Court File and Parties

Court File No.: D56106/12 Date: January 20, 2016 Ontario Court of Justice

Between:

GENEVIEVE SANG WEBSTER Applicant

— AND —

CLAUDIU SUTEU Respondent

Before: Justice Roselyn Zisman

Heard on: January 12, 2016

Reasons for Judgment released on: January 20, 2016

Counsel:

• Stephen Gillies, for the Applicant
• Alex Finlayson, for the Respondent

ZISMAN, J.:

1. Introduction

[1] This is my decision on a Motion to Change the order of September 29, 2015 and a Contempt Motion by the respondent ("father") arising out of alleged breaches by the Applicant ("mother") of the terms of the order of September 29, 2015. The decision also relates to the Cross-Motion by the mother to change the order of September 29, 2015 and for the Office of the Children's Lawyer to be appointed and for a mental health examination of the father.

2. Background and Litigation History

[2] This is a high conflict dispute about the child Dean Webster born October 26, 2011 ("Dean" or "the child"). Dean has been the centre of continuing parenting disputes that began shortly after his birth. In addition to this on-going unhealthy and distrustful conflict between the parties, Dean is a child with special needs. He was born with bi-lateral club feet and he has been diagnosed with moderate to severe autism spectrum disorder ("ASD") with language delay.

[3] The parties initially entered into a consent order on June 13, 2012 that provided that the mother have sole custody of the child and that the father have supervised access that was to be expanded to reflect the child's growth and developmental needs. The father exercised supervised access that was suspended by the mother for a variety of reasons but thereafter the parties could not agree on ongoing access and the father's participation in the child's life.

[4] The father then commenced a Motion to Change in February 2014. The case management judge held several case conferences, heard a temporary motion that resulted in unsupervised access to the father and increased his involvement in the life of the child. There were also several procedural motions.

[5] A trial of the father's Motion to Change was scheduled before me. I heard 13 days of evidence and 2 days for submissions from April 20th to August 29th, 2015. On the last day of submissions, I also heard submissions about the child's schooling. I ruled that the child should continue at his current pre-school for junior kindergarten as requested by the father rather than being enrolled in the junior kindergarten program in the public school system as requested by the mother.

[6] On September 17, 2015, before my decision was rendered, I received written submissions and heard oral submissions in a telephone conference call with respect to the mother's non-compliance with my order regarding where the child should attend school for September. I made further orders that required the mother to comply with my order of August 29th.

[7] On September 29, 2015 I released my written decision on the trial. I made an order for joint custody with an incremental increase in access to the father with overnight access to commence within several months. Specifically with respect to the father's access, I ordered that the father's access, that at the time was only 3 hours each week, to be extended to a full day and then as of December 5th his overnight access was to commence from Saturday to Sunday for 3 week-ends of each month and then after 2 months to be further extended from Friday after school to Monday return to school for 3 week-ends every month with a provision for a further hearing, with leave of the court, for another motion to expand access for an alternate week schedule.

[8] I also made a detailed multi-dimensional order regarding parental conduct and decision-making that provided inter alia, that in the event of a dispute about any medical or educational issues that the father would have final decision making authority. There were also specific provisions with respect to the mother not involving any new professionals in the child's life or making appointments without providing the father with notice.

[9] The mother filed an appeal of my decision on the last possible date namely October 28, 2015. But her counsel on the appeal, not Mr. Gillies who was counsel on the trial and on this motion, only called father's counsel on November 17th to advise that unless the father agreed to stay the Order he intended to bring the stay motion on only 4 days' notice. In order to allow proper time for father's counsel to prepare a proper response the father agreed to forgo his overnight access that was scheduled to begin on December 4th until the stay motion was heard. The father filed a cross-motion for security of costs.

[10] The motion to stay and the motion for security of costs were scheduled to be heard on December 10, 2015 and as a result the father's overnight access that was to begin on December 4th was delayed. A further delay of the father's overnight access was agreed upon to permit Justice Del Frate, who heard the motions, time to render his decision.

[11] On December 17, 2015 Justice Del Frate released his decision dismissing the mother's motion to stay and ordering her to post $20,000 as security for costs within 60 days.

3. Motion to Change and Contempt Motion

[12] Shortly thereafter the release of Justice Del Frate's decision, the father's counsel served and filed a Form 14B seeking leave to bring a motion to change, schedule a date for both the motion to change and a contempt motion and a motion to deal with temporary parenting issues that had arisen. Leave was granted but as counsel could not agree on a return date, a telephone conference call was arranged.

[13] After hearing submissions from both counsel, I ordered that the father's motions proceed before me on January 12, 2016 at noon for 1 hour. I also endorsed that if the mother's counsel could not file responding materials before January 12th then he could do so by 9:00 a.m. that day.

[14] Father's counsel served and filed all of his materials prior to January 12, 2016. Mother's counsel filed his materials and a cross-motion on January 12th by 9:00 a.m. Father's counsel was permitted to file a short updating affidavit.

[15] Both counsel relied on the affidavits filed both with respect to their respective motions and the contempt motion.

[16] The father relies on the following documents:

1. Motion to Change, Change Information Form, Form 35.1, financial statement;

2. Notice of Motion for a temporary order that the child reside primarily with him or in the alternative an order accelerating the father's time with the child; an order for supervised access to the mother; if the court orders that the mother is not in breach of the September 29, 2015 order that she cannot bring others to medical and other appointments that the court further clarify the order that the mother not be permitted to bring third parties onto the premises at which there is any appointment for the child; and an order that a case conference be scheduled to address other issues that have arisen;

3. Affidavit of the father sworn December 17, 2015 with exhibits a to z and aa to ll; affidavit of the father sworn January 8, 2016 with exhibits a to c; and affidavit sworn January 11, 2016 with exhibit a; and

4. Amended Notice of Contempt Motion to find the mother in contempt of breaches of various provisions of the order of September 29, 2015.

