Court File and Parties

Court File No.: Halton 572/11 Date: 2015-07-16 Ontario Court of Justice

Between: Anna Bolotnov, Applicant

— And —

Denis Ron Moldavski, Respondent

Before: Justice V. Starr

Heard on: November 12, 2014, February 4, April 15, May 15, & June 12, 2015

Reasons for Judgment released on: July 16, 2015

Representation:

• Anna Bolotnov .............................................................................................. on her own behalf
• Denis Ron Moldavski .................................................................................... on his own behalf

STARR J.:

INTRODUCTION

[1] This is the Court's decision following the hearing of a number of motions brought by each of the parties to vary, on an interim basis, the custody and access provisions set out in a number of previous orders as well as for new orders with respect to custody and access of their 6 year old daughter.

[2] The parties were married on September 21, 2008, separated on May 6, 2010, and divorced on or about March 26, 2012.

[3] The parties have one child, 6 year old, Eva Moldavski, born March 13, 2009 ("Eva"). Eva resides primarily with her mother and has specified holiday access to her father (including two non-consecutive uninterrupted weeks in the summer), and regular access to her father, on alternate weekends and, although the father does not exercise it, every Wednesday overnight.

[4] This is a very high conflict case where each party has alleged that the other is alienating the child from him or her and where the father alleges the mother is mentally ill. In addition, the father alleges that the mother repeatedly denies him access to their daughter for no good reason, and, the mother alleges that the father is emotionally, verbally and physically abusive of their daughter as well as an incompetent and neglectful caregiver. The information available from third party collaterals is more at odds with the mother's evidence than aligned with it. The mother attributes the views of all who do not see things the way she does (i.e. the Clinical Investigator for the Office of the Children's Lawyer and the Child Protection Workers employed by the Halton Children's Aid Society), to their incompetency.

[5] Unhappy with the orders the court has made and the status quo, the mother has repeatedly brought motions to vary it; and the father to refine or enforce it. There are serious credibility issues that need to be determined and a trial is what is desperately needed in this case, not another interim order. Unfortunately, the matter cannot be set down for trial because the parties are still waiting for the psychiatric assessment of the mother to be completed and report tendered. It is time to put a stop to the endless motions and this is what I intend to happen.

THE EXISTING ORDERS

[6] On March 3, 2011, Justice Brownstone made a final order, on consent. The relevant portions of that order to the issues to be decided by this court are as follows:

Paragraph 1: the Applicant and the Respondent shall have joint custody of the child of the marriage, Eva Moldavski, born March 13, 2009 ("Eva"). The primary residence of the child shall be with the Applicant;

Paragraph 2: the Respondent shall be entitled to make inquiries and be given information by Eva's doctors, dentists, healthcare providers, teachers, school officials, summer camp counselors, and others involved with Eva. Both parties shall be entitled to attend health-related appointments, extracurricular activities, and religious and school events;

Paragraph 3: the Respondent shall have regular parenting time with Eva as outlined below:

Phase II Commencing May July 1, 2011

(a) Every Wednesday from 5:30 PM to 9:00 PM (when Eva turns 3 1/2, the Wednesday visits shall become overnights with drop-offs Thursday at 9:00 AM);

(b) Alternating weekends from Friday at 6:30 PM to Sunday at 9:00 PM (extended to Thursday's or Tuesday morning if a long weekend);

Paragraph 4: the Respondent shall have holiday time with Eva as follows:

(f) when Eva commences kindergarten, the Respondent shall spend up to two non-consecutive weeks with the child during the summer vacation. The weak shall be communicated in writing to the Applicant by no later than June 1 of each year. Summer access shall be reviewed when Eva commences grade 1. Summer access will suspend the regular schedule;

(k) Christmas Eve and Christmas Day shall be spent with the Applicant from 1:00 PM December 24 until December 25 at 6:00 PM at which time the regular parenting schedule shall resume;

Paragraph 10: the Respondent shall be entitled to contact the child by telephone, e-mail or other electronic means once per day when the child becomes age appropriate but by no later than three years old.

Paragraph 14: Neither party shall make disparaging remarks about the other parent or their families in the presence of the child.

[7] The father brought a motion to change certain parts of the parenting provisions of the final order of Justice Brownstone dated March 3, 2011. The motion to change was issued on December 12, 2011. The mother's response to motion to change is dated January 10, 2012.

[8] At a case conference held before Justice Zisman on July 25, 2012 Justice Zisman made a final order, varying the final order of Justice Brownstone in part. The balance of the terms of Justice Brownstone's order remained in effect. The relevant portions of Justice Zisman's order are:

Paragraph 2: Pickup and drop-off of the child, Eva Moldavski, born March 13, 2009 shall occur at 330 Dundas Street East, unit five (a Starbucks Restaurant) Oakville.

Paragraph 3: There shall be no police enforcement clause regarding access.

[9] On December 24, 2013, as a result of a motion made by the father, Justice Zisman made a further temporary order. The relevant portions are as follows:

Paragraph 1: The respondent shall exercise access to the child, Eva Moldavski, born March 13, 2009, as follows:

c. January 3, 2014 at 6:30 PM to January 5, 2013 at 9:00 PM; and

d. Each alternating weekend thereafter.

Paragraph 2: The terms of the Order of Justice Brownstone, dated March 3, 2011, and the order of Justice Zisman, dated July 25, 2012 shall continue in full force and effect.

Paragraph 5: Any breach whatsoever of this order may be brought to the attention of the Honorable Justice Mdm. Zisman and an emergency hearing shall be scheduled on short notice.

[10] This order also provided for the Office of the Children's Lawyer to be appointed as both parties agreed that this was a very high conflict case and that the Children's Aid Society had verified their concerns of the effect of this conflict on the child.

[11] At a case conference presided over by Justice Zisman on January 8, 2014, the parties filed temporary minutes of settlement which resulted in a without prejudice order varying the final order of Justice Brownstone, dated March 3, 2011 on a temporary basis. The relevant provisions of that order are as follows:

Paragraph 1: The Respondent, Dennis Ron Moldavski, shall exercise access to the child, Eva Moldavski, born March 13, 2009, on alternate weekends from Saturday at 1:00 PM, with pickup by the Respondent to be from Russian school in Oakville located at 1469 Nottinghill Gate, to Monday morning, with drop-off of the child to be at her school (St. Andrew's Catholic school, Oakville) and or preschool by no later than 9:15 AM, commencing Saturday, January 18, 2014. The Respondent's Wednesday access will continue.

Paragraph 3: The parties shall refrain from making any disparaging remarks regarding each other and the others immediate family members (including partners and grandparents) in the presence of the child, Eva Moldavski, in an effort to minimize any negative impact on the child.

Paragraph 4: The Respondent, Dennis Ron Moldavski, shall immediately notify the Applicant mother by both e-mail and phone of any health or medical symptoms/issues the child may exhibit, and by no later than the evening of the same day. The Applicant shall do the same.

Paragraph 5: The Respondent, Dennis Ron Moldavski, shall cooperate and communicate with the Applicant mother by both e-mail and phone to ensure that the child is seen by a doctor on the same day the symptoms arise to avoid further medical complications. The Applicant shall do the same.

Paragraph 8: All other issues set out in the Respondents Notice of Motion, dated December 17, 2013, and the Applicants Notice of Motion, dated January 2, 2014, shall be dealt with at the case conference and\or subsequent court dates.

Paragraph 10: The other terms of the Order of justice Brownstone, dated March 3, 2011 and the order of Justice Zisman, dated July 25, 2012, shall continue in full force and effect.

[12] At the case conference held before Justice Zisman on March 5, 2014 a further temporary order was made based upon temporary minutes of settlement filed. The relevant provisions of that order are as follows:

Paragraph 8: The access shall continue in accordance with the terms set out in the temporary consent order of January 8, 2014.

Paragraph 9: All other provisions of Justice Zisman's January 8, 2014 court order shall remain in full force and effect.

[13] At a settlement conference held before Justice Zisman on July 8, 2014 a further temporary order was made. The relevant portions of that order are as follows:

Paragraph 2: The Respondent shall have summer access to the child, Eva Moldavski, born March 13, 2009 from Friday, August 15, 2014 to Monday, August 25, 2014, pickup and drop-off at the daycare.

