Court File and Parties

Court File No.: Kenora FO-13-046 Date: 2015-03-03 Ontario Court of Justice

Between: Thomas Borsfai, Applicant

— AND —

Lee Ann Hyde, Respondent

Before: Justice Sarah Cleghorn

Heard on: August 12, 14, 2014; September 5, 2014; November 13, 14, 2014; December 15, 2014 and January 23, 2015

Reasons for Judgment released on: March 3, 2015

Counsel:

• Thomas Carten, for the Applicant
• Kylee Ronning, for the Respondent
• Cory Boyer, Counsel for the Office of the Children's Lawyer, legal representative for the children

Cleghorn J.:

OVERVIEW

[1] The parents, Thomas Borsfai (hereinafter referred to as "the father") and Lee Ann Hyde (hereinafter referred to as "the mother"), have not been able to resolve the issues of custody, access and support payable for the children, Aayden Borsafi, born September 14, 2009, and Aalyiah McDonald, born May 8, 2006.

[2] Jeremiah McDonald is Aalyiah's biological father. Mr. McDonald was personally served with the Application and was eventually noted in default. There is no dispute that the father stood in locus parentis to Aalyiah. The parties are the biological parents to Aayden.

[3] The relationship between the parties can only be described as high conflict and tumultuous. Both parties made allegations of domestic violence perpetrated on the other. It is apparent that conflict existed throughout most of the relationship (December 15, 2009 through to April 1, 2013). The dynamics of domestic violence and power imbalance between the parents, have led to less than ideal parenting arrangements post separation.

[4] The mother left the family home on April 1, 2013 and found temporary residence at a women's shelter. The children remained in the primary care of the father. The mother was able to exercise weekend access once she found a residence of her own. The access arrangements have been varied numerous times throughout the course of the litigation. The primary residence has remained with the father since the date of separation.

[5] There have been numerous telephone calls to the police and protection agencies since the parties separated. There have been multiple motions brought to vary the mother's access. As a result, the parents are entrenched in their positions. The hostility and anger each feels towards one another is palpable. Unfortunately, as too often happens in such high conflict cases, the parents have lost their ability to put the best interests of the children at the forefront of their decision-making.

EVIDENCE OF CORY BOYER

[6] Ms. Boyer was assigned by the Office of the Children's Lawyer (hereinafter the "OCL"), pursuant to section 112 of the Courts of Justice Act, to investigate and provide recommendations with respect to this matter.

[7] Ms. Boyer has a Master's degree in Social work. She practices as a therapist and has 12 years of experience. She has been involved with the OCL for approximately 10 years.

[8] Generally, she is assigned 40 hours to a matter to investigate. She did not describe the matter currently before the Court as any more complex than other files that she has been assigned in the past.

a) Home Observations

[9] A home observation visit occurred with both the mother and the father. The purpose of a home visit is to allow Ms. Boyer to observe the interactions between a parent and the children. Prior to the visit occurring, Ms. Boyer provides verbal instructions/directions of what types of activities will assist her in observing the parent/child relationship.

[10] In this particular case, Ms. Boyer attended for 2 observation visits at the father's home. In providing an explanation of why the father had 2 visits and the mother had only 1, Ms. Boyer explained that at the initial home visit with the father the instructions/directions she had previously provided were not followed. Either the father did not understand or Ms. Boyer did not properly articulate what it was she was hoping to occur between the father and the children. As a result, the father felt that he did not have a "fair" opportunity at the observation visit, and requested a second visit. Ms. Boyer explained that it was important that the father feel he had been provided the same opportunity as the mother.

[11] The home observations for both the mother and father went well. Ms. Boyer noted no concerns. Both children were observed to be equally comfortable at the respective homes' of the mother and the father. The children were observed to have a positive attachment to their parents. Ms. Boyer did not find any concerns with the physical space of either of the parents' homes.

[12] The overall impression of the home observation at the father's home was stated as follows:

The children appeared to be very happy and content in the father's home. They were both energetic and enthusiastic. They covered [sic] with their father and responded appropriately to his requests. Mr. Borsfai was patient and engaged with both children.

[13] The overall impression of the home observation at the mother's home was stated as follows:

"Ms. Hyde was very playful with the children and they appeared to enjoy the time they were spending in her home. Ms. Hyde was engaged with the children, asked them questions and made comments on their activities. She was affectionate with the children and they responded to this in a positive manner."

b) OCL Meetings with the Children

[14] When Ms. Boyer met with Aaliyah, Aaliyah informed her that her father had told both her and her brother not to speak to the mother's new partner, Mr. Hunt. At the time of the interview Aaliyah was 8 years of age.

[15] Aaliyah reported enjoying the company of the father's new partner and her two children. She also had positive comments concerning Mr. Hunt.

[16] Aaliyah was able to explain how the parents were not able to get along with one another at exchanges, and described them yelling and swearing at one another.

[17] Lastly, Aaliyah stated that she would like to spend more time with her mother as she saw her less frequently. At the time of the report, access consisted of alternate weekends from Friday until Sunday and a Wednesday evening visit.

[18] Aayden was 5 years of age at the time that he spoke with Ms. Boyer. Aayden described enjoying his time in both parents' homes.

[19] Aayden was able to articulate how the parents yelled at one another at the exchanges.

[20] Aayden indicated that he liked his father's new girlfriend. He was also able to express that he liked his mother's new partner, even though he knew his father felt Mr. Hunt was "bad" and did not like him.

c) Conflict Between the Parents

[21] Ms. Boyer was informed, by both parties, of ongoing conflict and hostility between the parents, involving both verbal and emotional abuse allegations. The police have been contacted numerous times by both the mother and the father, in regards to the relationship and the issue of the children. Ms. Boyer reviewed police occurrence reports and Kenora Rainy River District Child and Family Service records.

[22] In her evidence, Ms. Boyer described both parents having participated in yelling at one another (although concedes that the father was likely louder in his yelling), name calling and swearing, at the exchanges and in front of the children. She further stated that in her interviews with the children both children were able to clearly express that both of the parents engaged in this type of inappropriate behavior.

[23] When questioned by counsel for the mother on the issue of a power imbalance and how this may impede the mother's ability to contact the police for assistance, Ms. Boyer's response was that she felt the mother was fully capable of contacting the police if she felt she needed their assistance, as she has done so many times in the past. She was firm in that both the parties are participants in the conflict.

d) New Partners Involvement

[24] The mother is in a common law relationship with Scott Hunt. Ms. Boyer, when she interviewed the children canvassed with them how they felt about Mr. Hunt. She reports that the children expressed that they like him.

[25] The father is involved in a dating relationship with Rachel Medema. As Ms. Medema was presented as a girlfriend and not in a parenting role, she was not interviewed by Ms. Boyer for the purposes of the report. Further the mother did not raise any concerns surrounding Ms. Medema.

e) Concerns Surrounding the Mother

[26] Of concern to Ms. Boyer were Mr. Hunt's lifestyle choices; specifically, his consumption of alcohol. Ms. Boyer reviewed Mr. Hunt's criminal record and testified that it reveals a pattern that concerns her relating to Mr. Hunt's use of alcohol.