[17] The mother relies on the following documents:

1. Notice of Cross-Motion seeking an order that the parties separately participate in and complete the Intensive Behavioural Service program offered by the Geneva Centre for Autism; that the parties consent to such medical or other referrals as Dr. Flanders, the child's paediatrician, may recommend including a referral to a psychiatrist specializing in ASD; an order that Dr. Flanders remain the child's paediatrician; and order that the parties are to communicate with each other via text or email only if such communication cannot wait until the next transfer when the communication log is exchanged; an order clarifying that the mother is able to bring support persons with her onto the premises where there is a scheduled meeting between the parties and the child's health care providers, teachers or therapists; and order for a mental health assessment of the father on such terms and by such person as counsel may advise; an order for the Office of the Children's Lawyer to be appointed and an order that pending determination of the father's motion to change the final order that in the event of a disagreement that the mother decide any medical and educational decisions;

2. Affidavit of the mother sworn January 12, 2016 with exhibits a to k;

3. Affidavit of Dr. Daniel Flanders, the child's current paediatrician, sworn January 11, 2016;

4. Affidavit of Evan Widmer, the mother's pharmacist, sworn January 11, 2016;

5. Affidavit of Vivienne Sang, the maternal grandmother, sworn January 10, 2016;

6. Affidavit of Kevork Marsh, the mother's friend, sworn January 10, 2016;

7. Affidavits of Netsanet Mesfun and Mercy Gyamfi, the mother's neighbours, sworn on January 10 and 11, 2016; and

8. Affidavit of Mary Laframboise, the mother's friend and a family friend, sworn January 10, 2016.

[18] Despite the motion date being scheduled only with respect to the father's motions, I agreed that the mother's cross-motion should also be heard. In view of the conflict between the parties and the escalation in concerns being raised and despite some prejudice to the father, it was in the best interests of this child that there be a full hearing on all of the temporary motions. Despite the mother's motion being labelled a "cross-motion" it is essentially also a motion to change the final order of September 29, 2015. Further, although the motion was originally scheduled for one hour, counsel were permitted to make full argument for about half an hour in the morning and for the entire afternoon.

[19] Due to the urgency of these motions and the time constraints of my own schedule, although I reserved my decision I advised counsel that I would release my reasons as quickly as possible but without the depth of a review of the evidence that I might otherwise do. However, I have reviewed all of the materials filed including the many exhibits. I do not intend to review the lengthy reasons for my decision of the first trial in this case. But my decision on these motions must be viewed in the context of the findings of fact and the credibility findings that I made of the parties and their witnesses during the trial.

[20] As counsel made submissions and filed their affidavits with respect to all of the relief requested in their respective motions, I intend to outline by findings of fact both with respect to the temporary motion to change, cross-motion and the contempt motion, then review the legal tests and then my analysis.

[21] Family law Rules 14 (17 and (18) outline the evidence that is admissible on a motion namely affidavits, other admissible evidence, transcripts and with permission oral evidence. These motions were based on affidavits and other admissible evidence that by their very nature are untested by cross-examination. Although affidavits should be based on the personal knowledge of the deponent as much as possible, a deponent can rely on information from a third party as long as the source of the information is identified and the information is believed to be true.

[22] In this case, both parties attached and relied on case notes from the children's aid society, medical notes and a letter from the school. Neither counsel raised any issues with respect to relying on this third party information. Although the mother and father did not always agree with the conclusions or opinions expressed in those notes, they did not disagree with the accuracy of any of this third party information. In the circumstances, I find that this third party information is reliable and many of the entries in the case notes and medical notes would also be admissible as business records.

[23] With respect to determining any credibility issues, I have the benefit of having very recently heard the parties and some of their supporting witnesses testify and I have made credibility rulings in the trial decision.

4. Summary of Relevant Evidence and Findings of Facts

4.1 Dean's Education

[24] Although in accordance with my rulings of August 29th and September 17th, the child was to be enrolled at the "Yes I Can Pre-School" in the Fall of 2015, his attendance required the mother to take the necessary steps to obtain a subsidy and appeal the initial refusal for a subsidy. The mother delayed signing a consent so that the father could obtain a release of the subsidy file to determine what information or reports the mother provided in support of her subsidy application. Despite the offer of assistance from the director of the pre-school to assist the mother, the mother did not actively pursue a subsidy and unilaterally enrolled the child, in accordance with her plan, in the public school. By October 30, 2015 the City of Toronto advised that it would not grant the mother a subsidy as the child was enrolled and attending a public school.

[25] The child is currently enrolled in a two year diagnostic junior kindergarten program. It is a full time special education class and all of the children have special needs. The reports from the school indicate that Dean is surpassing their expectations and they are surprised as to the amount of progress he has made in such a short time.

[26] Dean is reported to play with other children, he follows class routines well, he has never used inappropriate language and he does not exhibit any behavioural issues in school. Dean's teacher also reported that he refers to himself in the third person and if another child has a meltdown he becomes tearful. Dean can become shy and anxious but overall he is doing very well in the classroom. The school identified that he needs to improve his language skills and gross motor skills.

[27] Although this school was not the father's initial preference he is pleased with how well Dean is doing.

[28] The school sent a letter expressing their concerns about the child's attendance. As of November 12, 2015, Dean was late 11 times and absent 9 days. The letter states that "an ongoing and recurring pattern of missing instruction has a cumulative and adverse effect on a child's school achievement."

[29] The lack of school attendance and lateness are of serious significance in this case as the mother displayed the same pattern when the child was enrolled in pre-school and at summer camp. As Dean has ASD the opportunity for socialization and learning basic skills is essential so he can reach his full potential.

[30] A meeting was also held at the school on January 6, 2016 and the on-going concern about his lateness was discussed. The mother reported that it was due to her challenges with transitions from home to school. However, the teachers and principal reported to the children's aid society that the child had no trouble with transitions at school but he does have a difficult time transitioning back to his mother's care when school is over.

[31] The child was in the father's overnight care from Sunday January 3rd to Monday January 4th, 2016 and as a result the father had the opportunity to take the child to school. The father did not have any problems getting Dean ready for school or arriving on time. The teacher reported that Dean had an "absolutely great day."

[32] I find that although the mother did not co-operate with the orders regarding the child's school, the child's needs are being well met in his current school placement, that he is doing well both socially and behaviourally and meeting his expected academic expectations. I find that the mother continues to struggle in her ability to ensure that he attends school regularly and on time. On the one occasion when the father took the child to school he was able to do so without any difficulty.

4.2 Dean's Behaviour

[33] The father describes little difficulty of his interactions with Dean while he is in his care. The father describes that Dean has been in a good mood when he arrived and eager for his visits. Since the overnight visits began, the father deposed that Dean has not had any melt-downs or tantrums. The father has been able to put the child to bed and he has been able to sleep through the night with little difficulty.

[34] On the other hand, the mother has described increasing difficulty with Dean's behaviours over the last several months especially either before or after visits with his father. She has reported that he is more aggressive, anxious and has tantrums. Two of the mother's neighbours have also filed affidavits reporting that Dean's behaviour has become more prone to outbursts, crying and screaming and flailing on the floor and that his mood changes quickly. They describe the mother being patient and gentle with Dean.

[35] Mary Laframboise, a friend of the mother's and a retired social worker, describes being present overnight at the mother's home and observing Dean on other occasions and that he is manifesting increased anxiety, withdrawal, sadness and depression due to his difficulty in adjusting to full-day school and overnight visits. Having already ruled in my trial decision, that I did not find Ms Laframboise to be a credible witness I have no basis upon which I would now change my view. I find it is inappropriate for her to attempt to influence other professionals involved in this child's life of her professional "opinion" when she is clearly not a neutral observer, nor does she have the expertise to draw conclusions as to the reason for the child's behaviour being related to his visits with his father. She has become even further enmeshed in the mother's campaign of making unfounded allegations against the father. In her recent affidavit she also contradicts some of the statements she made at the trial.

