Court File and Parties

Court File No.: D70067/14

Date: 2016-07-28

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Pedro Alves, Applicant (father)

And: Julia Quintana Londran, Respondent (mother)

Before: Justice Robert J. Spence

Trial Heard: 9, 10, 11 and 12 May and 18, 19 and 20 July 2016

Reasons for Judgment released: 28 July 2016

Counsel:

• Applicant father in person
• Ms. Pamila Bhardwaj for the respondent mother

Introduction

[1] In this trial, the applicant father and the respondent mother were litigating over issues of custody, access and child support. The father seeks the following order in respect of the child, M.., who is 4 years old:

1. Sole custody;

2. Access to mother as follows:

   • a. On weeks 1 and 3 – Tuesday pickups from the end of daycare or school until drop-off at daycare/school on Wednesday morning, and
   • b. On weeks 2 and 4 – pickups from the end of daycare/school, to drop off on Friday mornings at daycare/school;
   • c. Specified additional access to cover such periods as Mother's Day, Easter, March Break, summer vacations, and so on;
   • d. Reasonable telephone access; and
   • e. Additional access that may be agreed upon by the parties from time to time;

3. Father to consult with mother on all important decisions pertaining to the child and failing agreement, the father to make the final decision;

4. Mother to have direct access to the records of the child's third-party service providers, including medical and educational;

5. Mother to take the child to all extra-curricular activities which the child is enrolled in and which take place during her access periods; and

6. Mother to pay child support to father in the amount of $160 per month.

[2] The mother seeks an order for

1. Sole custody;

2. Access to father as follows:

   • a. Alternate weekends with pickups from daycare/school on Friday until drop-off at daycare/school Monday morning;
   • b. Every Wednesday from pickup at the end of daycare/school to return to daycare/school on Thursday morning;
   • c. Specified additional access to cover such periods as Father's Day, Easter, March Break, summer vacations and so on;

3. Father to have the right to direct access to the child's third-party service providers, including medical and educational;

4. Parents to communicate by email only regarding child related issues;

5. Mother has the right to obtain and renew the child's government documents without the father's consent; and

6. Father to pay child support to mother in the amount of $210 per month.

Background

[3] Mother is an immigrant to Canada, originally from Bolivia. She moved from Bolivia to Argentina before coming to Canada in 2007 with her then-boyfriend. Her boyfriend assaulted her and he then eventually left Canada to return to Bolivia.

[4] Father met mother in Toronto in 2008, and eventually they began a relationship. The parties commenced living together in or about 2009.

[5] In 2010 the father sponsored the mother to become a permanent resident in Canada.

[6] The parties' son, who is the subject of this trial, was born April 16, 2012.

[7] The father has three other children – two sons, currently 17 and 19 years old, and a daughter who is 11 years old. The two sons are children of another mother, and the daughter is the child of yet a different mother.

[8] The mother in this case is the father's third spousal partner.

[9] The father apparently has an ongoing relationship with his three other children, although the quality of that relationship is not entirely clear.

[10] On January 15, 2014, the parties became embroiled in a dispute which led to some pushing and breaking of items in the home. The police were called and the mother was charged with assaulting the father.

[11] The mother was released on bail conditions which included a no-contact, no-communication term with the father and non-attendance at the parties' residence, with the exception of a prior consent from the father, or a family court order for the purpose of exercising access to M..

[12] On the day following the criminal charge, the father commenced his application seeking custody. The mother also brought a motion for temporary access, with the father cross-motioning for temporary custody.

[13] The criminal charge was eventually resolved on September 17, 2014 when the mother entered into a Peace Bond, which would not expire for one year. Included in the terms of the Peace Bond, was a requirement that the mother not contact the father except through the Family Wizard App for matters concerning the care of the child. Upon the signing of the Peace Bond by the mother, the assault charge was withdrawn.

Litigation History

[14] On February 7, 2014, Justice Stanley Sherr made a temporary without prejudice order that the child remain with the father, together with specified, unsupervised access to the mother. Access exchanges were to take place at a specified public location, facilitated by the father's 19 year-old son, Santiago.

[15] On February 24, 2014, following the filing of affidavit evidence by both parties, Justice Sherr heard a fully argued motion, and he granted temporary custody to father, with specified access to the mother. Access included: Saturdays from 10 a.m. until Sundays at 4 p.m., and Wednesdays from 6 p.m. until 8:30 p.m. Justice Sherr also referred the matter to the Office of the Children's Lawyer ("OCL") for investigation.

[16] In making his decision to grant temporary custody to the father, Justice Sherr delivered detailed oral reasons. On the evidence, he determined that this was a relationship of high conflict and, relying on the case of Kaplanis v. Kaplanis, Justice Sherr concluded this was not an appropriate case for joint custody.

[17] In reviewing the positives and the negatives for each parent, Justice Sherr concluded that the factors [my emphasis]:

Favour the father with respect to temporary custody because of the stability issues, the siblings being in the home, the criminal charges against the mother.

