Court File and Parties

Court File No.: Halton 482-10

Date: 2013-06-14

Ontario Court of Justice

Between:

Zoltan Benko

Applicant

— And —

Judith Torok

Respondent

Before: Justice Sheilagh O'Connell

Trial heard on: October 15, 16, 17, 18, December 11, 12, 13, 2012, January 11, and 19, 2013

Reasons for Judgment released on: June 14, 2013

Counsel:

A.L. Stoner for the Applicant

G.Z. Bobesich for the Respondent

O'CONNELL J.:

1. Introduction

[1] The issue in this trial is what custody and access order is in the best interests of the child, Lyonell Alexander Torok, born August 21, 2010 ("Lyonell"). Lyonell's biological parents, the parties in this case, have been in a custody and access dispute about Lyonell since he was approximately eight weeks old. Lyonell is now almost three years old.

[2] The father seeks joint custody and a 'week about' shared parenting schedule, with Lyonell residing with each parent on alternating weeks, in what is known as a "parallel parenting order". After the close of evidence at trial, the father sought to amend his position and seek sole custody. The mother seeks sole custody and an order that the father have supervised or restricted access to Lyonell.

[3] The father also seeks to change Lyonell's name from 'Lyonell Alexander Torok' to 'Lyonell Christopher Benko'.

[4] In this trial, I heard evidence from the father and the mother, Mr. Mahesh Prajapat, a clinical investigator from the Office of the Children's Lawyer, Ms Mary Anne Duncan, the coordinator of the supervised access program at the Burlington Child and Family Counselling Services, Ms Camille Brown, a child protection worker with the Halton Children's Aid Society, Mr. Alex Torok, the mother's former husband, Mr. John Bako and Mr. Darius Tarko, both friends of the father, and Mr. James Hardy and Mr. Robert Forrester, two individuals who supervised some access exchanges between the parents on behalf of each parent.

[5] At the time of the trial, Lyonell was residing with his mother and Alex Torok, the mother's former husband. The father was exercising unsupervised access to Lyonell every Saturday from 9:00 a.m. to 6:00 p.m., pursuant to an order of the Honourable Justice Roselyn Zisman, dated August 21, 2011.

2. Background Facts

[6] The parties met through a mutual friend, John Bako, in the Hungarian Canadian community in 2008. The mother was married to Alex Torok at the time. The parties became involved in a relationship in approximately April of 2008. The mother left Mr. Torok to live with the father shortly afterwards.

[7] The mother and father resided together for approximately six months in the father's home. In September of 2008, the mother obtained her own apartment but the parties continued their relationship. The mother became pregnant in November of 2009. The mother informed the father of the pregnancy. The parties' relationship ended shortly thereafter and the mother returned to live with her former husband, Mr. Torok in January of 2010. The mother has resided with Mr. Torok since that time. Lyonell has resided with his mother and Mr. Torok since birth, but for a brief interlude in the summer of 2012.

[8] It is not disputed that the father and mother had no contact with each other during the pregnancy, with the exception of the first month, although both parties have a different view of why there was no contact. After Lyonell's birth in August of 2010, the mother contacted the father to inform him and visits were arranged between the father and Lyonell. Between August of 2010 and October of 2010, the father exercised regular access to Lyonell approximately three times per week during the day, for up to three hours for each visit, supervised by the mother.

[9] When Lyonell was approximately six weeks old, the father sought expanded unsupervised weekend and evening access to Lyonell. The mother did not agree and proposed that the day time access continue, supervised by her, either in a public place, or at her home.

[10] On September 24, 2010, on the mother's birthday, the father telephoned the mother at her home and spoke to Alex Torok. An argument ensued between the father and Alex Torok. The mother left the home that night with Lyonell, but returned the next day. The father states that this incident was part of what prompted his court application.

3. History of Proceedings

[11] On October 14, 2010, when Lyonell was eight weeks old, the father commenced this application. He sought an order for joint custody with Lyonell's primary residence to be with him. In his application, he alleged that Alex Torok was an extremely violent and dangerous alcoholic and that as a result of the mother residing with Alex Torok, Lyonell was at risk of harm. He further alleged that Alex Torok received a jail sentence for an assault against the mother in April of in 2008 and that the mother was denying him access to Lyonell.

[12] The father also joined Alex Torok as a party to his application and sought a restraining order against him. It was the father's position that he was at risk of being assaulted or killed by Alex Torok if he exercised access to Lyonell in the mother's home.

[13] After the father's application was commenced, there was no access between Lyonell and the father until January 2011. The mother continued to propose supervised access at her home but the father refused to agree to this arrangement. At the first case conference, the father agreed to access at a supervised access centre and started exercising access to Lyonell every Saturday for two hours at the Burlington supervised access centre.

[14] In July of 2011, the father sought expanded access. Following a contested motion, Justice Zisman granted unsupervised access to the father every Tuesday and Thursday from 6:00 p.m. to 8:00 p.m. and on alternate Saturdays or Sundays for four hours. The pick-up and drop off was to be at a supervised access centre, if possible, and if not, in a public place. The parties also agreed to refer their dispute to the Office of the Children's Lawyer to conduct a clinical investigation of the issues of custody and access.

[15] In August of 2011, the father sought an order for further expanded access, to include overnight weekend access. The mother opposed and sought to reinstate supervised access based on her concerns about Lyonell's reaction to unsupervised access with his father. At this time, the father had opted not to exercise the Tuesday and Thursday mid-week access because he stated that it was not convenient, according to Justice Zisman's endorsement.

[16] After hearing the father's motion, Justice Zisman held that it was too early to introduce overnight access. Justice Zisman expanded the father's access to every Saturday from 9:00 a.m. to 6:00 p.m. unsupervised, with pick up and drop off to continue at the supervised access centre if available and otherwise at the Hopedale Mall. This order was made without prejudice to the father being able to renew his motion for overnight access and holiday access.

[17] On August 31, 2011, the father consented to Alex Torok being removed as a party to this proceeding.

[18] On September 8, 2011, Mr. Mahesh Prajapat was appointed as the clinical investigator for the Office of the Children's Lawyer. He completed his report on December 14, 2011. Mr. Prajapat did not make a recommendation regarding custody. He instead recommended a transition over an eight week period to an equal time sharing arrangement consisting of an alternating week schedule (known as a 'week about' schedule.) Mr. Prajapat recommended that the issue of custody should be reconsidered after the shared residential arrangement had been in place for a period of time. At the time, Lyonell was sixteen months old.

[19] On January 26, 2012, the father renewed his motion for overnight and expanded access and sought to implement the recommendations of Mr. Prajapat immediately pending a trial. The mother opposed the motion and filed a lengthy notice of dispute regarding Mr. Prajapat's recommendations. After a contested motion, Justice Zisman concluded that "this case does not fall into the rare and exceptional category of cases where the assessor's recommendations should be acted upon immediately before there is a full and thorough investigation provided by a trial." Justice Zisman dismissed the father's motion for expanded access and the temporary order for access that was made on August 31, 2011 continued pending the trial. A trial management conference was scheduled before me on May 2, 2012.

4. The Applicant Father's Position

[20] The father submits that without an order for joint custody and shared parenting, the mother and Alex Torok will continue to undermine his role as Lyonell's father and eventually exclude him from Lyonell's life.

[21] It is the father's position that Alex Torok is a violent and dangerous man who exerts control over the mother and that she is not permitted to make independent custody and access decisions without him. The father further submits that the mother has consistently denied him access to Lyonell, under the direction and encouragement of Alex Torok and that she has repeatedly breached access orders. As the father puts it, when he started his application for custody, "I realized that without any kind of Court order, I was not going to see my son. I realised that Alex [Torok] was going to control the access to my son."

[22] After the close of evidence at trial, the father amended his position and sought as an alternative, sole custody of Lyonell. He submits that the mother is not a fit custodial parent and that the allegations that she had made against him at trial were bizarre and unsubstantiated. Therefore, Lyonell should be in his primary care and control, with specified access to the mother.

5. The Respondent Mother's Position

[23] The mother submits that joint custody would not be possible in these circumstances because there is no ability for the parties to communicate and resolve even the simplest issues. According to the mother, the father is a very controlling person and there is a great deal of conflict and mistrust between them. It is in Lyonell's best interest to be in her sole custodial care, as he has been since birth. She further submits that a 'week about' shared parenting schedule would be traumatic for Lyonell and would significantly undermine his attachment to her as his primary caregiver.

[24] The mother denies being controlled by Alex Torok and submits that all access decisions have been made by her. She submits that she has never denied access to the father, but rather that he will only accept access on his terms.

[25] The mother further submits that any overnight access between the father and Lyonell would be harmful to the child and she would prefer that supervised access be reinstated. It is her position that there has been no improvement in the relationship between Lyonell and his father despite an access regime that has been in place for two and one-half years. According to the mother, Lyonell continues to be traumatised and distressed both before and after access visits with his father and that his behaviour has worsened over the past year.

[26] The mother expressed very serious concerns about the father's parenting ability and for Lyonell's physical and emotional safety in the father's care. During the course of the trial, the mother testified that she believes the father is drugging Lyonell during his access visits to control his behaviour.

6. The Evidence at Trial

6.1 Mr. Zoltan Benko

[27] The father is 49 years old and has a degree in electrical engineering. He was born in Hungary and came to Canada in 1991. He is currently employed for a company selling large electrical motors for industrial use. He has no other children, although he was divorced previously.

[28] Mr. Benko testified that when he and Ms. Torok initially became involved in 2008, Ms. Torok advised him that she was in a very abusive relationship with Alex Torok. Mr. Benko stated that he felt sorry for her and she moved into his home almost immediately after Ms Torok left Alex Torok.

[29] Mr. Benko described discussions that the parties had with respect to having a child together. He testified that very early in 2008, just prior to her moving into his condominium, they discussed fertility treatments so that she could have a baby. Given the parties' advanced ages, they went to a fertility treatment clinic to discuss the possibility of pregnancy. He testified that they were advised by the fertility doctor that there was no natural way for Ms. Torok to have a child.

[30] Shortly after the parties moved in together Mr. Torok came to their apartment and demanded to see Ms. Torok, which greatly concerned Mr. Benko. In April of 2008, after a telephone conversation with Mr. Torok, Ms. Torok called the police because she was concerned that he was suicidal as a result of their separation. In June of 2008, Ms Torok returned to the former matrimonial home to retrieve some personal belongings. Mr. Benko testified that Mr. Torok violently assaulted her on that occasion. According to Mr. Benko, Mr. Torok "brutally attacked her and probably wanted to murder her." He testified that Mr. Torok broke her car window and started punching her repeatedly on and about the head and that Ms Torok "is lucky to be alive today". Mr. Torok was charged with this assault and subsequently pleaded guilty.

[31] Mr. Benko described being somewhat relieved when Ms. Torok moved out of his apartment to obtain her own accommodation. The parties agreed to work on their relationship and see each other romantically in what Mr. Benko described as "dating". However, according to Mr. Benko, Ms. Torok was very unfaithful to him during that period of time as she had become involved with other men.

[32] Mr. Benko was very surprised when Ms Torok told him that she was pregnant. According to him, the only way that this could have happened would be if she continued to get fertility treatments without his knowledge or consent. Mr. Benjo denied asking Ms Torok to have an abortion. The parties attended a doctor's appointment together in December of 2009 to discuss Ms Torok's pregnancy. Later in this litigation, the doctor filed a medical report describing Mr. Benko as angry and hostile during the appointment. Mr. Benko denied this and stated that the doctor made false allegations about him. He subsequently reported the doctor to the College and Physicians and Surgeons for making an unprofessional report containing non-medical and false allegations about him.

[33] Mr. Benko stated he wanted the parties to be together to raise their child and that he told this to Ms Torok. According to Mr. Benko, Ms. Torok refused unless he bought her a house. Mr. Benko testified that Ms Torok started to "blackmail" him, and threatened to return to Alex Torok unless he bought a house for her and their child. Mr. Benko testified that he was astonished that she would go back to "a brutally violent alcoholic" and expose his child to him because he refused to buy her a house.

[34] The parties ended their relationship shortly thereafter in December of 2009. Ms Torok returned to Mr. Torok's home in January of 2010. Mr. Benko testified that during Ms Torok's pregnancy, he did not have any contact with Ms Torok because Mr. Torok would not permit it. According to Mr. Benko, "basically she picked the house over the real family and the real father" and that she shut communication down between them and disappeared.

[35] Mr. Benko acknowledged that Ms. Torok contacted him immediately after Lyonell's birth and that for several weeks after Lyonell's birth Ms. Torok was very cooperative regarding access. He testified that they would meet approximately two or three times per week for two to three hours for each visit so that he could see Lyonell. He testified that he was very happy with these visits and that the visits went well.

