DATE : April 6, 2021 COURT FILE NO. D31342/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

CLETUS OPPONG WIAFE

GLENDA PERRY, for the APPLICANT

APPLICANT

- and -

GIFTY AFOAKWA-YEBOAH

GABRIELLA V. DEOKARAN, for the RESPONDENT

RESPONDENT

HEARD: MARCH 15-19, 24-27, 2021

JUSTICE S.B. SHERR

REASONS FOR DECSION

Part One – Introduction

[1] This trial was about what parenting and support orders should be made regarding the parties’ three-year-old daughter (the child).

[2] The child lived in the primary care of the respondent (the mother) until October 30, 2020, when the London, Ontario police force enforced the October 7, 2020 order of Justice Roselyn Zisman, placing the child in the temporary care of the applicant (the father).

[3] The child has lived with the father since October 30, 2020, in Mississauga, Ontario. The mother has parenting time with the child on alternate weekends.

[4] The father seeks orders that the child have her primary residence with him and that he be given sole decision-making responsibility for her. He seeks restrictions regarding the mother’s parenting time with the child. He asks for a police enforcement order. He also seeks child support from the mother and to have income imputed to her for the purpose of the support calculation.

[5] The mother seeks orders that the child have her primary residence with her and that she be given sole decision-making responsibility for her. She asks for an order permitting her to relocate the child with her to London, Ontario. This is where the mother has lived since June 30, 2020. The mother asks for an order that the father have alternate weekend parenting time with the child. She seeks child support, including retroactive support of $14,740.48. She asks the court to have income imputed to the father for the purpose of the support calculation.

[6] The court received written and oral evidence from the parties. The father called two police officers, a Peel Children’s Aid Society worker and a doctor’s receptionist as witnesses. He filed numerous business records from the London and Peel police forces, Peel Children’s Aid Society (the society) and various health care providers for the parties and the child. The mother called her husband (J.A.), her former counsel and the father’s ex-partner as witnesses.

[7] The trial was conducted by videoconference.

[8] The issues for this court to determine are:

a) What parenting orders are in the child’s best interests? This issue involves many aspects, including:

i) Who should the child have her primary residence with?

ii) What decision-making responsibility orders should be made regarding the child?

iii) If the child’s primary residence is with the mother, should she be permitted to relocate the child with her to London?

iv) What parenting time orders should be made?

v) If the child’s primary residence is with the father, should the mother’s parenting time be supervised? Or, should the parenting exchanges be supervised?

vi) What communication orders, if any, should be made regarding the parties?

vii) What orders, if any, should be made regarding the child’s documentation?

viii) What restrictions, if any, should be placed on the parties’ ability to take the child outside of the Greater Toronto Area (the GTA)?

ix) What travel terms, if any, should the court make regarding the child?

x) Should the court make a police enforcement order?

xi) Should the court make orders controlling future litigation?

b) What child support, if any, should either party pay to the other?

Part Two – Format of the trial

[9] Following a structure previously set out by Justice Frances Kiteley in Singh v. Chandel, 2016 ONSC 3347 and Justice Carolyn Jones in Bandas v. Demidarche, 2013 ONCJ 679, and with the assistance of counsel, the case management judge, Justice Roselyn Zisman, set out global time limits for the conduct of the trial. [1] These terms were set out in a lengthy endorsement, dated February 8, 2021.

[10] A global time limit of 27 hours (excluding closing statements) was set for the parties to present their case – 13.5 hours for each party.

[11] This global time limit included time required for opening statements, direct, cross and re-examination of all witnesses and time required to play any audio and video recordings. Time spent on objections and evidentiary challenges was to be allocated against the unsuccessful party. Any time wasted by a party or counsel, including being late or having witnesses unavailable, was to be allocated against that party. Neutral time, such as daily discussion of trial management issues, was to be allocated equally between the parties.

[12] The parties were each given 2.5 hours to present their closing arguments, with the father having the right of reply of one hour.

[13] Justice Zisman endorsed that it was highly unlikely that the trial judge would grant either party an increase in their time to present their case – the parties were expected to complete their presentation within the time allotted. She endorsed that it was up to counsel how to best conduct their cases in the allocated time. These messages were reinforced during the trial.

[14] Strict limits were also placed on the presentation of evidence. It was agreed that the parties could each file up to 50 pages for their trial affidavits for their direct evidence (excluding exhibits) and up to an additional 150 pages of documents/exhibits, for a total of 200 pages.

[15] Justice Zisman also set out strict timelines for the production and filing of material.

[16] A review of the court history of this case informed the court why such a strict trial structure was imperative.

[17] There has been a disproportionate amount of litigation in this case, with several attendances and motions in this court, the Superior Court of Justice (the Superior Court), the Divisional Court of Ontario (the Divisional Court) and the Ontario Court of Appeal.

[18] The case has also been complicated by allegations of professional misconduct between the parties’ counsel, including claims by both counsel that the other has not served them with court documents, or has served them with different documentation than what was filed with the court. This issue became so contentious that Justice Zisman ordered that service of all court documents must take place through the court’s trial coordinator’s office – when documents were filed, the other counsel would be called by the court office to pick them up.

[19] Layered on to these complications is that we are operating the court system in a pandemic. All courts are faced with restrictions that make it highly challenging to provide timely access to the court system for its users. This court site handles several thousand new cases every year. Clause 2 (3) (d) of the rules requires that courts consider those families when determining how much court time to give to any case. Every additional trial day given to one family can result in a delay of months for several other families to have their cases heard.

[20] Considerable court resources have been dedicated to this case. This trial was expedited and scheduled outside of the regular trial sittings. The facts of this case were not that complicated. In fact, a case of this nature would usually take 4 to 5 days of trial. This trial took place over 9 days.

Part Three – Trial management issues

[21] The trial structure set out by Justice Zisman was quickly compromised because of multiple breaches of her order by the mother. These breaches included:

a) The mother failed to provide her trial plan to the father setting out the order of witnesses and the date and approximate time the witness would be called to testify. This was supposed to have been delivered to the father by March 1, 2021. Her witness list became a moving target during the trial.

b) The mother had only provided a one-page, undated letter from a doctor she had seen in Ghana. The mother was required by Justice Zisman to provide the complete records of this doctor to the father by March 1, 2021. No further records were provided.

c) The mother was ordered to provide a copy of her former counsel’s (the former counsel) file to the father by March 1, 2021. She did not provide these records by the start of the trial. The mother claimed at trial that the entire file had been produced.

The former counsel was called at trial and testified about the delivery of his file to the mother. He stated that he had not been given, nor had he been advised by the mother’s counsel of Justice Zisman’s production order. He was not summonsed to bring his entire file to the trial. He had just informally provided the mother’s counsel with what he felt were the necessary documents in the file. It became apparent that the former counsel had not delivered his entire file to the mother’s. He was ordered to scan and produce his entire file, send it to the court clerk the same day and to attend the next day at 10:00 a.m. for examination.

The former counsel delivered his entire file later that day but did not attend for examination, when scheduled, the next day. The mother’s counsel advised the court that she had told the former counsel that he did not have to attend since she was no longer calling him as a witness. However, the court had made it clear that since he had been produced as a witness, that the father could cross-examine him. The mother’s counsel apologized for doing this. The court was eventually able to reach the former counsel and he testified later in the day.

d) The mother was required to file her Amended Answer/Claim by February 12, 2021. This was not filed until March 12, 2021. [2]

e) The mother was required to serve her financial statement by March 1, 2021. She did not serve it until mid-way through the trial after several reminders. Even then, she failed to serve and file the required attachments to her financial statement required by the rules. [3]

f) Copies of any audio or video tape that the mother sought to introduce were to be served by February 24, 2021. These were not served until March 12, 2021.

g) The mother’s trial affidavits and document briefs were to be served and filed by March 8, 2021. She had not done this by the morning of March 12, 2021 – the Friday before the trial was to start on Monday, March 15, 2021. The father had filed his trial affidavits and document briefs, as required, and the mother had not picked them up from the trial office. [4]

Justice Zisman made the following endorsement on March 12, 2021:

This is to confirm that counsel for the Respondent was advised by the trial coordinator on Tuesday morning that the Applicant’s trial record and document brief had been filed with the court as required on Monday March 1 st and were available for pick up at the trial coordinator’s office. Respondent’s counsel advised that she would be sending a process server to pick up the documents and also to file her own documents.

It has been brought to my attention that both trial coordinators have attempted to reach the Respondent’s counsel on numerous occasions but her office number is not in service and there is no ability to leave a message on her cell phone. Counsel is aware of the filing deadlines.

Despite further attempts to reach the Respondent’s counsel, she has not picked up the Applicant’s documents or delivered her own documents.

The trial is scheduled to begin on Monday March 15 th . There has been no request for an adjournment.

The consequences of counsel not filing materials or not arranging to pick up the Applicant’s trial documents will be dealt with by the trial judge.

The mother finally filed her trial affidavits and document briefs in the afternoon on March 12, 2021. She failed to provide additional copies for the court as directed by Justice Zisman, making her documentation much more difficult to manage in a virtual trial.

The father’s counsel was then called to pick up these documents. Counsel advised the court that she picked up the mother’s documents after 4 p.m. that Friday.

h) The father complied with the page limits set out by Justice Zisman. The mother did not come close. Her affidavit was within the page limits, but she filed over 420 pages of documents, when she was only permitted to file 150 pages. She had not sought prior leave of the court to exceed the page limits set.

[22] The mother’s counsel advised the court that she had been unable to file her trial affidavits and document brief on time because her photocopier had broken on March 8, 2021. She said it was not fixed until the afternoon of March 9. She did not explain why she did not file the documents by March 10, 2021 or why she did not notify the father’s counsel about the delay.