Paragraph 3: For the summer, the Respondent shall pick up the child on Fridays and drop-off the child on Mondays at daycare on his weekends.

[14] On October 2, 2014 this matter came before me for the first time, as I had been assigned as the new case management judge. It was for the continuation of the settlement conference that initially began before Justice Zisman. The settlement conference did not proceed as the father had not seen Eva since late August 2014 and alleged that the mother was denying him access. I was not prepared to make an order dealing with this issue, as the father asked, without the issue being before me on a motion made on proper notice. I adjourned the matter and directed as follows:

If the father wishes, he may bring a motion to deal with the issue of access as well as the mother's noncompliance with the order regarding the psychiatric evaluation. Similarly, mother may bring a motion to deal with the reapportionment of costs of the assessment.

THE CURRENT MOTIONS

[15] On November 12, 2014, this matter came before me for the hearing of a motion brought by the father as well as a cross motion brought by the mother. Certain issues were resolved on consent, but not all. I heard the two motions and made an order. The relevant portions of the November 12, 2014 order are:

Paragraph 9: The child, Eva Moldavski, born March 13, 2009, is to begin individual therapy with a psychologist with expertise with children and in particular, expertise dealing with children whose parents are separated or separating and who are being exposed to a high level of parental conflict. If the parties cannot agree on a therapist by January 2, 2015, they are each to serve and file affidavits setting out their proposed candidate, his or her expertise, availability, hourly rate, and C.V. so that the court can select a therapist on the next occasion.

Paragraph 12: The father shall obtain medical care for the child within 24 hours of the child developing illness symptoms by bringing her to the nearest doctor's office and then, following the appointment and at the first opportunity, supply the mother with the details of the visit in the manner outlined above.

Paragraph 13: The father shall have access to the child as follows:

a. Wednesdays [pickup from the YMCA by 5:30 p.m.] to Thursdays [drop off at school];

b. Alternate weekends starting November 14, 2014, from Friday [pickup from school or the YMCA by 5:30 p.m.] to Monday [drop off at school] or Tuesday if Monday is not a school day;

Paragraph 14: If the father's access begins or ends on a day when there is no school (i.e. over the holidays) pick up and drop off shall occur at winter camp if she is at such a camp that day or at the Starbucks at Hwy 5 and Trafalgar. In the latter case, the exchange shall be facilitated by the mother's neutral third party designate (i.e. her priest) attending at the Starbucks to deliver or retrieve the child for father's access; mother not to attend.

Paragraph 15: The father will bring the child to and from Russian school during his weekends.

Paragraph 17: The mother shall not be within 300 metres of any location where the father is to pick up or drop off the child for access, for at least 1 hour prior to and for 30 minutes after the scheduled access pick up or drop off time.

Paragraph 18: The mother is to abide by the court order allowing the father daily telephone access to the child. The mother shall ensure that this access occurs by placing the call for the child to father's cellular phone at 8 p.m. on each day that the child is in her care.

Paragraph 19: The mother's request to have daily contact with the child by telephone when the child is in the father's care is adjourned.

Paragraph 20: The father's request for the re-involvement of the OCL is adjourned.

Paragraph 21: The father's request for police enforcement of his access is adjourned.

Paragraph 22: If the mother denies the father access under this or any previous order, the father has leave of the court to bring a motion before me to deal with the issue.

Paragraph 23: All previous orders remain in full force and effect except as modified by this order.

[16] During the adjournment period the mother brought another motion (notice of motion dated January 26, 2015) and the father served an amended notice of motion (dated January 27, 2015). Both motions were returnable on February 4, 2015. The portions of the (now 4) motions before the court to do with parenting were adjourned to April 15, 2015. During the period of the adjournment the mother served another notice of motion (dated April 8, 2015).

[17] On April 8, 2015, I asked the Halton Children's Aid Society (HCAS) to become involved. I asked them to interview certain collateral third parties. I directed them to gather information about very specific topics from these third party collaterals and to file an affidavit with the information they obtained. The HCAS affidavit was filed in court on May 14, 2015. By this point the parties had already argued the motions. I adjourned the hearing however to give the mother an opportunity, as she had requested, to reply to the HCAS affidavit.

[18] By the time the June 12, 2015 hearing date arrived, the material filed was over 6 inches high, making up 3 volumes of the Continuing Record. There were also additional materials that were loose in the Court file. The loose material consisted of a letter addressed to the Court from the Halton Children's Aid Society (HCAS), and two affidavits loose in the Court's file (one from the Society and one from the mother). Almost all of the material was material filed by the mother. Each party completed their submission on June 12, 2015.

THE ISSUES

[19] The issues that to be decided, once one parses out the issues already dealt with as well as the duplication in the various notices of motion the issues to be decided are as follows:

1. The mother's request to have daily contact with the child by telephone when the child is in the father's care;

2. The mother's request to reduce the requirement for Eva's telephone calls to the father when she is with the mother to every other day instead of every day;

3. The mother's request for an order to terminate the father's access on Wednesdays;

4. The mother's request for "alternate weekend exchanges will occur on Saturdays at the supervised access center located in Mississauga Highway 10 in Adlington intersection and operated by Social Enterprise Canada to allow for 24-hour access visits with drop-off and pick up at the same location on Sunday not at the child's school";

5. The mother's request for the father's summer access of two non-consecutive weeks to be reduced to 72 hours;

6. The mother's request to remove access on Christmas Day and Christmas Eve and to replace it with access times during the father's religious holiday of Hanukkah following official school closure in December;

7. The father's request for police enforcement of his access;

8. The father's request for an order that the mother shall provide the father with 36 hours' notice of the child's non-emergency health appointments, including dates, times and locations for the appointment.

9. The mother's request for an order that the parties shall promptly sign all necessary authorize consents and other documentation necessary for supervised access;

10. The father's request for the re-involvement of the Office of the Children's Lawyer ("OCL");

11. The mother's request for the OCL to appoint a different clinical investigator than was previously assigned by the OCL;

12. The mother's request for an order that the father provide a notarized consent to the mother with respect to the child's short term vacation travels to the Caribbean or US;

13. The mother's request for an "order appropriate and effective measures that will hold the father accountable for his noncompliance with existing timelines".

14. The father's request for costs of the November 12, 2014 motion as well as the motions that followed.

[20] This is the Court's decision and reasons with respect to these issues.

THE LAW

[21] Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide "a reasonably acceptable solution to a difficult problem until trial": see Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.). There is, therefore, a heavy onus on a party who seeks to vary a temporary order - essentially replacing one imperfect solution with another imperfect solution - pending trial: see Boissy v. Boissy, 2008 CarswellOnt 4253 (S.C.J.).

[22] There are, however, times when it is appropriate to vary an interim order or a final order pending the hearing of a motion to change. The place to start is with the legislation. Variation of orders, even interim orders, is governed by section 29 of the Children's Law Reform Act ("the CLRA or "the Act"). A close scrutiny of the legislative wording of this section is worthwhile. Section 29 does not say that a court may vary an order if there has been a material change in circumstances. What it says is that a court shall not vary an order unless there has been a material change in circumstances. This difference is significant. A change in circumstances is not sufficient. The change must be "a material change". This means it must be "substantially important": see McIsaac v. Pye, 2011 ONCJ 840.

[23] The jurisprudence with respect to when it is appropriate to vary an order or the status quo on a temporary basis reveals a long standing legal principle - that absent evidence of material change and evidence establishing that an immediate change is required, the status quo is ordinarily to be maintained until trial: See Niel v. Niel, 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.); M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 Can LII 18315 (Ont. S.C.); and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).

[24] The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child. It is generally not in the best interests of children to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the OCL recommending an immediate change in residence; an indication that the children are doing poorly under a particular regime; serious mental health issues in connection with one of the parents; and drug or alcohol addiction on the part of one of the parents: see Shotton v. Switzer, 2014 ONSC 843.

[25] In Grgurich v. Del Ben, (1997) the court writes at paragraph 8:

"Interim orders are temporary orders which are intended to remain in effect until final disposition of the issues at trial. Interim orders should not be tinkered with or varied save in appropriate circumstances."