[18] It is important to note that mother's bail conditions prevented her from returning to the family home where the parties had been living with the child, and the siblings. Justice Sherr's order reflected on the stability from maintaining M.. in his own home, with his siblings, where the parents had been living together prior to the criminal charge against mother.

[19] On May 13, 2014 the parties agreed to vary the February 24th access order to provide the following access to mother. Pursuant to that consent, Justice Geraldine Waldman ordered access as follows:

1. Weeks 1 [and 3] – Friday at 12:00 noon to Sunday at 7:00 p.m.

2. Weeks 2 [and 4] – Wednesday at 12:00 noon to Friday at 7:00 p.m.

[20] This order, while it expanded access to mother still left a gap of 7 days during which there was no access by M.. to his mother.

[21] There were a number of adjourned case conferences while awaiting input from the OCL.

[22] On January 14, 2015, the mother brought a motion seeking to expand her access. Justice James Nevins dismissed that motion, finding that there were "no facts established in the material to justify any variation of the existing access ordered which was granted on consent" [Justice Nevins' emphasis]. Justice Nevins adjourned the case for a settlement conference.

[23] The settlement conference was held before Justice Nevins on March 5, 2015. Justice Nevins noted that the recent OCL report recommended "joint custody and a 3-2-2" parenting arrangement.

[24] The father subsequently sought child support from the mother. The court ordered the mother to make financial disclosure.

[25] The father then brought a contempt motion against the mother, arguing that the mother had intentionally breached the order for disclosure.

[26] On August 26, 2015, Justice Nevins found that while the mother had not fully complied with the financial disclosure order, her non-compliance was not a wilful breach of the court order. Justice Nevins held that, in any event, the remedy for non-disclosure, was not contempt but, rather, a costs order, or an order to strike pleadings. Justice Nevins dismissed the contempt motion. He ordered the father to pay the mother her costs in the amount of $750, finding that the father's motion was without merit.

[27] On the settlement conference (held the same day), Justice Nevins noted that the primary issues were custody – "sole vs. joint", and the access or parenting plans sought by the parents. Justice Nevins adjourned the case for a Trial Management Conference.

Conflict Overview

[28] A review of the evidence reveals to the court that this is indeed a case of high conflict. I start by noting my complete agreement with Justice Sherr's observation that Kaplanis, supra, does not allow for an order of joint custody in a case such as this.

[29] Furthermore, neither party sought an order for joint custody at this trial, despite the OCL recommendation for a joint custody order.

[30] It is helpful to provide a brief overview of some of the areas where the parties were in conflict.

[31] Very early on, when M.. was less than 2 years old, the father was opposed to M..'s placement in daycare. In his affidavit, which constituted his examination-in-chief, father stated:

In the beginning of 2014 I was not too thrilled of M.. attending daycare because I was afraid if anything had happened to him that he could not talk and would not be able to tell me.

[32] Father ultimately agreed to place M.. in daycare; and the parents together investigated 3 or 4 different daycares. However, notwithstanding mother's disagreement, father decided to enroll M.. in Immaculata daycare which was close to where father was living, but about 1 hour by public transit from where mother was living.

[33] Father justified this daycare decision on the basis of his own investigations into the various daycares, and certain "ratings" of daycare facilities throughout Toronto.

[34] Mother eventually changed her residence to be closer to the daycare so that she and M.. would not have to travel so far on the days that M.. was spending parenting time with her.

[35] The OCL investigator – who prepared a report and who also testified at trial – was concerned that M.. might have developmental issues. Father appeared to disagree with the OCL concerns. Mother sought to follow up on those concerns.

[36] The parents disagreed about whether M.. ought to be assessed for possible developmental delays.

[37] And when M.. was assessed, they disagreed about the findings, and about whether – and to what extent – either of the parents should be involved in addressing those conflicts.

Legal Considerations for Custody and Access

[38] The Children's Law Reform Act ("Act"), sets out the statutory provisions to be considered by a court in making decisions pertaining to custody and access. The relevant provisions follow [my emphasis]:

Merits of application for custody or access

24. (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). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the child's care and upbringing;

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

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

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

(e) 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

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

(a) his or her spouse;

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

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

(d) any child. 2006, c. 1, s. 3 (1).

[39] Having regard to the foregoing, and for reasons which follow, I have concluded that it is in M..'s best interests that final sole custody be granted to mother.

Statutory Considerations Which Favour Father's Position

[40] As I noted at the outset, both parties sought a final sole custody order. There are two statutory considerations which favour father's position.

Section 24(2)(a)(ii) – The love, affection and emotional ties between the child and other members of the child's family who reside with the child

[41] Mother lives on her own. Father lives with his son Santiago who is 19 years old. He has a 11 year-old daughter, Mackenzie who lives with her mother, but who spends alternate weekends with father.

[42] At the time that Justice Sherr granted temporary custody to father, father's other child, 17 year-old Nicholas, was living at home with his father. But since then – in or around March 2015 – Nicholas left his father's residence and went to live with his mother. This apparently resulted from a punishment imposed by the father which, in part, included shaving the hair off Nicholas' head.