[27] The mother acknowledged to Ms. Boyer that she was consuming alcohol to excess near the end of the relationship with the father and subsequent to their separation. The mother has spoken to her counsellor about her over consumption of alcohol. Ms. Boyer summarized her concern by noting that the mother's alcohol consumption raised a "red flag", considering everything she learned, including:

• The mother's acknowledgment of over consuming alcohol;
• The bar fight that the mother was involved in;
• The mother's choice to be involved in a relationship with Mr. Hunt, who may have his own addiction issues.

[28] Ms. Boyer was clear that even if the bar fight did not occur, as it may have occurred at no fault of the mother's, the mother has still acknowledged both to Ms. Boyer and to her counsellor, that she had been drinking too much.

[29] The mother has suffered from depression in the past and was suffering from that ailment during the time of the investigation.

[30] Ms. Boyer reviewed the children's school records and found that the children had far less absences and late arrivals to school when in the care of the father, as compared to when the mother was the primary parent.

[31] Throughout her involvement in the investigation for the preparation of the report (December of 2013 through to March of 2014), the mother acknowledged to Ms. Boyer that she has returned the children early from access visits, cancelled visits, and did not utilize the full access time to which she was entitled. Ms. Boyer did not see any actions that could be described by the father as intentionally withholding the children from the mother. Ms. Boyer further noted that the mother did not follow up or choose to have very limited contact with the children's school and doctor appointments.

f) Concerns Surrounding the Father

[32] A further concern noted by Ms. Boyer in both her report and expanded on in her evidence, was the father arranging activities for the children on the mother's access time. The report notes that the father cannot continue to interfere with the mother's access time.

[33] The father was found to involve the children in adult conversations. In particular, the father expresses his negative views of the mother's partner to the children.

g) Involvement of Outside Agencies

[34] The collateral sources for the report included contact with Kenora Rainy River Child and Family Services and Tikinangan Child and Family Services. A verified risk was noted on July 5, 2010 as a result of an incident where the mother assaulted the father. This occurred prior to separation.

[35] Post-separation, from April 3, 2013 until February 21, 2014, there have been 9 referrals to a protection agency, the majority concerning conflict between the parents. Both parties contacted the agency at different points in time. In addition, the Ontario Provincial Police have also made a number of referrals.

[36] The Ontario Provincial Police have been contacted (by either the mother or the father) on approximately 8 occasions, relating to domestic disputes between the parties (between April 14, 2013 through to November 5, 2013).

h) Recommendations of Ms. Boyer

[37] On the substantive issues before the Court, the recommendations by the OCL can be summarized as follows:

• Sole custody and primary residence to the father;
• Alternate weekend access to the mother from Friday at 6 p.m. until Sunday at 6 p.m., and every Wednesday from after school until Thursday morning;
• Sharing of holidays;
• The summer months to be shared on a weekly rotating basis;
• Exchanges to occur at the Supervised Access Centre or a public location;
• Parties to communicate via email and to not engage one another in public locations.

[38] In arriving at these recommendations, Ms. Boyer testified that she took into account the following factors:

• The consistent care of the children in the father's care;
• The mother's lack of consistency with her access;
• The mother's lack of consistency in having contact with the children's school and doctors;
• The mother acknowledging that she was in the process of re-engaging with the children, discovering their likes/dislikes;
• The mother's depression;
• The lifestyle choices of the mother, to be involved with a person who may have alcohol addictions;
• The mother's acknowledgment of her own issues with the over consumption of alcohol;
• The attendance record for the children for school when in the primary care of the father as compared to when in the primary care of the mother.

[39] Ms. Boyer's report outlined her concerns that the father interferes with the mother's parenting time, and in particular stated the following:

Ms. Hyde's time with the children must be protected. If the father continues to interfere with the mother's access, consideration may be given to a different custody arrangement.

EVIDENCE OF RACHEL MEDEMA

[40] The father and Ms. Medema have been in a dating relationship as of January of 2014. Ms. Medema is 40 years of age, has two children (aged 13 and 15) who primarily reside with her, has no criminal record, and has no substance abuse issues.

[41] Ms. Medema testified that she has not taken on a parenting role to the children involved in this matter. She spends a significant amount of time with the children, whenever she is spending time with the father. Her children get along well with the children involved in this matter.

[42] Although the parties have discussed residing together, there is no urgency to do so. The father and Ms. Medema have undertaken counselling on how to blend their families at a future date.

[43] Ms. Medema describes the father as doing a wonderful job with the children.

[44] She has personally observed 8 to 10 exchanges between the parents and no issues have arisen.

EVIDENCE OF THOMAS BORSFAI

a) Employment of Thomas Borsfai

[45] The father is employed as a service technician with Wilson's Business Solution. He has held this position as of January of 2014. He works Monday through Friday from 8:30 a.m. until 5:00 p.m. and earns $16.50 per hour.

b) Relationship of the Parties

[46] The parties met and began dating in August of 2008. Eventually the father moved into the home of the mother (at that point in the time the mother had secured low income housing). A home was purchased in December of 2009. The parties then began cohabiting with one another.

[47] The father describes the relationship as "toxic". There were many fights between the parents. The relationship ended on April 14, 2013 when the mother left the home.

c) Parenting Roles

[48] The mother has one child from a prior relationship, Aalyiah, born May 8, 2006. When the relationship began Aalyiah was 2 years of age. The father has taken an active parenting role with Aalyia and, as a result, is deeply bonded with her.

[49] Together, the parties have one child, Aayden, born September 14, 2009.

[50] Prior to separation, the father describes sharing the parental responsibilities as his employment allowed. As the mother was the parent that took the parental leave, the father concedes that the mother was the primary parent at that time.

d) Separation

[51] In December of 2012 the father testified that the mother began to excessively consume alcohol. This occurred every weekend. Examples provided by the father of the mother's level of intoxication included her passing out at the kitchen table, throwing up in the cat's litter box, the father having to assist in putting the mother to bed, etc. This level of drinking continued until the time of separation.

[52] As a result of the mother's drinking and being absent from the home, the father assumed the primary parenting role for the children and was able to meet all of their day-to-day needs.

[53] On the day that the mother chose to leave the home, the father describes how the mother packed a bag and left. She did not ask to bring the children with her, nor did she tell the father where she was going. She returned to the home to retrieve personal items over the 3 days following her departure, but when she was in the father's presence during these visits she ignored him.

[54] Approximately one week later the mother informed the father that she was staying in the women's shelter in Kenora. The mother made no requests to the father to see the children.

[55] The parents signed a temporary agreement (dated April 25, 2013) that was drafted by the father. It provided for the father to have custody and specified access (including overnight visits) for the mother. The father testified that the reason he drafted the agreement was as a result of the school and Ontario Works requesting confirmation of the primary parent for the children. He denies that he forced her to sign the document. In re-examination, the father further explained that he sought input from the mother concerning the contents of the agreement.

[56] The mother next moved in with her sister. Access visits began, which consisted of short day visits. They were sporadic in nature.

INTERIM ORDERS

[57] After the father initiated the current Court proceedings a temporary Order (dated July 17, 2013) was entered into. That Order set out the primary residence to be with the father, and specified day access to the mother.

[58] On November 20, 2013 a further consent Order was entered into. Access was expanded upon to include alternate weekend access to the mother.