[26] In Greve v. Brighton, 2011 ONSC 4996, at paragraph 24, the court writes that the court should only vary the interim order:

"… where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the children's best interests."

[27] It is within the legislative context of section 24 (best interests of the child) and 29 (variation of orders) of the CLRA and with the forgoing legal test and principles in mind that I have analyzed and reached the decision that I have with respect to the balance of the relief that each party has sought.

ANALYSIS

Travel Consents

[28] The mother's unchallenged evidence is that the father was not cooperative with her request in August 2013 to travel with Eva for her first vacation. To illustrate his lack of cooperation the mother describes how she had filled out the passport application and the father insisted her stepfather (with whom the mother does not get along) on being the guarantor for it. Further, he intentionally misinterpreted various record requirements etc. In addition, after Eva's passport was issued, the mother purchased Disney cruise tickets for Eva; the father, who had agreed to sign the travel consent letter, then caused delay and trouble by cancelling the appointment the mother had set up with a paralegal to notarize it. The mother takes issue with the fact that the travel consent was signed three weeks before the scheduled departure date for the cruise – she sees this as unreasonable delay.

[29] The mother's evidence is unchallenged. It shows that the father was somewhat obtuse and difficult around this issue. However, in the end, he did sign the travel consent and the passport application and he did so at least three weeks in advance of the cruise. This was not a situation where one parent holds the other parent hostage until the 11th hour. Further, this has only occurred on one occasion. I am not satisfied that the father will not cooperate in the future in the event that the mother presents him with specific travel plans. Further, the mother does not present the court with sufficient details of why and when travel to the US is necessary. She also does not present any firm plans indicating an intention to travel prior to a trial being held in this matter. For these reasons, I find there has been no material change in circumstances and there is no compelling reason to make an interim order that gives her the right to travel at any time with the child across international borders, without the knowledge or prior consent of the father.

[30] There are also compelling reasons to refuse the mother's request. There are a significant number of red flags in this case which warn of the potential for parent – child abduction. For example:

(a) This is a high conflict custody and access case with a great deal of hostility between the parents;

(b) The mother has a history of denying access to the father;

(c) There is sufficient evidence for the court to be concerned about the possibility that the mother is alienating the child from the father;

(d) There is absolutely no doubt that the mother sees little of value in the father. Her evidence is replete with allegations that he is incompetent, uncaring, toxic and abusive to the child and neglectful of the child's needs; and,

(e) The evidence of the mother makes it clear that she has lost faith in the justice system to protect her daughter from the abuse she believes her daughter has suffered and continues to suffer at the hands of her father.

[31] For these reasons, the mother's request for this relief is denied.

Request to Remove the Father's Christmas Access

[32] Justice Brownstone's March 13, 2011, final order specifically grants the father access on Christmas Eve and Christmas Day. The mother's objection, based on her evidence, to the father exercising his access on the allotted days is that the father is not Christian. This was known to the parties at the time when the final order was made. Indeed, the final order makes provision, not just for Christmas Eve and Christmas Day, but for the Jewish holidays as well. The mother has neither demonstrated a material change in circumstance, nor a compelling reason for this court to interfere with the final order prior to trial. The mother's request for this relief is denied.

Re-involvement of the Children's Lawyer

[33] By way of report dated June 2, 2014, the OCL made the following recommendations:

• Joint custody;

• Father to continue to have access on alternate weekends as per the status quo;

• Father to have access on Wednesday over night to Thursday morning on alternate weeks;

• Status quo with respect to summer and holiday access remain as per the status quo ordered by Justice Brownstone;

• Father's access not to be withheld, changed or reduced unless a court so orders;

• Mother is to complete a psychiatric assessment;

• Father is to follow through with individual counseling to help improve his ability to communicate and address issues of control in his relationships;

• Father to have access to all information regarding the child

• An update report to be provided by the OCL after mother has completed the psychiatric assessment (my emphasis added);

[34] The mother filed a Notice of Dispute to the OCL Report. She disputes many of their factual findings as well as their recommendations. Her dispute is extensive and very detailed. She clearly views the clinical investigator for the OCL as incompetent. She is prepared to agree to the re-involvement of the OCL but only if the OCL assigns a different clinical investigator.

[35] I am not prepared, at this time, to grant either the father's request for the re-involvement of the OCL, or, the mothers request that any order requesting the re-involvement of the OCL stipulate and direct the OCL to appoint a different clinical investigator. It is premature to request their involvement given the OCL's very clear recommendation that they become re-involved after the mothers psychiatric assessment has been completed. The mother's psychiatric assessment has not yet been completed.

[36] Further, this court has had the benefit of hearing from the HCAS with respect to the Child Protection Worker's recent interview of the key third-party collaterals involved in this child's life (i.e. doctors, school principal, summer camp directors, Russian school director, ROCK counselor). In effect, the court has received the type of information that the OCL would generally provide at this stage and that this court needs in order to deal with these motions. Consequently, it is unnecessary, at this time, for the OCL to become re-involved.

[37] I also refuse to grant the mother's request because this Court does not have jurisdiction to do anything other than request the involvement of the OCL. The decision about whether to become involved in the case is a power held solely by the OCL. This extends to decisions about which personnel to appoint either as counsel for the child or as the clinical investigator. The court has no jurisdiction to make the order that the mother seeks.

[38] I am prepared to reconsider the father's request for the re-involvement of the OCL after the psychiatric assessment of the mother has been completed and the court has a clearer picture about the mother's mental health. For this reason, I have dismissed the father's request without prejudice to his right to reassert it after the psychiatric assessment report has been made available to him and the court and only then with leave of the court obtained in advance.

Police Enforcement

[39] A review of the jurisprudence makes it clear that the use of police to enforce access comes at the risk of emotional harm to the child, and as such, this power should only be granted in compelling circumstances. To illustrate this I refer to two important cases. The first is that of Patterson v. Powell, 2014 ONSC 1419, 2014 ONSC1419 where Justice Pazaratz sets out some of the dangers associated with using the police to enforce custody and access orders at paras 20 - 23:

20 Request for ongoing police enforcement clauses typically arise in high conflict families. Inevitably, children in such families have already been through enough – and often seen enough of police in their home – long before the first court order is issued. These are likely damaged, frightened, emotionally vulnerable children, already desensitized to the presence of police as signifying that one or both parents are out of control again.

21 Young children in particular – the ones most likely to be the subject of bitter time-sharing disputes – have very immature, unsophisticated and highly emotional perceptions of police:

a. The uniforms, cruisers and crackling police radios are both fascinating and frightening

b. Police officers have guns and sometimes shoot people;

c. They have handcuffs and sometimes take people in jail;

d. They deal with "bad people".

e. Is mommy or daddy going to be in trouble?

f. It's a lot for a young child to digest during an emotionally charged time-sharing exchange.

22 Other children may have a more complex set of socially ingrained perceptions about police:

a. They may be embarrassed having uniformed officers come to their home, perhaps repeatedly. Officers invariably respond to "family trouble" calls in pairs, often arriving in separate cruisers. This very public neighborhood spectacle makes a sham of our often stated goal to protect the privacy of children.

b. Children may feel guilt or pressure to verbalize certain preferences, corroborate parental allegations, or resolve the dispute themselves.

c. They may resent one or both parents for having allowed simple things to get out of hand.

d. They may feel helpless and afraid for the most important people in their lives.

e. For many reasons, they may feel despair.

f. The stress of the original parental dispute may become greatly amplified by the stress of having police come to the home.

[40] In the case of Allen v Grenier, 145 D.L.R. (4th) 286 (Ont. Gen. Miv.), Justice Mazza, after thoroughly reviewing the statutory requirements and the overall complexity and sensitivity of the issue, states at paragraph 84:

"It is clear that an order under subsection 36 (2) is an order of last resort. Courts must make such orders sparingly and in the most exceptional circumstances. It is an order that can only be made once the court is satisfied that a party is unlawfully withholding the child from a person entitled to custody of or access to the child, It is a finding that can be based on either a single incident of withholding or on a pattern of withholding even where that pattern has been interrupted by some resumed access. .."