[43] Father said in his cross-examination that, apart from some brief contact at Christmas 2015, he has had no contact with Nicholas since Nicholas left the father's residence to live with his mother.

[44] It appears that the relationship between Mackenzie and M.. is a positive one. And while Mackenzie is not a member of M..'s family "who resides with the child", she does spend a meaningful amount of time with father. A change in M..'s primary residence could impact on M..'s relationship with Mackenzie.

[45] Despite the disruption in M..'s life caused by Nicholas' departure from the father's home, I consider that, overall, father is in a slightly better position insofar as this section of the Act is concerned.

Section 24(2)(c) – The length of time the child has lived in a stable home environment

[46] M.. has lived primarily with his father since the parties separated in January 2014, a period now in excess of two years. There is no suggestion that father has not been meeting M..'s instrumental needs. At least on the surface, the father's home appears to be a stable home environment.

[47] This is not to suggest that the mother was not actively involved in M..'s life, or that she did not provide him with the attention that he needed during the times he spent with her. Rather, M..'s primary residence was with father, not with mother.

[48] Again, the sudden departure of Nicholas from father's home must have been a de-stabilizing event for M.. However, overall, father's home is where M.. has lived since the separation of the parents more than two years ago.

[49] Father's position insofar as this section of the Act is concerned is stronger than mother's position.

[50] Before I move on to the statutory considerations which favour mother, I briefly refer to sections 24(2)(b), (f) and (g).

Section 24(2)(b) – The child's views and preference, if they can reasonably be ascertained

[51] Although mother argued that M.. would prefer to live with her, I am not satisfied that there is any meaningful evidence to support that conclusion. Nor am I persuaded that there is meaningful evidence to conclude that M.. would prefer to live with his father.

[52] M.. is a 4 year-old child. While he may have a preference to live with one parent over the other, there is no meaningful way to reliably ascertain such a preference. Furthermore, a court would not be inclined to give significant weight to the views of a 4 year-old child, even if he were capable of expressing such a preference.

[53] I consider this section of the Act to be neutral to the parents' respective claims for what is in M..'s best interests.

Section 24(2)(f) – The permanency and stability of the family unit with which it is proposed that the child will live

[54] There is no real evidence before the court which would lead the court to conclude that the respective family units – as they are presently constituted – are either not permanent or unstable.

[55] Again, I consider this section of the Act to be neutral to the parents' respective claims for what is in M..'s best interests.

Section 24(2)(h) – The relationship through blood or through an adoption order

[56] This section of the Act has no applicability on the facts of this case, as the parents are both biological parents of the child.

Statutory Considerations Which Favour Mother's Position

[57] In this section of my reasons, I propose to deal with sections (d), (e) and (g) collectively. In the particular circumstances of this case, I do not view these sections of the Act as independent silos. Rather, they are about how each parent is able to recognize M..'s needs, how to best facilitate those needs and how well they understand the importance to M.. of ensuring that both parents are present and actively involved in M..'s life.

[58] In addressing these statutory considerations, I will do so by having reference to a number of discrete subject headings.

1. OCL Investigation

[59] Pursuant to Justice Sherr's order dated February 24, 2014, the OCL appointed a clinical investigator to conduct an assessment. The investigator, Ms. Watson, conducted interviews with the parents, observed M.. in his interactions with his parents, and she obtained and reviewed collateral information. She prepared an interim report in July 2014, and a follow-up report in February 2015.

[60] She did not make a custody recommendation in her interim report. Rather she made certain parenting suggestions for both parents. She reported that she would do a follow-up in six months (the February 2015 report), with a custody recommendation at that time.

[61] Overall, Ms. Watson was able to conclude from her observations that father was meeting M..'s instrumental needs. M.. appeared to be well cared-for in father's home.

[62] Significantly, however, Ms. Watson noted father's propensity to speak ill of mother. And he did so in front of his children, something which was a red flag for Ms. Watson.

[63] In Ms. Watson's discussions with the father, she noted that father would tell

multiple long stories about his social and romantic experiences, including describing and meeting and sleeping with many women.

[64] When Ms. Watson would try to re-direct father, he would keep returning to his stories about his relationship history.

[65] When father talked about the mother, he would make some very negative comments. On one occasion he said to Ms. Watson

How could I trust this fucking bitch . . . leaving my son at home when I'm trusting her to be there with him?

[66] At the end of one of the observation visits, Ms. Watson told the father that it was time for her to leave. However, while she was walking out the door, the father insisted on continuing to describe complaints about the mother, despite several reminders that Ms. Watson needed to leave.

[67] Following the interviews, including her interactions with father's other children, Ms. Watson commented that father's three other children appear "happy, healthy and well-rounded". She concluded that father appeared to be dedicated to his children, and that their development "must in large part be a testament to father's abilities as a parent".

