Court File and Parties

Court File No.: Toronto DFO-08-10653-00
Date: 2016-12-22
Ontario Court of Justice

Between:

ALIZA NEGER
Applicant

— AND —

STEVEN DALFEN
Respondent

Before: Justice Sheilagh O'Connell

Trial heard on: April 1, 11, 12, 13, 14, 18, 19, 20, 21, May 19, 2016

Reasons for Judgment released on: December 22, 2016

Counsel:

• Jason W. Gottlieb for the Applicant
• Steven Dalfen on his own behalf

O'CONNELL J.

1. Introduction

[1] The mother, Aliza Neger ("Ms Neger"), has brought a motion to change the access and child support provisions of the Final Order of the Honourable Justice Marion Cohen dated February 11, 2010. In his response to the motion to change, the father, Steven Dalfen ("Mr. Dalfen"), also seeks to change the custody and access provisions of the Final Order.

[2] The child of the relationship is Lillian Reesy Dalfen, born May 1, 2005. The mother calls the child "Lily" and the father calls the child "Reesy". For the purposes of this judgment, the child shall be referred to as "Lily Reesy".

[3] The parties have been litigating custody and access arrangements regarding Lily Reesy since June of 2008, when the child was three years old. She is now eleven years old. This case is appropriately described as a "high conflict" case.

[4] In this trial, I heard ten days of evidence from the father and the mother, the OCL clinical investigator from the 2011 investigation of the custody and access issues, the mother's therapist, the child's therapists, two child protection workers from Jewish Child and Family Services, school, a school official, a police officer, and family members and friends of the parties. Thirteen witnesses were called at trial.

[5] The 2010 Final Order of Justice Cohen, made on consent of the parties, provides as follows, among other provisions:

1. the mother shall have custody of the child;

2. the father shall have access to the child on 'week one' from Tuesday after school to 7 PM, and on 'week two' from Tuesdays and Thursdays after school to 7 PM and from Friday after school until Monday morning, pickup and drop-off to be at the school;

3. each parent shall be entitled to have reasonable telephone and Skype contact with the child while she is in the care of the other parent. Such telephone contact shall not exceed two calls daily and shall not be permitted to interfere with the child's ordinary meal, bath and bedtime routines. The mother shall make best efforts to facilitate this access;

4. the father shall have the right to make inquiries of and to be given information regarding the child's health, education and welfare from any third-party professionals, from whom she is receiving services including but not limited to health professionals, educators and recreational instructors/coaches;

5. the father shall pay child support in the Child Support Guideline Table amount of $200 per month, based on an annual income of $25,000.

6. the parties shall share special and extraordinary cost of the child in proportion to their respective incomes.

[6] The Final Order also contains a number of other provisions regarding the child's religious upbringing, summer holidays, Jewish holidays, Mother's Day and Father's Day, information sharing, communication provisions, notice and cancellation provisions which will be addressed later in these reasons.

[7] One particularly contentious clause in the Final Order provides as follows:

"7. Each parent shall be responsible for making appropriate arrangements for the child's care during those times when she is scheduled to be with each of them. In the event that either of the parents is unable to care for Reesy during scheduled times, he or she shall give at least 48 hours' notice to the other and shall reimburse the other parent if child care costs are incurred as a result of cancellation. If the father cancels or fails to attend for three (3) consecutive visits without reasonable explanation, his access shall be suspended failing further court order or agreement."

[8] There have been numerous temporary orders made since Justice Cohen's Final Order. These temporary orders have changed and adjusted the access provisions. At the time of the trial, the Final Order had been most recently changed on a temporary basis on November 20, 2015 by the Honourable Justice Murray. Currently, the two subsequent temporary court orders governing the father's regular access Lily Reesy are as follows:

a. Week One: Tuesday after school, pickup from the after school program at Lawrence Heights Community Center to drop off at 7:30 PM at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence;

b. Week Two:

i. Tuesday and Thursday after school, pickup from the after school program at Lawrence Heights Community Center to drop off at 7:30 PM at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence on those two days;

ii. Friday after school, pickup from the after school program at Lawrence Heights Community Center, until Monday morning drop off at Glen Park Public School.

2. The Applicant Mother's Position

[9] It is the mother's position that it is in the child's best interests to restrict and eliminate any overnight access between the father and the child. She submits that the material changes in circumstances affecting the child's best interests are as follows: the father's violent and abusive conduct towards her and other individuals; his volatile and ungovernable behavior, including violent behavior in front of the child; his transient and unstable housing, and his frequent cancellations of access for lengthy periods of time.

[10] Ms Neger also seeks a restraining order and a police enforcement clause for the above reasons and the father's refusal to follow court orders that he does not agree with.

[11] Ms Neger also seeks changes to the child support provisions in the Final Order to reflect the father's actual income or income that he is capable of earning. She also seeks an order that the father share the child's section 7 expenses.

[12] Ms Neger submits that provisions of the Final Order should be changed as follows:

a. The father should have day-time access only on three out of four Sundays each month, with the pickup of the child at 11 AM and the drop-off of the child at 7 PM;

b. all access exchanges shall take place at the second cup coffee shop at the Lawrence Plaza located at Bathurst and Lawrence;

c. there shall be a restraining order prohibiting the father from attending within 50 metres of the mother's place of residence;

d. the father shall not attend within 10 metres of the mother or the mother's vehicle during access exchanges;

e. there shall be an order that the parties communicate with one another by email only and that all communications shall be strictly limited to access arrangements for the child or for one parity update the other party about the child;

f. there shall be a police enforcement clause in the final order to ensure that the father's complies with the order.

3. The Respondent Father's Position

[13] It is the father's position that it is in the child's best interests to grant him sole custody in a shared parenting schedule. In the alternative, he seeks joint custody so that he can be fully involved in decisions affecting the child.

[14] The father submits that the material changes in circumstances affecting Lily Reesy's best interests since the Final Order are as follows: in 2013, the mother entered into a residential drug and mental health treatment program to address serious drug addiction, fibromyalgia and mental health issues, including a personality disorder. These issues continue to render her unable to act as the sole custodial parent. He further submits that the mother uses sole custody to restrict his access and to alienate him from his daughter.

[15] At trial, Mr. Dalfen also proposed that the child's principle residence remain with the mother, but that he have sole custody regarding all major decisions for the child, including medical, education and welfare.

[16] Mr. Dalfen does not agree that there should be a restraining order or a police enforcement clause.

[17] In addition to changing custody, Mr. Dalfen submits that the provisions of the Final Order should be changed as follows:

a. Option one: the child to be with the father every Tuesday overnight and every other weekend from Thursday to Monday, overnight;

b. Option two: the child to be with the father every Wednesday overnight and every other weekend from Thursday until Monday overnight with the father;

c. all pickup and drop-off of the child shall be at the school or another neutral location;

d. all communication between the parties shall be through email and/or a mediator or parenting coordinator;

e. summer holidays shall be equally divided with the child to be with the mother for the first month of the summer and the child to be with the father for the second month;

f. the mother shall have the right to make inquiries as to be in getting information regarding the child's health, education and welfare from any third-party professionals from the child is receiving services, including but not limited to health professionals, educators and recreational instructors and coaches.

4. Issues

[18] The main issues for me to determine are the following:

1. Has there been a material change in circumstances since the 2010 Final Order that affects or is likely to affect the best interests of the child?

2. If so, what custody and access order is now in the best interests of the child?

3. Should there be a restraining order against the father?

4. Should there be a police enforcement clause?

5. What amount of child support should the father pay? In particular, should income be imputed to the father?

6. What are the child's section 7 expenses? What should the father's proportional be to the child's section 7 expenses?

5. Summary of the Relevant Evidence

5.1 Background Facts and Litigation History

[19] Ms Neger is 34 years old. Mr. Dalfen is 40 years old. The parties met when Ms Neger was approximately 18 years old and Mr. Dalfen was 25 years old. They began a relationship and became engaged to be married shortly thereafter. The parties were married on December 29, 2003. Lily Reesy Dalfen is their only child and she was born on May 1, 2005.

[20] The parties separated in February of 2008 when Lily Reesy was almost three years old. At that time, Ms. Neger and the child returned to her parents' home and Lily Reesy's primary residence remained with her mother.

[21] The parties attempted to negotiate custody, access and support issues with the assistance of third parties, including a Rabbi in their community. Ms. Neger had retained a lawyer to draft a separation agreement. They were not successful in resolving the issues.

[22] In June 2008, the mother commenced the first court application by way of an emergency motion without notice to the father. She sought custody, and supervised access, and a restraining order against the father. In her supporting affidavit, the mother described a history of verbal abuse, threatening behavior, anger and violence by the father towards her and third parties, including the child's day care providers, witnessed by the child.

[23] Based on the evidence filed, the Honourable Justice Paulseth made a temporary without prejudice order granting Ms Neger custody and a restraining order. Mr. Dalfen's access to the child was suspended pending further court order.

[24] Mr. Dalfen's access was suspended until December of 2008. At that time, the parties reached a consent order providing that the father exercise supervised access to the child at a supervised access center. The father did not exercise this access. It is not disputed that the father did not agree that his access should be supervised at a supervised access centre and that he refused to comply with that order.

[25] During this period, the father did not see Lily Reesy for approximately eight months.

[26] The parties then entered into further negotiations with the assistance of a Rabbi in their community. On May 7, 2009, the parties signed a final minutes of settlement respecting the issues that were before the court. Rabbi Yoseph Oziel acted as the mediator in the negotiations that resulted in this agreement.

[27] However, when the agreement was presented to the court to be incorporated into a final court order, Justice Cohen, the case management judge, expressed a number of concerns about the provisions in the agreement. She declined to make an order reflecting those provisions.

[28] At that time, Ms Neger stated that she did not obtain independent legal advice before entering in this agreement and had only agreed to the provisions so that Mr. Dalfen would agree to give her a "Ghet" or Jewish divorce.

[29] Mr. Dalfen then sought to move for judgment in accordance with the terms of the parties' agreement. He also sought an order permitting cross-examination of the mother's lawyer with a view to establishing that she had provided independent legal advice to Ms Neger regarding the terms of the agreement.

[30] For written reasons, Justice Cohen dismissed the father's motion, having found "a complete absence of any evidence about who, if anyone, might have provided legal advice to either party. There is no statement in the agreement by a lawyer confirming that advice was provided." Justice Cohen further found that the agreement included a provision for child support that was not consistent with the Child Support Guidelines and "that depart[ed] so far from a reasonable professional standard that I find it highly unlikely that a lawyer would have permitted its inclusion in the agreement without acknowledgment and waiver."

[31] After the dismissal of the father's motion, and after further negotiations, the parties eventually entered into a final agreement regarding the issues of custody, access and child support which became the Final Court Order of February 11, 2010.

The 2011 Motion to Change

[32] On January 7, 2011, the mother brought a second emergency motion without notice for a restraining order against the father and for an order supervising or suspending his access to Lily Reesy.

[33] According to the mother's evidence, after the father started to exercise access under the 2010 Final Order, his conduct became increasingly aggressive, unstable, threatening and abusive. He missed and cancelled numerous access visits and the mother, through her counsel, suspended access in accordance with paragraph 7 of the Final Order which provides that access shall be suspended if the father misses or cancels three consecutive access visits without reasonable explanation, failing court order or agreement.

[34] It is not disputed that the mother suspended the father's access in October of 2010 by instructing her counsel at the time to send a letter to the child's school informing the school that the father's access was suspended pursuant to the provisions of the Final Order. The mother did not bring her emergency motion until January of 2011.

[35] It is further not disputed that on October 5, 2010, the father attended Lily Reesy's school and forcibly removed her by lifting her over the school fence and removing her from school property against the direction of school officials. The father admitted to removing the child from school property on that day. He denied missing and cancelling numerous visits and believed that the mother had acted unilaterally and unlawfully by instructing her lawyer to send a letter to the school stating that his access had been suspended.

[36] The police became involved during this incident as the mother alleged that the father had abducted or removed the child without permission. The father actually called the police and waited with the child for them to arrive. The police did not remove the child from the father at that time.

[37] On January 7, 2011, at the return of the mother's emergency motion, Justice Cohen granted the restraining order and suspended the father's access on a temporary without prejudice basis, based on the mother's evidence.

[38] On April 7, 2011, after a number of adjournments for the father to retain counsel and to file responding materials, the custody and access issues were referred to the Office of the Children's Lawyer for a "section 112" social work investigation and report. By that time, the father had not exercised access to Lily Reesy for several months.

[39] During the period of the adjournment, the mother proposed that the father's access initially take place at a supervised access center. It is not disputed that the father refused to exercise access at a supervised access centre. According to Justice Cohen's endorsement on that date, the father stated that he would not exercise access to the child if it was supervised. He proposed "Skype" access at certain times during the week.