[41] In this case Justice Zisman previously dismissed the father's previous motion for police enforcement. She did this despite the father's evidence at the time that the mother had been repeatedly denying him access.

[42] The father has not demonstrated either a material change in circumstance or a compelling reason for this court to now make such an order. Nothing the father has alleged is new. The allegations he makes with respect to the mother's conduct around his access have been ongoing since he started his motion to change. More importantly, the father's access in this case has improved since I made my November 12, 2014 interim order and issued a warning to the mother about the potential consequences of breaching the father's court ordered access.

[43] I am also mindful that the police have been involved with this family on at least seven occasions, twice in 2014. The necessity for police involvement has stemmed, in part, from the conflict that resulted at the access exchanges, conflict which has all but dissipated since the November 12, 2014 order was made eliminating the mother from the access exchange process. Eva has also been interviewed by the police as a result of an allegation made by the mother that the father had physically assaulted the child. The mother's evidence around this involvement includes a statement made by the child to her following the interview that she was scared of them when they interviewed her.

[44] I am extremely concerned about this child's perception of both her father and her mother and about the high level of anxiety and stress the evidence indicates she is experiencing as a result of the conflict and animosity between her parents. Given the risks identified in the jurisprudence with the use of police enforcement clauses to the emotional well-being of children and the father's lack of hesitation and restraint in utilizing the police to assist him demonstrated by the history of their involvement, I am not confident that he will use such a power wisely or with any consideration for the impact his use of such a power will have on the child's emotional well-being. I wish to avoid anything that could make the situation worse for this child and anything that would place her already fragile emotional well-being at further risk of harm. This child has already been through enough and seen enough of the police.

[45] Finally, there are also already two orders that provide a mechanism for the father to enforce access: First there is the July 8, 2014 order of Justice Zisman, which provides:

Paragraph 5: Any breach whatsoever of this order may be brought to the attention of the Honorable Justice Mdm. Zisman and an emergency hearing shall be scheduled on short notice.

[46] Second, there is my November 12, 2014 order provides:

If the mother denies the father access under this or any previous order, the father has leave of the court to bring a motion before me to deal with the issue.

[47] In my view, in all the circumstances, the remedy already available to the father is a proportional response to the very low risk that the mother will fail to comply with court ordered access and achieve the appropriate balance between this risk and the risk of harm that could result for this child if the father is given the power to engage the assistance of the police to enforce his access

[48] The father's request for a police enforcement clause is dismissed.

36 Hour Notice of Doctor Appointments

[49] Paragraph 2 of the order of Justice Brownstone specifically stipulates that the father is entitled to attend health-related appointments, extracurricular activities, religious and school events. The father now seeks an order that the mother shall provide him with 36 hours' notice of the child's non-emergency health appointments, including dates, times and locations for the appointment.

[50] On November 12, 2014, I ordered, on consent, as follows:

The parties are to use Our Family Wizard to communicate with each other and they are to set this up within 7 days. Each shall pay ½ of the cost of setting up the program for one year. All communications between the parties, except for emergency communications, are to go through this program.

Within 5 days of Our Family Wizard being set up, the mother shall ensure that the names, addresses and contact information of any professionals involved with the child are posted and as well, both parties shall, following any appointment that the child has with any third party service professional (i.e. Doctor), advice via the program of the nature of that contact including the date of the contact and any recommendations or treatment plan;

[51] Implicit within both of these provisions is the expectation that information about doctor's appointments will be shared in a timely manner.

[52] Based on the language of my November 12, 2014 order, the court's expectation that the mother will provide the information the father seeks either on the day that the appointment occurs or by the next day is crystal clear. Further, assuming that the parties are complying with my order regarding the use of Our Family Wizard, complying with both orders within this time frame is relatively easy. For these reasons, the father's request that these clauses be refined to include the timeframe of "36 hours" is not necessary.

[53] Further, the father did not provide me with any specific evidence that would indicate that the mother has not provided him with such information in a timely fashion. In the absence of specific evidence illustrating a breach on the mother's part of providing him with such information within 36 hours of any medical appointment, I see no reason to refine the order. His evidence does not establish either a material change in circumstance or a compelling reason to refine the language of the existing orders. His request is dismissed.

[54] A word of warning to the mother: she should not interpret my refusal to refine the order, as giving her authority to either not inform the father or to take longer than 36 hours to do so. It is my expectation that the mother will inform the father well before the expiration of 36 hours following the appointment. Similarly, it is clear from the language of the order of Justice Brownstone that the underlying intention behind the clause is that the father would be given advance notice of any upcoming appointments so that he may attend. The mother is warned to ensure that she complies with the order by giving advance notice of such appointments, including the particulars the order identifies she is required to provide.

[55] Although the father has the right to attend such appointments he has not done so historically according to the evidence before me. This coupled with the level of hostility and conflict between the parties the father should exercise his judgment wisely and consider attending only appointments, at this time, that are particularly important (i.e. Specialist appointments). It is not in the best interests of this child to have her exposed to her parent's hostility towards one another or to risk that she will, as she has already done, witness their behaviour towards one another when conflict does erupt.

Father's Breaches of Court Orders

[56] The mother's unchallenged evidence is that the father has repeatedly breached court orders. For example:

• He failed to provide the financial disclosure he has been ordered to produce by Justice Zisman;

• He failed to pay the child psychologist within the timeframe I ordered him to do so, more than once;

• He failed to comply with my order requiring him to work with the mother to select the child psychologist with in a particular timeframe;

• He failed to follow this court's order regarding refreshing Dr. Notkin (the psychiatrist conducting the psychiatric assessment of the mother) within the time prescribed;

• He failed to honour the court order that grants the mother a right of first refusal by leaving the child with a third party repeatedly and most recently for the Easter weekend, when he is unable to care for her;

• He failed to comply with paragraph 14 of Justice Brownstone's order as well as with paragraph 3 of Justice Zisman's order dated January 8, 2014. The combination of these orders requires the parties to refrain from making any disparaging remarks regarding each other and the others immediate family members (including partners and grandparents) in the presence of the child, in an effort to minimize any negative impact on the child.

• He failed to comply with Justice Zisman's order dated January 8, 2014, paragraph 4, by failing to immediately notify the mother by both e-mail and phone of any health or medical symptoms/issues the child may exhibit, and by no later than the evening of the same day.

• He failed to comply with Justice Zisman's order dated January 8, 2014, paragraph 5, by failing to ensure that the child is seen by a doctor on the same day the symptoms arise to avoid further medical complications.

• He failed to comply with my November 12, 2015 order by failing to obtain medical care for the child within 24 hours of the child developing illness symptoms by bringing her to the nearest doctor's office and then following the appointment at the first opportunity, supply the mother with the details of the visit in the manner outlined above.

• He has taken Eva late to school repeatedly on the Monday mornings, in contravention of my November 12, 2014, order.

• He did not take Eva to her Russian school twice subsequent to, and, and despite my November 12, 2014 order requiring him to do so;

[57] The mother's evidence on each of these breaches is unchallenged. Further, based on the evidence she has submitted to illustrate the breaches, the evidence of the HCAS protection worker as to what the Russian school director and doctor who saw Eva on March 23, 2015, reported to her, and based upon the "excuses" the father gave during is submissions, I have no difficulty finding that the father has in fact breached many of these orders.

[58] Of greatest concern to this court, at this time, is the father's breach of the provisions that relate to Eva's care. First, there is the breach of the provision that requires him to seek medical care for the child on the same day symptoms arise. Here I point to the mother's evidence that when Eva returned home on March 23, 2015, she complained of a tummy ache. Her finger was so badly infected it had puss in it. This is corroborated by the doctor who saw her when the mother took her there shortly thereafter. Further, when Eva returned home from her father's care on August 25, 2015, her mother reports that she was sick. The mother took her to the family doctor's clinic where Eva was immediately diagnosed with bronchitis and prescribed antibiotics. As the mother points out, the symptoms must have existed prior to Eva's return home given she was sick enough once she did, to require a prescription for antibiotics.

[59] Second, the father did not take Eva to Russian school on the very first two Saturdays following the making of my November 12, 2014 order which required him to do so. According to the report given by the Russian school director to the HCAS worker, he did not take Eva because he missed Eva so much, having not seen her for some time.