[23] The court’s challenge became trying to provide a fair trial process for the father, who was being prejudiced by the mother’s litigation conduct as enumerated in paragraph 21.

[24] On the first day of trial (March 15, 2021), the father sought an adjournment of two days because of the mother’s non-compliance with Justice Zisman’s order. A one-day adjournment of the trial was granted, together with terms to address his prejudice, including:

a) The father was allocated an additional 1.5 hours to present his case at trial.

b) The page limits set out by Justice Zisman would be enforced. The mother was given until March 17, 2021 to pare down her documents to the 150 pages ordered. [5] The mother was advised that court orders and endorsements that she had attached from various court levels in her documents brief could be filed separately in a supplementary trial record.

c) The mother would only be permitted to cross-examine the father on documents that had been previously filed at the different court levels (including the documents that the father filed at this trial). [6] If the father gave reply evidence, the mother would be permitted to cross-examine him on additional documents that related directly to the reply evidence he gave.

d) 30 minutes were reduced from the mother’s time to present her case due to the wasted time (the father sought a much larger time reduction). The mother was cautioned that the court would not be as lenient with future breaches of court direction.

[25] The mother’s inability or refusal to comply with Justice Zisman’s trial management orders was part of a pattern of defiant behaviour by her that was a hallmark of this case.

[26] The court provided the mother with several time allowances at trial. By the time the mother was cross-examined, she had come close to using up her allotted time. The court exercised its discretion and did not restrict the mother’s ability to make objections during the father’s cross-examination of her. [7] The court also did not allocate any time against the mother for multiple technological challenges her counsel had that delayed the trial, including losing most of the second day of trial – this happens with virtual trials. There were also delays trying to have a witness from Ghana connect to the trial. This time was not allocated against the mother.

[27] The parties were also given leeway to present additional relevant documents at trial to respond to evidence presented in the other’s case.

Part Four – The parties

[28] The father is 42 years old. The mother is 32 years old.

[29] The parties have the one child together.

[30] The father has two other children who have a different mother (L.T.) These children are 9 and 7 years old. There is a court order dated December 11, 2019 that the father have joint decision-making responsibility for these children together with L.T. These children alternate spending weeks with their parents.

[31] The father has two older children (ages 18 and 17) who live with his mother in Ghana.

[32] The father was born in Ghana and came to Canada in 1998. He has a masters degree in political science. He completed a paralegal course in 2015 and is a licenced paralegal. He recently enrolled as a law student at the University of Essex and is taking his courses on-line.

[33] The father lives with the child in an apartment in Mississauga, Ontario.

[34] The mother was also born in Ghana. She entered into a ceremonial marriage with J.A. in Ghana in May 2019. The mother is attempting to sponsor him to come to Canada to live with her. J.A. works in Ghana as a teacher.

[35] The mother and J.A. have one child together, who is 10 months old (N.). The mother lives with N. in London. J.A. has not yet met N. in person.

[36] The mother has worked in the past as a personal support worker. She has not worked since early in 2019. She is staying at home to care for N. The mother has enrolled in a nursing program at St. Clair College, starting in September 2021.

[37] The parties never cohabited.

[38] The child lived with the mother and the father visited the child. The mother was the child’s primary caregiver.

[39] The parties disagree on how much involvement the father had with the child or how well the father supported the child until February 2019.

[40] Neither party started a court application prior to October 2019 regarding parenting or financial issues.

Part Five – Credibility of the parties and their witnesses

[41] The court had some concerns with the father’s credibility. He tended to over-dramatize or exaggerate evidence. The court’s most serious concern about his credibility was that he did not inform the court that he was in Ghana when Justice Zisman ordered that the child be placed in his temporary care on October 7, 2020. [8]

[42] The father also had difficulty answering questions directly – often going off on multiple digressions. The court did not view this so much as evasion, as this difficulty was equally evident in questioning by his own counsel. What it did inform the court was that the father has difficulty listening to what other people are saying to him.

[43] The father called two police officers, a social worker from the society and a receptionist from a doctor’s office. These witnesses were all credible. The professional witnesses gave their evidence in a balanced and fair manner. Their evidence was supported by their notes and records that were prepared contemporaneously. They were not aligned with the father.

[44] The mother’s credibility issues were very serious. It became apparent that she was willing to lie, misinterpret events, make false allegations and, quite simply, do or say anything to achieve her objectives. Many examples will be provided in this decision.

[45] While some of the mother’s excuses and justifications for her conduct given at trial have merit if taken alone, it was the sheer breadth of them, on so many issues, that was staggering, and which undermined her credibility.

[46] Unlike the father, the mother was able to answer questions directly in her direct examination. This changed during her cross-examination. She became defensive and avoidant. She often digressed and deflected difficult questions. When faced with contradictions in her evidence, she would either try to avoid the question or claim it was a mistake. She struggled explaining how these mistakes were made.

[47] Where the father’s evidence conflicted with the mother’s evidence, the court generally preferred the evidence of the father. The court completely preferred the evidence of the father’s other witnesses, and the evidence set out in the business records filed when it conflicted with the mother’s evidence. [9]

[48] The two witnesses called by the mother, J.A. and L.T., were aligned witnesses. The court treated their evidence with caution. J.A. did not have much to add to the case as he has remained in Ghana.

[49] The mother and L.T. connected after the child was removed from the mother’s care on October 30, 2020. L.T. described herself as a support for the mother. L.T. clearly disliked the father and had to be stopped from making speeches about him when it had no relation to the questions asked. Many of her concerns about the father were historic and related to her own issues with him. The court received a snapshot during trial that L.T. may not the easiest person to co-parent with when, in response to her statement that she had always provided the father with medical information about their children, she was confronted with a series of texts from the father from February 2021, inquiring about medical information about one of their children. The messages were polite, succinct and child focused. L.T. ignored these messages. Her rationalizations for doing so only deepened the court’s impression that she was being unfair to the father.

[50] Despite her dislike of the father, L.T. and the father have co-parented successfully for several years. Their children are happy, well-cared for and doing well.

Part Six – History of the case

6.1 Ghana

[51] In February 2019, the mother sought the father’s consent to travel with the child to Ghana to see her mother. The father initially resisted, but provided his consent on February 28, 2019 that the mother could travel to Ghana with the child from May 7, 2019 until June 2, 2019.

[52] The mother married J.A. a week after she arrived in Ghana. J.A. testified that his marriage proposal was a surprise to the mother – he had arranged it between their families before she came to Ghana.

[53] The mother notified the father that she would not be returning to Toronto on June 2, 2019 as scheduled. The father consented to an extension until June 30, 2019.

[54] The mother texted the father on May 29, 2019 that she did not plan to return until September 2019. The father objected. He enlisted the assistance of the Peel police force to have the mother return the child to Toronto. These attempts were unsuccessful.

[55] The mother claimed that she had to remain in Ghana because she suffered psychiatric issues when the father sent her messages that he had a vision that her mother would become ill when she left Ghana and to be careful. [10] The mother claimed that she received medical advice to stay in Ghana for several more months.

[56] The mother was ordered to provide the father with the complete medical file of her doctor in Ghana by March 1, 2021. She failed to do this. The mother was also ordered to provide the father with comprehensive records of her travel to Ghana and return to Canada to test her story. She failed to provide this. Only during cross-examination did she provide partial and unhelpful travel disclosure. A negative inference is drawn against the mother for her failure to comply with these production orders. The court finds that it is far more likely that she chose to remain in Ghana to be with her new husband. The father’s vision expressed in the text messages was a convenient excuse for her to extend her stay in Ghana with J.A.

6.2 – October 2019 to May 2020

[57] On October 12, 2019, the mother texted the father that she had returned to Canada. The father was excited and texted the mother, asking when he could see the child. The mother responded that she was in Edmonton, Alberta.

[58] The mother testified that she had lost her housing in Toronto when she stayed longer in Ghana and had no friends or family to stay with in the Toronto area. She had friends, she said, in Edmonton.

[59] In paragraph 51 of her trial affidavit, the mother deposed that she only went to Edmonton for a short trip for three weeks. This is unlikely. She never communicated that plan to the father and in her Answer/Claim she sought an order permitting her to relocate to Edmonton. In paragraph 36 of her Answer/Claim, she stated that she had applied for several jobs in Edmonton and the prospects were good and in paragraph 37 she stated that she had applied and received provisional approval for subsidized daycare which would have allowed her to obtain employment in Edmonton. [11] The mother’s actions indicate that she had no intention of returning to Toronto in three weeks.

[60] The father issued a court application on October 18, 2019 and brought a motion without notice that the mother return the child to the GTA. This order was made by Justice Melanie Sager on October 19, 2019.

[61] The father’s motion was returnable on October 24, 2019. The mother sent a friend to court and obtained an adjournment of the motion. The mother was ordered by Justice Sager to provide the father with her address and contact number.

[62] The mother said that she returned with the child to Toronto on November 6, 2019 and moved with the child into a shelter.

[63] On November 8, 2019, the parties consented to a temporary without prejudice order by Justice Sager. They agreed that the father would have parenting time with the child three days each week, with gradual increases in parenting time. They also agreed to an order that the mother could not remove the child from the GTA without the father’s written consent or prior court order.

[64] The mother received an extension of time until December 9, 2019 to file her Answer/Claim and Form 35.1 affidavit. She did not file these documents by the time required and received a filing extension.

[65] The mother claimed at trial that she had been forced into the November 8, 2019 agreement by Justice Sager. This was one of many examples of the mother not taking any responsibility for her actions and blaming others for them. The mother claimed that she only met her former counsel at court that day. However, when the former counsel’s file was finally produced, it showed that he had actually first met with the mother on November 6, 2019 for one hour – not on the court date of November 8, 2019, as she claimed.