[40] Justice Cohen therefore ordered that the father have access to the child on Fridays via Skype between 5 PM and sundown as well as any access necessary for the purposes of the Children's Lawyer's investigation and report.

[41] On September 22, 2011, the Office of the Children's Lawyer ("OCL") concluded its investigation and report of the custody and access issues. Ms Eva Casino, a witness in this trial, was the clinical investigator who prepared the OCL report.

[42] The OCL report recommended among other provisions, that the mother have sole custody of the child and that the father's unsupervised access be reinstated immediately. The clinical investigator recommended that this access should be gradually introduced to allow the child to normalize renewed contact with her father gradually towards generous overnight access.

[43] The mother disputed the contents of the OCL report and served a Notice of Dispute in accordance with Rule 21 of the Family Law Rules.

[44] It is not disputed by the parties that at the time the OCL report was delivered, the father had not exercised access with the child since the fall of 2010, when his access was suspended, except for the visits that were arranged to conduct the OCL investigation. It is further not disputed that it was open to the father to have access with the child at a supervised access center during this period of time however he refused to accept any supervised access. Instead he chose to have contact via telephone or Skype.

[45] After the OCL report was delivered, the father brought a motion for interim unsupervised access to the child in accordance with the OCL's recommendations.

[46] On December 12, 2011, following the hearing of the motion, the court made a temporary order that the father shall have access to the child on Wednesdays from 4:30 PM to 8 PM; Sundays from 10 AM to 6 PM and at any other times as agreed between the parties in writing, among other provisions. The access was to take place with a member of the father's family present or a third party agreeable to the mother as arranged through her counsel. Access was to be reviewed on February 7, 2012 with a view to expand should all go well.

[47] On February 7, 2012, the review date, the parties agreed to a graduated expanded access schedule moving towards overnight access. The provision regarding a third party supervisor remained at that time.

[48] It is not disputed that during the summer of 2012, the father's access was gradually expanded to unsupervised overnight alternating weekends and some mid-week access.

[49] The matter proceeded to a trial management conference and was proceeding to a trial in the fall of 2012. However, on October 25, 2012, both parties discontinued the 2011 Motion to Change and filed Notices of Withdrawal.

[50] It is not disputed by the parties that after the 2011 motion to change was withdrawn, by the fall of 2012, the mother became increasingly ill with fibromyalgia. She sought treatment from a number of doctors who prescribed various medications to assist with her pain. The mother developed an addiction to pain medication and in the spring of 2013, the mother attended a drug treatment rehabilitation program in the United States. She returned to Toronto in late July or early August of 2013.

[51] During the time that the mother was receiving treatment in the United States, the child was residing with the father in Toronto with the mother's consent.

[52] In August of 2013, upon the mother's return to Toronto, the child returned to the primary residence of the mother. The parties disagreed as to the nature and form of the father's access to Lily Reesy upon the mother's return from treatment. The mother sought to return to the parenting schedule under the Final 2010 Order. The father disagreed.

The 2014 Motion to Change

[53] On September 5, 2014, the mother commenced this motion to change. Again, it was commenced without notice to the father on an emergency basis. In the within motion to change, the mother again sought an order that the father shall have supervised access either at an access center or by a mutually agreeable third-party supervisor. In the alternative, she requested that the father be granted daytime access only, with no overnights pending further court order. The mother also sought a restraining order and a police enforcement clause.

[54] According to the motion to change filed, the mother stated that there were a number of concerning and violent incidents that occurred during the father's access to the child, causing the child emotional harm and exposing the child to escalating conflict and abuse.

[55] In particular, the mother described incidents that occurred during Passover on April 20, 2014 in which the police became involved and on July 29, 2014 that occurred at the child's summer camp resulting in camp directors involving the police and Jewish Child and Family Services. An investigation by the Jewish Child and Family Services followed.

[56] On September 5, 2014, based on the mother's evidence filed, the father's access was suspended on a temporary without prejudice basis by the Honourable Justice Katarynych.

[57] On October 7, 2014, at the return of the motion and upon hearing all of the evidence, Justice Cohen ordered that the father's regular unsupervised access should be reinstated in accordance with the Final 2010 Order except that for the first three visits, the alternate weekend access will conclude Sunday at 7:00 PM to allow for a transitional period. Thereafter, the access will conclude on Monday mornings (drop off at school).

[58] Following the reinstatement of the father's access, Justice Cohen ordered the re-involvement of the Office of the Children's Lawyer to conduct a further investigation. On January 30, 2015, the OCL consented to provide an updated investigation and report. Ms Zaria Duncan was assigned as the clinical investigator. The matter was adjourned pending the OCL updated report.

[59] On April 30, 2015, during the course of the OCL investigation, the mother brought a further urgent motion seeking to restrict or supervise the father's access following information that she received that the father had moved to a new residence that he had failed to disclose and that Lily Reesy was having overnight visits in this residence and being forced to keep it a secret from the mother. According to the mother's materials, the residence was unsafe and inappropriate for the child.

[60] Following a series of motions and the very serious escalating conflict between the parties, Justice Cohen requested that the Jewish Child and Family Services ("the Society") to attend court on an urgent basis "in light of the high conflict in this matter in which the child's emotional well-being may be at risk."

[61] On May 1, 2015, a Society lawyer and child protection worker attended court before Justice Cohen and agreed to conduct a child protection investigation regarding the impact of the custody and access dispute on the child's emotional health. Justice Cohen directed the parties to cooperate with the Society and to sign any consents reasonably required by the Society for the purposes of its investigation.

[62] As a result of the child protection investigation, the Office of the Children's Lawyer placed its investigation on hold pending the outcome of the Society investigation, as per their mandate. The OCL indicated that it would provide a report at a later date which will include the outcome of the child welfare investigation.

[63] The child protection investigation was conducted by Ms Michelle Cukier, a child protection worker and a witness in this trial. The investigation was concluded on June 30, 2015. At that time the Society verified that "child protection concerns of a risk of emotional harm due to significant conflict over custody was verified." However, it decided to close its file as, according to the report filed on consent of the parties:

"…the society feels that continued JF&CS involvement will only further allow Ms. Neger and Mr. Dalfen to involve Lily in the conflict. Further, the JF&CS understands that the Office of the Children's Lawyer has almost completed their assessment, which will contain custody and access recommendations. As a result, the file is being closed.

[64] The Society also recommended that the parents attend a high conflict workshop or group such as the group involved provided through Families in Transition in order to address appropriate ways to manage a high conflict situation.

[65] Following the completion of the child protection investigation, regrettably, for personal reasons, the OCL clinical investigator Ms. Zaria Duncan was unable to complete her investigation and report of the custody and access issues. The OCL offered a new investigator to continue and complete the investigation, but Mr. Dalfen did not agree.

[66] On August 4, 2015, the father brought a motion seeking to significantly expand his access and for a restraining order against the mother. He also sought an order that both parties comply with drug testing. Justice Cohen did not find that the father had established a material change in circumstances justifying the significant expansion in access that he was seeking. She further dismissed the father's request for the restraining order. However in light of the length of time needed by the father to transport the child on Tuesdays and alternating Thursdays, Justice Cohen extended the access on those days to 7:30 PM.

[67] On September 24, 2015, the father brought a further motion for an order that the mother be found in contempt and for an order that the child continue to be registered for her final grade 5 year at Associated Hebrew School, a private Jewish day school. The mother had enrolled the child at Glen Park Public School commencing September 2015 with little notice to the father.

[68] Justice Cohen dismissed the father's motion. Justice Cohen stated the following in her written reasons:

"The mother deposes that the child is doing much better at the new school and is pleased to be there. She states that the supports for the child are more intensive at the public school, including an on-site psychologist. The child is able to participate in more extracurricular activities because the tutoring is no longer required. She is on the track and field team, and is enrolled in gymnastics. She appears happy and is making new friends.

The mother is a custodial parent, and has been for many years. She is entitled to make educational decisions. Based on the evidence, I find her decision to change the child's school and educational program was reasonable and made in the child's best interests."

[69] During the same written reasons, as a result of ongoing events, Justice Cohen stated the following:

"There is another issue I wish to address. The father has become virtually ungovernable in the courtroom. He interrupts at will, and insults counsel and the court repeatedly. Such conduct directly interferes with the proper administration of justice and the court and cannot continue."

[70] Accordingly, Justice Cohen ordered that, other than the father's contempt motion, the father was not permitted to bring any further motion without leave. She further ordered that in the event the father continues his disruptive conduct, he will be removed from the court.

[71] On October 13, 2015, the father's motion for contempt returned before Justice Cohen. According to a transcript of the proceedings obtained by mother's counsel, for oral reasons, Justice Cohen transferred this case to another case management judge. Excerpts of her oral reasons are as follows:

"… this case has been going on for a number of years and the tone has gotten increasingly hysterical and much of it is directed against me, .. I have struggled to determine all the motions and the other proceedings in this matter in a disinterested, detached, fair manner and in a reasoned manner, but it has been come absolutely impossible for me to continue to case manage this case. … If I were so inclined, I would conduct a contempt hearing, but I do not want to distract or derail this matter, particularly when it is so close to trial, but in my view his [the father's] comments are continuously, repetitiously contemptuous, attempting to intimidate the Court, intimidate the lawyer, scandalize the Court, and I am not going to continue with the matter."

[72] Justice E. Murray assumed the role of case management judge pending the trial of this matter. She also heard a number of motions.

[73] On November 24, 2015, following a series of previous court orders for disclosure that had not been followed according to Justice Murray's review, the court ordered that the father shall serve and file all the financial disclosure ordered on or before December 22, 2015. If the father failed to comply with this order, Justice Murray ordered that the mother may apply on motion for an order striking the father's pleadings with respect to the issue of child support only.

[74] On February 1, 2016, on the mother's motion, Justice Murray made an order striking the father's pleadings with respect to child support, retroactive and prospective as the father had failed to comply. Notwithstanding the mother's request, Justice Murray did not strike the father's pleadings with respect to the custody and access issues.

[75] In the same ruling, Justice Murray considered a motion brought by the mother to eliminate the father's mid-week access to the child and an order regulating access transfers, among other relief. Justice Murray declined to eliminate the father's mid-week access, but ordered that the father shall pick up the child at the child's aftercare program at the Lawrence Heights Community Centre, rather than school, and return the child on Monday mornings to school and to the mother at a specified Second Cup coffee shop on Tuesdays and Thursdays.

[76] It not disputed that since this Order of Justice Murray, dated November 24, 2015, and at the time of trial, the father had refused to exercise access on Thursday evenings because he states that the new pick up location interferes with his time with the child and it is too far for him to travel back and forth with the child on those evenings.

[77] On January 28, 2016, in preparation for the upcoming trial before me, Justice Murray requested that the Office of the Children's Lawyer provide a "Voice of the Child" report to determine the child's views in this matter. The OCL consented to provide the services before the trial. A clinician was assigned on February 2, 2016.

[78] Unfortunately, the "Voice of the Child Report" did not proceed. According to the letter and Affidavit dated March 18, 2016 from the OCL clinician, both the father and child declined to participate. The father raised the objection that the child's participation in the process would negatively impact her emotional well-being. In addition, despite attempts made on three separate occasions, the mother informed the clinician that the child was refusing to attend scheduled appointments with the clinician. The clinician's report and affidavit were filed on consent in this trial.

[79] On February 1, 2016, the father brought a further motion for contempt against the mother for her obstruction of his ability to obtain information regarding the child's education and schooling directly from school officials. The father alleged that the mother had deliberately lied to school officials and caused school staff to believe that a court order forbade them to communicate with him.

[80] The mother denied this and stated that if the school is refusing to provide information to the father, then the father's complaint should be with the school. The school's director, Elliot Brodkin, was one of the father's witnesses in this trial.

[81] Justice Murray dismissed the father's motion for contempt for the reasons set out in her endorsement.

[82] On March 18, 2016, the mother brought a motion for security for costs against the father. For oral reasons delivered, Justice Murray dismissed this motion. The matter then proceeded before me for the Trial Management Conference and trial.

5.2 The Mother's Evidence and Her Witnesses

The Mother Aliza Neger

[83] Ms Neger is 34 years old and has resided in Toronto her entire life. She has lived in the same apartment since 2010 with Lily Reesy, but for a period of time in 2013, when she was attending a rehabilitation and drug treatment program in the United States. She comes from a family of six children and she was raised in the Jewish faith. She describes her relationship with her family as close. Her parents, who have now separated, both live close by and visit with Ms Neger and Lily Reesy on a regular basis. She describes Lily Reesy's relationship with her grandparents as very close.

[84] Ms Neger is currently a part-time student at Seneca College in a social services diploma program. Her long-term goal is to transfer into a BSW program and eventually obtained a Masters in Social Work and become a therapist. Prior to attending Seneca, she obtained a certificate from Humber College in psychosocial rehabilitation.