[60] It is also clear to me that the father has made disparaging remarks about the mother in front of the child. In this regard I point to the mother's evidence about the incident that occurred in the Russian school parking lot where he and his mother decided that it would be a good idea to use their cell phones to video the mother and to speak negatively to the mother in front of the child. This is also confirmed by the Russian school director, whom the Society reports, told them the father, while standing with Eva by his side, told the director that the mother is "brainwashing". I am not confident however, that the mother has not also breached these provisions. Here I point to the remark made by Eva's school principal about what Eva has told her – which is: "at times, Eva advised that her mother told her that dad used to hit mother and hurt her".

[61] My intention when I ordered, on November 12, 2014, that the father have access to Eva until Monday mornings and that he drop her off at school, was that he would do so on time. My order does not specify this however. I also note that according to the school principal's report to the HCAS worker, the mother has been late, at least up to that point, more times in dropping Eva off than the father.

[62] I do not have sufficient evidence before me upon which I can conclude that the father has failed to comply with his disclosure obligations, but based on his lack of response, I suspect that this too is true.

[63] The problem is that the relief the mother has requested makes no sense to me. She has asked that the Court "order appropriate and effective measures that will hold respondent accountable for his noncompliance with existing timelines". In the circumstances and taking into account all the times that the mother has breached the father's court ordered access, I find it fair and appropriate to deal with the father's breaches at this time, by cautioning the father and giving him an opportunity to bring himself into compliance in short order. This is the same approach I took with respect to the mother's failure to comply with the father's court ordered access.

[64] The father should take the time to review all the orders in place to make sure he understands what is required of him and to make sure he does what is required of him when it is required. As I told the mother in October 2014 - an order is not a suggestion. He must comply with the orders in place or there may be far more significant consequences levied against him at a future date.

The Mother's Requests to Restrict the Father's Access and For Phone Contact during His Access

Generally

[65] The mother seeks sweeping reductions and changes to the father's court ordered access to Eva. She seeks to vary, on an interim basis, pending trial, the summer, and telephone access ordered on a final basis by Justice Brownstone as well as my interim order dated November 12, 2015 which refined the telephone access provisions of Justice Brownstone's order. She also seeks to vary, on an interim basis, the interim order I made with respect to the father's regular weekend and Wednesday access dated November 12, 2015. Finally, she seeks to interject telephone access as between her and the child during the father's time with Eva.

[66] As I have noted, to persuade me to vary the existing orders she must demonstrate that a material change in circumstances has occurred since the making of those orders and that there is a compelling reason giving rise to an immanent need to change these orders, pending trial.

The Mother's Evidence

[67] The mother's evidence is based almost exclusively upon what she claims her 5 ½ year old child has told her and upon Eva's behaviour as witnessed by her. She asserts that these indicate that Eva is being abused by her father, and in any event, is not coping well with the amount of access she currently has with her father.

[68] The evidence presented by the mother is nothing new. At the time when I made my order on November 12, 2014, I was well aware of the mother's concerns. In fact, the evidence at that time was far more compelling than it is now. Some of the examples that the mother gave included:

• Biting her fingernails to the point of extreme pain;

• Oppositional and aggressive behavioural issues acting out of control, hitting and pushing other children, not listening to the teachers, being rude;

• Nightmares about access and expressing "terror" about going to visit with her father;

• Extreme emotions at access exchanges as well as before and after access, such as crying inconsolably, trying to escape her father to go to her mother, clinginess to the mother, and other signs of separation anxiety.

[69] Some specific contextual examples given by the mother include:

(a) On Sunday, November 10, 2013, the mother picked Eva up from the father at the designated exchange spot. Eva was crying and deeply disturbed. She was inconsolable and continued to cry as she and her mother drove home and for a long period after they arrived home. Eva told her mother that her father hit her on her head, and squeezed her legs and hands. She was also extremely upset that the father screamed at her when she called the mother's then fiancée daddy.

(b) Eva's behaviours worsened following the father's return of Eva from her first week of summer vacation with her father in 2014. The mother noticed that Eva was less cooperative, more strong-willed and talked back a lot.

(c) Eva went to a summer camp program in the summer of 2014, and on the very first day the program director called the mother and advised that Eva was out of control, hitting and pushing other children, not listening to the teachers at all. The camp director said that Eva's behavior was dangerous to others and that Eva would be expelled from the summer camp unless there were dramatic changes. By the end of the first week of summer camp Eva had hit all the kids in her initial group and the other parents were complaining. She had to be moved to another group;

(d) Eva had nightmares for about a week after coming back home from access with her father on August 25, 2014. She slept with several lights on as she repeatedly told her mother that she was scared. At night she woke up crying "no no I do not want to go to Papa Ron". The mother again noticed an escalation in Eva's poor behaviours.

(e) On the day of her return from the 10 days with her father in August 2014, the mother picked Eva up from summer camp. During the car ride home Eva made her stop the car and sit with her in the backseat. Eva was hugging her mother and crying. She told the mother that the father did not allow her to call mommy and that she asked him many times. She said again that her father was angry with her whenever she talked about Nick, the mother's now common-law husband.

[70] All of this information was either available to be presented to the court or actually presented to and considered by the court prior to the court making its order of November 12, 2014. It cannot be relied upon to demonstrate a change in circumstances creating compelling reasons that the order should be varied to meet the Eva's best interests.

[71] The mother cites new examples of Eva's distress with access – examples that she says have occurred since the November 12, 2014 order was made. These include:

• Eva spoke to her mother on Saturday and told her mother how much she missed her;

• Eva called on a Sunday recently and as the mother had missed the call, Eva left a message asking the mother to call her back. The mother describes Eva's voice as so shaky it made the mother's heart drop. When she and her mother finally spoke on the phone, Eva said that she really wanted to come back home.

• When Eva returned home on March 23, 2015 she complained of a tummy ache. Her finger was so badly infected it had puss in it.

• Eva had a call with her father and told him that she did not want to go visit him and hung up on him (this was on April 1);

• On April 2, 2014, Eva asked to stay home so her father couldn't pick her up.

• Easter weekend: Eva was left for the whole weekend by the father with a third party. This, the mother says was contrary to Justice Brownstone's March 13, 2011 order, which contains a right of first refusal clause. Also, Eva was improperly dressed in oversized summer type clothes made of very light cotton.

• When her mother asks her what she does at her dad's place she says nothing and that she plays alone while he watches his movies. The father, Eva says, locks her in her room to play alone.

• One day the mother heard Eva lie to her father. When she questioned Eva immediately thereafter as to why she would not tell him the truth, Eva answered: "how he treats me, that's how I will treat him. Because he is not nice to me, I will be the same".

[72] It is not at all surprising that some of the behaviors Eva is reported by her mother as having exhibited have continued or that new ones have surfaced. I do not find the continuation of such behaviors or Eva's more recent statements to amount to a material change in circumstance. They do not, create a compelling reason for this court to vary Justice Brownstone's final order granting the father two non-consecutive weeks with the child in the summer months, or this court's November 12, 2014 order granting the father alternate weekend access and access on Wednesdays overnight. They also do not justify allowing the mother to have telephone contact with the child when she is with her father.

The Father's Evidence

[73] The father did not provide much in the way of evidence. HE does however report that since I made my order eliminating the mother from the exchange process, that there have been no issues when he picks up or drops of Eva and that when Eva is with him she is happy.

The New Evidence

[74] There is new evidence available to the court now includes third party observations. There is: the evidence and findings of the Society with respect to its own involvement; the results of the joint society and police investigation into the father's alleged abuse of the child; and, the evidence of the child protection worker as to what was reported to her by the third-party collaterals that the court requested the HCAS interview. Although much of it is hearsay, I find the child protection workers evidence to be credible and trustworthy: she is trained to interview third party collaterals and to report on what is told to her; she was acting on the court's instructions; and all of the third parties interviewed were independent professionals. The mother had been asked to bring forward this evidence but had stated that she was unable to do so as the professionals were "scared" or reluctant to get involved. Given the situation, the only way that the court had to try and find out if the picture the mother paints of Eva is accurate was through interviews conducted by the child protection worker. In other words the evidence was reliable, probative, necessary, and as such I admitted it and rely upon it.

