D.J. v. S.F., 2017 ONCJ 879

Court Information

Court: Ontario Court of Justice

Citation: 2017 ONCJ 879

File Number: Toronto DFO-06-11158B2-03

Date of Judgment: December 22, 2017

Judge: Justice Sheilagh O'Connell

Counsel:

• For the Mother (Applicant): Harold Niman and Meysa Maleki
• For the Father (Respondent): S. Lawrence Liquornik
• For the Child: Catherine Bellinger (Children's Lawyer)

Introduction

This is a motion to change the custody and access provisions of a Final Order dated December 10, 2009. The respondent mother seeks to impose indefinite supervised access on the father, alleging he has failed to comply with medical directives regarding the child's purported life-threatening allergy to tartrazine (yellow food dye). The father seeks reinstatement of the original parenting plan or, alternatively, sole custody.

The child, H., was born in 2006 and is now 11 years old. The parties have been litigating parenting issues since August 2006, when H. was approximately four weeks old. This trial involved 15 days of evidence, 18 witnesses, and over 100 exhibits.

Background and Litigation History

The 2009 Final Order

The 2009 Final Order, made on consent on the eve of trial, granted sole custody to the mother with a detailed parenting plan developed by Dr. Irwin Butkowsky, a custody and access assessor. The plan provided for:

• Alternating weekend access from Saturday 10:00 AM to Monday 10:00 AM
• Mid-week access on alternating Thursdays and Mondays
• Specified summer and Christmas vacation periods
• A parenting coordinator (Dr. Barbara Fidler)
• Requirements regarding boating safety

Subsequent Litigation Events

Following the 2009 Final Order, the parties engaged in extensive litigation:

2010-2011: Arbitration with Dr. Fidler regarding the father's sailboat resulted in an interim ruling restricting the child's presence on the boat to docked situations only, with mandatory life jacket use.

2012: The mother brought her first motion to change, seeking to reduce the father's access due to concerns about his care, accommodation, and the child's safety.

2013: The child experienced medical incidents involving gastrointestinal and anaphylactic-type reactions. Justice Cohen made temporary orders suspending the father's access in October 2013, then reinstating supervised access through Brayden Supervision Services in December 2013.

2014-2015: The father exercised supervised access briefly, then ceased all access for approximately eight months. He resumed supervised access in August 2015.

2016-2017: The parties agreed to transition to unsupervised day visits in September 2016. However, after the father's shoulder surgery in November 2016, the mother withdrew consent to unsupervised access. The mother alleged the father fed the child Pillsbury Dough cinnamon rolls containing tartrazine during an unsupervised visit in December 2016. Brayden Supervision Services subsequently withdrew its services in January 2017.

Issues

1. Has there been a material change in circumstances since the 2009 Final Order that affects or is likely to affect the best interests of the child?

2. If so, what custody and access order is now in the best interests of the child?

The Parties' Positions

The Mother's Position

The mother seeks indefinite supervised access for the father, alleging:

• The child suffers from a potentially life-threatening food allergy to tartrazine/yellow food dye
• The father does not accept this medical condition and acts recklessly
• The father has failed to provide proper sleeping accommodation
• The father has repeatedly breached court orders
• The father is a flight risk
• The father is an irresponsible and unreliable parent with extended absences from the child's life

The Father's Position

The father seeks:

• Reinstatement of the 2009 Final Order in a graduated manner
• Alternatively, sole custody if the mother is unable or unwilling to facilitate his relationship with the child
• He denies the mother's allegations and claims she has engaged in a "scorched earth" litigation strategy
• He accepts the child has medical issues but disputes whether there is a definitive diagnosis of a life-threatening allergy
• He asserts he would comply with all medical directions

The Child's Lawyer's Position

The child's counsel submitted that:

• A material change in circumstances has occurred
• The child has experienced medical issues impacting his access to his father
• The child loves both parents and wants a relationship with both
• The child expressed preference for unsupervised day visits or informal contact arrangements

Evidence and Credibility Findings

The Mother's Credibility

Justice O'Connell found the mother's evidence was not entirely credible. Key findings:

• The mother would not concede anything positive about the father
• Her evidence regarding significant events was highly exaggerated or overstated
• She was evasive and argumentative during cross-examination
• She appeared obsessed with the litigation and portraying the father as "ungovernable"
• Her descriptions of the child's medical reactions were significantly exaggerated compared to corroborating witnesses
• She manipulated the child's therapist by presenting a one-sided narrative
• She employed private investigators to follow the father since the child was two years old

Specific credibility issues:

• Regarding the August 18, 2012 Toronto Island incident: The mother claimed the father deliberately misled her and provided false information to emergency personnel. However, the father's evidence was credible and consistent. The medical records confirmed the father informed staff he was not the custodial parent and waited for the mother to arrive before making medical decisions.