[85] Since 2013, Ms Neger's main source of income has been ODSP (Ontario Disability Support Program Benefits). Currently, in addition to her ODSP income, she also receives some self-employment income doing respite work for people with developmental disabilities and mental health issues. Her total income is approximately $22,000 per annum. Her ODSP is based on a diagnosis for PTSD and fibromyalgia.

[86] The parties met and became involved when Ms. Neger was 18 years old and Mr. Dalfen was 25 years old. At the time, Ms. Neger was a college student and living in a bachelor apartment. Mr. Dalfen was employed. The parties started living together and married shortly thereafter. Ms Neger testified that she was aware that Mr. Dalfen had been incarcerated in the United States for fraud and conspiracy related offences when they married.

[87] Ms Neger testified that none of her family attended the wedding as her parents were very upset with her decision to marry Mr. Dalfen and did not approve of him. She did not see her family for a considerable period of time after her marriage to Mr. Dalfen. During the four years of marriage with Mr. Dalfen, her relationship with her family was strained. She testified that she worked very hard at rebuilding her relationship with her parents.

[88] In cross-examination, Ms Neger denied being kicked out of her parents' home and did not respond to questions about the nature of her relationship with her father when she was younger. Although she acknowledged that it was strained, she did not denied that it was abusive. She acknowledged attempting to get a restraining order against her father when she was with Mr. Dalfen.

[89] During the marriage, Ms. Neger was attending school prior to her pregnancy with Lily Reesy. Mr. Dalfen was working outside of the home. She testified that after Lily Reesy was born, she was a stay-at-home mother and the primary caregiver for the child while Mr. Dalfen worked full-time. She continued also some of her college work from home.

[90] Ms Neger described her marriage as initially good, but soon developed into a very abusive relationship. She testified that Mr. Dalfen was very derogatory and verbally abusive towards her. He would call her names, throw things at her, break doors down, and sometimes push her when he became angry. She described the relationship as very volatile. The abuse would escalate and then Mr. Dalfen would apologize and promise to go to anger management. She described her entire relationship was an "abuse cycle."

[91] The parties separated in February of 2008. Ms Neger testified that she discovered that Mr. Dalfen was gambling away their rent money and using drugs, including cocaine and crack cocaine. They were evicted from their apartment. After Ms. Neger returned to her parents' home with Lily Reesy, they resided with her parents for approximately 1.5 years until she obtained the apartment where they currently reside, which is government subsidized.

[92] After the separation, Ms Neger described things as "very chaotic" and volatile with Mr. Dalfen. Although they were attempting to negotiate an agreement with community members including a Rabbi, this was not working and she decided to commenced court proceedings.

[93] Before Ms Neger decided to go to court, she received the following Facebook message from Mr. Dalfen, to which he admits sending:

"Subject: you bitch

Be ready for the battle of your life.

I decided that I want Reesy. I don't trust your whore ass.

We will battle as long as it takes.

No rabbis, councelors, [ sic ], just lawyers. I'll start the process, you prostitute."

[94] Ms Neger testified that this is one of many abusive emails that she has received from Mr. Dalfen over the years. A document brief containing numerous email exchanges between the parties over the pasts several years was admitted into evidence in this trial.

[95] Ms Neger testified that after she obtained the first restraining order against Mr. Dalfen, the parties attempted to negotiate a final agreement with the assistance of a Rabbi, who was also helping her to obtain a Jewish divorce or Ghet.

[96] Ms Neger testified that Mr. Dalfen refused to give her the Ghet unless she agreed to the terms that he wanted in the final agreement, including a waiver of proper child support. She agreed to the terms under duress in order to obtain the Ghet. She stated that she did not have legal advice when she entered into the agreement.

[97] After Justice Cohen declined to approve the agreement and it was set aside, the parties then entered into the final agreement that formed the basis of the 2010 Final Order.

[98] Ms Neger testified that she returned to court again in 2011 to seek another restraining order against Mr. Dalfen because his harassment and verbal abuse escalated. She testified that the father was stalking her, showing up at her apartment and that during access exchanges, he was yelling and screaming at her in front of Lilly/Reesy, causing her to be very anxious and frightened. She testified that the communication from him through email and text messages was extremely verbally abusive.

[99] After Ms Neger obtained the further restraining order in January of 2011, she recalled that Mr. Dalfen's access was initially suspended for several months and then supervised by some of his family members. However, he refused to exercise supervised access for several months and would only agree to Skype access.

[100] Ms Neger's recollection of the events after this period was hazy. She testified that she did not agree with the recommendation of the OCL Report and would not agree to implement those recommendations, instead filing a Notice of Dispute with the OCL.

[101] Ms Neger did not appear to recall exactly what happened in 2011 and 2012, but after a period of Skype access and then supervision by family members, she testified that the father's access gradually returned to more regular overnight access by the summer of 2012. She agreed that by early 2013, he and Lily Reesy started to spend significantly more time together.

Mother's Mental Health and Addiction Issues

[102] Ms Neger described suffering from depression in her teens and in her early twenties. She sought psychiatric treatment and other alternative treatments from a variety of doctors, which she states were successful. In cross-examination, she acknowledged that she has been under psychiatric care throughout periods in her life since she was approximately 18 years old. Between the ages of 18 and 19, she received electroshock therapy. She further acknowledged an earlier history of some suicide attempts. She testified that she was suffering from depression when she met Mr. Dalfen.

[103] Ms Neger was under the care of a psychiatrist between 2003 and 2004 and receiving medication and treatment during that time. According to her evidence, during her pregnancy with Lily Reesy she went off all prescription medications used for depression and no longer used or needed medication.

[104] In 2011, Ms Neger was diagnosed with PTSD and fibromyalgia. Ms Neger testified that she developed PTSD as a result of her abusive relationship with Mr. Dalfen and the trauma of the divorce and separation. She further testified that because of her PTSD and the trauma that she was experiencing, she also developed fibromyalgia, which became very painful.

[105] Ms Neger testified that during the 2011 and 2012 period, she had a number of treating doctors prescribe various medications to assist with the chronic pain of fibromyalgia. In early 2013, it was determined that she had developed an addiction to the prescription medications.

[106] According to her evidence, in the spring of 2013, with the financial assistance of her brother, she went to Florida to address her fibromyalgia and then attended a rehabilitation and drug treatment program to address her addictions.

[107] Ms Neger remained in treatment, including residential treatment to address her addictions and her PTSD/fibromyalgia for a period of approximately three to four months, between April and July of 2013. She came home briefly at one point in May of 2013 for Lily Reesy's birthday and then returned to treatment.

[108] Ms Neger testified that the medications that she became addicted to were largely opioids, and in particular a "fentanyl patch" and Percocets. She was taken off all of her medication during her rehabilitation and weaned off all addictive medication in 2013.

[109] Ms Neger testified that upon her return home in late July of 2013, she assembled a support and treatment team comprised of an addictions doctor, a psychologist, both of whom she still works with, a pain specialist to address the fibromyalgia and a life coach or community case worker to help her get life back on track.

[110] Since Ms. Neger's returned to Toronto, she has attended ongoing therapy with Dr. Erin Mantis, a licensed clinical psychologist, who she began working with on July 30, 2013. She has also been under the care of Dr. Ivan Peruso, a Humber River Hospital physician and general practitioner specializing in addiction. Dr. Peruso filed a report in these proceedings, however he did not testify. Dr. Mantis did testify in these proceedings.

[111] Ms Neger also attends Narcotic Anonymous (NA) on a regular basis, and she has a very strong role in this program. She has a sponsor and she herself is a sponsor to several members. She regularly speaks at high schools and other organizations to share her experience with addiction and also volunteers with JACS (Jewish Addiction Community Services).

[112] Ms Neger testified that she has been clean and drug free since May of 2013. Pursuant to a Consent Order of Justice Cohen dated August 7, 2015, she participated in hair follicle drug testing and produced a hair follicle drug test through a lab called "Life Labs" which was negative for all drugs and controlled substances. She testified that she is no longer suffering from any addictions.

[113] Ms Neger completed the drug test on October 5, 2015, approximately three months after the order was made. She denied waiting for a period of time prior to completing the report, contrary to the father's claims. Part of the difficulty was finding a lab after the concerns regarding the Motherisk Lab. The report filed also indicated that the test results detected drug use for a period of 90 days prior to the date the sample was tested. A copy of the report, dated October 6, 2015 was entered as evidence in this trial.

[114] Ms Neger testified that she no longer sees a pain specialist as her fibromyalgia is completely manageable and that she is not suffering from any major mental illness. She continues to have PTSD, however, through her counselling, therapy and support team, she has learned how to manage her emotions and to manage her PTSD. She testified that it is occasionally triggered by stress, such as these court proceedings.

[115] Ms Neger testified that Lily Reesy is aware of her illness and understands that her mother was on some "bad medications" and that she had to get off of them. Ms Neger described very proudly that in 2014, Lily Reesy made a speech at Ms Neger's First Year Medallion which is a celebration of the anniversary of the first year of sobriety and recovery. Lily Reesy also spoke at Ms Neger's second year medallion in 2015. Ms Neger described this as a very moving experience for everyone and that there "were a lot of tears in the room". According to Ms Neger, Lily Reesy talked about how proud she was of her and how much she loves her, which was very special for her. Many family members were present as well.

Father's Care of Lily Reesy in 2013

[116] Ms Neger testified that when she became ill and went away for treatment, Lily Reesy lived with the father from April of 2013 to the end of June of 2013. She asked Mr. Dalfen to care for Lily Reesy during this period. However, she testified that during this period, her family was very concerned for Lily Reesy's well-being as Mr. Dalfen was apparently approaching members of her family for money to pay for food and other expenses.

[117] Ms Neger testified that her father arranged for Lily Reesy to attend an overnight summer camp for the months of July and August of 2013 until Ms Neger returned from treatment because they were concerned about Mr. Dalfen's parenting.

[118] In cross-examination, Ms Neger denied that the father was extensively involved with Lily Reesy's care during this period prior to her going into rehab. Although she acknowledged that Mr. Dalfen cared for Lily Reesy from April to June of 2013, she testified it was for a period of no more than eight weeks. She denied that Mr. Dalfen was extensively involved in supporting and helping her parent Lily Reesy prior to this time in early 2013.

[119] Ms Neger testified that upon her return home in late July of 2013, Lily Reesy returned to her mother's primary residence and has continually lived with her mother since that time.

[120] Ms Neger testified that she commenced her second motion to change in September of 2014 because Mr. Dalfen would not agree to follow the 2010 Final Order once she returned from treatment. She brought an emergency motion at that time. She testified that Mr. Dalfen's abusive behaviour started to escalate again and it became impossible to communicate with him. In particular, she described two specific incidents that occurred in April 2014 and July of 2014 which caused her great concern. In addition to refusing to follow the 2010 order, Mr. Dalfen was frequently cancelling access visits for very significant periods of time, causing emotional harm to Lily Reesy.

The April 2014 Incident

[121] Ms. Neger testified that during the Jewish Passover holiday in April of 2014, Mr. Dalfen came to pick up Lily at her apartment building for the holiday. Ms Neger testified that after she delivered Lily Reesy to Mr. Dalfen, Mr. Dalfen phoned her and was very angry because she had not packed the proper clothing for Lily Reesy. He was yelling loudly at her and she could hear him yelling at Lily Reesy.

[122] Shortly afterwards, Lily ran back up to her apartment. According to Ms. Neger Mr. Dalfen became explosively angry. He chased Lily up to her apartment and tried to force his way into the apartment while the child Lily Reesy inside with her. Ms Neger described Mr. Dalfen as yelling loudly and banging on the apartment door. She described Lily as being completely traumatized and very frightened by this behavior.

[123] Ms Neger called the police who attended and spent a considerable amount of time calming down Lily Reesy and attempting to deal with the father. Ms. Neger testified that during the time the police were in her apartment, she received approximately seventeen abusive and threatening text messages from the father which the police reviewed.

The July 2014 Summer Camp Incident

[124] Ms Neger testified that in July 2014, she emailed to father to confirm where he should pick up Lily Reesy at the conclusion of her summer camp on July 28, 2014. According to Ms Neger, there was a miscommunication at the camp and the camp bus driver did not receive confirmation that Mr. Dalfen was authorized to pick up Lily Reesy. On that day, Ms Neger received a call from the camp requesting confirmation and Ms Neger provided permission.

[125] Ms Neger testified that when Lily Reesy came home that evening, she was very upset and traumatized by the father's actions that day. Ms Neger testified that she later received a telephone call from Ms Devra Igre at Jewish Child and Family Services who advised her that the agency had received a call from the camp about the father's behaviour. According to JFCS worker, the camp had issued a trespass order against him. Ms Neger was advised that the father became violently angry and started banging on the camp bus door demanding the release of his daughter, causing staff and other children to be very frightened and intimidated.