[75] The information from the various professionals does not, in most instances, corroborate the mother's evidence. Key excerpts from what these collaterals reported is as follows:

The Russian School Director:

• Eva was very emotional, saying she doesn't really want to go see her father, she wants to stay with her mommy, she wants her mother and she did not concentrate on the work\activities, she was only talking about this. This happened when the mother dropped Eva off and attended the school. This did not happen when the father dropped the child off.

• Eva started crying, it was more like she did not look natural, like she wanted her way.

• The mother was saying she cannot leave her child. It almost looked like it was purposely done in front of people for drama.

• The father then showed up, he saw that Eva was screaming that she didn't want to go, the father was very calm, said he missed her, grandparents were waiting and had presents for her.

• The father was very calm, and asked Eva what her mother told her. Eva said "you're very scary person; I'm afraid of you; if I'm going to talk with you, right now you look very kind, but if I believe you, I will be affected by that if I believe you, then I will be very angry too". Father was very calm, told Eva "I love you", and told the director that the mother was brainwashing. The director wasn't sure what Eva was told. The father then took Eva, and told her he could show her her present in the car.

• When the mother's was there Eva was very emotional, saying "I don't like my daddy, I don't love him". Eva would say these words while entering the school and, when in class, Eva completely forgot. It seemed like Eva was told to say this.

• When the father brought her, Eva was happy, didn't talk at all about family issues, and she would be waiting for her dad, saying such things as: "I love my daddy", "my daddy is picking me up", and was really excited to see him.

• Eva did not have any defiant\aggressive behaviors at the school.

• Eva was nervous when the mother dropped her off and afraid of father picking her up, but only for 10 min. Once Eva got into activities, she was fine. Eva was fine when the father dropped her off at the school.

• Eva is very active, and presented as an average five-year-old.

[76] Joanne Fox from the Reach Out Centre for Children ("ROCK"):

• She met with the father once, they spoke about what was going on at his home, and, she did not have any concerns;

• In her dealings with the child, the child did not speak negatively about either parent.

[77] Glenburnie Summer Camp Director, Ms. Christine Johnston:

• On occasion the child was going to the dad's place. The mother told Christine that she was worried about Eva being hit by the father while at his home. After Christine spoke with Eva, it appeared that she was regurgitating what her mother told her.

• Christine did not have any concerns regarding Eva. She did not see extreme signs of anxiety in Eva, and did not see the child biting her nails.

• In regard to nightmares, it was hard to tell what Eva was saying and what her mother was telling Eva to say.

• When Eva saw her father, she was excited to see him.

• When dropped off by mother, Eva would say she was worried about food at her dad's and that daddy would only give her candy.

• When dad picked Eva up, Eva was excited.

• When Eva came back from her dad's home, they were not getting information or disclosure regarding concerns from Eva about her father's home.

[78] Children's Choice Summer Camp Manager, Nancy Miller:

• Eva had been in the camp recently. Eva went to the Glen Abbey childcare program when she was two years old. Eva has attended on PA days, and March break Camp.

• Eva is a very sweet girl when one on one. When it comes to other children, Eva picks on them, hits, spits, bites and, when she is approached to talk about her behaviors, Eva shuts down and then comes down later to apologize.

• Behaviors happen depending on what they are doing. Eva's behaviors are little more than average. Her behaviors were not so severe where she was expelled from summer camp. Eva's actions are manageable, just difficult.

• In regard to Eva biting her nails, she noted that Eva bites her fingernails but not to a point where she is in pain, and she will pick at her nails but not to the point where she will be bleeding or anything like that. Her impression is that it is a habit, and not something that Eva does out of anxiety.

• She has no noted concerns around nightmares or terror about visiting her father;

• Father has picked Eva up and she has met him. Eva has made pictures of her dad, and they have never heard anything negative about him from Eva.

• Eva talks about her dad and calls him "Papa Ron", when asked whose that while drawing pictures, Eva says it's "Papa Ron". There has been nothing to suggest that she's anxious.

• The child has never said anything negative about either parent.

• Eva does not exhibit anxiety when her father is picking her up.

[79] The principal of St. Andrews Elementary School (also referred to as St. Andrews Catholic School):

• Eva does have a number of behaviors. Recently, on May 4, 2015, she told a group of kids to "F" off. The teacher brought her down to the office where she saw the vice principal. The Vice Principal asked Eva why she was saying things like that, and Eva claimed she heard it at Papa Ron's, that he has said it to her. Eva told the vice principal that Ron doesn't let her watch movies, she can write her bike and he screams at her sometimes.

• Eva told the Vice Principal that her mother said that if he screams at her, to lock herself in her room and play in her room by herself.

• Eva seems preoccupied and appears to be anxious – preoccupied with the situation in general and what she's hearing from both parents.

• Eva has told her teacher that if she gets sick she is worried that her dad will get upset. Eva displays a lot of anxiety, and has chewed her fingernails down . It has been to a point where it is hurting her.

• The school is concerned about the child because she seems preoccupied by the entire situation. The child will say things (i.e. negative things) about dad's house.

• At times, Eva advised that her mother told her that dad used to hit mother and hurt her. Eva seems preoccupied by history she has been told, and has connected it to Adam and Eve. Eve speaks of dark angels and good angels.

• Eva says that she needs to make Papa Ron a good person, and that he calls her stupid as well.

[80] The Taekwondo incident: There was also an incident when the father attended to pick Eva up form Taekwondo that further illustrates how Eva's negative reactions to her father occur when she has just recently been separated from her mother's influence. On this particular day the mother had dropped her off and the father arrived to pick her up at the end of the class. Eva refused to go with her father and was very upset. She was so upset that the Taekwondo instructor asked the father to leave and after he did, called the mother to pick her up. The mother touts this as another example of Eva voicing her distress. The short time frame between when the mother dropped Eva off and the father attended to pick Eva up casts some doubt on whether this was a "spontaneous" reaction on Eva's part.

[81] HCAS and Police Investigation of the Father: Both the Society and the police have investigated the mother's allegations that the father is verbally, emotionally and physically abusive towards Eva. The allegations have not been verified. I acknowledge the mother's statement that the child was too intimidated when interviewed the first time by the police and the HCAS to make disclosures but that a month later she was, when in a comfortable setting with people she knew, disclosed the abuse she had allegedly suffered in great detail. The mother attributes this to the child's level of comfort. In my view, it is equally plausible, given the level of detail (very detailed for a 4 ½ year old), that the child was coached by the mother about what to "disclose." The plausibility of the mother's assertion is further undermined by the fact that this very detailed disclosure was made after the mother had had the child in her exclusive care for over a month and followed on the heels of the mother's disappointment that the child had not disclosed to the police and HCAS the first time.

[82] Risk of Harm Verified by the Society: The Society has advised that it has verified that Eva is at risk of harm due to exposure to parental conflict over custody.

[83] Mother Withdraws Consent for Information to be Gathered from Collaterals: On the last day of the hearing of these motions the court was provided with three envelops, one addressed to the court, and the other two to each of the parties. The envelopes were sealed. The parties were provided with their envelopes and when the hearing began, I asked the parties if they had any objection to me opening my envelope and reading its contents. Both provided their consent for me to do this. The envelope contained a letter from the Halton Children's Aid Society addressed to me and dated June 10, 2015. In their letter the Society advises that the mother (on June 4, 2015) gave notice that she withdraws all consent provided to the Society by her with respect to authorization to contact various third parties involved with the child. She specifically identifies the collaterals who provided the reports which formed part of the evidence on this motion submitted by the society.

Conclusion

[84] What all the evidence before the court at this time tells the court is this:

(a) There is no independent credible evidence to persuade me that it is more likely than not that this father is abusing Eva emotionally, verbally, or physically when she is in his care;

(b) It is more likely than not that this child has suffered emotional harm as a result of being exposed to and witnessing the conflict between her parents;

(c) The greatest threat to this child's emotional wellbeing comes from any further exposure to parental conflict;

(d) This mother sees no value in the father and does not want Eva to be with her father.