[66] In paragraph 38 of her trial affidavit, to justify her later move to London, the mother claimed that the two orders of Justice Sager were conflicting. There was no conflict. It was clear that the mother could not move the child outside of the GTA without the father’s written consent or a prior court order.

[67] The mother served the father with her Answer/Claim on February 3, 2020. She did not file it. It was not filed until September 29, 2020, when Justice Sager asked the father’s counsel to file it on the mother’s behalf.

[68] Soon after the November 8, 2019 order, the father asked to reduce his parenting time to twice each week. He explained that logistically, on the Thursday visits, he could not pick up his other children in Burlington and make it to the visit with the child on time. The mother agreed to this reduction in parenting time.

[69] Matters then settled down. The child lived with the mother and visited with the father.

[70] Then the pandemic began in the middle of March 2020. The father agreed to not see the child at the start of the pandemic.

[71] The father began asking to see the child in-person by the end of May 2020 when governments started loosening pandemic-related restrictions. The mother did not agree to in-person parenting time for the father. She offered the father virtual contact with the child. He turned this down. This was not a child-focused decision.

[72] During this time frame, the child developed some health issues.

[73] In November 2019, the mother took the child to the hospital for suspected pneumonia. Chest x-rays were taken. Pneumonia was ruled out but the child was given a prescription for Ventolin.

[74] The mother did not inform the father of the hospital visit or the outcome.

[75] The child began having problems with breathing, drooling and snoring. She was referred to a specialist (the specialist). The specialist’s report dated April 7, 2020 sets out the following assessment and recommendations:

The child may have adenoid hypertrophy with possible mouth breathing at night which can contribute to halitosis. I have recommended nasal saline drops qhs for one month. I have instructed her mother to have the child see a dentist to rule out odontogenic disease. Her mother will arrange follow-up with my office should the child develop any apneic episodes during sleep after the COVID-19 pandemic is over.

[76] The mother did not advise the father that the child had seen the specialist and she did not inform him of his assessment and recommendations.

6.3 – June 2020 – October 7, 2020

[77] On June 23, 2020, the mother advised the father that she was moving with the child to London. She moved there on or about June 30, 2020. She sent the father a text saying that she had moved. He responded, “I see”.

[78] The mother was represented by her former counsel at that time. She could have and should have brought a motion for permission to relocate the child to London on a temporary basis in the absence of written consent by the father.

[79] The father was not represented by counsel at this time. On July 17, 2020, he asked the mother to resume his parenting time, as set out in the November 8, 2019 order of Justice Sager. That order provided that the parenting exchanges were to take place at the Woodbine Mall in Toronto. The mother did not agree to doing this and wanted the parenting exchanges to take place in London.

[80] In one of her many instances of self-serving logic in this case, the mother claimed at trial that the father consented to the move to London by responding “I see” and by then asking for his parenting time.

[81] The mother did not bring a motion to change the exchange location contained in Justice Sager’s order. The father did not have his parenting time with the child.

[82] During this time, there was no court oversight of the case as it had been adjourned due to the pandemic and the suspension of regular court operations. The case finally returned to court on August 19, 2020 for a case conference. Justice Sager noted in her endorsement that the father’s visits had been going well until they were interrupted by the pandemic. She gave leave to the father to bring a motion to have the child returned to the GTA. She set up filing timelines. The motion date was set for September 29, 2020.

[83] The father retained counsel and brought a motion asking for the child to be returned to Toronto and to be placed in his primary care.

[84] The mother retained her present counsel and brought a Form 14B motion asking for an extension of time to file her motion materials. Counsel for the mother set out a new proposed filing schedule. This request was granted by Justice Sager.

[85] On the return of the motion, the mother sought an adjournment. She had not filed her responding material, despite the filing extension granted. The father asked for the child to be placed in his care, pending the return of the motion. Justice Sager did not make that order. She adjourned the motion until October 7, 2020 and granted a further extension of time for the mother to serve and file her responding materials. She also ordered that the mother should be prepared to provide the court with her current address should she be ordered to do so at the next court date.

[86] This was the last time the mother attended any of the court appearances in this court prior to the trial.

[87] On October 1, 2020, the mother filed a Form 14B motion seeking an order for the release of the transcript from the September 29, 2020 appearance. The affidavit in support of the motion states, “our client intends to review the same to potentially address the issue of reasonable apprehension of bias and/or an appeal”. Justice Sager endorsed on October 5, 2020 at paragraph 8:

Due to the importance of the issues raised by the father in his motion and the mother’s allegation of potential apprehension of bias, the motion scheduled on October 7, 2020 at 3:00 p.m. will proceed before another judge of this court.

[88] The matter returned before Justice Zisman on October 7, 2020. The mother had still not filed her responding materials despite the second extension of time. The mother did not attend the teleconference, despite having been advised by Justice Sager that she may have to disclose her current address on this court date. The mother’s counsel sought a further adjournment of the motion.

[89] Justice Zisman found that the mother was in breach of orders to keep the father advised of her current address and phone number, to not remove the child from the GTA and to give the father his scheduled parenting time with exchanges at the Woodbine Mall. She also found that she had breached the consent (although not a court order) with respect to her trip to Ghana. She expressed in her endorsement that given the mother’s history of disobeying orders and not being available at the hearing, she had serious concerns about her whereabouts.

[90] Justice Zisman ordered that the motion be adjourned until November 12, 2020 and that the child be placed in the temporary care of the father, pending the hearing of the motion. She also made a police enforcement order pursuant to section 36 of the Children’s Law Reform Act (the Act). She gave the mother leave to bring a cross-motion returnable on the adjournment date. She endorsed that counsel for the father requested that a telephone conference be set up to discuss a transition of the child to the father’s care. However, counsel for the mother was not prepared to discuss this and said that she would be appealing the order.

[91] The mother was given another extension (the third) until October 26, 2021 to serve and file her responding materials to the father’s motion, as well as her own cross-motion.

[92] Justice Zisman’s order resulted in a flurry of legal proceedings and the escalation of concerning conduct and poor judgment by the mother.

6.4 – Events from October 8, 2020 to October 29, 2020

[93] On October 13, 2020, the mother moved in the Superior Court in Brampton to stay Justice Zisman’s order. That was the wrong jurisdiction and the motion was dismissed.

[94] In response to a Form 14B motion brought by the father to enforce her October 7, 2020 order, Justice Zisman ordered on October 16, 2021 that the mother appear in person with the child at court on October 21, 2020. The mother was put on notice that it was a serious offence to disobey a court order and that she could be arrested for continuing to bring disrepute to the administration of justice by her ongoing failure to comply with court orders.

[95] The father deposed that the mother then brought the matter before the Divisional Court and that Justice Lise Favreau directed that the underlying order was interlocutory and that the proper appeal route was to the Superior Court. [12]

[96] On October 20, 2020, the mother moved in the Superior Court to stay Justice Zisman’s order of October 7, 2020. This motion was dismissed by Justice Llana Nakonechny that day. Justice Nakonechny ordered that the mother have 5 hours of access each week to the child in Mississauga, at times to be agreed upon. The child was still with the mother at this time.

[97] The mother appealed this order and also sought a stay of Justice Zisman’s October 7, 2020 order in the Divisional Court.

[98] On October 20, 2020, the mother brought a Form 14B motion in this court seeking an adjournment of the October 21, 2020 court date, as her counsel was scheduled to appear in the Divisional Court on October 21. She also filed a medical note, dated October 19, 2019, that she was supposed to self-isolate until October 24, 2020 because she had reported COVID-19 symptoms. [13]

[99] Neither the mother nor her counsel attended court on October 21, 2020. Justice Zisman endorsed that the mother could have attended by teleconference or simply have revealed her address as required by the court order. Justice Zisman adjourned the motion until October 30, 2020 in order for the mother to appear in person with the child. She endorsed that if the mother or her counsel were unable to attend for medical reasons in person, then by the end of the day, the mother’s counsel was to advise if she and her client wished to attend by telephone or by zoom.

[100] The mother did not serve her motion material by the October 26, 2020 deadline, despite the multiple extensions she had been given to do so.

[101] On October 26, 2020, despite purportedly having COVID-19 symptoms and having been told to self-isolate by her doctor, the mother took the child to the dentist. She admitted that she did not tell the dentist’s office about her symptoms. This placed everyone in that office at risk of being infected.

[102] When asked why she had delayed so long after being advised by the specialist to take the child to the dentist, the mother answered that it was because the child’s prior issues (as described in paragraph 75 above) were no longer a concern. [14] She admitted that she had made that assessment on her own, without medical advice.

[103] When asked why, on October 26, 2020, she had broken the medical direction to self-isolate, the mother answered that the child had dental issues that needed to be dealt with and she viewed this appointment as an exception.

[104] It became apparent in cross-examination that the mother had not provided the dentist with the assessment and recommendations of the specialist. She had only mentioned the child’s breath issues. No x-rays appear to have been taken of the child.

[105] The mother did not advise the father that she was taking the child to the dentist and did not advise him about the outcome.

[106] On October 29, 2020, the mother brought a Form 14B motion seeking to adjourn the October 30, 2020 attendance to November 12, 2020. The mother attached a further note from a medical clinic, dated October 27, 2020 indicating that she should self-isolate until November 6, 2020. [15] The mother also asked for Justice Zisman to recuse herself from the case. The adjournment request was dismissed. Justice Zisman endorsed that the mother could attend by teleconference and that she could bring a recusal motion on the scheduled return date of November 12, 2020.