[126] Ms Neger testified that the father did not exercise any access to Lily Reesy pending the JFCS investigation. Ms Neger testified that she did not suspend the father's access during the JFCS investigation but rather that the father chose not to see Lily Reesy during this investigation.

[127] On September 5, 2014, Ms Neger sought and obtained an emergency motion to restrict the father's access. Jewish Family and Child Services completed their child protection investigation regarding the incident and verified that the child was at risk of emotional harm as a result of the father's conduct. Ms Neger testified that the Lily Reesy only saw her father once for a period of approximately two hours after the summer camp incident until October 6, 2014, the return of the motion. At that time, Justice Cohen reinstated the father's access in accordance with the 2010 Final Order.

Mother's May 2015 Motion to Restrict the Father's Access

[128] It was Ms Neger's evidence that she became aware in April of 2015 that that father was living at a different address that he failed to disclose to her. She received information from a person named Lisa Rapkin who disclosed to her very concerning details regarding where Lily Reesy and the father were staying during his overnight weekend access. Ms Neger believed that the apartment was unsafe and dangerous for Lily Reesy.

[129] Ms Neger attempted to discuss this with Lily Reesy and believed that Lily Reesy had been told by the father to keep this a "secret" from her and other adults. Ms Neger arranged for herself and Lily Reesy to meet with the child therapist at the time, now Ms Susan Murrell-Pritchard, to discuss the "secret". Ms Murrel-Pritchard called the children's aid society. Ms Neger brought a further emergency motion to restrict the father's access.

[130] Ms Neger did not call Ms Rapkin as a witness at trial. She testified that Ms Rapkin had been threatened and intimidated by Mr. Dalfen and did not wish to testify.

The Father's Cancellations

[131] Ms. Neger testified the father has repeatedly refused to exercise access to Lily Reesy for significant periods of time because he would either not agree to exercise access at a supervised access center or he does not agree with the court order. She further described the father's access as very inconsistent and sporadic and that the often has a number of different excuses for why he is cancelling his access with Lily Reesy.

[132] According to Ms Neger, Nr. Dalfen regularly makes promises to Lily Reesy and then fails to follow through when he cancels his visits. Ms. Dalfen prepared a chart of the missed access by the father. According to Ms Neger, the father had cancelled the following visits with Lily Reesy since April of 2014:

1. in April 2014, the father sent an email suspending all of his access until all the OCL recommendations were implemented. The father agreed to start seeing Lily Reesy again approximately two weeks later;

2. in May of 2014 the father refused to exercise midweek access until June 15, 2014;

3. in July of 2014, after the summer camp incident, Ms. Neger testified that the father did not see Lily Reesy or exercise access to her until he received communication from Jewish Family and Child Services. He then did not see Lily Reesy until October of 2014;

4. in December 2014, the father cancelled all of his overnight weekend access;

5. in January of 2015, the father cancelled some midweek access and cancelled both weekend access periods

6. in February 2015, the father cancelled the February 20-22 weekend;

7. in April 2015, the father cancelled his Passover access;

8. in November 2015, the father cancelled all of this Thursday access visits going forward after the Justice Murray's Order changing the access exchange;

9. in December 2015, the father canceled all of his weekend access due to a shoulder injury until January 8, 2016;

10. despite emailing the father well in advance to plan Lily Reesy's summer, he has never exercised his summer holiday access pursuant to the 2010 Order.

[133] Ms. Neger testified that the father will unilaterally canceled his access schedule until further notice at different times as a form of punishment. According to Ms Neger, the father appears to believe that the access schedule is a weapon that he can use against her by canceling his access when he is upset or unable to get what he wants.

[134] Ms. Neger introduced several email exchanges between the parties regarding his numerous cancellations and the difficulties that she encounters in attempting to schedule holidays or address cancellations. Some of these emails were also exchanges between Mr. Dalfen and her counsel.

[135] The mother also testified that the father believes that the 48 hour confirmation clause in the Final Order can be used by him to regularly cancel access, so long as he cancels within 48 hours. The mother testified that the father has routinely used this clause to cancel his access when she has already made plans. For example, in March of 2015, the father canceled all of his access forty-eight hours before the mother was scheduled to go away on a holiday outside of the country,

[136] When the mother advised the father that she had already made arrangements to travel out of the country, having booked her flight and accommodations, the father replied in writing as follows

"Sorry … as per our court order I have the right to cancel 48 hours in advance and I'm doing exactly that. I suggest you deal with it in court as it is your responsibility, it is my responsibility to notify you 48 hours in advance only.… Good luck figuring it out."

[137] Ms Neger testified that these frequent cancellations used to be very difficult for Lily Reesy. She would be very disappointed. However, Lily Reesy now appears to be more accustomed to the frequent cancellation and she is happy to be with Ms. Neger. Ms Neger also testified that whenever there has been extended periods of time when the father has not exercised access, things have been a lot better for Lily. According to Ms. Neger's observations, Lily Reesy appears calmer and happier and does better at school.

[138] Ms. Neger also testified that she observed Lily to be very anxious around the frequent cancellations and the unpredictability of the father's access. She describes Lily is a child who likes to have things very organized and wind things are chaotic or unknown she becomes anxious.

[139] Ms Neger testified that even when the father does exercise access, during the mid-week evening access periods, he is constantly late and never returns Lily Reesy on time.

[140] Ms. Neger testified that the current access regime is not working. She feels that the child's life is been in complete chaos as a result of the father's frequent cancellations and the impossibility of communicating with him. She described the father's communication and abusive and derogatory. She testified that she can never plan or schedule for Lily Reesy given the father's refusal to cooperate. She further can never plan extracurricular activities during the weekend because the father will always refuse to take Lily Reesy to those activities on "his" weekend time with her.

[141] Ms Neger denied attempts to restrict the father's access to Lily Reesy. She testified that she has made numerous efforts to encourage access. She testified that she always has Lily Reesy available and offers makeup access when the father cancels.

Ms Neger's Description of Lily Reesy

[142] Ms Neger testified that Lily is "a very sweet child" and "a great kid". She is "very athletic" and "very energetic". During their time together they do a lot of activities such as ice-skating, rollerblading during the summer and visiting with family. She has enrolled Lily Reesy in gymnastics. She arranges 'get togethers' with Lily Reesy and the maternal grandparents approximately once per week. They often visit her sister and Lily Reesy's cousins. They try to do activities during the weekends although it is difficult to organize extracurricular activities on the weekends when the father refuses to take Lily Reesy on his weekends. They have two cats and a pet turtle. Lily Reesy loves her pets.

[143] Regarding Lily Reesy's schooling, Lily Reesy had been at Associated Hebrew, a private Jewish Day school since grade four. Ms. Neger explained that she received bursaries and grants from the school and some assistance from her parents to pay the tuition.

[144] However, Ms Neger testified that that during the 2013-2014 academic year at Associated Hebrew, Lily's behavior had greatly deteriorated. An Individualized Education Plan (IEP) assessed Lily Reesy as having a learning disability. According to Ms Neger, Lily Reesy was becoming very disrespectful and disruptive at school. She was getting into fights with other children. Ms Neger testified that she regularly received phone calls from the teachers at Associated Hebrew regarding Lily Reesy's behaviour.

[145] Ms. Neger decided to transfer Lily Reesy to Glen Park Public School for the September 2015 school year because she did not feel that Associated Hebrew was a good fit for her and that Lily Reesy was not doing well there. She testified that this was a very difficult decision.

[146] Ms Neger acknowledged not informing the father of this decision until July 28, 2015 through a letter from her counsel in which the father was informed that decision was made for "financial reasons." No other reason or information was provided.

[147] According to Ms. Neger's evidence, the move to Glen Park has been very successful for Lily. She has made several friends and she has shown interest in her school activities. She is not overwhelmed by her academic workload and she is completing her school work with confidence. She is now able to explore new extracurricular activities as she no longer requires a tutor.

[148] Since Lily Reesy has transferred to Glen Park Public school, she has received a further Individualized Education Plan, remedial classes, and other programs and supports. Her academic performance has improved tremendously. Copies of Lily Reesy's report cards at both Glen Park Public School and Associated Hebrew school were filed as exhibits in these proceedings. The report cards showed a significant improvement after her transfer. Lily Reesy has no longer been identified as a child with a learning disability.

The Child's Name

[149] When asked by the court why Lily Reesy appears to have two different names and when this happened, Ms. Neger testified that Lily's birth name is Lillian Reesy Dalfen. This is the name on her birth certificate. Until Lily Reesy was approximately 8 years old, she went by the name of Reesy. Ms. Neger testified that approximately two years ago Lily Reesy told Ms. Neger that she wanted to "go by Lily" and that she did not like the name Reesy. She preferred her English name to her Hebrew name, as it was less unusual.

[150] Ms. Neger testified that she took this seriously so she booked a session for herself and Lily with Joanna Seidel, Lily's child therapist at the time. They discussed the reasons with Lily/Reesy that she wanted to change her name. According to Ms. Neger, Lily Reesy's child therapist was of the view that this was not an unhealthy decision for Lily Reesy.

[151] Ms Neger testified that they decided to try out the name 'Lily' when she went away to a summer overnight camp where no one knew her by the name 'Reesy'. Ms Neger testified that when Lily Reesy came back from camp, she would not go back to 'Reesy'. Ms Neger testified that her parents and her family had a hard time switching over to Lily but it is her daughter's choice and she has gone by her first name Lily since that time. There was no evidence that Ms Neger discussed this change with Mr. Dalfen.

[152] In cross-examination, Ms. Neger acknowledged that during their relationship, she never contacted the police regarding any allegation of violence or abuse by Mr. Dalfen. She further acknowledged that during the period of time that the parties were in marriage counseling, she did not disclose any physical abuse to the marriage counsellor either in private sessions or otherwise. However, Ms Neger testified that she did not realize the severity of the abuse until after the marriage was over.

[153] Mr. Dalfen cross-examined the mother at length with respect to the findings and recommendations of Ms. Eva Casino, the first OCL clinical investigator in this matter.

[154] Ms. Neger acknowledged that she did not agree with the findings or the recommendations of Ms. Casino and believed that there were several factual inaccuracies in her report. Ms Neger further acknowledged that she filed a lengthy Notice of Dispute to the Report in 2012. She acknowledged that she would not agree to unsupervised access notwithstanding the clinical investigator's recommendations. She continues to believe that Lily Reesy is afraid of her father.

[155] The parties' marriage counsellor and the mother's psychiatrist had provided a psychiatric report to the first OCL clinical investigator which, according to the OCL investigator, diagnosed Ms Neger with acute major depression, a generalized anxiety disorder and a borderline personality disorder. Ms. Neger testified that she did not have any recollection of this report and she strongly disagreed with these diagnoses.

[156] In cross-examination, the mother denied that the father was actively involved in Lily Reesy's care prior to the mother's admission into drug treatment, including spending overnights at her apartment to care for her and for Lily Reesy in late 2012 or early 2013 when she was very ill. She further denied that the father was actively involved in helping her get treatment and in seeking out her brother-in-law Akiva to fund her treatment in the United States. She further denied that the father called her and spoke to her and her treatment providers on numerous occasions while she was in the United States to assist with her treatment.

[157] Ms Neger also denied asking the father for help in caring for Lily Reesy during the period of 2012 and 2013 when she became ill. Although she admitted that she withdrew her earlier Motion to Change in the fall of 2012, her evidence was that it was only for financial reasons.

[158] Ms Neger denied that she had permitted to the father to enter her apartment while she was in rehab to get clothing and other items for Lily Reesy. She accused him of stealing things from the apartment and from her car without her permission. She did not agree that she agreed to use her aunt as a mediator and testified that the aunt refused to assist after Ms Neger came back from rehab because the father was so abusive.

[159] In cross-examination, the mother also denied any knowledge of a private investigator that was hired by her brother-in-law to conduct surveillance on the father in the 2012 during the time that he was exercising access with in the presence of his aunt and his extended family members. She could not recall if there was a copy of that surveillance report in her car and did not believe so.

[160] The mother also acknowledged that after she obtained the first emergency order without notice, suspending the father's access, she would not agree to a number of third-party supervisors that the father had presented to supervise his access with Lily, including a Rabbi. She would only agree to supervised access at a supervised access center.

[161] The mother further acknowledged that in October 2010 with the assistance of one of her previous lawyers, she unilaterally suspended all of the father's access using the cancellation clause confirmation pursuant to the February 2010 order. She acknowledged that the when the father had removed Lily Reesy from the school in October of 2010 he had not kidnapped Lily Reesy. However she testified that she alleged that the father had kidnapped Lily Reesy in her emergency motion materials because he had threatened to do that in the past.

