ONTARIO COURT OF JUSTICE

DATE: June 26, 2014

COURT FILE No.: Brampton 1220/10

BETWEEN:

VICTOR REGO

Applicant

— AND —

CLAUDIA SANTOS

Respondent

Before: Justice P.W. Dunn

Heard: February 3, 4, 5, 6, 7, 11, 12, 2014, and April 28, 29 and 30, 2014, and May 1, 2, 5, 6, and 7, 2014

Reasons for Judgment released on: June 26, 2014

Counsel:

• Laughlin Campbell, Esq. for the applicant
• Claudia Santos on her own behalf

DUNN J.:

[1] Preliminary Remarks

At the outset, I apologize to the parties if I misrepresented a date or an event. There was a farrago of happenings for which there was often serious disagreement between the parties. The history of the case traversed four years, and many conflicting perceptions arose during that time. Doubtlessly, one or both parties may believe I left out of consideration an occurrence, or did not give enough weight to a circumstance. I regret that a party could feel that way, but I had to pick and choose what was considered relevant to the issues, I believe I have done so.

Findings of Fact

[2] The Parties and the Child

Victor Rego, 42, was the Applicant, and Claudia Santos, 43, the Respondent. Their child is Sophia Franco dos Santos Rego, also known as Sophia Franco dos Santos, born 16 March 2010. ("Sophia", now 4 years old)

[3] The Applicant's Claims

The Applicant requested orders for sole custody, for the Respondent to have access under conditions to be determined, to pay child support, and to contribute to section 7 expenses, and to give back an overpayment of child support, among other claims for financial recompense. He also asked that a restraining order against him be rescinded, and a restraining order against the Respondent be granted.

[4] The Respondent's Claims

The Respondent likewise sought sole custody and supervised access for the Applicant, child support, provision for section 7 monies, retroactive child support and section 7 expenses, and that the restraining order continue against the Applicant.

[5] Structure of Reasons

The issues of child support, section 7 expenses and the parties' other financial claims will be dealt with in Part 2 of these Reasons for Judgment.

[6] The Parties' Relationship

The parties met in late 2006 at their workplace. They had an intermittent relationship until January 2009, when their affiliation became serious. Mr. Rego and Ms. Santos were intimate in the spring of 2009 when Sophia was conceived. The parties never married.

[7] The Nature of the Parties' Rapport

The nature of the parties' rapport was a fundamental controversy. Mr. Rego reported a warm and loving accord in 2009, when he and Ms. Santos planned for a baby. According to him, this continued during the pregnancy until shortly after Sophia's birth in March 2010. It was the Respondent's position that there was no personal connection at all, and that Mr. Rego was just a man she knew from work. At first after the baby's birth, she denied he was the father, but after the paternity test results were published on 15 November 2010 that denoted Mr. Rego as the biological father, she allowed reluctantly that he was the father. However, she insisted they were only intimate on one occasion.

[8-13] Family Relationships and Evidence of Rapport

Mr. Rego was very close to his family of origin, with his mother Carmelia Rego (Ms. Rego), his sister, Ana Grainger and her husband William Grainger, Brennan Grainger and Tanya Grainger, their children, his sister, Stacey Rego and her partner Kevin Boltzer. There were also his aunts and uncles, Joe and Gloria Borges, Jorge and Maria Melos, Moses and Fatima Coello, Elvira and Umberto Fortado.

Mr. Rego also had a warm accord with Ms. Santos' children, Andre, 23, (lives with his father), Adriana, 20, and Alexander, 18, (live with the Respondent) during the time he had a relationship with Ms. Santos.

Mr. Santos' family of origin also thought highly of Mr. Rego – Alexandra Santos (herein called Ms. A. Santos), and Antonio Triguero, the Applicant's sister and brother-in-law, their children, Helder and Edgar Ferreira, Maria Julio, Ms. Santos' mother, Joanna Santos and Bernardo Vicente, children of Ms. Santos' brother.

Mr. Rego introduced numerous pictures and videos to show the Applicant's and Respondent's presence at family gatherings, at Sophia's birth and at a baby shower with the above-mentioned persons in attendance.

These images indicated that all participants, especially including Ms. Santos, were smiling, happy and comfortable in each other's company. In one video, the Respondent's children were seen pleasantly sitting beside their paternal grandmother.

The evidence was clear that Mr. Rego had a good alliance with the Respondent's family, and they accepted him as a family member. Helder Ferreira, Ms. Santos' nephew, even asked Mr. Rego to be his sponsor at his (church) confirmation ceremony. Two of Ms. Santos' children, Adriana and Alexander, told Ms. King-Watson (who undertook a Section 30 Children's Law Act assessment), that Mr. Rego and their mother were contented being together. Adriana said that Ms. Santos looked so happy when she was pregnant. She also knew that Mr. Rego attended all doctor's visits during the pregnancy.

[14-17] Ms. Santos' Contradictory Statements

At trial, Ms. Santos questioned the Applicant about the nature of her bond with him as portrayed in the pictures. She believed the images just demarked the parties as two uninvolved persons, with no evidence of any commitment to each other. At trial, after seeing the videos, Ms. Santos said to Mr. Rego:

Where do I call you anything more than just a friend?

When we sat together, why were there no hugs and kisses, if we were romantic?

I do not see affection in the pictures.

You are a friend, get that through your head…You posed as my friend. Do not think you will ever be anything more than that.

Ms. Santos said she had her own pictures and videos that proved Mr. Rego was not in touch with reality. They were not produced.

The videos showed the parties at family gatherings with children present. In my opinion, it would have been unusual for Mr. Rego and Ms. Santos to display open signs of affection in those circumstances.

Apart from her limited participation with her family of origin at events shown in the videos, Ms. Santos said she had no contact with her mother and siblings since 2010 and her sister, Ms. A. Santos, confirmed that. However during the trial, Ms. Santos' story changed, and she professed to having contact with her parents.

[18-20] Support During Pregnancy and After Birth

Before Sophia's birth, it was evident that Mr. Rego fully supported Ms. Santos' pregnancy, and the Respondent acknowledged his contributions:

1. They shopped together to buy baby furniture and supplies;
2. They attended a Baby Time show, and Mr. Rego arranged for a surprise shower for the Respondent at her sister Ms. A. Santos' restaurant.
3. When Ms. Santos started having contractions, she called the Respondent to take her to the hospital.
4. Mr. Rego and Ms. Rego were present at Sophia's birth, and he arranged for Ms. Santos' three children to be at the hospital after Sophia was born. (Ms. Santos insisted the Applicant and Ms. Rego were not present at the birth.)

After delivering on 16 March 2010, the parties were still in a close liaison for a period of time:

A) Ms. Santos continued to wear on her wedding ring finger, a ring bought for her by Mr. Rego. It can be seen in some of the pictures.

B) When Ms. Santos returned from the hospital after Sophia was discharged, a video pictured the parties and Sophia contentedly in the Respondent's kitchen, with the Respondent making school lunches for Alexandra and Adriana.

C) Mr. Rego bought gifts for the Respondent's children in December 2009 and January 2010, and clothing for Sophia in January and February 2010.

D) In April 2010 the parties entered a time share agreement at Georgian Manor Resort in Collingwood. Mr. Rego and Ms. Santos together signed a purchase contract on 24 April 2010. Mr. Rego, Ms. Santos, Adriana and Alexander attended the property to have a view.

Mr. Rego stayed at the Respondent's home for a limited period of time.

[21-22] The June 2010 Incident and Separation

In June 2010, an event occurred which later affected the Applicant's obtaining access. On the occasion, Mr. Rego was at Ms. Santos' residence and was holding Sophia, Mr. Rego wanted to take the child out for a brief period but Ms. Santos did not consent. There was a brief altercation when the Respondent's elbow bumped Mr. Rego. He surrendered Sophia to Ms. Santos and the incident was over. Mr. Rego called police who notified Peel Children's Aid Society (the Society) with regard to the baby's safety because of parental conflict. More will be stated later about the Society's involvement with Ms. Santos.

At some point in the spring of 2010, Ms. Santos made it very clear to the Applicant that she wanted him out of her life and away from her daughter. From the point of the parties' break-up, Mr. Rego sought access to Sophia, which the respondent refused entirely.

The Access Dispute: A Four-Year Struggle

[23-24] Initial Application and First Access Order

The Children's Lawyer did a report dated 2 July 2013, authored by Ms. Janice King-Watson, B.A., M.S.W., R.S.W. Ms. King-Watson described her understanding of Ms. Santos' denial of access:

Ms. Santos denied that there had been a relationship between her and Mr. Rego…She said he did not begin making paternity claims until weeks after Sophia was born. When he began requesting access to Sophia, she said she did not feel it made any sense, because she did not believe that he was the father of her child. When she received the results of the DNA test [on 15 November 2010], she said she continued to oppose access, as she felt that Mr. Rego just wanted to be part of her life.

Because Mr. Rego believed Ms. Santos would not permit access at all, and since he was concerned about Sophia's future if she would be raised by the Respondent, he brought an application dated 22 July 2010. Inter alia, he sought custody. The application had a first return date on 21 October 2010. On that occasion, the Applicant and Shawn Campbell, and the Respondent with Mr. Christie appeared, and the case was adjourned for an initial case conference before Justice Baldock on 15 December 2010.

This part of the narrative describes an Applicant with a laser like focus on obtaining access to the parties' daughter, and a Respondent who opposed that request at every step. The first temporary access order in the Applicant's favour was made by Justice Baldock on 15 December 2010, and then began an extraordinary series of events in the history of the Applicant's quest for access.

[26-27] The December 2010 Orders

The 15 December 2010 orders granted supervised access to Mr. Rego on alternate weekends, on Saturdays and Sundays for two hours each visit, at the Peel Family Visit Centre, run by Social Enterprise for Canada (herein called "SEC"). Access was to start on the first date available after intake, and the parties were to call SEC within two days to make arrangements. This was a usual order for supervised access (likely the Applicant did not believe it was necessary, but to obtain any access, he agreed that the visits be supervised.)

The 15 December 2010 orders also required the Applicant to pay $833. a month in child support from 1 January 2011, based on his 2010 income of $94,500. He was also obligated to pay $7,914. which was retroactive child support from Sophia's birth, 16 March 2010, to 31 December 2010.

[28-39] The SEC Impasse

The case was then adjourned to 31 March 2011 for a further case conference. The parties did contact SEC in the required time, but then the Applicant learned that SEC would not provide service when the Society was involved. On 15 December 2010, SEC informed the parties about its position. The lawyers for each party, together with Society and SEC personnel, communicated about the impasse.

Because the Society did not have any protection concerns, and was only involved on a voluntary basis over parental conflict, it wrote SEC on 7 January 2011 to encourage its involvement. Unfortunately, this letter did not influence SEC over its apprehension about continued Society participation. On 26 January 2011, SEC insisted on receiving full disclosure from the Society about its engagement.

At that point it appeared that SEC was considering providing service, but then Ms. Santos raised a concern that gave pause to SEC's position. Ms. Bradford with SEC wrote this on 28 January 2011:

[Ms. Santos] expressed her confusion as to why we are considering them for service, since [the Society] has an open file. I explained that Mr. Vambe (a society family worker who knew and worked with Ms. Santos) has requested that we consider this file, considering the nature of the Society's involvement. [Ms. Santos] stated that she "is not comfortable moving forward with supervised access at this time." and requested that the file be placed on hold.

This lead to a flurry of communications among the Applicant's and Respondent's lawyers and personnel in SEC and the Society.

On 31 January 2011, Ms. Santos emailed SEC to say that she changed her mind about keeping "a hold" on the SEC service file, and she was prepared to facilitate the supervised access pursuant to the 15 December 2010 orders. The Respondent chose the Brampton site for the visits, with the Applicant to pay all fees (which he did). There was just one other concern in the Respondent's mind; she did not want any discussion about the case between SEC and the Society. This position by Ms. Santos was soon to become an obstacle that thwarted Mr. Rego's access.

In early February 2011, Ms. Santos sent the SEC intake forms in the mail to SEC, and she booked an intake interview for 13 February 2011. That meeting did not happen. A problem arose when SEC received the Respondent's intake forms. It did not include her consent for it to receive full disclosure from the Society. On 16 February 2011, SEC told Ms. Santos it would not provide service without her consent for the Society to give disclosure of its involvement with her. SEC told the Respondent that if this was not rectified by 18 February 2011, it would close its file. Ms. Santos said she would talk to her lawyer.

On 18 February 2011, Ms. Santos telephoned SEC to say her lawyer was following up with the Society over this matter. Hence, 18 February 2011 came and went with the SEC file still open. On 24 February 2011, Ms. Santos telephoned SEC to say she had faxed completed intake forms (with disclosures from the Society authorized by Ms. Santos) to SEC, but because she had not obtained confirmation of the fax, she mailed another copy to SEC on 23 February 2011. Those documents were received by SEC on 25 February 2011, but again they were improperly completed. The Respondent undertook to mail accurately completed documents to SEC that day.

By 1 March 2011, SEC acknowledged receiving fully completed intake forms from the Respondent, and an intake interview was arranged for her on 6 March 2011, which occurred. Caroline Maglione was a friend of Ms. Santos who accompanied her to the SEC intake meeting on 6 March 2011. Ms. Maglione swore an affidavit dated 24 March 2011 about the events at that meeting. She averred:

i) Ms. Block [with SEC] stated it was proceeding with the intake procedure, even though there was an open file with the Society. At the end of intake, SEC would consider whether to provide service.

ii) Ms. Santos told Ms. Block that she, (Ms. Santos), was not in favour of any access to Mr. Rego, but if there was to be access, it should be supervised according to the 15 December 2010 orders. Ms. Santos said she was committed to honour the orders of 15 December 2010. (emphasis added)

Ms. Block and Ms. Santos agreed that the first supervised access would be at 10:00 a.m., Saturday 9 April 2011, for one hour. Later, if Sophia was comfortable, the access would be for two hours. But then Ms. Santos reintroduced again the issue of the open Society file. She wrote to Mr. Vambe at the Society, who had previously encouraged SEC's involvement, to say SEC now would not supervise access, because the Society still had an open file. She put in her letter that SEC had suspended the "visitation schedule" and then added:

Ms. Block (SEC supervised access coordinator) advises that the Centre will resume the intake process, and the Centre will reconsider the family's suitability for their supervised access program…upon notification that the SEC file is closed. Please ensure that the access centre is notified in writing of the closure of the file at your earliest convenience…

This letter would have come as a surprise to the Applicant, because he understood that SEC would provide service with an open Society file.

It seemed that by mid-March 2011, SEC came to the belief that its involvement with this family had become a strain on its time and capacity. On 18 March 2011, Ms. Block wrote to the parties:

Throughout service to date, it has been noted that any completion of tasks was completed with great effort and time of staff. Given our limited resources, and the very structure of our program, we do not believe that we have the necessary resources to meet the needs of your family.

Ms. Block then referred to the open Society file and stated "it is our policy not to proceed with files while there is continued CAS' involvement."

Mr. Rego approached Mr. Vambe to solicit help from the Society to facilitate access. Mr. Vambe brought Laura Shaw, a lawyer with the Society, into the picture. On 24 March 2011, Ms. Shaw wrote Shawn Campbell, Mr. Rego's then lawyer, to suggest a meeting with the parties and their lawyers to discuss possible assistance by the Society through its Pathways program. (Pathways gave very effective access supervision, but was only available in selected cases.)

Ms. Santos then declined service by Pathways. Mr. Christie, the Respondent's then lawyer, wrote Ms. Shaw on 4 April 2011:

…since your agency has no child protection concerns in this matter, and since the matter of access is before the court, my client (Ms. Santos) does not consider it necessary at this time to have a meeting with your agency.

My client thanks you for your offer to assist with respect to access, but that will no longer be necessary because the parties and Madam Justice Baldock are now considering other options for supervised access.

Mr. Christie also queried whether the Society file was closed, and if not, why not.

At this point, four months had passed after Justice Baldock's access orders, and it was ten months since Mr. Rego last saw his daughter. SEC and Pathways were no longer available to facilitate access, and an alternative supervisor would be needed. The parties agreed to an agency called Visitations without Borders ("Borders").

[40-41] The May 2011 Orders

The parties returned to court on 9 May 2011 before Justice Maresca. There were several motions regarding custody, access, child support, section 7 expenses, a restraining order, and a section 30 parenting assessment. The Applicant was with Shawn Campbell, and the Respondent with Mr. Christie.

On 9 May 2011, Justice Maresca issued the following temporary orders inter alia:

1. The Respondent received custody.
2. The child support order of Justice Baldock on 15 December 2010 continued.
3. The Applicant was to obtain access each Tuesday and Friday from 13 May 2011, or as quickly as possible, from 12:30 p.m. to 2:30 p.m. to be supervised by Borders or an equivalent agency. Access exchanges were to be effected by the supervising agency from the day care location.
4. The Applicant was to contribute $674. a month from 1 May 2011 to Sophia's day care costs, which were $1,054. a month. Based on the Applicant's income of $94,000. and the Respondent's income of $54,000., the Applicant's portion was 64 per cent.
5. The costs of the access centre were to be shared in proportion to the parties' incomes – 64 per cent for the Applicant and 36 per cent for the Respondent.
6. On the return date, the parties were to give the court a consent from an assessor to do the section 30 assessment.
7. The Applicant brought a contempt motion against the Respondent which was before the court that day. Apparently Justice Maresca found Ms. Santos in contempt of the access orders of 15 December 2010, although the endorsement was not clear in that regard.
8. The issue of Ms. Santos' request for a restraining order against Mr. Rego was adjourned to the next date.
9. Requests for costs for this date, 9 May 2011, were reserved to the next occasion before Justice Maresca.

The case was then adjourned to 15 July 2011 for a case conference and a disposition on the Applicant's contempt motion, and to deal with the Respondent's request for a restraining order.