• Regarding the child's medical reactions: The mother testified the child becomes "catastrophically ill" with "muscle collapse" and "uncontrollable projectile vomiting." However, corroborating witnesses did not describe such severe reactions. The mother's own evidence was inconsistent—she described the December 2016 Pillsbury Dough incident as causing throat swelling, yet the child was well enough to travel to Florida the next day.

• Regarding the December 7, 2014 supervised visit: The mother described it as "a disaster" with the father being "physically threatening, intimidating, controlling" and the supervisor "scolding" the child. However, the Brayden supervisor's detailed observation notes recorded no such behavior. The visit ended with "hugs and kisses."

The Father's Credibility

The father's evidence was generally credible, though with some limitations:

• His testimony regarding significant events was consistent and detailed
• His description of the August 18, 2012 incident was compelling and not shaken in cross-examination
• However, he was evasive and argumentative at times
• He demonstrated limited insight into how his conduct contributed to conflict
• His evidence that he was always vigilant about medical issues was overstated

Specific credibility issues:

• The father acknowledged he did not always believe the child had a medical condition, having accused the mother of "Munchausen by Proxy"
• He hired an investigator to find evidence that the child's condition was caused by mould in the mother's home
• He demonstrated poor judgment in purchasing Pillsbury Dough cinnamon rolls containing tartrazine during an unsupervised visit, even though he knew of the child's medical concerns

Other Witnesses

Bonnie Couchard (daycare worker): Highly credible. She provided balanced evidence regarding both parents and corroborated that the father was reminded on at least three occasions to ensure the child's Epi-pens were in the medical fanny pack.

Brayden Supervision Services: The court found the supervised access observation notes to be reliable business records. The notes were detailed, objective, and contradicted the mother's exaggerated descriptions of events.

Dr. Irwin Butkowsky: The court found his 2009 custody and access assessment to remain remarkably accurate. His findings regarding the mother's limitations in fostering the father-child relationship and her "high level of maternal protectiveness" were evident throughout the trial.

Ms. Phillipa Orsborn (child's therapist): The court found her evidence regarding the child's emotional state and observations admissible, but ruled the child's hearsay statements to her inadmissible due to reliability concerns. The therapist had extensive contact with the mother (approximately 40 hours), received a one-sided narrative of events, and did not screen the child for coaching or influence.

Dr. D.D. (father's former girlfriend): Credible witness who testified she did not feed the child Kraft Dinner and prepared meals from scratch to avoid tartrazine.

Medical Evidence

The court reviewed extensive medical reports but found no definitive diagnosis:

• Dr. Michelle McLauchlin (allergist, April 6, 2013): Recommended carrying two Epi-pens at all times but concluded the condition was "idiopathic urticaria and angioedema" most likely triggered by viral illness, with tartrazine as a possible common factor.

• Dr. James Hilton (pediatrician): Confirmed the child suffers from "significant allergies" and must carry Epi-pens at all times.

• Dr. Gordon Sussman (clinical immunologist, August 26, 2013): Conducted extensive allergy testing, all negative. Recommended the child continue to avoid "large amounts of yellow food dye" and carry Epi-pens. Concluded: "I could not identify food allergy. I could not implicate food-induced anaphylaxis."

Key finding: There is no medical evidence of a definitive diagnosis. The medical evidence at best suggests a question of whether the child has an anaphylactic reaction to yellow food dye. No medical expert testified at trial.

Material Findings of Fact

The court made the following material findings:

1. Both parents are intelligent and accomplished individuals who love the child deeply.

2. The child clearly loves both parents and wants a relationship with both.

3. H. is a wonderful, intelligent, creative, and gifted child who excels artistically and athletically.

4. Neither parent trusts the other or anything the other says or does.

5. Both parents have parenting deficits.

6. Dr. Butkowsky's 2009 findings regarding both parents remain valid today.

7. The mother is a highly competent parent except regarding the child's relationship with his father. Despite her assertions, she does not support this relationship and has actively undermined it.