6.5 – October 30-31, 2020

[107] Neither the mother nor her counsel attended at court on October 30, 2020. Justice Zisman adjourned the matter to November 12, 2020 and indicated in her endorsement that counsel should expect that the father’s motion would proceed.

[108] On October 30, 2020, the London police force enforced Justice Zisman’s order.

[109] The court heard from Officer Liu who attended on the enforcement of the order. It was apparent from the evidence that he conducted himself in a sensitive, respectful and exemplary manner on that day.

[110] Officer Liu testified that he recognized how difficult this transition was going to be for the mother and the child and he took his time with it. He testified that he approached the situation with “kid gloves”. A social worker was brought in to assist. This process took several hours.

[111] An attempt was made to put the child in the car. However, the child became distraught – screaming and crying and pulling off her seatbelt. It was unsafe to drive her. A decision was made to bring the child back in her home, calm her down and start over again.

[112] Officer Liu testified that the mother was cooperative up to this stage.

[113] Officer Liu said that he offered several alternatives to the mother to ease the transition for the child (such as the mother driving with the child in the car). The mother turned down the options.

[114] Officer Liu testified that the mother became increasingly resistant to the transfer. He felt she was stalling. Eventually, the police put the child back in the car. The social worker buckled the child. The child, Officer Liu said, was calm. At that point, he said, the mother came out of the home in an escalated state. She became frantic and belligerent and threw herself at the car. The child quickly became upset as well.

[115] Officer Lui said that the mother started video recording and seemed more concerned about the recording than about the child who was emotionally upset. He said that the mother became louder when she saw neighbours walk by.

[116] The police eventually moved the mother away from the car and drove off with the child.

[117] Officer Liu testified that the mother had told him that the child did not know the father anymore. He said he was surprised how the child reacted to the father when she first saw him. He said that she lit up and said “Dad”. She went up to him and hugged him. There was no problem with the transition once she saw the father.

[118] Officer Liu testified that the father was very patient and cooperative with the transfer and followed police recommendations. He said, “he was fantastic with us”.

[119] The mother testified that she had advised Officer Liu that she was under self-isolation due to COVID-19 symptoms. Officer Liu adamantly denied this and testified he would have consulted with his supervisor if this had been the case in order to protect everyone involved. The mother claimed that a video she took proved that she had told him this. It did not.

[120] The business records of the society indicate that the mother and her counsel called the society on October 30, 2020, after the child was taken by the London police. Counsel reported to the society that the father had previously physically abused the child and that the father had been physically violent in the past to the mother.

[121] At trial, the mother testified that she believed that the father had physically abused the child, as reported by her counsel that day to the society. She adopted the complaint made by her counsel. [16]

[122] This was a malicious report by the mother. There was absolutely no evidence that the father had ever physically abused the child. In cross-examination, the mother eventually admitted she had no direct evidence of this – she only suspected it.

[123] It is important to note that the father had been denied parenting time with the child, by the mother, since February 2019, except from mid-November 2019 to mid-March 2020, when he had limited parenting time. The mother did not allege that the child had physically abused the child in her Answer/Claim. She did not report this to the police or to a Children’s Aid Society until the day the child was removed from her care. It clearly was a desperate attempt to weaponize the society to have the child returned to her care and to obstruct the implementation of the order of Justice Zisman dated October 7, 2020.

[124] And still, on October 30, 2020, and after the child was placed in the father’s care, the mother brought an urgent motion before the Ontario Court of Appeal for a stay of the October 20, 2020 order of Justice Nakonechny and the October 7, 2020 order of Justice Zisman. This motion was dismissed for lack of jurisdiction.

[125] The court agrees with the closing submission of the mother’s counsel that the court should be understanding about the mother’s conduct on October 30, as it was the worst day of her life. The court does not put too much weight on her actions that day with the police – it was painful for her to see her child removed. However, it is less understanding about her malicious complaint to the society and about her subsequent conduct.

[126] The court is actually more concerned about the mother’s inability, even at trial, to acknowledge that there were any problems that day with her conduct.

[127] On October 31, 2020, the mother came to the father’s apartment building in Mississauga demanding to see the child. The father would not answer the door. The mother called the police. The police attended and eventually the mother was asked to leave.

[128] When asked why she attended at the father’s apartment in violation of the self-isolation direction by her doctor, the mother said that her desire to see her child took priority.

[129] What became clear from this evidence is that the mother would rely on her alleged COVID-19 symptoms when it suited her purposes – to excuse her from coming to court or producing the child and to justify her resistance to the child’s removal from her on October 30, 2020. When the alleged symptoms did not advance her agenda, they were either ignored or minimized, such as when she took the child to the dentist on October 26 and when she attended at the father’s residence on October 31.

6.6 – November 1, 2020 to trial

[130] The mother did not advise the father of any of the child’s health issues when she came into his care. She did not let him know about the specialist’s findings. She did not give him the child’s breathing mask or Ventolin. The father had to learn about this on his own.

[131] On November 1, 2020, the mother took a COVID-19 test. It was negative. The mother was questioned about why in paragraph 231 of her trial affidavit she claimed to have taken the test on October 31 and to have received a verbal negative result (this evidence appeared to be for the purpose of justifying her attendance at the father’s residence on October 31). The mother claimed that the laboratory records were in error.

[132] They were not in error.

[133] On November 9, 2020, the mother finally served the father with her affidavit for the motion returnable on November 12, 2020. It was sworn on October 8, 2020. [17] The mother testified that it was sworn on that day – she was sure. However, there were numerous exhibits attached to her affidavit that were dated much later in October. The mother could not explain how this happened.

[134] In this October 8, 2020 affidavit, the mother deposed that the child had seen the dentist. She attached a photo of the child in the dentist’s chair. However, the photo was dated October 26, 2020 and the dentist’s medical records also confirmed that the child had been seen on October 26, 2020.

[135] The mother either did not swear her affidavit on October 8, 2020, or documents had been added to her affidavit after she had sworn it.

[136] The mother also deposed in this affidavit that the child had seen a Dr. Ardlean and really liked her. However, the father produced evidence that Dr. Ardlean had never seen the child, although an appointment had been booked for December 16, 2020.

[137] At trial, the mother claimed that this had been a mistake in her affidavit – that she was referring to another doctor that the child had seen in Mississauga. However, since this explanation came after an adverse credibility finding had been made against her by Justice Zisman on that motion, her explanation carries little weight.

[138] During this time, the mother was attempting to arrange parenting time with the child. She tried to do this directly with the father who asked that the parenting time be arranged through counsel.

[139] On November 10, 2020, the mother served the father with a notice of contempt motion returnable in the Superior Court on November 12, 2020 (the same day as the father’s motion was returnable in this court). The mother’s motion was adjourned.

[140] The father’s motion, that had been on adjournment since September 29, 2020, did not proceed on November 12, 2020 because the mother asked Justice Zisman to recuse herself. The submissions on this issue did not finish on November 12 and the matter was adjourned.

[141] The society worker testified that she met the father and the child in his home on November 12, 2020. She testified that the child appeared well-cared for. She looked to the father for comfort, sat on his lap and hugged his neck. She said that the child appeared to be scared of her and did not engage with her. The worker testified that she had no concerns with the father’s ability to hold the child [18] or to manage her. She testified that the child appeared to be transitioning well with the father.

[142] The worked testified that she told the mother that the child was doing well with the father. The worker was concerned that the child was at risk of emotional harm due to parental conflict. She closed the society file in December 2020 as she had no further child protection concerns.

[143] On November 16, 2020, the father was served with an amended notice of contempt motion, returnable in the Superior Court.

[144] On November 17, 2020, Justice Nakonechny organized the hearing of the mother’s contempt motion. She specified that the mother’s parenting time would take place from noon to 5 p.m. and ordered that the mother deliver the child’s passport to the father at the start of every visit. She also made a police enforcement order. This order was made without prejudice to the mother.

[145] On November 26, 2020, Justice David Corbett of the Divisional Court dismissed the mother’s appeal of Justice Nakonechny’s October 20, 2020 order as frivolous, vexatious and an abuse of process. That court’s challenges in dealing with the mother are set out in that decision. See: Afoakwa-Yeboah v. Wiafe, 2020 ONSC 7382.

[146] The mother’s contempt motion was argued before Justice Sandra Nishikawa on December 3, 2020. The decision was reserved.

[147] On December 8, 2020, the recusal motion before Justice Zisman was completed. The decision was reserved.

[148] Justice Nishikawa released her decision regarding the mother’s contempt motion on December 10, 2020. See: Afoakwa-Yeboah v. Wiafe, 2020 ONSC 7649. Justice Nishikawa dismissed the mother’s motion and criticized her for resorting to the contempt remedy as her first step. She also criticized the father for trying to impose additional terms on Justice Nakonechny’s October 20, 2020 order (such as a requirement that the mother’s parenting time be supervised) and for failing to set out specific dates and times when the mother could exercise her parenting time. She ordered two days of make-up parenting time for the mother between December 21, 2020 and January 3, 2021. [19]

[149] Justice Nishikawa ordered the mother to pay the father costs of the motion of $3,360.81. The mother has not paid any of these costs.

[150] The mother did not attend for parenting time after Justice Nishikawa released her decision for almost eight weeks. She often cancelled the visits with little notice to the father. She did not exercise the make-up parenting time ordered.

[151] The mother’s explanations for not seeing the child during this period did not make much sense. She claimed that both she and her baby had been sick. She produced no medical evidence to support this. Despite not seeing the child for several weeks, she sought, through her counsel, overnight parenting time at the end of December 2020.

[152] On December 15, 2020, Justice Zisman dismissed the mother’s recusal motion. See: Wiafe v. Afoakwa-Yeboah, 2020 ONCJ 591. The mother has appealed this decision.