[36] When Lyonell was approximately four weeks old, Mr. Benko wanted to start seeing Lyonell on the weekends and evenings. According to him, Ms Torok refused because she did not want Mr. Torok to know that she was arranging access visits between Mr. Benko and Lyonell. Mr. Benko testified that he discussed this with Ms Torok, but that she was too frightened to speak to Mr. Torok so he agreed to speak to him.

[37] On September 24, 2010, the mother's birthday, Mr. Benko testified that he called Mr. Torok to discuss access between himself and Lyonell on weekends and evenings. According to Mr. Benko, Mr. Torok became very angry and started shouting at him in an abusive and threatening manner. Mr. Benko testified that Ms. Torok said that she would call him back later that night, but that she did not call for a long time so he called the police. According to Mr. Benko, Ms. Torok arrived at his home later that evening with Lyonell and spent the night as Mr. Torok had been violent and abusive. The next day Ms. Torok decided to return to Mr. Torok with Lyonell. Mr. Benko became very emotional and tearful at this point in his testimony.

[38] Shortly after this incident occurred, Mr. Benko reported Ms Torok and Mr. Torok to the children's aid society as he was very concerned that Lyonell was at risk in Ms Torok's care. It is not disputed that after an investigation in which they met with both parties and Mr. Torok, the children's aid society did not verify any child protection concerns.

[39] Mr. Benko stated that he brought this application on October 14, 2010 as a result of the incident with Mr. Torok on September 24, 2010. He testified that after he commenced this application, he was "denied access" to Lyonell for five months until the supervised access commenced at the supervised access centre.

[40] In cross-examination, Mr. Benko acknowledged receiving correspondence from Ms. Torok proposing that his access to Lyonell continue during the day at Mr. Torok's home after he commenced his custody application. Mr. Benko testified that this was "totally unacceptable" because it was so unsafe to be around Mr. Torok. Mr. Benko testified that he did not make any attempt to exercise access to Lyonell in Ms. Torok's home because he wanted to "stay alive". According to Mr. Benko, by proposing this form of access to Lyonell (who was approximately eight weeks old and nursing at the time), Ms Torok was essentially denying his access.

[41] Mr. Benko testified that Mr. Torok is a mentally unstable and mentally dangerous person and that if he went to their home to see Lyonell he "would not be alive today". Mr. Benko appeared convinced that if he exercised access in Ms. Torok's home to Lyonell at that time then Mr. Torok would kill him. This is why Mr. Benko added Mr. Torok as a party and sought a restraining order against him.

[42] In December of 2010, Mr. Benko again reported Mr. and Ms Torok to the children's aid society and the police for what he described as death threats against his family in Hungary. Mr. Benko was not permitted to give hearsay evidence about these allegations as he did not have any witnesses to give first-hand evidence regarding the alleged threats to family members in Hungary and the police did not investigate or lay any criminal charges after being contacted by Mr. Benko regarding these allegations. The children's aid society did not verify any child protection concerns.

Supervised Access Centre

[43] Mr. Benko described the supervised access centre as a wonderful place and that he was able to exercise access to Lyonell with having absolutely no contact with Mr. or Ms. Torok. In describing access visits at the supervised access centre, which commenced when Lyonell was approximately five months old, Mr. Benko acknowledged that during the initial access visits Lyonell did cry, especially at transitions, however he eventually settled down and after a number of visits he stopped crying. During and throughout the supervised access visits Lyonell started to develop a very strong bond with him.

[44] Mr. Benko testified that Ms. Torok created numerous problems at the supervised access centre, eventually leading to the suspension of their services. According to Mr. Benko, Ms. Torok refused to cooperate with the supervised access centre, repeatedly showed up late or cancelled and made it very difficult for Lyonell to transition from her care to his care. Ms. Torok refused to speak English to Lyonell at the supervised access centre and insisted on speaking Hungarian despite the clear rules of the supervised access centre. Further, Ms. Torok advised the staff at the supervised access centre that they are not to call Mr. Benko, "Daddy" in front of Lyonell and that his name is "Apa". In cross-examination, Mr. Benko acknowledged that "Apa" means "Daddy" in Hungarian, however, he stated that he wanted to be called "Daddy" and "Apa" and there was no reason why she should not.

[45] Mr. Benko testified that on one occasion Ms. Torok brought Alex Torok to the supervised access centre in direct contravention of Justice Zisman's order, and which he reported immediately to the centre through counsel. A warning letter was sent to Ms Torok regarding this incident. This later turned out to be an error and that in fact, it was another individual who accompanied Ms Torok to the centre on that day.

[46] In cross-examination, when it was put to Mr. Benko that in fact only two visits were cancelled due to the child's illness, Mr. Benko refused to believe that Lyonell was ill. He did not believe the medical report that was produced stating that the child had pneumonia and testified that Ms Torok was fabricating evidence to deny him access.

Unsupervised Access

[47] Mr. Benko testified that after unsupervised access visits commenced in July of 2011, access exchanges continued at the supervised by the access centre given the level of conflict between the parties, until the centre suspended its service. On one occasion, after receiving Lyonell and bringing him home, he discovered that Ms Torok had placed a recording device in one of Lyonell's toys, which he reported immediately to the centre. After that incident, Ms Torok was no longer permitted to bring things to the centre for Lyonell.

[48] Once the supervised access centre suspended its services in May of 2012, all access exchanges occurr at the Hopedale Mall. Mr. Benko described these exchanges to be very difficult. He testified that Ms Torok holds onto Lyonell very tightly, and refuses to let go of him, essentially "holding him hostage" while the child is crying, thereby making matters worse. Mr. Benko testified that in order to protect himself from false accusations, he brings at least one witness with him to every access exchange, and Ms Torok does as well.

[49] On one occasion, Ms Torok accused him of assaulting her during an exchange when he gave her Lyonell's diaper bag at the end of the visit. Ms Torok reported the incident to the police in August of 2011. No charges were laid as the police did not find any evidence of an assault taking place.

[50] Mr. Benko stated that he tries to make the transitions occur as quickly as possible and that as soon as Lyonell is in the car with him, he settles down immediately. Mr. Benko also repeated on a number of occasions in his evidence that Ms Torok deliberately makes the child cry to deny or obstruct his access visits. However, he acknowledged that Ms Torok is generally compliant with the court ordered access and has not deliberately breached the access order.

Mr. Benko's Plan of Care

[51] Mr. Benko described a close and loving relationship with Lyonell. He described in detail how he plans his Saturdays with Lyonell, including their activities, the meals he prepares, the books that they read, and the fun that they have together. He spoke about Lyonell in very loving terms and he is clearly very proud of him. He described Lyonell as a "beautiful little boy" who is very bright and curious. He produced dozens of photographs of Lyonell, which were entered as exhibits at trial, which he took during their time together. As Mr. Benko is an amateur photographer, he has taken hundreds of photographs of Lyonell. The photographs produced at trial show a very happy little boy while in his father's care.

[52] Mr. Benko spoke at length about his desire to spend more time with Lyonell, including overnights. He has a bedroom for Lyonell in his condominium apartment with many toys and books there for Lyonell. He would like to be able to read to Lyonell at bed time and be involved in his night time routine. He wants to be a fully involved parent to Lyonell and believes that he and Lyonell are being denied this opportunity by Ms Torok and Mr. Torok.

[53] In terms of his plan of care for Lyonell, Mr. Benko has registered Lyonell for a day-care which has offered Lyonell a place as soon as Mr. Benko advises them. The day-care is in Burlington close to both parents' home. He proposes that Lyonell be registered in the day-care full time and that Ms Torok return to work. Both parents will then pick Lyonell up from the day-care during their alternating week with him and therefore have little or no contact with the other parent. The day-care costs approximately $800.00 per month. Mr. Benko proposes that the parties share the cost of the day-care.

[54] In cross-examination, Mr. Benko acknowledged that he did not advise Ms Torok that he had registered Lyonell in a day-care, nor did he provide her with any information about the daycare. He further acknowledged that the day-care would not accept Lyonell if he was only there on alternating weeks, hence his proposal that Ms Torok return to work so that Lyonell can be at the day-care full time and she can share the cost. He also agreed that if Ms Torok continued to stay at home to care for Lyonell until he starts kindergarten, then the day-care may not be a practical solution, but he was willing to look at other alternatives that would ensure Lyonell is with him fifty percent of the time.

[55] Mr. Benko also acknowledged in cross-examination that during one of his access visits, he arranged to have Lyonell's hair cut very short without Ms Torok's knowledge or consent. He testified that during the summer, Lyonell was very hot and uncomfortable because his hair was too long. He had previously asked Ms Torok to cut his hair and she refused, so he decided to do this on his own to make Lyonell more comfortable.

Change of Lyonell's Name

[56] Mr. Benko explained that he wants Lyonell's name changed to "Christopher Lyonell Benko" because this reflects his first and last name. In cross-examination, he stated that he would be willing to change this to Lyonell Christopher Benko, so that Lyonell could continue to be called by his first name. He viewed the choice of Lyonell's name as another example of Mr. and Ms Torok cutting him out of Lyonell's life. He was not willing to consider a hyphenated last name with Torok, because this is Alex Torok's last name, however, he was willing to consider a hyphenated last name of "Benko-Somogyi", which is Ms Torok's maiden or birth name.

[57] Mr. Benko acknowledged that he had a history of anxiety and depression in 2004. He stated that he suffered from anxiety attacks relating to the loss of his employment and that he was under the care of a doctor and receiving medication for approximately six to eight months in 2004. He did not recall whether he was referred to a psychiatrist and did not recall meeting with or speaking to the psychiatric nurse who prepared the Comprehensive Psychiatric Assessment that was filed as part of his medical records at trial.

6.2 Ms Judith Torok

[58] The mother is 50 years old and is a professional tailor and clothing designer. She also immigrated to Canada from Hungary in the early 1990s. She is currently unemployed and is a stay at home mother to Lyonell, although she plans to resume her tailoring and design business. She has no other children. She was previously married twice, her second marriage to Alex Torok, from whom she is divorced, although they now live together.

[59] Ms. Torok was introduced to Mr. Benko by John Bako, a friend of both Mr. Benko and Mr. Torok. Ms Torok states that she fell in love with Mr Benko and she believes that he fell in love with her. After she left Mr. Torok, she moved into Mr. Benko's apartment.

[60] Ms Torok acknowledged that when she left her husband for Mr. Benko, he was very upset and distraught. She does not dispute that Alex Torok assaulted her shortly after their separation in 2008. Mr. Torok pleaded guilty to assault was granted a conditional discharge with eighteen months' probation, according to the criminal record filed at trial. He was required to attend PAARS counselling as a term of his probation and to complete community service.

[61] When describing the assault in 2008, Ms. Torok testified that Mr. Torok became very upset and physically aggressive when she returned to the matrimonial home to retrieve some of her belongings. She acknowledged that Mr. Torok hit her and and damaged her car and that she called the police for assistance. However, she states that this incident was totally out of character for Mr Torok and that he was never before aggressive in their relationship. Ms. Torok testified that she noticed a complete and total change in Mr. Torok after he completed his counselling and programs. She also denied Mr. Benko's claim that Mr. Torok has an alcohol problem.

[62] During her cohabitation with Mr. Benko, Ms. Torok described him as extremely controlling and odd. She testified that Mr. Benko drank heavily on weekends and that after he lost his job, his drinking increased significantly. He became depressed and suicidal. Ms Torok testified that Mr. Benko was very upset about losing his job and that he told her that he wanted to buy a gun and shoot everyone in his workplace.

[63] Ms. Torok testified that she realized very early that Mr. Benko had mental health problems. She described him as obsessively checking his locks, always looking through the peephole of their apartment door and very suspicious of people spying on him. He would stare into space, not communicate for long periods of time and then want to know everything that she was thinking. Ms. Torok described an incident where Mr. Benko became obsessed with the noise from an upstairs tenant, an elderly retired nurse. She stated that the noise was minimal, however Mr. Benko would repeatedly jump out of the bed in the middle of the night and start screaming and banging the ceiling with a broom. She testified that at one point he was going to threaten the tenant with a baseball bat.

[64] In cross-examination, when asked about Mr. Benko's mental health issues, Ms. Torok testified that she believed that Mr. Benko was a paranoid schizophrenic. Ms. Torok stated that she has no experience with paranoid schizophrenia, Mr. Benko is the first person that she knows that has this mental disorder and this was based on her own personal observations as well as her internet research about this illness.

