it was not clear about how many sessions would be taking place and that he could not afford the cost without Ms. Heuer's help. Eventually it was decided that an assessment would be completed in order to get a better handle on what exactly Connor needs. Ms. Heuer in her testimony indicated that she was the one who found the financing through her church network for Connor's Boomerang assessment.

[135] At the time there was some discussion about the level of assessment that would be conducted on Connor, and Mr. Heuer testified that he did have some concerns about Connor being labeled, but that he wanted Connor assessed both from a psycho-educational perspective as well as his emotional well-being as did Ms. Heuer.

[136] Mr. Heuer testified that he was happy with the Boomerang assessments. He indicated that it gave the family a focus on Connor's abilities as well as his needs and it will help with his IEP at his school. Mr. Heuer testified that he is prepared to continue to work with Boomerang on an ongoing basis. He believes that the conflict between the parents is causing anxiety for Connor. He met with the CAS in December 2015 to seek counseling as he believes this would help alleviate some of Connor's anxiety.

[137] When asked how Connor is doing now at school, Mr. Heuer indicated that overall he is happy. There was an incident on November 20, 2015 in which Connor had an argument and fought with another boy at school. Ms. Abeya Singh had talked about this briefly in her testimony. This happened when Connor was being cared for by Mr. Heuer. Mr. Heuer indicated that through the Our Family Wizard communication program, he reported this to Ms. Heuer. Connor was asked to apologize and this was also reported to Ms. Heuer.

[138] Mr. Heuer went on to testify that at the present time his relationship with Connor is affectionate. During their free time together they try to do things that are fun and entertaining. During the school week after they arrive home in the evening there is a routine in which Mr. Heuer prepares dinner and Connor will use this time to entertain himself or do whatever homework might be needed to be completed. On the weekends there might be a play date. Mr. Heuer described how they spend their time together going hiking, skating or to a movie. Connor seems to be happy at his home.

[139] As a single parent, Mr. Heuer described how he would have the assistance of Connor's godmother to care for Connor and on the rare exception if Mr. Heuer needed to attend work outside of the city. During the work week Mr. Heuer testified that he works from home and that he has arranged for pre-and after school care at Connor's current school.

[140] Mr. Heuer described his extended family. He has a good relationship with his brother who has a 12-year-old and a three-year-old. Connor loves both of his cousins and in particular he looks up to the 12-year-old.

[141] Mr. Heuer testified that his parents live in St. Catharines, Ontario and Mr. Heuer and Connor visit with them every eight weeks or so. Here Connor has a tree fort and their visit is considered a little vacation. Connor, as he does at his mother's home, enjoys the country setting.

[142] When Mr. Heuer was asked about Mr. O'Meara's testimony that Mr. Heuer threw a book at Connor, Mr. Heuer testified that he does not use physical discipline with Connor.

[143] Mr. Heuer indicated that his hope for Connor is to provide him with a stable and loving home with little stress between Connor's parents. He hoped that they would have one voice together on Connor's behalf even if they were not together. He believes that some sort of counseling would be helpful, such as for children that come from divorced families.

[144] When Mr. Heuer was cross-examined by Mr. Cook, on behalf of Ms. Heuer, he was asked about his impressions of Ms. Heuer's parenting. He indicated that he believed she loves Connor. He agreed when questioned that he might be the stricter of the two parents and that Ms. Heuer tends to have a softer approach. Mr. Heuer did add that regrettably some of Ms. Heuer's past historical difficulties have been a distraction from her parenting. Mr. Heuer indicated that he noticed that Ms. Heuer is quite strong in finding resources and researching about Connor's needs, however there can be some foot-dragging on her part and delays in implementing these resources to address Connor's needs.

[145] Mr. Heuer was also questioned by Mr. Cook about Dr. Balmer as she was a psychologist and that therefore she needed to be referred through their family doctor, Dr. Bai. Mr. Heuer indicated that this was not his understanding and that the parents could refer Connor to Dr. Balmer directly.

[146] When asked about his plans to continue Connor at the Roundtree school, Mr. Heuer did indicate that unless Ms. Heuer pays her proportionate share he is not certain that he could continue sending Connor to Roundtree. When further questioned he indicated that if he was to have sole custody and not have to pay child support as he is now, that would permit him to have Connor continue at Roundtree. He also indicated in questioning that if had to travel for work, which is a rare occasion, he would be prepared to ask Ms. Heuer to care for Connor.

[147] In further questioning by Mr. Cook, Mr. Heuer agreed that in his housing complex where he lives, Connor does not have many friends there and that it is a different type of community without a close-knit group of friends.

[148] Mr. Heuer also indicated in his testimony that he has a very good relationship with his employer and that meetings are not booked that would interfere with family time as his employer is family-focused.

[149] Mr. Heuer further testified that through a friend he found a counselor whom he saw on occasion as a single dad. He thought it would be helpful to have someone to talk to and recognize that he does not need to worry about trying to be a perfect parent. He saw this counselor to help him as he is a single father.