[153] The father’s motion was finally argued on December 29 and 30, 2020, and on January 5, 2021. Justice Zisman reserved her decision.

[154] On January 20, 2021, the Registrar of the Ontario Court of Appeal dismissed the mother’s appeal to set aside Justice Nakonechny’s order and to stay Justice Zisman’s October 7, 2020 order, due to delay, and ordered costs against the mother in the amount of $750. The mother has not paid anything towards these costs.

[155] The father then brought a motion for the release of the London and Peel police records. This motion was heard by Justice Sager on January 29, 2021. The police records were ordered to be produced.

[156] On February 2, 2021, Justice Zisman released her written reasons for decision on the temporary motions. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68. She ordered that the child be placed in the temporary care of the father. She ordered that the child be returned to the GTA, but stayed that decision until trial. She ordered that the father make all medical decisions for the child. The mother’s parenting time with the child was increased to alternate weekends, with exchanges to take place at a Peel police station. She also made a number of communication orders and a police enforcement order.

[157] Justice Zisman arranged an expedited trial of this case so there could be a full testing of the evidence.

[158] The mother has appealed this decision. As of the time of trial, there were at least three appeals that had not yet been heard.

[159] In February 2021, the father learned through the release of the child’s OHIP records that the child had seen a doctor on October 10, 2021. He had not been informed by the mother about that visit. He asked the doctor’s office for copies of their records. The doctor’s receptionist testified that she called the mother who instructed her not to release any records to the father. The mother did this despite the fact that the father had temporary decision-making responsibility for the child’s medical issues.

[160] On February 26, 2021, Justice Zisman made orders for third party disclosure. Costs of this step were reserved to the trial judge.

[161] At trial, the mother confirmed that she is still collecting the Canada Child Benefit for the child. She has not advised the Canada Revenue Agency that the child has been out of her care since October 30, 2020. These are significant amounts of money that should be paid to the father.

[162] It was also apparent in cross-examination that the mother is still collecting social assistance for the child. She said that she is receiving the same amount for the child that she received prior to October 30, 2020. She has not advised the government that the child is no longer in her care.

[163] This only reinforces the plethora of evidence about the mother’s dishonesty.

[164] The father learned about the specialist’s assessment of the child when he obtained the child’s medical records. He booked an appointment with Dr. Andrews, a pediatric dentist and advised the mother about this. The father deposed that Dr. Andrews filled holes and decay in the child’s teeth and that her halitosis has stopped.

[165] The mother conceded that the father has given his consent for her to speak freely with the child’s doctors at the multi-specialty clinic she is being followed by, and to Dr. Andrews.

Part Seven – The mother’s complaints

[166] The mother believes that she has been dealt with unfairly by the courts, the police and the society.

[167] The mother was asked who she had made judicial complaints about. She was unsure but said “there are a lot”. She confirmed that she has made judicial complaints against, at least, Justices Sager, Zisman and Corbett.

[168] The mother claims that these judges and Justice Nakonechny were biased and that Justice Zisman was also racist. She could not remember the other judges involved in the case.

[169] The mother also testified that she has made complaints against the London police force and is suing them. She instructed her lawyer to complain to the media about them. She alleged that the London police force was racist in their dealings with her on October 30, 2020. This allegation particularly offended Officer Liu when this was put to him by the mother’s counsel at trial. He testified that he has often been the victim of racism. It was also very clear to the court how respectful he had been to the mother on October 30, 2020.

[170] The mother complained about the work done by the society.

[171] The mother complained about the work of her former counsel.

[172] The mother is entitled to her beliefs. However, in this case, she produced no evidence that objectively supported them.

[173] A concerning pattern emerged in this case. The mother decided to blame everyone other than herself for the child’s removal from her care. Instead of reflecting on what she might have done differently to prevent this, she has decided to attack everyone else. The mother has done this, even when concerns about this approach were articulated in Justice Zisman’s decision of February 2, 2021. Instead of changing her approach, the mother chose to double down on her allegations.

[174] When so many other people are proposed as being the problem, the court is likely to draw the conclusion that you are the problem.

[175] The extreme tone and aggressive language in the mother’s affidavits and her approach to this case raised concerns about her perceptions, judgment and her ability to accept outcomes.

[176] It is unfortunate that the mother took this misguided approach. Despite her overstay in Ghana and return to Edmonton instead of to the GTA, the mother might have been successful if she had properly brought a motion to move with the child to London. She had viable reasons to make this request. Instead, she embarked on a course of conduct that calls into serious question her judgment and her ability to process information accurately – qualities that are very important for parenting. Further, her conduct calls into question her ability to properly put her child’s interests ahead of her own, to consider the child’s emotional welfare, her ability to effectively problem-solve, her ability to self-regulate her behaviour and her ability to deal with conflict. It also calls into question her integrity. These are all qualities essential to someone being a good parent.

Part Eight – Applicability of the amendments to the Children’s Law Reform Act

[177] On March 1, 2021, amendments (the amendments) [20] to the Act, contained in the Moving Ontario Family Law Forward Act, 2020, came into force.

[178] Language in the Act is modernized with these changes. Terminology related to child custody and access is replaced with terminology related to parenting.

[179] Custody now becomes decision-making responsibility. Decision-making responsibility is defined as responsibility for making significant decisions about a child’s well-being, including with respect to,

a) health,

b) education,

c) culture, language, religion and spirituality, and

d) significant extra-curricular activities.

[180] Access by a parent to a child now becomes parenting time. Parenting time is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.

[181] And access by a non-parent to a child becomes contact. This is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time. [21]

[182] The amendments set out who can apply for two different kinds of orders – parenting orders and contact orders. It establishes a list of non-exhaustive criteria with respect to determining the best interests of a child. It introduces provisions to assist the courts in addressing family violence. And it establishes a framework for determining when one parent will be permitted to relocate with a child and the amount of notice that must be provided to another parent.

[183] The amendments are aligned, for the most part, with the changes made to the Divorce Act (Canada) that also came into force on March 1, 2021.

[184] Since this case began before March 1, 2021 and was heard after March 1, 2021, the court asked for submissions about whether it should apply the amendments to the Act or the law that was in force prior to March 1, 2021.

[185] The parties agreed that the court should apply the law set out in the amendments. This is the approach that the court recently took in L.B. v. P.E., 2021 ONCJ 114. See: Paragraphs 43 and 44 of that decision for the court’s reasons for taking this approach.

[186] Other courts have adopted the same approach since March 1, 2021. See: Pereira v. Ramos, 2021 ONSC 1736; Brown v. Brown, 2021 ONSC 1753.

[187] The court will apply the law set out in the amendments in this case. The result would not have been any different if it had applied the law that was in place prior to March 1, 2021.

[188] The court will not have to address whether the amendments apply to the relocation issue as the court will be ordering that the child have her primary residence with the father in Mississauga, Ontario. The location of the mother’s residence was immaterial to this determination.

Part Nine – Statutory pathway

[189] Subsection 18 (1) of the Act defines decision-making responsibility as follows:

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities;

[190] Section 20 of the Act reads as follows:

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

Marriage of child

(6) The entitlement to decision-making responsibility or parenting time with respect to a child terminates on the marriage of the child.

Entitlement subject to agreement or order

(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.

[191] Section 24 of the Act addresses the best interests of the child. It reads as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

[192] Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are (1), (4), (5), (6), (7) and (8). They read as follows:

Parenting Orders and Contact Orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

[193] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

Part Ten – Analysis of the best interests factors

10.1 – Initial comments

[194] Many of the best interests factors set out in section 24 of the Act favour the mother. She has been the child’s primary caregiver for most of her life. The court is willing to accept that the child has her closest bond with her.

[195] However, the best interests factors that favour placing the child with the father are so critical to this child’s welfare, that they inform the court that it is in the child’s best interests that the child have her primary residence with the father and that the father have sole decision-making responsibility, with the exception of decisions about the child’s culture, language, religion and spirituality. [22]

10.2 – The child’s physical, emotional and psychological safety, security and well-being

[196] The Act now provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining her best interests.

[197] The court finds that the father can positively meet the child’s need for physical, emotional and psychological safety, as well as her security and well-being.

[198] The court has concerns about the mother’s ability to meet the child’s emotional needs and psychological safety. The evidence has shown that she has been unable to separate her own needs from the child’s needs. Examples of this are as follows:

a) Overstaying in Ghana for several months and undermining the child’s relationship with the father.

b) Returning to Edmonton instead of to the GTA. The mother seemed to give little consideration as to how this might adversely affect the child’s emotional need to have a relationship with the father.

c) Breaching court orders not to move the child from the GTA and to exchange the child at the Woodbine Mall, again undermining the child’s opportunity to have a relationship with the father.

d) Her conduct at the end of the transfer of the child on October 30, 2020. She was unable to regulate her conduct for the benefit of the child.

e) Maliciously reporting child abuse to the society on October 30, 2020, when the child was removed from her care, and unnecessarily subjecting the child to society involvement.

f) Choosing not to see the child from December 10, 2020 until February 5, 2021. The mother lacked any insight into the emotional harm this could cause the child – particularly when the child was often prepared for these visits and disappointed when the mother did not come.

g) Frequently video-taping the child for court purposes when the child is distressed, instead of trying to comfort her.

h) The court is also concerned that the mother is transferring her anxieties to the child, making transitions much more difficult for her. J.A. testified how they (he, the mother and the child) all are crying when the child has to end the visits. This destabilizes the child’s security and well-being and is not child-focused.

10.3 – The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[199] Both parents demonstrated a strong understanding of the child’s academic and social needs. They both showed a good understanding of her level of development.