[65] In this litigation, Ms Torok wanted to see Mr. Benko's medical records and requested that Mr. Prajapat review those medical records during the course of his clinical investigation. Although a letter from Mr. Benko's former doctor, Dr. Collette was produced, dated February 22, 2012, which suggested no reference to paranoid schizophrenia, it did confirm that Mr. Benko was treated for depression from 2002 until 2005.

[66] Ms Torok acknowledged that she did not tell Mr. Prajapat that she believed Mr. Benko was a paranoid schizophrenic however she testified that she told Mr. Prajapat that she believed Mr. Benko had mental health issues and that she wished him to review his previous medical records.

[67] Despite her belief that Mr. Benko was a paranoid schizophrenic, Ms Torok stated that she still loved him and was still prepared to have a child with him. She hoped that his mental disorder could be treated. She stated that both she and Mr. Benko discussed at length the possibility of having a child together and discussed fertility treatment, including seeking medical advice. They were advised that Ms. Torok had very little chance of getting pregnant given her advanced age. Ms. Torok testified that she did not go through any fertility treatment although she pursued a number of natural remedies to increase her fertility. She testified that Mr. Benko knew that she wanted to have a child.

[68] After Ms. Torok moved out of Mr. Benko's apartment, the parties agreed to continue to see each other. Ms. Torok discovered that she was pregnant in November of 2009. She was extremely happy when she learned of her pregnancy however, Mr. Benko's reaction was quite different. According to Ms. Torok, "he treated me like I had some strange disease". Ms. Torok became very tearful during this part of her testimony.

[69] Mr. Torok states that she became very confused at this point as Mr. Benko blamed her for the pregnancy and stated that she did this on purpose to "tie him up". She testified that she was totally shocked by his response. He further told her that the child would be abnormal given her advanced age and that he would have to work until he was in his seventies in order to support the child.

[70] Ms. Torok asked Mr. Benko to accompany her to her family doctor to discuss the pregnancy. Ms. Torok believes that Mr. Benko was very angry during this visit and particularly when he realized that Ms. Torok wished to have the baby. According to Ms. Torok, Mr. Benko stated, "we don't even live together". Ms. Torok testified that she was hoping to persuade Mr. Benko that they could start living together again as a family. According to Ms. Torok, Mr. Benko stated, "you will not be the first single mother". The relationship ended in December of 2009, shortly after the discovery of the pregnancy.

[71] Ms. Torok denies that the relationship ended because Mr. Benko refused to provide a house for her. She states that Mr. Benko ended their relationship and wanted her to have an abortion. After their separation, Ms Torok states that she spoke to Alex Torok, who offered to help her and the baby. She acknowledged that Mr. Torok wanted to get back together with her however she told him that she was returning to the home not as his wife but just as a friend. She further told him that if Mr. Benko wanted to reconcile, then she would go back to him.

[72] Ms Torok states that after that, Mr. Benko chose to completely extricate himself and would not communicate with her. She saw him on one occasion at Costco and tried to talk to him about how things were going but he told her that he was busy and could not speak. On another occasion in March of 2010, Ms. Torok went to the hospital as a result of an accidental injury. She testified that she tried to contact Mr. Benko by telephoning and texting repeatedly because she was concerned about any impact on her pregnancy. According to Ms. Torok, when Mr. Benko finally got back to her, he seemed unconcerned and dismissive.

Lyonell's Birth

[73] Ms Torok contacted Mr. Benko immediately after Lyonell's birth to inform him and to arrange visits. She confirmed Mr. Benko's testimony that he was seeing Lyonell at least three times each week in her presence at times arranged by the parties during the day. She agreed that the visits were going well at that time.

[74] Ms Torok testified that she had attended court to seek assistance in preparing an application for custody and support shortly after the birth. She called Mr. Benko to let him know and Mr. Benko convinced her not pursue court action. Mr. Benko told her that they should "just talk this through like normal people". Ms Torok agreed to meet with Mr. Benko the next day. She brought Lyonell with her and described Mr. Benko's interaction with Lyonell as very poor. She testified that Mr. Benko appeared afraid to hold Lyonell and according to her, he showed no emotions towards Lyonell. She wished visits to be supervised in her presence until Mr. Benko became more comfortable.

September 24, 2010 Incident

[75] Ms. Torok recalls the incident that occurred on September 24 th very differently. She testified that Mr. Benko called her on her birthday and spoke to Mr. Torok. The conversation became very unfriendly and Mr. Torok hung up the phone. She testified that Mr. Torok was not threatening or abusive during this incident, either towards her or to Mr. Benko, although he was upset and angry.

[76] Shortly after this incident, Ms Torok was served with Mr. Benko's application for custody and principle residence of Lyonell, and for child support. Ms Torok describes being shocked when she received the application. She phoned Mr. Benko to find out why he was doing this. She testified that Mr. Benko accused her of denying his access to Lyonell. Ms Torok denied this and proposed that that access continue during the week in her presence at her home. She testified that this would allow Lyonell to bond with Mr. Benko in a familiar and warm environment, which she truly believed was in Lyonell's best interests. At the time, Lyonell was only eight weeks old and still nursing, so she also believed that it was better for Lyonell to have access with his father during the day, so as not to disrupt his sleeping and feeding time.

[77] Ms Torok further testified that she had discussed this proposal with Alex Torok and he agreed. She stated that Mr. Benko had no reason to be afraid of Alex Torok and even though Mr. Benko had instigated the incident that occurred on September 24 th , 2010, Mr. Torok had forgiven him. Ms Torok testified that if Mr. Benko had accepted this offer, then he would have continued to see Lyonell and develop a bond, and the parties would probably not be here today.

Supervised Access Visits and Transitions

[78] Ms Torok testified that Lyonell reacted very badly to the supervised access visits at the supervised access centre. She described a traumatised child. He cried all of the time and strongly resisted leaving her. Ms Torok had many difficulties with the supervision that occurred at the centre. She brought her own witnesses because she did not believe that the staff was accurately reporting what was occurring and in particular, how upset Lyonell was in going to his father. She testified that staff neglected to ensure that Lyonell was being properly fed and that his diapers were not being changed by Mr. Benko. The staff refused to let her soothe Lyonell in Hungarian. They also inaccurately reported that she had brought Alex Torok to the centre in violation of a court order, based on a report from Mr Benko which turned out to be false.

[79] Ms Torok denied telling the access staff that they should not refer to Mr. Benko as "Daddy" in front of Lyonell. She explained that "Apa" is the name that Lyonell called his father at that time, and this word means "Daddy" in Hungarian. She preferred that he is called "Apa" as Mr. Torok is called "Dede" and Lyonell would be confused.

[80] In July of 2011, when Mr. Benko was granted unsupervised access, the access exchange continued at the centre. Ms Torok acknowledged that she placed a hidden recording device in Lyonell's diaper bag and also in a toy that she had brought to the centre. She testified that Mr. Benko had deposed in an affidavit that Lyonell never cried during his access, which she did not believe.

[81] Ms Torok testified that one of the tapes recorded an entire access visit and was approximately nine hours long. She testified that she could repeatedly hear Lyonell crying on that tape and that it was "heartbreaking". However, the tape was never produced in evidence at trial or otherwise, nor was it disclosed prior to the commencement of this trial.

[82] After the access exchange was moved to the Hopedale Mall in May of 2012, Ms Torok testified that Lyonell continued to cry all of the time when she tried to prepare him for access visits and during the transition. She testified that she was advised by counsellors to prepare Lyonell for the visit but when she attempted to, Lyonell would get very upset, including attempting to run away and hide. Ms Torok produced a number of photos of Lyonell hiding under chairs and in corners when she tried to get him prepared for an access visit. Ms Torok testified that now she does not say anything, however Lyonell still cries and seems to know where he is going.

[83] Ms Torok testified that during transitions, Lyonell continues to hang onto her neck and refuse to go to his father. She described one access visit in which Lyonell was not only crying, but that "his whole body was shaking". Ms Torok states that during the exchange, she is not friendly to Mr. Benko at all, and she does not talk to him.

[84] Ms Torok acknowledged that on some recent access exchanges, Lyonell has not cried, but on those occasions, she observes that he looks very lethargic, passive and sad. When asked about this, Ms Torok stated, "I do believe the child's spirit is broken."

Ms Torok's View of the Current Access Arrangements

[85] Ms Torok stated that although she was initially offering an increase in access, as she sees it now, the current access between Mr. Benko and Lyonell is not going well and is contrary to Lyonell's best interests. Her main concern is Lyonell's behaviour both before and after the access time. She stated that she does not believe Lyonell and his father have a strong enough bond and she is further concerned that Mr. Benko was threatening to kidnap Lyonell so that she could never see him again. Ms Torok is very opposed to overnight access between Lyonell and Mr. Benko because of what she described as the harm that it will cause to Lyonell, as well as the threat of abduction.

[86] Ms. Torok testified that after some consideration she is proposing that Lyonell would spend some midweek visits with his father on Tuesdays and Thursdays, in addition to the Saturday access, and during those hours a public health nurse would be present to assist him in his parenting. She emphasized that it could not be the same public health nurse that she uses. Ideally, Ms Torok prefers that Mr. Benko's access be supervised.

[87] Ms. Torok testified that if she sees an improvement in the relationship between Mr. Benko and Lyonell, for example, if she sees Lyonell running happily to his father then she would consider overnight visits. Ms. Torok testified that on or about June of 2012 after she observed a visit in which Lyonell was not crying, she offered a midweek access visit so that the father could spend more time with Lyonell and also access the services of the public health nurse to assist him in his parenting.

Ms Torok's Safety Concerns

[88] Ms Torok continued to raise very serious safety concerns about Mr. Benko's access with Lyonell. She was very concerned that Lyonell would suffer emotional and mental harm if he continued to have unsupervised access, given Mr. Benko's "untreated paranoid schizophrenia". Furthermore, during this trial for the first time, she testified that she believed that the father may be using some form of drug to sedate Lyonell and to control his behaviour during his recent access visits with him.

[89] Ms Torok described two separate incidents which led her to suspect that Mr. Benko was giving Lyonell drugs to control his behaviour during access visits. She testified that in August of 2012, when she retrieved Lyonell after an access visit, he was slurring his words and he looking very tired. She brought Lyonell to a doctor for a urine test, which came back negative, however Ms Torok testified that a urine test is only for "hard core drugs". In November of 2012, Ms Torok testified that she picked Lyonell up after another visit with his father and that she and Mr. Torok were unable to wake Lyonell for more than twenty minutes. She called Telehealth Ontario and 911and paramedics arrived. According to Ms Torok, the paramedics revived him, but Lyonell was very pale, and his eyes were diluted. Lyonell was taken to the hospital where blood tests were taken, but they were negative.

[90] Ms Torok was not satisfied with the testing that was done and complained to the hospital that they only tested for hard core drugs and did not do comprehensive testing. She did not believe that Lyonell was properly examined and requested that comprehensive testing for all drugs be conducted, which did not happen. Ms Torok reported this to her counsellor who in turn reported to the children's aid society. Ms Camille Brown, a child protection worker with the Halton society investigated. Ms Torok was not happy with the investigation, as no child protection concerns were verified. Ms Torok testified that although she does not have solid evidence, she has a "major suspicion" that Mr. Benko is drugging Lyonell.

[91] Ms Torok described another incident when after an access visit, Lyonell stated that he wants "to skin Mummy". She further described another incident where Lyonell became very upset and said "Don't put me in a dark box." Ms Torok became very tearful when describing these incidents. She testified that these incidents mainly occur around visits and that Lyonell becomes impossible on Friday nights because he "feels when he is going to his father". She testified that on one recent Friday, Lyonell was so afraid that he verbalized his fears by kicking and hitting her.

[92] Ms Torok introduced a number of photographs of Lyonell where she showed bruises on Lyonell that she believed were suspicious because of their shape and size. She speculated that they looked like fingers and that it is easy to imagine that Mr. Benko caused these bruises by holding him too hard when he is changing him. She showed other photos of Lyonell hiding under a chair prior to an access visit with his father. In cross-examination, she was shown several photographs taken of Lyonell during his access visits with his father, in which he appeared happy. Ms Torok testified that she is happy that Lyonell appears happy in these photos but she continues to have major concerns because Lyonell is crying and shaking in her arms prior to going to see his father. She testified that Lyonell continues to experience trauma and difficulty sleeping before every access visit and exhibits serious behavioural problems and disruption to sleep for days after the visit.

[93] When asked directly in cross-examination, Ms Torok stated that she does not see that Mr. Benko offers any positive value to Lyonell at this time. She testified that she would have loved to see a positive impact, but it did not happen. She stated that they should have a much better bond by now, but Lyonell and his father do not have a bond and it has been more than two years. She described the difference between how Lyonell reacts when he sees Mr. Torok, whom he is happy to see, and his father, whom he is not happy to see. She does not believe that Lyonell identifies Mr. Benko as his father.