THE LAW

[150] Children's Lawyer's Report – A children's lawyer report differs from a full CLRA s. 30 expert assessment. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point; not the last word. See: Ganie v Ganie, 2015 ONSC 6330.

[151] In determining both parents' request for custody in this matter the court is guided by section 24 (2) of the Children's Law Reform Act. This section outlines the features of what is in the best interest of a child and this court's was guided by the following:

24(2) best interest of child – the court shall consider all the child's needs and circumstances, including,

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

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

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

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

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

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

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

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

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

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

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

[152] In addition, section 24 (3) (b) of the Children's Law Reform Act indicates that this court should consider the past conduct of a person if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

[153] This court was further guided by the following jurisprudence that has assisted in the interpretation of the above aspects of the legislation and how this court is to consider this legislation in relation to the evidence presented to care for Connor by each parent and their actions in caring for Connor thus far:

Best Interests – Basic Principles

1. The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.

2. No one factor in the statutory definition of a child's best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.

3. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.

4. The court should consider the level of hostility and the extent to which that stability may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.

5. The court should consider how the person seeking access has used contact for purpose collateral to the child's best interests. Lusher v. Lusher, 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).

[154] The Superior Court of Nova Scotia in the case of C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.) suggested the following series of helpful questions a court might consider when deciding the best interest of a child which this court has found helpful:

• What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?

• Is there a good temperamental match between the child and the parent?

• Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?

• Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?

• Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?

• Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?

• Has the parent made changes in his or her life or behavior to meet the child's needs, or is he or she prepared to do so for the welfare of the child?

The Child's Wishes

[155] Decaen v. Decaen, 2013 ONCA 218 states that in assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221.

[156] Ultimately the weight to be attached to an expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate a view. See Stefureak v. Chambers, [2004] O.J. No. 4253 (S.C.J.)

Joint Custody and Parallel Parenting

[157] This court, in evaluating the potential for a joint custody plan and the request for parallel parenting of Connor, considered the following instructive and helpful in arriving at this court's decision:

[158] Joint custody should only be considered where both parents have a strong claim for custody. Only then should the court look at communication and cooperation. If one person's behaviour is problematic, it shouldn't be ordered.

[159] Kaplanis v. Kaplanis (Ct. of Appeal) directs the following:

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

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

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

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

6. The younger the child, the more important communication is.

[160] In Graham v. Bruto, 2008 ONCA 260, the Court of Appeal stated clearly that the joint custody and parallel parenting option was not in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child's best interests. Also in Roy v. Roy, 2006, [2006] O.J. No. 1872.

[161] Griffiths v. Griffiths 2005 ONCJ 235 states that courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See Warcop v. Warcop The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.

[162] Growen v. MacKenzie 2008 ONCJ 170 states that a court should look at how parents parented prior to the separation to determine if co-parenting and co-operation is possible, if it believes that the parents can return to this after the stress of litigation is over.

[163] "In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully." See: Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at para. 504.

Parallel Parenting

[164] From: K.H. v. T.K.R., 2013 ONCJ 418:

[45] Parallel-parenting orders can take the form of "divided parallel parenting", where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, "full parallel parenting", where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451.

[46] Parallel-parenting orders have been made in high-conflict cases, particularly in cases where:

a) One parent is unjustifiably excluding the other from the children's lives and can't be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly 2007 CarswellOnt 8271; Garrow v Woycheshen, 2008 ONCJ 686; Madott v Macorig, 2010 ONSC 5458; Cooke v. Cooke, 2012 NSSC 73; Bushell v. Griffiths 2013 CarswellNS 240 (N.S.S.C.), and Izyuk v. Bilousov, supra, (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)).

b) Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v Romany, 2011 ONSC 2850; S cervino v Scervino 2011 ONSC 4246. In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas, [2006] OJ No 5124 (Ont. S.C.J.); Ursic v. Ursic, (2006) 32 R.F.L. (6 th ) 23 (Ont C.A.).

[165] In V.K. v. T.S., ONSC 4305, Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

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

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

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

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

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

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

Justice Chappel added four more considerations that she felt are relevant to a parallel-parenting analysis.

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

[167] The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child's playoff hockey game?

[168] The third consideration is the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

[169] The fourth consideration is about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents' conflict.

[170] Justice Chappel concluded her review by stating:

a) All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.

b) Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a "full parallel-parenting model" order. There are many child-related decisions that require a high level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.

Analysis and Decision

[171] As in most custody and access disputes, the parent's individual strengths and weaknesses are the most significant evidence in a court's evaluation when determining a child's best interest.

[172] In this matter the court heard from each parent and this evidence was the best evidence for this court in evaluating the ability and demeanor of each to meet Connor's needs.

[173] This court also had the benefit of the OCL report. This court recognizes that the OCL report is one piece of evidence and not determinative. As noted in the case of Ganie v.Ganie, 2015, ONSC 6330, recommendations from the OCL report are a starting point; not the last word.