[59] It was the father's evidence that the mother returned the children to his care on a number of occasions at times earlier than stated in the Order.

[60] The Order of December 12, 2013 excluded the children of Mr. Hunt (the mother's new partner) from being present for overnight visits.

[61] The Order of July 25, 2014 provided that access was to occur at either the home of the father or a public venue.

[62] The Order of August 22, 2014 provided that access would resume at the mother's home for day/evening visits.

[63] At the time of the trial, day visits for the mother were in place.

e) Issues Between the Parents

[64] The Easter weekend in 2014 was scheduled to be the mother's access weekend. The father put forward a proposal to the mother that he have the children for an Easter egg hunt during her time and, in exchange, he would ensure the children would spend Mother's Day with her (as Mother's Day would fall on the father's time). Eventually the mother became angry with the father and told him not to plan activities on her time.

[65] The father requested that the mother contribute financially to the children's activities. When the mother refused to contribute to the daughter's figure skating the father told the mother she was not allowed to attend the activity. He testified that he later recanted that statement.

[66] The father acknowledged that he has made cruel, mean and vulgar statements to the mother both in person and through text messages.

[67] As a result of the temporary Order of December 12, 2013 the mother cannot have access to the children when Mr. Hunt's son is present. On July 11, 2014 the mother's access weekend could not begin on the Friday as the mother contacted the father to advise him that Mr. Hunt and his son would not be leaving for a camping trip until later on the Friday evening. She did not know what time that would be. The parties reached an agreement that the access would begin on the Saturday. The father, his girlfriend and the children were driving around the City of Kenora that Friday night. The father describes the children as being upset over the delayed start to the access weekend. The father decided that he would stop by the mother's home to have the children say goodnight to the mother and to also see if the visit could begin.

[68] The father testified that as he drove by the mother's home he could see that a party was occurring. He stopped the vehicle, left the children and his girlfriend in the car, and went to confront the mother. He audiotaped her. He describes being angry that the mother was consuming alcohol. The father denies that he intentionally went by the mother's home to catch her drinking and having a party.

[69] The father asked the mother if drugs were being sold out of the apartment complex she resides in (the suggestion being that neighbours were selling illegal substances from the apartment complex). He testified that she answered in the positive. The father then informed the mother that access could not occur at her residence.

[70] On July 25, 2014 a further interim Order was issued changing the terms of access. In essence, the mother could no longer exercise access in her home. The Order provided for the father to vacate his home and to allow the mother to exercise her access on alternating weekends at the father's home.

[71] The father's evidence is that both parties verbally agreed that they did not want to follow the Order. Rather, they agreed that the mother could have day visits in the community. The mother attended on July 26, 2014 to collect the children and left the father's home.

[72] An argument ensued later on July 26, 2014 when the mother contacted the father and told him that he must leave the home. He testified that the mother was belligerent and swore at him. The father contacted the police as he was concerned the mother was going to return to his residence and it may be necessary for the police to attend his home. However, the mother did not return with the children at 2pm to the father's home, and no further involvement by the police was required.

[73] The father has concerns surrounding the mother's drinking. He has trust issues and does not believe her when she tells him she has not been consuming alcohol. A further incident occurred where the father literally smelt the mother, as he thought he could smell marijuana on her. On a further occasion the father has refused access based on his belief that the mother had been consuming alcohol.

[74] In cross-examination, the father testified that he would not agree that the mother's home was a safe place for the children to be, even if Child and Family Services attended at the mother's home and verified no concerns. The father's position is that the visit would occur on notice to the mother which allow the mother to clean up her home and hide any illegal items.

[75] On January 23, 2015, the father was given the opportunity to re-open his case and provide additional evidence. The father in cross-examination was questioned on a home assessment undertaken by a child protection agency that took place in September of 2014 on the mother's home (the mother having made the arrangements directly with the agency. The assessment was not in response to a protection concern). The fact that a protection agency had in fact completed a home assessment on the mother's home and found no child protection concerns, was not satisfactory to the father. The father maintained his position that the home was unsafe for overnight visitation.

[76] The father attempted to stop the mother from taking the children on an access visit when he thought he smelt alcohol on her breath. He contacted the police. The occurrence report notes that the mother was "completely sober".

[77] The father denied an access visit in December of 2013 as the mother had not paid child support to him.

[78] The father emailed the mother on December 8, 2014 inquiring of whether the mother could assist in watching the children over the school holidays. When the mother did not respond, the father made alternate arrangements. The father provided limited hours for the mother's response.

[79] The parties entered into a consent order concerning the Christmas holidays for 2014. The father had a selective memory of what he could recall from the details of how the parties choose to vary the consent order.

[80] The father acknowledges recording all telephone conversation with the mother.

[81] Prior to separation, when the parties argued, the father has thrown items (but not directed at the mother), slapped a table with an open hand and on one occasion he poured a can of pop over the mother's head. In re-examination, the father testified that the mother has engaged in similar behavior, throwing items at him during the course of arguments. Further, the father testified that the mother has hit him and also engaged in name-calling.

[82] Throughout the litigation, the father has continued to demean the mother. On December 12, 2014 the father texted the mother that she was a "deadbeat mother". When asked why he would send such a text, his response was, "I think she is a deadbeat mother".

[83] The father signed Aaylia up for a Facebook account knowing she was not of age where it is allowable. He did not consult with the mother. He signed the daughter up as Aaylia Borsfai. The father allowed his current partner, Ms. Medema's daughter and, eventually, the mother, to be friends on this account.

[84] The mother and Aaylia sent messages between themselves. The father did not agree with this, and therefore removed and blocked the mother from the daughter's Facebook account. To the father's recollection, there was not any inappropriate communication between the mother and the daughter.

A.H.

[85] The father's evidence is that A.H. (the biological child of Mr. Hunt), is a negative influence on the children and, therefore, there should be no access to the mother when A.H. is present. His foundation for his position is that on one occasion A.H. hid behind a wall before jumping out and scaring the children. Further, he believes that A.H. suffers from ADHD and, somehow, his children should be shielded from this disability.

f) The Father's Proposal for the Mother's Access

[86] The father proposes that the mother have access alternate weekends and every Wednesday, so long as her home is a safe one for the children. He currently takes the position that access cannot occur at the mother's residence as a result of some of her neighbours selling drugs at their apartment complex. The mother and the neighbour's share a common balcony. Further, the father takes issue with Mr. Hunt's drinking and possibly drug use.

EVIDENCE OF SARAH BORSFAI

[87] Sarah Borsfai is the biological mother of Thomas Borsfai. She testified as to how the mother did not keep a clean home (and, as result, Ms. Borsfai cleaned the apartment of Ms. Hyde and her son), appeared to be unstable with the finances and engaged in arguments with her son.

[88] In cross-examination, Ms. Borsfai acknowledged she had been present when both her son and Ms. Hyde were yelling at one another. She further testified she has never witnessed either party physically assault the other.

[89] She admitted that her son does have a bad temper on occasion. Ms. Borsfai acknowledged that there have been occasions where Ms. Hyde has expressed to her that that she was intimidated by her son, and that her son was controlling. In fact, Ms. Borsfai gave evidence that her son can get angry with her, and when he does, she ignores him; if she were to yell back at him she felt that he would yell at her.