Police Constable Shawn Kinghorn, Investigation Officer Regarding the April 2014 Incident

[162] Constable Kinghorn is a Detective Constable with Toronto Police Services. He has been with Toronto Police Services for 11 years.

[163] He testified that in April of 2014, he received a radio call for a domestic incident. The dispatch information received was that a female complainant called in and alleged that her ex-husband was banging on her door of her apartment building. He attended with one of his colleagues, P.C. Jennifer Young and arrived at the mother's home, whom he identified in the court.

[164] Constable Kinghorn testified that when they arrived, the father had already left the scene. The mother alleged to him that there had been a dispute during the access exchange the child had become upset when the father started shouting at her. The child returned to her apartment and the father started to bang on the door of the apartment. The mother then called the police at her child's urging, according to the mother.

[165] Constable Kinghorn testified that he and his colleague spoke to both the mother and the child. He observed the child to be visibly upset. The child was very jumpy and very nervous. He testified that whenever the phone was going off, the child would jump and appeared very concerned that her father would return to the apartment after the police had left. He testified that they spent a period of time calming the child down. They also spent some time speaking with the mother to get an understanding of the history.

[166] Constable Kinghorn testified that during the meeting with the mother and the child, he observed that the father had sent approximately seventeen text messages to the mother. According to his understanding of the history and court orders and the unwanted and constant nature of the contact, the father's behaviour could constitute criminal harassment.

[167] Both he and Constable Young were in uniform and stayed at the apartment for approximately 45 minutes. He also testified that he observed the mother to very nervous. She was pacing a lot and seemed to be on edge. They were able to calm the mother down and offer her some advice.

[168] Constable Kinghorn testified that he contacted the father by phone and cautioned him regarding following court orders and that criminal harassment was a possible charge if the behaviour continues. He discussed alternate means of communication such as My Family Wizard. He felt that the father understood the caution that he had given to him and the father advised him that he would be returning to court to pursue other options.

[169] In cross-examination, Constable Kinghorn did not recall speaking to Mr. Dalfen previously or working closely with a child protection worker known as Ann Rose. He testified that he works with many different child protection workers and did not recall the name, although it was entirely possible that they had previous contact.

[170] Constable Kinghorn also recalled telling Mr. Dalfen that if he continued to call the mother, it's going to be construed as criminal harassment and at that point in the conversation, Mr. Dalfen told him to go "F..ck himself" and terminated the call.

Ms Devra Igre, Child Protection Worker Assigned to Investigate the July 24 Summer Camp Incident

[171] Ms Igre was the child protection worker at JFCS assigned to investigate the July 2014 summer camp incident.

[172] Ms Igre testified that she was assigned to conduct an investigation after an intake worker received a call from a staff person at the summer camp where Lily Reesy was attending. According to the staff person at the camp, a situation had occurred at pick up time in which the child's father had attended to pick up the child. Due to a miscommunication in that the bus monitor and driver had not been advised that the father was picking up the child, the child was not released to her father.

[173] According to Ms Igre, it was reported by camp staff that the father became increasingly agitated and the situation evolved to a point where the father began screaming, using profanities and pounding on the bus, demanding the child to be released. The child was eventually released after the mother was contacted by telephone and confirmed that the father had permission to take the child.

[174] Ms Igre testified that as part of her investigation, she interviewed collaterals, two staff persons from the summer camp, and Joanna Seidel, the child's therapist at the time. She also interviewed the mother, the child and the father on two occasions.

[175] Ms Igre stated that she interviewed the child at the mother's home privately. Unfortunately, despite the Court's direction and suggestion, a voir dire was not conducted regarding the admissibility of the child's hearsay statements to the worker. These statements were therefore not elicited during Ms Igre's evidence nor admitted.

[176] The court did hear that Lily Reesy called the worker and left a voice mail message on her direct line from the mother's home which stated "I am scared to talk to my Dad and I don't know why." This statement may have been a 'state of mind' exception to the hearsay rule, however, when asked by Mr. Dalfen, the worker could not comment on whether it was possible that the mother had coached the child to make that phone call to her and leave the message. She did not know where the child was when she made the phone call, how the child made the phone call and whether the mother was present when she made the phone call. She was also not aware that in the past, another child protection worker had concerns that the child may have been coached by the mother, nor had she read the OCL report.

[177] However, Ms Igre's case notes regarding her interview with the father were admitted under the hearsay exception as an admission against interest by a party. The case notes were prepared contemporaneously by Ms Igre, in accordance with her professional duty and had not been amended or edited subsequent to recording. Further, Mr. Dalfen did not dispute the accuracy of these statements in his cross-examination and in fact admitted to almost all of the statements.

[178] Ms Igre testified that in her interview with the father, he told the worker that he had been picking up the child from the camp for years and did not understand what happened. He told his daughter to come to the front of the bus and he did not understand why the camp counsellors would not even let her move. The father told Ms Igre, "What is this, Nazi f..king Germany?"

[179] Based on Ms Igre's evidence, the father became very angry when she told him that the agency was involved because he had exposed the child to a fight between himself and the camp staff. According to her case notes, the father stated to Ms Igre, "Why does my daughter have to remain in her seat? Why should I have to stand there and wait for my daughter? ..I am f..king pissed off because you guys are f..king pieces of shit. You guys are dirty motherf..kers. F…ck you all. You have no right to speak to my daughter." Mr. Dalfen continued swearing so Ms Igre terminated the call.

[180] In a further interview with the father, Ms Igre testified that the father told her in a telephone call, "If I feel my daughter is threatened, I absolutely will bang on the door" and continued swearing at her and making further verbally abusive statements.

[181] Ms Igre testified that based on her interviews with the mother, the father, the child and the collaterals involved, she verified that the incident as described by the camp staff occurred. She prepared a letter stating that "the Society will be verifying that the incident did occur at the camp. Following this investigation, the file has been closed." Ms Igre also testified that a Family Risk assessment was completed which identified that the child was exposed to a high level of risk of conflict.

[182] Ms Igre testified that the Society closed its file after this investigation because the child was engaged in therapy with a child therapist, the mother had multiple supports and the summer camp would not allow the father back onto the camp property. The agency also referred the mother to the "Here to Help Program" which she described as a program for mothers and children who have been exposed to domestic violence.

[183] In cross-examination, Ms Igre acknowledged that when she contacted the child's therapist, Joanna Seidel, she did not identify any child protection concerns. She further acknowledged that the only children involved, other than Lily Reesy, were the two teenage counsellors on the bus. All of the other children had been picked up by their parents. However, it was not disputed that Lily Reesy was exposed to the confrontation as were the two teenage camp counsellors on the bus.

[184] Ms Igre testified that the family had been involved with the family on approximately three other time periods. She was not aware that a previous JFCS worker, Jean Chodos, had concerns that the mother was coaching the child.

Ms Michelle Cukier, Child Protection Worker Assigned in May of 2015 per Justice Cohen's Direction

[185] Ms Cukier is a family service worker with Jewish Family and Child Services. In May of 2015, she was assigned to conduct a risk and safety assessment of the child after the agency received a referral from Justice Cohen during the custody and access proceedings regarding possible child protection concerns arising from the child's exposure to the conflict between her parents.

[186] Ms Cukier testified that on May 1, 2015, Justice Cohen had requested that the agency attend at court in relation to the parties' custody and access matter. The mother had brought an urgent motion to restrict the father's access. Justice Cohen indicated that she believed that this case had all the markers of a high conflict. At this point, the court was concerned that the high conflict had crossed the line into child protection.

[187] Ms Cukier testified that it was her understanding that she was investigating the child's risk of emotional harm due to the custody and access conflict between the parents.

[188] Ms Cukier testified that she commenced her investigation shortly thereafter. She interviewed the child in person and both parents. She also interviewed numerous collaterals, including the child's therapist at the time, Susan Murrel-Pritchard, the OCL clinical investigator, Zaria Duncan, the child's school, Associated Hebrew at the time, including the two of the child's teachers. She understood that the OCL investigation of custody and access sues was being put on hold as a result of the child protection investigation.

[189] Ms Cukier testified that during her interviews with Lily Reesy, the child initially refused to speak to her. Lily Reesy would not disclose any child protection issues regarding either parent. She testified that it was clear that Lily Reesy did not want to speak to her. Ms Cukier testified that she tried to speak to Lily Reesy about specific issues but the child appeared frustrated and would not talk to her.

[190] Ms Cukier testified that in order for Lily Reesy to talk to her, they had to have a 'hula hoop' contest, which she did. However, Lily Reesy continued to refuse to speak to her about a number of issues.

[191] Ms Cukier testified that the mother was very concerned for the child and very concerned that the child is being forced to "keep secrets of what happens with Dad". The mother was also very concerned about the father's drug use and his choice of friends.

[192] Ms Cukier testified that the father expressed serious concerns about the mother's mental health and a number of inappropriate caregivers that the mother leaves the child with, including a number of recovering drug addicts that she has met thought her NA programs.

[193] Ms Cukier could not confirm any of the concerns, although she did caution the mother about leaving Lily Reesy with inappropriate caregivers. She also testified that the child was very hesitant in speaking to her and making any disclosures regarding either parent.

[194] According to Ms Cukier, Lily Reesy seemed happy with both parents and expressed that she likes to spend time with both parents. She expressed feeling comfortable in speaking to both parents if there were problems. Ms Cukier further observed that the child did not seem fearful of either parent and that she did not express fear of either parent.

[195] Ms Cukier testified that based on her investigation, the Society found that the child protection concerns of a risk of emotional harm to the child due to the significant conflict between the parents over custody was verified.

[196] However, despite the outcome, the society concluded that it would close its file because according to Ms Cukier, it was the agency's feeling that it was providing the parents with "another venue to fight in and create more conflict". Ms Cukier explained that in meeting with the child, it was very evident that she had spoken to a lot of professionals and there was a concern that the Society would be another venue for the parents to create conflict.

[197] Ms Cukier testified that given the other professionals very involved, including the school, the OCL investigator, Lily Reesy's therapist, it would not be beneficial to Lily Reesy for the Society to remain involved.

[198] Ms Cukier testified that a very strong caution to the parents with some recommendations was the best course of action for this child. The Society recommended that both parents attend a high conflict worship and to contact their intake department for other voluntary services. The Society also cautioned that if further information came in that meets their criteria, then they would re-open the file.

[199] Ms Cukier testified that to the best of her knowledge, neither parent attended a high conflict workshop after the investigation was closed.

[200] Ms Cukier testified that after she prepared her report, the father called her and advised her that he was not satisfied with the outcome. The father began to yell at her and she was unable to get a word in. According to Ms Cukier, the father stated that he did not think that JFCS did a thorough enough investigation and he will be placing a complaint against them. Ms Cukier described the father as yelling very loud.

[201] Ms Cukier testified that she cautioned the father and told him that "yelling doesn't help the situation" and that "he places Lily in the middle of arguments, helps no one".

Dr. Erin Mantis, Mother's Psychologist

[202] Dr. Mantis is a clinical psychologist working primarily in addictions and mental health. She has been a clinical psychologist for approximately fourteen years. She runs a private practice within the clinical setting with other service providers. She obtained her Dr. of psychology from the University of Chicago and is a registered psychologist in Ontario.

[203] Dr. Mantis started providing counseling to Ms. Neger at the end of July 2013. Dr. Mantis testified that Ms. Neger was coming right out of her rehabilitation treatment program into her care. She was referred by another member of her group practice. Dr. Mantis has been providing treatment to Ms. Neger on a weekly basis since that time.

[204] Dr. Mantis was not qualified to give expert opinion evidence. However the court permitted her testimony as a "participant witness" who provided therapy and treatment for the mother.

[205] Dr. Mantis testified that generally she and the mother had individual or private sessions but she also conducted "case management meetings" in which she, Ms. Neger and Ms Neger's life coach, her brother-in-law, father and other family members and other service providers for Ms. Neger would meet to discuss how the mother is doing and to determine what kinds of support the mother will need going forward.

[206] The goals of these case management meetings were to assist Ms. Neger to reach emotional and physical independence. During those meetings the group created tasks and developed an action plan moving forward. The last case management meeting occurred in 2015.

[207] Dr. Mantis testified that Ms. Neger has progressed very well and has become quite independent since 2014. The case management meetings have not been necessary for approximately two years.

[208] Dr. Mantis described the counseling that she provides implements cognitive behavioral therapy, 'mindfulness' and trauma-based work to assist her in creating safety for the mother and to keep her focused on the things that she needs to do to be the parent she needs to be and to focus on her own growth and development.

[209] Dr. Mantis testified that Ms. Neger has been very successful at internalizing mindfulness and the cognitive behavioral techniques that she needs for her current functioning and her parenting.

[210] Dr. Mantis testified that she assists Ms. Neger in using cognitive behavioral therapy to address a difficult situation that is upsetting her. She testified that they try to look at the story of what has happened, and determine if Ms Neger is "catastrophizing". When asked to explain, Dr. Mantis defined catastrophizing as the mother making the situation worse in her head than it actually is, by telling herself the "more extreme story that may not be reality-based".