[174] This court benefited from the OCL report exhibit in that it acts as a looking glass into the parent's thoughts and plans in that they were interviewed in a setting that is more relaxed and from all accounts they were candid in the information they provided.

[175] A trial is scripted and rehearsed for the most part, although good questioning does open up and test the evidence given to a court, as was the case in this proceeding.

[176] The OCL report also does provide the court with information gathered from a number of collaterals that did not testify at trial but were important to hear from, albeit through this report. In particular, this helpful collateral information was specifically:

a) Dr. M. Hussain, Ms. Heuer's psychiatrist who reported that he last saw her in June 2014 and had very little other information.

b) Ms. Heuer's physician, Dr. Skeete, who reported that Ms. Heuer does not suffer from any significant physical medical conditions but there is a history of opioid abuse and dependence. He reported that Ms. Heuer does suffer from psychiatric conditions that could potentially impair her ability to parent, including depressive disorder (recurrent) and borderline personality disorder. This doctor went on to review the prescribed drugs that Ms. Heuer was given which are Zoloft and Ativan. He indicated that Ms. Heuer has not reported any specific concerns about parenting. He went on to note that Ms. Heuer's psychiatrist Dr. Hussain advised Ms. Heuer to continue with Zoloft and Ativan. She did participate in counseling sessions with Dr. Diana Ross in Toronto who facilitated a 20 week skills group session in July to December 2014 and Ms. Heuer was noted to be an active participant and engaged in the sessions.

c) The Peel Police reports indicate that on September 17, December 31, 2013 and February 6, 2014, Ms. Heuer attempted to present 2 prescriptions to pharmacists that recognized they were false. Ms. Heuer was charged with uttering forged documents on two of these occasions. Again on January 22, 2014 Ms. Heuer was arrested for two counts of uttering forged documents again in a similar situation as above. On May 6, 2014 Ms. Heuer attended another pharmacy requesting medication with a false or fake prescription. She left the scene before police arrived and on the same day Ms. Heuer attended another pharmacy and submitted a prescription for the same medication. She eventually turned herself in on May 7, 2014 and was arrested for uttering forged documents.

d) Brenda Powling, Ms. Heuer's addiction counselor, reported in May 2015 that at that time she and Ms. Heuer had not yet done a lot of work together. Ms. Powling indicated that she felt that Ms. Heuer is only beginning to trust her and that she is putting in place a relapse prevention program which has a faith and science-based approach. This is the Genesis Process of Recovery program. Ms. Powell went on to indicate that if there are any red flags that she has, it is the concern about Ms. Heuer's honesty which might have to do with the fact that their relationship is somewhat new. Ms. Powell also indicated that she felt that potentially Ms. Heuer feels that she must seek out services as she is backed into a corner to do so and is seeking services due to external motivators but she is optimistic for Ms. Heuer.

[177] It should be noted that the OCL, in cross-examination, indicated that the principal concern from her perspective that guided her recommendations was the fact that Ms. Heuer had not followed up with Connor's treatment needs after his tantrums and hallucinations that led to the need to bring him to the Hospital for Sick Children in January 2015. There was an appointment set for Connor on June 1, 2015 but Ms. Heuer canceled this. This was to be at the Peel Children's Centre. This required the CAS to become involved. Ms. Heuer stated that she felt forced to go to the Peel Children's Centre by the Peel C. A. S. Ms. Heuer did not make any mention of this canceled appointment and indicated that her first appointment was to be July 16, 2015. Further, Ms. Heuer did not follow up with an appointment made through the Family Enhancement Centre.

[178] At trial, Ms. Heuer disclosed information that she received in the spring of 2015: a fourth criminal charge which was again related to her use of a false prescription to obtain drugs for her own use. This was not disclosed before trial.

[179] In her amended Application Ms. Heuer asks for sole custody and argues that communication between her and Mr. Heuer is so poor that joint custody would not be possible. She did ask at trial for a parallel parenting order if she was not granted sole custody. Mr. Heuer has asked for sole custody but in the alternative would work with joint custody.

Is Parallel Parenting or Joint Custody Beneficial to Connor?

[180] As noted earlier, the Court of Appeal of Ontario, in the decision of Kaplanis v. Kaplanis (2005), 10 R. F. L. (6th) 373 (Ont. C. A.), has provided this court with direction when the court is asked to consider joint custody in a given situation to meet a child's best interest. The basic questions that should be answered are:

1. Is there a sufficient degree of cooperation and communication between the parties such that an order of joint custody can work in the child's best interest?

2. Has there been a history of day-to-day decisions between the parties and does there exist a manageable level of civil communication that meets the child's needs?

3. Are there concern or doubts that a parent makes unilateral decisions or involves the child unnecessarily in disputes between the parents?

[181] I find that at this stage in this family's evolving family history that joint custody is not an option that would address Connor's needs.