[90] During the relationship Ms. Borsfai had paid the parties property taxes up until 3 years ago. In September of 2014, Ms. Borsfai paid the taxes on her son's home in the amount of $5,000.00.

EVIDENCE OF RACHEL HYDE

[91] Rachel Hyde is the sister of Ms. Hyde. Rachel Hyde has been present and personally observed a number of incidents between the mother and the father.

[92] The first occasion where Rachel Hyde was present occurred at Ailyaa's bike rodeo that was being held at the Kenora Recreational Centre. As Tom approached the mother and Rachel Hyde, he made the following comment, "Please don't stand next to me, my lawyer said I can call the police if you cause a scene. Don't take my son anywhere."

[93] In June of 2013 Rachel Hyde was at the park with the mother, the children and A.H. When the father attended for pick-up of the children he reportedly yelled, "That's that fucking losers kid, isn't it?"

[94] Following an evening visit, Rachel Hyde and the mother were in the vehicle to return the children to the father's home. The father approached the vehicle and threw a photograph of the mother (in which the mother's breasts were exposed) and made a comment that he would ensure her prospective boyfriends and co-workers would see the picture.

[95] On August 24, 2013, Rachel Hyde and the mother attended at the father's home to collect the children for an access visit. The father was yelling at the mother in front of the children, telling the children to get out of the mother's vehicle. The children burst into tears and were screaming. The father was accusing the mother of being intoxicated. The police were called. Upon their arrival, the police determined that mother showed no signs of impairment.

[96] During exchanges when the mother is leaving with the children, the father will make comments to the children that they can return to his care at anytime.

EVIDENCE OF LEE ANN HYDE

a) Relationship of the parties

[97] Ms. Hyde separated from Aalyiah's biological father when the child was only 12 months old. Ms. Hyde was the primary caregiver from that point onward up until her separation with Mr. Borsfai.

[98] Ms. Hyde does not dispute the significant dates of the relationship as provided for in evidence by Mr. Borsfai.

[99] Prior to separation, Ms. Hyde describes that the parties frequently argued, there were many disagreements that involved name-calling. She describes feeling as though she was "walking around on eggshells" while at home. There were a number of occasions where the arguments escalated and allegations were made that the father threw items at the mother, and on one occasion, poured a can of Pepsi over her head. On a second occasion, the mother alleges the father threw a soup can at her as she walking down the hallway, which hit her in the back of the head.

b) Parenting Roles

[100] Prior to separation, Ms. Hyde describes herself as assuming the primary parenting role. There were periods of time when Mr. Borsfai was not employed, however, Ms. Hyde remained in the primary caregiver role. This was a source of conflict for the parties. The mother was frustrated that the father was on his computer and not assisting with the children.

[101] After the birth of Aayden, the mother remained at home on a maternity leave to care for both children.

[102] The mother explained that she was responsible for the household and the children, while working and attending school. There were occasions where she was tired. As a result, on occasion, this resulted in Aalyiah being late for school. The mother testified she would ask the father to assist with taking Aalyiah to school, but reported that he he refused.

c) Mental health

[103] Prior to separation and following the separation, the mother acknowledges that she was in a state of stress. As a result she was consuming more alcohol than she normally would. Her evidence is that there are two occasions where she over consumed alcohol, Christmas of 2012 and September 13, 2013. The children were not in her care on either of those occasions. For the Christmas party, the mother was aware it was her access visit the following day. As a result, she asked the father in advance if they could change the date of her scheduled access visit. September 13, 2013 was the date of the incident when the mother was assaulted. As a result of the bruising she sustained, she cancelled her visit with the children as she did not feel it was appropriate for them to see her in that condition.

[104] The mother has accessed counselling for the past year to assist with the stress and anxiety of the current litigation.

d) Separation

[105] The mother left the family home and found temporary residence in a women's shelter. She testified that she did not take the children with her, as she felt they would be better off in the family home. When she returned to the family home a short time after the separation to collect some personal items, she made no attempts to bring the children with her, as she knew the father would not allow it.

[106] Access began once the mother signed a letter, drafted by the father (dated April 25, 2013). It is the mother's evidence that the father would not allow her to leave with the children for visits until such time as she signed the piece of paper. As the mother wanted to spend time with the children, she signed the paper presented to her.

e) Access

[107] The April 25, 2013 agreement between the parents provided that the mother was to have overnight visitation once she has secured her own residence. It was to be reviewable in 6 months, on October 25, 2013. The mother testified that she signed the letter as the father told her she could not have any access until it was signed. She did not consult with a lawyer prior to signing the letter.

[108] The Order of July 17, 2013 provided for alternate weekend access to occur on Saturdays and Sundays from 9:30 a.m. until 7:00 p.m. It also provided for access on, Tuesdays from 5:00 p.m. until 7:30 p.m. Paragraph 3 of interim Order states, "This temporary order is made to quickly facilitate access and is not made on the merits of the case".

[109] From the outset, issues arose with access. The Order of July 17, 2013 conflicted with the daughter's skating schedule. The father took the position that the mother not attend at the daughter's skating. As a result, the visits were changed to occur on a Wednesday.

[110] The mother testified to a number of occasions where the father interfered with the mother's parenting time by planning activities on her days. One example is the Easter weekend of 2014. The father felt aggrieved when the mother would not automatically agree that he could take the children during her scheduled time for an Easter egg hunt. The father informed the mother that because Mother's Day fell on his weekend she would not be allowed to see the children on Mother's Day.

[111] During one exchange, the mother describes the father smelling her, to ensure she did not smell like an illegal substance.

[112] The mother acknowledged that post-separation she did struggle with her parenting time with the children. There were occasions when she felt overwhelmed and contacted the father to either collect the children or speak to the children to calm them down. The mother gave evidence that there were times that the children requested to return to the father's home early, once because they had just purchased a new kitten, and on a further occasion because the father had told the children he had surprises for them.

[113] Access has improved from the mother's perspective. She described both children enjoying their time with her, and that the behaviour of the children has improved.

f) Issues Between the Parties

[114] The mother testified to many instances, (in person, via email, via Facebook), where the father has called her demeaning and degrading names, at times in front of the children.

[115] The father testified to an incident on July 11, 2014 wherein the mother's access could not commence on the Friday as a result of A.H. still being present in her home. The mother's version of what occurred on that day is that she informed the father of the situation. It was agreed that access would commence on the Saturday. To her surprise, at 9:00 p.m/, there was a knock at the door. It was the father inquiring if she is ready for her access to begin. The mother informed the father that the access was agreed to start the next day and that she was currently cleaning the home. In order to prove her point, she took the father into the children's bedroom to show him that she was in fact cleaning. The father then noticed a stain on the children's mattress and told the mother the children could not sleep on the mattress and he would not allow the children to remain overnight with her. Filed as Exhibit 2.35 is an email dated July 11, 2014 by the mother to the father, confirming a 9 a.m. pick up by the mother for her access to occur on Saturday, July 12.

[116] The father sent an email to the mother on July 12, 2014, (filed as Exhibit 2.35(b)), wherein he acknowledges videotaping the mother, sets out his beliefs about the mother's actions, demeans the mother and makes a number of references to the children as "my children".