[200] Both parents set out in detail what the child’s day looks like with them. It was evident that they are both loving parents who adore the child and that they are both very involved in the child’s daily activities.

[201] The father has a stable home. The mother went through a period of instability. She went from Toronto to Ghana, to Edmonton, to a shelter in Toronto and to London. The mother has now been stable in London for 9 months.

[202] The child had the psychological stability of being with the mother every day until October 30, 2020. She has had that stability with the father since then.

10.4 – The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life

[203] The child has had her closest connection with the mother.

[204] The child also has a close and loving relationship with the father. It was informative that the child lit up and went to hug her father and be comforted by him when she saw him on October 30, 2020. She had not seen him for a long time. The society worker described how the child looked to the father for comfort when she saw them on November 12, 2020. This suggests that the child’s relationship with the father had been far more substantial than the mother had described.

[205] The child also has a close relationship with her half-siblings and positive relationships with J.A. and her maternal grandmother.

10.5 – Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[206] Except for a brief period after Justice Nakonechny’s October 20, 2020 order, when the father unreasonably imposed terms on the mother ‘s parenting time, he has fully supported the child’s relationship with the mother. He has complied with court orders.

[207] The father also has a track record of supporting the relationship of his other two children with L.T. Despite their differences, the father and L.T. have successfully co-parented those children.

[208] A major question that the court has to answer in this case is whether the mother will facilitate the child’s relationship with the father if the child is placed with her.

[209] If the question had been answered in the affirmative, the result might have been different.

[210] The evidence demonstrates that the mother has placed little value on the father’s relationship with the child. She undermined his relationship with the child and unreasonably deprived them of time together.

[211] The mother’s trial affidavit did not help her cause. She claimed that the father was a stranger to the child. This was not the case. She deposed that the child views J.A. as her father, that J.A. is the only father figure in her life and the father she has never had. This is despite J.A. only having had direct contact with the child, when she was much younger, for five months in Ghana in 2019.

[212] However, the mother still had the opportunity in her examination at trial to demonstrate to the court that she had developed some insight into how her conduct was harmful to the child and that she would now facilitate the child’s relationship with the father.

[213] The mother said some of the right things in direct examination. She said that she would facilitate this relationship. She offered to exchange the child closer to the father’s home. She offered parenting time for him on alternate weekends.

[214] However, on cross-examination, the mother demonstrated no insight into how she had marginalized the father or how her conduct could harm the child. Instead, she chose to lay blame on everyone else. She continued to demonize the father.

[215] What was telling was the mother’s depiction of the father. She adopted a letter, dated November 13, 2020, that her counsel had sent to the father’s counsel. This letter included the following statements: [23]

a) Your client is an abusive, predatory, deadbeat father.

b) Mr. Wiafe should be in jail for his abusive behaviour.

c) Your client, being the heartless, vile individual that he is, then started to scream at the child and the child started crying.

d) Your client’s actions will not go unpunished. Justice will be done – even if takes some time. [24]

[216] The mother has unfairly marginalized the father. She maintains her dismissive opinion about his role in the child’s life. The court is left with no confidence that the mother would facilitate the child’s relationship with him if she was placed in her primary care. It is highly likely that the mother would quickly look for any excuse to stop the father’s parenting time.

10.6 – The history of care of the child

[217] This is the strongest factor in support of the mother. She was the child’s primary and dominant caregiver until October 30, 2020.

[218] The mother argued that the child’s status quo should only be changed if the child is in danger. That is not the law. The status quo is an important best interests factor but it isn’t the only factor. The court is required under the law to conduct a holistic analysis of all factors affecting the child’s best interests.

10.7 – The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[219] The child is too young to articulate her views and wishes. However, the court draws the logical inference that the child would likely want to live with the parent with whom she has the closest connection – the mother.

[220] Based on the independent evidence, the child appears to be comfortable in the care of both parents.

[221] The evidence informs the court that the child is struggling with the transitions and the high conflict between her parents. The court is confident that if she could articulate her views and wishes she would ask her parents to be much kinder to one another.

10.8 – The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[222] Both parties expressed how important they viewed the child’s Ghanaian heritage. Both are very supportive of promoting it. Both are religious and support the child’s religious and spiritual upbringing. This was a positive quality for both parents.

10.9 – Any plans for the child

[223] Both parents provided detailed and appropriate plans for the child. Both have appropriate housing for the child. They are attuned to the importance of education for the child and actively promote her learning. They both will involve the child in extra-curricular activities. Both plan to have the child attend day care to develop her socialization. Both parents have friends who will provide parenting support.

[224] The mother plans to sponsor her husband to come to Canada. However, it appears that this process is in its infancy. If he is able to come to Canada, that would be helpful for the mother. However, the court does not consider it a negative factor for the mother, in this analysis, if J.A. is unable to come to Canada.

10.10 – The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

[225] The father has demonstrated that he can meet the child’s physical and emotional needs.

[226] The father has arranged for a pediatric dentist for the child. He has her being followed for some medical issues at a multi-disciplinary medical clinic. He follows medical direction.

[227] The mother alleged that the father has arranged these appointments for the purpose of finding evidence against her. There is no evidence to support this allegation.

[228] The father has shown significant commitment to the child in the face of considerable obstruction by the mother. Many less committed parents would have walked away in the face of this resistance.

[229] The court has some concerns about the mother’s ability to meet the child’s physical needs. She delayed in taking the child to the dentist after seeing the specialist in April 2020. She made a self-assessment that she did not have to follow through on the specialist’s recommendations. The mother also showed alarming judgment around the COVID-19 issues in October 2020, potentially exposing multiple people to the virus (assuming she hadn’t made up the symptoms to avoid coming to court and transferring the child to the father).

[230] The court also has significant concerns about the mother’s ability to meet the emotional needs of the child as set out in paragraph 198 above.

10.11 – The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child

[231] The father has shown a strong ability to communicate with the mother about the child’s medical needs since the child came into his care. He advises her of all appointments and the outcomes.

[232] The father has also been able to co-parent successfully with L.T.

[233] The mother has excluded the father from the child’s medical care since February 2019. She has not advised him about medical appointments or the outcomes of appointments.

[234] The mother failed to advise the father that the child saw the specialist in April 2020. She did not advise him of the specialist’s diagnosis and recommendations. She also did not provide the father with the child’s breathing mask and Ventolin (or tell him about this) when the child came into his care. He had to discover and address these health concerns on his own. This was irresponsible conduct by the mother and could have harmed the child.

[235] The court is not confident that the mother would communicate and cooperate with the father on matters affecting the child.

10.12 – Family violence

[236] The mother alleges that the father was emotionally and financially abusive to her. She alleged that the emotional violence took place in front of the child. She described him as controlling and coercive. She said that he would use his legal education to intimidate her.

[237] Family violence has been defined and given heightened importance as a best interests factor in the recent amendments to the Act. It is an issue that this court takes very seriously when assessing a child’s best interests. In I.A. v. M.Z., 2016 ONCJ 615, this court wrote that a starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe.

[238] The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim.

[239] Taking all of this into consideration, the court finds that the mother has been unable to establish that there has been family violence. The mother’s credibility is so bad that it undermined her evidence on this issue.

[240] The mother’s evidence on this issue was negatively affected by the malicious allegation she made to the society on the day the child was removed from her care that the father physically abused the child.

[241] It also undermined the mother’s credibility that her allegations about family violence escalated throughout the case – when the first allegations did not have the desired effect, she chose to up the ante.

[242] Amidst the voluminous documentation provided in this case, the best evidence the mother could provide of demeaning language to her by the father was when he asked her several times in a February 2019 text exchange to put her thinking cap on, when she was asking for his consent to travel with the child to Ghana. If there had been any other evidence of abusive exchanges, the mother would surely have provided it.

[243] The court does not accept the mother’s evidence that the father financially abused her. The court accepts the father’s evidence that he regularly paid for groceries for the mother and the child. He gave her cash when he could. In 2017, it appears that he gave her money for a deposit for a new apartment. This is while the father was not earning much income.

[244] As noted earlier in this decision, the father does not listen well. He tends to lecture sanctimoniously. This might make him over-bearing to deal with at times, but it is not family violence and it would be a real disservice to the many victims of family violence to characterize it as such.

10.13 – Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child

[245] There are no criminal proceedings. However, the constant family litigation is not healthy for the child. Her difficulty at transitions is an indication that she is attuned to the conflict between the parents.

10.14 – Protection of the child from conflict

[246] The mother does not hesitate to video-tape the child when the child is distressed to advance her case. The court strongly suspects that she agitates the child for this purpose.

[247] The mother was not hesitant to involve the child in a child protection investigation when she was unhappy that the child was transferred to the father.

[248] The mother demonizes the father – wrongfully. She lacks self-regulation, good judgment and the ability to self-reflect. There remains a real concern that she will denigrate the father to the child and continue to undermine their relationship.

[249] The mother showed no insight at trial into the impact of her conduct on the child. She gave the court no reason to believe that she will change her behaviour.

[250] The father is the parent better able to protect the child from conflict.

10.15 – Past conduct

[251] The mother tried to argue that L.T.’s difficulties with the father are relevant to the father’s exercise of decision-making responsibility and parenting time with respect to the child.

[252] The court did not find this evidence to be very helpful. L.T. consented to orders for joint decision-making responsibility and equal parenting time. She has not gone back to court to change these orders.

10.16 – Ability to follow court orders

[253] The list of best interests factors in section 24 of the Act are not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736.

[254] In this case, the ability of the parents to follow a court order is an important best interests consideration.