[36] The school has not raised any serious concerns about the child's behaviour at school but has raised concerns about the mother's parenting. The mother met with the school's psychiatrist and it was recommended that the mother use the services of the school social worker but the mother refused.

[37] On November 23, 2015 the children's aid society received a call about Dean and the mother. Although the name is blacked out, both counsel agreed that it was obvious from the nature of the information that the caller was a teacher from the school. The caller was worried that the mother may be doing something to the child and blaming the father, that the mother does not seem to want to help the child and that her behaviour is "odd and aggressive". The mother was described as being very angry and that she came to the school and handed the caller a report from the Hospital for Sick Children stating something about sodomy.

[38] The caller also described the difficulty the mother has getting Dean to go home at the end of the day. It was also reported that in the last several weeks Dean has become more aggressive but it is only with respect to one particular child. Further, there has been no observation that he is more aggressive after a week-end.

[39] There has not been any independent observation of the father with the child since the trial. At trial, the evidence was that there were no concerns with his care of the child or his interactions with the child. A children's aid society social worker attempted to arrange such an observation in November, but the mother would not permit the father to pick the child up from school to take him to the society's office and wanted to bring him herself. The father then refused to agree to these terms as he was concerned that the mother would upset the child or somehow influence him on the way to the society's office.

[40] I cannot draw any conclusions as to the cause of the mother's difficulty parenting the child. However, I do find that she is currently having such difficulties. I must also consider that the mother made the same allegations about the child having difficulties when the court ordered the father have unsupervised access or when the father's day access was increased.

[41] I find that the father is able to care for the child while he is in his care for overnights and that he is able to manage his behaviours.

4.3 Mother's Allegations

[42] During the trial the mother made allegations that the child had "marks and bruises" after his visits with the father. Although she repeatedly stated that she was not accusing him of physically abusing the child that was certainly the implication. I found as a fact that there was no credible or physical evidence to support these allegations. I also found that there was no evidence to support the mother's allegations of any domestic violence against herself by the father.

[43] Since the hearing of the evidence at trial the mother has made further allegations against the father that in some instances have resulted in the intervention of the police and the children's aid society. These incidents are as follows:

1. On August 20th, in the communication book, the mother alleged that the father grabbed the child forcefully and took pictures in him naked in the bathtub. Despite the trial resuming for submissions on August 24th and 25th the mother did not request that the trial be re-opened to present this alleged disturbing updating evidence so it could then be subject to scrutiny. The father denies these allegations;

2. On September 12, 2015, the father wrote in the communication book that he and Dean had played indoors with stickers, a puzzle and a car. The father returned the child at the end of the visit in the early afternoon. About 6 ½ hours later, the mother took the child to the emergency department of the Hospital for Sick Children as he had a cat sticker on his penis. According to the mother she noticed the sticker at about 2:30 p.m. and soaked Dean in the bathtub for 45 minutes and as the sticker would not come off she was advised to take him to the hospital. According to the medical report, the sticker came off easily with a little rubbing alcohol. The mother notified the father at about 7:40 p.m. she was at the hospital. When the father arrived at the hospital, the mother involved security and the father was taken to a separate room where a doctor, nurse and social worker questioned him. The father denied that he knew anything about the sticker; he had not changed the child's diaper while he was in his care for a few hours that day and he did not have any cat stickers in his home. The case note from the hospital social worker states that the mother told the staff that the father might be aggressive but the father did not display any aggression and he was co-operative. The child did not leave the hospital until 11:24 p.m. due to this allegation. The mother deposes in her affidavit that this was an "unfortunate incident" and she had to subsequently take Dean to a police station to be interviewed;

3. The father notified the children's aid society about the incident as he believed the mother had put the sticker there. On September 17th, the father was contacted by the police and on the advice of his family counsel retained a criminal counsel to respond to the police. This cost the father $900;

4. On October 14th, the father received a call from a different police officer. As the father could not afford to continually retain criminal counsel he agreed to meet with the police and make a statement. The investigation was then closed;

5. On November 1, 2015 the mother alleged that Dean returned from a visit with the foreskin on his penis pulled back. The father was contacted by the children's aid society and denied doing anything to the child. The children's aid society social worker also asked the father about a rash the mother reported around the child's groin area;

6. In the very early hours of Monday November 16th, the mother took the child to Hospital for Sick Children which the father found out about a week later. According to the medical notes, the mother reported that the child came back from a visit with the father on November 15th and that Dean said "put penis in bum hole" and "erection". The mother also reported that the child's anus was red. According to the children's aid society notes, the mother reported that she was worried that the father was "anally penetrating" the child. In the mother's affidavit filed on these motions she does not even refer to this allegation. But Mary Laframboise in her affidavit refers to sleeping over at the mother's home on the evening of November 29th, after the child's visit with the father, and that Dean picked up a small truck and placed it in his buttocks and said, "truck in my bum". When asked who showed him that he allegedly said "Marinella" who is the father's ex-wife and who is almost always at the visits. Ms Laframboise also deposed that she observed that the child's anal area was red;

7. The child was subsequently prepared for an interview through Boost with the police and subjected to being examined twice at SCAN and a police interview. No changes were laid. SCAN found no evidence of any anal penetration;

8. Dr. Kadar from SCAN called the children's aid society on September 28th and again on October 28th to report that all of the marks that the mother had brought the child in about were non-specific and not concerning. If there were any further concerns, Dr. Kadar wanted the child bought to SCAN as they had already seen him and wanted all of the information in one place and they wanted a children's aid society worker to be present. Dr. Kadar reported that the mother was asking for a complete psychological assessment on the child but there had been many services involved and SCAN would not be prepared to do such an assessment. Dr. Kadar also reported his concern about continuing to bring the child into the hospital for non-specific marks. The social worker's notes indicate that there is a concern about emotional abuse if this pattern persists;

9. There are concerns raised by the teachers that the mother is constantly talking about the conflict with the father and trying to convince the teacher of her "case";

10. The mother at a meeting with the children's aid society on October 19, 2015 alleged that the father is too forceful and that he has "shaken" Dean. She also alleged that since the visits became unsupervised she has had concerns about markings and that there have been 9 occasions when Dean came back from visits "lethargic", pupils dilated and appears to have been sedated.