[211] Dr. Mantis explained that she assists the mother in focusing her on reality, evidence-based thinking, to look at the actual outcomes that could happen and how the mother can behaviorally follow through on the plan that will take her forward rather than moving her back.

[212] Dr. Mantis gave a number of examples of specific sessions in which Ms. Neger utilized all of the work that she has done in her treatment to address very upsetting situations, largely around the father. For example in August 2013, shortly after she returned from residential treatment, she was concerned at the time that Mr. Dalfen did not want to do mediation and did not want to go back to the original schedule which she wanted. The mother also expressed to Dr. Mantis that she was very concerned that her daughter did not have a bed in the father's home and that the father was an active addict.

[213] Dr. Mantis testified that the mother disclosed a history of stalking by the father and being physically and verbally violent with her. Ms. Neger also reported to her that she had to have restraining orders against Mr. Dalfen because of his addictions and abusive behaviors. She also reported that Mr. Dalfen has complicated her dating life in terms of the boyfriend being kidnapped and threatened with his life leading to their breakup. She also reported that she was very upset that Mr. Dalfen had gone into her home while she was at rehab and stolen court documents, personal property and money from her.

[214] Dr. Mantis testified that they worked on moving forward with her life and utilizing Cognitive Behavioural Therapy (CBT) to address her concerns. After her return from rehab, Ms. Neger reached out and connected with family and friends. She organized her apartment, she got groceries, she was adding walks to her routine for physical exercise, she was working on creating a budget for herself with her life coach and she was really working on self-reliance.

[215] Dr. Mantis testified that Ms. Neger celebrated her First Year medallion on May 21, 2014 which is her one year recovery. This was a very special occasion. She and her family members went to the NA meeting. Dr. Mantis described this as a bonding experience with her and her family.

[216] Dr. Mantis described Ms. Neger as anxious at times but that she uses the mindfulness technique to calm her down. Ms. Neger has also reported to her that Lily Reesy has been clingy and demanding and argumentative at times and they have worked on assisting Ms. Neger in maintaining calm with Lily Reesy but also setting boundaries as a loving and firm parent.

[217] Dr. Mantis testified that Ms. Neger is quite concerned about Lily Reesy and the influence that the father has over her. The mother is very concerned that the father influences the child's perceptions of people and manipulates her to turn against her therapists and others. According to Dr. Mantis, Ms. Neger has noticed that the more involved that that the father has been in the child's life the more defensive and fearful the child has become.

[218] Dr. Mantis discussed a number of incidents that were very upsetting to Ms. Neger, including the April 2014 Passover weekend incident, the summer camp incident in July 2014 and the "secret" non-disclosed residence in April of 2015.

[219] Dr. Mantis testified that she wrote two letters in support of supervised access between the child and the father, so that Ms. Neger could use these in court proceedings against Mr. Dalfen. She recommended in both letters that the father have supervised access. Both of the letters that she prepared were used by Ms. Neger in support of the emergency motion restricting Mr. Dalfen's access and seeking a restraining order against him in September 2014.

[220] In cross-examination Dr. Mantis testified that she has never met Mr. Dalfen or the child and acknowledged that all of the information the she receives is based on Ms Neger's self-reporting. She has never spoken to anybody who knows Mr. Dalfen. She acknowledged that on August 21, 2014 she wrote a letter attached to Ms. Neger's affidavit supporting the mother's concerns and desire for the child's well-being to have supervised access until the father can prove increased emotional regulation of frustration tolerance.

[221] Dr. Mantis was aware of Ms. Neger's dysfunctional childhood and acknowledged that Ms. Neger had disclosed to her an abusive relationship with her father prior to her being evicted from the family home as a young woman. However, based on her therapeutic relationship with her, she did not agree that Ms. Neger was projecting her own dysfunctional childhood history on to Lily Reesy in a negative way at this point in time. She did suggest that Ms Neger married Mr. Dalfen because he mirrored her earlier relationship with her father.

[222] Dr. Mantis confirmed that during their sessions, Ms. Neger has spoken to her about her fears that Mr. Dalfen will kidnap their daughter and will harm her daughter.

[223] Dr. Mantis testified that based on Ms. Neger's reports to her regarding some of Mr. Dalfen's behavior where Lily Reesy has been involved, she has called the children's aid society on more than one occasion.

[224] Dr. Mantis also testified that she helped Ms. Neger find a new child therapist for Lily Reesy. She was aware that Ms. Seidel had been Lily's therapist for more than a year, however Ms. Neger expressed concerns about her. She also testified that when she attempted to contact Ms Seidel about her therapy with the child, Ms Seidel did not feel comfortable disclosing the content of the counseling sessions with her, nor was she comfortable preparing a report for court.

[225] It was Dr. Mantis' understanding that Ms Seidel would not provide a letter to Ms. Neger in support of her emergency motions in these court proceedings. Ms. Neger no longer felt comfortable with Ms. Seidel so referred her to Susan Murrel-Pritchard, a MSW student in her office. She became Lily's therapist and replaced Ms Seidel.

[226] Dr. Mantis testified that the mother was very disappointed and upset after the court reinstated the father's unsupervised access in September 2014 following the mother's emergency without notice motion.

[227] Dr. Mantis testified that the mother had reported to her that the child was quite terrified by the father and the mother was upset and confused that the access was reinstated. She described the mother as being "terrified" by the father pounding on her apartment door in April 2014 such that the mother placed a second bolt on the door. The mother had to coach Lily to approach the door because she was very afraid to open it.

[228] Dr. Mantis was unaware of the mother's history prior to her entering rehabilitation and how her addiction to pain medication impacted on her parenting. She's testified that during her two years of counseling with the mother she has no concerns about her parenting and described the tremendous progress that Ms. Neger has made over the past two years.

Ms Susan Murrel-Pritchard, Child's Therapist from January to May 2015

[229] Ms. Murrel-Pritchard is a Masters of Psychology student who is finishing her practicum. She will be obtaining her Masters of clinical psychology in the spring of 2016. Part of the program requires that she completes a 900 hour practicum. Lily Reesy was referred to her in January 2015 by Dr. Mantis as part of her practicum.

[230] Ms Murrel-Pritchard's first session with Lily Reesy was on January 14, 2015 and she finished her sessions with Lily Reesy on June 17, 2015. A voir dire was not conducted to determine the admissibility of Lily's out-of-court statements to Ms. Murrel-Pritchard in this trial, despite the court's suggestion to do so. These statements were therefore not elicited or admitted into evidence.

[231] Ms. Murrel-Pritchard testified that she saw Lily Reesy as part of her practicum and that her work with Lily Reesy (whom she referred to as Lily throughout) was supervised by a psychologist other than Dr. Mantis.

[232] Ms Murrel-Pritchard had twenty three sessions with Lily Reesy. She engaged in play therapy with her. Ms. Murrel-Pritchard typically works with adolescents and adults so Lily Reesy was one of her first child patients. She was not aware of the nature of Lily Reesy's previous child therapy nor did she speak to Ms Seidel, her previous therapist.

[233] Ms. Murrel-Pritchard described Lily Reesy as very guarded with her and that she did not wish to express feelings with her. At times she became Lily Reesy became angry with her and agitated. At times she became more talkative and would have fun with her when they had general conversations about school, friends or dancing. However Ms. Murrel-Pritchard testified that when she attempted to explore feelings with Lily Reesy, she observed her to shut down and to withdraw and become very defensive.

[234] Ms. Murrel-Pritchard testified that Ms. Neger brought Lily Reesy to every one of the sessions. Ms Neger usually would sit in the waiting room while Ms. Murrel-Pritchard was meeting with Lily and then Lily would come back out again to join her mother. On occasion Ms Murrel-Pritchard did meet with Lily Reesy and her mother together.

[235] Ms. Murrel-Pritchard confirmed that in May of 2015, she prepared an affidavit in these court proceedings in support of Ms. Neger's emergency motion to suspend the father's access. She testified that it was brought to her attention that the mother had called advising that Lily Reesy had "a secret" and that she was not disclosing to her mother. Apparently, Lily Reesy was hiding from her mother where she was staying with her father during her weekend access. Ms Neger mother arranged for Lily Reesy to have a separate session with Ms. Murrel-Pritchard to discuss this.

[236] Ms Murrel-Pritchard testified that she had a special session with Lily Reesy where she specifically addressed the mother's concerns. When Lily Reesy came in, Ms. Murrel-Pritchard advised her that it would be "different tonight because they need to talk about some things". The mother was present for this session. Ms. Murrel-Pritchard talk to Lily Reesy about how important it was for her mother to know her dad's address for example, if there was an emergency her mother and Lily Reesy would need to know the address to contact her.

[237] Ms. Murrel-Pritchard testified that Lily Reesy became very defensive and refused to talk. She got up and turned towards the wall at one point and she started singing as if to remove herself from the conversation or the setting. She described Lily Reesy as being very angry and upset.

[238] After this session, based on the information that she received from the mother that the child may be staying at an undisclosed address with her father, Ms. Murrel-Pritchard called the OCL and the Children's Aid Society to report her concerns.

[239] Ms Murrel-Pritchard also confirmed that she understood that she was preparing a sworn affidavit for the mother in support of her emergency motion to suspend the father's access as a result of the information that the child may be spending time with the father at a different address than what was disclosed.

[240] Ms. Murrel-Pritchard testified that she also telephoned Mr. Dalfen to advise him about the discussion with Lily regarding her safety. She testified that during their telephone conversation, the father started to become very agitated. He began to accuse her of having been manipulated "by a sick woman".

[241] Ms. Murrel-Pritchard took detailed notes of what Mr. Dalfen said to her. He told her that she was "an idiot", that she was "incompetent", that she was "manipulating" the child, that she was "sick like her mother", that she was "a bitch" and that she "deserved to die" and that she was "useless" and "pathetic". He told her that she was "damaging" the child and that she should go "F..k herself because she's not worth shit".

[242] Ms. Murrel-Pritchard testified that this went on for approximately ten to fifteen minutes at which time she had to terminate the call because it was abusive and he was not listening to her.

[243] Ms. Murrel-Pritchard also acknowledged that she had an earlier conversation in February 2015 with the father to explain her role. And at that time, the conversation was appropriate. She explained to Mr. Dalfen that she was providing a place for Lily to come to be herself, to relax, to share whatever she wanted and to provide her a place and a feeling that she said that she had someone that she could talk to that was outside of things that went on between her mother and father. She described Mr. Dalfen at that time as being very supportive and quite happy that was her role with Lily Reesy and he thought that would be good for her.

[244] In cross-examination, Ms. Murrel-Pritchard testified that she was unaware that the OCL clinical investigator Zaria Duncan had actually visited the father and the child and conducted a home visit at the address that was supposed to be a secret. She was also unaware that the father had sent an email to Ms. Neger on April 24, 2015 advising her that he had moved from his previous address. Ms. Murrel-Pritchard testified that she did speak to the OCL about her home visit with the father and the child, but the OCL did not specifically tell her the address.

[245] Ms Murrel-Pritchard confirmed that her last session with Lily Reesy was on June 15, 2015 because Lily Reesy did not want to return to counselling with her.

Sol Neger, Paternal Grandfather

[246] Mr. Neger is Eliza Neger's father. He testified that during Ms. Neger's relationship with Mr. Dalfen, his relationship with his daughter was very strained and limited. He testified that it was "no secret" that he was not happy about her marriage to Mr. Dalfen. He found Mr. Dalfen to be very aggressive.

[247] He testified that he actually saw Mr. Dalfen be physically aggressive with his daughter and with his son on two separate occasions. He described seeing Mr. Dalfen push his daughter and actually strike her in front of his home before their marriage. He also discovered before the marriage that Mr. Dalfen have been incarcerated in the United States for three years for fraud. During the marriage, he also described seeing his daughter coming home to get food because there was literally nothing to eat in her home. He testified that Mr. Dalfen was not a good provider.

[248] Mr. Neger described his relationship with his daughter as now very solid and very loving. They often spend time together and he spends a lot of time with his grand-daughter. He testified that he is very proud of his daughter. She is a good mother and as a person she has grown quite a bit. He acknowledged that their relationship was strained in the past and that they went through some "tough times."

[249] He testified that a major part of the development in their relationship is the mother's work in improving herself. He acknowledges that his daughter had gone through a difficult period but after she returned from "rehab" in Florida she has worked "incredibly hard" in creating a good life for herself and Lily Reesy.

[250] Mr. Neger testified that his daughter has been drug free since May 2013. He attended her two-year anniversary medallion of being drug-free in May of 2015 at Narcotics Anonymous. He described it as an amazing evening. Many family members were there. He testified that "to everyone's surprise", Lily Reesy spoke. He described Lily Reesy speaking in front of a room of approximately sixty or seventy people about how much she loved her mother and how proud she was of her mother.