[117] The mother testified that whenever the father sees her current partner, Mr. Hunt, he gives Mr. Hunt the finger. The father does this while the children are present. On one occasion, while Aayden was present, the father stated to the mother, "I am never going to let you forget you are with a crackhead." Aayden started to cry.

[118] The conflict continued throughout the litigation process. The mother gave evidence that after one of the court dates, upon leaving the court house an exchange occurred between the parties, which ended when the father calling the mother, "a fucking bitch".

[119] It is the mother's belief that the father does not allow the children to have contact with her via electronic means. In the summer of 2014 Aalyiah was able to text the mother on her Ipod. After one message in which Aalyiah told the mother she was crying because she missed her so much, the father removed the ability for the daughter to text from her Ipod.

[120] The father has made requests for the mother to care for the children, during a school holiday. However, if the mother does not respond within the timeframe that the father feels is sufficient, he will proceed forward with making alternate arrangements. On one occasion, when the father did not hear back from the mother within a number of hours, he made alternate plans. The mother's evidence is that she required time to see if her employer would allow her the needed time off.

[121] The father is adamant that the children cannot have overnight visits with the mother because her home is unsafe. In particular, as noted, the father has made allegations that the neighbours are selling drugs. The mother does not associate with the neighbours. While there is shared balcony, she does not allow the children to be on the balcony if the neighbours are also using it. However, on the last court date, according to the mother the neighbours were in the midst of being evicted.

g) Employment

[122] Shortly after separation, the mother was employed, part time at Shopper's Drug mart. She terminated her employment with Shopper's as she had found employment with Mark's Work Wearhouse.

[123] The mother describes an occasion when the father attended her place of employment at Mark's Work Wearhouse and took a picture of her name tag. The father refused to leave her workplace; the mother eventually had to threaten to call the police. Aayden was present for this confrontation.

h) New Partners

[124] The mother was able to appreciate that the children enjoy the company of the father's new girlfriend. The mother did not make any negative or demeaning comments regarding Ms. Medema. On one occasion, the mother describes Aalyiah being excited for Ms. Medema's upcoming birthday celebration. During the conversation about Ms. Medema's birthday, Aayden made a statement to Aalyiah that the father had told them both they are not to discuss Ms. Medema in the presence of the mother.

EVIDENCE OF SCOTT HUNT

[125] Mr. Hunt has been residing with the mother for the past year and half. He has one child from another relationship, A.H., whose primary residence is with the biological mother in Winnipeg, MB. Mr. Hunt has access with his son, alternate weekends from Friday until Sunday.

[126] Mr. Hunt has never had any involvement with a protection agency.

[127] Mr. Hunt has a positive relationship with Aayden and Aalyiah.

[128] The criminal record of Mr. Hunt was obtained by the OCL. There are a number of convictions for the timeframe of 1990 through to 2001. Those convictions are not related to alcohol. April 17, 2013 is a conviction for failure to provide a breath sample. Mr. Hunt was sentenced to a fine and a one-year driving prohibition.

[129] While Mr. Hunt acknowledged his use of marijuana, he testified that since January 2014 he is no longer using illegal substances. He drinks approximately 2 to 3 beer per week. He does not consume alcohol in the presence of the children. He has never witnessed Ms. Hyde consume alcohol in the presence of the children.

[130] Mr. Hunt described one incident where he engaged in an argument with the father. There was an exchange of words over how the father treats the mother. Other than the one incident, Mr. Hunt describes the father as giving him "the finger" every time he sees him.

EVIDENCE OF JASON CORTVRIENDT

[131] Mr. Cortvriendt is a counsellor with Canadian Mental Health. He is trained in cognitive behavioural therapy.

[132] Mr. Cortvriendt has been working with the mother since June of 2013. Some areas that have been addressed include divorce issues, separation, loss of children, the court process and stress related to each of these areas. In particular, the mother has been working on appropriate reactions/responses to the father and being focused on the children during her parenting times.

EVIDENCE OF TIM SKEAD

[133] Mr. Skead is employed with Child and Family Service Anishaabe, as investigation and assessment worker. He has been employed with the agency for 2 years. He has investigated between 80 to 100 cases.

[134] Mr. Skead attended the mother's home to complete a safety assessment. It was known at the time of the home assessment that the father held a belief that the neighbours were potentially trafficking in illegal substances. The home assessment occurred on September 2, 2014.

[135] During this visit Mr. Skead discussed with the mother her safety plan for the children. The risk of residing beside a potential drug trafficker was specifically canvassed.

[136] No safety concerns were noted. Mr. Skead discussed the outcome of the September 2, 2014 home assessment with his supervisor. It was determined by the agency that the mother could adequately protect the children. Filed as Exhibit 29 was correspondence from the agency confirming that no child protection concerns were identified.

LEGISLATION

[137] The legislation has set out the test that I must follow, as stated in section 24 of the Children's Law Reform Act. I find that both section 24(2) and 24(4) are applicable in these proceedings. Those sections state the following:

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

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

(i) each person entitled to or claiming ties between the child and,

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

(iii) persons involved in the child's care and up-bringing;

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

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

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

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

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

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

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

(4) Violence and abuse – In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

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

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

(d) any child.

[138] I must take into consideration the maximum contact principle as set out in the Divorce Act. Section 16(10) states the following:

Maximum contact – In making an order under this section, the court shall give effect to the principle that a child of the marriage, should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[139] The maximum contact principle is appropriately applied to matters brought under the Children's Law Reform Act.

[140] Both of these sections along with the maximum contact principle, as set out in the Divorce Act, shall provide the framework for my analysis in determining the best interest of the children.

ANALYSIS

Parenting Abilities of the Parties

[141] The evidence is clear that prior to start of this relationship the mother was the primary caregiver for Aalyiah. It is also evident that after the birth of Aayden the mother and father took on traditional roles, with the mother being the primary caregiver and the father the primary income earner. This is not to minimize the father's role after the birth of Aayden, as it is apparent that he was a "hands on" father, when his time allowed.

[142] Prior to the date of separation both parents were capable of meeting the needs of the children. As a result, both children are bonded to both the mother and the father.

[143] Neither party provided any substantive evidence that would support that either party was not able to parent the children prior to the separation occurring.

[144] The father's concerns around the mother's ability to parent are overwhelmingly post separation. There is little dispute that the first two months after separation the mother had very limited time with the children. The mother's explanation was that she needed time to stabilize her mental health and find appropriate housing.

[145] The mother's access then increased to weekend access. During the mother's access time she did return the children early and call upon the father to calm the children down.

[146] I have assessed the mother's ability to parent by taking into consideration her parenting pre-separation, immediately following the separation and what has occurred up until the last day of trial. It was apparent that the mother struggled shortly after separation, which is reflective of her actions during a very specific period of time. The mother was able to recognize that she was struggling and made decisions that I find were in the best interests of both children at the time. The mother knew she was not capable of parenting on a full time basis, post separation, and therefore made the decision to the leave the children with the father as she was confident in his ability to parent. This should not be held against her. The mother has taken proactive steps and has stabilized her life. I find that the mother has the ability to provide a stable and loving home environment for the children and provide for them all the necessaries of life. The same can be said for the father.