Change of Name

[94] Mr. Torok does not agree to a change to Lyonell's name to reflect both Mr. Benko's first and last name, or to the hyphenated last name of "Benko-Somogyi". Although Torok is her ex-husband's last name, Ms Torok has adopted this as her last name for many years and she prefers it to her maiden name, which she says it is difficult to pronounce and she identifies now with the name of Torok. She believes that it is in Lyonell's best interests to have the same last name as her. She stated that she had offered Mr. Benko "Julien" as Lyonell's middle name, which is his father's name, but he did not agree.

Ms. Torok's relationship with Alex Torok

[95] Ms. Torok described her current relationship with Alex Torok as wonderful. Ms. Torok testified that Alex Torok was tremendously supportive after her separation from Mr. Benko and continues to be supportive. He has provided both her and Lyonell a roof over their heads and financial and emotional support when, as she states, Mr. Benko abandoned her once she became pregnant.

[96] Although they do not currently have a spousal relationship, Ms. Torok testified that she is open to this possibility and that they have discussed resuming a spousal relationship once these legal proceedings are over and "everything settles down". She stated that if everything goes well, the plan would be for her and Lyonell to live with Mr. Torok in his home indefinitely. However, she testified that if Mr. Benko does not stop this "harassment" then she must move. When asked what she meant by harassment, Ms Torok stated that "this whole litigation, I consider harassment".

[97] Ms Torok described a loving relationship between Lyonell and Mr. Torok, whom Lyonell calls "Dede". Mr. Torok has provided for Lyonell in both material and emotional ways, and Lyonell loves him. She described how Mr. Torok has taught English to Lyonell and has cared for him in a number of ways. He testified that Mr. Torok loves Lyonell and that Lyonell is very happy in their home.

[98] Ms Torok described a brief period in the summer of 2012 in which she and Lyonell left Mr. Torok's home because of the stress of this litigation. She felt it was unfair to put Mr. Torok through the strain of these proceedings, both financially and emotionally. She testified that it is very stressful for Mr. Torok to see how badly Lyonell reacts to his access visits and that he is very upset about what is happening to Lyonell.

[99] Ms Torok denied leaving because Mr. Torok was violent or threatening. She stated that Mr. Torok did not want them to leave and even after moving out, they saw each other every day. She testified that she returned with Lyonell because Mr. Torok missed them and she felt really sorry for Mr. Torok. After moving back in, she and Mr. Torok talked about things but did not see a counsellor.

[100] Ms Torok denies being controlled by Mr. Torok, whom she describes as kind and generous. All access decisions have been made by her and that Mr. Torok has tried to stay out of the litigation. She points out that it was Mr. Benko who tried to have him added as a party, and that Mr. Torok did not want this, as he wished to remain uninvolved. Ms Torok could not recall when she made the proposal for increased access to Mr. Benko and denied that it was during time after she had moved out of Mr. Torok's home in the summer of 2012.

6.3 Mr. Alex Torok

[101] Mr. Torok is 57 years old. He is a licensed mechanic and technician. He also came to Canada from Hungary many years ago and has been employed by the same car dealership for a number of years as a licensed service technician. Prior to meeting Ms Torok, he has been previously married and divorced twice. He has two adult children, ages 39 and 34 years old from his previous relationships. He testified that he is very close to his children.

[102] Mr. Torok stated that he has known Ms Torok for a very long time. They initially lived together, then got married, then divorced, and are now living together again. He acknowledged the conflict that occurred in 2008 when she left him for Mr. Benko. He stated that he tried to make up for this by giving her and the baby "tender loving care" when she came back to live with him.

[103] Mr. Torok met Mr. Benko through their mutual friendship with John Bako. He described Mr. Benko as a lonely man, living alone and depressed when they first met. He testified that both he and Ms Torok provided some support to him as he was told by John Bako that Mr. Benko was going through a difficult time.

[104] Mr. Torok describes the separation in 2008 when Ms Torok left him for Mr. Benko as a very difficult time for him. He describes being very upset, angry, sad and depressed when Ms Torok left him for Mr. Benko. He expressed remorse regarding the assault in 2008 after their separation. He testified that he lost control and accepted the consequences. He has completed the PAARS program and some other counselling programs. He stated that the programs were very beneficial to him. He testified that this experience helped him to understand how their relationship could be different and helped him to see another way of life, including respecting each other. Mr. Torok was granted a conditional discharge with eighteen months' probation. He has no criminal record. He further denied being an alcoholic or even being drunk, although he admits to social drinking.

[105] In cross-examination, Mr. Torok acknowledged being admitted to the hospital in 2008 after the separation. He testified that he was speaking to Ms Torok and that he started to cry and became very emotional. Ms Torok was concerned about his emotional wellbeing and called the police. An ambulance and the police arrived at his home and took him to the hospital where he was asked a number of questions by medical staff. Mr. Torok appeared to recall this very clearly and acknowledged being very upset. He stated, "I was crying. To this day, I still love her."

[106] Mr. Torok was deeply offended and humiliated by the way Mr. Benko has characterized him in these proceedings. He testified that Mr. Benko has lied about him and that the allegations of previous violence and threats are untrue. He absolutely denies threatening him or that members of his family in Hungary threatened him or his family. He had no contact with Mr. Benko at all after his separation from Ms Torok in 2008, with the exception of their telephone call in September of 2010. The next time he saw Mr. Benko was in 2011 in these court proceedings when Mr. Benko added him as a party and brought a restraining order against him.

[107] Mr. Torok testified that Ms Torok "came home" in 2010. She called him and described "a rough situation" and that she was pregnant. He offered her a home and shelter and has taken care of Ms Torok and Lyonell since that time. Mr. Torok described supporting Ms Torok throughout the pregnancy, being present for Lyonell's birth and cutting the umbilical cord. He has tried to give Lyonell nothing but the best to prepare Lyonell for a beautiful life. He described Lyonell as a lovely talented little boy. He has provided him with a home, clothing, shoes, toys, "whatever he needs".

Mr. Torok's Relationship with Lyonell

[108] When asked to describe his relationship with Lyonell, he stated that "we just love each other." Lyonell started calling him "Dede" when he was approximately seven or eight months old. Dede is not a Hungarian expression. He stated that he loves Lyonell very much and tries to give him everything. He stated that he does not want to replace Mr. Benko as Lyonell's father, but he loves Lyonell like a father loves a son and he will do "all that I can to give the best for Lyonell."

[109] In his opinion, Lyonell treats him as his father, more than he treats Mr. Benko, "who is like a stranger to him". When asked about Lyonell's name, he became emotional and stated that he was "so proud of this" when Ms Torok gave Lyonell the middle name "Alex", his first name, and his last name Torok. Mr. Torok went on to describe the routine in their home and how involved he was in parenting Lyonell. He described the family time that they have together after he gets home from work, the quality time that they spend together and Lyonell's bed-time routine.

Mr. Torok's Opinion of Mr. Benko

[110] Mr. Torok was not impressed with Mr. Benko's actions toward Ms Torok after she became pregnant and has a low opinion of him. Ms Torok was 48 years old when she became pregnant with Lyonell, "not a teenager" as Mr. Torok put it, and in his opinion, a gentleman would never have treated Ms Torok the way Mr. Benko did, by abandoning the mother and child and failing to support them. He denied telling the OCL clinical investigator that Mr. Benko was a "lowlife", but instead he told him that Mr. Benko, in breaking up with a pregnant older woman and leaving her alone is at a "very low level of being a gentleman." He further denied calling Mr. Benko a 'rat". He stated that what he in fact said to Mr. Prajapat was that "even a rat looks after his children."

[111] Mr. Torok stated that when Mr. Benko first approached Ms Torok for visits with Lyonell, he did not interfere and in fact encouraged Mr. Benko to see Lyonell. He told him that "our door is open—come over and visit the child." In describing the incident when Mr. Benko called on September 24, 2010, Mr. Torok stated that Mr. Benko called them on Ms Torok's birthday. He acknowledged not being happy that Mr. Benko had interrupted the birthday celebration. According to Mr. Torok, Mr. Benko first thanked him for looking after Judith and his son, but then became very rude and called him a "stupid donkey" when things became heated between them. Mr. Torok became upset and handed the phone back to Ms Torok. Ms Torok decided to leave that night and go to Mr. Benko, but then returned the next day.

Mr. Torok's View of the Current Access

[112] Mr. Torok is also deeply concerned about the access between Lyonell and Mr. Benko. He described Lyonell as being very distraught and upset about going to his father's home and testified that he had directly observed Lyonell kicking and screaming and refusing to get into Ms Torok's car when he knows that he is going to his father's home. He described Lyonell as being very sad, upset and sleepy after access visits. He stated that Lyonell is a very sensitive little boy and any disruption in his routine is difficult for him. He tries to give Lyonell some space to help him recover after an access visit. He feels very sorry that Lyonell has to go through this every week. According to Mr. Torok, "unfortunately, every visit is torture for him."

[113] Mr. Torok shares Ms Torok's view that Mr. Benko is drugging Lyonell during his access visits. He told Ms Torok to call Teleheath after the visit in November of 2012 because he suspected that Lyonell was on drugs. According to Mr. Torok, Lyonell was dizzy, incoherent and extremely tired, as well as very thirsty.

[114] When asked what he believed was in Lyonell's best interests, he said it is for Lyonell to have "a nice peaceful home without interruption." He believes that Lyonell needs a break from seeing his father as he is traumatised every weekend. He proposed that there be a three month break from access to see how Lyonell reacts. He believes that it is in Lyonell's interests to "settle down" until he is able to recognise when he needs to see his father.

[115] Notwithstanding his view of Lyonell's access with his father, Mr. Torok believes that court orders must be respected. He does not understand why a court would force Lyonell and his mother to go through this situation every week, but he understands that the court order must be obeyed. As he put it, "I don't like it because it's not good for Lyonell, but I have to obey the court order. I mean Judith has to obey the court order."

[116] Mr. Torok acknowledged that he and Ms Torok are in "a relationship" but not a "romantic relationship" at this time. He states that they have a "strong plan" to build a life together but that everything was put on hold when Mr. Benko started these court proceedings. He confirmed that they have lived together continuously since 2010 but for the three week period in June of 2012 when Ms Torok and Lyonell left because she thought the situation was too much pressure for him. Mr. Torok said she came back home because Lyonell needed him and that he missed him and their home. He states that once this is all over, they will first take a long rest and then focus on how they plan to live together. He testified that he is a very active person and that he will never retire because he has taken on the responsibility for a two year old and he wants to support Lyonell.

6.4 Ms MaryAnne Duncan and Supervised Access Reports

[117] Ms Duncan is the coordinator of the supervised access program at Burlington Counselling and Family Services. The reports of the supervised access visits were entered on consent as evidence at trial, as business records under section 35(3) of the Ontario Evidence Act. Ms Duncan testified that there are two staff present to supervise every visit and there are generally three families on site. Staff take detailed notes on the day of supervision.

[118] Supervised access visits commenced on February 5, 2011 and continued until July of 2011. At that time, Mr. Benko started unsupervised access, but the centre continued to supervise the access exchange until May of 2012. The reports indicate, indicate that during the first period of supervised access between February and April of 2011, Lyonell had significant difficulty separating from his mother and cried frequently during transitions. However, by the end of April 2011, Lyonell appeared to adjust to the transitions and the transfers had improved significantly, although there were some setbacks. A review of the reports indicate that Mr. Benko's interaction with Lyonell was positive, attentive and child-focused. Lyonell clearly began to enjoy the visits with his father and respond appropriately.

[119] Ms Duncan made the decision to suspend the services of the centre in May of 2012 after Ms Torok was repeatedly warned not to speak Hungarian to Lyonell at the centre. The Ministry of the Attorney General policy requires that parents who are fluent in English must speak English to the child while at the centre so that staff can hear and record what is being said. The centre will provide an interpreter if language is an issue, but this was not the case here. Both Ms Torok and Lyonell could speak English. Ms Duncan suggested to Ms Torok that she could bring an interpreter, but the centre would not fund this.

[120] Ms Duncan acknowledged incorrectly sending another warning letter to Ms Torok about bringing Alex Torok to the centre. She was advised by Mr. Benko that this was a breach of the court order. However, it was later ascertained that Ms Torok had not brought Mr Torok the centre, but another male friend. Ms Duncan also sent warning letters to Ms Torok about bringing a recording device to the centre, hidden in Lyonell's diaper bag, as reported by Mr. Benko, and about arriving at the right time for the staggered transitions.