[182] There is sufficient evidence that the conflict between Mr. and Ms. Heuer's is of a sufficient degree that Connor is caught in the middle that when such conflict occurs his needs go unaddressed.

[183] This is evident surrounding decisions in January 2015 for his counseling. This was also evident in the parents work with Dr. Bai.

[184] In addition, the parents have had difficulties with the basic exchange of their son; most notably the exchange on Thanksgiving 2014 and the August 2015 summer vacation exchange. On both occasions there was a complete breakdown of communication and Mr. Heuer felt compelled to involve the police, which he should not have done.

[185] There was also the incident in November 2015 when Connor was unwilling to leave his grandfather's car to go with his father. Connor was caught in the middle of a shouting match. On this occasion Conner was put in the middle of the conflict and made concerning comments to his parents. According to the evidence, Connor was emotionally affected and missed about a week of school, requiring the intervention of the Peel Children's Aid Society to assist in his return to school.

[186] Notably, outside observers such as Dr. Bai, the Hospital for Sick Children, Ms. Young and Dr. Lambert all note that Connor is emotionally caught up in the middle and affected by the inability of the parents to communicate. Conner has said that he feels caught in the middle by his words and actions, which I have heard.

[187] Hence, all of this evidence taken as a whole does not support an order of joint custody.

Parallel Parenting

[188] In the decision of Seder v. Khaki, 2013 ONCJ 605, Justice E. Murray reviewed some of the literature on parallel parenting and noted the following:

130 … Parallel parenting has been described by Rachel Birnbaum and Barbara Fidler as follows:

"parallel parenting as defined in the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather parallel parenting involves each parent making the final decision about a significant domain. In other words, each parent has sole custody, only over a different domain of decision-making."

[189] Justice Murray also noted that Justice Deborah Chappel, in the decision of V.K v. T. S., 2011 ONSC 4305, wrote the following:

…parallel parenting; orders in high conflict cases may allow each party the benefit of playing a meaningful role in the child's life while allowing them to "reduce parental conflict".

[190] Justice Murray also asked the question …. "is there any research based evidence on the actual outcomes for children who are the subject of parallel parenting orders? This evidence would be useful, but if it exists, it was not provided."

[191] So to, in this trial no evidence of this nature was provided on the beneficial nature of parallel parenting and how this might reduce conflict between Mr. and Ms. Heuer and benefit Connor.

[192] In V.K. v T.S. Justice Chappel's review of parallel parenting and the significant factors which courts have considered when contemplating this type of order is of guidance to this court. These factors are as follows:

a) Both parents have strong ties to the child, and prior to separation each had "consistently played a significant role in the child's life on all levels". It is hoped that a parallel parenting order may assist in preserving each parent's role as equal parents.

b) Each parent is capable of making decisions in the child's best interest, and able to place the child's needs above their own needs and interests.

c) Although there is extensive conflict, the parents are able "at times to focus jointly on the best interest of the child." A parallel parenting order may encourage such cooperation.

d) Alienating or undermining behavior is displayed by a parent who is otherwise a good parent (perhaps the primary parent figure in the child's life). In these cases, a parallel parenting order may "safeguard" the maligned parent's role in the child's life.

[193] As noted earlier in this decision, both parents testified as did Dr. Bai and the OCL, that Connor would benefit from one home base. One home base does not mean that a parallel parenting or a joint custody order could not benefit Connor. One home base would definitely alleviate the travel that Connor must endure each time when he is spending time with his mother and attend school in Brampton, Ontario.

[194] Indeed, the evidence before this court was that Ms. Heuer, after talking with Dr. Bai, recognized the need for Connor to be in one home and she offered temporary custody to Mr. Heuer so that Connor could go from his house to school without difficulties. The evidence was that this was offered on two different occasions by Ms. Heuer to Mr. Heuer.

[195] When first offered, Mr. Heuer could not make the necessary arrangements in time before Ms. Heuer withdrew this offer. One only wonders what would have been the outcome of this matter if this would have been arranged at that time.

[196] The second time this offer was made, Ms. Heuer withdrew the offer almost within the same day. Her explanation at trial was that given the trial was about to proceed she withdrew this offer. Presumably, she felt this would affect her position at trial. This remains somewhat unclear to the court as this plan, even on a temporary basis, would have reduced the wear and tear and stress on Connor.

[197] This court, therefore, did not have the benefit of seeing how Connor would have responded to this plan if put in place by the parents.