[42-47] The Nap Time Problem

Mr. Rego testified at this trial that on 9 May 2011, Justice Maresca asked Ms. Santos for her recommendation for the best hours for access from Sophia's perspective. Ms. Santos told the court "12:30 p.m. to 2:30 p.m.", and that is what Justice Maresca ordered. These hours as specified by Ms. Santos, were soon to cause confusion in trying to reach an access arrangement.

After the court hearing on 9 May 2011, Mr. Rego enquired into Sophia's daily schedule at her daycare, Peekaboo Child Care Centre, Torquay Mews Site, ("Peekaboo"). He learned that during the hours recommended for access by Ms. Santos, 12:30 p.m., to 2:30 p.m., Sophia sleeps. In Mr. Rego's opinion, this would be an unsuitable time for visits because the child would not be alert. Mr. Rego postulated that a better time would be either before or after nap time. The Applicant believed that Ms. Santos would have known about Sophia's nap hours, because Peekaboo gave routine reports, and there were meetings between Peekaboo staff and custodial parents, where their children's schedules were discussed. Mr. Rego wanted access, but he thought it best for Sophia's sake that her sleep schedule be accommodated.

Mr. Rego approached Borders, the supervisor agency approved by Justice Maresca (on consent on 9 May 11), to enquire whether its schedule would allow supervision in the morning or afternoon, on Tuesdays and Fridays (to avoid Sophia's nap from 12:30 p.m. to 2:30 p.m.). Borders told Mr. Rego they could supervise Tuesdays – 12:30 p.m. to 2:30 p.m. (as Justice Maresca ordered), and Tuesdays – 10:00 a.m. to 2:00 p.m. (as the Applicant wished to avoid Sophia's naptime). On Fridays it could not supervise between 12:30 p.m. to 2:30 p.m. However, it could from 2:30 p.m. to 4:30 p.m.

By June 2011, the Applicant was self-represented. He would need the Respondent's consent to have access at times other than as ordered by Justice Maresca (for 12:30 p.m. to 2:30 p.m. on Tuesdays and Fridays). On 1 June 2011, Mr. Rego wrote to Ms. Patricia Nelson, Ms. Santos' new lawyer. He suggested access on Tuesdays from 10:00 a.m. to 12:00 noon, and on Fridays from 2:30 p.m. to 4:30 p.m. This proposal met the parameters of the 9 May 2011 orders, in that the same days and number of access hours were being requested; it would just be at different times than 12:30 p.m. to 2:30 p.m. The Applicant's sole motivation for a change in hours was to support Sophia's daily nap schedule. In reply by Ms. Santos through Ms. Nelson, the Respondent seized upon the inability of Borders to provide supervision between 12:30 p.m. and 2:30 p.m. on Fridays, to take the following position. Ms. Nelson wrote to Mr. Rego on 2 June 2011:

Because you are unable to accommodate the court ordered visitation schedule, an alternate access supervising agency is necessary…

Mr. Rego understood that the 9 May 2011 orders could be amended on consent to vary the access hours. If another supervisory agency was to become involved, he believed there would still be the same problem of access during the child's nap time of 12:30 p.m. to 2:30 p.m., which the Respondent insisted as the access hours because it was in the court order.

On 2 June 2011, Ms. Nelson wrote again to the Applicant. She reiterated that another supervisory access agency was needed to comply with the exact hours for access in Justice Maresca's 9 May 2011 orders. Then Ms. Nelson stated:

…moreover your proposed access times are too disruptive. Ms. Santos is not prepared to alter bits and pieces of court orders on an ad hoc basis without going through the proper steps. Where my client has historically demonstrated her willingness to enter into negotiations with you, with an agreement sensitive to Sophia's needs, Ms. Santos takes this opportunity once again to extend to you the opportunity to negotiate an agreement that can be filed with the court on consent. This consent would take the form of a comprehensive agreement that deals with the issues on a final basis.

The last sentence in Ms. Nelson's letter must have appeared to Mr. Rego to be far out of context, when he was only trying to arrange different hours for access. He was unwilling to agree to another supervisory agency, because he had already paid $420. to Borders for their access fees. So as of June 2011, Mr. Rego had no access in a year, and the parties were not able to act under the orders of Justice Baldock of 15 December 2010, nor of Justice Maresca on 9 May 2011.

[48-52] Continued Frustration with Access Agencies

On 9 July 2011 Diane St. Ange with Borders wrote to the Applicant to summarize its involvement:

• On 11 May 2011, Ms. St. Ange saw the parties and a file was opened to supervise Mr. Rego's access; • On 2 June 2011, Ms. Nelson emailed Ms. St. Ange, without consulting Mr. Rego, to state that Ms. Santos did not need their services, because Borders could not do visits on Fridays between 12:30 p.m. and 2:30 p.m. • Ms. St. Ange stated that even after the many phone calls, emails and letters between Ms. Nelson and Mr. Rego, there was still no resolution to the 12:30 p.m. to 2:30 p.m. Friday access dilemma. Ms. St. Ange recommended that the parties attend for an intake interview. • The parties did appear; Mr. Rego on 28 June 2011, and Ms. Santos on 10 July 2011.

After all the input by the parties and the Borders staff, nothing was resolved about the inability of Borders to supervise on Fridays from 12:30 p.m. to 2:30 p.m. No access supervision was provided by Borders. It was the third supervisory agency that could not meet the parties' needs, after SEC and Pathways.

On 15 June 2011, Ms. Nelson emailed Mr. Rego to say she called another supervisory agency, Bartimaeus Inc. ("Bartimaeus"). There were three challenges for the Applicant in employing Bartimaeus. First, it only dealt with lawyers and not unrepresented persons. The second complication was that it did not have sites where access can be supervised; clients needed to find their own locations. (However Bartimaeus would transport a child from the daycare facility, in this case Peekaboo, to an access site to be chosen by the parties.) Third, in comparison to the other supervisory agencies, Bartimaeus was expensive.

This suggestion for Bartimaeus was unilaterally made without input from the Applicant. On 15 June 2011, Mr. Rego emailed Ms. Nelson to make the following points:

1. Borders continued to be available, and the Applicant had already paid their fees;
2. There was still the unresolved issue of the undesirability for access between 12:30 p.m. and 2:30 p.m. Once again, Mr. Rego asked the Respondent to consider access in the morning or afternoon after the naps.
3. Ms. Santos had not explained why access on Tuesdays at 10:00 a.m. to 2:00 p.m., and Fridays at 2:30 p.m. to 4:30 p.m. would impact negatively on Sophia. She only stated that she would not agree with those hours.
4. To start another intake process with yet another service provider would lead to further delay. Mr. Rego reminded Ms. Nelson and Ms. Santos that Justice Maresca ordered that access was to start by 13 May 2011, and that was one month ago.
5. Mr. Rego did not wish to employ Bartimaeus because he would have to make all arrangements through Ms. Nelson, and he considered that a conflict of interest for Ms. Nelson.

On 15 June 2011, Ms. Nelson emailed the Applicant. She remonstrated that:

• Bartimaeus would be "ideal", because it could accommodate Justice Maresca's time schedule in her 9 May 2011 orders (i.e. access Tuesdays and Fridays from 12:30 p.m. to 2:30 p.m.); • There would be no conflict of interest on Ms. Nelson's part if Mr. Rego contacted Bartimaeus through her offices.

Then Ms. Nelson stated in that letter:

I am concerned that now we have a viable access regime ready to be implemented, that you're finding fault with it, this is confusing indeed. The arrangements are in accordance with court orders, yet you find fault with them – this is curious and disturbing. There is no reason to be reluctant, and quite frankly, what you claim to be wanting, you're refusing. The court order provided for [Borders] or a similar agency – this is in place, and I'm proceeding in accordance with my instructions. If you choose to refuse access, that will be your choice.

As of June 2011, it was clear that Ms. Santos did not accept Mr. Rego's concern that access should not occur during Sophia's nap time. It was also patent that the Respondent successfully was thwarting the access orders of two judges of this court.

[53-56] The July 2011 Orders and Section 30 Assessment

15 July 2011 was a scheduled return date before Justice Maresca. Mr. Rego was without a lawyer, and Ms. Santos was present with Ms. Nelson. The Applicant wanted to address the issue of access between 12:30 p.m. to 2:30 p.m. on Fridays. There were also the matters of the Applicant's contempt motion, the Section 30 assessment, and the Respondent's concern for collecting child support and the restraining order. Mr. Rego reluctantly agreed to Bartimaeus doing the supervision. The Applicant believed that if he did not consent, there was no chance of his being able to obtain any access.

On 15 July 2011, Justice Maresca made the following orders, which like all to date were substantially not made on consent:

1. The 9 May 2011 access provisions were varied so that the Applicant's Friday access was now from 2:00 p.m. to 4:00 p.m. (not 12:30 p.m. to 2:30 p.m.) to commence "immediately". (There was no variation in the Tuesday access, still scheduled from 12:30 p.m. to 2:30 p.m., pursuant to the 9 May 2011 orders.)
2. Dr. Rex Collins, psychologist, had agreed to conduct the Section 30 assessment. On the Respondent's consent, Ms. Santos was required to pay Dr. Collins' fees.
3. A temporary restraining order was issued against the Applicant. The Respondent believed she needed court protection from Mr. Rego's conduct. Mr. Rego denied any aberrant behaviour and believed such an order unnecessary. However, he consented to the order to keep open lines of communication about access. This restraining order became a troublesome device used by Ms. Santos to interfere with Mr. Rego obtaining information about Sophia from agencies that cared for the child.
4. A new Support Deduction Order ("SDO") was issued. Ms. Santos complained that she was not receiving child support in a timely manner. The purpose of this SDO was for the Director to obtain funds directly from the Applicant's paycheques. (Mr. Rego explained during the trial that he had never been tardy in making payments, so the Director did not exercise its right to take payment directly from his paycheques.)
5. Regarding Mr. Rego's contempt motion, Justice Maresca stated that she found Ms. Santos in contempt on 9 May 2011. 15 July 2011 was for sentencing, but because the Respondent satisfied the Court that she was in "substantial compliance" with the access orders, there would not be a disposition.

Justice Maresca on 15 July 2011 ordered a Section 30 assessment under the Children's Law Reform Act. The purpose was to examine Sophia's needs, and the ability and willingness of the parties to satisfy her requirements. Dr. Rex Collins agreed to do the assessment. Mr. Rego cooperated fully, but Ms. Santos declined to be assessed. Hence Dr. Collins did not see Sophia, nor the child with each parent, and accordingly, the assessment did not achieve its goals. He did a letter dated 30 January 2012 to report on his assessment of the Applicant.

Dr. Collins' findings about Mr. Rego were favourable. He ascertained a good capacity to establish a stable and dependable bond with his child. The Applicant was likely to be "home oriented", and to place high value on family and good and stable homes. The assessor found no compelling evidence to suggest that Mr. Rego would pose a danger to Sophia, indeed, the test results indicated a caring capacity to form a close bond with her. His strong family values, and his lively and engaging manner would likely be assets in fathering his daughter. (It was not until 21 January 2012 that Justice Pawagi commissioned a second Section 30 assessment, to be undertaken by Ms. Janice King-Watson, which was completed, but not at all to Ms. Santos' satisfaction.)

[57-70] Bartimaeus Access and Exchange Problems

After the orders of 15 July 2011, Bartimaeus, represented by its access supervisor, Ms. Sara Tracey, began the access facilitation. Mr. Rego's first visit was scheduled for Tuesday, 16 August 2011, between 12:30 p.m. and 2:30 p.m. A public day care centre was the site for the access, and Ms. Santos did not object to that location, presumably because the supervisor would be present at all times. However, the arrangement for access exchanges was more complicated. Ms. Tracey and Mr. Rego (separately) were to arrive at Peekaboo, where it was understood by Mr. Rego that Sophia was still in daycare. The plan was that they would park in the Peekaboo parking lot. Ms. Tracey would collect Sophia from inside Peekaboo, and learn whether there was anything in particular to be known about the child that day. Then Ms. Tracey, Sophia and Mr. Rego would leave for the public day care centre for the access.

However different access exchange arrangements occurred on 16 August 2011 at 12:30 p.m. Sophia was not at Peekaboo. At 12:30 p.m., one Susan Lawrence, a friend of Ms. Santos, arrived with Sophia at the Peekaboo parking lot. Ms. Lawrence did not say whether Sophia had eaten or had napped. Mr. Rego did have supervised access on 16 August 2011, and it was his first since the case started in August 2010. The Bartimaeus note indicated that despite the little contact this sixteen-month-old child had with the Applicant, it was a good visit and Sophia responded well to her father's ministrations. At 2:30 p.m., Ms. Tracey, Mr. Rego and Sophia returned to the Peekaboo parking lot and were met by Ms. Lawrence, who retrieved Sophia.

Mr. Rego wanted answers for the variation in access exchange arrangements, and he emailed Ms. Nelson on 16 August 2011 to ask:

(i) Is Sophia attending Peekaboo or not? (He was still contributing to Peekaboo's day care costs.) (ii) Why was Ms. Lawrence doing access exchanges? Mr. Rego was concerned that she did not have information he needed, such as whether the child had been fed or had napped. (iii) If Ms. Lawrence was to do exchanges, a new arrangement was needed with Bartimaeus, because it understood pick-ups for Sophia would be from Peekaboo. In Mr. Rego's mind, these were legitimate questions. Bartimaeus was a professional organization that operated only within pre-set and consensual boundaries.

Mr. Rego first learned that Sophia did not attend Peekaboo from Ms. Nelson's email to him on 17 August 2011. The message made two points:

1. Peekaboo unilaterally terminated Sophia's placement, and Ms. Santos found that objectionable. Peekaboo's actions impacted Mr. Rego's access.
2. The Respondent did not share the Applicant's concern about arrangements with Bartimaeus. Ms. Nelson wrote:

Your requirement re: who drops off Sophia to Bartimaeus, and who picks her up from Bartimaeus, has no effect on your access, and you cannot control this. Does it really matter who brings Sophia to the supervision and then to you? The most important thing is Sophia be brought to the location – stop creating issues where there are none.

Mr. Rego then sought clarification from Ms. Lee-Anne Arkell, the owner of Peekaboo, as to what caused Sophia's departure from the daycare. On 28 November 2011, Ms. Arkell wrote the Applicant:

1. Ms. Santos on her own removed Sophia from Peekaboo on 11 August 2011. The child's last day had been 5 August 2011.
2. Peekaboo gave Ms. Santos a refund of $1,094. (Mr. Rego was entitled to 64% of that amount, but he did not receive it from the Respondent.)
3. The real reason Ms. Santos removed Sophia, was a disagreement between Peekaboo and her. Peekaboo believed Sophia was at a stage in development where she should progress from the infant program to that for toddlers. Ms. Santos did not agree.

It was disingenuous for Ms. Nelson in her email to Mr. Rego on 7 August 2011, to blame Peekaboo for altering his access arrangements, when it was Ms. Santos' decision to discontinue with Peekaboo that lead to the problems. The Respondent immediately did not tell Mr. Rego where she placed Sophia in daycare after Peekaboo.

Ms. Santos' decision to end the Peekaboo placement lead to serious access exchange predicaments. After the one exchange on 16 August 2011 in the Peekaboo parking lot, Peekaboo emailed each party and Ms. Nelson on 17 August 2011 to prohibit the use of its parking lot for exchanges, because Sophia was no longer its charge.

The next access was on Friday, 19 August 2011 at 12:30 p.m. The Applicant and Ms. Tracey parked at the bottom of the Peekaboo driveway (not in the parking lot). Ms. Santos brought Sophia, and told Ms. Tracey that the child's placement at Peekaboo was cancelled because of Mr. Rego's "threats". Mr. Rego and Ms. Tracey took Sophia for access to the Early Years Centre, and Bartimaeus' notes indicated that there was a good visit. On return after access at 2:30 p.m., Ms. Santos told Ms. Tracey that the court order required exchanges in the Peekaboo parking lot, and that if Peekaboo complained, Ms. Tracey should file a complaint. (The orders of 9 May 2011 by Justice Maresca only said "Pick-up and drop-off was to be effected by the supervisory agency from the "day care location."")

In response to Ms. Santos' allegation that Peekaboo stopped its service because of Mr. Rego's "threats", Mr. Rego said he was unaware of making any to anyone. He believed his correspondence to Peekaboo and Ms. Nelson had always been respectful.

The next visit was on Tuesday, 23 August 2011, from 12:30 p.m. to 2:30 p.m., and Mr. Rego parked at the bottom of the Peekaboo driveway. Ms. Tracey arrived and repeated what Ms. Santos told her on the last visit, that exchanges were to be in the Peekaboo parking lot, and Ms. Tracey and Mr. Rego moved their cars into the Peekaboo parking lot. Ms. Santos delivered Sophia, and father and daughter had a good visit at the Early Years Centre.

As Mr. Rego tried to tell Ms. Nelson in his email on 16 August 2011, Bartimaeus had concerns about exchanges at Peekaboo if Sophia was not enrolled there. On 25 August 2011, Deanna Pietramola, a director of Bartimaeus, emailed the Applicant and said Bartimaeus would not do exchanges at Peekaboo, because that agency objected and police may become involved. Ms. Pietramola reminded Mr. Rego that it was his responsibility (with Ms. Santos' consent) to find a suitable site for exchanges. She suggested a McDonald's near Peekaboo.

Now Mr. Rego had to solicit the Respondent's consent for a change in venue for exchanges. When the orders of 9 May 2011 were granted, exchanges were to be from daycare, which was understood by the Applicant to be Peekaboo, and that is what he arranged with Bartimaeus. But when Ms. Santos cancelled Peekaboo, it should have been apparent to her that exchanges could no longer be at Peekaboo, and that she would need to cooperate with finding a new locale.