(e) The mother has a history of denying access to the father, and of trying to limit it;

(f) The image that the third-party collaterals paint of the situation and in particular of the child's relationship with her father and her behaviors around her mother is very different from the descriptions provided by the mother. That evidence suggests that Eva's behaviours and statements are more likely the result of the mother's influence – something the mother is doing or failing to do (i.e. Coaching) than something the father has or is doing. It suggests that when Eva has been separated from her mother for a period of time, her view of her father is actually quite positive. It suggests, as well, that Eva is an average and sweet child with behavioural difficulties around social interactions with peers but which can be managed. It suggests that Eva is not as anxious as her mother portrays her. It suggests that the father is a calm and caring parent. The following are some of the

(g) The evidence, other than the mother's, suggest that the child actually has a positive view of her father, enjoys spending time with him, and loves him – that she has a good relationship with her father;

(h) The mother will not accept anything anyone says that is not in line with her view of the world and reacts negatively and disproportionately to those whom she does not see as aligned with her i.e. court staff, the judiciary, the children's aid Society, the OCL, the school, the Russian school director, etc.

(i) The mother's behaviors are highly suspect particularly given her recent revocation of her consent for the society to communicate with the collaterals, thereby cutting both the society and the court off from access to any independent, neutral sources of information;

[85] As the motions judge, I must make decisions based on an incomplete evidentiary record, on evidence that I consider to be reliable, and without the benefit of hearing from all of the witnesses directly. At this stage it is impossible to be definitive as to the source of the child's negative statements and behaviours or her anxiety. The cause could be any number of things: the mother alienating or coaching the child; the child is overly sensitive; the child suffers from hyperactivity; or the child is reacting to the high level of conflict she has witnessed; suffers from separation anxiety, or is feeding on the distress she senses in her mother. It could be that the mother suffers from a mental illness that accounts for her perceptions and behaviours. What the evidence does not support, at this time, is a finding that the father is the cause of Eva's negative statements and behaviours.

[86] At this stage, based solely on the evidence I have before me, I also find the following on a balance of probabilities:

(a) This child's view of her father is negative when she is around her mother or speaking with her. Further, when the child is not in the presence of her mother or has been out of her mother's care and influence for a period of time, her view of the father is fairly positive. The child deserves to have a meaningful and healthy relationship with her father and the only way to facilitate this, for now, is to ensure that she has meaningful access to him. The existing orders provide that in terms of time and it is thus in her best interests for said access to continue. Certainly there exists no compelling reason to limit it as requested by the mother.

(b) Contact between the child and mother around the father's time for access interferes with the quality of his access because it rekindles the child's negative view of the father and triggers separation anxiety. The risk of creating stress for the child by allowing the mother to interfere with access via a phone call is greater than the risks associated with the child's separation anxiety and with allowing the child to go unsoothed by the mother. For these reasons, it is not in the child's best interests for the child to have telephone contact with her mother when she is with her father.

(c) This child has health issues. While they are not as extreme as the mother portrays them to be according to the medical professionals, and while the father's lack of attention to these needs does not rise to the level of neglect, his handling of her medical needs leaves much to be desired. The concern does not rise to a level where I would consider reducing the father's summer or weekend access with the child to "days only" as the mother would prefer. It is imperative, however, that the father comply with the existing orders which relate to ensuring that the child gets timely medical treatment when symptoms first arise and that he notified the mother of same;

(d) There is a high degree of conflict between the parents and the child has been present for and thus, repeatedly exposed to. This child's reactions when faced with conflict between her parents are extreme and her level of distress is beyond acceptable or tolerable levels. Her reaction during the two incidents which occurred at the Russian School best illustrates this. These parents cannot have contact with one another in the presence of this child. To accomplish this exchanges for access must avoid face to face contact between the parents and must not involve the mother.

[87] For all these reasons I find that the mother has not demonstrated that there has been a material change in circumstances necessitating an immediate change to the existing vis-a`-vis the father's telephone, weekend and summer access, or requiring that an order be made for the mother to have telephone access to the child when the child is with the father. Save and except as outlined below, the mother's requests are therefore denied.

Wednesday and Sunday Overnight Access

[88] Based on the evidence, I find only two things have occurred since the November 12, 2014, order was made that amount to a material change in circumstance and form a compelling reason to modify the order that I made with respect to the father's access. The first is that the father has not exercised any Wednesday access since November 12, 2014. Prior to that he exercised access to Eva sporadically on Wednesdays such as when he was working close to her daycare. Early on in the hearing of these motions the father undertook not to exercise his access on Wednesdays without giving the mother advance written notice of his intention. This was so that no one would be kept in limbo each week waiting to see if he was going to exercise it or not. The problem with his sporadic exercise of access on Wednesdays, from the mother's perspective is twofold. First, it raises an expectation on Eva's part that she will begin seeing her father regularly on Wednesdays, only to have that expectation dashed once the father is no longer working close to her daycare. Second, having to ensure that Eva is available for access means that she cannot be enrolled in extracurricular activities or do other things that might otherwise be enjoyable for her to do on Wednesdays. This is unfair to Eva and not in her best interests, according to her mother.

[89] When I made my order on November 12, 2014, I did not understand that the father had not been actually exercising his Wednesday access regularly up to that point or that he would not do so on a go forward basis. When the father was questioned about this by the court he confirmed this but advised that he did not want to lose his Wednesday nights because of the prejudice to him. In my view, while maintaining the Wednesday night access is in the father's best interests it is most certainly not in this little girl's best interests. To address the "prejudice" issue and at the same time address the child's best interests, I have decided not to terminate the Wednesday night access as the mother requests but instead, to suspend it on a without prejudice basis.

[90] The second and far more alarming thing that has happened since my November 12, 2014 order was made is father's inability to get Eva to school on time on the Monday mornings and the child's reaction to the Monday morning drop-off at school. The father lives in Richmond Hill, the child goes to school in Oakville. To get to school on Monday mornings the child has to commute somewhere between 50 and 80 km. In order to get the child to school on time, the father must get the child up early and commute through morning traffic.

[91] Two things have occurred that form a compelling and material reason to change the day on which the father's weekend access is to end from Monday morning to Sunday evening. First, there is the fact that the child has vomited at least twice during the commute to school. The mother's evidence is that on February 9, 2015 the father dropped Eva off at school at 9:15 a.m. at the school office with all her clothes covered in vomit. Eva told her mother that her father woke her up very early and fed her pasta for breakfast despite her refusals, and on the way to school, she threw up heavily in the car. This, the mother reports happened twice and on the first occasion the father simply dropped Eva off at the school office alone.

[92] The mother's evidence is somewhat inconsistent with what the school principal reported to the HCAS worker (i.e. the principal denies that the child was covered in vomit and that the father left her alone in the school office). It is not necessary to decide which version is true because one thing is clear – the child vomited during the commute and the father dropped her off at school without taking her home first to change her clothes. The evidence strongly suggests that the vomiting is a sign of stress associated with the early morning rise and the long commute.

[93] Second there is the fact that in the very short period of time that the father has had the responsibility of getting the child to school on Monday mornings he has been late repeatedly and in some instances well after 10 a.m. (school starts at 915). By way of example the father dropped Eva off at school at:

• 11:50 on November 17

• 12:10 on December 1

• 11:50 on December 15

• 11:50 on January 12

• 11:50 on January 26

[94] According to the mother's unchallenged evidence, on one occasion Eva was dropped off so late that she missed her Christmas concert rehearsal. Although his track record improved once I address the issue in February 2015 (ie. there were no more instances of the child vomiting), he has continued to be late in getting Eva to school late.

[95] I agree wholeheartedly with the mother that it cannot be in this child's best interest for her to be so distressed by getting up early in the morning, followed by a long commute, that she ends up vomiting. It also cannot be good for Eva, either socially or from the stand point of fostering a healthy self-esteem, for her to be dropped off at school either with vomit on her or with her clothes smelling like vomit. Further, it is not in Eva's academic or social best interests to be late for school so often and so late. For these reasons it is in Eva's best interests that the father's overnight access to her on his alternate weekends be changed such that he is not responsible for taking her to school on Monday mornings. The only way to accomplish this is to take away his Sunday overnights.