[251] It was evident that Mr. Neger was extremely proud of his grand-daughter. He described this as "amazing" to see a ten year old child be able to do this and it demonstrated how strong her relationship was with her mother. He described the standing ovation that Lily Reesy received at the end of her speech and that some people were moved to tears. Lily Reesy was also very proud of herself.

[252] Mr. Neger testified that his daughter is a sponsor for other people in N.A. and that she is very active in her recovering recovery and treatment in helping others. He is very proud of her.

[253] In cross-examination, Mr. Neger acknowledged that in 2003, his daughter filed a restraining order against him at the Finch courthouse in Toronto. Mr. Neger testified that he retained a lawyer to challenge the restraining order.. He denied being physically abusive towards his daughter in the past and testified that the numerous police reports that the numerous police reports that his daughter had filed against him were false. He also denied that the relationship between he and his wife broke down because of his verbal and physical abuse.

[254] Ms Neger also denied speaking to people in the community to try to get information about Mr. Dalfen that would make him look bad in court. He did acknowledge having email contact with Mr. Dalfen's former employer or work colleague over that past few months to obtain a copy of the law suit that he had filed against Mr. Dalfen. A copy of the law suit was in the mother's Document Brief.

[255] Mr. Neger explained that the court document he obtained demonstrated that Mr. Dalfen had some access to funds despite paying no child support to his daughter in eight years. He also acknowledged telling the father's former employer that his daughter is getting no child support from Mr. Dalfen and that he needed his help.

Felix Vikhman, Mother's Friend

[256] Mr. Vikhman is a close personal friend of Ms Neger. He is registered psychotherapist and addictions counsellor. Although he was not qualified as an expert in this trial, nor was he qualified to given opinion evidence, he testified that he is considered an expert in the addiction field and is often a guest lecturer at Ryerson University and others. He is also highly involved in an organization called JACS, a Jewish organization for recovering addicts, alcoholics and family members. He has worked as volunteer for JACS for approximately nine years.

[257] His testimony in this trial was limited to his observations based on his close friendship with Ms Neger.

[258] Mr. Vikhman met Ms Neger when she first returned from treatment and she was doing volunteer work for JACS. They are both members of Twelve Step Fellowships and knew each other from meetings. They got to know each other better after May of 2014, when Ms Neger had obtained her one year of sobriety. Their friendship started to grow and became closer after that time. Ms Neger's "clean date" is May 9 th 2013.

[259] According to Mr. Vikhman, Ms Neger has been sober and drug free since May 9, 2013. Since that time, he testified that Ms Neger has become one of his closest and dearest friends. They also have a professional relationship in that Mr. Vikhman will refer some of his clients to her. Ms Neger will go to their homes to provide psychosocial rehabilitation.

[260] Ms Vikhman testified that Ms Neger has done everything right to maintain her sobriety and recovery. She has built a wonderful network of people around her, she always has a sponsor, she is in constant communication with her supports and she attends a lot of NA meetings. She is a sponsor to others. He and Ms Neger speak almost daily and Mr. Vikhman takes Ms Neger and Lily Reesy out to dinner at least twice a month.

[261] Mr. Vikhman has met Lily Reesy many times. He described Lily Reesy as "an incredibly playful girl". She loves the playful attention. She is a gymnast she will often show off her gymnastics to him. She is fun and healthy and engaged. She presents as a very healthy ten year old girl.

[262] Mr. Vikhman described Ms Neger's relationship with Lily Reesy as very close and a very normal loving mother daughter relationship. The home was always clean and well stocked with food. Lily has her own room and a pet turtle. According to Mr. Vikhman, it is a high functioning home.

[263] Mr. Vikhman testified that he has seem some of the emails that Ms. Neger has received from Mr. Dalfen. He described the emails that he has reviewed as abusive. He is also been in the room when Lily Reesy is on the phone with her mother during a visit with her father. He has heard Mr. Dalfen's voice in the background yelling at Ms Neger and describing her to be a bad mother in front of Lily Reesy.

[264] Mr. Vikhman is aware of the stressful nature of these court proceedings on Ms Neger. He is aware that there have been ongoing disputes about where Lily Reesy will be picked up from. There are numerous emails and texts regarding pickup and drop-off. He has been present when Lily Reesy often calls through "Face Time" regarding the pickup and drop-off and he can hear Mr. Dalfen yelling in the background.

[265] Mr. Vikhman testified that in the beginning of February of 2016, Ms. Neger and he went to Mexico for a period of seven days. Lily remained in Ontario. He testified that the resort had Wi-Fi so Lily Reesy communicated with her mother approximately five to eight times every day.

[266] Lily Reesy was staying with family although visiting her father during this period. He testified that Lily appeared very scared and anxious while her mother was away and that she seemed afraid that her father would find out where she was staying while her mother was in Mexico.

[267] Mr. Vikhman has also been present at Ms. Neger's home when Lily has returned from an access visit with her father. He described Lily Reesy as being very excited and playful and happy after her visit with her father. She described many of the fun things that they did to gather. She clearly had a good time with her father during this access visit.

[268] What also impressed Mr. Vikhman is that on this particular day, prior to the access visit, Mr. Dalfen had called the police to attend at Ms. Neger's home because he accused her of withholding Lily Reesy from access. It was a very stressful experience for Ms. Neger, despite the difficulty and stress that she experienced as a result of Mr. Dalfen's behavior, he observed Ms. Neger to immediately put all of that aside and become completely present for Lily Reesy. He was impressed with how she was able to put her own feelings aside and not to bring her daughter into the middle of the conflict.

[269] Mr. Vikhman acknowledged that he has never been directly in the middle of a dispute between the parties. He acknowledged that the information he receives is from Miss Neger. He is also never formally been introduced to Mr. Dalfen. However, he testified that he has been present on numerous occasions when Mr. Dalfen has canceled his access. He has observed Ms. Neger "countless times" to have to "scramble" to find babysitting or other arrangements for Lily Reesy when Mr. Dalfen cancels.

[270] Mr. Vikhman testified when they planned their holiday to Mexico, the arrangement was that Lily Reesy would stay with Mr. Dalfen would through part of that trip to Mexico. He testified that Mr. Dalfen once again canceled at the last minute and left them scrambling to find care for Lily Reesy.

[271] In cross-examination, Mr. Vikhman confirmed that some younger members of JACS who are recovering addicts, have babysat Lily Reesy for Ms. Neger while she is attending her Tuesday night group at Narcotics Anonymous. However he explained that there is a vetting process and he does not have a problem with any of the people that Ms. Neger has ever chosen to look after Lily. He testified that he cares deeply for Lily Reesy and that he trusts Ms. Neger's judgment in this regard completely.

[272] When asked what would happen if Ms. Neger did not have such a strong support network around her and how long this needs to be in place, Mr. Vikhman replied that Ms. Neger will continue with her supports. Her needs will change as her recovery changes and her support system will be appropriate to whatever her needs are at that time. Mr. Vikhman has full confidence in Ms. Neger's continuing recovery given her track record.

5.3 The Father's Evidence and His Witnesses

Evidence of Steven Dalfen

[273] Mr. Dalfen is 41 years old. He was born in Montréal, Québec but lived in the United States since he was one year old with his parents and family. Mr. Dalfen graduated from high school and then went to Israel for two years to study Jewish law.

[274] At the age of approximately 22 years old, Mr. Dalfen was deported from the United States after serving a 27 month prison sentence for credit card fraud with a number of other individuals. Mr. Dalfen testified that he pled guilty to these charges. Although he had lived in the United States for most of his life, he had never obtained US citizenship so he was deported immediately after completing his sentence.

[275] After his deportation, Mr. Dalfen moved back to Montréal and stayed with family before moving to Toronto in 1998 to live with his maternal aunt. He has lived in Toronto since that time. His parents continue to reside in the United States.

[276] Mr. Dalfen appears to have been largely self-employed as an independent contractor in sales related work for a number of years. Mr. Dalfen had been employed at Ontario Wholesale Energy in a sales related position from March to October 2015.

[277] However, at the time of this trial, Mr. Dalfen was unemployed and not apparently working. He testified that he had been laid off from his position at Ontario Wholesale Energy in October of 2015. He testified that he was unable to find employment after October of 2015 because he dislocated his shoulder in December 2015, requiring treatment. He also testified that subsequently, he had been largely preparing for this trial and unable to look for further employment.

[278] Prior to his employment at Ontario Wholesale Energy, Mr. Dalfen testified that he working as an independent contractor for a company selling medical devices to the United States. Mr. Dalfen testified that this company had recently sued him for allegedly improperly taking a draw off future commissions after he had been advanced significant sums of money by the company. At the time of this trial, the lawsuit was pending.

[279] Mr. Dalfen believed that Ms. Neger's father was somehow involved in the commencement of this lawsuit because he learned that Mr. Neger had contacted the company "looking for dirt" on him for this trial. He further believed that Mr. Neger spread false rumors about him to the company regarding unpaid child support.

[280] Mr. Dalfen testified that he also had his own company for a period of time which was involved in the distribution and sale of hotel products, specifically hotel room safes. He also worked in sales as an independent contractor with other companies.

[281] Mr. Dalfen is currently living at the Monte Casino Hotel in Toronto. He has been living there since April 24, 2015. He pays $1,820.00 per month for the hotel suite. He testified that his parents and other family members help him pay his rent and groceries while he is unemployed.

[282] Mr. Dalfen testified that as soon as this trial is over, he plans to obtain a two bedroom apartment close to Lily Reesy's school so that he can exercise midweek overnight access and alternating weekend access in the shared parenting arrangement that he is seeking.

[283] Prior to living at the Monte Casino Hotel, Mr. Dalfen testified that he was living in a two bedroom apartment with his girlfriend Simona and her daughter in the Etobicoke area of Toronto. He lived with Simona from June 2014 until December 2014 although he testified that his mail still goes to that address. In 2013, prior to moving in with Simona, he lived for a period of time with a close family friend on Hotspur Road in Toronto.

[284] Mr. Dalfen testified that he and Simona are still "sort of together" and have a very close relationship. He still considers her his girlfriend although he is not interested in marriage. He did not like living in Etobicoke because it was too far away from Lily Reesy and it was difficult for him to facilitate access. He also felt it was too far from downtown and job related opportunities.

[285] Mr. Dalfen testified that he and Simona continue to see each other and that her daughter and Lily Reesy are very close in age and good friends. He testified that he and Lily Reesy spend time with Simona and her daughter approximately one weekend per month.

[286] Mr. Dalfen cannot drive because his driver's license was suspended for unpaid fines and child support arrears. He testified that he required three buses to get back to Simona's apartment after picking up Lily Reesy for access visits.

[287] Mr. Dalfen testified that in December 2014, in order to be closer to Lily Reesy and to facilitate his mid-week evening access with her, he moved to an apartment on Erskine Avenue near Yonge and Eglinton. This was a bachelor apartment rented by Lisa Rapkin. Mr. Dalfen testified that Ms. Rapkin was struggling with addictions and other issues and that she would call him frequently for help. She offered her vacant apartment to him to stay at whenever he needed it in exchange for looking after it.

[288] Mr. Dalfen testified that he sometimes stayed there during weekends with Lily Reesy so that they did not have long distances to travel. He also continued to stay at Simona's place. He testified that he only took Lily Reesy to this apartment on approximately three or four weekends during the period that they stayed there between January and April 2015.

[289] Contrary to Ms. Neger's testimony, Mr. Dalfen testified that he did tell her that he was sometimes staying at the Erskine apartment with Lily Reesy although he acknowledged that he never told her in writing. He believed that Ms. Neger knew that he was staying there with Lily Reesy because the OCL investigator Ms. Zaria Duncan had conducted a home visit with him and Lily Reesy at the apartment in March 2015. Further, on April 15, 2015, four months after he moved into the apartment, he wrote to Ms. Neger's lawyer to advise him that he was no longer living at his girlfriend's apartment in Etobicoke.

[290] Mr. Dalfen vigorously denied telling Lily Reesy that this was a secret to be kept from Ms. Neger. He testified that when Lily Reesy first came to the Erskine Avenue apartment, she told her mother about the swimming pool and about getting candy at "Sugar Mountain" which is not available in Etobicoke so Ms. Neger must have known that they were living there.

[291] Mr. Dalfen left the Erskine Avenue apartment on April 24, 2015 and moved to the Monte Casino hotel. He denied all of the allegations of Ms. Neger, as reported to her by Ms. Rapkin, who did not testify in this trial.

The Parties' Relationship

[292] Mr. Dalfen testified that when he met Ms. Neger at the age of 18 she was very unwell. He testified that she had a long history of mental illness, including personality disorders and depression, which began in her teenage years. He testified that she was suicidal, had received electroshock therapy, and had been in and out of psychiatric institutions.