On 25 August 2011, Mr. Rego sent Ms. Pietramola's email to Ms. Jackie Cecilio at Ms. Nelson's office. Mr. Rego requested assistance to choose a new exchange site, because access was scheduled for the next day, Friday, 26 August 2011. On 25 August 2011, Ms. Pietramola emailed the Applicant, with a copy to Ms. Cecilio to state:

I have spoken to [Ms. Cecilio]…the visit for 26 August 2011 is now cancelled and you will be billed for this visit. [Ms. Cecilio] indicated McDonalds would not work, and suggested the exchange take place on one of the street corners close to daycare (Peekaboo). This is not safe to exchange a child on a street corner…there appears to be no other option at this time.

Please be advised, as per the access requirements, any visit cancelled is billable in full, unless cancelled four business days in advance.

The Respondent's lawyer did not say why Bartimaeus' proposal for exchanges at McDonalds would be unacceptable. Ms. Santos' suggestion for exchanges on street corners was obviously not prudent.

After the 26 August 2011 visit was cancelled, the parties agreed for transfers at a No Frills parking lot, with visits supervised by Bartimaeus at the paternal grandmother's residence, with Ms. Carmelia Rego in Brampton. Bartimaeus' notes described a happy visit among Sophia, Ms. Carmelia Rego and the Applicant.

[71-72] Continued Access Challenges

The next access was on Friday, 2 September 2011. Exchanges were at the same No Frills parking lot, and the visit was at the paternal grandmother's. Ms. Santos was poised to deliver Sophia to Ms. Tracey at the start of the access. Ms. Tracey's notes stated:

Ms. Santos' holding Sophia, kissing her and hugging her. Ms. Santos' asking Sophia if she wants to go to the worker (i.e. Ms. Tracey), but is holding Sophia tight. Ms. Santos gets out of car still holding Sophia. Ms. Santos tells worker that its strange that Sophia does not want to go to worker…Ms. Santos continued to hold Sophia tight, and asks Sophia if she wants to go to the worker. Worker tried to distract Sophia by playing peekaboo with her. Sophia responds and smiles at worker. Ms. Santos asks Sophia again if she wanted to go to the worker and the worker held out her hands towards Sophia.

Sophia goes to the worker and then Ms. Santos asks Sophia to give her a kiss goodbye. Sophia starts to cry. Ms. Santos takes her from worker. Mr. Rego calls Sophia out of the window of his car and Ms. Santos turns Sophia away so Sophia cannot see him, and then said that dad always provokes her (i.e. Ms. Santos) and that Sophia doesn't know anything about a dad. Worker tells Ms. Santos that she has never observed Dad provoking her. (i.e. Ms. Santos). Ms. Santos says he does all the time and that he waited for her at Tim Horton's the [sic] after the last visit to do it. Ms. Santos continued to hold on tight to Sophia. Ms. Santos said it is not normal that Sophia doesn't want to go to the worker.

The Bartimaeus' notes described a pleasant visit on 2 September 2011 for Sophia, Ms. Carmelia Rego and the Applicant, and it was entirely child focused. It can be observed that the Bartimaeus notes in their thoroughness scrutinized every aspect of Mr. Rego's contact with Sophia and therefore may be considered reliable.

Bartimaeus supervised successful visits in August and September of 2011, but then its schedule would not permit service during the week, but only on weekends. Mr. Rego's access was on Tuesdays and Fridays, so Mr. Rego set out to learn if Ms. Santos would consent to access on weekends. Ms. Santos would not consent, and the parties returned to court. New orders were issued that lead to another stalemate, which in the circumstances should have been foreseeable.

[73-77] The October 2011 Orders and SEC Revisited

On 6 October 2011, Mr. Rego alone, and Ms. Santos with Ms. Nelson appeared before Justice Baldock. The following temporary orders were made:

1. The Applicant was granted supervised access on alternate weekends on both Saturdays and Sundays for up to two hours each day at the Peel Family Visit Centre (SEC). Visits to start on the first day available after completion of the intake process.
2. After eight such visits, unsupervised access will commence for four hours on alternate weekends on Saturday or Sunday with exchanges at SEC.
3. If the Applicant cancels a visit, there will be no make-up access.
4. If the Respondent cancels a visit, the visit shall be made-up the following weekend.
5. The parties may by written agreement vary or extend the access.
6. The Applicant shall forthwith bring the current order for child support into good standing by paying a minimum sum of $200. a month, in addition to the ongoing towards arrears, until the arrears are paid in full, starting 1 November 2011.

The Support deduction order therefore would include the ongoing child support of $833. a month, plus $674. a month for section 7 expenses, plus $200. a month towards arrears, for a total of $1,707. monthly. (At trial, Mr. Rego said arrears have been paid in full.)

There are several observations to be made about the 6 October 2011 orders:

1. Mr. Laughlin Campbell, Mr. Rego's new lawyer, asked the Applicant why he consented to access supervised at SEC, when on 18 March 2011, SEC made it explicit that it would not service this family. Mr. Rego knew that and so did Ms. Santos. Mr. Rego told the court that on 6 October 2011, Ms. Nelson assured him that SEC would change its mind.
2. Query why would Ms. Santos on 6 October 2011 accept weekend access, when one month earlier, in September 2011, when Bartimaeus could only supervise access on weekends, she was entirely opposed? There is no logical answer to that question.
3. The third comment about the 6 October 2011 orders was that this is the first that even considered the possibility of unsupervised access. The challenge for Mr. Rego would be to achieve the eight supervised visits first.
4. Finally, it is worth observing, that this order and others contemplated mutual arrangements, that it they happened, would be favourable to the Applicant.

Ms. Nelson's confidence in the cooperation of SEC to supervise access was predictably if not rashly unfounded. On 2 November 2011, Jessica Burns, an administrative assistant with SEC, wrote to the parties:

It considered the parties' request for service. It reviewed its file thoroughly, and concluded it was unable to provide service.

Because SEC was not an option, and since the parties could not agree on another supervisor, Mr. Rego and Ms. Santos returned to court.

[78-89] The December 2011 Orders and Burlington Access

On 9 December 2011, the Applicant with Ms. Dharamshi (a lawyer in Laughlin Campbell's office), and the Respondent with Ms. Nelson, appeared before Justice Baldock. Orders were issued but not on consent. The fine hand of Ms. Santos can be seen in the order in paragraph 5.

Counsel for either party may make a request to the Peel Family Visit Centre (SEC) to re-establish access at that facility, and may also request information as to what if any prerequisites need to be satisfied in order to have access recommenced.

The case was then adjourned to 28 March 2012 for trial audit and then for a two week trial.

This order gave new meaning to the term "beating a dead horse". Mr. Rego could only wonder, after SEC turned down the family for service on two earlier occasions, how likely could it be for it to change its mind in a third request?

Ms. Dharamshi took a much needed initiative to locate a new supervisory agency (other than SEC, Borders and Pathways and Bartimaeus). She learned that Burlington Counselling and Family Services at its Milton site (herein called "Burlington") could assist. Justice Baldock also ordered:

6. In the interim, the parties shall in a timely fashion do all things necessary to arrange access to take place at the Milton venue of the Burlington Counselling and Family Services, such access to continue at that location every other week only as long as it is not available in Peel.
7. Access at either location shall be for a minimum of two hours twice every other week, if available at the visit centre.
8. The 15 July 2011 order by Justice Maresca was varied to require the Applicant to pay child support of $622. a month from 1 January 2012, based on the Applicant's lower income of $68,163. for 2011.
9. The Applicant was also to pay $590. a month for section 7 expenses.
10. The orders of 6 October 2011, that required Mr. Rego to pay $200. a month to arrears, continued.

By 9 December 2011, Mr. Rego paid $1,412. a month from 1 January 2012; ($622. + $590. + $200. = $1,412.)

At this point in the history, it was apparent that the dynamics of the parties' relationship required that access orders be crystal clear to avoid misinterpretation. Unfortunately, they were not always so, and that proved to be the case with the 9 December 2011 orders.

The 9 December 2011 orders provided "for a minimum of two hours, twice every other week, if available, at the visit centre". Ms. Santos was opposed to that order right after it was made. She enquired of Burlington whether there could be one four hour visit on Sunday in Milton, rather than two two-hour visits. On 24 January 2012, Mary Anne Duncan with Burlington wrote the Respondent:

…you enquired as to whether Sophia's visit could be scheduled for four hours back to back on the Sunday.

Our visits are a maximum of two hours at a time. However, the option of a four visit…does remain [on] Friday evening…

At this point in early January 2012, Ms. Santos was self-represented. Ms. Dharamshi pursued the possibility with Ms. Santos of a four hour visit on Friday evenings. The Respondent would not agree to Friday evenings, only to Sunday afternoons. Ms. Santos wrote Ms. Dharamshi on 2 February 2012:

In response to your letter dated 20 January 2012, I have sought legal advice, and my position that a Friday night access visit would be disruptive to Sophia is very appropriate. Friday night access interferes with her bedtime and routine, and the expectation that a 22 month old toddler would be "to adapt" to changes to her routine every other week is unreasonable.

The Centre's hours of operation were discussed with the intake coordinator, and Sundays work best for a child of Sophia's age and stage of development…

I am not interfering with your client's court ordered access. I am simply ensuring the temporary access schedule is in keeping with Sophia's best interests.

Ms. Santos' unwillingness to comply with the provisions of the 9 December 2011 orders for access at Milton "for a minimum of two hours twice weekly", nor to consent to a four hour visit on Friday evenings, brought the parties back before a judge.

[90-99] The March 2012 Orders and Unsupervised Access Motion

On 28 March 2012, the Applicant with Laughlin Campbell, and Ms. Santos with Ms. Osodet, agent for the Respondent's new lawyer Ms. Sager, appeared before Justice Pawagi who replaced Justice Baldock as case manager. The parties agreed to remove the case from audit on 28 March 2012, with a case conference only on that date.

The parties ostensibly were trying to clarify the orders for access of 9 December 2011 by Justice Baldock. New temporary orders were issued:

1. The Applicant's access shall be for four hours (two, two-hour visits) every other week, or two hours every week.
2. Access shall occur at the Milton, Brampton or Mississauga supervised access locations, or other supervised location to which the parties agree.
3. Counsel shall confirm with the access centre in writing, if the within access cannot be provided by any of the noted centres.

The parties were soon to find that the wording of the 28 March 2012 did not resolve anything. The problem was that the standard parlance used in orders perforce must be general in nature. For example, at the time of an order, the parties may not know if a facility is available at certain hours. There must be flexibility and accommodation by all parties to make any court order work. If someone in litigation is bent on mischief or does not agree with an order, any order can be frustrated by a person's actions, or lack thereof.

Supervised access did start at the Milton site on 5 February 2012, but Mr. Rego only obtained part of the four hours authorized by the 28 March 2012 orders. On the following dates he exercised two out of the four hours of access stipulated in the order:

• Sunday, February 2012 – supervised access from 11:30 a.m. to 1:30 p.m.
• Sunday, 4 March 2012 – supervised access from 11:30 a.m. to 1:30 p.m.
• Sunday, 18 March 2012 – supervised access from 11:30 a.m. to 1:30 p.m.
• Sunday, 15 April 2012 - supervised access from 11:30 a.m. to 1:30 p.m.

In the next visits, Mr. Rego obtained three out of the four hour prescribed visiting hours:

• Friday, 27 April 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Sunday, 29 April 2012 - supervised access from 11:30 a.m. to 1:30 p.m.
• Friday, 11 May 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Sunday, 13 May 2012 - supervised access from 11:30 a.m. to 1:30 p.m.
• Friday, 25 May 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Sunday, 27 May 2012 - supervised access from 11:30 a.m. to 1:30 p.m.
• Friday, 8 June 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Sunday, 10 June 2012 - supervised access from 11:30 a.m. to 1:30 p.m.
• Friday, 22 June 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Sunday, 24 June 2012 - supervised access from 11:30 a.m. to 1:30 p.m.

Apart from the first visit when Sophia was shy, the observation notes recorded a loving rapport between the Applicant and Sophia. The little girl was happy to be with Mr. Rego and she laughed frequently. There were further visits under the 28 March 2012 orders supervised in Burlington:

• Friday, 6 July 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Sunday, 8 July 2012 - supervised access from 11:30 a.m. to 1:30 p.m.
• Friday, 20 July 2012 - supervised access from 7:30 p.m. to 8:30 p.m.
• Scheduled Sunday, 22 July - supervised access from 11:30 a.m. to 1:30 p.m. Cancelled by Ms. Santos "due to illness" (No further details).

The hours on these visits were less than the 28 March 2012 orders permitted.

The observation notes from the Milton centre described two exhortations by the Respondent:

On 18 March 2012, Ms. Santos told the Milton staff she did not want Sophie to drink any bottled water brought by Mr. Rego.

The 15 April 2012 access note stated:

[Ms. Santos] expressed concern that [Mr. Rego] is not to bring food/milk for Sophia as per court order …

[Ms. Santos] also expressed concern that Sophia is having allergic reaction from [Mr. Rego's] cologne, and that he needs to tone it down (emphasis added)

Mr. Rego was not aware of any court order prohibiting food to be brought for Sophia. The centre even encouraged food and drink to be furnished by the access parent.

[100-110] The Unsupervised Access Motion and Complications

On 28 March 2012, the Applicant filed a motion for unsupervised access, which was heard on 22 May 2012 by Justice Pawagi. The Ruling was not released until 11 July 2012, and it is herein called the "11 July 2012 Ruling".

At the hearing on 22 May 2012, Mr. Rego appeared with Mr. L. Campbell, and the Respondent with Ms. Sager. The motion for unsupervised access was opposed by the Respondent, who wished the supervised access to continue and for the Applicant's motion to be dismissed. Mr. Rego's motion was granted. The order was for unsupervised access each Sunday from 11:00 a.m. to 4:00 p.m., and exchanges were to be at the Milton, Burlington or Peel centres. However, unfortunately the 11 July 2012 orders did not give a start date for the unsupervised access.

It could be observed that if the orders by Justice Baldock on 6 October 2011 had been implemented in a prompt manner, after eight supervised visits, unsupervised access would have started around mid-January 2012. Instead, Mr. Rego achieved his first unsupervised visit seven months later on 25 August 2012.

There were more hurdles for Mr. Rego to surpass after the 11 July 2012 orders, before unsupervised access could begin. As stated, the Ruling on the Applicant's motion granting unsupervised access, was released on 11 July 2012. Seven days later, on 18 July 2012, the Applicant launched an appeal of Justice Pawagi's Ruling. Ms. Santos also brought a motion in Superior Court to stay Justice Pawagi's orders of 11 July 2012.

On 21 August 2012, Justice Hourigan in the Superior court, dismissed Ms. Santos' motion and required her to pay costs of $4,000. The Respondent withdrew her appeal of Justice Pawagi's order, and costs against her were imposed in the amount of $2,446. One impediment was resolved in the Applicant's quest for unsupervised access by the Respondent's removal of her appeals, but another impasse was to loom.

At the hearing on 22 May 2012 (orders released on 11 July 2012), Mr. Rego relied on information in a brochure for the Burlington facility at Milton, that exchanges could be facilitated on Sundays from 9:00 a.m. to 6:00 p.m., and also [sic] Sundays 1:00 p.m. to 6:00 p.m. Given that information by Mr. Rego, Justice Pawagi on 11 July 2012 (when the 22 May 2012 motion Rulings were released), ordered that unsupervised access would be from 11:00 a.m. to 4:00 p.m. on Sundays. The error soon came to light. Ms. Dharmashi learned that the Milton centre was only open:

• Saturday – 9:00 a.m. to 6:00 p.m.,
• and on Sunday – 1:00 p.m. to 6:00 p.m.

Therefore the 11 July 2012 orders for access at Milton on Sundays from 11:00 a.m. to 4:00 p.m. could not be accommodated, unless the parties could agree to an adjustment in hours or days.

Ms. Dharamshi wrote Ms. Santos on 11 July 2012 to see if she would agree to exchanges at Milton either on:

a. Saturdays from 11:00 a.m. to 4:00 p.m. or b. on Sundays from 1:00 p.m. to 6:00 p.m.

The letter referred to "access" between the stated times, but it should have referred to "access exchange times".

Then on 13 July 2012, Mary Ann Duncan with Burlington wrote Ms. Dharamshi (copy to Ms. Sager), with a further clarification:

The Milton site was only open Sundays from 9:00 a.m. to 2:00 p.m. on alternate weekends.

The Burlington location was open every Sunday from 1:00 p.m. to 6:00 p.m.

Hence, neither place alone could provide for the court ordered access on Sundays from 11:00 a.m. to 4:00 p.m. At trial, Mr. Rego said Ms. Santos refused the Saturday and Sunday options without giving reasons.

By July 2012, Ms. Margaret Osodet had replaced Ms. Sager as Ms. Santos' lawyer. Ms. Osodet wrote Ms. Dharamshi on 17 July 2012 to blame the Applicant for misunderstanding the business hours in Milton, and suggested that Mr. Rego accept the Milton hours which would only be on alternate weekends. (The orders of 11 July 2012 gave unsupervised access every Sunday from 11:00 a.m. to 4:00 p.m.) On Friday, 20 July 2012, at 1:07 p.m. Ms. Dharamshi emailed Ms. Osodet:

Further to my voicemail today and previous email, please confirm that your client agrees that access pursuant to the current order is unsupervised. My client will attend today (Friday, 20 July 2012) and Sunday (22 July 2012), but this needs to be confirmed within the next thirty minutes, so Ms. Duncan can make suitable arrangements.

On the same day at 1:39 p.m., Ms. Osodet emailed Ms. Dharamshi in response:

Ms. Santos is prepared to bring the child tonight for one hour for supervised access, and again on Sunday (22 July 2012) from 9:30 a.m. to 1:30 p.m. (emphasis added)

Please send us the plan of care that your client claims to have made with the assistance of Mary Ann Duncan for Sophia's care during access.