[198] When considering the factors noted above by Justice Chappel when considering a parallel parenting plan and the guiding considerations in section 24 of the Children's Law Reform Act when it comes to Connor's best interest, I conclude the following:

a) Both Mr. and Ms. Heuer have been consistent in parenting of Connor. They had some initial difficulties in terms of sharing Connor's time between each household but eventually did work out a shared parenting schedule. Connor's teacher, Ms. Abeya Singh, noted that the parents have worked well with the school, although probably somewhat independently rather than together. There is no doubt that Connor is loved by both parents and has a loving home in each location.

b) In terms of the level of parental conflict, this has caused delays in services being provided for Connor, as noted in the children's lawyer's report. Further, as noted above in reviewing the evidence of other individuals and professionals working with the parents, Connor is caught in the middle of some of this conflict. This was evident in several of Connor's exchanges by the parents between each household. Particularly critical to this court was the exchange in November 2015. This was witnessed by Mr. O'Meara as well. Both parents testified that Connor made statements that were angry and he was caught between the parent's inability to properly communicate. This incident affected Connor emotionally. The evidence was that his emotional state was caused by the situation at the time. The transfer was taking place between his mother's home back to his father's. There was other evidence that indicate that Connor's reactions and difficulties occur at his mother's home, as this one did, and not from his father's home to his mother's home. Ms. Heuer's insistence that all communication be limited, as outlined in her amended application, … such that Mr. Heuer not communicate with her by phone, email, text or other electronic means except in the case of emergencies, would make joint custody decisions unworkable.

c) From the evidence in this trial I do not find any alienating behavior from one parent to the other. There was some evidence that at times there were periods or instances that if this persisted, it would have led to difficulties for each parent to develop a meaningful relationship with Connor, however each does have a loving relationship with Connor. I also find that Connor knows and loves both of his parents and they have both tried their best to develop a stable home and community environment for him.

d) The major concern for this court is whether each parent is capable of making decisions in Connor's best interests, and able to place the child's needs above their own needs and interests. This is a significant and relevant consideration for this court in this matter when considering whether parallel parenting or a sole custody order will best meet Connor's needs over the next period of time.

[199] Given Connor's age, 9 in May 2016, it is important to have a structure in place that will address his needs over the next years of his childhood and adolescent life. This court does not want to experiment in the hope that a joint or parallel parenting structure will improve communication between the parties placing Connor in the middle even if he were to have one home base from which he went to school.

[200] I find that the parents are not equal in terms of putting Connor's needs first and being able to make appropriate decisions in Connor's best interest. It is here that I find that Ms. Heuer has not been able to show that she can do so presently.

[201] I find that in evaluating all of the evidence, that overall, Connor's needs would be best addressed in the sole custody of his father Mr. Heuer.

[202] This court has concerns about how Ms. Heuer provided evidence and explained her position at trial as follows:

a) Ms. Heuer was not forthcoming with evidence to substantiate her claim that during the relationship Mr. Heuer was a cyberbully and exercised total financial control, as was claimed in her amended Application and to some degree in her trial testimony.

b) Ms. Heuer presented conflicting testimony as to her plans for where she would be living with Connor. At trial she revealed for the first time that she is prepared to move and live out of travel bags at a friend's home in Brampton where she would have a room to share with Connor, and share other facilities. This plan was presented at the last moment and not fully formulated and would appear to be out of desperation in this litigation and not considering how this would affect Connor.

c) I also find that the impact on Connor was not considered when Ms. Heuer moved with her parents to New Tecumseh, with his school remaining in Brampton. Ms. Heuer presented conflicting evidence about the time that this move was planned. Her evidence was that it was contemplated for some two years. Mr. Heuer said that he did not know of this move before it occurred and was not consulted. Obviously an historical example of the lack of communication is not in Connor's best interests and an example as to why joint custody is not supported by the evidence. Mr. O'Meara, who was called as a witness for Ms. Heuer, indicated that he and his wife took about two months to plan and execute this move. Why Ms. Heuer would claim otherwise is uncertain but concerning.

d) The criminal charge that Ms. Heuer resolved in the spring of 2015 without disclosing prior to trial and not providing an update to her 35.1 affidavit also weighs heavily on this court. Ms. Heuer effectively concealed this information. It goes to the heart of some of the difficulties she has faced and struggled with before and after Connor's birth.

[203] Ms. Heuer was evasive when questioned about the circumstances of this latest charge. In cross-examination, Ms. Heuer attempted to downplay the charge, and she said she did not write the false prescription. Eventually it was clear from her testimony that what she had done was accept a false prescription that someone else produced and she attempted to use this. The end result is the same in that up until the spring of 2015, and in the middle of this custody application that she commenced, Ms. Heuer continues to struggle with her dependency on prescription drugs. This court is concerned that this is a serious distraction, removing her emotionally and otherwise from her parenting role to Connor. In testimony she indicated that she felt this would not affect her parenting which this court does not accept. It does just that.

[204] Ms. Heuer further has not provided to this court a comprehensive update on her overall emotional mental health. It is clear that she has not hidden this information as an historical part of who she is. What remains unclear to the court is how she is handling that part of her well-being presently. She did indicate she is no longer on medication. It is not certain from the evidence if this is beneficial or not. What is certain is that she did not present any medical evidence from Dr. Hussain, the psychiatrist she was seeing. In the OCL report Dr. Hussain indicated that he did not participate in her decision to remove herself from medication. This might be a good thing, however the court was left with little or no information as to how this might impact on Ms. Heuer in the short or long-term and what she is doing other than the support network at her church to manage both the difficulties that she has had in the past with abuse of prescription drugs and her emotional well-being.