8. The mother is hyper-vigilant, over-reactive, extremely controlling, and manipulative regarding the child's relationship with his father.

9. The evidence does not establish that the child suffers from a life-threatening medical condition or allergy to yellow food dye or tartrazine. There is no medical evidence of a definitive diagnosis.

10. At best, the medical evidence suggests the child should avoid "large amounts of yellow food dye" and carry Epi-pens, but there is no evidence regarding what "large amounts" means.

11. In 2012 and 2013, the child developed some kind of medical condition causing illness after eating certain foods containing yellow food dye, including vomiting, diarrhea, and possibly anaphylactic-type reactions. There is no evidence of anaphylactic reactions since 2013.

12. Both parents' reactions to the medical condition have impacted the father's relationship with the child.

13. The mother has exaggerated the child's medical condition and used it to restrict his relationship with the father.

14. The father has minimized concerns about the medical condition because he distrusts the mother and believes she fabricated it.

15. The disagreement between parents regarding the medical condition causes confusion and distress for the child.

16. The mother's fixated belief that the father is completely unacceptable and irresponsible has interfered with the child's relationship with his father.

17. There is no credible evidence that the child is at risk of physical harm in the father's unsupervised care. Any concerns can be addressed by imposing conditions of access.

18. The court does not find that the father fed the child Kraft Dinner during supervised access or Pillsbury Dough cinnamon rolls during this trial. The court accepts the father's direct credible evidence, the father's former girlfriend's evidence, and the Brayden observation records over the inadmissible hearsay evidence of the mother and child's therapist.

19. The evidence does not support the mother's allegations that the father has repeatedly breached court orders regarding the child's medical condition.

20. The father now takes medical concerns seriously and will ensure the child has Epi-pens and medications at all times.

21. The father exercised very poor judgment in purchasing food containing tartrazine for his friend during an unsupervised visit, knowing of the child's medical condition and the mother's hyper-vigilance.

22. Most significantly, the father's decision not to exercise access for approximately eight months on two separate occasions (totalling 16 months) was selfish, immature, and irresponsible. It was detrimental and harmful to his relationship with the child.

23. The father breached the temporary access order by showing up unexpectedly at the child's school while his access was suspended or supervised. This caused confusion and anxiety for school staff and the child.

24. The father's decision to identify himself as the father in a newspaper article and on social media showed poor judgment and limited insight.

25. There is no credible evidence that the child's physical safety is at risk on the father's sailboat. The father is a very experienced and careful sailor.

26. There is no credible evidence that the father is a flight risk. He has lived in Canada since youth, in the same house for ten years, and has family ties here.

27. Despite the extraordinary high conflict and limitations of both parents, H. has grown into a wonderful 11-year-old boy. The mother deserves significant credit for this.

Legal Framework

The Motion to Change Test

Under section 29 of the Children's Law Reform Act, a court shall not vary a custody or access order unless there has been a material change in circumstances affecting or likely to affect the child's best interests.

The Supreme Court of Canada in Gordon v. Goertz established a two-step process:

Step 1 - Material Change Threshold:

• The moving party must demonstrate a material change in circumstances since the last order
• The change must not have been foreseen or reasonably contemplated by the judge who made the original order
• The change must relate to the condition, needs, means, or circumstances of the child and the ability of the parent to meet those needs
• If this test is not met, the inquiry ends

Step 2 - Fresh Inquiry into Best Interests:

• If the threshold is met, the court embarks on a fresh inquiry into the child's best interests
• Both parties bear the evidentiary burden
• The court considers all circumstances under section 24 of the Children's Law Reform Act
• The court should consider the matter afresh without defaulting to the existing arrangement

Best Interests Factors

Section 24 of the Children's Law Reform Act requires consideration of:

• The love, affection, and emotional ties between the child and each parent
• The child's views and preferences (if reasonably ascertainable)
• The length of time the child has lived in a stable home environment
• The ability and willingness of each parent to provide guidance, education, necessaries of life, and special needs
• The plan proposed by each parent for the child's care and upbringing
• The permanence and stability of the family unit
• The ability of each parent to act as a parent
• The relationship by blood or adoption between the child and each parent

Supervised Access Principles

The court noted that:

• There is a presumption that regular access by a non-custodial parent is in the child's best interests
• The best interests of the child are met by having a loving relationship with both parents
• Such a relationship should only be interfered with in demonstrated circumstances of danger to the child's physical or mental well-being
• Supervised access is not a long-term solution but a temporary, time-limited measure
• Supervised access is appropriate where: (a) the child requires protection from abuse or harm; (b) the child is being introduced or reintroduced after significant absence; (c) there are substance abuse issues; or (d) there are clinical issues involving the access parent
• The most restrictive form of access requires the greatest justification

Application of Law to Facts

Has There Been a Material Change in Circumstances?