6.5 Mr. John Bako

[121] Mr. Bako is a very good friend of Mr. Benko and was called as his witness in this trial. Mr. Bako was also a friend of Mr. Torok. He has known both of them since 2002. He met Ms Torok through Mr. Torok in 2004. Mr. Bako introduced Mr. and Ms Torok to Mr. Benko in approximately 2005.

[122] Mr. Bako did not approve of what happened between the three of them when Ms Torok left Mr. Torok for Mr. Benko in 2008. He did not want to get involved. However, as a result of the ongoing custody conflict between Ms Torok and Mr. Benko, he no longer speaks to Mr. Torok. He testified that he has no bad feelings towards Mr. Torok, they just drifted away as friends after 2008. He has not spoken to Judith Torok since 2008.

[123] Mr. Bako described Mr. Torok as being emotionally disturbed immediately after Ms Torok left him in 2008. He recalls the police being called to his home. He attended and offered to accompany Mr. Torok to the hospital where he was examined and released. Mr. Bako testified that he and his wife looked after Mr. Torok and checked in on him at least once a day until he got better.

[124] Mr. Bako also recalled the incident in June of 2008 when Mr. Torok was charged with assaulting Ms Torok. Mr. Bako attended Mr. Torok's bail hearing and acted as his surety and paid the $2,000.00 bail for his release. Mr. Bako did not know any of the details of the assault. The last time he spoke to Mr. Torok was when Mr. Torok called him to congratulate him on the birth of his son. Mr. Bako described the telephone call as courteous and congratulatory.

[125] In cross-examination, Mr. Bako acknowledged that Mr. Benko was struggling with depression in 2004. Mr. Bako described Mr. Benko as feeling lonely and having some difficulties at work. Mr. Bako recalled driving him to a medical clinic or hospital on a number of occasions, however, he did not know if Mr. Benko was seeing a psychiatrist or on medication.

[126] Mr. Bako has only seen Lyonell and Mr. Benko together on two or three occasions, however, he observed a very good father and son relationship. He testified that Mr. Benko was very calm as a parent and Lyonell appeared to be having a lot of fun.

6.6 Witnesses during the Access Exchanges

[127] Two witnesses for the father and one witness for the mother gave evidence regarding the access exchanges at Hopedale Mall. The father's witnesses were Darius Tarkle, a close friend, and James Hardy, a process server for father's counsel, who agreed to do this at the request of Ms Stoner. Mr. Tarkle has been present for approximately seventy-five percent of the exchanges. Both witnesses described Lyonell as sometimes initially being tearful and going through typical separation anxiety at the exchange but then settling down very quickly and happily in his father's care. The witnesses described both parents as behaving in a formal and cordial manner during the exchange.

[128] Mr. Tarkle accompanies Mr. Benko and Lyonell in the car and has observed Mr. Benko parent Lyonell on several occasions. He described Mr. Benko as a great father and that Lyonell is a very happy child in his father's care, who loves his father. The only time that he sees Lyonell cry is during the access exchanges.

[129] Mr. Hardy observed the access occasions on three separate occasions. He confirmed Mr. Tarkle's observations, however also observed that on the second occasion he observed, there was no "grittiness", as he described it, or tears from Lyonell at all. The exchange was short, "not unpleasant, and cordial". Mr. Hardy attended on a third occasion to observe from distance without either parent's knowledge to ensure that there had been no "stage managing" for his benefit. He observed that Lyonell was absolutely fine during the exchange and the parties were cordial throughout.

[130] After these events, Mr. Hardy also testified that he ran into Ms Torok at court one day while he was filing court documents. He did not recognise her initially but Ms Torok approached and greeted him. According to Mr. Hardy, Ms Torok told him that she was at court to find out how she can control the access because "Lyonell is afraid of his father".

[131] The mother's witness, Mr. Robert Forrester, is a security and maintenance person at the Hopedale Mall. He testified that the mother first approached him to assist with the access exchange because she was very afraid. He observed the mother to be "very, very nervous" and that he has observed almost every pick up on Saturday morning since July of 2011, and some of the returns to the mother as well at the end of the day.

[132] Mr. Forrester observed that Lyonell would hold on tight to the mother, looked scared and "had fear in his eyes." He testified that Lyonell cried every time. He observed that the father would not say anything to the mother and just take Lyonell from her while Lyonell would be "locked onto his mother." Mr. Forrester testified that he was approximately ten feet away while observing this.

[133] In cross-examination, when it was pointed out to him that the access exchanges had been occurring at the supervised access centre between August 2011 and May of 2012, Mr. Forrester did not believe this and insisted that he had observed all of the exchange exchanges during that time period. He further acknowledged that neither parent spoke to each other during the access exchange except occasionally. He also testified that on the occasions he observed when Lyonell was being returned to his mother by his father, he also looked scared.

[134] Mr. Forrester testified that more recently, there have been a couple of occasions when Lyonell has not looked scared and he described one occasion when all five of them (the parents, Lyonell, Mr. Tarkle and Mr. Forrester) went for a coffee at Tim Horton's at the end of the visit to discuss Lyonell's hair cut. Mr. Forrester described Lyonell as being happy and jumping up and down on the seat while the adults talked. Mr. Benko spoke to both Lyonell and Ms Torok during this meeting.

[135] Mr. Forrester also acknowledged that the language in his sworn affidavit was much stronger than his words in the note that he prepared, or in his testimony at trial, as Ms Torok's lawyer typed it and helped him to write it.

6.7 Ms Camille Brown, Halton Children's Aid Society

[136] Ms Brown is a community based child protection worker with the Halton Children's Aid Society. She first became involved in May of 2012 when the society received a referral from a community professional working with the mother. According to the referral, the mother had reported concerning behaviour by Lyonell. Lyonell had stated, "don't beat me, don't beat me" to the mother in Hungarian, was very resistant to diaper changes, and was attempting to stab the mother with a plastic knife, as well as attempting to cut himself along his wrists.

[137] Ms Brown met with the mother and Lyonell on May 4, 2012. The mother advised her of the court proceedings, including the father's access, and appeared genuinely concerned that the child was being harmed in the father's care. The mother also reported that the father was refusing to consent to the involvement of R.O.C.K. (Reach Out Centre for Kids, a children's mental health and counselling centre).

[138] During the initial meeting with the mother and Lyonell, Ms Brown observed that Lyonell appeared to be very well cared for and to be very happy. She could not interview Lyonell at that time as the mother stated that he speaks Hungarian. Ms Brown arranged for an Hungarian interpreter to be present for her interview with Lyonell.

[139] Ms Brown and the Hungarian interpreter met with Lyonell on June 21, 2012. At that time, the mother and Lyonell had moved from Mr. Torok's residence to new accommodation. During that interview, Lyonell did not make any disclosures that would verify child protection concerns. As well, his language skills were limited and the interpreter did not think his Hungarian was very fluent. Lyonell was not speaking in full sentences and given his very young age, Ms Brown found it very difficult to interview him.

[140] After that, Ms Brown was not able to contact the mother as she was not aware that the mother had returned to Mr. Torok's home. When she was finally able to reach her in October of 2012, Ms Brown advised the mother that she would be closing her file. Ms Brown testified that the mother was very upset by this because she felt that the society had not adequately addressed the child protection concerns.

[141] Ms Brown then received a report approximately two weeks later from a medical professional. According to the report, the mother had called Telehealth because she was unable to wake up the child and believed that he had been drugged by the father. Lyonell was taken to the hospital where he was tested for drugs.

[142] Ms Brown spoke with Dr. Ansari, Lyonell's family doctor, and Nicole Redpenning, a counsellor with Healthy Babies, Healthy Families, working with Ms Torok. Both reported that the mother believed that the father was giving the child medication in order to deal with the son's behaviour and that the child was attempting to cut himself with a plastic knife. Ms Redpenning reported that the mother had expressed a number of concerns about the father's access to the child. According to Dr. Ansari, the child tested negative for the presence of "hard core drugs" and some other drugs, but there may be other drugs present that were not tested, so the results were inconclusive. Dr. Ansari had no previous concerns about Lyonell's health that would suggest that he had been medicated or drugged, nor had she received any previous reports about Lyonell being improperly medicated.

[143] In November of 2012, Ms Brown made an unannounced visit to the father's home on a Sunday. She mistakenly thought that Lyonell would still be there as she did not realise that Lyonell returned home on Saturday evening from visits with his father. Although unable to observe Lyonell in the father's care, Ms Brown testified that the father was very open and cooperative with her and invited her into his home and gave her a full tour. She observed that the home was very neat and tidy and she had no concerns about the state of the home.

[144] Ms Brown spoke to Mr.Benko about the child protection concerns. Mr. Benko knew nothing about the concerns as the mother had not raised them with him, although she did report in the communication journal that Lyonell had been to the hospital. Mr. Benko denied giving Lyonell any medication. When asked, the father also told Ms Brown that he had attended at R.O.C.K. to participate in counselling regarding Lyonell, however, he was advised that the agency does not get involved with 'high conflict' families. He showed Ms Brown the letter that he received from the agency confirming this. Ms Brown is also familiar with the agency's policy regarding high conflict families.

[145] Ms Brown testified that she did not verify any child protection concerns and that there was no evidence to support that Lyonell had been drugged or medicated by his father to control his behaviour. She testified that she will most likely be closing her file unless there is any new information.

[146] Ms Brown also testified that in her meetings with mother, Ms Torok played some tape recordings that she made of Lyonell crying during access transitions to his father. Ms Brown did not hear anything unusual or concerning about the recordings. She testified that she advised the mother that when there are access exchanges, it is not unusual for children to cry and that typically, they settle down quickly once in the other parent's care. She also tried to discourage the mother from making the tapes.

[147] Ms Brown testified that she was unaware that the parties were in the middle of a custody and access trial when she was conducting her investigation and that she was shocked when she found out. Ms Brown testified that the mother presented to her as very protective of Lyonell and that she appeared genuinely concerned that something is happening to Lyonell while he is in his father's care. According to Ms Brown, the mother really believes that Lyonell is afraid to visit with his father.

6.8 Mr. Mahash Prajapat, Office of the Children's Lawyer's Clinical Investigator

[148] Mr. Prajapat is a social worker and obtained his Master's degree in social work from the University of Toronto in 1989. He is currently the Director of Services for the Peel Children's Aid Society, and has worked for that agency in a number of different capacities for several years. Mr. Prajapat has been a panel member with the Office of the Children's Lawyer since 2002. In addition to conducting social work investigations and reports for the Children's Lawyer ("section 112 reports"), he also has conducted private custody and access assessments since 2004 ("section 30 assessments"). He has completed approximately one hundred and seventy five section 112 reports and approximately ten to fifteen private section 30 assessments.

[149] Mr. Prajapat was assigned this case on September 8, 2011. The report was due to be filed with the court by December 7, 2011, and was completed by Mr. Prajapat on December 14, 2011. There was a minor delay in waiting for police reports. A disclosure meeting with the parties and counsel to discuss the conclusions and recommendations occurred on December 2, 2011. The Report, dated December 14, 2011, was admitted as evidence at trial, pursuant to section 112 of the Courts of Justice Act.

[150] In conducting his investigation, Mr. Prajapat met with both parties twice, conducted one observational visit with each parent and the child, conducted six telephone interviews (three collaterals from each party), and reviewed the reports from the Halton Children's Aid Society, the Halton Regional Police, and Burlington Supervised Access Centre. Each of the meetings with the parties, and the observational visits were approximately one hour in length. In addition, Mr. Prajapat met with Alex Torok during the second meeting with Ms Torok.

[151] Mr. Prajapat found that Lyonell presents as a child who is meeting his developmental milestones and presented as comfortable and happy with both parents and with Alex Torok. He found that "all three caregivers displayed an understanding of Lyonell's needs and an ability to respond to him effectively".

[152] In his observation visit with Ms Torok and Lyonell, as well as Mr. Torok, Mr. Prajapat reported the following at page 6 of his Report:

"Throughout the visit, Ms. Torok consistently interacted with Lyonell. It was clear that she understood his moods, likes and dislikes and effectively met his needs. She frequently picked Lyonell up, held him, smiled and spoke to him in an encouraging tone and then returned him to his activity.

This writer was also able to observe Mr. Torok interact with Lyonell. Lyonell responded very well to Mr. Torok, recognizing him and seeking him out for comfort. Mr. Torok walked about the home with Lyonell, speaking to him in Hungarian. Lyonell appeared very comfortable in Mr. Torok's care, smiling and engaging in conversation."