Ms. Osodet appeared to be confused about the type of proceeding this was. Plans of care are terms used in the Child and Family Services Act; they are not employed for access under the Children's Law Reform Act. In any event through the history of this case, there had never been a reference to a "plan of care" for Mr. Rego's access.

On 26 July 2012, Ms. Dharamshi wrote Ms. Osodet to confirm that Ms. Santos would only agree to the following (despite Justice Pawagi's orders of 11 July 2012, for unsupervised access each Sunday, 11:00 a.m. to 4:00 p.m., with exchanges at Milton):

Access

1. Week 1 – Fridays, 7:30 p.m. to 8:30 p.m., and Sundays, 9:30 a.m. to 1:30 p.m., with exchanges at Milton.
2. Week 2 – could be exchanges at Burlington.

As of July 2012, the parties were once again at an impasse, and Justice Pawagi's orders of 11 July 2012 could not be implemented. Both parties brought motions to change access times, and to amend the orders of 11 July 2012.

1. In the Applicant's motion:

Mr. Rego sought unsupervised access every week, on a weekend day, from 11:00 a.m. to 4:00 p.m., with exchanges at Milton or Burlington or Peel centres.

2. In the Respondent's motion:

Ms. Santos requested an order for the Applicant to have one-half the access he was granted by the 11 July 2012 orders. On 7 August 2012, Justice Pawagi heard the motions and Her Honour dismissed Ms. Santos' motion. Mr. Rego's motion was granted on these terms: He was to have unsupervised access:

A) On alternate Sundays, from 9:30 a.m. to 1:30 p.m., with exchanges in Milton;

B) On alternate Saturdays (when Milton site was not open), from 9:30 a.m. to 1:30 p.m., with exchanges at the Burlington location.

C) If this schedule is not possible, given the various centres' availability, access (unsupervised) shall be for four hours per week, with exchanges where available at Milton, Burlington, or Peel in that order.

As detailed as the 7 August 2012 orders were, they did not stipulate one important term – the commencement date for the unsupervised access. This omission by the parties inevitably lead to more problems in the making of access arrangements.

[111-122] Unsupervised Access Begins and Further Obstacles

Contrary to the provisions in the 7 August 2012 orders, supervised access still continued at Milton:

• Friday, 17 August 2012, 7:30 p.m. to 8:30 p.m. supervised access,
• Sunday, 19 August 2012, 11:30 a.m. to 1:30 p.m. supervised access.

For the 19 August 2012 access, Mr. Rego believed it should have been unsupervised, and only an exchange should take place at the Milton site. He showed Justice Pawagi's orders of 7 August 2012 for unsupervised access to the staff. The personnel at the centre were unsure what to do, because hitherto they conducted supervised access. They called Ms. Santos for confirmation that Mr. Rego was correct, and that it should be an exchange. The supervisors told Mr. Rego that Ms. Santos insisted that it was to be a supervised visit.

The Applicant accepted the decision just to enjoy any type of access to his daughter. Ms. Santos told the staff that Mr. Rego should not be allowed to give Sophia snacks, because they gave rashes to the little girl.

Saturday, 25 August 2012, 9:30 a.m. to 1:30 p.m., was an important day for Mr. Rego; it was his first unsupervised access and it occurred. That day, Ms. Santos raised an objection to the centre staff; she wanted the centre to obtain certification from Mr. Rego that his child's car seat was properly installed. The staff told her that assurance of safely installed seats was not their mandate. Nevertheless, Mr. Rego said he would obtain such a certificate, and he produced one to the Burlington centre at a later date.

Once the unsupervised access began, complications appeared:

• Sunday, 9 September 2012 – exchanges were scheduled at 1:30 p.m., with a return at 3:30 p.m. Ms. Santos cancelled, because Sophia was ill during the drive to the centre.
• Sunday, 16 September 2012 – exchanges were scheduled at 9:30 a.m. and at 1:30 p.m. Unsupervised access occurred. Ms. Santos enquired whether staff received the certificate from Mr. Rego about the child's car seat. Staff told Ms. Santos they would not pursue the issue.
• Saturday, 22 September 2012 - scheduled exchange – no access. The centre's notes stated "Ms. Santos reported being in a car accident this week and is in too much discomfort to drive to the centre". Mr. Rego did not attend.
• Sunday, 30 September 2012 – scheduled exchange – no access. Mr. Rego was present, but Ms. Santos was absent. The centre's notes reported "No message left".
• Sunday, 14 October 2012 – scheduled exchange – no access. Mr. Rego was present and Ms. Santos was not. The centre's notes said "[Ms. Santos] left note to say Sophia's grandmother was driving, but felt uncomfortable driving in the weather."
• Saturday, 20 October 2012 – scheduled exchange – no access. The centre's notes observed "on 19 October 2012, Ms. Santos said Sophia ill and will not attend. Sophia to see doctor".

After the first unsupervised access on 25 August 2012, five visits were missed because of Ms. Santos' concerns. These were 9 September 2012, 22 September 2012, 30 September 2012, 14 October 2012, and 20 October 2012.

In October 2012, Vincenzo Ruso was the Respondent's new lawyer. Mr. Rego sought to arrange for make-up visits. Ms. Dharamshi wrote Mr. Ruso on 17 October 2012:

Our client is ready to make-up all of his missed access immediately, however, Ms. Santos has provided no genuine solution on how to do that, given the only centre available to the parties is the Burlington centre, and she refuses to attend there.

It is Ms. Santos' obligation to make the arrangements for access visits that she cancels, and unless she will agree to access occurring outside the centre (say, at the daycare so that the parties will not see each other) there is no way to "make up" a visit.

In reply, Mr. Ruso wrote Ms. Dharamshi on 17 October 2012:

My client advises that she is in the process of contacting Jessica Burns, the intake coordinator for the Supervised Access Program in Newmarket, in an effort to facilitate access to Mr. Rego more conveniently.

The current access location in Burlington is too far for both parties, and more importantly, Sophia. My client advises that Sophia has vomited several times commuting to Burlington, which has been the cause of Mr. Rego's missed access.

It is my client's intention to accommodate Mr. Rego's missed visitation. Please have Mr. Rego provide me with his available dates; we will coordinate with the visitation centre and find availability.

The following observations can be made about the above correspondence between Mr. Ruso and Ms. Dharamshi:

1. The Supervised Access Program in Newmarket that Ms. Santos wished to contact, is related to SEC in Peel Region, which refused on two occasions to service this family. Ms. Santos either knew or ought to have known that.
2. Ms. Santos wanted to contact a supervised access program, whereas since the 11 July 2012 orders, Mr. Rego was entitled to unsupervised access.
3. Mr. Ruso indicated Sophia was ill "several" times. The dates on which access was cancelled because of the child's illness were: 25 May 2012, 9 September 2012, and 20 October 2012.
4. There was another cancelled visit on 22 July 2012 due to "illness", but the access report did not state who was sick.
5. There were other visits cancelled by Ms. Santos that did not relate to Sophia's illness – 22 September 2012, 30 September 2012 and 14 October 2012.
6. There were various exchanges of correspondence between Ms. Dharamshi and Mr. Ruso regarding make-up visits. By 31 October 2012, Ms. Santos never gave a proposal for make-up access, and the missed access was not replaced.

[123-137] The October 2012 Orders and March 2014 Access Dispute

The parties returned to court on 26 October 2012. Justice Pawagi gave the following temporary orders:

1. The Applicant shall have unsupervised access each Sunday from 9:30 a.m. to 2:30 p.m., beginning 28 October 2012.
2. Exchanges will be at Peel Regional Police 22 Division, unless another exchange location is agreed to in writing by the parties, specifying the access date, time and new exchange location.
3. If Sophia is too sick for access, Ms. Santos is to give a physician's note to confirm that Sophia was seen by a physician on the date of the missed visit.
4. If Ms. Santos is unable to bring Sophia to access for any reason other than Sophia's illness, a make-up visit is to be scheduled on the following Saturday from 9:30 a.m. to 2:30 p.m., or another day as the parties agree in writing.

Those orders appeared to have the clarity that the parties needed.

The 11 July 2012 orders (motions were heard 22 May 2012) gave unsupervised access. Justice Pawagi wanted to give Sophia the opportunity to adjust to the unsupervised access, before considering a continuing order for overnight access. The parties returned to court on 20 December 2012 to consider Mr. Rego's request for overnights.

On 20 December 2012, Justice Pawagi granted a temporary order for Mr. Rego to have some overnights:

• Saturday, 22 December 2012 noon, to Sunday, 23 December noon;
• Saturday, 29 December 2012 noon, to Sunday, 30 December 2012, noon;
• Saturday, 5 January 2013 noon, to Sunday 6 January 2013, noon.

Exchanges were to continue at Peel Regional Police 22 Division.

The parties returned to court on 21 January 2013 to give a report on the overnight access. Mr. Rego stated that they went well; Sophia enjoyed herself and slept soundly through the night. He sought expanded overnights from alternate Fridays to Monday mornings with a mid-week access. Ms. Santos' account of the overnights was dire. She said the child was exhausted upon return to her, and was "volatile" and biting children at daycare. No evidence from the daycare was offered by the Respondent to verify the biting actions. Ms. Santos did not consent to any further overnight visits, and would prefer the court to curtail future ones. In the belief that Ms. King-Watson's section 30 assessment was forthcoming, Justice Pawagi did not award immediate further overnights pending the availability of the assessment.

Temporary orders were issued. Mr. Rego shall have:

1. unsupervised access on alternate Saturdays from 2:00 p.m., to 7:00 p.m., starting 26 January 2013.
2. overnight access on alternate Saturdays from 2:00 p.m., to 12:00 noon Sundays, starting 2 February 2013.
3. Exchanges were to be at 22 Division, and there were provisions for make-up access if Sophia is ill.
4. Ms. Santos was ordered to pay Ms. King-Watson's retainer of $3,000., and the parties were to share equally the remainder of her fee.

Mr. Rego brought a contempt motion against the Respondent, alleging that she denied access according to the 7 August 2012 orders. Ms. Santos brought her own motion requesting an increase in child support and section 7 contributions. On 5 June 2013, Justice Pawagi delivered her Ruling on the Applicant's contempt motion. The judge found that of thirteen possible unsupervised accesses scheduled between 15 July 2012 and 21 October 2012, only two occurred. This Ruling and its reasons are important, because they contain an analysis by the learned case management judge of the parties' comportment during a part of the history of this case. Her Honour wrote:

Ms. Santos submits that she had a legitimate reason for each cancelled visit. However the visits cannot be examined in isolation, but as a whole. It is not reasonable, looking at the visits as a whole, that only two out of thirteen should have taken place. Ms. Santos submits that she offered make up access, but that Mr. Rego refused. However, while she does provide a letter from her lawyer offering make up access in general, there is no response to Mr. Rego's lawyer request for a specific proposal for dates, times and locations of access exchanges for make up access. His letter makes clear that Mr. Rego is available any weekend and any weekday after 6:00 p.m. No specific make up visits are offered.

Ms. Santos demonstrated her willful disregard of the court order as follows:

At first, Ms. Santos relied on the conflict between the access exchange times in the order, and the operating hours of the centre, and did not agree to any access on changes times until the court order was actually changed.

And even when the order was changed the unsupervised access still does not occur until after the order was issued and entered, because the access centre required the issued order, unless the parties agreed to go by the endorsement, which Ms. Santos did not.

Ms. Santos furthermore makes no meaningful offer for make up access, and she attributes a concern over a lack of proof of a proper car seat installation to the access centre, when the concern was only hers.

Ms. Santos also brought a 14B motion to reduce the access, on appeal [to Superior court] and a stay motion [in Superior court] to suspend the access. When all of the above fails or is withdrawn, she then has other reasons not to carry out the order, namely the child's illness and her car accident.

However, it is not clear why the child throwing up on the way to a visit would result in the visit being cancelled, as it is not uncommon for a child to throw up on a car trip, and indeed, it has happened in the past without the visit being cancelled.

The September 22, and September 30, and October 13, 2012 visits were cancelled because of Ms. Santos being in a car accident, which caused her to be in too much "discomfort" to drive. This is for a period of almost one month. Ms. Santos did not provide any medical evidence that she was unable to drive during this entire period.

Justice Pawagi found Ms. Santos in contempt of the access orders of 7 August 2012. The Respondent was required to pay a penalty of $5,000. Mr. Rego requested costs for the court appearances of 5 June 2013, 21 January 2013, and 22 March 2013. The Respondent was ordered to pay costs of $10,000. inclusive of HST and disbursements, because the Applicant was successful in his requests.

The current child support order was varied. The Applicant was ordered to pay child support of $781. a month from 1 January 2012. This was based on his 2012 income of $87,500. He was also required to pay $653. monthly, from 1 January 2012, being his 62 per cent share of daycare at $1,054. a month. The Respondent's income was $54,000.

Ms. Santos appealed Justice Pawagi's contempt finding of 5 June 2013 to the Superior Court. On 20 November 2013, Justice Sprout dismissed the Respondent's appeal and she was ordered to pay costs of $7,766, which according to Mr. Campbell had not been paid. Ms. Santos appealed Justice Sprout's order to the Ontario Court of Appeal.

At court on 12 July 2012, on consent the parties agreed to Mr. Rego obtaining access:

• Saturday, 20 July 2013, at 10:00 a.m., to Sunday, 21 July 2013, at 6:00 p.m.,
• Saturday, 17 August 2013, at 10:00 a.m., to Sunday, 18 August 2013, at 6:00 p.m.,
• Saturday, 24 August 2013, at 10:00 a.m., to Sunday, 25 August 2013, at 6:00 p.m.

From Friday, 20 September 2012, Mr. Rego was to have alternate weekend access from Fridays at 3:00 p.m., with pick ups at daycare (if daycare declines in writing to become involved, the exchanges will be at Peel Regional Police 22 Division) to Sunday at 6:00 p.m.

Mr. Rego had difficulty obtaining information from Ms. Santos about Sophia's daycare arrangements. Sophia had been with Peekaboo, but that terminated on 5 August 2011, and Mr. Rego only learned about it on 17 August 2011 from Ms. Nelson, Ms. Santos' then lawyer. Ms. Santos placed Sophia at Bright Horizons daycare on 6 September 2011. That ended on 1 September 2013, and Mr. Rego came to that knowledge on 7 January 2014.

On 7 January 2014, Mr. Rego discovered that Sophia was at Hickory Wood Child Care Centre ("Hickory Wood") since 1 September 2013, and he contacted Hickory Wood to learn about their program. He proposed that he pick up Sophia there on Friday, 10 January 2014, in accordance with the provisions of the orders of 12 July 2013. Shelagh Karstaf and Marilyn Cochrane at Hickory Wood told him that could not happen because Ms. Santos was "bringing a motion", but they did not know details. Previously, Ms. Santos had given the Hickory Wood staff a copy of the restraining order against Mr. Rego. Ms. Cochrane told the Applicant that he was a "high risk person", and he should not attend at their facility. Mr. Rego collected Sophia from Peel Regional Police 22 Division on 10 January 2014. He tried to return his daughter to Hickory Wood on Monday, 13 January 2014 after access, but he was told to leave because he was a danger.

The only motion before the court at the time was by Mr. Rego on 29 November 2013 for Christmas access, and in December 2013, for added access. There apparently was no "motion" by the Respondent.

On the last day of the first session of this trial, 12 February 2014, the Applicant brought a motion for access for the 2014 March school break and for Easter. There was an order for Mr. Rego to have March access from 3:00 p.m. on Friday, 7 March 2014, to 5:00 p.m. Wednesday, 12 March 2014. Access exchanges were ordered to be at Peel Regional Police, 22 Division in Brampton. I noted in the endorsement that the parties were in essential agreement, and both parties knew about the details of this order.

After the orders were published and before the March access occurred, in very early March 2014, Mr. Rego learned he would have to attend a work related mandatory training session from March 10th to the 14th, 2014. An adjustment in the March break access times would be needed and Ms. Santos' cooperation required.

Mr. Campbell sent an email to Ms. Santos on 4 March 2014, and proposed two options for her to consider:

1st option:

Mr. Rego would collect Sophia on Wednesday, 5 March 2014 from daycare at 5:30 p.m., and return her to 22 Division on Sunday, 9 March 2014 at 6:00 p.m., or

2nd option:

Mr. Rego would pick up Sophia on Friday, 21 March 2014 at 3:00 p.m. from daycare, and return her on Wednesday, 26 March 2014 at 5:00 p.m. to 22 Division or daycare.

On the same day, 4 March 2014 at 12:38 p.m., Ms. Santos emailed Mr. Campbell's office to state:

I am agreeable to Option 2.

Mr. Rego at that point believed he had a firm arrangement. However, it did not appear to be settled whether the return of Sophia on 26 March 2014 would be to 22 Division or to daycare.

Then at 12:50 p.m., on Tuesday, 4 March 2014, twelve minutes after her first email, Ms. Santos sent another email to Mr. Campbell's office:

To clarify my consent (email dated 12:30 p.m., 4 March 2014) I agree to changing the dates of your client's extended access to Friday, March 21 until Wednesday, March 26th…

I would prefer, however that pick up and drop off terms and conditions remain as ordered by Justice Dunn. Accordingly, pick up and drop off will be at 22 Division . (emphasis added)

This was an unilateral change by Ms. Santos from her agreement in her email of 12:38 p.m. 4 March 2014. She did not want the pick up on 21 March 2014 to be from daycare (which would have been at 3:00 p.m.) and she did not state a time for pick up at 22 Division (on 21 March 2014).