[147] The overriding issue in determining the best interests of the children is the past violence between the parents, the ability of the parents to communicate with one another and the willingness of each parent to allow the other to parent the children without interference.

Communication Between the Parents

[148] There has been a plethora of exhibits, consisting of Facebook messages and text messages between the parties. Further, I have had the benefit of hearing from the parties directly on how they choose to communicate with one another. Sadly, both parents have engaged in hateful, demeaning and degrading communication with one another. One is not better than the other. Neither has been able to rise above the other's petty behaviors.

[149] What is most tragic is that at times the children have been exposed to the toxic environment the parents have chosen to create. This has occurred at exchanges, when the children have been helpless, voiceless participants while their parents yell and scream degrading comments at each other. A further example is when the father called the mother's cell phone expecting the mother to answer the call. When the phone was answered, he yelled, "Why do you have to be such a fucking bitch?" It was not the mother who answered her cell phone on that occasion, but the daughter, who, not surprisingly, responded by bursting into tears.

[150] In the OCL report the police occurrence of April 14, 2013 noted the following comment that the father made in the presence of the daughter, "Police heard a young girl ask Mr. Borsfai why the police were there and Mr. Borsfai was heard to say "Because of your crazy fucking mother".

[151] In November of 2013 the mother approached the father in the arena where she proceeded to yell at the father and another woman, told him he was a liar and that she hated him. She did this in the presence of the children.

[152] The parties must learn that when they demean one another, they are causing fear, anxiety and sadness in their children. From a child's perspective, they are hearing damaging words about one of the two most beloved individuals in their world. It is traumatic for a child to hear one parent tell the other that they hate that person. A child equally loves both parents and should not be exposed to such hateful words.

[153] One would hope that the presence of children would deter such damaging behavior. That has not been the case here. As a result, the children need to be insulated from their parents, who cannot act as responsible parents should in the presence of young, vulnerable children.

A.H.

[154] The mother's current partner has a child from a prior relationship. A.H. has been described as suffering from ADHD. The children in this matter have met A.H. Unfortunately, A.H., a child, hid and jumped out and scared both Aaliyah and Aayden. This one incident has been utilized by the father to instill fear in the children and suggest that A.H. is not suitable company for the children. The father's evidence is that the children must be "protected" from A.H. Quite frankly, I find these claims to be nothing short of ridiculous.

[155] It is unfortunate that the father has exaggerated some childish horseplay by A.H. and used it as a way of unfairly insulating the children from A.H.

[156] In contrast, the father was clear on how he feels it is extremely important for the children to bond with the children of his new partner. The father has one set of objectives/standards for his home and new partner, and what he feels is acceptable, and a completely different set of objective/standards for the mother, her home and her new partner. Regrettably, the father is persistent in his pursuit to demoralize and degrade everything associated with the mother.

New Partners

[157] Ms. Boyer testified that the father has made negative comments about Mr. Hunt directly to the children. The children, as reported to the OCL, confirm that this behavior is likely occurring (that is, the father attempting to negatively influence the children with respect to Mr. Hunt.) Regardless of the father's negative comments to the children, it appears the children have formed their own impression and, overall, enjoy the company of Mr. Hunt.

[158] There was no indication that the mother has attempted to undermine the relationship of the father and his new partner. It is apparent that the children enjoy the company of Ms. Medema.

[159] The evidence suggests that the children have in fact bonded to both the mother's and the father's new partners.

[160] To the credit of the father's girlfriend and the mother's new partner, both have been able to shield themselves from being drawn into the inappropriate behaviors of the parents. Their efforts have clearly been beneficial to the children, as the children appear to enjoy the company of both Ms. Medema and Mr. Hunt. I have had the benefit of hearing the testimony of both Mr. Hunt and Ms. Medema. I find both to be responsible adults who pose no risk or threat to either of the children. Both were genuinely concerned for the children and it is clear that a bond has formed between the new partners and the children.

Mother's Consumption of Alcohol and Mental Health

[161] The mother was forthright in her evidence that leading up to the separation and post separation she was over consuming alcohol at specific points in time. Post separation, the occasions where she had over consumed alcohol did not coincide with the care of the children.

[162] On one occasion the mother was involved in an altercation at a bar. Her evidence was that it was an unprovoked attack on her. Regardless, this left her with bruises to her face. The mother therefore made the decision that the children should not see her in this condition.

[163] The mother's explanation for why she was over consuming alcohol leading up to the separation and post separation when she did not have the care of the children were related to the abusive relationship with the father, and the adjustment to the separation. She has since stabilized her mental health issues. Most importantly, there was no evidence to substantiate that the mother is over consuming alcohol prior to her parenting time or during her parenting times. The evidence supports that her over consumption of alcohol was likely situational, used as a misguided coping mechanism, during the course of leaving an abusive relationship.

[164] The mother has taken the appropriate proactive steps to put her mental health and her children back to the forefront of what is important to her. I do not find that the evidence supports that the mother has on-going issues with alcohol or that she is consuming alcohol while the children are in her care.

[165] This is a situation where the father testified that he does socially drink, but not to the point of excess, while he has the care of the children. At this point in time both parents appear to have sound judgment on what the appropriate amount of alcohol is to consume when caring for the children.

[166] The father raised concerns regarding the mental health of the mother as being something that interferes with her ability to parent the children. The mother acknowledged that she suffers from mental health issues. Throughout her adult life, at differing times, she has engaged in counseling services. In determining the best interests of the children, the mental health of the mother is only relevant if there is evidence to support that it has a negative impact on her ability to parent, thereby directly impacting the children in a potentially negative way. There was no evidence heard at this trial capable of rationally supporting such a concern. To the contrary, the mother has demonstrated that she is able to recognize when she requires assistance from service providers and is able to seek the appropriate services she is in need of. It is to her credit that she was able to put the children's needs above her own post separation. The mother recognized that her mental state post separation required that she allow the children to stay primarily with the father in order for her to properly address her own health issues. She felt, that at the time, the children were best cared for by the father. She did not anticipate that the father would use that temporary timeframe against her to attempt to strengthen his position for primary residence.

Residence of the Mother

[167] The father's position is that the mother's home is inadequate. Much was made of how she should find more suitable housing for both herself and the children. The mother continues to reside in low-income housing. It is interesting to note that when the parties initially met the father choose to move into the mother's residence. As outlined in the report of the OCL, the mother had secured low-income housing. It appears the father did not have an issue with the housing at that point in time, his concerns have only arisen post-separation.

[168] The father's evidence on why the mother's housing is not appropriate relates to neighbors who are allegedly involved with illegal drugs. His focus is misdirected. The mother's reality is that she is residing in housing that she can afford. Often, who one's neighbors are is a factor outside of a person's control. The focus should more appropriately be directed on can the mother adequately protect the children from any perceived dangers? I find that the evidence has established that the mother can in fact adequately protect the children. I base this decision on the OCL report, where no concerns were noted with either parents' home and the evidence of the child protection worker who also did a home visit and noted no concerns.

[169] These parents have engaged a protection agency on numerous occasions. At no point in time have any protection concerns been noted post-separation. If the father is allowed to continue to have misguided beliefs and unreasonable fears, the mother will never be able to have meaningful parenting time with the children. There is a high probability the father will always be able to find fault or a concern with an action/behavior of the mother's, where he then feels justified in withholding or decreasing the mother's parenting time.