[68] However, she went on to say the following about father [my emphasis]:

Father spent more time talking about [mother] than about their son. The conflict and derision of each other has taken place frequently in front of the child as well as in front of father's three other children. . . . Despite acknowledging some improvements in the mother, father appears opposed to ever assuming that she has positive intentions, claiming that she has been unreliable too many times. . . . father would clearly benefit from having improved boundaries around what he says in front of all his children. For example, Mackenzie demonstrated that she is privy to adult information about court-related matters. Furthermore, father is urged to work on having more appropriate boundaries with professionals and learning how to keep the focus on his child . . . . father made numerous comments about sexual relations which were completely irrelevant to the subject at hand throughout every interview with this investigator. He made the CCAS worker so uncomfortable that she transferred their case.

[69] She also observed [my emphasis]:

Father makes many angry statements about his ex-partner, swears frequently and has engaged in violence in the past. All three of his marital relationships have been rife with drama, and all three women have ended up unexpectedly pregnant, demonstrating a pattern of poor planning and lack of responsibility. Police reports indicate that father has a lengthy history of some anger and aggression in his past relationships. [and referring to this mother, Ms. Watson states] ironically it is she who has a criminal charge pending, [based on an incident that appears to have involved a lack of control by both parties].

[70] In her visit with mother, Ms. Watson describes a very positive interaction between M.. and mother. There was much love and nurturing on display. A review of her report does not disclose any real parenting concerns.

[71] Ms. Watson stated at trial that mother is "affectionate and loving and attuned to the child's needs".

[72] Nor does the report reveal statements or behavior by mother which suggested to Ms. Watson that mother was seeking to cut the father out of M..'s life.

[73] That is not to suggest that Ms. Watson did not have some negative observations about the mother. Ms. Watson believed mother needed to make better choices in her partner relationships; she would benefit from counselling.

[74] Ms. Watson stated that mother

Was frequently tearful throughout the visit and that she continued to report on negative interactions with father, and clearly wished to talk at great length about the other party in the presence of M..

[75] Ms. Watson's evidence at trial is revealing. Here are some of her observations elicited at trial:

1. Ms. Watson was beginning to think that the parties could work together amicably. It appears this optimism was based on some of the comments mother was making to Ms. Watson about cooperative parenting. But father expressed the belief this was not possible. He told Ms. Watson that mother would not be trustworthy and she would not be able to communicate effectively.

2. Mother conveyed to Ms. Watson that she was willing to try to work cooperatively with father in raising M.. However, father was "ambivalent" and "more mixed" in his attitude toward mother. In fact, she testified, his attitude toward mother was "largely negative".

3. She testified that this could be a situation whether there is a power imbalance between the parents.

4. In the course of Ms. Watson's investigations and interviews, father reported directly to her that with respect to the other mothers of his children, father has what he described as the "upper hand in the case of any disagreements".

5. When she was told about Nicholas leaving father's home in 2015 due to parent-teen conflict, Ms. Watson stated that this would be a cause for concern for her.

2. Santiago

[76] Father called his 19 year-old son to testify on father's behalf at trial. Santiago said a few of the usual things one might expect of a child who is being asked to give evidence on behalf of a parent. For example, he commented on the father's overall effective parenting, his support for the children's schooling, and father's support for the children's involvement with soccer.

[77] However, even in the context of testifying on behalf of his father, Santiago did acknowledge a number of negatives about his father. He was asked whether father swears in front of the children. Santiago responded, "not always".

[78] He was asked if father has called Nicholas "stupid", "moron" and "lazy". Nicholas responded in the affirmative, but then added that father would apologize afterwards.

[79] Apart from the foregoing, the concern for this court, is father's poor judgment in asking his son to come to court to testify. He should have understood that a court would give little weight to the supportive statements made by his child. And furthermore, there was always the risk that the child would say something negative about his father – as transpired here.

[80] But beyond that, injecting his child into this matrimonial litigation was simply a bad idea, notwithstanding the fact that Santiago is an "adult" in the eyes of the law.

3. "Peggy" – one of the ex-wives

[81] Peggy testified on behalf of father. In her affidavit evidence-in-chief she made statements like:

1. Father always has been a great responsible dad even during the difficult times.

2. Father is not violent and has never been violent during our relationship.

3. I know for a fact that father is a great dad for all his kids, he has always been involved in all their lives and he is doing a great job with M.. as well.

[82] In that same affidavit, Peggy also deposed that mother had been violent toward Mackenzie.

[83] On cross-examination she was shown and then identified her Answer in the 2008 custody litigation with the father, in which she made the following allegations:

1. The father has hardly seen Mackenzie at all since separation.

2. The father did little with Mackenzie prior to separation.

3. On February 20, 2008 the father was tried and convicted of domestic violence. He was sentenced to 7 days imprisonment and probation for 18 months. . . . the charges were threatening me with bodily harm and assaulting me.

[84] As for Peggy's assertion that mother has been violent toward Mackenzie, Santiago stated that Mackenzie would write cards "on multiple occasions" to mother, such things as "[mother] you are the best I want you to stay". Santiago also testified that he recalled the OCL investigator coming to his house and Mackenzie saying to the investigator that Mackenzie had a good relationship with the mother.