Access Exchanges on Sundays

[96] Changing the father's weekend access so that it ends on Sundays instead of Monday mornings makes it necessary to reconsider access exchanges on the Sunday nights as these can no longer occur at Eva's school, camp or activity.

[97] The mother suggests that I order access exchanges occur at a supervised access centre. She looked into two centres. One, is open on Friday from 6:00 p.m. to 8:00 p.m. and Saturdays from 9:30 a.m.– 3:30 p.m.; the other on Sundays only from 9:30 a.m. to 3:30 p.m. Both centres work on a first come first served basis and I do not have current reliable evidence with respect to their availability to supervise exchanges right away. I also do not have evidence that confirms that I could order one centre be used on Fridays and the other on Sundays. In any event, I see no need to alter the arrangement on Fridays - that the father will pick Eva up form daycare, school, camp, or such other activity as she may be enrolled in during the summer or holiday periods.

[98] I also note that it is in Eva's best interests for there to be a buffer between the time when the mother drops her off and the time when the father picks her up. This "down time" allows Eva to relax and be out of the presence and influence of her mother well before pick up time by her father. This is not possible if exchanges on Fridays take place at an access exchange centre. For this to happen pickups by the father must generally occur on Fridays from the child's school or, daycare, camp (or other activities in the summer months).

[99] What is most troublesome about the mother's proposal and the reason why I am not prepared to order exchanges take place at one of the supervised access centres, is that the supervised access hours do not work with the access schedule in place for the father. If I ordered access drop offs to occur on Saturdays at 3:30 as the mother suggests, the father's weekends with the child would be severely reduced (the loss of several hours). Given that I have decided to vary my November 12, 2014 order so as to take away the father's Wednesday and Sunday night overnight access, I am not prepared to further restrict it. Further restrictions would not be in Eva's best interests as she needs all the time she can get with her father given the evidence that suggests her relationship with him is under siege by the mother.

[100] During submission the mother indicated that her common-law husband could facilitate exchanges on her behalf. She assured me there would be no altercations as he is, she says, a calm and competent man. I am prepared to try this and to use the Starbucks located at Hwy 5 and Trafalgar – the location used in previous orders. The time for drop off, given it is a school night will be 9:00 p.m. during the summer months and 8:00 p.m. during the school year (1/2 an hour before the mother's stated bedtime for Eva during the school year).

No Further Motions to be Brought or Affidavit Material to be Filed without Leave of the Court

[101] The parties in this case are self-represented. It is clear to me that they do not understand the process or procedure related to motions and they do not understand the law or what is and what is not appropriate in terms of the type of relief to seek or when to ask for relief. The amount of time that this family has consumed in terms of these motions and in terms of the time it has taken to review the voluminous materials filed has been excessive and well beyond what the court has available, particularly given the issues. The material filed by the mother was excessive and highly repetitive. In my view, both parties abused the court process and unreasonably taxed its resources. For these reasons, I have decided to place limit on when the parties can bring motions and as well, to limit what may be filed from now on.

[102] For all of the forgoing reasons I make the following order:

ORDER

1. The mother's request for the father's summer access of two non-consecutive weeks to be reduced to 72 hours is dismissed.

2. For his two uninterrupted weeks of weeks with the child for the summer of 2015, the father shall have the chid in his care from July 20, 2015 to July 26, 2015 and as well, from August 17, 2015 to August 23, 2015. Pick up shall be from the end of summer camp or the activity that Eva is enrolled in on the Friday. Drop off on the Sunday night shall be at the Starbucks located at Hwy 5 and Trafalgar.

3. The mother's request for an order to terminate the father's access on Wednesdays is dismissed;

4. The Order of November 12, 2015 is varied such that the father's Wednesday overnight visits each week are suspended temporarily and on a without prejudice basis;

5. The mother's request for an order modifying the father's alternate weekend access is granted in part: The Order of November 12, 2015 is varied temporarily such that the father shall have regular access to the child on alternate weekends starting immediately from Friday [pickup from school or the YMCA by 5:30 p.m.] to Sunday at 9:00 p.m. during school breaks, or 8:00 p.m. when the regular school year is in session. The weekend is to be extended to Monday evening at the same times if Monday is not a school day;

6. On a temporary basis, the child shall be dropped off by the father on the Sundays of his weekend access at the Starbucks located at Hwy 5 and Trafalgar. The mother's common-law partner shall attend at the Starbucks to receive the child from the father on behalf of the mother. If he is not available then the mother must select a third party to carry out this task who has been approved by the father in advance and in writing. The mother shall not, under any circumstances be present for these exchanges.

7. On a temporary basis, if the father's access begins or ends on a day when there is no school (i.e. over the holidays) pick up and drop off shall occur at winter or summer camp or a scheduled activity if she is at such a camp or participating in an activity that day. If the child is not at camp or in an activity that day then the exchange shall take place at the Starbucks at Hwy 5 and Trafalgar. In the latter case, the exchange shall be facilitated by the mother's common law partner or, if he is not available, by a mutually agreed upon third party attending at the Starbucks to receive the child from the father. The mother shall not, under any circumstances be present for these exchanges.

8. On a temporary basis, the mother shall not be within 300 metres of any location where the father is to pick up or drop off the child for access, for at least 1 hour prior to and for 30 minutes after the scheduled access pick up or drop off time.

9. The mother's request to have daily contact with the child by telephone when the child is in the father's care is dismissed;

10. The mother's request to reduce the requirement for Eva's telephone calls to the father when she is with the mother to every other day instead of every day, is dismissed;

11. The mother's request for alternate weekend exchanges to occur on Saturdays at the supervised access center located in Mississauga Highway 10 in Adlington intersection and operated by Social Enterprise Canada to allow for 24-hour access visits as well with drop-off and pick up at the same location on Sunday not at the child's school, is dismissed;

12. The mother's request to remove the father's access on Christmas Day and Christmas Eve and to replace it with access times during the father's religious holiday of Hanukkah following official school closure in December, is dismissed;

13. The father's request for police enforcement of his access is dismissed.

14. The father's request for an order that the mother shall provide him with 36 hours notice of the child's non-emergency health appointments, including dates, times and locations for the appointment, is dismissed.

15. The mother's request for an order that the parties shall promptly sign all necessary authorization consents and other documentation necessary for supervised access, is dismissed.

16. The father's request for the re-involvement of the OCL is dismissed without prejudice to his right to reassert it after the psychiatric assessment report has been made available to him and the court and only then with leave of the court obtained in advance

17. The mother's request for the OCL to appoint a different clinical investigator than was previously assigned by the OCL is dismissed;

18. The mother's request for an order that the father provide a notarized consent to the mother with respect to the child's short term vacation travels to the Caribbean or US, is dismissed.

19. The mother's request for an "order appropriate and effective measures that will hold respondent accountable for his noncompliance with existing timelines" is dismissed.

20. Except as modified by this order, all previous orders remain in full force and effect.

21. Any breach whatsoever of the father's access may be brought to the attention of the Honorable Justice Mdm. Starr, by the father, and an emergency hearing shall be scheduled on short notice.

22. With the exception of a motion, brought by the father for enforcement of his access, neither party may bring any further motions or file any further affidavits in the court file or the continuing record without first obtaining leave of the court to do so. Requests for leave are to be made by way of 14B Motion, without notice to the other party. The supporting affidavit shall not be more than 2 pages in length, double spaced and typed.

23. This matter is adjourned to August 26, 2015 at 2:00 p.m. The purpose of that attendance is solely for the parties to advise the court of the progress in Dr. Notkin's psychiatric evaluation and expected completion date, the progress in Eva's therapy sessions, and to address the issue of costs of the November 12, 2014 motion and of these motions. A request for costs will only be entertained if the party seeking costs has served the other party with his or her Bill of Costs, 7 days in advance of court and attends on August 26, 2015 with two copies of the Bill of Costs for the court.

24. Court staff to immediately prepare the draft of this order and to have it issued forthwith, and to ensure that both parties are contacted prior to Friday July 17, 2015 to attend to obtain their copy of it along with these reasons.

Released: July 16, 2015

Signed: "Justice Victoria Starr"