11. The mother contacted the Child and Youth Advocacy Centre who then contacted the children's aid society and reported that the mother told the advocate about the many services that the father had refused. The case note of November 23rd indicates that the social worker advised the advocate that the father was only refusing one service, Intensive Behaviour Services through the Geneva ("IBS") as he felt the service were repetitive and that the child's current behaviour did not warrant that type of intensive intervention. The worker reported that the mother's and the father's description of the child's behaviour was very different;

12. The mother has made an allegation that the father was trying to change the child's pharmacy whereas it appears that all he was trying to do was to be able to have the child's prescriptions also available to him at a pharmacy closer to his residence;

13. On January 9th the child was brought to the father for an overnight visit, when the father changed the child's diaper he noticed a rash and redness. The father called the mother for a recommendation as to how to deal with this. The mother would not assist and denied that the child had a rash when she sent him for the visit. The father consulted with a doctor and was told to bring the child to the Hospital for Sick Children. The father called the mother to advise her and asked that she bring the child's health card. After arriving at the hospital, two police officers arrived with the child's health card and confirmed that the mother had called the police. The father answered their questions. The doctor diagnosed a diaper rash and prescribed some ointment; and

14. The mother, her family members and others on her behalf have been calling the children's aid society almost weekly and sometimes several times a week with various complaints regarding historical domestic violence allegations, alleging that the father is intimidating, that the child is afraid of the father, that the child is coming back from visits with marks and bruises, that others should be involved including the Office of the Children's Lawyer, a psychiatrist or a psychologist to conduct a full assessment.

[44] Based on the evidence that I accept of neutral service providers and the medical professionals, I find that the mother has persisted in making physical and now sexual abuse allegations against the father that are unfounded and have resulted in the child being subjected to unnecessary and intrusive physical examinations and multiple children's aid society and police interviews.

4.4 Access Visits

[45] After the decision on the stay motion, the father alleges that the mother has cancelled or been late on the following visits:

1. December 6, 2015 - 2 hours and 16 minutes late;

2. December 19-20, 2015 – 1 hour and 15 minutes late;

3. December 26 and 27, 2015 – cancelled;

4. January 2-3, 2016 cancelled but makeup visit January 3 to 4th but 1 hour and 44 minutes late; and

5. January 9-10, 2016 – 2 hours late.

[46] The mother does not deny that she was late or cancelled the visits, she alleges that the child was either ill or that she had difficulty getting him ready.

[47] Based on the past history of the mother's resistance to any increased access to the father, I find that there is a reasonable probability that the mother interfered with the father's access by alleging he was too ill to attend or she delayed bringing the child so that the father would have less time with the child. The mother presented no evidence that as a result of bringing the child late she offered any further time to the father although she did agree to a make-up visit for one of the cancelled visits.

4.5 Medical Issues, Appointments and Decisions

(a) Dr. Flanders

[48] The September 29, 2015 Order stipulated that the child's doctor would be Dr. Lindzon who was the child's initial paediatrician prior to the mother arranging for the child's care to be taken over by Dr. Flanders. Dr. Lindzon was called as a witness in the trial by the father. The mother did not call Dr. Flanders to testify and the father despite requesting Dr. Flanders' notes did not receive them by the time of the trial.

[49] Unfortunately, after the trial Dr. Lindzon declined to accept Dean back as a patient.

[50] Dr. Flanders therefore is currently the child's paediatrician. Dr. Flanders filed an affidavit both on the stay motion and in support of the mother on the motions before me. He deposed that he was worried that the mother may be afraid to bring the child to see him for fear she will be criticized by the father for taking the child out of school, for making unnecessary appointments with him or for breaching the court order. He also deposed that the mother appeared visibly anxious. He further deposed that the mother was a good parent and explained the importance of children with ASD and limited language to see a doctor as they cannot express their discomfort. He further deposes that he was aware that the parents had been referred to the IBS program and that he encouraged the parents to attend.

[51] With respect to the father, Dr. Flanders deposed that the father impresses him as "unconcerned about Dean's health or welfare" and that "there is no indication that Mr. Suteu accepts that Dean is a child with autism or that he understands the unique challenges that Dean's autism presents."

[52] Dr. Flanders further deposes that he saw the parents with Dean for an appointment on December 9th and the mother asked for help due to the child's anxiety and autism related behaviours. He offered a referral to a child psychiatrist with experience with autism. The father did not agree to the referral.

[53] Dr. Flanders was also present at a meeting at the school along with the parents, a society social worker and various school personnel. He offered his opinions about why the child was late for school and to write a letter to explain to the school why children with autism frequently had trouble with punctuality.

[54] As indicated the mother chose not to call Dr. Flanders as a witness so that I have no information about his qualifications or expertise regarding ASD. He has become an advocate for the mother as opposed to a neutral professional whose patient should be the child. When he was sent a copy of the trial decision, he indicated that he was not prepared to read it unless the father paid him to do so. My findings about the father's concern about his son's well-being and his acceptance of the fact that Dean has been diagnosed with ASD are contrary to the statements of Dr. Flanders. At this stage of the proceeding I put no weight on Dr. Flanders' affidavit.

(b) IBS

[55] The mother deposes that when Dean was initially diagnosed with ASD, she attended at the Geneva Centre for Autism in October 2014 and among other referrals a referral was made for IBS and Dean was on a waitlist. In the interim Dean has had services provided by other agencies. In October 2015, the mother was informed that Dean was now at the top of the wait list and that the services would be available.

[56] There is a considerable amount of evidence with respect to the attempts to arrange an intake appointment and how the services would be delivered. The father expressed concerns that as has happened with other service providers that only the mother's information about the child's behaviour is considered, the child is only seen in his primary home with the mother and that he will not be seen with the father as the service providers do not work on week-ends. The father expressed concerns that this program seemed to be a duplication of services and that it has the same model for delivery of services that was just completed through Surrey Place. The children's aid society notes and notes of the school meeting indicate that there was an agreement that this could be a helpful resource and that it was not a duplication of the services from Surrey Place.

[57] In submissions when I asked mother's counsel if the mother would agree that the father could have the child in his care sometime during the week so services could be available his home also, I received no answer to my question. Further, it is unclear whether or not the school authorities or the society workers are clear with respect to the behaviours that the IBS program will be assisting with. This issue is further complicated as the description of the child's behaviour by the mother are dramatically different than the description of the behaviours by the father and his teachers.

[58] I am not prepared at this stage of the proceedings to order the father be involved in the IBS program based on the level of conflict between the parties, their lack of co-operation and the lack of complete information about the usefulness of the program and without any specific information about what behaviours the program would be attempting to assist the parents deal with.

(c) Dr. Sloman

[59] The mother mid-way during the trial attempted to obtain an opinion about the father's access from Dr. Sloman, a child psychiatrist. The mother obtained the Dr. Sloman's name when she asked for a referral for a child psychiatrist from Dr. Flanders. The father was asked to attend a meeting but was not advised as to the true purpose. On agreement of counsel at the trial, Dr. Sloman was not called as a witness and his report was never filed. In the trial decision, I stated that I was concerned about the underhanded nature of the mother's actions and also concerned that Dr. Sloman would agree to prepare an assessment without first fully informing both parties of his intentions especially at he was aware the parties were in the midst of an ongoing court proceeding. As a result I ordered that Dr. Sloman not be involved in the assessment, diagnosis or treatment of Dean and that he not be involved in Dean's care in any way.