[255] With the exception of the brief period when he attempted to impose terms on Justice Nakonechny’s October 20, 2020 order, the father has complied with court orders.

[256] The mother has breached multiple court orders. She removed the child from the GTA without the father’s consent. She failed to exchange the child at the Woodbine Mall after she moved to London, contrary to a court order. She did not provide her address, as required, until February 4, 2021. [25] The case history shows that she constantly missed deadlines set by the court for the service of materials. She failed to comply with production orders. She breached multiple terms of the trial management order of Justice Zisman. She hasn’t complied with the two costs orders.

[257] The mother had the opportunity to change course after receiving the February 2, 2021 decision of Justice Zisman. She should have seen that her approach to this case was not working. Instead, she continued her aggressive and defiant approach. She has been unable to accept outcomes or to reflect on the important messages that judges have been giving to her about the impact of her conduct on the child.

[258] A child’s best interests will be compromised if a parent does not follow court orders that are made to ensure their safety and protection. At this point, the mother is barely governable.

10.17 – Finding

[259] Taking into consideration these best interests factors, the court finds that it is in the child’s best interests that she have her primary residence with the father. It also finds that, with the exception of decisions about the child’s culture, language, religion and spirituality, it is in the child’s best interests that the father have sole decision-making responsibility for her. The court trusts him much more than the mother to meet all the child’s needs, facilitate her relationship with both parents and protect her from conflict.

[260] Both parties will be permitted to make decisions about the child’s cultural, language, religion and spiritual training, as they see fit, when the child is in their care. However, to be clear, the father will decide what school the child attends.

[261] Having made these findings, the court does not need to consider the mother’s relocation request. The mother living in London had no impact on the court’s decisions regarding primary residence and decision-making responsibility. The same decisions would have been made if the mother had been living in the GTA.

[262] The court order will require the mother to deliver the child’s documentation to the father, including any passport she has, within 7 days of this order. The mother’s parenting time will be suspended until she has delivered the child’s passports to him.

[263] The father will be permitted to obtain or renew all government documentation for the child without the mother’s consent, as the court does not believe that the mother will reasonably execute any consents for the father to do this.

[264] Similarly, the father will be permitted to travel outside of Canada with the child, for vacation purposes, without the mother’s consent. The father will be required to provide the mother with full itineraries for any trip and provide her with contact information.

[265] The mother will not be permitted to travel with the child at this time. Simply put, there is some risk that she will try to remove the child from the jurisdiction.

[266] The court will order terms to ensure that the mother is not excluded from the child’s life. The father will be required to seek her input on all significant decisions regarding the child. The mother will also be entitled to obtain information directly from the child’s doctors, teachers and other service providers.

Part Eleven – Parenting time

11.1 – Legal considerations

[267] The test for determining parenting time is what order is in the best interests of the child. In making this determination, the court has considered the “best interests” factors set out in section 24 of the Act, as well as all other relevant considerations.

[268] Subsection 24 (6) of the Act provides that in allocating parenting time, the court should give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[269] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[270] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[271] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, supra.

11.2 – Positions of the parties

[272] The father offered three parenting time alternatives for the mother. The first was supervised parenting time by a professional parenting time supervisor at the mother’s expense. The second was Saturdays from 10 a.m. to 5 p.m. and the third alternative was alternate weekends from Friday at 10 a.m. until Sundays at 5 p.m., changing to Fridays at 5 p.m. when the child starts school in September 2021.

[273] In options two and three, the father sought supervised exchanges by a professional parenting time supervisor, to be paid for by the mother.

[274] The father also proposed additional holiday parenting time.

[275] The mother did not make any proposals for her parenting time. The court will work under the assumption that she wants as much parenting time with the child as the court will permit.

11.3 – Analysis

[276] The court finds that given the child’s history and her close connection to the mother, it is in the child’s best interests that the mother have more parenting time with the child than she is presently exercising.

[277] The court will increase the mother’s parenting time to two out of every three weekends. It will also order that she have extensive holiday parenting time with the child. Her summer parenting time will be increased in 2022. Due to the distance between the parties, the court will not order mid-week parenting time, as it does not want the child’s school week to be disturbed by excessive travel. Virtual parenting time will also be ordered.

[278] At this time, the court does not find that it is in the child’s best interests to supervise the mother’s parenting time. That would adversely affect the amount and quality of the child’s parenting time with her. However, the court makes this finding with some reservation. The court is concerned about the mother’s ability to separate her own emotional needs from those of the child. If she undermines the security of the child’s relationship with the father or she exposes the child to conflict, a future court may have to revisit this issue.

[279] The court is also very concerned about the mother manipulating the child and placing her in the middle of conflict at the exchanges in order to advance her case. The mother continues to video-tape the child on exchanges when the child is distressed. This was most recently done on March 7, 2021. The father then began video-taping the exchange to protect himself. Meanwhile, the child was extremely upset.

[280] The court also does not want to place the father in a situation where he is exposed to false allegations by the mother. The mother has not been hesitant to make false allegations or to misrepresent facts to third parties to advance her agenda. The father is very vulnerable at these exchanges.

[281] The court finds that it is in the child’s best interests to order that a professional parenting time supervisor supervise the parenting exchanges for one year. This will ensure that the parents have no direct contact with each other. If required, there will be neutral reports of the exchanges. Hopefully, this will de-escalate the charged transitions for the child.

[282] The court will change the exchange location away from the police station. This location sends the wrong message to the child that the situation is dangerous. Given the child’s extreme emotionality at the March 7, 2021 visit, this location is not working for her. The location will be changed to a plaza (chosen by the father) close to the present exchange location, or to a location in Mississauga otherwise chosen by the professional parenting time supervisor. Until such time as the professional parenting time supervisor can start its supervision, the exchanges shall continue at the current location – the Peel police station.

[283] The court will also make a police enforcement order pursuant to section 36 of the Act. It will remain in force for one year. [26]

[284] The mother must also ensure that any person driving the child while she is exercising her parenting time must have a valid Ontario driver’s licence and insurance. This term is being included because, after some evasion in her cross-examination, the mother conceded that she did not have a valid licence or insurance. She says that friends are driving on parenting exchanges.

Part Twelve – Other parenting orders

[285] The court finds that it is in the child’s best interests to make communication and conduct orders pursuant to section 28 of the Act to protect the child from conflict.

[286] The court will order that, unless there is an emergency regarding the child, the parents shall communicate in writing, either through email, WhatsApp or the My Family Wizard software program. There will be other terms ordered that will require respectful and timely communication about the child’s welfare.

[287] There will be an order that neither party demean nor criticize the other in the presence of the child. The parties are expected to support the other’s relationship with the child.

[288] There will be an order that neither party video-tape or audio-tape the parenting exchanges or video-tape or audio-tape the child for court purposes. This needs to stop.

[289] The father asked the court to retain jurisdiction over this case for one year. The court will not make that order. The parties and the child do not live in Toronto.

[290] However, it is appropriate in the circumstances of this case to make an order requiring the mother to first seek leave of the court before she can bring any further proceeding about the child in the Ontario Court of Justice. Otherwise, the mother could start new litigation as soon as she receives this decision. This would not be in the child’s best interests. This court, even though it is a statutory court, has the ability to control its own process to ensure that resources are not unnecessarily devoted to this case and thereby taken away from those of others. See: Tiveron v. Collins, 2017 ONCA 462; G.S.W. v. C.S., 2018 ONCJ 286; M.B. v. A.F., 2020 ONCJ 498.

[291] The mother has litigated this case recklessly. She is entitled to appeal decisions. However, she has brought multiple proceedings in the wrong courts. She had an appeal dismissed in the Divisional Court as being frivolous, vexatious and an abuse of process. She has not paid two costs orders and appears to have no intention to do so. She breaches orders. Some controls need to be put in place to ensure respect for the administration of justice.

Part Thirteen – Child support

[292] The parties spent very little time on the child support issues at trial. The mother did not even make any submissions about them in a lengthy closing argument. She led no evidence about the four factors that courts address in retroactive support applications as set out in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [27] as recently modified in Michel v. Graydon, 2020 SCC 24.

[293] The court makes the following findings on the child support issues:

a) The court accepts the father’s evidence that the parties had a much better relationship between 2016 and February 2019 than described by the mother. There was some intertwining of their financial affairs. The father spent many days at the mother’s home. He regularly bought groceries and gave cash to the mother. The parties financially assisted each other. The father gave the mother the deposit for a new apartment in 2017. The mother said that, at times, she helped the father with his rent. Communication between the parties was usually friendly.

b) The parties both had limited financial means after the child was born. The mother was on public assistance during this time. The father received CPP disability payments for his hand issues. He was developing his paralegal business. He also had child-care responsibilities for his other two children. The father’s annual income has been as follows:

2017: $5,843

2018: $6,335

2019: $6,891

c) The mother did not produce any evidence that she ever sought more support from the father.

d) Any retroactive support order in this case would be modest.

e) The father began receiving more money when the pandemic started, as he received the federal government’s CERB payments (at the rate of $26,000 per year) and is now receiving the comparable Canada Recovery Benefit.

f) The father should have been paying a modest amount of prospective child support from at least October 2019 [28] until mid-March 2020 and support based on the CERB income (about $210 each month) from April 2020 until the end of October 2020.

g) The mother is on social assistance. It is understandable why she has remained at home to care for N.

h) The mother has been improperly collecting the Canada Child Benefit for the child since November 1, 2020. This should be going to the father. The mother has been unfairly advantaged by doing this.

i) The mother has two costs orders that she has not paid to the father. The court is skeptical that the mother will voluntarily pay these costs.

[294] The court recognizes that the parents have a limited ability to pay for the professional parenting supervisor. However, the court finds that paying for this service is in the child’s best interests at this time and should be a financial priority for them.