4. M..'s Developmental Needs

[85] There was considerable evidence pertaining to the issue of whether M.. was suffering from developmental lags – primarily as related to his speech.

[86] Observations were made by the OCL investigator which suggested that to her that M.. might benefit from an assessment.

[87] During the course of trial the court heard much evidence, and was presented with a number of reports from various professionals, not all of whom agreed on the nature or extent of M..'s speech delay.

[88] But what is important from the court's perspective is that father was very resistant even to the idea that his son might have delays; and his inclination was to assert that there was nothing wrong with M..

[89] On the other hand, it was enough for mother that there were a number of red flags, for her to be quite clear that she wanted to pursue any assessments or other consultation appointments that might assist in clarifying this issue for M..'s sake.

[90] And mother wanted to make sure that if delays were present, M.. would receive whatever therapy he needed in order to begin to address those delays.

[91] Nowhere in the evidence during trial did it appear that mother was other than entirely proactive in this regard. And yet, for all of her urgings to father to address these issues, here is some of what occurred.

[92] The father did initially agree to hire a private speech therapist when it was first made apparent to him that, at the very least, some sort of assessment of M..'s speech was warranted. In a report dated September 9, 2014, GTA Speech stated that father was reporting M.. to be using "about 50 words inconsistently"; however, the therapist did not observe the kinds of utterances that father said M.. used at home. The therapist concluded that M..'s expressive language skills are "similar to that of a 14-18 month old (M.. was 29 months old at the time). This indicates a severe expressive language delay".

[93] At trial, father did admit that he misreported to the therapist because he was justified in interpreting his child's words how he thought his child was intending, even if they were unintelligible. In my view, this demonstrates that father was more inclined (to put it most benignly) to bury his head in the sand about his son's needs, rather than to be alert to the possibility that a real problem existed.

[94] The Toronto Preschool Speech and Language Program performed an assessment and report dated February 18, 2015. That reported noted that M.. was unable to do a number of things that would have been expected for a child of his age – for example

• Follow 2-step related directions (eg, "open the box and get the bear")
• Follow 2-step unrelated directions (eg, "shake the keys and pick up the doll")
• Follow novel directions (eg, "make the truck fly")
• Understand yes/no questions.

[95] The assessor concluded "M.. presents with moderate expressive language delay compared to other children his age".

[96] What did father say about this assessment and why M.. performed in this way, as observed by the assessor?

The child was shy and that explains why he wasn't doing well at this assessment.

[97] A speech and language report was prepared on November 11, 2015, following M..'s assessment. That report identified mostly age-appropriate language skills, but some "difficulty using some grammatical markers consistently". Father's response to this was "my son is not special needs".

[98] There were other examples in the evidence which generally tended to reveal that whereas mother was alert to M..'s needs and was anxious to follow-up on them, father was either lacking in the necessary insight to understand the existence of the red flags or, alternatively, he simply "detested" the idea that anyone would label his son in a way that he disagreed with.

[99] He said at trial, "I detest that people without medical evidence" say that my son is special needs".

[100] He wants to parent in a way that reveals to the court that it's either his way, or the highway. He is mostly closed to the idea that M.. may need outside resources. At trial, he was asked whether he has the ability and the willingness to meet the needs of his child. He responded

I consider myself second to none in parenting

[101] In my view this last statement is most revealing.

[102] The purpose of this discussion about M..'s needs and his possible delays is not to establish that M.. in fact suffered – or continues to suffer - from a number of delays, but only that there was good reason to be concerned about this. There were sufficient red flags that a parent who is focused on the needs of his or her child would be expected to be proactive in following up on those areas of concern.

[103] And yet, as between the mother and the father, it was the mother who was more focused on M..'s needs. She was the one who acted as a concerned parent would act, whereas the father tended to be dismissive of those apparent needs, downplaying their significance, and insisting that there was nothing wrong with his son.

[104] Mother made it very clear in her evidence that she is "not fearful" of a diagnosis that M.. may have some special needs which require attention.

[105] It was the mother who recognized the importance of minimizing M..'s travel time to and from daycare during her access periods with him and, because of that, she moved her own residence to be closer to his daycare.

[106] It was the mother who constantly pushed to obtain information from M..'s medical and therapy providers, often being met by obstructions from the father.

[107] Mother was so intent in ensuring that M..'s access to her was not entirely severed that when father's son, Santiago, no longer facilitated access, mother paid a third party to act as an access facilitator.

[108] Panebianco v. Varey, 2010 ONCJ 79, is a decision of Justice Roselyn Zisman. In that case, Justice Zisman was faced with two parents who were able to meet the "best interests" test "fairly equally" (at paragraph 29).

[109] However, she found that the mother was more child focused and more able to meet the child's emotional needs, whereas the father often put his own needs ahead of the needs of his child.