[60] On September 24, 2015 there is a note that states that a children's aid society worker returned Dr. Sloman's telephone call. He confirmed that he had completed a psychiatric assessment of Dean and that he suffered from ASD compounded by severe marital friction. He also stated that he had seen the mother about 4 or 5 times but was not her psychiatrist. Dr. Sloman repeated many of the allegations that the mother had previously made to the society and stated that he felt the father could be intimidating to a young social worker. It is of importance that during the trial the mother denied that Dr. Sloman conducted any type of assessment.

[61] As part of the mother's motion to stay she attempted to seek leave to introduce an affidavit of Dr. Sloman that attached his "report". Another affidavit by Dr. Sloman was also prepared and served but was not subsequently filed with the court. The admissibility of Dr. Sloman's affidavit and report were not determined on the stay motion.

[62] I find that despite the September 29th order, the mother involved Dr. Sloman. Although it could be argued he was not involved in "Dean's care" by expressing an opinion about the father's access to Dean or any other opinion that may be expressed in his report, the mother's actions are contrary to the spirit of the Order and another example of her attempts to curtail the father's relationship and contact with the child.

(d) Barbara Harvey

[63] The September 29th order provided that the treatment of the child's club feet continue to be provided at the Hospital for Sick Children and that Barbara Harvey be the physiotherapist assigned contrary to the mother's objections. Despite this order that mother called the hospital to cancel the appointment the father made and she screamed and yelled at the hospital staff and claimed Ms Harvey was not qualified. The mother then did attend the appointment and Dean was seen by Ms Harvey.

[64] The father booked another appointment just before his overnight access was to start so that he would be able to get training in using the child's boots and bar device. Despite the court order authorizing the father to arrange such appointments and pick the child up to take him to the appointment, the mother told that father she did not see the necessity of the appointment and then a few hours before the appointment told the father she would bring the child rather than him picking up the child. This is also significant evidence as one of the previous reasons the mother gave for not permitting access was that the father did not know how to use the child's boots and bar device.

[65] Although the mother complied with the terms of the order regarding Ms Harvey I find that she attempted to frustrate and interfere with the Order.

(e) Attendance and Notice of Medical Appointments

[66] The September 29th Order required that only the mother and father attend at medical, specialist, treatment, assessment, educational, therapy and any other appointments of a health care nature or a meeting with Dean's educational providers. Further, the Order also provided that the mother shall keep the father advised of all of Dean's appointments as soon as she is aware of the date, time and location and both parties are entitled to participate in and attend all such appointments. The mother was not permitted to involve any new medical professional, specialist, therapist or educational professional without obtaining the father's prior consent. Another provision required that the mother not attend any appointments with any new professional involved in Dean's care without first securing the father's consent and without first giving him 7 days advance notice and inviting him to attend.

[67] Although only the mother entered into the examining room alone for the child's medical and health related appointments she consistently attended at the hospital or for doctor's appointments with several other people who waited outside the examining room or close by. There were allegations of people following the father around and taunting him and allegations by both parents of verbal altercations and hostility.

[68] The mother did not notify the father in advance or not permit him to attend the following appointments:

1. Genetic blood test on November 27, 2015;

2. Home visits by doctors on call on October 8th, November 2nd and 4th, December 4th, 14th and 16th and January 1st, 2016. The mother did not advise in advance and generally advised one or two days later except for the visit on November 2nd which the father was not notified of until November 22, 2015;

3. At the medical applicant with Dr. Flanders on December 9th the mother asked for another psychiatrist for Dean's stated anxiety. This is not the protocol set out in the September 29th Order that provided that the parties are to consult with each other regarding any medical issues; and

4. The mother attended for an intake appointment for the IBS program on October 27th which the father alleges is a new service whereas the mother alleges it is not as Dean was previously referred to the program and has been on a waitlist.

[69] The September 29th Order was extremely detailed in order to prevent the mother from excluding the father from Dean's medical and other related appointments and to attempt to avoid the conflict that occurred when both parents brought third parties to the child's various appointments.

[70] I find that the mother has breached the spirit of those provisions. She has continued to attempt to exclude the father from attending and learning about the child's needs and ensuring that the health provider only heard her version of concerns. Arranging for home visits by doctors and obtaining notes that the child is too ill to attend school is designed to ensure that the father cannot monitor the child's alleged illness. I also note that the mother never produced any of these notes on this motion. The mother continuing to attend all appointments with her entourage is only being used to yet again bolster the mother's allegations that she is intimidated and fearful of the father. As a result the child continues to be exposed to conflict that had inevitably occurred between the father and members of the mother's supports. The father on the other hand has abided by the terms of the court order and not brought any third party to these meetings and appointments.

(f) Other Alleged Breaches of the September 29th Order

[71] The mother or her counsel was within 14 days to provide to the father or his counsel the necessary forms to have the father's name shown on the child's birth registration. For a variety of reasons there was a delay in providing the proper forms but this has now been done.

[72] The father has completed the parenting course as required. The mother initially did not but the delay was explained and she is now on a waitlist for a program to commence shortly.

5. Applicable Statutory and Legal Principles Regarding Motion to Change

[73] Pursuant to section 29 of the Children's Law Reform Act, the court may change a final custody and access order if there is a material change in circumstances affecting the best interests of the child.

[74] This is a two-step process:

1. First, the moving party must meet the threshold test of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry does no further.

2. Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the Children's Law Reform Act. Both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

[75] The requirement of a material change in circumstances cannot be an indirect route of appeal from the original order. The court cannot retry the case and assumes the correctness of the original order.

[76] On a temporary motion to change a final order for custody and access, generally, absent compelling circumstances an existing custody/access order should be maintained pending the final disposition of the case. However, where the best interests of the child require change based on a material change of circumstances, the court should not shy away from making the order.

[77] Section 24 of the Children's Law Reform Act sets out the factors that a court should consider when it is required to make a determination about a child's best interests as follows:

24. Merits of application for custody or access.

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(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 custody of or access to the child,

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

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

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

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

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

(e) 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 an adoption order between the child and each person who is a party to the application.

6. Analysis Regarding Motion to Change

[78] I find that the father has met the threshold requirement of demonstrating that since the last order, despite the fact that the order was only made on September 29th, 2015 that is less than four months ago, that there has been a material change in circumstances that has or is likely to affect the child.

[79] It is clear on the evidence presented that the mother's relentless campaign to discredit the father and interfere with his relationship with the child has alarmingly increased. The mother has continued to make unfounded allegations of physical abuse and has now escalated to making unfounded allegations of sexual abuse. As a result the child has been subjected to numerous physical examinations and police and children's aid society interviews.