Next came Ms. Santos' email of the next day, 5 March 2014, to Mr. Campbell's office. It stated:

I confirm I am yet to receive a reply to my email sent to you on 4 March 2014 at 12:49 p.m., in response to your letter of even date received via email at 12:30 p.m. in which you sought my consent to a variation of the access orders of Justice Dunn dated 12 February 2014, and requested my prompt response.

Please confirm you client's March break scheduled to start Friday March 7 th is now moved to commence on Friday, March 21 st .

Given that this is a simple matter of changing the dates, access is to occur in order to accommodate your client's unavailability to exercise access as ordered, the times and the terms of access remain as ordered by Justice Dunn.

In reply to Ms. Santos, Mr. Campbell's student wrote the respondent on 5 March 2014 at 4:52 p.m.

Mr. Rego agrees to the terms set out in your letter and email of yesterday's date. Specifically, Mr. Rego will pick up Sophia on Friday, March 21 st , 2014 from Peel Regional Police Station (22 Division) at 3:00 p.m. and drop off Sophia at the Peel Regional Police Station (22 Division) on Wednesday, March 26 th , 2014 at 5:00 p.m.

We expect Sophia would have been more comfortable with a pre-school pick-up, but we accept your decision.

We trust the above is satisfactory.

Once again, after this flurry of correspondence, Mr. Rego understandably thought he had a clear arrangement; however he was soon to be frustrated and disappointed.

On Friday, 21 March 2014, Mr. Rego attended 22 Division for the scheduled 3:00 p.m. pick up of Sophia, but by 3:15 p.m., the child was not present. Mr. Rego contacted Mr. Campbell, who in turn tried unsuccessfully to reach Ms. Santos. Mr. Rego telephoned the Hickory Wood daycare staff, who told him Sophia was there, but they received specific instructions that morning, 21 March 2014, from Ms. Santos that Mr. Rego was forbidden to pick up Sophia at daycare that day. Ms. Santos told the daycare staff that the access exchange that day would be at 6:00 p.m. at 22 Division.

Mr. Rego sought police assistance. He left 22 Division to return home to print out the email exchanges between Mr. Campbell's office and Ms. Santos that confirmed the parties' access arrangement for that day. He did not have issued and entered orders, and that caused the police some consternation but they agreed to assist. By then, the police, Mr. Campbell and Mr. Rego were trying to telephone Ms. Santos at work and on her cell phone but to no avail. Mr. Campbell sent emails. The police occurrence report for the event stated that they attended Ms. Santos' residence and spoke to her.

There were intense discussions at the Hickory Wood daycare centre. Finally a decision was reached that Mr. Rego could collect Sophia from daycare at 6:00 p.m. Mr. Rego arrived there at 6:25 p.m, with two police constables. Sophia was delivered to the applicant, but only after several persons needed to be involved to reach a resolution. The daycare personnel were inconvenienced, because they were still caring for Sophia after the other children had left.

On 12 February 2014, the court granted an order for Mr. Rego's Easter access. It was to be from 3:00 p.m,. 17 April 2014, to 5:00 p.m., 22 April 2014, and access exchanges were to be at 22 Division.

Mr. Rego attended 22 Division on 17 April 2014 at 3:00 p.m. to receive Sophia but she was not there. Once again Mr. Campbell had to be summoned. Daycare advised Mr. Rego that Sophia was in attendance, and that he could pick up his daughter from daycare at 6:00 p.m. Daycare officials consulted with their superiors and their lawyer and spoke to Ms. Santos. Mr. Rego was told that he could come immediately to receive Sophia and he did.

The orders on 12 February 2014 for March break and Easter access contained police assist clauses. The provision was needed for Mr. Rego to obtain the March access.

There was an event that happened Easter Sunday in 2014 that disturbed Mr. Rego and his family, and their enjoyment of the Easter egg celebrations with Sophia. Ms. Santos had arranged with a process server to serve Carmelia Rego with a summons to appear in this trial as a witness, also the applicant was served with a contempt motion. The personal service was Easter Sunday morning. The applicant blamed the respondent for trying to sabotage their Easter, because Ms. Santos did not get her way to have Sophia with her on Easter Sunday. Ms. Santos claimed she had no control over when the process server would perform the service.

The King-Watson Report (KWR)

[139-156] Ms. King-Watson's Assessment and Findings

The court qualified Ms. Janice King-Watson as an expert in parenting capacity reports, including clinical assessments of children and families on custody and access issues. Ms. King-Watson was also certified as a mental health professional, authorized to diagnose (but not treat) mental health issues.

Ms. King-Watson conducted her assessment from April to July 2013. She saw Ms. Santos on April 10, April 17, May 1, May 15 and July 2 in 2013. The assessor met Mr. Rego on April 15, April 22, and May 6 in 2013. Ms. King-Watson also observed each party with Sophia at their respective residences. Sophia was well loved and protected in both homes, but Ms. King-Watson in her evidence at trial described the girl at her father's; "Sophia was so comfortable, as if she had been there all her life."

Ms. King-Watson also interviewed the following collaterals:

• Carmelia Rego (Mr. Rego's mother),
• Adriana Vicente and Alexander Vicente (Ms. Santos' teenage children),
• Donna Pirro (Mr. Rego's former partner),
• Alexandra Santos (Ms. Santos' sister),
• Michael Appiah (the Society's worker who assisted Ms. Santos),
• Dr. Kevin Flynn (Ms. Santos' and Sophia's doctor),
• Sue Middlemiss (Mr. Rego's girlfriend),
• Tina Shabot (employed at Bright Horizons day care),
• Ana Grainger (Mr. Rego's sister).

Ms. King Watson viewed some seventeen court documents and nine collateral reports, including society and police notes and accounts from access centres. She examined fourteen other items, including receipts for items Mr. Rego purchased for Ms. Santos.

Ms. King-Watson set out the concerns of each party at the beginning of her investigation. Those of Ms. Santos were:

(i) She believed Mr. Rego stalked her in the past (and she was still in fear of it happening). She found that conduct harassing and intimidating, and did not want Sophia exposed to it.

(ii) Overnight access did not suit Sophia, because after such visits, the little girl was aggressive at school and was biting other children. Sophia did not sleep through the night after overnights. The Respondent preferred the Applicant to have only supervised access or no access at all.

(iii) Ms. Santos did not trust Mr. Rego to care for Sophia. Ms. King-Watson quoted the Applicant to say:

Sophia does not really know [the Applicant] and there was never a relationship…[Mr. Rego] is just a guy from work.

Ms. Santos told the assessor that Sophia returned from access with bruises. Ms. King-Watson found Ms. Santos quite convincing in her presentation of events.

(iv) Ms. Santos could not envision Sophia having increased or even ongoing unsupervised access. The Applicant's five hour visits on alternating Saturdays interfered with her family time, and she believed the child should be with her more often.

(v) Mr. Rego did not take an interest in Sophia. He had not spoken to the child's doctor, Dr. Flynn, in over a year, and Mr. Rego should be building a relationship with the physician.

(vi) When the Applicant requested access after the separation, it did not make sense to Ms. Santos, because she did not believe he was the biological father. After the DNA test proved he was, the Respondent was still opposed to access, because she was convinced that his motivation was to be part of her life.

(vii) Ms. Santos oft-repeated beliefs were:

• There was and is no relationship between the parties.
• Despite the DNA evidence, Mr. Rego is not Sophia's "daddy". (Ms. King-Watson said Ms. Santos was consistent in that position right up the end of the assessment). However on other occasions, Ms. Santos said that because she sought child support from the Applicant, that evidenced that he is the biological father.
• Mr. Rego was dangerous and his actions bruised Sophia. Ms. Santos was convinced he was a threat to her personally.
• The Applicant was in love with her.
• Mr. Rego was and is a stranger to Sophia.

The concerns of Mr. Rego were:

(A) Sophia's was a planned birth, and Mr. Rego was willing to meet her needs even prior to her delivery. The fact that Ms. Santos denied access for almost two years was viewed as an act of alienation. After access was forced on Ms. Santos, she cancelled visits for non-legitimate reasons.

(B) The Applicant was concerned about Ms. Santos' mental health. Her strenuous denial of their rapport and of their earlier joint plans for their daughter, lead him to question the emotional impact that that eventually would have on Sophia.

(C) Ms. Santos severed contact with her family of origin. This meant that just as with her other children, Alexander and Adriana, Sophia would not see her maternal family. Mr. Rego was able to compensate for this loss by encouraging contact between Sophia and her mother's relatives.

(D) Mr. Rego acknowledged the good physical care Ms. Santos gave their daughter, and that the child thrived physically. However, he feared that the Respondent's need to punish him overwhelmed any appreciation of Sophia's need to be a part of his life and of the lives of the other relatives.

In her meetings with Ms. Santos, there were events that Ms. King-Watson found disquieting:

1. On 15 May 2013, at a home visit with Ms. Santos when Sophia was in earshot, the Respondent railed against Mr. Rego with her habitual litany of his not being the child's father, and "just a guy from work", and no relationship existed between the parties. Ms. King-Watson was alarmed by Ms. Santos "loud pressured speech". By that, she meant the respondent's strident talking in a fast manner, while oblivious to her interlocator's direction. The assessor tried to divert Ms. Santos from what she viewed as an inappropriate verbal assault on the child's father, which her daughter could hear.

Ms. King-Watson was unsuccessful and wrote in her report:

Again, this writer's efforts to halt Ms. Santos' remarks were ignored, and she raised her volume each time the writer attempted to interrupt her. In an effort to shield Sophia from Ms. Santos' negative remarks against the Respondent, Ms. King-Watson walked out of the Respondent's home. Ms. Santos followed, and continued to comment about Mr. Rego forging hospital documents and Sophia's birth records.

Ms. Santos' derogatory offensive against Mr. Rego was repeated on 2 July 2013 in Sophia's presence. Ms. King Watson wrote:

Again using loud and pressured speech…[Ms. Santos] maintained that [Mr. Rego's] attempts to see Sophia are really his veiled attempts to have a relationship with her, [Ms. Santos]. At other times the writer noted the child attempted to get her mother's attention, but because Ms. Santos was in the middle of repeating the emotionally laden comments about Mr. Rego, she initially ignored the child's requests for attention until she finished her remarks.

In her cross-examination of Ms. King-Watson, Ms. Santos suggested that Sophia was not present. The clinician insisted she was.

2. Ms. Santos directed that access supervisors forbid Mr. Rego to give liquids and snacks to Sophia, and no reason was given for this position. Ms. King-Watson believed that food giving is part of the nurturing, bonding process a parent naturally does with a child. By interdicting alimentation providing, Ms. Santos was interfering with the affiliation process between a father and daughter. Ms. King-Watson considered that the respondent was trying to severe the rapport between Mr. Rego and Sophia.

3. Ms. King-Watson found that Ms. Santos brought false allegations against Mr. Rego. In February 2013, the respondent alleged that Sophia was returning home with bruises on her body after every unsupervised access. Ms. Santos said she followed up with the child's physician, Dr. Flynn. When Ms. King-Watson spoke to him, his records showed that much earlier, in September 2012, Ms. Santos brought a small bruise on the child's buttocks to his attention, which was the result of a child's normal activity. He reported it to the Society in September 2012, but since then, Ms. Santos has not complained about any other bruising.

4. Ms. King-Watson observed Sophia with Mr. Rego separately and with his family. The child seemed happy and comfortable in his and their presence, and was not fearful of him or his relatives. The assessor opined that Sophia's contented behaviour was inconsistent with that of an abused child.

5. It was Ms. King-Watson's opinion that Sophia was being coached to make false disclosures.

6. In the opinion of the assessor, Ms. Santos was putting roadblocks in the way of Mr. Rego obtaining access, and this was parental alienation. Ms. King Watson wrote:

…Ms. Santos has demonstrated great passion and expended much energy in her efforts to delay the commencement of access, terminate it when it began, and sabotage the relationship between father and daughter.

7. Ms. Santos' desire to put her family of origin out of her life cast a disturbing pall over the lives of her other children. Adriana and Alexander wanted to see their maternal grandparents and other relatives, but out of respect for their mother they declined contact. This position by Ms. Santos denied her children the benefit of family association. Sophia's relationship with her maternal and paternal relatives, especially Mr. Rego, would be at risk if Sophia remains in her mother's care.

Of special relevance to Ms. King-Watson was sixteen-year-old Alexander's attitude to his father, Armando Vicente. Alexander happily saw his father regularly, but if access was no longer possible, he told the assessor he "would get over it". To Ms. King-Watson, his words signalled the fragility of the bond between Alexander and his father. It appeared Ms. Santos was not sufficiently supportive of the father-son relationship. Ms. King-Watson explained that a good parent facilitates relationships between their children and other relatives.

After a review of the parties' positions, and the facts that either supported or did not support those positions (in Ms. King-Watson's opinion), the assessor drew the following conclusions:

1. Mr. Rego was a committed and devoted father, who feared losing his role as a parent because of Ms. Santos' actions. He put his daughter's best interests ahead of his own. He appreciated the importance of involvement by Sophia in the lives of her maternal and paternal relatives. They loved Sophia and supported his parenting position.

Ms. King-Watson wrote that the reports from the supervised access centres and the Society, regarding the close bond between father and daughter, were consistent with her own observations.

2. Mr. Rego's attitude was significant to Ms. King-Watson when Sophia did not want to leave his residence after access. Father and daughter said to each other on one occasion:

Mr. Rego: Time to get ready to see mommy?

Sophia: Oh no!

Mr. Rego: Don't say 'oh-no', you know your mommy loves you and she wants to see you.

Sophia continued to protest, but the applicant and his sister re-directed the child by playing a game.

The assessor considered that Mr. Rego had an ability to shield the child from conflict and to normalize the visits. Neither he nor his family spoke negatively about Ms. Santos, and they were encouraging of Sophia's contact with her.

3. Ms. Santos was a loving and attentive mother to Sophia, and was capable of meeting her physical needs. She and her other children provided ample affection, and Sophia responded well to them. The Respondent's home was comfortable, and day care was furthering the child's educational and social needs. Sophia saw her doctor when needed.

4. Ms. Santos was not meeting her daughter's psychological nor emotional needs. This young person felt the love and emotional support from her father and his family. But what she heard from her mother was condemnation of the applicant; he was said to be dangerous and a criminal.

Ms. King-Watson explained that cognitive dissodence is the anxiety that Sophia may feel when she tries to understand how her own secure feelings about her father, contrast with negative condemnatory statements she hears from her mother. Ms. King-Watson labelled this child abuse, because the girl's sensibilities tell her she is safe and loved, but coming from her mother, one of the most important people in her life, is a very different interpretation. This contrast will be confusing for Sophia, because she will believe she cannot trust her own judgment about her father. A child abused in this way can come to feel guilt and self-hate, and be unable to perform in school, or the workplace or form meaningful associations with others. The bottom line is that the strength of her bond with the Applicant will likely be undermined. Ms. King-Watson did not see Sophia as being negatively affected yet because of her young age, but it is a matter of time, in Ms. King-Watson's opinion.

5. Ms. King-Watson believed Ms. Santos suffered from a delusional disorder. The clinician relied on the definition in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, published by the American Psychiatric Association.

Delusional Disorder:

Irrational beliefs held with a high level of conviction that are highly resistant to changes even when the delusional person is exposed to forms of proof that contradict the belief.

The evidence was apparent that contrary to Ms. Santos' convictions:

(i) the parties did have a good relationship before and during the pregnancy;

(ii) The Applicant is the child's biological father and Mr. Rego always acted as such;

(iii) For a period of time after the June 2010 separation, Mr. Rego was interested in pursuing a rapport with Ms. Santos, but for the last few years, his interest solely was in Sophia;

(iv) Mr. Rego consistenly showed a committed interest in establishing a parental attachment to his daughter;

(v) Sophia will benefit from contact with Mr. Rego.

Ms. Santos did not accept the parties' history as set out above.

Being delusional is not a psychotic disorder. Ms. Santos did not demonstrate bizarre delusions, such as a person believing he can fly. A delusional person can function well in the workplace, in social contexts, and in family relations, and Ms. Santos apparently did perform suitably in those fields.

It would be difficult even to detect a delusion if one did not know where to look. Dr. Flynn reported to Ms. King-Watson that Ms. Santos was a good mother, and he had no concerns about his patient's mental health. However the subject of Mr. Rego and his parenthood was seldom mentioned. In Ms. King-Watson's professional opinion, without a convincing change in Ms. Santos' beliefs, she is likely to persist in her views to the detriment of her daughter's emotional welfare. The respondent will do little to enhance the relationship between father and daughter, and the little girl's psyche potentially will be seriously damaged.

6. Parental alienation was defined by Ms. King-Watson as:

Programming of a child by one parent to denigrate the other targeted parent, in an effort to undermine and interfere with a child's relationship with that parent.

Parental alienation is a severe example of child abuse. Ms. King-Watson considered that Ms. Santos' efforts to deny and then sabotage access, and to demonize the applicant came from her anger at Mr. Rego, and her desire to prevent a relationship with his daughter.

In Ms. King-Watson's experience, symptoms of a parentally alienated child are that the child eventually refuses to go to the denigrated parent, and will say negative things about that person. Sophia cannot be said to be alienated yet. However, it was the assessor's opinion that if Ms. Santos' alienation of Mr. Rego is prolonged, eventually Sophia will reject her father from her life.

Ms. King-Watson's recommendation to the Court was that custody immediately change to Mr. Rego. The rationale for this proposal was in her Report:

There is no indication that Ms. Santos' behaviour and her pursuit of a severance in Mr. Rego's relationship with Sophia will end any time soon. Therefore, if all things remain the same, Sophia will continue to be subjected to this emotionally harmful behaviour.

It was also important to Ms. King-Watson that she believed Mr. Rego would facilitate access to Ms. Santos and to her family. The clinician recommended frequent access by Sophia to Ms. Santos. For example, until age six, the child should see the respondent on alternate weekends, from Friday afternoons until Monday mornings, special events and vacations should be shared. However, these suggestions were eclipsed by the assessor's subsequent caveats.