[110] In Kemp v. Kemp, 2012 ONSC 4585, Justice Sloan noted that the child of the parents in that case had "some disabilities". As between the mother and the father, Justice Sloan stated at paragraph 108:

[the mother] has demonstrated that even distance will not impede her tenacity and ability to assist her son with his literacy problems. There is no doubt that she would be even more effective in person.

[111] The court granted custody to the mother, as the person better able to focus on her child's needs.

[112] In D.G.S. v. S.L.S. the court pointed to the father's "more balanced attitude to [the child's] health care needs". And at paragraph 67, the court stated:

It is not necessary to have expert evidence to conclude that a child brought up in an atmosphere where there is great anger and hostility by the other to the father and a significant other caregiver will be in an environment hostile to good mental health.

[113] In the present case, as between the two parents, the evidence persuades the court on a balance of probabilities that the mother is more focused on M..'s needs, than is the father.

5. Father is Dismissive of Mother and Wants to Cut Her Out of M..'s Life

[114] As discussed earlier, the various comments about the mother, and the father's criticisms of her which he directed to the OCL investigator, revealed much to the court about the father's dismissive attitude toward the mother.

[115] At the very outset of this litigation, despite the criminal charge against mother, father was insufficiently child focused to understand the importance of M.. maintaining an ongoing and frequent connection with his mother.

[116] M.. was less than two years old when the parties separated, and yet father did not take it upon himself to arrange for any sort of contact whatsoever between M.. and his mother. Mother was forced to bring an access motion, which was immediately met with father's response requesting an adjournment.

[117] Even when access was ultimately granted – and then varied – M.. was faced with access that continued to deny him with contact to his mother for a full 7-day period, according to the access schedule.

[118] The court is mindful that M.. was only a toddler at the time of this incident which led to the criminal charge against the mother – an incident that the OCL investigator observed as "both" parties having engaged in the conflict, an incident where the criminal charge was ultimately withdrawn.

[119] And when the access was being considered, father's position was that he wanted mother's access to be supervised because he said she was mentally unstable and her contact with M.. needed to be supervised by someone until "she gets better". He said, "I believe she suffered from post-partum depression".

[120] There was no evidence to support any of these assertions. And yet, here the court observes the early steps father was taking to begin to minimize mother's involvement in M..'s life, the beginning of father's desire to assert his dominance, to acquire the "upper hand", without regard to M..'s emotional needs and, particular, his emotional need to have his mother closely involved in his life.

[121] When mother attended court for the withdrawal of the criminal charge and the implementation of the Peace Bond, the father cried out to the judge from the body of the courtroom to "stop" (or wording to that effect), because he didn't want the judge to accept a withdrawal of the criminal charge.

[122] As I noted in the "Background" section of these reasons, father sponsored mother's permanent resident application to remain in Canada. However, following the separation, mother received a letter dated July 8, 2015 from Citizenship and Immigration Canada advising that allegations had been made that

You may have entered into a marriage of convenience and travelled to Canada solely for the purpose of obtaining permanent resident status in Canada and not to continue your relationship with your spouse/partner [the father].

[123] Father was asked about the genesis of this letter in his cross-examination. He denied that he was the one who contacted Citizenship and Immigration.

[124] However, despite this denial it is clear to the court that he must have been the one who contacted Citizenship and Immigration, as there is no other plausible evidentiary explanation for this letter.

[125] Furthermore the court concludes that father had set this up with the very intention of having mother removed from Canada. In his Amended application in this proceeding, dated February 20, 2014, father himself raised the issue of mother's "possible" removal from Canada, when he stated:

The [mother's] status in Canada is not secure. It is possible that [she] will be deported given her recent criminal charges and given the fact that the parties are no longer living together.

[126] The only reasonable inference from the foregoing is that father took immediate steps following the criminal charge against mother to put into motion what he hoped would be deportation proceedings against her.

[127] So here was an almost two year-old toddler, closely connected to his mother; and despite this, the father was prepared to inflict serious emotional harm on his child by attempting to sever entirely the mother-child relationship.

[128] Mother had to constantly fight to be kept apprised of information about appointments that father was arranging for M..

[129] She asked for his consent to obtain information directly from third parties, in relation to M..'s wellbeing. He said at trial that he had provided his consent but mother's evidence was otherwise. Many of father's actions lead this court to conclude that mother's evidence is to be preferred over father's evidence in respect of father's obstructionist attitude toward mother.

[130] Father attended a number of M..'s medical/therapy appointments without advising mother. In one case he sought to have the Holland Bloorview assessment report for M.. sent only to himself. In fact, the last page of the report shows that it was sent only to father and to the referring pediatrician.

[131] Father, then on his own, contacted Holland Bloorview and asked for an addendum to the report. He did not involve mother in this; nor did he request that Holland Bloorview send the addendum to the mother.

[132] In fact, it finally became necessary for mother's counsel, Ms. Bhardwaj to write directly to Holland Bloorview on April 28, 2016 stating that despite mother's repeated requests that she be given a copy of the assessment, Holland Bloorview had failed to do so. Ms. Bhardwaj insisted on having that report released to her, pursuant to mother's signed direction and consent.