[80] According to the mother the child has begun to exhibit increased anxiety, aggressive and tantrums which she submits are as a result of the child's increased access to his father and the commencement of overnight access.

[81] However, there is third party evidence from the teachers that it is the mother who is having difficulty parenting the child that is unrelated to the father's access. The doctors who have seen the child at the Hospital for Sick Children have expressed concerns about the mother.

[82] The importance of the child's attendance at pre-school and camp was clearly emphasized in the trial decision and was based on the evidence of many professionals who testified during the trial. Yet the mother is still unable to ensure the child attends school on a consistent basis and on time. Such attendance is even more important for a child with ASD.

[83] The mother has interfered with the father's gradual increase in access by cancelling or bringing the child late to the access visits. She has continued to undermine the father's role in the child's life with various professionals.

[84] The mother has continued to breach if not the terms then the spirit of the September 29th Order. For example, the purpose of requiring the father to be notified of all medical appointments was to avoid the situation the mother previously created whereby the mother met with heath care providers and gave her version of the issues or concerns without any input from the father. It was also to avoid the situation whereby the mother convinced the service providers that the father was aggressive, unconcerned about the child and did not understand the needs of the child.

[85] The evidence on this motion is that the mother is arranging for home visits by doctors that she submits are not "appointments" as there is no set time. But the mother then uses these attendances by the doctors to obtain a note that the child is too sick to attend school or an access visit. The father and the court have no way to verify if in fact, the child was too ill to attend school or an access visit which is then another breach of the Order.

[86] By way of another example, the mother submits that she has not breached the term of the Order that requires that only she and the father are permitted to attend any medical or other appointments for the child as the third parties she brings with her do not enter the actual examining room or meeting room. The mother does not consider that she is still exposing the child to the conflict that has ensued as a result of her bringing these third parties with her.

[87] I find that as a result of the mother's behaviour, the child has suffered or is likely to suffer emotional harm.

[88] I also find that as a result of the mother's behaviour that the child may suffer physical harm as it appears at this stage of the proceeding that there are concerns that the mother may be harming the child.

[89] I find that the mother's behaviour was not foreseen. I fully expected that the results of the trial and the extensive reasons for the decision would have been a wake-up call to the mother that she needed to change her behaviour. Unfortunately it seems to have had the opposite result.

[90] As the father has met the threshold test, the next stage of inquiry is what parenting arrangements are now in the child's best interests.

[91] In the trial decision I outlined the considerations of the factors on section 24 of the Children's Law Reform Act. I do not intend to repeat those factors except as they have now changed.

[92] The mother essentially submits that the status quo should continue except that she should now have final decision making with regard to all medical and educational issues. She submits that the father has had limited time with the child, that the court order stipulated only a gradual increase in his access and that she has always been the child's primary caregiver.

[93] The mother also submits that she is the parent that has been instrumental in obtaining services for the child. She therefore seeks orders that would enable Dr. Flanders to continue to be Dean's paediatrician, that the parties consent to any medical referrals by Dr. Flanders including a referral to a child psychiatrist and that the parties separately participate and complete the IBS program.

[94] Although I agree that the mother has been instrumental in obtaining services for Dean, I also expressed in the trial decision some concerns that the mother may be exaggerating some of the child's behaviours to bolster her case that the father's access should be limited. This was one of the reasons that I ordered that the father be involved in all of the appointments to ensure that the treating professional had the benefit of hearing about the child's behaviours from both of his parents.

[95] The mother does not acknowledge any errors in her behaviour or her lack of judgement. She does not acknowledge that it is a direct result of her behaviour that the increase in the father's as set out in the September 29th Order has been delayed. Taken to its logical conclusion, the mother is essentially seeking an appeal of the September 29th Order so that her role as the sole custodial parent should be restored. I found at the trial that such an order was not in the child's best interests and there is no evidence presented on this motion that would lead to any other conclusion. In fact, quite to the contrary, I find that even maintaining the mother as a joint parent has simply escalated her behaviour to the detriment of the child's well-being.

[96] The father has presented a plan to assume primary care of the child. He has spoken to his landlord to ensure the child can reside with him. He has already purchased furniture for the overnights. The children's aid society has previously inspected his apartment and found that it was suitable for the child. He has arranged with his employer to have some flexibility in his work hours so that he is able to start work later in the day so he can take the child to school and leave earlier if necessary to pick him up. He has inquired into a before and after school program that is in the same building as the child's school. He has made inquiries about his eligibility for a subsidy and has already commenced the application. His friend and ex-wife, Marinela Muscan is willing to assist and can pick up the child from school if necessary. Dean knows her as she is present on most of the access visits. The father is agreeable to Dean remaining in his present school and participating in a planned IPRC this Spring to ensure that he is in the most appropriate educational setting. The father has also inquired about the child's place on the wait list for Intensive Behavioural Intervention which was the primary service recommended by Dr. Smile who testified as trial as an expert in ASD. At the time of trial, he was #100 on the waitlist but now he is #49 and the father deposes that he will ensure that he starts and completes that program.

[97] As this is a temporary motion, I have considered whether or not the evidence is compelling enough that the best interests of the child require a temporary change to the final order pending a final determination of the issue.

[98] Several court decisions have recognized that if there is long waiting list for a trial that this is also a consideration in making temporary orders. In this case the first trial was only completed about four months ago, it is extremely unlikely that another trial will be scheduled until the Fall. Further, there is the issue of costs of further litigation. The issue of the father's costs for the first trial has not yet been determined but he is seeking in excess of $70,000. The mother has been ordered to provide $20,000 as security for costs for the appeal. I would anticipate that the father may seek either or both security of costs or that any outstanding cost order be paid before the matter proceeds any further.

[99] At the time of the trial I indicated that if the mother continued to make unfounded allegations, inspections of the child for marks and bruises, made unnecessary trips to the hospital emergency department and caused ongoing investigations that her conduct would raise child protection concerns due to her emotional harm of the child. I find that in the four short months since I released my decision that is exactly what has happened.

[100] It is also clear that the mother's behaviour will not stop. I attempted to fashion an order that preserved the mother as the primary parent but also ensured that the father had an increasing role in the child's life and that the mother would no longer be able to undermine the important role of the father in the child's life.

[101] At this stage, I find that there are only two choices namely, leave my order as is on the clear expectation that the mother will continue not to abide by the terms of the order, that she will continue to make unfounded allegations and continue to ensure the father's role and contact with the child is diminished. Or I can change custody and the primary residence of the child.

[102] I find that on a temporary basis, the best interests of this child require that the father become the sole custodial parent, that he is solely responsible for all decisions regarding the child and that the child reside in his primary care. I also find that in the short term the mother's access must be supervised in order that the child can settle into his new home with his father and that the mother is prevented from undermining or interfering with this parenting arrangement.