[170] Despite both the OCL and a worker from a protection agency observing no concerns with the mother's home, the father continues to hold an unreasonable belief that somehow the mother's home is inadequate and therefore not suitable for the children to spend a significant amount of time there.

[171] This is indicative of the father's views towards all things associated with the mother. The father chooses to find fault with everything concerning the mother. It is abundantly clear that the father chooses to find fault in order to justify why he feels he is the superior parent while making the mother feel inferior in her parenting skills.

[172] The father is simply not able to facilitate meaningful contact with the mother. To allow this dynamic to continue will result in the deterioration of the children's relationship with the mother. Sadly, it is evident that the father either does not appreciate or is wilfully blind to the damage that he is causing to the children when he continually interferes with the children maintaining a close bond with their mother. Examples of the father's behaviors and why I have drawn the conclusion that he is not able to facilitate meaningful contact between the mother and the children are outlined below (these being only but a few examples of his most concerning behaviors).

[173] There is the father's insistence that Aayden can only sit with the mother at the arena until such time as his new partner arrives is egregious. Without question, it sends the message to Aayden that the father's new partner is somehow more important than his own mother. Most disturbing, is that it places Aayden in the unnecessary position of feeling he must listen to his father and pick the new partner over his mother. I accept the mother's evidence that Aayden did not want to leave her, but felt compelled to do so. The pressure that the father has placed on a child who is 5 years of age is objectionable.

[174] There is the father allowing Aalyiah to have her own Facebook account without consulting with the mother in advance. When Aalyiah informed the mother that she had a Facebook account, the mother was added as a "friend". Aalyiah had a restricted use for Facebook, and the "friends" included the father, his new partner and the mother. As one would expect, the mother and Aalyiah sent messages back and forth with one another. The father found this to be unacceptable. He unilaterally decided to remove the mother as a friend from Aalyiah's Facebook account. The father's explanation was that the account was never set up for messages to be passed back and forth. Even though the father had the ability to read all the messages between the mother and Aalyiah he determined that it was most appropriate to remove the mother in order to negate her ability to contact Aalyiah. Of course, the father did not feel the need to remove his new partner as a friend. The father's behavior sends the message to Aalyiah that there is something wrong with her having contact with her mother. The father is either intimidated that Aalyiah will have a close bond to her mother or is attempting to slowly eliminate the mother from Aalyiah's life and replace her with his new partner.

[175] Over Christmas of 2014 the mother requested of the father that the children be allowed to be in the presence of A.H., providing her assurance that she will not leave the children unsupervised with A.H. The father initially appeared to be receptive to the idea, but first demanded that he would need to see A.H.'s report card. In cross-examination, he conceded that even if he had been given A.H.'s report card he would not have allowed the children to be in the presence of A.H. There can be no reasonable explanation of why the father would require A.H.'s report card, other than to gather more "evidence" on A.H. of why this child is somehow such a negative influence on the children (a view that is not substantiated by any evidence proffered at trial).

[176] The father feels justified in his bizarre behavior of "smelling" the mother's clothing when she attended to collect the children for a visit for either an odor of alcohol or illegal drugs. On one occasion he then withheld the children on his unfounded belief that she had been consuming alcohol. The police were called, attended the father's home and found no indicia of the mother consuming alcohol.

[177] The father made an issue of the mother's finances to attempt to put forward that she is unable to care for the children on a primary basis. Sarah Borsfai, (mother to the father) testified that she has had to pay the father's debts on his home on more than one occasion. There was no evidence proffered at the trial that the mother had to rely on a third party to pay her debts.

[178] The father takes the position that the mother's home is not suitable as the children would need to share a bedroom. At the time that the OCL did her observation visit at the father's home it was noted that the children chose to share a bedroom at the father's home. The father holds the mother to a different standard than what is occurring in his own home.

[179] The father has deliberately made plans on the mother's access times for activities with the children, and informed the children of the activities prior to seeking confirmation from the mother that she was willing to have her access interfered with. This left the mother with the option of saying no to the proposed plans for the children and being left with their disappointment or allowing her time to be interfered with so that the children could attend the "fun activities" the father planned on the mother's time. The father has a misguided belief that it was okay for him to plan activities for the children on the mother's time, because he was willing to change her access days/times. This is a clear indication of how little importance the father has placed on the mother's access time with the children.

[180] The incident in July of 2014, where the commencement of access was delayed until the Saturday, as a result of the child A.H. being with the mother and her partner, resulted in the father taking deliberate actions to drive by the mother's apartment. The father was not satisfied with driving by, when he saw that the mother had other adults over for the evening he felt compelled to stop his vehicle and attend at the mother's home unannounced. The children were present in the vehicle. It was approximately 9:00 p.m. at night. The parties had already agreed that access would commence on the Saturday. There is no reasonable explanation for the father's behavior other than him checking up on the mother and her activities. He further took the opportunity to make negative comments about the mother to the children and why the children were not having access on that evening. I do not accept the father's evidence that he was driving by in order to allow the children to say good night to the mother. I find that the father's motives that evening were malicious. He was attempting to gather evidence to prove the mother to be a bad person.

[181] The father has attempted either to knowingly or through ignorance influence the children to not accept the mother's new partner, Mr. Hunt. Despite his efforts of making negative comments to the children, and despite the children being able to articulate that they are aware that the father believes Mr. Hunt is both "bad" and not liked by the father, these children, aged 8 and 5 years of age at the time they met with Ms. Boyer, have been able to form their own opinions. Those opinions of Mr. Hunt have been positive.

[182] The father took issue with the child support payable, which is enforced through the Family Responsibility Office. Regardless that the mother is providing Table support for the children based on her income, (no claim being sought for imputed income for the mother), the father described the mother as being "a deadbeat mother", because she is not paying more. He has continued to ask her to purchase items (for example clothing, contribution towards the cost of swimming lessons, items needed for school) that are to be covered in the child support that is payable. More disturbing is that the father becomes upset/angry and belligerent towards the mother when she informs him she cannot contribute. His rational is that the mother's partner earns a decent income, therefore her household income is sufficient for the mother to contribute above and beyond the Table amount. It appears the father is content to accept Mr. Hunt's income while at the same time make disparaging comments about Mr. Hunt to the children to negatively influence the children's views of Mr. Hunt.

[183] The father is so focused on marginalizing the mother's role and interaction with the children he has completely lost sight of what is in the children's best interests. To allow his behavior to continue will result in his alienating behavior to escalate. At this juncture, the father has a limited ability to promote, encourage and facilitate access between the mother and the children. It is clear that the father believes he is facilitating and encouraging access, but his actions show otherwise.

[184] In viewing the father's actions and unfounded beliefs concerning the mother, it is clear he lacks the necessary judgment to make appropriate decisions to facilitate and encourage a positive and healthy relationship between the mother and the children. It is evident from his email communications to the mother that he accepts no responsibility for his actions and how they impact the children. Filed as Exhibit 2.35(c) is an email from the father to the mother, wherein he berates the mother and lays all blame for the current situation at her feet. The father suggests the mother engage in anger management. A further example (although I do not intend to summarize all of the evidence where both the father and the mother engaged in inappropriate behavior towards each other), was an email (dated July 19, 2014) filed as Exhibit 2.35(d). The father communicates to the mother in the following fashion, "you're are fat, ugly and a disgusting person and there is nothing remotely attractive about you so don't think I'm stalking you, merely checking out where you take my kids to confirm my suspicions of drugs in your apartment and prove the unsafe environment you expose them too."