[153] Mr. Prajapat observed the following during his observational visit with Mr. Benko:

"Lyonell was very active throughout the observation visit. Lyonell was again quite shy at first and not comfortable with this writer's presence. Lyonell remained very close to Mr. Benko, staying by his side and asking to be held. Mr. Benko held and spoke to Lyonell in a calm and comforting voice, using numerous toys to try to distract him.

Lyonell responded well to his father's care and after 10 minutes, he became comfortable, walking about the home, selecting toys and playing. Mr. Benko remained by Lyonell's side throughout the visit, getting on the floor to play with him and continually using his voice to interact with Lyonell.

Lyonell's mood was consistently positive, he laughed and often sought out Mr. Benko for physical affection and comfort. Lyonell often asked to be held or carried as well as asking Mr. Benko to retrieve certain toys. Mr. Benko responded effectively to Lyonell's needs. Lyonell showed no signs of stress or anger, as he did not cry, become upset or seem uncomfortable in this home. Lyonell's presentation in both homes was equally positive."

[154] In the "Discussion" portion of his Report, Mr. Prajapat makes the following findings at pages 13 and 14:

"This case presents some very difficult dynamics that must be addressed in order to protect Lyonell from emotional harm. Emotional harm is likely to result if Lyonell is not permitted to have a relationship with Mr. Benko free of the negative influence from Mr. and Mrs. Torok.

There are serious concerns about Ms. Torok's current situation and behaviour that must be identified and addressed. The primary concern is that she is caught in an emotionally and physically abusive relationship in which she is not permitted to make independent custody and access decisions. It is clear that decisions relating to Mr. Benko's time and access to Lyonell ware driven by Mr. Torok who has made it clear to this writer as well as other professionals that he believes that Mr. Benko is a man of poor character who should not be afforded any parenting rights to Lyonell. Ms. Torok has chosen to align herself with Mr. Torok and engage in a process of discrediting Mr. Benko as a father in order to limit his relationship with Lyonell. [Emphasis added].

There is considerable evidence to support this concern. First of all, Ms Torok has misled this writer throughout the assessment process. She has misrepresented the state in which Lyonell is returned to her and about how upset he is during transfers as the access centre which facilitates transfers identifies no serious concerns. She did not speak to this writer about Mr Torok's past abusive behaviour during this assessment. When this writer received the police reports and questioned Ms Torok, she minimized the seriousness of the assault and Mr. Torok's pattern of violence. Instead, she described Mr. Benko as violent and unpredictable, allegations that are not supported by evidence. She has engaged her friends to provide information about Mr. Benko that is based on speculation and exagerated allegations about his character and harm he may cause to Lyonell. [Emphasis added.]

Of concern is that Ms. Torok has minimal insight into how her behaviour will eventually negatively impact Lyonell and permanently sever a relationship with Mr. Benko. This is likely to cause Lyonell emotional harm and a missed opportunity to have a relationship with a father who presents as loving, caring and well intentioned. Instead she believes that the role of father can and should be filled by Mr. Torok, an individual who has a documented history of abuse and violence and who continues to exert his influence to control Ms. Torok …[Emphasis added.]

Mr. Benko presents with integrity throughout the assessment process . He identifies his concerns factually without discrediting Ms. Torok as a mother. His biggest challenge is one of experience. He has not had the opportunity to spend significant time as a parent and he has no previous children. It will be important to allow Mr. Benko the opportunity to build his parenting skills through a graduated schedule of increased access and opportunities to learn through resources and support. Given concerns related to Ms. Torok's struggles to support the father-son relationship and the fact that Mr. Benko's presents as a strong parent, access should increase until there is an equal sharing of time. [Emphasis added.]

Within an environment void of domestic violence, adult conflict and emotional and financial stressors, Ms. Torok displays the capacity to attend to Lyonell's needs. However, evidence suggests that the above identified stressors and the negative influence of Mr. Torok, negatively impacts her ability to attend to Lyonell's longer term emotional needs. Mr. Torok appears unable to recognize Lyonell's needs to have a healthy relationship with Mr. Benko…

It is important to stress the concern for Lyonell's emotional health and wellbeing should the current situation and dynamics between Mr. and Ms. Torok and Mr. Benko continue. Lyonell currently has a very strong bond with Ms. Torok and it will be important to allow Lyonell to continue to experience the benefits of safety and security from this bond. Ms. Torok should be acknowledged for the efforts she has placed on Lyonell's grown and development. However, Ms. Torok must make the necessary changes to avoid projecting her negative attributes of Mr. Benko onto Lyonell and allow Lyonell to enjoy a relationship with Mr. Benko. If she is unable, it will be important to hold her accountable and consider a change in custody to protect Lyonell from unnecessary harm."

[155] As a result of these findings, Mr. Prajapat recommended the week about equal residential schedule, with one mid-week access visit to the non-residential parent for a period of four hours during the residential parent's week with the child. He also recommended that the mother undergo counselling for domestic violence. He made no recommendation regarding custody.

[156] Mr. Prajapat testified at trial, as he observed in his report, that Lyonell has a very strong bond with his mother and reiterated at trial his conclusion that it is important to "allow Lyonell to continue to experience the benefits of safety and security from this bond." When asked by the court how that would be possible in the alternating week residential schedule that he recommended, Mr. Prajapat frankly acknowledged that he had a long discussion and a debate with his clinical supervisor about this. He testified that a week about residential schedule was a way of overcoming the risk of emotional harm to Lyonell as a result of Mr. and Ms Torok's position regarding his relationship with his father. In weighing that risk against the impact of being away from his mother for a week, Mr. Prajapat concluded that the priority was protecting Lyonell from the emotional harm of losing a relationship with his father.

[157] However, Mr. Prajapat went on to say that he was not tied to those recommendations and that "there are many recommendations that can get us to the outcome that we want, which is a more meaningful relationship with father." In his view, "the spirit of the recommendations is that we have to move to an arrangement that allows Zoltan [Mr. Benko] to have a more meaningful relationship with Lyonell in which there is not interference by Judith and Alex [Ms and Mr. Torok]".

[158] In declining to make a recommendation regarding custody Mr. Prajapat testified that this was the first time in one hundred and fifty assessments that he had not made a recommendation for custody. In his view, sole custody to the mother was problematic given that she is not committed to promoting a relationship between Lyonell and his father, however sole custody to the father was also problematic given the father's limited parenting experience and very little time with Lyonell. Regarding joint custody, Mr. Prajapat did not believe that the parties were in a position at that time to make joint decisions given that "there's a tremendous amount of suspicion, hostility and anger" on both parts and they do not communicate. In the absence of testing the parents' ability to share more time with Lyonell between them, it was premature to make a custody recommendation at this time and recommended that the issue of custody be revisited in six months.

[159] During his cross-examination, Mr. Prajapat explained that he was very concerned about what he perceived as a seriously abusive relationship between Ms Torok and Alex Torok. In his view, Mr. Benko's concerns about the risk that Mr Torok presents to Lyonell and the history of his assaultive behaviour and domestic violence towards Ms Torok were valid. He viewed the assault that occurred in 2008 as very serious and presented as "a high risk situation" to Ms Torok.

7. The Law

[160] The governing legislation is the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended. Section 20(1) of that Act states the following: "Except as otherwise provided in this part, the father and the mother of a child are equally entitled to custody of the child."

[161] Section 24(1) of the Act provides that the merits of an application regarding custody shall be determined on the best interests of the child. Subsection 24(2) sets out the criteria to be considered when determining the best interests of the child as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

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

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

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

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

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

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

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

(e) any plans proposed for the child's care and upbringing;

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

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

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

[162] Subsection 24(3) provides that the past conduct of a person is not relevant to a determination of custody unless the conduct is relevant to the ability of the person to act as a parent. Subsection 24 (4) provides that in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

Joint Custody vs Sole Custody

[163] The case law is clear that joint custody should only be considered where both parents are fit custodial parents and have strong claims to custody, having regard to the factors set out under the Children's Law Reform Act in custody disputes. This is a threshold issue that must be determined before considering whether or not the parents are capable of effective communication and cooperation or that joint custody is appropriate. The leading case is the Ontario Court of Appeal's decision in Kaplanis v. Kaplanis, 2005 ONCA 275. In that case, the Court set out the following factors:

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

2. Joint custody cannot be ordered in the hope that it will improve the communication between the parents;

3. Even if both parents are fit custodial parents, this does not necessarily mean that joint custody should be ordered;

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

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

6. The younger the child, the more important communication between the parents."

[164] In Kaplanis v. Kaplanis, supra, the Ontario Court of Appeal found that there was no history of co-operative parenting or effective communication between the parents. Rather the court found there was evidence to the contrary on these points. Accordingly, the court held that the trial judge erred in ordering joint custody and granted sole custody of the child to the mother who had been the child's primary caregiver.

[165] However, in Ladisa v. Ladisa, released at the same time as Kaplanis v. Kaplanis, supra, the Ontario Court of Appeal did not interfere with the joint custody order made at trial, applying the same legal principles that the court articulated in Kaplanis. In that case, despite the intense conflict between the parents, in emergencies and when the parents had an opportunity to consider the real interests of their children, they behaved appropriately. They co-existed at the doctor, at school functions and activities. Those circumstances supported a joint custody order.

[166] In Habel v. Hagerdon, Justice Margaret A. McSorley summarizes the principles developed in Kaplanis, supra, and Ladisa, supra, as follows:

"Although the Court of Appeal reached different conclusions on whether the trial judge erred in ordering joint custody and shared parenting in Kaplanis v. Kaplanis and Ladisa v. Ladisa, the court applied the same legal analysis. Several important guidelines can be taken from Appeals Justices Karen M. Weiler's reasons in Kaplanis v. Kaplanis and Ladisa v. Ladisa. They are as follows:

(a) there is no default position in favour of joint custody in Ontario;

(b) each case is fact-based and discretion-driven;

(c) past parenting experience, both during cohabitation and after separation, is of critical importance to a court's decision whether to order shared parenting in any form;

(d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;

(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate."

[167] However, the Court of Appeal has also upheld joint custody or 'a parallel parenting order' in the absence of reasonably effective communication between the parents where it has been necessary to protect a parental relationship. In Andrade v. Kennelly, 2007 ONCA 898, the Court of Appeal upheld a joint custody order where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children.

[168] The Ontario Court of Appeal also stated the following in Ursic v. Ursic, at para. 26:

"Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child's life, yet have difficulty communicating or reaching a consensus on the child's upbringing. See T.J.M. v. P.G.M. (2002), , 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it."

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

7. Analysis and Findings

7.1 Preliminary Issue: Father's Request to amend his Pleadings and Position after the Completion of Evidence

[170] At the start of closing arguments, father's counsel sought to amend his position and pleadings to seek sole custody, given what he submitted was the mother's bizarre and unsubstantiated allegations against him during the trial and his concern about the mother's poor parenting decisions, in particular her view that Lyonell should be home schooled by her until grade one. The mother, through counsel, vigorously objected.

[171] It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. See Rodaro v. Royal Bank of Canada. Mr. Benko did not persuade the court that it should exercise its discretion to make an order for sole custody notwithstanding his failure to plead it or to advance this position at the beginning of trial.

[172] Further, it would be very unfair to permit the father to amend his position regarding custody after the completion of seven days of evidence. The father's opening statement made it clear that he was seeking joint custody and an equal residential schedule, not sole custody. Mother's counsel conducted his entire examination and cross-examination of all witnesses on the basis that the father was seeking joint custody.

[173] Even if I were to permit the father to amend his position, I do not find that it is in Lyonell's best interests that the father have sole custody at this time, based on the evidence that I heard at trial. For the reasons that follow, I conclude that a joint custody order with a specified access regime is in Lyonell's best interests.

7.2 Conclusions Regarding Evidence

[174] This court had concerns with the credibility and reliability of both parties' evidence in this trial and the findings of fact relied upon by the clinical investigator in formulating his recommendations. The court also had concerns about the reliability of Alex Torok's evidence on some issues, given the important role he has played in Lyonell's life.

[175] Mr. Benko's evidence regarding the demise of the parties' relationship and the lack of communication during Ms Torok's pregnancy was not credible. I find that he chose not to communicate with her or support her throughout the pregnancy and he concedes that it was Ms Torok who initiated contact after Lyonell's birth to arrange visits. She agreed not to commence custody proceedings and meet with Mr. Benko in an attempt to work things out and to arrange for visits each week at her home or elsewhere.