[103] As a result of this change of custody and residence, there will also be a temporary order terminating the father's obligation to pay child support.

[104] The mother's cross-motion requested an order that the Office of the Children's Lawyer be appointed. There was no evidence or submissions on what utility this referral would provide to the court. A multitude of service providers have been involved in this child's life. The children's aid society has continued to have an open file and it is clear from the case notes that the mother, her family members and others on the mother's behalf have inundated the society workers with telephone calls and demands for meetings. I expect that if the Office of the Children's Lawyer were appointed that office would also face the same level of intensity and that the investigator assigned would quickly become overburdened. There is an abundance of evidence about this child and the involvement of yet another agency that the mother will attempt to convince of her case would not be helpful to the court and would be intrusive to the child.

[105] The mother also requested a mental health assessment of the father. No rationale for this request was made nor were there any details. I find that there is no basis upon which to make such an order.

[106] The mother also requested that Dr. Flanders remain as the child's paediatrician and that the father be required to participate in the IBS program. In view of the order I am making that the father be the sole custodial parent he shall be at liberty to choose a new paediatrician and determine what if any programs he and the child shall participate in.

7. Applicable Legal Principles Regarding Contempt Motion

[107] Rule 31 of the Family Law Rules deals with contempt of court in family law matters. That Rule provides that:

31(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

[108] The contempt power is to be used with restraint and in exceptional circumstances. It is to be used in those circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not be flaunted. As stated by Justice Carole Curtis in the case of Peers and Poupore:

The need for the sanction of contempt proceedings is of significant importance in family law. There is an undertone of bitterness and sense of betrayal which often threatens to drown the process and the parties themselves in a sea of anger and "self-rightness." In this environment it is all too easy for a parent to believe that she "knows what is right," even after a matter has been determined by the court, and to decide to ignore, disobey or defy that determination.

Those who choose to take this tack must know that it will not be tolerated. It is important for the public and family law litigants, in particular, to appreciate that the orders of their courts must be obeyed

The point of a contempt order is to bring home to a person shown to be in disobedience of a court order the importance of obeying it.

[109] The burden of proof rests on the party alleging the contempt. Civil contempt is a quasi-criminal matter. The allegations must be proven beyond a reasonable doubt.

[110] The evidence to support a finding a contempt must satisfy the court beyond a reasonable doubt of each of the following:

a) There is a court order to be enforced;

b) The terms of that order are clear and unambiguous;

c) The party was given proper notice of the terms of the order;

d) There has been a disobedience of that court order;

e) The fact that the order's existence was within the knowledge of the party at the time of the alleged breach;

f) The party disobeying the order has done so in a deliberate and wilful fashion. The party intentionally did or failed to do anything that was in contravention of the order;

g) A party to that order has been put on proper notice of an application to find her in breach of that order, with the particulars of the alleged breach clearly laid out so that the alleged contemnor is made aware of the case to which she must respond.

[111] In this case there is no issue that there was a court order, that the mother was given proper notice and that she was aware of the terms of the order. The area of dispute is whether or not the terms of the order were clear and unambiguous and if there was a deliberate and wilful disobedience of the terms of the order.

[112] Although the mother in her affidavit responded to all of the alleged instances of the alleged contempt, in submissions counsel stated that the mother did not have the opportunity to question the father or perhaps a trial would be necessary to determine credibility. In this case the mother admits the behaviour in question and explains why it does not warrant a finding of contempt. I see no basis upon which questioning the father would assist the mother. Rather it is the mother's explanations that would warrant being scrutinized through cross-examination. Such cross-examination has not been requested by father's counsel. I must also consider the amount of time and expense such a process would entail. I therefore intend to proceed on the basis of the written materials. I also have considered that the father is not requesting the mother be incarcerated so her liberty is not in jeopardy.

8. Analysis of Factual Findings with Respect to Contempt Motion

[113] I will set out the various allegations of contempt, the mother's response and my ruling in an abbreviated fashion as I have reviewed most of the relevant evidence previously.

1. Attempt to obstruct and cancel appointment with Barbara Harvey on October 13, 2015:

The actual appointment proceeded but there is evidence that the mother did attempt to cancel and objected to Ms Harvey being involved in the child's care despite the Order that provided that she be involved. I find that the attempt was deliberate and wilful but as the appointment proceeded I am not prepared to find the mother in contempt of this provision;

2. Attendance at Hospital for Sick Children with Vivienne Sang and Kevork Marsh on October 13, 2015; attendance at Dr. Flanders' office with Mary Laframboise on November 27, 2015 and December 9, 2015; attendance with Mary Laframboise and Vivienne Sang at the child's school on January 6, 2016:

The mother deposes that the Order provides that only the father and herself can attend at medical and educational appointments and that these other parties remained in the waiting room. Although there is no doubt that the mother was aware of the intent of the Order that these other parties not to be present at all, nevertheless the order is not clear and unambiguous. There will be no finding of contempt of this term of the order;

3. Failed to advise the father of the time and location of a blood test for the child on November 27, 2015:

The mother denies this was an appointment and that she received a requisition for a blood test that needed to be taken at the Hospital for Sick Children during daytime hours and that she did not see a doctor. The father sent the mother an email requesting the time and location of this test and the mother did not respond. The Order required the mother to notify the father of not just medical appointments but of any other appointments as soon as she was aware of the date, time and location. The mother was also aware that the father was seeking this information and was entitled to attend. I find that the mother deliberately breached this provision of the Order and is found in contempt;

4. Failed to provide all of the necessary documents for the father to apply for the re-registration of Dean's birth certificate within 14 days of the Order:

The mother gave some plausible explanations for the delay. I find that the father has not met the burden of proof to find her in contempt of this term of the Order;

5. Arranged a new service for Dean through the Geneva Centre for Autism and failed to follow the procedure in the Order with respect to new service providers:

The mother deposes that this was not a new service but that Dean had been on a waitlist for this service. Although I am somewhat sceptical that this is in fact a new service and it is clear the mother attended an intake appointment and did not follow the process for arranging new service, nevertheless I find the father has not met his burden of proof beyond a reasonable doubt with respect to this issue;

6. Attempted to obtain a new psychiatrist for Dean at the appointment with Dr. Flanders on December 9, 2015 without following the procedure in the Order:

The mother admits that she simply asked for the referral. She clearly did not follow the proper process set out in the Order namely, to discuss any new service with the father. However, the father had the final decision making power and simply did not agree. On those facts I am not prepared to make the serious finding of contempt;

7. Continued to inspect and examine Dean for marks and bruises after the father's parenting time:

The mother deposes that she simply sees the marks when she bathes and changes the child. There is some ambiguity in the Order and therefore the father has not met his burden of proof with respect to this issue;