[205] Ms. Heuer does have supports in her community; in particular she is living with her parents who are supportive, as are the members of her church and an informal network of neighbours who assist each other. It should be noted that at trial evidence was led that did indicate that at times Ms. Heuer's relationship with her parents is up and down. She does not deny this.

[206] At trial no professional support network was presented as part of Ms. Heuer's plan to assure that she can and has dealt with her own difficulties regarding her emotional/mental health and improper use of prescription drugs.

[207] Dr. Bai did attend the trial as a professional assisting primarily Connor, although at trial Ms. Heuer indicated that she at times met Dr. Bai to review her own emotional well-being and how it relates to parenting Connor. This was not confirmed by Dr. Bai when asked about this at trial. The doctor did confirm, however, that she is primarily there for Connor.

[208] Also important to this court is that Dr. Bai did report to the OCL that she worries about Connor's commute weekly from Mr. Heuer's home and that she informed Ms. Heuer of these concerns. At the time that Dr. Bai was interviewed by the OCL it was also the doctor's understanding that the parents were in conflict as to who should conduct an assessment of Connor after his visit at the Hospital for Sick Children. It was obvious at this point in time that the parents were at an impasse over this important need that Connor had that was not properly being addressed by the inability of the parents to work together.

[209] In addition, there was also difficulty between Mr. Heuer and Dr. Bai over Mr. Heuer's ability to attend and be informed of Dr. Bai's work with Connor. This led to Mr. Heuer complaining to the College about Dr. Bai. In the OCL report, Dr. Bai clearly indicated that she holds Mr. Heuer and Ms. Heuer responsible to inform each other of appointments and whether they will attend at her office. She further said from her observation that the parental conflict has got in the way of Connor feeling stable.

[210] It is important to this court that despite Ms. Heuer's plan of care and support network, this has not prevented the tantrums that Connor has been experiencing, nor prevented Connor from missing 28 days of school in 2015 and possibly the same number this year. In addition, as recently the spring of 2015 Ms. Heuer continued to seek out prescriptions not legally prepared for her to pass as her own script to obtain drugs for her use.

[211] I conclude that Ms. Heuer is in denial of her ongoing difficulties and not transparent with herself and others about her ongoing abuse of prescription drugs and/or seeking to obtain them for her use. This could be linked to her emotional health. The court is left without clear knowledge of this and more questions than answers. The evidence supports the fact that this would affect and has affected her ability to parent Connor both in the past and in the future as a sole custodial parent.

[212] I have concerns about Connor in this situation. He has had specific difficulties when living with his mother and less so with his father. This court is left with questions about Ms. Heuer's ability to physically and emotionally be available to her son. This leaves me with doubts about Ms. Heuer's ability to meet her son's needs. I recognize that Ms. Heuer has been open about the tantrums that Connor has had with her. She clearly testified about how Connor has, at times, directed his anger against her. On one occasion she described this as Connor using her as a "punching bag". This openness by Ms. Heuer is commendable but is in contrast with how Ms. Heuer has downplayed or hidden information in other parts of this trial and in her work with professionals dealing with Connor's needs. This is also a concern of the court. It might also be Ms. Heuer's cry for help in that she recognizes, without willing to admit to it, that she cannot necessarily address Connor's needs at this moment because of her needs.

[213] As noted earlier from the OCL report, there were distinct problems with Ms. Heuer following up in a timely fashion with counseling for Connor in relation to the serious tantrums and hallucinations that her son was experiencing in January 2015. The professionals at the Hospital for Sick Children referred the family to specific services.

[214] Services were confirmed for June 2015 but Ms. Heuer did not bring Connor to these. Ms. Heuer reported to the clinical investigator, Ms. Kuaick, that she felt that she was being forced to go to the Peel Children's Centre by the Peel Children's Aid Society. Ms. Heuer did not mention this canceled appointment to the OCL but simply reported that the first appointment was to be for July 16, 2015. Mr. Heuer also reported that an appointment was arranged for the Family Enhancement Center in Brampton but Ms. Heuer withdrew her consent to follow up with the centre and this was later confirmed by that centre to the OCL that Ms. Heuer withdrew her consent and canceled at the last moment. It appears from the evidence that without the intervention the Peel CAS it is not certain whether Connor would have received the current evaluation that he had received through the Boomerang services. Even Dr. Bai was left out of the loop by Ms. Heuer in that she reported to the OCL that Connor's records from the Hospital for Sick Children were released to Dr. Bai and that she followed up with the doctor in the spring of 2015 to update the doctor on Connor's care. However, when the OCL spoke with Dr. Bai, the doctor indicated she received no follow-up on Connor's care; only that Ms. Heuer had reported no behavioral concerns. Ms. Heuer also told the OCL that she consulted her psychiatrist about Connor's well-being but the psychiatrist did not have a record of a discussion of consulting about Connor's tantrums.