[176] Mr. Benko's decision to then commence an application for custody when Lyonell was only eight weeks old and still breastfeeding, alleging that he would be at serious risk of harm in Ms Torok's care unfortunately set the tone for this case at the outset and no doubt led to a great deal of the mistrust and hostility that developed. Mr. Benko made very serious allegations about Alex Torok in his court application and at trial. These allegations have not been proven at trial. Mr. Benko's continued assertion in this trial that he could not exercise the access that was proposed by Ms Torok at the outset because he "would not be alive today" has no basis in reality. In my view, the access proposed and offered by Ms Torok at the time (for a nursing infant) was not unreasonable.

[177] Mr. Benko has a very low opinion of Mr. Torok, based on his evidence at trial, and continues to describe him as a "violent alcoholic." Mr. Benko's view is not supported by the evidence and fails to recognise the undisputed evidence that Ms and Mr. Torok have provided a stable and loving environment for Lyonell and that Mr. Torok's care of Lyonell is positive. The allegations about Mr. Torok in Mr. Benko's initial application for custody are frankly untrue.

[178] Mr. Torok has not initiated any contact with Mr. Benko since 2008. He has never been violent towards him, and he has never threatened him, either directly or indirectly. Other than the 2008 criminal conviction for assaulting Ms. Torok immediately after their separation, to which he pleaded guilty at the first opportunity, he has no criminal record or history of violence towards anyone. There is no other evidence or history of violence towards Ms Torok. This was not disputed by Mr. Benko. Mr. Benko's evidence that Mr. Torok attempted to murder Ms Torok and would likely have killed him if he exercised access to Lyonell in his home was greatly exaggerated and not credible or reliable.

[179] Regarding the nature of his relationship with Ms Torok, Alex Torok presented in a straightforward, credible and forthright manner at trial. His description of the assault that occurred on 2008 and his reaction to the separation between he and Ms Torok was credible. He was clearly devastated by Ms Torok's departure in 2008 and the assault, although inexcusable, appeared to be an isolated event that was situational arising from the crisis of the separation, and not demonstrative of a long standing pattern or history of violence and abuse.

[180] Mr. Torok received a conditional discharge and spoke frankly of the steps he took to address his issues after he pled guilty to the assault, including the counselling in which he participated. He expressed remorse and accepted responsibility. He has not been involved in this litigation, other than being called as a witness at trial. He did not wish to be added as a party or attend court and he has not attended at any access visits. He has not interfered with the court ordered access.

[181] It was also clear from Mr. Torok's evidence that he still loves Ms Torok and that he loves Lyonell like a father. He has taken on an active parenting role in Lyonell's life. Mr. Torok is to be commended for the love and support that he has provided Ms Torok and Lyonell.

[182] However, on the issue of Mr. Benko's access to Lyonell, Mr. Torok's evidence was not reliable or credible. Unfortunately, Mr. Torok has a very low opinion of Mr. Benko for what he views as his abandonment of Ms Torok and Lyonell during the pregnancy and birth, and for no doubt his view of the role he played in the break-up of his marriage. This has clearly influenced his view of what, if any, access Lyonell should have with his father.

[183] Mr. Torok's view that Mr. Benko is harming Lyonell during his access is very concerning to the court. All of the evidence at trial indicates that Mr. Benko sincerely loves his son and is committed to being a devoted and good father to him. There is no evidence to suggest that he is not capable of being a great and fully involved parent to Lyonell.

[184] Mr. Torok's view that Mr. Benko's access to Lyonell should be suspended and that Lyonell "needs a break" from seeing his father is clearly contrary to Lyonell's best interests. I find that Mr. Benko is a good and loving father to Lyonell.

[185] With the exceptions of the findings that I make below, Ms Torok is also a good and loving mother to Lyonell. She is meeting all of his physical, emotional and material needs, and she has done so since his birth as his primary caregiver. It is also not disputed that Lyonell has a close and loving bond with his mother.

[186] However, notwithstanding the above, the fundamental and most serious concern about Ms Torok's parenting of Lyonell is that, to use her own words, she sees "no positive value" in Mr. Benko's role as a father to Lyonell.

[187] Ms Torok made extremely serious allegations about Mr. Benko that are completely unsubstantiated by the evidence. She continues to believe that Mr. Benko is causing Lyonell harm while caring for him, that he is possibly drugging him during his access to control his behaviour, that he may be abusing him as a result of what she describes as his "untreated paranoid schizophrenia", and that Lyonell continues to be traumatized by access visits with his father.

[188] In listening carefully to Ms Torok's evidence at trial, I find that Ms Torok appears to sincerely believe what she is saying about Mr. Benko, despite there being absolutely no evidence to support any of these very serious allegations. It is greatly concerning to the court that Ms Torok believes that Mr. Benko is actually harming Lyonell. None of the independent collateral witnesses, including Mr. Prajapat, Camille Brown, Maryanne Duncan, and the supervisors at the supervised access centre expressed any concerns about Mr. Benko's parenting. Mr. Prajapat observed a loving and affectionate relationship between Lyonell and his father, as did several supervisors at the supervised access centre. Indeed, Ms Torok acknowledged that she has never actually seen Mr. Benko parent Lyonell, except shortly after his birth.

[189] There is no doubt, in my view, that Ms Torok's unfounded anxiety and fear about the access between Lyonell and his father is being relayed to Lyonell, both unconsciously and consciously. Camille Brown observed that Ms Torok presented as very protective towards Lyonell. I find that if Lyonell is experiencing anxiety and fear at the access exchanges, it is not because he is afraid to go his father. Lyonell is upset and anxious before and after the access visits because of the conflict and tension between the parties (and Alex Torok) and the heightened anxiety and fear of his own mother in releasing him to Mr. Benko.

[190] As a result of these findings, I am very concerned that an order for sole custody to Ms Torok will allow her to significantly undermine the importance of Mr. Benko's role as a father in Lyonell's life, given her disturbing and unsubstantiated view of him. An order for sole custody in the mother's favour will limit Mr. Benko's ability to be involved in decisions affecting Lyonell's life. I am also concerned about some of the decisions that Ms Torok will make, particularly around education. In my view, it is not in Lyonell's best interests to be home-schooled by his mother until grade one. Lyonell is an only child and he should be starting junior kindergarten in 2014 so that he can socialize with other children and improve his English, particularly given that Hungarian is spoken at home. However, he should attend a public school in Ms Torok's catchment area.

[191] As well, an order for sole custody in Mr. Benko's favour is not in Lyonell's best interests at this time. Mr. Benko's parenting of Lyonell has very been limited. He only spends nine hours each week with Lyonell. Lyonell is now almost three years old and has been raised by his mother since birth in the same home with Alex Torok, where, by all accounts, Lyonell is thriving and developing into a healthy, happy and bright little boy. It would be unnecessarily disruptive and detrimental to Lyonell's interests to significantly alter his living and residential arrangements by granting sole custody to the father.

[192] I agree that there is evidence of poor communication and mistrust between the parties, however, there is also some evidence of the parties' ability to communicate. Certainly, prior to these proceedings being commenced, the parties were able to communicate around access arrangements and Ms Torok facilitated access between Lyonell and Mr. Benko. Further, despite the tension and difficulties of the present access order, there have been occasions, when the parties have been able to sit down and talk to each other at the Hopedale Mall. The parties have also been able to consent to some orders for access such as the orders for Christmas access.

[193] In order to assist in facilitating a joint custody order, I will include as many provisions as practicable that will eliminate the need for the parties to make joint decisions about Lyonell's health, education and welfare at this time in his life. It is hoped that this will minimize the ongoing conflict while at the same time allowing both parents to play an important and valuable role in Lyonell's life.

7.3 The Equal Residential 'Week About' Parenting Plan recommended by the Clinical Investigator

[194] In considering all of the evidence in this lengthy trial, and in particular the evidence of Mr. Prajapat, the clinical social worker, I find that the week-about residential schedule recommended is not in Lyonell's best interests at this time.

[195] Although Mr. Prajapat was a thoughtful and articulate witness, the underlying premise of Mr. Prajapat's recommendation is that the only way to protect the father's relationship with Lyonell is to implement a week-about residential plan. Mr. Prajapat frankly conceded in his cross-examination that he had a lengthy discussion and debate with his supervisor about balancing the emotional harm to Lyonell in not developing an attachment to his father versus the effect of the week about arrangement on Lyonell's attachment to his mother and he came down on the side of protecting his attachment to his father.

[196] In my view, this approach is not child-focused, particularly when we are dealing with a very young child who is strongly attached to his primary caregiver. Lyonell was only sixteen months old when Mr. Prajapat made this recommendation. He had just started spending nine hours each week with his father after a lengthy period of supervised access. Prajapat acknowledged that the length of time that Lyonell would be away away from his mother under his proposed regime would cause a disruption to Lyonell's attachment to her.

[197] Mr. Prapjapt also acknowledged in his cross-examination that there are other ways to protect Lyonell's relationship with his father while protecting the child's bond and attachment with his mother. He conceded that he was not "tied" to these recommendations and suggested other methods to promote a meaningful relationship between Lyonell and his father without disrupting Lyonell's attachment to his mother, such as regular and frequent access intervals, including overnight access.

[198] The week-about arrangement is also not practical given that Mr. Benko is working full time and Ms Torok is a stay at home mother. Mr. Benko acknowledged in cross-examination that a day-care will not permit Lyonell to attend on alternate weeks only. This court cannot order Ms Torok back to work (nor should it) to guarantee a daycare space for Mr. Benko during his residential week with Lyonell. There is no reason why a liberal and generous specified access schedule that is strictly enforced could not ensure that Lyonell develops and sustains a meaningful relationship with his father.

[199] I say this because notwithstanding Ms Torok's very negative view of Mr. Benko's role as a parent in Lyonell's life, to her credit, she has complied with all of the orders for access in this proceeding. I disagree with the submissions of Ms Stoner that she had somehow breached or obstructed the access orders that have been made and I reject Mr. Benko's evidence that Ms Torok has "denied his access". Despite her resistance, the evidence at trial demonstrates that she has consistently respected the court orders that were made, even though she did not consent to the orders or agree with him. It is also clear from his evidence that Alex Torok understands the need to respect court orders.

[200] In my view, Mr. Prajapat's recommendation for the 'week-about' schedule was influenced by his factual findings that the mother and child are living in an environment of domestic violence and emotional and physical abuse perpetrated by Alex Torok.

[201] Mr. Prajapat testified that Ms Torok's current abusive relationship with Mr. Torok is having an impact on her position about how much access Lyonell and Mr. Benko should have. It was his position that Mr Torok is clearly controlling and influencing Ms Torok's decisions about access. When asked what indicated to him that Mr. Torok was controlling Ms Torok, Mr. Prajapat responded that "the clinical information that we have about domestic violence makes us turn our minds to the impact that the issue of power, control have on women that are in emotionally abusive relationships."

[202] Mr. Prajapat accepted the statements made about by Mr. Benko about Alex Torok at face value and believed that the police occurrence reports that he reviewed regarding the 2008 assault corroborated Mr. Benko's statements about Mr. Torok. Police occurrence reports are not evidence, and the court cannot rely upon these reports for findings of fact as they are clearly hearsay. Further, as I have previously found, Mr. Benko testimony regarding Mr. Torok's violent and abusive nature was not credible and greatly exaggerated.

[203] Mr. Prajapat concluded that he had been "misled" by Ms Torok after he read the police occurrence reports regarding the 2008, which he only received on November 29, 2011, near the end of his investigation. Given that Mr. Prajapat's met with the parties and counsel to report his findings and recommendations two days later on December 2, 2011, he could not have questioned Ms Torok about the details of the police occurrence reports, as his interview with her occurred at the very beginning of his investigation.

[204] Further, in her evidence at trial, Ms Torok described the 2008 assault as an isolated incident after the separation and that both she and Mr. Torok had moved well beyond that in their relationship. Mr. Prajapat believed that Ms Torok had misled him because she did not disclose to him the seriousness of the assault in 2008, something that had occurred three years prior to his investigation and which she no longer viewed as serious, given the current status of the parties' relationship.

[205] Mr. Prajapat's view of Mr. Torok was based on one thirty minute observational meeting. Mr. Torok expressed a very low opinion of Mr. Benko during that interview. Mr. Prajapat did not question him about any of the very serious allegations made by Mr. Benko about him, nor did he question him about the information he read in the police reports, which he had not received at the time of his interview with him.

[206] Mr. Prajapat disagreed with the investigation and conclusion of the Halton Children's Aid Society that did not verify any child protection concerns reported by Mr. Benko about alleged violence in the Torok home, after interviewing all of the parties including Mr. Torok on a number of occasions. Mr. Prajapat testified that he would have verified this as well as the ongoing conflict as a child protection concern "in a heartbeat." It is uncertain what this would have been based on, except for Mr. Benko statements to him and the police occurrence reports. He appeared to have ignored the fact that Mr. Torok received a conditional discharge.