The clinician suggested that Mr. Rego should take counselling to assist in a resolution of any remaining feelings he has about Ms. Santos, and this would help to manage his conflict with her. However, Ms. King-Watson strongly recommended that Ms. Santos undergo psychological testing to determine her level of psychological functioning, particularly as it relates to her mental health. Then the assessor wrote in paragraph 26 of her recommendations:

As a condition of ongoing unsupervised access, [Ms. Santos] should be required to follow through with any recommendations made by the psychologist. In addition, she might benefit from individual counselling to assist her in better managing her unresolved feelings about Mr. Rego and his role as co-parent with her.

Ms. King-Watson's thirty-third recommendation was one that this court must consider very carefully:

If Ms. Santos continues to act in a manner that undermines Mr. Rego's parenting of Sophia, and places the child at risk for emotional harm, her access may require supervision and a reduction in time.

There were other sensible proposals in Ms. King-Watson's Report:

1. Any change in day care, or the child's residence with the applicant at the agnate grandmother's, should be gradual.
2. The parties should be flexible in changes to a parenting schedule.
3. Open conflict between the parties in Sophia's presence must be avoided.
4. Mr. Rego and Ms. Santos are obliged to shield Sophia from their personal conflict, and not speak negatively about each other when the child is present.
5. Ms. Santos wanted to change Sophia's name from Sophia Franco dos Santos Rego to Sophia Franco dos Santos. Ms. King-Watson recommended that the name should remain as Sophia Franco dos Santos Rego.

At trial, Ms. King-Watson stated: I hope Ms. Santos will focus on Sophia and not Mr. Rego.

THE BERRY REPORT

[157-163] Dr. Berry's Critique and Its Limitations

Richard Berry, Ph.d., C. Psych., did a Report dated 14 April 2014 (the Berry Report), and he testified in this trial. Dr. Berry is an expert in parenting capacity and custody and access issues. Ms. Santos engaged him to do a critique of Ms. King-Watson's Report dated 2 July 2013 (the KWR). Unfortunately, Ms. Santos did not make the Berry Report available to Mr. Campbell when he questioned Ms. King-Watson about the KWR. Hence, Ms. King-Watson has not had the opportunity to respond to the criticisms Dr. Berry made about the KWR.

Dr. Berry did not meet Mr. Rego, nor was Sophia seen with either parent, and he did not speak to any collaterals. He did review a large number of documents listed in the Berry Report, and he must have had extensive discussions with Ms. Santos, but his report did not give any particulars at all about that, which is a significant oversight. He only reviewed a portion of the many notes from the Society in Exhibit 20, which Ms. King-Watson saw in their entirety.

It is also important to emphasize that Dr. Berry never talked to Ms. King-Watson. He did not review her notes, and his criticisms of the KWR were based only on the written report. By way of contrast, this court had the experience of Ms. King-Watson's evidence at trial, and of her cross-examination by Ms. Santos. In her viva voce testimony, Ms. King-Watson clarified and amplified her observations and conclusions, and she explained the significance of the reports from the Society, the access centre reports and collateral information.

Dr. Berry set out first to consider whether the methodology in the KWR was consistent with professional standards. He found that it was, with five exceptions (to be noted further herein). He also studied whether the findings, conclusions and recommendations in the KWR were substantiated by the information and data gathered by Ms. King-Watson. He determined they were not, and that therefore the KWR recommendations should not be followed.

I do not intend to do a review of Dr. Berry's critique of the KWR. However he did make observations that were not consistent with the totality of the evidence received by this court, and these shortcomings must be noted, because his conclusions merit being challenged.

[The court then provides a detailed analysis of Dr. Berry's criticisms and finds them to be largely without merit, noting that Dr. Berry did not meet Mr. Rego, did not conduct his own assessment, and appeared to be biased in favor of Ms. Santos. The court concludes that Dr. Berry was "little more than a hired gun to support the Respondent in her refutation of the KWR recommendations."]

The Involvement of the Peel Children's Aid Society

[164-176] The Society's Engagement and Observations

The Society was engaged with the parties from June 2010 until 23 September 2013, when the family file was closed. Exhibit 20 contained the records of its engagement.

The Society opened its investigation in June 2010 when police reported a domestic incident. (This was referenced earlier in these reasons when Ms. Santos tried to remove Sophia from Mr. Rego's grasp, and there was a minor conflict between the parties.) The case remained open until 5 July 2011, then it continued on a voluntary basis.

There were other early matters that involved the Society. On 10 March 2012, police reported Mr. Rego's complaint that Ms. Santos was following him. On 11 April 2012, police advised the Society that Ms. Santos objected that Mr. Rego was stalking her. The Society's notes indicated that police were aware of frequent allegations by each party against the other. The Society determined there were no protection concerns, but the parties' conflict raised the serious possibility of a risk of emotional harm to Sophia. On 29 August 2012, Michael Appiah B.S.W., a child protection worker with the Society, was assigned to support the family through the custody and access case.

[The court then provides extensive excerpts from the Society's case notes documenting Ms. Santos' statements and behavior, including her allegations of bruises on Sophia, her claims that Mr. Rego was abusing the child, and her consistent opposition to access. The notes show Mr. Appiah's observations that Ms. Santos was "very bitter" towards Mr. Rego, that she "detests" him, and that her behavior was "very concerning" and appeared designed to "get Victor Rego into trouble by coming up with allegations."]

Mr. Appiah's concerns after that meeting were:

(i) Ms. Santos denied the veracity of the whole King-Watson report (except for Mr. Rego being Sophia's father);

(ii) Sophia was neglected when she asked her mother for aid;

(iii) A prime focus by Ms. Santos in the meeting was on Mr. Rego's trying to prove the parties had a relationship;

(iv) Ms. Santos repeatedly used the word "stupid" in Sophia's presence, and then complained that her daughter was learning bad words at the Applicant's residence. Mr. Appiah did not consider that the use of the word "stupid" was appropriate for a child of Sophia's age to hear.

The Witnesses at Trial

[177-261] Credibility Assessments

[The court provides detailed assessments of the credibility of all witnesses, including:]

Donna Pirro - A pleasant and honest person who described Ms. Santos' vendetta against her through disturbing emails.

Sue Middlemiss - Testified in a clear and reliable fashion about Mr. Rego's accomplished parenting abilities.

Antonio Mota and Bronmen Bruch - Called by Ms. Santos on financial issues; their evidence was not significant to the case.

Susan Lawrence - Testified honestly about Ms. Santos' parenting ability and Sophia being a normal, happy child.

Alexandra Santos (Ms. A. Santos) - The Respondent's estranged sister who believed Ms. Santos had mental issues and that Sophia's future would be better with Mr. Rego.

Carmelia Rego - Mr. Rego's mother, presented as astute, intelligent, and loving, with reliable recollections of events.

Dr. Richard Berry - While having a sterling reputation, his report was undermined by his failure to meet Mr. Rego, conduct his own assessment, or speak with Ms. King-Watson. The court found he was "little more than a hired gun to support the Respondent."

Michael Appiah - A reluctant but reliable witness whose observations over eight months were consistent and credible. His notes documented Ms. Santos' opposition to Mr. Rego's parental rights.

Ms. King-Watson - The court found her to be well-prepared, knowledgeable, and credible. Where her evidence conflicted with Ms. Santos', the court accepted Ms. King-Watson's observations without reservation.

Claudia Santos - The court found Ms. Santos' testimony to be characterized by:

• Remarkable inconsistencies and contradictions
• Evasiveness in answering direct questions
• Deflection of blame onto Mr. Rego
• Statements that contradicted overwhelming evidence
• Refusal to concede any point
• Apparent dishonesty (lying to Mr. Appiah about phone calls, claiming Dr. Flynn was lying)

The court concluded that Ms. Santos' credibility was severely undermined and that her testimony was unreliable.

Victor Rego - The court found Mr. Rego's testimony to be orderly, well-documented, and credible. He spoke freely about his concerns for Sophia without rancor, demonstrating a focused commitment to protecting his daughter's welfare.

A Description of Sophia

Ms. Tina Shabot, (with the Bright Horizons Daycare Centre, where Sophia was enrolled as of 31 May 2013), told Ms. King-Watson that Sophia was on target socially and academically given her age. Ms. King-Watson described Sophia as an engaging and playful child, with a permanent smile on her face. Mr. Appiah considered that she was a happy and contented little person. Ms. A. Santos and Ms. Middlemiss viewed Sophia with the Applicant, and they did not see any developmental issues.

Sophia was observed by Ms. King-Watson to be equally comfortable in the respective residences of the parties and she related well to her relatives at each home. The child appeared to be flexible with change when the Respondent placed her in different day care facilities. There were numerous changes in access centre staff who were part of her life. The nature of the access was in flux, going from supervised to unsupervised, and then to overnight and now for extended periods. She also adjusted well to relating to new people – the Applicant's relatives. Through it all, the little girl maintained her composure and pleasant personality.

The only possible sign of alienation or cognitive dissonance as of yet were the past biting incidents at day care, and that was likely unrelated to access issues. Ms. Santos took Sophia to Dr. Euling Chung, psychologist, for an assessment and the little girl was seen on five occasions between August and October 2013. Ms. Santos reported that Dr. Chung did not find that Sophia had any serious issues. She was showing normal responses to changes in her routine.

Ms. Santos had a consistent concern for what she perceived as a negative impact on Sophia by Mr. Rego's continuing requests for access changes. The Respondent believed that Mr. Rego was insensitive to the effect the access variations had on their daughter. Ms. Santos pointed to the biting incidents at day care, to the child's alleged sleep disturbance, and her reverting to the use of a pacifier, as examples of the child's upset over access changes. No independent evidence was ever given for those concerns.

It appeared that the only person who thought the access variations affected Sophia negatively was Ms. Santos. Mr. Appiah and Mr. Rego did not find that the girl was distressed. The school biting incidents were very old news. There was no other evidence of sleep disturbance or use of a pacifier. It would seem that Sophia only benefited from the increased access.

Ms. Santos has been taking Sophia for play therapy with Annette Ambursley, B.A., B.S.W., R.S.W. at the Family Enhancement Centre in Brampton. Ms. Ambursley wrote a letter, dated 5 February 2014, to indicate that she was at the beginning phase of a therapeutic relationship with Sophia. Ms. Ambursley reported:

Sophia…presents as an imaginative child with good verbal skills…she has experienced secure attachment and is able to explore new relationships from that base…(emphasis added)

If that finding that Sophia has secure attachment now is correct, it is very significant, because it means the little girl will be able to bond with Mr. Rego and his family. The finding confirms Sophia's resilience in being able to respond well to the different access supervisors and day care officials she has come across, and most importantly, to feel comfortable and secure in Mr. Rego's custody.

Sophia's Name Change

The Applicant wanted Sophia's name to be "Sophia Franco dos Santos Rego". The Respondent averred that the child's name, in accordance with her birth certificate, should be "Sophia Franco dos Santos".

There was a lot of confusion in the evidence about the child's birth certificate, and which party did what in obtaining it. None of that information was important in this trial, except for a credibility issue, and there was enough evidence about credibility without that data.

Mr. Rego sought leave to add "Rego" to the girl's surname, and this was opposed by Ms. Santos.

The Respondent wanted to preserve the child's surname as "Santos" for cultural and family reasons. Mr. Rego believed his name should be part of Sophia's, since he is her father. Ms. Santos was opposed to any name connection between the Applicant and Sophia. Mr. Campbell asked Ms. Santos:

Q. Why is it important that Sophia's name not include Mr. Rego's name?

A. There is no reason to substitute Mr. Rego's demands to give Sophia his last name.

Ms. King-Watson opined that the child should have Mr. Rego's name, in view of his active participation in her life.

I agree with the Applicant's position. Leave is granted to Mr. Rego to change Sophia's name to "Sophia Franco dos Santos Rego", and the court dispenses with the Respondent's consent.

Restraining Orders

[184-195] The Restraining Orders Against Mr. Rego

Mr. Rego consented to a temporary restraining order against him by Justice Maresca on 15 July 2011. This was replaced by what was said to be a final restraining order on 6 October 2011 by Justice Baldock also on consent. The Applicant did not have a lawyer when the orders were issued. Paragraph 3 of the 6 October 2011 restraining order stated:

This order shall remain in effect until the court orders that it is terminated or changed.

It is unlikely Ms. Santos understood the impact of that sentence. The Applicant's amended application requested that the restraining order be vacated. Mr. Campbell relied on Family Law Rule 8 (2.1) for the authority that a motion to change is not required, and I accept that principle. This court is vacating the restraining order of 6 October 2011, and for greater certainty, it also vacates the temporary restraining order of 15 July 2011. I do not understand how there could be a final restraining order so early in the court process. I would have expected only a temporary order until all the parties' evidence was before the court.

In Ms. Santos mind, she believed she had reason to fear Mr. Rego. However, I accepted Mr. Rego's evidence that 15 November 2010 was his last contact directly with the Respondent. After that, communication between the parties was only by the Applicant's lawyer, either directly with the Respondent, or with her lawyer when she had one. There was no need for any restraining order, and Mr. Rego was never charged with any breaches of an order. The only reason Mr. Rego consented to the restraining orders was to try to obtain access. Even after they were issued to Ms. Santos' satisfaction, he still had difficulties obtaining her cooperation for access.

At trial, Ms. Santos claimed that the reason Mr. Rego agreed to a restraining order was to avoid a criminal trial. The concept of a criminal trial arose from Ms. Santos swearing an information on 24 November 2010, over three years ago, that between June and November 2010, Mr. Rego allegedly harassed her. The relief sought in the information was that Mr. Rego enter a peace bond, pursuant to Section 810 of the Criminal Code. That is not a "criminal trial". When the Crown's office learned there would be a restraining order, it withdrew Ms. Santos' information, and cancelled the proposed peace bond hearing. I do not find that Mr. Rego agreed to a restraining order to "avoid a criminal trial". He consented to it only to obtain Ms. Santos' assistance with access.

Ms. Santos maintained recently that Mr. Rego was sending unwanted messages to her in Sophia's school bag, that returned to the Respondent with Sophia, after access to Mr. Rego. This was a reason for her requesting the continuation of a restraining order, to protect her from unwanted written communications.

Mr. Rego testified that he feared such allegations, and he ensured that a daycare staff person watch him whenever he dealt with the child's school bag. I accept Mr. Rego's testimony that he did not send messages to Ms. Santos in Sophia's school bag.

Ms. Santos used the restraining order improperly as a sword, and not a shield. She sent copies of the order to Sophia's day care providers, to Mr. Rego's bank and to access centre supervisors, with a view to defaming the Applicant's character. It is proper that the restraining order be abandoned, because it is not needed, and likely never was, and was used improperly to interfere with Mr. Rego's relationship with Sophia's caregivers.

Ms. Santos feared that without a current restraining order, Mr. Rego would revert to the "bad person" he was before the order was introduced. Specifically, she dreaded what she perceived to be his bullying. The Respondent pointed to what she thought was Mr. Rego's unacceptable behaviour over the March 2014 changes in March Break access, when he left Sophia with "strangers" (i.e. Sophia's paternal grandmother) when the child should have been returned to day care.

However the court finds that Mr. Rego is in need of a restraining order against Ms. Santos. During the trial, the Applicant stated his requirement for such an order. In her written closing statement, Ms. Santos took no position with respect to Mr. Rego's request.

It is highly unlikely, even at the conclusion of this trial, that Ms. Santos accepted that Mr. Rego could plausibly request a change in custody, nor that this court favourably would consider his request. As Mr. Campbell stated, there is no predictability to Ms. Santos' actions upon the release of this judgment. Consideration must be given to Mr. Appiah's observations about Ms. Santos in the Society's notes:

• 28 October 2012 – Ms. Santos was "very bitter" after the court awarded Mr. Rego unsupervised access.
• 20 December 2012 – The court granted overnight access. Ms. Santos was described in the notes as being "extremely upset" and that she "detests" Mr. Rego.
• 3 July 2013 – Mr. Appiah wrote that Ms. Santo's behaviour was very concerning. She was bringing allegations to get Mr. Rego into trouble.

The worries the court has at present, necessitating a restraining order against Ms. Santos, are that she may:

(i) harm Mr. Rego;

(ii) try to remove Sophia from Mr. Rego's care;

(iii) try to withdraw Sophia from the child's day care provider;

(iv) make statements to or about Victor Rego of a derogatory nature in Sophia's presence.

There is authority for the court to make a restraining order against Ms. Santos based on the voluminous evidence heard, including the testimony by Ms. Pirro, about Ms. Santos sending her intimidating emails, and dispatching a private investigator to Ms. Pirro's parents to impugn Mr. Rego's character.

The court also relies on the authority in subsection 28 of the Act for the restraining order against Ms. Santos:

Custody and Access – Orders

28. Powers of Court – (1) The court to which an application is made…

(b) by order may determine any aspect of the incidents of the right to custody or access; and

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

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

POSTING PICTURES OF SOPHIA ON THE INTERNET

[197-213] Internet Postings and Publication Ban

Sometime before October 2011, Ms. Santos believed Mr. Rego had posted pictures of Sophia and Ms. Santos and her children on the internet. The Respondent objected to all such postings, and she raised this as a concern on 6 October 2011 before Justice Baldock, when she was assisted by Patricia Nelson and Mr. Rego was self-represented. Her Honour granted a temporary order as follows:

3. The parties shall refrain absolutely from displays in publishing or posting any photo or likeness of the child on the internet or other public network or place.

Ms. Santos remonstrated that the posted pictures of Sophia and comments by Mr. Rego were intimidating and offensive, and that was part of her reason she claimed harassment in her information sworn in November 2010. Ms. Santos also believed that Mr. Rego induced other persons to post such pictures, although she had no evidence to support her conviction.