8. Cancelled the father's visits on December 26-27, 2015 and January 2, 2016:

The mother alleged the child was ill but there was no proof. In view of the history of the mother's opposition to the father's access I am extremely doubtful that the mother did not wilfully and deliberately cancel these visits. However, again in view of the nature of a contempt proceeding and the fact that the burden of proof is on the father I have no evidence to dispute that the child was in fact too ill to attend for a visit;

9. Brought Dean late to his visits with the father on December 6 and 19, 2015 and January 3, 2016:

The mother deposed that she has difficulty getting Dean ready on time and that he is resistant to attending visits. There is an obligation on the mother to ensure that the child attends his access with his other parent and to encourage that relationship. The mother clearly has not done that however, there is also evidence that the mother does have trouble not just with respect to the father's access but also with getting the child to school on time. I am left with a reasonable doubt on this issue and therefore the father has not met his burden of proof;

10. The mother arranged for the child to be seen at her home by various doctors on October 8, November 2, December 4, December 15 and 16, 2015 and on January 1, 2016 and did not notify the father of the appointments in advance:

The mother deposed that these were not appointments as there was no set time for the doctors to attend. The mother does not explain why she did not inform the father that she had called these doctors to attend and the approximate times they would be arriving. I find that this is a clear and deliberate breach of the Order that the father was to be advised in advance of any medical appointments and that he is able to attend such appointments. There will be a finding of contempt.

[114] Having found the mother in contempt of various terms of the order of September 29, 2015, the next step in a contempt proceeding is sentencing. Sentencing in contempt proceedings, and in particular in family law proceedings, should be comprised of two components. It should be restorative to the victim of the contempt and punitive to the contemnor. To accomplish the former requires the sentence correlate to the conduct that produced the contempt and to accomplish the latter requires the sentence not reflect a marked departure from those imposed in like circumstances.

[115] In this case, the court attempted through its earlier order to assist the parents in achieving some normality in their relationship so that the child would be shielded from any further conflict. It has now become increasingly obvious that this goal was not achieved and may never be achieved and as a result of the Motion to Change the residence of the child has now been changed.

[116] In the context of this contempt proceeding, it may be that the mother will now understand that Orders must be complied with and that the mother is not permitted to continue to do whatever she wishes.

[117] If the court finds a person in contempt, there are a wide range of penalties that may be imposed pursuant to Family Law Rule 31 (5). These are as follows:

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

[118] There is a very wide discretion with respect to penalties. The purpose of the proceedings and the sentence is to ensure compliance with the past or future orders of the court.

[119] In this case, the mother is in receipt of social assistance and therefore does not have a source of her own funds to pay a fine or a penalty.

[120] The father did not seek a term of imprisonment. He only wishes the mother to comply with the court orders.

[121] As a result of the temporary court order the mother will have an opportunity to show the court that she has learnt her lesson and that she is prepared to comply with future court orders.

[122] I therefore intend to adjourn the sentencing phase of this contempt motion to permit the mother the opportunity to show that she is now prepared to abide by the terms of a court order.

9. Conclusion and Order

[123] I have no doubt the mother loves her child but as a result of her inability to accept that the father also loves his child and has an important role in the child's life she has placed her child at risk of emotional harm. The mother has let her distrust of the father cloud her judgment and as a result she had lost sight of the best interests of her child. The mother is simply unable to accept that the father loves the child, that he accepts his disabilities, that he can care for the child and that he wishes and is entitled to a meaningful role in the child's life.

[124] At the present time, I find that the father is the parent best able to meet the best interests of the child and meet all of physical, emotional, educational and special needs. In the interim, I find that it will be necessary for the mother to have only supervised access to the child and no role in his medical care or his education. It is clear from the events over the last few months that the mother is incapable of participating jointly with the father in any decision-making process and if she is permitted to attend appointments with the father and the child that she will attempt to interfere and cause confusion and upset to the child. Given the fact that Dean is so young and barely verbal, it will be impossible to explain this change of residence to him. The transition will no doubt be difficult and the father will need all of the professional assistance he can obtain. But what he and Dean do not need is the mother upsetting or interfering with this transition.

[125] There will therefore be an order as follows:

1. The Order of September 29, 2015 is varied on a temporary basis as follows:

a) The respondent Claudiu Suteu shall have sole custody of the child, Dean Webster born October 26, 2011. The child shall reside in the full time care of the respondent as of Saturday January 23, 2016 at 10:00 a.m.

b) The applicant Genevieve Webster shall provide to the respondent the child's original health card, birth certificate and any other government issued documentation in her possession on Saturday January 23, 2016 at 10:00 a.m.

c) The applicant shall have supervised access to the child at Access for Parents and Children in Ontario for two hours every other week on either Saturday or Sunday at times that are convenient to the access centre. The parties shall co-operate in attending for an intake appointment as soon as possible. Access shall take place at any location that is available. The applicant shall be responsible for any costs.

d) The respondent shall be solely responsible for choosing and arranging the child's medical, therapeutic or any other appointments or services for the child.

e) The applicant shall not be permitted, until further order of the court, to attend at the child's school or for any medical, specialist, treatment, assessment, educational, therapy or any other appointments of any nature with respect to the child.

f) The applicant shall be entitled to receive information and documentation regarding the child from any third party directly from those third parties without the need for the third party to seek the respondent's consent to the release of that information.

g) The applicant shall participate and complete the parenting program for separated families through Families in Transition.

h) Paragraph 3 of the Order of Justice Zuker dated June 13, 2012 with respect to the respondent's obligation to pay the applicant child support of $447.00 per month is terminated as of February 1, 2016.

i) The terms of this Order shall be enforced in accordance with section 36(2) of the Children's Law Reform Act. The Metropolitan Toronto police force, or any other police force having jurisdiction in any area where it appears that the child maybe, is authorized to locate, apprehend and deliver the child to the respondent.

j) If the respondent is seeking costs, a brief written cost submissions and a Bill of Costs shall be served and filed within 14 days and any response within 14 days thereafter. Oral submissions, if any, can be made on the return date of this matter when submissions with respect to costs arising as a result of the trial are being heard.

k) The applicant's time to serve and file a response to the Motion to Change, a Form 35.1 and her financial statement are extended to February 19th, 2016.

l) The issue of the applicant's child support obligation is adjourned to the return date.

m) In view of the urgency of this matter, the respondent's counsel may prepare this Order and approval by the Applicant's counsel is dispensed with.

n) Support Deduction Order to issue.

2. The applicant's cross-motion is dismissed.

3. The applicant is found in contempt of paragraphs 14, 15, 25 and 26 of the Order of September 29, 2015. The sentencing of the applicant is adjourned to February 26, 2016 at 2:00 p.m.

[126] I wish to thank both counsel for the preparation of their materials in such a brief time and their thorough and helpful submissions with respect to the issues before the court.

Released: January 20, 2016

Signed: "Justice Roselyn Zisman"