[295] The objective of the Child Support Guidelines is to fairly allocate the responsibility for the financial support of the child between the parents to ensure that the child benefits from the financial means of her parents. [29]

[296] The court will allocate these financial responsibilities between the parents by making orders as follows:

a) The father owes no support to the mother.

b) The mother owes no support to the father.

c) The mother shall not be required to pay any support to the father at this time.

d) The father shall pay 75% of the costs of the professional parenting supervisor during 2021 – the mother shall pay 25% of these costs.

e) Starting on January 1, 2022, the parties shall each pay 50% of the costs of the professional parenting supervisor until their services expire in April 2022.

f) If the mother fails to pay her share of the costs of the professional parenting time supervisor, the father may seek a review of the term that the mother is not required to pay ongoing child support at this time.

Part Fourteen – Conclusion

[297] A final parenting order shall go as follows:

a) The child shall have her primary residence with the father.

b) Both parties may make decisions about the child’s cultural, language, religion and spiritual training, as they see fit, when the child is in their care. The father will choose the school that the child attends.

c) The father shall otherwise have sole decision-making responsibility for the child.

d) The father shall inform the mother of any contemplated significant decision regarding the child in writing. Within 7 days after receiving this information, the mother may provide the father with a written response containing her view. If the parties do not agree, or if the mother does not respond within 7 days, the father shall make the final decision and advise the mother about it.

e) The father shall advise the mother in writing of all appointments with any doctors, teachers or other service providers for the child. He shall keep her updated with their names and contact information.

f) Unless there is a medical emergency while the child is in the mother’s care, only the father shall take the child to medical appointments. Specifically, the mother shall not take the child to a doctor for a second opinion.

g) The parties shall immediately notify each other by phone, text and email if the child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment and the name of any doctor treating the child.

h) The mother may obtain information directly from the child’s teachers, doctors, or other service providers. The father shall execute any authorizations or consents to permit the mother to do this.

i) The mother is to deliver the child’s government documentation to the father within seven days. This includes passports, renewals of passports, birth certificate and health card.

j) Only the father may obtain or renew government documentation for the child, including passports and renewals of passports. He may obtain this documentation without the mother’s consent.

k) The mother will not have parenting time until she delivers the child’s passports to the father.

l) The mother shall have parenting time with the child on the following terms and conditions:

i) Starting on Friday, April 9, 2021, two out of every three weekends, from Friday at 10:00 a.m. until Sunday at 6 p.m. The mother will have parenting time with the child for two consecutive weekends, followed by the child spending one weekend with the father.

ii) Once the child starts school in September 2021, the mother’s weekend parenting time shall start on Fridays at 5 p.m.

iii) Virtual parenting time with the child every Wednesday from 7 p.m. until 7:30 p.m.

(iv) Starting in 2021, the child shall spend equal time with the parents during the winter school break. The child shall spend the first half of the winter school break with the mother and the second half with the father in odd-numbered years. The child shall spend the first half of the winter school break with the father and the second half with the mother during even-numbered years. This is subject to the division of Christmas Eve and Christmas Day set out below.

(v) Starting in 2021, the parties shall alternate Christmas Day and Christmas Eve each year. In even-numbered years, the child shall be with the father from December 24 at 1 p.m. until December 25 at noon and with the mother from noon on December 25 until 1 p.m. on December 26. In odd-numbered years, the child shall be with the mother from December 24 at 1 p.m. until December 25 at noon and with the father from noon on December 25 until 1 p.m. on December 26.

(vi) Starting in 2022, the child shall spend the March school break with the mother in even-numbered years and with the father in odd-numbered years. The March break will attach to the parents’ regular parenting time weekend.

(vii) In 2021, the mother shall have two weeks of exclusive parenting time with the child during the summer – one week in July and one week in August. She shall advise the father in writing by May 15, 2021 what weeks she is choosing. The father shall also have two weeks of exclusive parenting time with the child during the summer – one week in July and one week in August. He shall advise the mother in writing by May 31, 2021 what weeks he is choosing.

(viii) Starting in 2022, the child shall spend one week on and one week off with the parents during the summer school break. The first week will be with the mother and will start on the Sunday following the end of school. Exchanges shall take place on Sundays at 6 p.m.

ix) The child shall spend Father’s Day with the father if it would otherwise be the mother’s weekend with the child. He will have the child starting at 10:00 a.m. on Father’s Day.

x) The child shall spend Mother’s Day with the mother if it would otherwise be the father’s weekend with the child. She will have the child from 10:00 a.m. on Mother’s Day until 5 p.m.

xi) For the child’s birthday, the child shall remain with the parent according to the regular schedule, but that parent shall arrange a video call to the other parent at 5:00 p.m. on the birthday, or at such other time as the parties may agree in writing.

xii) Holiday parenting time will take priority to the regular parenting schedule.

m) Parenting exchanges shall be conducted by a professional parenting time supervisor. Any of Brayden Supervision Services, Side-by-Side or Renew Supervision Services are acceptable. The father is to advise the mother within 10 days which agency he chooses to use. The requirement for supervision of exchanges will remain in effect for one year.

n) The father shall pay 75% of the costs of the professional parenting time supervisor. The mother shall pay 25% of the costs. Starting on January 1, 2022, the parties shall each pay 50% of these costs until the requirement for supervision of parenting exchanges expires.

o) The parties shall promptly complete the intake forms of the professional parenting time supervisor.

p) The exchanges with the professional parenting supervisor shall take place at a plaza near the Peel police station at 3030 Erin Mills Parkway to be chosen by the father, or at any other location in Mississauga chosen by the professional parenting time supervisor.

q) Until such time as the professional parenting time supervisor can start supervising the exchanges, the parties shall continue to directly exchange the child at the Peel police station at 3030 Erin Mills Parkway.

r) The father may use a third party chosen by him and known to the child to do any exchange on his behalf, should there be a conflict with his work schedule or any emergency. He is to advise the professional parenting supervisor in advance who this person is.

s) The mother shall ensure that any person who drives the child in a motor vehicle during her parenting time has an Ontario driver’s licence and insurance for the car.

t) The mother, or her agents, shall not remove the child from the Province of Ontario without the prior written and notarized consent of the father or a prior court order.

u) If the mother is exercising her parenting at a location other than her own residence, she shall provide the father with the address at least 48 hours in advance.

v) The father may travel with the child outside of Canada for vacation purposes, when the child is not in school, without the written consent of the mother. He shall provide the mother at least 21 days notice in advance of the trip, with a full itinerary of where he will be traveling and staying with the child. He shall ensure that the child has a video or phone chat with the mother at least every other day on the vacation.

w) The parties shall notify each other at least 30 days in advance of any change in address. The notice shall include the date of the move and the new address.

x) The parties shall keep the other updated, in writing, of any change in email address. This shall be done immediately when there is a change.

y) Unless there is an emergency regarding the child, the parties shall communicate in writing only, and only on matters related to the child. The communication may be through email, WhatsApp or through the My Family Wizard software program.

z) All communications between the parties shall be respectful and child-focused.

aa) Neither party is to video-tape or audio-tape the parenting exchanges, nor video-tape or audio-tape the child for court purposes.

bb) The parents shall not demean or criticize the other in the presence of the child. They are expected to support the other’s relationship with the child.

cc) If requested by the father, if the mother contravenes the parenting time or non-removal terms of this order, any peace officer, wherever the child is located, is directed to locate, apprehend and deliver the child to the father. This includes any municipal, provincial or federal police force. It also includes the Canada Border Services Agency. This order is being made pursuant to section 36 of the Act and shall remain in force for one year from this date.

dd) Both parties will follow government Covid-19 health protocols as set out and as updated here:

a. https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html

b. https://www.ontario.ca/page/2019-novel-coronavirus#section-7

c. https://www.toronto.ca/home/covid-19/

[298] Final support orders shall go as follows:

a) The father owes no past child support to the mother.

b) The mother owes no past child support to the father.

c) No child support is payable by the mother to the father at this time. However, the father may seek a review of this term if the mother fails to pay her share of the costs of the professional parenting time supervisor.

[299] The mother will require leave of the court prior to bringing any further proceeding in the Ontario Court of Justice regarding the child. Any request for leave must be brought by Form 14B, on notice to the father.

[300] Any future proceeding in the Ontario Court of Justice (except for the issue of costs), whether it is to change or enforce this order, should be started in the jurisdiction where the child ordinarily resides. At this time that is in the Region of Peel.

[301] The father has made costs requests to both Justices Sager and Zisman, arising out of temporary steps in this case, that have not yet been decided. Those costs decisions will impact on any costs decision made by this court. If the father wishes to seek his costs, he is to serve and file written submissions within 14 days after the last of Justice Zisman and Justice Sager release their costs decisions. The mother shall serve and file her written response within 14 days after she has been served with the father’s costs submissions. The submissions shall not exceed four pages, not including any bill of costs or offer to settle.

[302] The balance of the claims made by the parties are dismissed.

[303] It is the court’s wish that the mother carefully reads and accepts this decision. The court has no doubt above her love for her child. It also saw how painful and confusing these events have been for her. The court hopes that she can see that she has made some very poor choices in the past two years. This has resulted in the court’s loss of trust in her and the removal of the child from her primary care.

[304] The court saw many positive qualities in the mother. If she accepts this decision and learns from it, she has the opportunity to remain a very important part of the child’s life.

[305] However, the court fears that if the mother continues to go down the path she has been taking, the child will be emotionally harmed and courts will need to significantly restrict her time with her.

[306] The choice is now up to the mother.

Released: April 6, 2021

_____________________ Justice S.B. Sherr