One year and seven months after the 6 October 2011 restraining order, Ms. Santos swore her affidavit of 24 May 2013. In it she complained of internal postings in March 2012, by Mr. Rego, which was fourteen months prior to her affidavit. The 16 March 2012 posting read:

To Sophia Rego – my "angel", 2 years ago I was the first to hold you, I was the first one to feed you. Today you turned 2 and although I am unable to see you and be there for you. One day you will ask why, and when that day comes, I will simply tell you to ask your mother. Just know this, I love you Sophia. Happy Birthday.

Ms. Santos' concerns about the postings were:

• Mr. Rego sought to draw attention to himself.
• People were making sympathetic comments about Mr. Rego on line, and these persons had not met Sophia nor herself.
• When pictures of Ms. Santos, her children, and Sophia and presumably also Mr. Rego were posted on Facebook, that could lead readers to believe the parties were a couple and a family.
• The Respondent felt threatened by a posting allegedly made by Mr. Rego in the summer of 2010, when the parties were in high dudgeon.

It has been 109 days since my daughter has been denied her civil rights as a human being to not be allowed to see her father by Claudia Santos, her mother. As the days add up, the worst it will be for Claudia Santos, as the courts will not take too kindly for a mother denying a child's basic rights. The better it is for me.

Ms. Santos believed that further pictures of the child by Mr. Rego were posted on 17 February 2013. The Respondent filed a contempt motion dated 14 April 2014 in this court, requesting that the Applicant be found in contempt for not complying with Justice Baldock's temporary order of 6 October 2011 regarding the March 2012 postings.

In a separate endorsement by myself, that motion was dismissed and reasons given.

Now the Respondent seeks an order prohibiting publication on the internet of pictures of Sophia and herself and her family, and banning comments about her or Sophia, because of postings Mr. Rego may do in the future. The request was opposed by the Applicant.

The internet is a relatively new communication forum that does not have established rules of play. Users are on their own to show respect, accuracy and good grace in their publications. Mr. Rego in the past demonstrated his great pride in his daughter that lead to postings of the child's pictures. I think he could have been a little more tactful in his posted messages, but as just stated, there is a wide range of comments that can be made with impunity. Some people are concerned that children can be located by persons who wish to do harm. Care must be taken to avoid descriptive or locational information in pictures or messages.

Ms. Santos is a very private person, perhaps obsessively so. As she testified, only her closest friends even know about Mr. Rego as Sophia's father. The solution is for Mr. Rego to be circumspect in his posted messages, and for Ms. Santos to be more tolerant of internet communication. I see no reason why Mr. Rego should be interdicted from, or even regulated in his use of internet postings. The only harm I can see from postings would be an intrusion into Ms. Santos' unreasonable demand for all-encompassing privacy. If he were allowed to do any postings even under court restricted conditions, my concern is that Ms. Santos would find fault, and require court attendances to allege contempt.

Another facet of Ms. Santos' concern is that persons other than Mr. Rego may make postings. The Respondent may believe the Applicant is encouraging others to do so, but that is not probable. In any event, it is not possible for this court to require Mr. Rego to control who else posts messages on the internet.

There will be no order restricting Mr. Rego from posting pictures of family or comments on the internet. For greater certainty, there will be a final order to vacate paragraph 3 in the temporary orders of Justice Baldock dated 6 October 2011, which prohibited Mr. Rego from internet posting of family pictures and related comments.

Ms. Santos argued that the case of Chartrand v de Laat is an authority to support her request for a publication ban, because in Chartrand, the court did grant such a demand.

[The court distinguishes Chartrand on the basis that the father in that case had mental health issues, made threatening postings, and engaged in intimidating behavior, whereas Mr. Rego's postings were expressions of pride in his daughter and did not pose a security risk.]

CASE AUTHORITY

[214-234] Applicable Case Law on Parental Alienation

Mr. Campbell referenced Ottewell v Ottewell, 2012 ONSC 5201, as an authority for this court changing custody.

The facts in Ottewell were remarkably similar to the case at bar. Each parent of two children, aged five and eight, sought custody and the primary residence had been with the mother. The facts revealed that the mother:

1. Was uncooperative with the father and tried to disengage the children from him;
2. Made derogatory statements about the father to the children, portraying him as danger;
3. Denied access and failed to tell the father about the children's activities;
4. Deliberately tried to alienate the children from their father;
5. Had no insight into how her conduct negatively impacted the children, and did not take responsibility for parental conflicts and did not pursue recommended counselling.

On the other hand, the father:

A) Was a concerned, caring parent who made himself available to the children;

B) Demonstrated his commitment to act in the children's best interests; he minimized parental conflict and encouraged cooperation with the mother;

C) Promised to continue to promote the mother as an important person in the children's lives.

The court found that the father testified in an honest and trustworthy fashion. The judge said about the mother's evidence:

[She] was consistently evasive, woefully inconsistent, and wholly unreliable as a witness. Her credibility was undermined, not just by her own confusing contradictory and unsupported direct testimony, but also by her pattern of evasiveness in answering direct questions put to her in cross-examination.

Justice McCarthy could have been describing Mr. Rego and Ms. Santos in their giving of evidence.

The father was awarded custody. It was the mother's actions in alienating the father that was a crucial factor in the decision.

Justice McCarthy quoted Justice Mossip in Reeves v Reeves, (2001) 102 A.C.W.S. (3d) 1116 (S.C.) regarding parental alienation:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent, simply demonstrates the irresponsibility of the parent who has the children, and demonstrates that parent's inability to act in the best interests of their children…a healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

Justice McCarthy also cited Justice Trussley in Tremblay v Tremblay, [1987] 6 W.W.R. 742 in the Alberta Court of Queen's Bench. Justice Trussley wrote:

I start with the premise that a parent has the right to see his or her children, and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent, without sufficient justification, such as abuse or neglect, is in itself a form of child abuse.

In Tremblay, the court found that the mother denied the children the right to have a relationship with their father and access was denied. The mother was found to be attempting to instill in them a fear of their father. The facts did not reveal the children's ages. The father was awarded custody.

A.A. v S.N.A., 2007 BCCA 363, British Columbia Court of Appeal, had facts that lead to judicial pronouncements that were inciteful to the case at bar.

In a custody dispute at trial over the future of a ten-year-old child, the judge found that it would be harmful for the child to remain in the mother's custody. The mother was "highly manipulative" and "intransigent" and "blind" to [the child's] interests, and she prohibited access to the father for over two years. Her alienating conduct lead to attachment disorder in the child, with underlying feelings of depression, anger and interpersonal aggression to a point where the child did not want to see her father. The trial judge found no parental deficiencies in the father, however he still awarded custody to the mother. Of importance to the trial judge, was the fact the girl did not want to see her father. The judge also was concerned that if custody were transferred to the father, in future court proceedings, the court would not be able to control the chaotic results of a forcible removal of a child from the custodial mother's care.

The father appealed and he was given custody. The appeal court found that a continued placement with the mother would be so detrimental to the child that a change had to be made. The appeal court relied heavily on the opinion of a psychologist who determined that the child's opposition to contact with her father sprung from her mother's influence. The youth could not go against her primary caregiver's wishes. The appeal court accepted the psychologist's opinion, that the girl's opposition to her father would be short term and not devastating. The court considered that if the child were left in the mother's alienating custody, there would be long term damage. Yes, there was a risk of a breakdown if the child were removed from the mother, but to take the risk and place the child with the father was preferable, because there was a greater possibility of a successful future for the girl with a caring father, as opposed to a "highly manipulative and intransigent mother" who was "blind" to her child's interests.

In the three cases, Ottewell, Tremblay and A.A. v S.N.A., the acts of alienation by the custodial parent were sufficient to change custody. In Ottewell and Tremblay, the court did not need to determine whether the alienating acts had succeeded in turning the children against their father. The courts accepted that the alienation per se was sufficiently deleterious to warrant a change in the primary residences, without proof of actual injury to the child.

In A.A. v S.N.A., the mother actually turned the ten-year-old child against the father. Rather than leave the youth in the toxic custody of an injurious parent, the court changed custody, even though the youth had been living with the alienating parent for over two years.

The law is clear that an alienating parent will lose custody to the other parent who establishes that he or she:

1. will consistently put the child's best interests first;
2. has promised to do what can be done to ensure contact between the child and the other parent;
3. is found to be honest and forthcoming with the court;
4. will try to cooperate with the other parent by sharing information;
5. has some skill in minimizing conflict with the other parent;
6. has been seen by an outside agency, such as a children's aid society or assessor to have parenting skills

Mr. Rego amply had all of those attributes.

Ms. Santos proposed several cases as authorities. They were:

• Kaplanis v Kaplanis
• Graham v Bruto, 2008 ONCA
• Roy v Roy, 15619 (On C.A.)
• Bilopavlonic v Bilopavlonic, 2008 ONCA 380

These cases dealt with shared parenting and joint custody issues, which were not relevant to the case at bar.

• MacGyver v Richards
• Chartrand v de Laat

The issues in these cases centred around the rights of access parents, and were not helpful to the case before the court.

Parks v Barnes

The facts in this case had some similar overtones to Rego v Santos. In this case, a trial judge gave custody to the father. The court found that the mother was hostile to the father, and she did not accept or promote a relationship between father and son who was about eight years of age. An assessment stated that the mother should change her attitude towards the father-son relationship, and if she did not, there should be a consideration of a change in custody to the father. The trial judge found that the mother's views had not changed, and despite the close accord between mother and son, custody should pass to the father.

On appeal, the court found that:

1. The mother's conduct did not adversely effect the father-son rapport.
2. The son was well adjusted in school and in the community, and he had a close attachment to his father.
3. The father conceded that he had not been denied access, despite the mother's negative feelings towards him.

The appeal court returned the son to the mother's custody. In Parks, unlike Ottewell and Tremblay, the court did consider whether the mother's actions actually damaged the bond between father and son. However, the mother's conduct never amounted to parental alienation, because father and son always kept their close association with each other.

FINDINGS OF CREDIBILITY

[235-261] Credibility Determinations

[The court provides detailed credibility findings for each witness, concluding that:]

• Ms. Santos' testimony was characterized by evasiveness, inconsistency, and unreliability
• Mr. Rego's testimony was orderly, well-documented, and credible
• Ms. King-Watson was a reliable and credible expert
• Mr. Appiah provided consistent and credible observations
• Where evidence conflicted between Ms. Santos and other witnesses, the court accepted the testimony of the other witnesses

THE CHILDREN'S LAW REFORM ACT (the Act)

[262-291] Application of the Best Interests Test

The court will consider the evidence in light of the clauses in subsection 24(2) of the Act.

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 claiming custody…of the child,

This four-year-old girl lived all her life with the Respondent. Since 2010, Sophia has been having increasing contact with the Applicant, however she has not spent extended time with him, because of his difficulty in obtaining access.

Although Ms. Santos believed their daughter has been and is stressed by the amount of access she has had, I believe Sophia has a resilient nature and disposition. The access supervisors' reports stated that she responded well to her father's care. Mr. Appiah, Ms. Carmelia Rego, and Ms. Middlemiss all commented on the close bond between father and daughter. Ms. King-Watson observed that Sophia was so comfortable at the Applicant's residence that it appeared she had lived there all her life.

The court can conclude that Sophia was responding equally well to the love, affection and emotional ties with each party. Dr. Collins found in his assessment that Mr. Rego had a caring capacity to form a close bond with Sophia. It may well be that Mr. Rego's attention and loving disposition compensated for the time he was kept away from her by Ms. Santos' objections to his access.

[The court then applies each factor under section 24(2) of the Children's Law Reform Act, finding that while Ms. Santos provides stable physical care, Mr. Rego is better positioned to meet Sophia's psychological and emotional needs and to facilitate her relationship with both parents.]

CUSTODY

[292-307] The Custody Decision

The central issue in the case is this: What is in Sophia's best interests? Is it best to preserve the status quo, which would mean Sophia remains in Ms. Santos' custody? Or is it better to change custody in favour of Mr. Rego, because of present and future concerns expressed by Ms. King-Watson and Mr. Appiah?

Sophia has been thriving in Ms. Santos' care. Dr. Chung, the child's psychologist, reported that, according to Ms. Santos; and all the witnesses who saw Sophia, viewed a happy, intelligent little girl. The biting incidents by Sophia at day care (which stopped long ago) were not necessarily the child's reaction to access, and Ms. King-Watson acknowledged there was unknown causation for those events. The evidence did not reveal any other worrisome aberrant concerns about Sophia's present welfare. The question remains, why move Sophia when she is doing so well? The access has been successful and Sophia was benefitting from it, and Ms. Santos at trial did not openly resist its continuance. There is a strong argument in favour of preserving custody with Ms. Santos, and this court fully acknowledges that.

Then what are the arguments to support a change in custody? Are they just theories about what alienation may do in the future? If it is just a possibility of future events, why should credence be given to them, when the status quo is recognized as a benefit to the child? Or are there real and present concerns to support an immediate change in custody? The court finds that there are real and present concerns about Sophia's mental and emotional well-being to require an immediate change in custody.

Ms. King-Watson identified the following present areas of relevance:

1. There is an ongoing child protection issue, which was recognized by the Society in its first involvement in 2010. Ms. Santos' actions in ignoring Mr. Rego's parental rights placed the child at risk of emotional and psychological breakdown. There was no indication in the evidence that Ms. Santos has any higher regard for Mr. Rego's parental rights than she did in 2010.

2. There is a consistent four year pattern of Ms. Santos' efforts to alienate the parties' daughter from her father. These efforts included her repeated objection to access being expanded, and when it was, the Respondent often failed to facilitate it. She used subtle ploys, such as forbidding Mr. Rego to give food to Sophia during access, and prohibiting contact between him and daycare providers by telling staff about the restraining order. Ms. Santos spoke of Mr. Rego being a criminal and a bad person when Sophia was in ear shot. The Respondent would lie, as she did to Mr. Appiah, and when she told the Bartimaeus access supervisor that access exchanges should be in the Peekaboo parking lot. She lied when she told Mr. Appiah that she had informed Dr. Flynn about further alleged bruises on Sophia. Ms. Santos wrongly accused Mr. Rego of bruising Sophia during access. Ms. Santos made many efforts to demonize Mr. Rego, all with the purpose of frustrating the continuing attachment between Mr. Rego and Sophia.

3. It was Ms. King-Watson's opinion that Ms. Santos presently suffers from a delusional disorder, by holding as a firm belief that Mr. Rego is not part of their child's life and never has been. This concern is more than a theory in my opinion; it is an accurate perception. In contrast to the overwhelming evidence by Mr. Appiah and Ms. A. Santos, Ms. Rego, and Ms. Middlemiss about Sophia's closeness to her father, the Respondent said:

• Sophia barely knows Mr. Rego.
• Mr. Rego does not spend time with Sophia.
• Over three years, Mr. Rego made Sophia's life difficult. He removed quality from Sophia's life.

It is astonishing that Ms. Santos would say this on 5 May 2014, the thirteenth day of this trial. I do not believe she understood how detrimental her statements were to her position, that custody should remain with her. It is worrisome that she could still hold those beliefs in light of the voluminous evidence that there is close attachment between father and daughter.

At trial Ms. Santos purported to recognize and protect Mr. Rego's parental rights, yet she said in testimony:

• For four years, Mr. Rego was offered reasonable access.
• I never interfered with Mr. Rego's relationship with day care.
• I do not interfere with Mr. Rego's parental rights.

Each of these statements was in sharp contrast to the balance of the evidence. The court finds that Ms. Santos was only estopped from fully denying Mr. Rego's parental rights by the continuing court support for the Applicant's access requests.

There is subtle alienation of Mr. Rego by Ms. Santos that is ongoing. The Respondent at trial had nothing positive to say about the Applicant. She remarked:

• Mr. Rego tries to undermine my role as a custodial parent.
• Mr. Rego does not seek structure with Sophia. He wishes to do as he wishes.
• In looking at Mr. Rego's behaviour over fifteen days of trial, he remains focused on himself and his needs and wants.
• Mr. Rego wants to take over my life.
• This trial is about Mr. Rego not wanting to pay child support.
• Mr. Rego tries to alienate Sophia from me.

The court finds that there are real and present concerns to support an immediate change in custody. Ms. Santos does not want Mr. Rego to be part of Sophia's life. I am convinced that if custody were to remain with Ms. Santos, no matter how structured the access regime might be, Ms. Santos would erect roadblocks to Mr. Rego's access. The Respondent did that through the last four years of litigation, and as recently as the March school break access in 2014. Ms. Santos has a consistent history of first agreeing to the provisions in access orders, then thwarting their implementation. In this regard, please refer to the limited success Mr. Rego achieved after he obtained access orders from Justice Baldock, Justice Maresca, and Justice Pawagi, as set out earlier in these Reasons for Judgment.

Ms. Santos had difficulty even saying Mr. Rego's name; she was unable to refer to him as Sophia's father.

1. At trial, when being cross-examined by Mr. Campbell, Ms. Santos consistently referred to Mr. Rego as "your client". I remarked on it by being rather unusual, but Ms. Santos continued to use the term.
2. At another point in the trial, Mr. Campbell asked Ms. Santos:

Q. Why won't you say Mr. Rego's name?

A. I do not see what that has to do with Sophia's relationship with the Applicant.

3. At a home visit at Ms. Santos on 24 April 2013, Mr. Appiah recorded Ms. Santos saying that Sophia did not know Mr. Rego as "Dad"; she only referred to "visits" with the Applicant. (Mr. Appiah found that Mr. Rego was the only person Sophia called "Dad".)
4. In a telephone call between Mr. Appiah and Mr. Rego on 30 July 2013, there was confirmation that Sophia was with the Applicant. Ms. Santos had said earlier that she did not know where their daughter was. Mr. Rego worried that Ms. Santos' anger at him prohibited her from even speaking to Sophia during the vacation, because he would have been present during a talk between Sophia and her mother.