[133] This further corroborates mother's evidence that father was not always providing his consent to allow mother to directly obtain third party information pertaining to M..

[134] All of the foregoing, and the preponderance of the evidence in this case strongly suggests to the court that the father would like nothing more than to have the mother out of his life and, more importantly, out of M..'s life.

[135] Metzner v. Metzner was about one parent who was attempting to erode the relationship between the child and the other parent. At paragraph 10, the Court of Appeal stated [my emphasis]:

The judge also recognized the validity of the husband's view that the wife was determined to erode his relationship with the children . . . . The judge also recognized that the wife believed the husband was an inadequate father. [and] the wife is likely to continue to frustrate the children's access to their father and undermine their relationship with him if it is in her power to do so.

[136] Recall the discussion earlier in these reasons about father's constant criticisms of mother, as set out in the OCL report.

[137] Furthermore, promoting a relationship is not simply about not making critical comments about the other parent, but it also requires the parent to actively involve the other parent in the life of the child, such as by attending medical appointments together, and sharing medical or therapy reports.

6. Campaign of Intimidation

[138] Father did whatever he could in this litigation to place mother at a disadvantage. He brought two motions to have mother's counsel removed from the record. Both motions were dismissed.

[139] He brought a contempt motion against the mother. That motion was dismissed with costs awarded against him.

[140] He has made complaints about mother's lawyer to the Law Society of Upper Canada.

[141] And pointedly, at the conclusion of this litigation he not only acknowledged those complaints to this court, but he then proceeded to deliver what could only be interpreted as an implied threat against Ms. Bhardwaj, by stating directly to this court that those complaints will be dealt with "somewhere else".

The Act – Section 24(4) – Violence and Abuse

[142] As the court has previously discussed, there is evidence of the father's violence and abuse in domestic incidents. According to police reports released by the Toronto Police Services:

1. 1997 - father was listed as a suspect in a domestic incident involving his then-wife Mirva. Police indicated that following an argument father "pushed" his wife. No charges were laid;

2. 1999 – police were contacted regarding a fight between father and Mirva. Father said to Mirva "I'll break your face". He then is said to have pulled her hair and pushed her to the ground. Although this was witnessed by a third party, Mirva did not wish to proceed with charges. The police drove her home;

3. 2007 – father was convicted of assaulting Peggy;

4. 2010 – Mirva complains to the police about certain actions by father, where father could have been charged with sexual assault. Mirva did not wish to pursue the matter; and

5. 2015 – father abuses his son Nicholas. He not only shaved Nicholas' head, but he verbally abused him by called him "stupid", "lazy" and "moron".

[143] While father seemed to enjoy referring over and over again in this trial to the abuse inflicted upon him by mother, the court views that as nothing more than his desire to portray himself as a victim in order to strengthen (in his own eyes) his claim for custody.

[144] It is noteworthy that despite the no-contact order that was imposed following that charge against the mother, and despite the father's claims to "fear" the mother, he willingly set aside the no-contact provision so that he could engage in repeated sex with the mother.

[145] As I noted earlier, section 24(1) of the Act sets out the statutory considerations which the court must look at in deciding what is in the best interests of a child in an application for custody and access – specifically subsections 24(2), (3) and (4) of the Act.

[146] What subsection (1) does not do is direct the court to weigh these various considerations in a certain way, or give primacy to one set of considerations over another set.

[147] While I do not minimize the importance of those factors which favour the father's claim for custody, I find that all of the other considerations overwhelmingly favour the mother's claim for custody and her claim to be M..'s primary parent.

[148] In my view, if the court were to grant father's claim to be the primary parent, with custodial decision-making authority, he would take whatever steps were in his power to quickly diminish – or even entirely eliminate – mother's involvement in M..'s life.

[149] On the other hand, the court concludes that mother would do whatever she is able in order to maintain father's involvement in the life of M..

Child Support

[150] Very little evidence and trial time was devoted to the issue of child support, this issue being somewhat tangential for both parties. Nevertheless, mother did claim child support.

[151] It appears that father suffered some injuries a number of years ago and he presently receives income from the Workplace Safety and Insurance Board ("WSIB"). His 2015 T5007 from WSIB discloses an income of $25,728.47 for that year.

[152] Father did not file his 2015 income tax return or his notice of assessment from Canada Revenue Agency. However, there was no evidence during trial which suggests to the court that father's income is other than as disclosed in his T5007.

[153] Accordingly, in the absence of any other evidence, the court is required to order child support based on that income, pursuant to the Child Support Guidelines. In this case, the monthly table amount of support based on the foregoing income is $207 per month. Mother requested that child support commence August 1, 2016. Given the date of this judgment, that is the appropriate date on which to order child support to commence.

Conclusion

[154] While I appreciate that changing M..'s primary residence from his father to his mother, will be an adjustment for him, I have concluded that the overwhelming preponderance of the evidence necessitates such an outcome, in the best interests of this child.