[215] It is this evidence that leads this court to conclude that between the parents Ms. Heuer is not equipped to make decisions in Connor's best interests and has put her own interest before that of the child. This is quite evident when it comes to her use of prescription drugs in an off-script manner which has led to several criminal charges. If this persists, these charges could become more serious and Ms. Heuer could face greater criminal sanctions. Why she withheld her March 2015 charge is concerning. Further, although she recognizes she has had emotional/mental health struggles, why she is not working with a professional immediately for her own well-being is not clear. Both of these areas in her life have affected her ability to parent, contrary to her evaluation and distract from her ability to focus on Connor's best interests, placing her interest before that of her son.

[216] This court's bigger concern is that she might not entirely recognize or have insight into this aspect of her functioning as she was willing to arrange a move back to Brampton in a scrambled, 11th hour manner, living with a friend who offered a room to her and Connor.

[217] Mr. Heuer at trial attempted to show that he works with Connor in ways that address his needs. When questioned, he did indicate that he is probably firmer with Connor than his mother is.

[218] Mr. Heuer also needs to recognize that he at times has put his interests before that of Connor by involving the police in this dispute that he has had with Ms. Heuer. This was around the time when the Thanksgiving 2014 exchange did not occur, as well as when the August 2015 holiday did not unfold as planned. Involving police in parenting issues sends a seriously wrong message to a child as well as could affect the child's emotional well-being. Connor, as any child might feel, that he is the reason the police are involved, which is not a healthy situation for a child to be caught in. I accept the testimony of Ms. Young and Dr. Lambert which clearly indicates that Connor recognizes he was caught in the middle of an ongoing dispute between his parents.

[219] Mr. Heuer must recognize that although this court has decided, based on a review of the evidence, that he is better suited emotionally and has better judgment to plan and decide what is in Connor's best interest as the sole custody parent, that he must be guarded and sensitive to Connor's emotional well-being at all times.

[220] It is this court's finding that Mr. Heuer presented evidence that supported a plan that is in Connor's immediate and long-term best interest and supports the order for sole custody to Mr. Heuer.

[221] In particular the evidence that supports this order is as follows:

1. Mr. Heuer is the parent that, despite the difficulties with Ms. Heuer in their post-separation parenting of Connor, will develop and nurture a loving and significant relationship between Connor and his mother on a go-forward basis.

2. Although Mr. Heuer asked for sole custody in his pleadings, he has always been consistent in his statements, both in and out of court, that he would be prepared to work with Ms. Heuer in a joint custody setting, provided that communication improved between them both. To this end, he suggested counseling, which might include a form of counseling for Connor as a child living within a separated family. Overall, Mr. Heuer attempted to compromise and find ways to dismantle barriers rather than put up obstacles in his parenting with Ms. Heuer.

3. Mr. Heuer indicated that he is a good listener and allows Connor to find room on his own to make mistakes, and then helps him in a supportive way. He develops Connor's confidence and he is proud of Connor's achievements at school.

4. Mr. Heuer indicated that he believes Connor would benefit from witnessing his parents working together and he has suggested that access should be as equal as possible as it is important for Connor to have this time with both of his parents.

5. Mr. Heuer plans for Connor to continue to attend his current school in Brampton, being the Rowntree Montessori School. Mr. Heuer indicated that this was definitely part of his plan if the child support that he has been making to Ms. Heuer ends, he would then put this money towards Connor's private school without a request from Ms. Heuer to pay any of this school cost.

ORDER

[222] The final order in this matter is as follows:

1. The Respondent, John Heuer, shall have sole custody of the child, Connor Heuer, born May 19, 2007. Connor will have his primary residence with the Respondent.

2. The Respondent will consult with the Applicant, Mona Heuer, before making all major decisions affecting Connor's health, education, religion, upbringing and extracurricular activities.

3. The parties will have the same rights to make inquiries and be given information as to Connor's health, education, religion and welfare.

4. Day to day (non-major) decisions involving Connor will be those of the Respondent while the child resides with him and those of the Applicant while the child resides with her.

5. Connor will have access with his mother Mona Heuer as follows:

a. Every other weekend from Friday after school to Monday morning return to school, commencing April 15, 2016. The respondent, in consultation with the applicant and considering's Connor's needs, may increase the frequency of the weekend access.

b. if a statutory holiday or PD day falls on a Monday or a Friday of the Applicant's access weekend, access will extend to include the statutory holiday with the Applicant either to pick Connor up on Thursday after school or return him to school on Tuesday morning.