Mr. Appiah's notes on that occasion read:

It is concerning that [Ms. Santos] does not want to mention [Mr. Rego's] name at all, and it appears her strained relationship with Mr. Rego is affecting her mentally…

There is another relevant point to be made that is illustrative of Ms. Santos's delusional thinking. At trial, she said about the Society:

The Society did not raise a focus on my ability to parent Sophia in 2010. Mr. Rego opened the Society's file against me. The Society's file was opened because of police and the Society's concern regarding Mr. Rego's behaviour.

The Society only had concern about Ms. Santos' conduct towards Mr. Rego. Mr. Appiah stated clearly that the parties' conflict lead to a risk of emotional abuse in Sophia, and that it was Ms. Santos who engineered the conflict. The Society had no concerns about Mr. Rego's behaviour; all he sought was access to Sophia.

The court cannot overlook Ms. Santos' comportment when she was on diatribes about Mr. Rego in Sophia's presence. Ms. King-Watson and Mr. Appiah saw this to a point where Sophia's needs were overlooked when the Respondent was castigating Mr. Rego. Ms. Santos' speech could not be interrupted. Ms. King-Watson left Ms. Santos' residence with Ms. Santos still expostulating about Mr. Rego's shortcomings in Sophia's presence. If Ms. Santos can neglect Sophia when professional observers were present, one can question what she would do or say in Sophia's presence when witnesses are not present.

I conclude that there are real and present dangers to a continuation of Sophia's relationship with Mr. Rego, if custody continues with Ms. Santos, and if Mr. Rego has to rely on Ms. Santos to facilitate access. Each of Ms. King-Watson's concerns, taken separately is enough to warrant a very serious consideration of a change in custody. Taken together as they must be, the only path forward to ensure Sophia's safe mental health and a preservation of her bond with her father is through a change in custody.

In fairness to Ms. Santos, Ms. King-Watson and the other witnesses did not see any present signs of Sophia's alienation from Mr. Rego. However when Ms. Santos said with conviction that Sophia does not benefit from seeing her father, and that Mr. Rego is a stranger to his daughter, I do not see how it would be possible at all for Ms. Santos to support a relationship between the Applicant and his daughter.

In addition to the court's present concerns for Sophia's mental welfare and a preservation of her bond with Mr. Rego, there are future concerns also identified by Ms. King-Watson, which the court accepts as being potentially injurious to the child's future best interests.

4. Ms. King-Watson was concerned that Sophia will suffer from cognitive dissonance, which will lead her to break her relationship with the Applicant. With Ms. Santos' continuing to speak of Mr. Rego as a criminal and bad person, Sophia will not be able to reconcile her mother's powerful thoughts from her own impression of Mr. Rego as a loving and committed father. If she were to continue to live with the Respondent, and still hear these condemnations, she will likely resist seeing her father.

5. Besides the present concern for Ms. Santos turning Sophia's interest away from Mr. Rego, the Respondent's efforts may be magnified in the future. So strong are her negative feelings about the Applicant, it is predictable that more blatant and less subtle attempts at alienation may be anticipated. This is especially the case once there is a change in custody, and an access regime possibly implemented that may not be to Ms. Santos' liking. The Respondent did not understand that parental alienation is one of the most severe forms of child abuse.

The court found that the cases of Ottewell and Tremblay op. cit. to be instructive. The cases held that there does not have to be evidence that a child has been alienated from a parent, before the court will change custody. It is sufficient to show that alienating conduct happened to trigger the custody change. In the case at bar, there has been incontrovertible and longstanding affirmations of Ms. Santos' efforts to withdraw Mr. Rego from her daughter's life.

The court recognizes the difficulty the custody change will have on Sophia. The little girl's new circumstances will have to be carefully examined by professionals in child development, to try to make the transition as positive as possible.

ACCESS

[308-319] Access by Ms. Santos

As difficult as the decision was for the court to order a change in custody, the issue of Ms. Santos' access is just as problematic. Of course, the little girl will want to see the Respondent. Ms. King-Watson recommended frequent but short access periods, which would change as the girl ages.

However, Ms. King-Watson was worried about Ms. Santos' mental state because of her delusions. Her recommendations for access were predicated on:

1. Ms. Santos obtaining a psychological assessment to see if the delusional behavioural can be treated;
2. Assuming that Ms. Santos would agree to the assessment; and
3. Assuming the parties could agree on the assessor, and
4. Assuming further that the professional conducting the assessment believed there is a course of treatment to alleviate the delusions; and
5. Assuming still further that Ms. Santos would accept the diagnosis and plan of treatment, and would come to accept Mr. Rego's role in Sophia's life.

Then Ms. King-Watson would recommend access. I do not see an advantage now for an order that Ms. Santos undergo a psychiatric or psychological assessment, leading to a treatment plan, to deal with her refusal to acknowledge the real place of Mr. Rego in Sophia's life. There is doubt that Ms. Santos would comply with such an order. Mr. Campbell stated that Justice Pawagi, as the prior case manager, advised Ms. Santos to have the assessment recommended by Ms. King-Watson. At trial, Ms. Santos said "I do not know what evidence there is for me to do a psychological assessment". Even if she did the assessment, the test results would have to be suspect due to the Respondent's considerable ability to manipulate and dissemble. Nevertheless, the court would encourage Ms. Santos to accept any professional assistance that could lead to a genuine change in her stance about Mr. Rego.

However, there are a lot of assumptions in that plan. Ms. Santos did not believe there is anything wrong with her point of view; in fact she was convinced it was Mr. Rego who has the problems, and she pointed to the ink blot test conducted by Dr. Collins as an authority, and as interpreted by Dr. Berry.

Then, Ms. King-Watson's fall back position was that without improvement in Ms. Santos' mental state, there should only be supervised access, and perhaps that may have to be limited.

When Mr. Rego assumes custody, the court does not know what Ms. Santos would do or say to Sophia. I cannot see a safe way plan for regular access by Ms. Santos to be implemented. Sophia could suffer serious damage to her psyche if wrong things are transmitted to her.

The court cannot remain involved any further in this case. An expansive trial has been held. There has been a thorough airing of issues and final decisions have been rendered. It would be impractical for the parties to appear before a judge in the future every time something is said of an irregular nature, or when Sophia has bad moments. There are human dynamics involved, that are better treated by mental health professionals than by a court of law.

The only realistic resolution is to place the decision about access in Mr. Rego's discretion as to frequency, duration, place and supervision. Mr. Rego understood the importance of Ms. Santos in Sophia's life, and I believe he can be trusted to provide access, provided Ms. Santos' words and actions during access would not hurt the little girl. The Applicant should forthwith request professional advice from an agency (or agencies) to consider whether access is viable, and if so, on what terms.

The court recognizes that it is unusual to leave access in the discretion of one parent, when both parents are before the court. Even in cases where there is great conflict, usually the custodial parent recognizes the importance of the other parent having access. In those cases, access orders are honoured by the parties. In this case, such orders have not been observed by the Respondent.

Access orders in the discretion of one parent are not unique. They are common where the access parent is not present in the child's life, or there is irregular contact with the child. They are frequently used in Society cases where there is uncertainty about the level of involvement by a parent. Discretionary access orders allow for changing conditions, and for the access decider to consider those alternate states. At this time it is not known how Ms. Santos will react to seeing Sophia, when custody is with Mr. Rego.

Mr. Rego would be well advised to seek advice from the Peel Children's Aid Society, because they have had experience with the family over several years. I cannot mandate involvement of the Society, but I recognize that they have the knowledge to give guidance in this very difficult case. It may be that other professionals should be involved also. It would be helpful for the parties that any professional advice to the Applicant, that he intends to follow regarding access recommendations, be documented. The cost of providing access to the Respondent should be shared between the parties on an equal basis, with the Respondent providing the applicant with the receipt for payment payable by the Respondent in advance of professional services for access being rendered.

During any access, Ms. Santos shall be prohibited from communicating any criticism of Mr. Rego, or referring to the custody order, or access directions by Mr. Rego.

The alternative to placing access in Mr. Rego's discretion would be to set out a regular plan of access for Ms. Santos, which would routinely be done in the vast majority of custody and access cases. The problem with that approach is that what Ms. Santos would do or say during access cannot be known, but there is a serious concern that she would say negative comments about Mr. Rego. At trial, Ms. Santos was not accepting the concept that there could ever be a change in custody. The Respondent told Mr. Appiah, when she read Ms. King-Watson's recommendation for an immediate change in custody, that it was an "outrageous suggestion". There is also a worry whether Ms. Santos could control her anger over the custody decision. Mr. Appiah saw Ms. Santos' outrage over court decisions for Mr. Rego to have unsupervised and overnight access. A change is custody is a much bigger step than that.

There is also the reality of the need for flexibility in access arrangements. This child's needs may be very different upon the change in custody, then they will be after a custodial routine is established. Special events may need to be accommodated. A set access arrangement will not be successful in this unique case, in my opinion contrary to what Ms. Santos believes. I realize Ms. Santos will be highly suspicious of Mr. Rego's motives when he sets out access parameters, if any, after he takes counsel from professionals. However it is time Ms. Santos began to trust others who make decisions about Sophia, and she could very ably start with Mr. Rego.

FINANCIAL MATTERS

[320-337] Child Support and Financial Orders

The Applicant sought at the start of trial:

1. To end his obligation to pay child support;
2. An order for the Respondent to pay child support and contribute to section 7 expenses;
3. To be compensated for funds he should not have paid for an assessment, day care and access supervision fees;
4. To be recompensed for an overpayment of child support.

The Respondent requested that the Applicant:

A) continue to pay child support and contribute to special expenses;

B) repay certain monies she believed were owing for day care etc.

Because of the Orders herein, the Applicant will not pay child support any longer, and the Respondent will begin to make payments.

The parties shall continue to contribute to the ordinary special expenses (only day care at present) in proportion to their respective incomes.

There is one special expense that will be paid for differently, namely the costs in connection with Ms. Santos' obtaining access, if any, to include assessment(s) for Ms. Santos and fees for supervision of her access, if any, and whatever other fees or costs are required toward the goal of implementation of access for Ms. Santos. (Herein called the "access costs".)

These Reasons set out the court's concerns about Ms. Santos' access. It is uncertain how and when an access regime will be put in place. It does not seem fair that Mr. Rego should contribute to the access costs in proportion to the parties' income, because he would likely be advancing more funds than Ms. Santos. That would not be reasonable, when it was the Respondent's actions that required the access costs. Hence the order will be that each party will pay one-half of the access costs, but with Ms. Santos providing proof of payment before any assessment or access costs are incurred. Ms. Santos did not have a good track record of paying her debts, as for example, in paying court costs.

[The court then addresses Mr. Rego's claims for restitution of assessment fees, daycare refunds, and access supervision fees. Mr. Rego ultimately withdrew all financial claims, and the court orders a complete set-off of all financial claims between the parties up to June 1, 2014.]

FINAL ORDERS

1. The Applicant Victor Rego shall have sole custody of the child, Sophia Franco dos Santos Rego ("Sophia"), also known as Sophia Franco dos Santos, born 16 March 2010 (herein called Sophia), effective the date of release of these Reasons for Judgment, namely 2:00 p.m. on 26 June 2014.

2. On the day of the release of these Reasons for Judgment, or as soon thereafter as is reasonably possible, the Applicant Victor Rego shall deliver copies of the Final Orders, the termination orders of a restraining order by Justice Maresca dated 15 July 2011 and a restraining order by Justice Baldock dated 6 October 2011, and the current restraining order against the Respondent Claudia Santos to Hickory Wood Child Care Centre, and shall remove Sophia from that facility for the rest of the day, as an indication of the Applicant Victor Rego's stewardship of custody, and shall return Sophia there as soon as it is safe to do so, in the opinion of the Applicant Victor Rego.

3. The Applicant Victor Rego shall have the final decision making authority in all matters concerning Sophia.

4. The principal residence of Sophia shall be with the Applicant Victor Rego.

5. The Applicant Victor Rego is permitted to change the child's name from "Sophia Franco dos Santos" to "Sophia Franco dos Santos Rego". The court dispenses with the consent of the Respondent Claudia Santos to this name change.

6. The temporary restraining order, dated 15 July 2011, by Justice Maresca against the Applicant Victor Rego is vacated.

7. The restraining order dated 6 October 2011, by Justice Baldock against the Applicant Victor Rego is vacated.

8. Unless otherwise referenced in these orders, all temporary orders earlier in these proceedings by Justice Baldock, Justice Maresca and Justice Pawagi and Justice Dunn are vacated, and specifically paragraph 3 in the orders of Justice Baldock dated 6 October 2011 is vacated (publishing on the internet).

9. There is a new restraining order against the Respondent Claudia Santos. See terms on a separate order.

10. The Respondent Claudia Santos shall have access to Sophia in the discretion of the Applicant Victor Rego, as to frequency, duration, place and supervision.

11. The Applicant Victor Rego shall seek professional advice about the nature of access by the Respondent Claudia Santos to Sophia that would be in Sophia's best interests. Any advice shall be documented and served on the Respondent Claudia Santos. The costs of an assessment and implementation of any plan for access shall be paid by each party on a "50-50" basis. The Respondent Claudia Santos shall serve the Applicant Victor Rego with proof of payment of her share of any fees before professional services shall be implemented.

12. During any access by the Respondent Claudia Santos to Sophia, the Respondent Claudia Santos is strictly prohibited from the following:

(1) criticizing the change in custody;

(2) criticizing any access arrangement(s);

(3) speaking in a negative manner about the Applicant Victor Rego or his relatives;

(4) speaking about the custody trial or the judgment that settled the issues;

(5) smoking in the child's presence.

13. At any time, without the consent, signature or permission of the Respondent Claudia Santos, the Applicant Victor Rego may:

(a) obtain and maintain a passport for Sophia, and any other governmental card or certificate;

(b) remove Sophia from Canada for vacation purposes, provided the Applicant Victor Rego gives the Respondent Claudia Santos an itinerary.

14. The Applicant Victor Rego shall give such releases, authorizations or consents for the Respondent Claudia Santos to obtain the same information as the Applicant Victor Rego from Sophia's teachers, daycare providers, doctors, dentists or any professionals providing care to Sophia.

15. The Respondent Claudia Santos is prohibited from removing Sophia from the Region of Peel or Halton Region without the written consent of the Applicant Victor Rego.

16. Peel Regional Police are ordered to enforce paragraph 15 herein.

17. If the Respondent Claudia Santos receives access to Sophia in a specific location, the Respondent Claudia Santos is prohibited from removing Sophia from that location.

18. Peel Regional Police are ordered to locate, apprehend and return Sophia to the Applicant Victor Rego if the Respondent Claudia Santos breaches paragraph 17 above.

19. If the Respondent Claudia Santos receives unsupervised access, the Applicant Victor Rego shall write the start and end times for the access, and the location where the access is to occur. The Applicant Victor Rego should ensure that a copy is given to the Respondent Claudia Santos and shall keep a copy.

20. If the Respondent Claudia Santos does not return Sophia to the Applicant Victor Rego at the time and location specified, Peel Regional Police are ordered to locate and apprehend Sophia and deliver her to the Applicant Victor Rego.

21. (Paragraph 6 of Justice Pawagi's orders of 5 June 2013 required that there be a set-off between monies Ms. Santos owed Mr. Rego for $15,000. and monies payable by Mr. Rego to Ms. Santos for arrears of child support.) Order that neither party owes the other party any money in accordance with paragraph 6 of Justice Pawagi's orders of 5 June 2013, unless a party makes a claim pursuant to section 6, to be brought in a motion on notice in a 14B motion to me in chambers, which motion must be served and filed within ten business days after the release of these Reasons.

22. The Respondent Claudia Santos, is ordered to pay child support of $528. a month from 1 July 2014 and regularly monthly thereafter. Payments to the Family Responsibility Office and a Support Deduction Order is to issue. This order is based on the Respondent Claudia Santos' acknowledged annual income of $57,800. and the guidelines for one child require payment of $528. a month.

23. Order to terminate Justice Pawagi's order of 5 June 2013 that required the Applicant Victor Rego to pay child support of $781. a month effective 1 July 2014. The Applicant Victor Rego's last payment of $781. under Justice Pawagi's order shall be 1 June 2014.

24. Order to terminate Justice Pawagi's order of 5 June 2013 that required the Applicant Victor Rego to contribute $653. a month to Sophia's special expenses. This order is effective 1 July 2014. The Applicant Victor Rego's last payment of $653. under Justice Pawagi's order shall be 1 June 2014.

25. The child's daycare expense is currently $695. a month. Based on the Applicant Victor Rego's annual income of $87,500. and the Respondent Claudia Santos' annual income of $57,800., the Respondent Claudia Santos shall pay forty per cent of Sophia's daycare cost. Order for the Respondent Claudia Santos to pay $274. a month from 1 July 2014 and regularly monthly thereafter. Payments to the Family Responsibility Office and a Support Deduction Order to issue.

26. The parties shall exchange with each other by July 1st in each year, starting 1 July 2015, a copy of his or her Income Tax return together with a Notice of Assessment or reassessment.

27. Any request for costs must be served on the other party and filed with Ms. Laurie Findlay, Judicial Secretary at 7755 Hurontario Street, Brampton, ON L6W 4T6. This request must be served and filed by 14 July 2014.

28. An Answer to a request for costs must be served and filed in court with the Judicial Secretary at 7755 Hurontario Street, Brampton, ON L6W 4T6 by 31 July 2014.

29. A Reply to an Answer (to a request for costs) must be served and filed with Judicial Secretary at 7755 Hurontario Street, Brampton, ON L6W 4T6 by 15 August 2014.

Released: June 26, 2014

Justice P.W. Dunn