The court found the following material changes:

1. The child's medical condition: Despite no clear diagnosis, evidence shows the child developed a medical condition in 2012-2013 causing illness after eating foods containing yellow food dye, including vomiting, diarrhea, and possibly anaphylactic-type reactions.

2. Impact on the father-child relationship: Both parents' reactions to the medical condition, particularly the mother's reaction, have impacted the father's relationship with the child.

3. Parental disagreement causing distress: The disagreement between parents regarding the nature and severity of the medical condition causes confusion and distress for the child and has impacted his relationship with his father.

4. Father's lengthy absences: Since the 2009 Final Order, the father has not exercised access for two lengthy periods totalling approximately 16 months (March 2014 to November 2014, and December 2014 to August 2015). These absences have affected the father's relationship with the child.

Conclusion: A material change in circumstances has been established.

Fresh Inquiry into Best Interests

Having found a material change, the court conducted a fresh inquiry into the child's best interests:

Custody:

The court declined to change custody from the mother to the father, despite finding that the mother has undermined and restricted the father-child relationship. Reasons:

• The mother is a consistently responsible, conscientious, and excellent parent in all other respects
• The child has lived with the mother all his life and has a secure, close attachment to her
• The child has lived in the same home and neighbourhood for many years
• The mother has provided a stable, structured, and enriched upbringing
• The child has developed a close circle of friends in his school and neighbourhood
• Disrupting the child's home and primary residence would not serve his best interests
• The father has not demonstrated the same consistency and responsibility in parenting

Access:

The court found that unsupervised access should be reinstated immediately:

• There is no credible evidence the child is at physical risk in the father's unsupervised care
• The father will be vigilant in ensuring the child's medical needs are met
• The child has a right to a full and meaningful relationship with his father
• The father's lengthy absences have impacted the security of the child's attachment to him
• The father needs to demonstrate consistent and reliable parenting
• It is in the child's best interests to move back towards the parenting schedule recommended by Dr. Butkowsky, in a graduated and modified manner

Child's Wishes:

The court considered the child's expressed preference for daytime access or informal contact arrangements. However, the court noted:

• The child is only 11 years old
• The child's wishes are one factor among many, not determinative
• The child's apprehension about access with his father, resulting from the father's lengthy absences, must be addressed through graduated reintroduction
• The child's best interests require a full and meaningful relationship with his father

Final Order

The court made the following final order:

Custody and Residence

1. All existing custody and access orders are terminated.

2. The mother shall continue to have sole custody of the child. The child's principal residence shall continue with the mother.

Access Schedule

Phase 1 (Commencing December 24, 2017 or December 31, 2017):

• Every Sunday from 10:00 AM to 6:00 PM for six weeks

Phase 2 (Commencing February 3, 2018):

• Alternating weekends from Saturday 10:00 AM to Sunday 6:00 PM
• On non-weekend weeks: Tuesday and Thursday after school overnight until the following morning return to school

Phase 3 (Commencing March 9, 2018):

• Alternating weekends from Friday after school until Sunday 6:00 PM, extending until Monday 8:00 PM if Monday is a statutory holiday
• On non-weekend weeks: Tuesday and Thursday after school overnight until the following morning return to school

Holiday Access

• Summer: Two non-consecutive weeks (two periods of seven days) each year
• March Break: In even-numbered years, the entire March school break from Friday 6:00 PM until Sunday 6:00 PM
• Mother's Day: Always with the mother from 10:00 AM onward
• Father's Day: From 10:00 AM to 6:00 PM with the father
• Thanksgiving: In even-numbered years, from Friday after school until Monday 6:00 PM
• Christmas: In even-numbered years (commencing 2018), from after school on the day Christmas vacation begins until December 25 at 12 noon. In odd-numbered years (commencing 2019), this schedule is reversed. The balance of Christmas vacation is divided equally, with the child returning to the mother's care by Sunday 6:00 PM before the new school year.
• Christmas 2017: December 24 from 10:00 AM to 6:00 PM and December 26 from 10:00 AM to 6:00 PM, in addition to regular Sunday visits

Access Conditions

1. The father shall ensure the child has his medical fanny pack at all times, including two Epi-pens, Flovent, and Ventolin.