6. The holiday schedule for Connor will be as follows: irregular access schedule resumes after each of the following holiday schedule ends.

a. The March break will be divided equally. Connor will be with the Respondent from after school on the Friday beginning of school March break to the Wednesday of the break at 6:00 p.m. and with the Applicant from Wednesday at 6:00 p.m. for the duration of the March break to return to school.

b. Easter (religious holiday) Connor will spend this holiday with his mother in order to participate in religious activities. Connor will be picked up on the Thursday after school and dropped off at school on the next school day that classes resumes.

c. Mother's Day and Father's Day: Connor will be with the Applicant on Mother's Day from 10:00 a.m. to 6:00 p.m. if Mother's day does not fall on her access weekend. Connor will be with the Respondent on Father's Day from 10:00 a.m. to 6:00 p.m. if Father's Day does not fall on his access weekend.

d. Connor will reside with the Applicant in odd years from the last day of school prior to the December school break to December 26th at 1:00 p.m. and then from the morning of January 2nd to the first day of school in the New Year. Connor will be with the Respondent for the balance of the December school break in odd years. In even years, the schedule will alternate.

e. Connor will reside with the parties on a week-about basis during his summer school break commencing at 6 p.m. on the first Friday after the last day of school until 6 p.m. on the Friday prior to Labour Day. Regardless of which parent has the child for the last week of holidays before the Labour Day weekend, Connor shall reside with the Respondent from 10 a.m. on the Sunday before Labour Day Monday each year unless otherwise agreed by the parties. The Applicant or someone on her behalf will be responsible to transport Connor to the Respondent's home or an agreed-upon location.

f. Connor will spend his birthday with the parent he is residing with on that day.

g. if either the applicant or the respondent wish to plan a longer vacation with Connor than the times outlined above may permit, that parent will submit the vacation plans to the other parent at least 45 days in advance through email or the Our Family Wizard Program.

7. If there is any dispute between the parties regarding a scheduling issue for Connor that the parties cannot agree upon with five business days, they will mediate the issue with an agreed-upon mediator. The parties will share the cost of the mediator's fees equally.

8. If the scheduling dispute is not resolved by mediation within 20 days, or such other time as agreed upon between the parties, the parties will submit the issue to simple arbitration in writing with an agreed-upon arbitrator. The parties will share the initial cost of the arbitration equally. The arbitrator may apportion costs. The relevant terms of the Arbitration Act and the Family Law Act shall apply.

9. If pick-up and drop-off for access is not taking place at the school, the Applicant shall be responsible to pick up and drop off Connor at the Respondent's home unless the parties agree otherwise.

10. The Respondent shall sign any authorization required so that the Applicant will have full and direct access to all of Connor's medical and educational information, as well as schedules of his extracurricular activities so that the Applicant can make inquiries with third party health and education professionals and attend Connor's school and extracurricular events.

11. The parties will communicate in writing regarding day-to-day parenting decisions and important issues for Connor by email or any other online tool to which they agree. The applicant and the respondent should share and exchange their cell phone numbers, and update the same as required, to communicate regarding Connor's needs in addition to the use of email and or text messages.

12. There will be no restrictions on Connor calling either parent while he is in the other parent's care. Both parties shall provide a quiet and private space for Connor to call and have a telephone conversation with the other parent. Each parent may call Connor when he is in the other parent's care between 8:00 a.m. and 8:00 p.m.

13. The Applicant and Respondent shall ensure that Connor is not exposed to adult conflict. Neither party will make disparaging remarks about the other or any other significant child or adult in Connor's life in front of Connor.

14. The Respondent shall hold all of Connor's identification documents, including his birth certificate, health card and passport. The Respondent will provide the Applicant with any documents she requires to travel with Connor. The Applicant shall return Connor's documentation with him at the end of the holiday.

15. The Respondent may claim the Canada Child Tax Benefit (including the National Child Benefit Supplement if applicable), the Universal Child Care Benefit, the refundable children's GST/HST credits, the federal non-refundable tax credit amount for children under 18, and the eligible dependant credit for Connor commencing in the 2016 tax year.

16. The parties will continue to share the cost of Connor's extraordinary expenses, except his tuition at Roundtree Montessori School, equally. The parties may pay their one-half share of the agreed-upon expenses directly to the third party provider. If either party pays 100% of a cost for a section 7 expense for Connor, the other party shall reimburse them their 50% within 7 days of receiving proof of payments. The Respondent shall be solely responsible for paying the cost of Connor's tuition at Roundtree Montessori School or any other agreed upon private school if applicable.

17. The Respondent's obligation to pay child support to the Applicant shall terminate on May 1, 2016. There are no arrears of support owing. The Applicant shall advise the Respondent immediately if she obtains employment or receives any other income so that the amount of monthly child support payable by her can be determined. If the Applicant fails to advise the Respondent of her income, the Applicant shall pay the Respondent support for the child retroactive to the date she began to earn income within 60 days of the Respondent requesting a retroactive payment.

18. Upon commencement of payment of child support by the Applicant, the Applicant shall provide a copy of her Income Tax Return filed each year no later than May 31st and the corresponding Notice of Assessment when received.

19. Unless this Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[223] This Order bears interest at the rate of per cent per year on any payment or payments in respect of which there is a default from the date of default.

Released: April 12, 2016

Justice A.W.J. Sullivan