[207] Mr. Prajapat acknowledged that he did not follow up or investigate any mental health concerns about Mr. Benko, nor did he appear to be aware that any had been raised prior to receiving Ms Torok's notice of dispute of his recommendations. However, he states that Ms Torok never raised any mental health concerns during his two meetings with her. Mr. Prajapat could not recall if had read the court documents and in particular, the 2004 and 2005 medical reports from Halton Healthcare Services and Oakville Trafalgar Hospital which diagnosed the father with depression, anxiety, and possible adjustment disorder. He frankly conceded that in hindsight, if he were to do the investigation again, then he may have followed up with Mr. Benko's family physician regarding any ongoing mental health concerns.

[208] In contrast, Mr. Prajapat clearly recalled Mr. Benko raising mental health concerns about Mr. Torok, as he states at page 5 in his report, "Mr. Benko states that Mr. Torok has violently assaulted Ms Torok in the past and there is clear evidence in the Halton police records. He also states that Mr. Torok has serious mental health issues." According to Mr. Prajapat, this was also noted in a police occurrence report (no author) which he recalled reading regarding the 2008 assault, in which Mr. Torok is described as an "emotionally disturbed person." Given that his wife had just left him to live with someone that he viewed as a friend, it is not surprising that he was emotionally disturbed at that time. Mr. Benko's own witness, John Bako, provided the court with the most accurate and reliable context in which to view Mr. Torok's emotional reactions at that time. Mr. Bako's evidence was fair and credible.

[209] Mr. Prajapat demonstrated a clear bias in favour of Mr. Benko in his report. To suggest that Mr. Benko presented with "integrity" and that Ms Torok "misled" him is unfair.

[210] I do not find that Mr. Torok is controlling Ms Torok's decisions about access. If that were the case, then she would also have taken the position at trial that Mr. Benko's access should be suspended (Mr. Torok's position). She did not agree with this position and she has abided by all of the court orders for access in these proceedings.

[211] Although I do not find that Ms Torok is being controlled or abused by Alex Torok, she is clearly influenced by him, as he is influenced by her. Ms Torok is also financially dependent upon Mr. Torok, who has provided a very good home and financial support to both she and Lyonell since Lyonell's birth. It was apparent from listening to their evidence, that they both erroneously, believe that Mr. Benko's access to Lyonell is harmful to him. In my view, based on my observations at trial, Mr. and Ms Torok present and act like a family unit and appear to want Mr. Torok to replace Mr. Benko as Lyonell's father.

[212] Notwithstanding my concerns with the methodology and flawed assumptions behind Mr. Prajapat's report, I agree with his observation that the relationship between Lyonell's three caregivers presents some very difficult dynamics in this case. I also agree with Mr. Prajapat's conclusion that the "spirit of Ms Torok's position [as is Mr. Torok's] is that Mr. Benko presents a risk to Lyonell," notwithstanding that there is no evidence to support this.

[213] Ms. and Mr. Torok need to understand that Lyonell deserves and is entitled to a relationship with his biological father and they need to encourage that relationship. Lyonell deserves a relationship with both of his parents. Mr. Benko also needs to readjust his distorted view of Mr. Torok and acknowledge that he has provided love, affection and financial support to Lyonell.

[214] Lyonell is very fortunate to have three loving adults and caregivers in his life. The parties and Mr. Torok need to set aside their differences, despite their difficult and complicated history, and work together in Lyonell's best interests.

[215] Lyonell will be three years old in August of this year. Mr. Benko has been consistently exercising weekly unsupervised access for almost one year without incident. Lyonell's interaction with his father during his access visits is very positive, according to all of the witnesses who have directly observed recent access visits. Lyonell is comfortable with his father and seeks him out to be comforted during his time with him. There is no reason why overnight access cannot commence as soon as possible at this time. The law is clear that a child should have maximum contact with both parents if it is consistent with the child's best interests. See Gordon v. Goertz.

7.4 Mr. Benko's Request to for an Order Changing Lyonell's Name

[216] Mr. Benko requests that I make an order changing Lyonell's name from Lyonell Alex Torok to 'Christopher Lyonell Benko', or to 'Christopher Lyonell Benko-Somogyi (the last name being Ms Torok's maiden name.)

[217] The Ontario Court of Justice does not have jurisdiction to make this order. There is no statutory authority to make an order compelling the Registrar General to change a child's name under the Vital Statistics Act, R.S.O 1990, c. V.4, as amended, and this court does not have parens patriae jurisdiction. In all of the cases where this order has been made, the application was commenced in the Superior Court of Justice and the court has made the order changing a child's name using its parens patriae jurisdiction. See Gallant v. Lewis, Ryan v. Scott, 2011 ONSC 3277.

[218] However, Mr. Benko can apply to change Lyonell's name under the Change of Name Act, R.S.O. 1990, c. C.7, the relevant sections which provide as follows:

" 5. (1) A person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or

(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made,

may apply to the Registrar General in accordance with section 6 to change the child's forename or surname or both, unless a court order or separation agreement prohibits the change. R.S.O. 1990, c. C.7, s. 5 (1) .

(2) The application under subsection (1) requires the written consent of,

(a) any other person with lawful custody of the child;

(b) any person whose consent is necessary in accordance with a court order or separation agreement; and

(c) the child, if the child is twelve years of age or older. R.S.O. 1990, c. C.7, s. 5 (2) .

Application to dispense with consent

(4) If the required consent cannot be obtained or is refused, the person seeking to change the child's name may apply to the court for an order dispensing with that consent. R.S.O. 1990, c. C.7, s. 5 (4) ."

[219] If Mr. Benko applies to change Lyonell's name after he is granted joint custody, and Ms Torok refuses to provide her consent, then he is granted leave to bring an application before this court to dispense with Ms Torok's consent in accordance with section 5(4) of the Change of Name Act. This is another factor, although not determinative, in the decision to grant joint custody.

[220] The over-arching test is always what is in Lyonell's best interests. Lyonell's mother's last name is Torok and Lyonell should continue to have that name. Further, Alex Torok has played an important caregiving role in Lyonell's life. Mr. Benko has a close relationship with Lyonell, and as his father, it is in Lyonell's best interests to have his father's name as well, particularly given the findings that I have made in this case. Given Lyonell's age, it is in his best interests to have the name 'Lyonell Alex Benko-Torok', should Mr. Benko decide to bring a change of name application.

Conclusion

[221] In conclusion, I make the following final order:

1. The parties shall have joint custody of the child with the child's primary residence being with the mother.

2. The father shall have access to Lyonell as follows:

a. Commencing on Saturday June 15, 2013, from 9:00 a.m. to 6 p.m. to be increased as follows: the following Saturday, June 22, 2013, from 9:00 a.m. to Sunday at 6:00 p.m., then, commencing Friday, July 5, 2013, from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and every second weekend thereafter;

b. Commencing Tuesday, June 25, 2013, every Tuesday from 6:00 p.m. to Wednesday morning at 8:30 a.m.;

c. Commencing Thursday, June 27, 2013, every Thursday from 6:00 p.m. to 8:00 p.m.

3. All access exchanges to occur at the Hopedale Mall, unless the parties agree otherwise.

4. Once Lyonell starts junior kindergarten and/or day-care, then the father shall pick the child up from school or day-care, if possible, and return to school or day-care the next morning on those days that the child is at his home overnight.

5. The mother shall advise the father in writing of all third parties involved in the child's life including doctors, dentists, counsellors, public health nurses, and he shall have full access to information regarding the child as the joint custodial parent. Both parents may each make inquiries and be given information by the child's teachers, school, day-care provider, if any, doctors, dentists, counsellors or any others involved with the child.

6. The mother and father will try to agree on major decisions concerning Lyonell.

7. If the parents are unable to agree on major decisions relating to Lyonell's education, then the mother's decision shall prevail, subject to paragraph 7 below.

8. The child shall be registered for junior kindergarten at a school in the mother's residential area as soon as he is eligible to do so, and no later than September of 2014. He will not be home schooled. The child shall attend school in the mother's residential catchment area. When the mother returns to work, the child shall be enrolled in a day-care in the mother's residential area, in consultation with the father. If the parties cannot agree upon a day-care, then the mother's decision shall prevail.

9. If the parents are unable to agree on major decisions relating to Lyonell's medical care and treatment, then the father's decision shall prevail, subject to paragraph 9 below.

10. Lyonell shall continue to use his current doctor for his annual check-ups and non-emergency care. In the event of an emergency, the party who takes the child for treatment shall immediately notify the other party of the nature of the emergency and the treatment. This shall be done as soon as possible when the emergency occurs so that if possible, both parents may attend.

11. The mother is to deliver a copy of Lyonell's immunization card to the father within ten days and Lyonell's health card shall travel back and forth between the parents.

12. Each parent is to keep the other parent advised of all medical interventions, school events and extra-curricular activities.

13. Neither parent will arrange activities for Lyonell during times when Lyonell is with the other parent, without first obtaining the other parent's consent prior to making the arrangement. If agreed, each parent will ensure that Lyonell attends and actively participates in that activity while he is with that parent.

14. Both parents and step parents, including Alex Torok, are entitled to attend school events, and other special events, such as music recitals, plays, important sporting events, award ceremonies etc.

15. The parents will communicate with each other by e-mail, if unable to do so in person or over the telephone. They will also use a communication notebook that shall travel between the parents with the child to apprise each parent of any other issues arising while the child is in their care, such as doctor or dentist appointments, diet, homework once the child is in school, and any other child related issue. It shall not be used to make derogatory comments about each other.

16. Neither party shall remove the child from Ontario without the prior written consent of the other parent, such consent shall not be arbitrarily withheld, or further order of the court.

17. The mother shall not move the child's permanent residence further than twenty-five kilometres from her current residence without the father's written consent or further order of the court.

18. The father and mother shall share holidays with Lyonell as follows and this schedule will override the father's regular access schedule:

a. School March Break: once Lyonell starts school, he shall reside with the father on odd-numbered years and with the mother on even-numbered years, from 6:00 p.m. on the Friday the school spring break starts until 6:00 p.m. on the day before his return to school following the break.

b. Mother's Day: if Lyonell is not otherwise with his mother on this weekend, Lyonell will be with the mother on Mother's Day between 10 a.m. for the balance of the day.

c. Father's Day: if Lyonell is not otherwise with his father on this weekend, Lyonell will be with the father on Father's Day from 10:00 a.m. to 6:00 p.m.

d. Summer Vacation: commencing the summer of 2014, Lyonell will reside with his father for two non-consecutive weeks (5 days for each week) during the summer every year. One week will be in July and one week will be in August. The father will advise the mother by June 1st of his holiday dates. Once Lyonell reaches the age of six years, each week will be extended to seven days. In making plans, each parent shall take into account any camp or other scheduled activities that the child may be enrolled in as he gets older.

e. Thanksgiving: in odd-numbered years, Lyonell will spend the Thanksgiving Monday with his mother from 10:00 a.m. onwards and in even-numbered years, Lyonell will spend the Thanksgiving Monday with his father from 10:00 a.m.to 7:00 p.m.

f. Christmas: commencing 2013, Lyonell shall spend five days over the Christmas holidays with his father, commencing Christmas Day at 3:00 p.m. to December 29, 2013 at 3:00 p.m. Once Lyonell starts school, in even-numbered years, starting in 2014, the mother shall have the child with her during the winter school break from December 24th at 3:00 p.m. until December 30th at 3:00 p.m., and the father shall have the child with him for the balance of the winter school break. In odd-numbered years, starting in 2015, this schedule shall be reversed.

19. Neither party nor their respective families shall use physical discipline when disciplining Lyonell.

20. The custody and access provisions set out above shall be enforced by Halton Police Services, the Ontario Provincial Police, the R.C.M.P., and any other police services in the jurisdiction where the child is located.

[222] If the parties are unable to resolve the issue of costs, they may make written submissions to the court. The applicant's submissions are to be served and filed no later than July 30, 2013 and the respondent's submissions are to be served and filed by August 30, 2013.

Released: June 14, 2013

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] See Justice Zisman's reasons in Benko v. Torok, 2012 ONCJ 152 at paragraph 58.

[2] I note that throughout Mr. Prajapat's testimony, he consistently and mistakenly referred to his report as an "assessment". There is a significant difference between an O.C.L. report under section 112 of the Courts of Justice Act and an assessment under section 30 of the Children's Law Reform Act. An O.C.L. report is more in the nature of a fact-finding mission rather than the clinical nature of a section 30 assessment, which is usually more comprehensive. Richardson v. Gardner, (1995) 11 R.F.L. (4th).