[155] There is little doubt in the court's mind that if father were to remain the primary parent, with the sole decision-making authority, he would continue to act the way in which he has demonstrated up to this point, namely, to try to minimize and (hopefully, from his perspective), to eliminate the mother's involvement in M..'s life.

[156] That would be contrary to M..'s best interests, and the court cannot permit that to occur.

[157] In the result, the court makes the following order:

Order

Custody

1. The Respondent mother shall have sole custody of the child, Miguel Alejandro Quintana Alves born April 16, 2012.

2. Both parties shall have the right to obtain information about the child from medical and education professionals involved with the child pursuant to section 20 (5) of the Children's Law Reform Act.

3. If the child has a medical emergency while in the care of a party, that party shall immediately notify the other party of the emergency. The party with the child shall make any decision that is necessary for the treatment of the child in the absence of the other party.

4. Both parties shall have the right to attend parent-teacher interviews and any school functions.

5. Both parties shall have the right to attend the child's extra-curricular activities.

6. The parties shall discuss all the child related issues only through email, or other electronic means, such as text message.

7. Neither party shall speak ill of the other to the child, directly or indirectly.

8. The Respondent mother may apply for government-issued identification documentation including the child's passport without the consent or signature of the Respondent father. The mother shall retain the original documentation, including the child's passport, save and except for the dates when the father is travelling with the child outside of Canada, in accordance with this order.

Access

9. The Applicant father shall have access to the child as follows:

   (a) alternate weekends with pick up from school/daycare on Friday until drop off to daycare/school on Monday morning.

   (b) every Wednesday from pick up from daycare to return to daycare on Thursday morning.

   (c) When the child is not at daycare/school, for example, during summer vacation, the father shall pick up the child at the mother's residence and he shall return the child to the mother's residence.

Holiday Schedule

10. The Christmas holiday schedule shall be on a rotating schedule. Commencing 2016, and in alternating years thereafter, the mother shall have access from three days before Christmas at 12:00 pm or the end of school/daycare day to Christmas Day at 12:00 pm. The father shall have access from 12:00 pm Christmas Day for three days to December 28 return to school/daycare.

11. The parties shall rotate New Years in alternate years from December 31 at 12:00 pm until January 1 at 12:00 pm. The party who does not have the child for Christmas Eve (December 24) shall have the child for New Year's Eve.

12. The parties shall rotate March Break in alternate years, commencing with pick up at school/daycare on the Friday immediately before March Break, and ending with return to school/daycare on the Monday following the end of March Break. The Applicant father shall have the child for the first March Break in 2017.

13. Regardless of the regular access schedule, the child shall be with the Applicant on Father's Day from 12:00 pm to drop off to return to school/daycare Monday morning if it is not his weekend.

14. Regardless of the regular access schedule, the child shall be with the Respondent on Mother's Day from 12:00 pm to return to school/daycare Monday morning if it is not her weekend.

15. Regardless of the regular access schedule, the child shall spend his birthday with the Applicant father in odd years and with the Respondent mother in even years from 10:00 am until 7:00 pm.

16. Each party shall be entitled two non-consecutive weeks (if there is no travel scheduled) during each of the months of July and August of uninterrupted summer vacation with the child when he has summer holidays from school. Each party, in alternating years, shall be entitled to choose which two weeks each month she/he decides upon, and must notify the other party by May 31. The Applicant father shall choose the summer schedule in even years and the Respondent mother shall choose the summer schedule in odd years.

Travel

17. Either party may travel with the child without the written consent of the non-travelling party for up to two weeks.

18. The Respondent may travel to Bolivia or Argentina only with the child without the written authorization of the Applicant father for a period of three weeks.

19. The Applicant may travel to Portugal only without the written authorization of the Respondent mother for a period of three weeks.

20. Any party seeking to travel beyond two weeks shall require written authorization from the other party.

21. The travelling party shall provide 30 days' notice of his or her intention of travel. The traveling party shall provide the itinerary of travel (airline itinerary if by air) to the other party as well as contact information about the destination which shall include an address and telephone number at least two weeks before travel.

Child Support

22. Commencing August 1, 2016, the Applicant, Pedro Alves shall pay to the Respondent, Julia Quintana Londran, child support of $207 per month, for one child, based on the Applicant's estimated income of $25,728 for 2016.

23. For as long as child support is to be paid, the father shall provide full income disclosure to the mother each year, by June 1st, including his current income tax return and notice of assessment, in accordance with section 2.4 of the Child Support Guidelines.

24. Unless this order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and the amount owing under the order shall be paid to the Director who shall pay them to the person to whom they are owed.

[158] In the event either party wishes to address costs, the parties shall contact the trial scheduling office to arrange a mutually agreeable date for a one-hour court attendance for costs submissions, beginning at 2:00 p.m. Each party will be limited to 30 minutes for submissions.

[159] Any Offers to Settle or Bill of Costs that either party intends to rely upon in his or her costs submissions shall be filed with the court, together with a 14C Confirmation form, no later than 4 days prior to the scheduled court attendance.

Justice Robert J. Spence

July 28, 2016