[185] I have found that both parents have engaged in behaviours that can be described as domestic violence. I further find that while both parents have engaged in this type of behaviour, I find that the father is the aggressor and that he has used the power imbalance within the relationship and post separation to his benefit. I am not convinced that the father is able to recognize that he is an abusive person who will benefit from anger management and counseling to address his violent and aggressive behaviors.

[186] It is further noted that father has difficulty accepting authority. Examples can be found in the description of the police involvement, where on April 4, 2014, the father refused to open the door for the police. When informed the matter involved a sensitive issue, the father's response was that he did not care. On October 20, 2013 the police noted the following, "He was standoffish with police and yelling at police. He was issued a warning and told to stop to repeated texts."

[187] Overall, I find that the father makes decisions on what best meets his needs, irrespective of the views/opinions of others. As a result, he is unable to make decisions based on what is best for the children. In my view, to allow the father's claim for sole custody and specified (limited) access to the mother will encourage the father in his path of minimizing the mother's role to the detriment of the children.

OCL

[188] I have carefully reviewed the OCL's recommendations as outlined in its report. However, after trial, it is evident to me that providing sole custody to the father is not in the best interests of the children, given his behavior and inability to meet the objectives of the "maximum contact principle".

[189] The report was dated April 16, 2014. Unfortunately, there were many more incidents that occurred between these parents from the date of the report until the conclusion of the trial (January 23, 2015) that provided insight into how both the mother and father parent the children and interact with one another. Access had varied on a number of occasions since the report.

[190] The report provided needed information on the involvement of outside agencies (police, protections agencies, school attendances, etc.) as well as an independent view as to the suitability of each parent's home.

[191] Ms. Boyer, in her report, flagged for the father, that he must stop interfering with the mother's parenting time, and if interference continued, a different custodial arrangement may be warranted. Despite the fact that the serious issue of the father interfering with the mother's parenting time was included in the report, the father has proven incapable of stopping this behaviour.

[192] Upon hearing vive voca evidence of the parties and collateral witnesses, and having the opportunity for specific incidents to be fully explored at trial, this proceeding has provided the only real forum by which to analyze what is in the best interests of these children. As a result, the recommendations as outlined by the OCL, will not be implemented.

DECISION

[193] To summarize, I find, that both parents have the ability to meet the day-to- day needs of the children, and that the children are bonded to both the mother and the father. I have found that the father is not able to facilitate meaningful access to the mother and does not have the ability to promote, encourage and foster a relationship as between the children and the mother. The father's actions and behaviors led me to find that he is attempting to marginalize the mother in the lives of the children. As a result, I find that it is in the best of interests of the children, Aalyiah and Aayden, that the following Order shall issue:

1. There shall be a parallel parenting order entered into. The father shall have the decision-making authority concerning the children's school. The mother shall have the decision-making authority concerning the children's religion. The parent having the day-to-day care of the children shall make the decisions concerning non-life threatening medical decisions.

2. Each parent shall be responsible for making the necessary arrangements to receive any information concerning the children (for example, school report cards, medical reports, extra-curricular activity schedules, etc.) directly from the appropriate service provider and shall not request such information from the other parent.

3. Both parents shall be entitled to attend the children's functions (for example, school plays, extra-curricular activities) and shall not engage in confrontational behavior with one another. The parent who has the care of the children during the timing of an event/activity, shall allow the children to independently approach the other parent to say hello, without interference.

4. The parent who has the children for either a medical or dental appointment shall make the follow up appointment (if needed) at the conclusion of the appointment, and shall forthwith advise the other parent via email. The content of the email shall be restricted to the date and time of the next scheduled appointment.

5. The residence of the children shall rotate on a weekly basis, with exchanges to occur on Wednesdays, after school. The parent receiving the children shall be responsible for making the necessary arrangements to collect the children on the Wednesday, after school hours. The parent delivering the children at the conclusion of their parenting time shall deliver the children to school on the Wednesday morning. During times when exchanges cannot occur at the school the parties shall either agree upon a third party to deliver the children to the receiving parent or exchanges shall occur through the Supervised Access Program.

6. In the event that the parties cannot agree on a commencement date for the rotating schedule to begin, the mother shall have her first week commencing March 11, 2015.

7. The parenting schedule shall remain in place throughout the summer months.

8. The parenting schedule shall remain in place for long weekends (to include Thanksgiving, Easter, Victoria Day, the August Civic Holiday, Family Day). The parent who does not have the children during the long weekend, shall be entitled to a Sunday visit from 9 a.m. until 6 p.m. Exchanges shall occur through a mutually agreed upon third party or through the Supervised Access Program.

9. The father shall be entitled to Father's Day (irrespective of the parenting schedule) from 9 a.m. until 6 p.m.

10. The mother shall be entitled to Mother's Day (irrespective of the parenting schedule) from 9 a.m. until 6 p.m.

11. During the Christmas holidays, the mother shall be entitled to Christmas Eve day commencing at 9 a.m. until Christmas Day at noon in odd numbered years. The father shall be entitled to Christmas Day at noon until Boxing Day at 6 p.m. in odd numbered years. The regular parenting schedule shall then resume. The father shall be entitled to Christmas Eve day commencing at 9 a.m. until Christmas Day at noon in even numbered years. The mother shall be entitled to Christmas Day at noon until Boxing Day at 6 p.m. in even numbered years. The regular parenting schedule shall then resume.

12. The parties shall limit their contact with one another to one email per week. The contents of the email shall be child focused and shall be confined to such areas as the children's school, religion, non-life threatening medical conditions, extra-curricular activities, and events that the children may be invited to on the other parent's time (for example a birthday party).

13. Neither party shall be entitled to plan activities for the children during the parenting time of the other parent, without first obtain written consent from the other parent.

14. In the event of an emergency concerning the children, the parent who has day to day care and control shall forthwith advise the other parent by telephone. In the event that the parent is not able to contact the other parent by telephone, the parent shall text the other parent.

15. Neither parent shall make demeaning remarks to the children concerning the other parent, the other parent's partner or extended family members.

16. Thomas Borsfai's estimated income for the year 2014 is $31,460.00. The table amount for two children is $452.00. Lee Ann Hyde's estimated income for the year 2014 is $15,384.00. The table amount for two children is $245.00. Based on the shared residence of the children, Tom Borsfai shall pay child support to Lee Ann Hyde in the amount of $207.00 per month, commencing March 15, 2015 and the 15th of each month thereafter until further Order of the Court.

17. The parties shall pay proportionate to income towards the Section 7 expenses of the children, as defined in the Federal Child Support Guidelines.

COSTS

[194] In the event that costs are at issue, Mr. Borsfai shall submit written submissions limited to 5 pages within 30 days of the release of this decision. Ms. Hyde shall submit written submissions limited to 5 pages within 45 days of the release of this decision.

Released: March 3, 2015

Signed: "Justice Sarah Cleghorn"