2. The father shall exercise caution in ensuring the safety of all food consumed by the child during access visits.

3. If the child becomes ill during an access visit, the father will immediately notify the mother and take appropriate steps.

4. The father should give the child a consistent message that he has a medical condition requiring avoidance of food containing tartrazine or yellow food dye.

Communication

1. Each parent is entitled to reasonable telephone and video contact with the child while in the other parent's care.

2. The child may communicate directly with either parent by mobile device.

3. Parents shall communicate by email and text, responding to time-sensitive messages within 12 hours. In emergencies, parents shall text or call immediately.

Travel

1. The mother's travel with the child outside Ontario is governed by the July 28, 2014 Travel Order.

2. The father may travel with the child outside Canada for vacation, contact with extended family, or special occasions with the mother's consent (not to be unreasonably withheld). The father shall provide two weeks' notice and a complete itinerary.

3. The father may travel outside Toronto with the child during access periods. If away overnight, the father shall notify the mother with an address and telephone number.

4. The father is permitted to take the child sailing on his sailboat or other sailboats, provided the child wears a life jacket at all times.

Parenting Responsibilities

1. Neither parent shall enrol the child in extra-curricular activities impacting the other parent's time without consent.

2. In the event of school recitals, sporting events, or competitions, the parent with care shall ensure the child attends on time.

3. Neither parent shall make disparaging or derogatory comments about the other parent in front of the child.

4. The father shall advise the mother in writing of any change of address or contact information within 24 hours.

5. The mother shall consult the father about major decisions concerning the child. After consultation, she will make the final decision.

6. The father shall have permission to meet with any doctor, medical professional, teacher, coach, or other professional with contact with the child to obtain information. The mother shall execute any necessary authorization.

7. The father shall be permitted to obtain school report cards and notices directly from the school.

8. The father shall be given notice of school events and permitted to attend. He may arrange separate parent-teacher meetings.

9. The mother shall provide the father with the child's health card and schedules of extra-curricular activities.

10. The father shall be listed as an emergency contact with the school and service providers.

11. The mother shall not move the child's permanent residence further than 25 kilometres from her current residence without the father's written consent or a further court order.

Access Exchanges

1. If the access exchange occurs on a non-school day, it shall take place at the mother's home. The father shall remain in his car unless necessary to place items in the trunk or on top of the car.

2. If the access exchange occurs on a school day, the father shall pick up and drop off the child at school.

3. When returning the child to school the next morning, the child shall be delivered on time.

4. The parents may not change the schedule without consent, except if the child is too ill to exercise access. If cancelled for illness, the visit shall be made up the following weekend.

5. The parents may agree on further and other access.

Costs

If either party is claiming costs, counsel shall within 30 days submit written submissions not exceeding six pages with a Bill of Costs and any Offer to Settle attached. The other party shall respond within 30 days with submissions not exceeding six pages.

Police Enforcement

The court declined to make a police enforcement clause, finding such orders should be used sparingly as an order of last resort in exceptional circumstances. Involving police can frighten children, cause anxiety, and polarize difficult situations.

Remaining Seized

The court indicated willingness to remain seized with the case if counsel believe it would assist the parties.

Conclusion

Justice O'Connell concluded:

These court proceedings and the parents' conflict have defined and shaped H.'s life. Thankfully, by all accounts, H. is a wonderful child with many talents. He is loved by both of his parents. He has a right to a loving and meaningful relationship with both of his parents. H. has a right to be free of conflict and to develop into a healthy and well-adjusted person who can reach his fullest potential.

The court found that while the mother has undermined the father-child relationship through hyper-vigilance and over-protectiveness, and the father has demonstrated poor judgment through his lengthy absences and oppositional conduct, the child's best interests are served by maintaining the mother's custody while restoring meaningful unsupervised access to the father in a graduated manner.

The court rejected the mother's request for indefinite supervised access, finding no credible evidence of physical risk to the child. The court also rejected the father's claim for sole custody, recognizing the mother's superior parenting in all respects other than facilitating the father-child relationship.

The final order substantially reinstates the 2009 parenting plan with modifications to address the material changes in circumstances, particularly the child's medical condition and the need for gradual reintroduction following the father's lengthy absences.