[293] Mr. Dalfen testified that Ms. Neger told him that her father had kicked her out of the family home and that he was very abusive towards her, both physically and emotionally. Mr. Dalfen testified that he helped Ms Neger obtain restraining orders against her father.

[294] He stated that when he met her, she was estranged from her family and that he was the only person that was helping her during their marriage. He testified that he had to deal with her "many times" trying to commit suicide and that he took her to many hospitals. He described helping to her wean her off much of her antidepressant medication after she became pregnant with Lily Reesy. Mr. Dalfen believes that he saved Ms. Neger's life by helping her get off drugs when they were together.

[295] Mr. Dalfen testified that during the marriage he was the primary caregiver for Lily Reesy. He described Ms. Neger as a "very poor and neglectful parent" during that time. He stated that she had difficulty sleeping so she would sleep throughout the day. When Lily Reesy was an infant, Ms Neger slept with earplugs so that Mr. Dalfen was the only parent to wake and feed and comfort Lily Reesy during the night.

[296] Mr. Dalfen denied ever physically abusing Ms. Neger but he did admit to being frustrated with her poor parenting and with her inability to help when Lily Reesy was crying or needed attention.

[297] Mr. Dalfen testified that the parties went to marriage counseling with Dr. Caro prior to their separation because they were having great difficulties. According to Mr. Dalfen, that it was he who chose to leave the marriage in 2008.

[298] Mr. Dalfen gave evidence that after they separated, Ms. Neger greatly restricted his access to Lily Reesy. He acknowledged that they were working with rabbis in the community and that he would not grant her a Jewish Ghet or divorce unless she agreed to a shared parenting arrangement. He acknowledged being very upset when she abandoned negotiations and commenced court proceedings with false allegations against him.

[299] He testified that when Ms Neger first commenced proceedings, she blatantly lied in her affidavit that that he had threatened to kidnap Lily Reesy and that he was stalking her. He testified that on each occasion that mother has commenced court proceedings she has started her case with an emergency motion without notice to him. She has obtained restraining orders against him based on lies and distortions due to her "mental illness" and "pathology".

[300] Mr. Dalfen testified that when the parties agreed to the Final 2010 Order, he was not represented by counsel and he did not agree to many of the provisions of the Final Order. He testified that he was concerned that the Final Order allowed Ms. Neger to have control over cutting off his access and that she would manipulate the Final Order in her favor. He believed that he was misled by Ms Neger's lawyer and Justice Cohen when he agreed to the Order.

First Motion to Change

[301] Mr. Dalfen testified that the mother unilaterally cut off all of his access in October 2010 using the cancellation clause in the 2010 order, which permits the mother to suspend access should he miss three consecutive access visits. He vehemently denied canceling or missing three consecutive access visits and testified that he only missed three visits in nine months at the time mother stopped his access.

[302] Mr. Dalfen admitted that in October of 2010, after Ms Neger's lawyer sent a letter to the school directing them not to release Lily Reesy to him for access, he did remove Lily Reesy from school property against school official's directions. He admits to pulling Lily Reesy over the fence on the school property and taking her to a shopping mall close by. He denies grabbing her.

[303] Mr. Dalfen testified that he immediately called the police and waited with Lily Reesy until police arrived so that he could explain the situation. He testified that the police did not charge him because he had not violated the Court Order. He believed that Lily Reesy was not upset by the situation nor frightened or anxious by the police presence. Lily Reesy was approximately five and one-half years old at the time.

[304] Mr. Dalfen testified that the mother commenced her first motion to change the Final 2010 order based on false allegations of kidnapping and abuse. He acknowledges that after she obtained the first emergency order, he would not agree to any supervised access at a supervised access center.

[305] Mr. Dalfen further acknowledged that he did not see Lily Reesy for a period of almost of approximately twelve months, from October 2010 to September of 2011, during the completion of the OCL investigation and report, although he exercised SKYPE contact and participated in the OCL observation visits.

[306] Mr. Dalfen testified that he would never agree to supervised access at a supervised access centre. He strongly believes that supervised access is not in Lily Reesy's best interests as it gives her the wrong message, especially at that time when there was no evidence that he needed to have supervised access and that is was all based on the mother's lies and distortions.

[307] Mr. Dalfen further admitted that he would only agree to Skype access which is what Justice Cohen ordered, at his request. However, he testified that the mother frequently interfered, cancelled or restricted his SKYPE access.

[308] Mr. Dalfen did not believe that his refusal to exercise supervised access at a supervised access centre was harmful to Lily. He does not regret this decision. He believed it would be more harmful for her to see him at a supervised access center as that it would send her the wrong message. He testified that supervised access will never be an option for him.

[309] Mr. Dalfen testified that notwithstanding the recommendations of the OCL that his unsupervised overnight access be reinstated immediately, the mother refused to agree to anything but supervised access at a supervised access center. In January of 2012, the mother finally agreed that he could exercise access through a mutually agreeable third party or family member, but again made this very difficult. The mother would only agree to his aunt, and family members or Ms Elaine Glatt.

[310] Mr. Dalfen admitted to being very frustrated and angry in court at this time. He brought a motion to implement the OCL recommendations on an interim basis pending trial. Justice Cohen would not reinstate his unsupervised access pending a trial because the mother would not consent and had filed a very lengthy Notice of Dispute of the Office of the Children's Lawyer's Report. The Notice of Dispute dated February 2, 2012 was filed as evidence at trial and it was 35 single-spaced pages in length.

[311] Mr. Dalfen he testified that in May of 2012, after a few months of exercising access to his daughter in the presence of his aunt and other family members, he received a phone call from Ms. Neger. According to Mr. Dalfen, Ms. Neger pleaded with him not to go through with the trial that had been scheduled for the fall of that year.

[312] According to Mr. Dalfen, Ms. Neger swore to him that she was willing to bypass the courts and not put any conditions on his access to Lily Reesy so long as he committed to not going through with the trial.

[313] Mr. Dalfen testified that he agreed to this as long as there was a mediator to assist in negotiating a parenting arrangement. They agreed upon Ms. Neger's aunt Sarah as a mediator. The parties started to negotiate their own custody and access arrangements and according to him, his access to Lily Reesy was greatly increased during this period and it was significantly more than the access that was provided for under the 2010 Order.

[314] On October 25, 2012, it is not disputed that both parties signed notices of withdrawals of the 2011 motion to change commenced by Ms. Neger. According to Mr. Dalfen, the mother was lying to the OCL and to the courts by not disclosing that she was sick with fibromyalgia and that she could not take care of Lily Reesy during this period.

Mr. Dalfen's Care for Lily Reesy in 2013

[315] Mr. Dalfen testified that after Ms. Neger's aunt started mediating, there were numerous phone conversations and emails between the parties and the aunt. Mr. Dalfen did not call Ms. Neger's aunt as a witness in this trial; however he did attempt to produce emails between he and Ms. Neger and the aunt.

[316] According to Mr. Dalfen, in January of 2013, Ms. Neger met with him and confided that she was very ill with fibromyalgia and that she needed help in caring for Lily Reesy going forward. Mr. Dalfen testified that Ms. Neger was very upset because she was not receiving help or support from her family during this very difficult time for her.

[317] Mr. Dalfen testified that from January 2013 until late April of 2013 when Ms. Neger entered into residential treatment, he was actively involved in caring for Lily Reesy because Ms. Neger was unable to parent her. He testified that he would often stay at Ms. Neger's home overnight at her request to help with Lily Reesy. On many occasions during the week he would get Lily Reesy ready for school in the morning, make her breakfast, take her to school and return her to Ms. Neger's home. He testified that he often took Ms. Neger to her numerous doctors' appointments at her request during this period as she was sometimes unable to walk.

[318] According to Mr. Dalfen, it was he who first noticed that Ms. Neger was overprescribed with medication. He testified that he observed over 200 medication bottles all over her room in early 2013. He stated that he was very nervous for Lily Reesy during this time as she was only six years old, given the pill bottles everywhere in the home and the fact that Ms Neger was sleeping for most of the day.

[319] With the assistance of Ms. Neger's aunt Sarah, Mr. Dalfen contacted Ms. Neger's sister and wealthy brother-in-law Akiva and asked him for financial help to get Ms Neger to treatment. Akiva agreed to help and arranged for Ms. Neger to attend treatment in Florida. Mr. Dalfen testified that he was actively involved in Ms Neger's treatment plan and that Ms. Neger and her family were very grateful for his help during this period and the care that he provided Lily Reesy. He testified that he had numerous discussions with her counsellors and with Ms Neger in Florida during this time.

[320] Mr. Dalfen testified that Lily/ Reesy lived with him in his apartment from April 2013 until July 2013 while Ms Neger was in treatment. He even arranged with the help of Akiva to have Ms Neger return overnight in May for a surprise birthday for Lily Reesy at his apartment before heading back to treatment.

[321] Mr. Dalfen vigorously denied that Ms. Neger's family sent Lily Reesy to summer camp because they were concerned about his parenting. According to Mr. Dalfen it was he who found the summer camp and suggested that the family pay for it because he thought it would be good for Lily Reesy.

[322] Mr. Dalfen denied living in Ms. Neger's apartment during this time, however he testified that Ms. Neger gave him her key as well as loaned him her car so that he could feed and clean the pet turtle tank, get things from the apartment for her and transport her to extracurricular activities. He also acknowledged going into the apartment to take clothing, linen and other articles for Lily Reesy. He denied stealing these items and testified that Ms. Neger permitted him to enter the apartment to obtain items that Lily Reesy might need.

[323] Mr. Dalfen testified that while driving Ms. Neger's car he discovered court documents including a private investigator's report prepared for Ms. Neger's brother in law which indicated that he was under surveillance during his access periods with Lily Reesy in February 2012.

[324] Mr. Dalfen expressed frustration and anger at Ms. Neger's refusal to acknowledge the help and support that he provided to her during this time and his extensive involvement in parenting Lily Reesy while Ms Neger was very ill. He testified that he could have easily applied for sole custody of Lily Reesy during this time because Ms. Neger was unable to parent. Instead, he assisted her in getting better by caring for Lily Reesy and supporting her treatment and rehabilitation.

[325] Mr. Dalfen testified that when Ms Neger accused him of stealing her car and things from her apartment and threatened to contact the police, he was very angry and never trusted her again.

[326] Mr. Dalfen acknowledged that upon Ms. Neger's return to Ontario after the completion of her treatment, Lily returned to her primary residence. However, he testified that he immediately began to have difficulties with arranging the parenting schedule.

[327] Mr. Dalfen did not agree that the parties should revert to the 2010 Final order upon Ms Neger's return. He testified that the 2010 final order had not been in place since 2012 and that he was spending much more time with Lily Reesy until Ms Neger started to restrict his time with the child.

[328] Upon her return, after many emails going back and forth between Mr. Dalfen and Ms Neger's Aunt, the Aunt advised that she was no longer willing to act as mediator between them. Mr. Dalfen described having great difficulty communicating directly with the mother during this period and that he learned that the mother had gone ahead and got doctors and therapists for Lily Reesy without telling him.

[329] Mr. Dalfen testified that he later found out that the mother was taking Lily Reesy to at least three different therapists and telling them that the child was stressed and needed help. He found out through the child that she was seeing at different therapists. When he was able to meet with one of the therapists, he learned that she had never been given a copy of the OCL Report.

[330] He testified that the mother told him nothing about any professionals involved in their daughter's life. He acknowledged that the conflict between them was increasing. He blamed the mother for not informing him of any of the decisions that she was making about their daughter and refusing to communicate with him and making it very difficult for him to speak to Lily Reesy. However, he also admitted to refusing to speak to the mother except through a mediator and by April of 2015, of refusing to communicate with her lawyer as well.

April 2014 Passover Incident

[331] Mr. Dalfen denies yelling at Lily Reesy during this incident and denies being responsible for the conflict that day. He admits to being verbally "aggressive" with P.C. Kinghorn later that day when he contacted him by telephone. As he put it, when someone calls me and tells me something in my daughter's name that is a lie and I know it's a lie..I do get aggressive yes."

[332] According to Mr. Dalfen, this incident occurred over the Passover weekend and he had made it clear to Lily Reesy that she needed to bring two good dresses that he had purchased for her because they were going to Passover dinner at his Aunt's home.

[333] Mr. Dalfen described Lily Reesy coming down from her mother's apartment to the car wearing dirty sneakers and with two old dresses that did not fit her. He told her to call her mother to come down and take her because he was not going to have her for the Passover holiday without proper clothing dresses. According to Mr. Dalfen, the mother refused. He then brought Lily Reesy back up to the mother's apartment and waited at the elevator as Lily Reesy ran to her mother's door.

[334] Mr. Dalfen testified that Lily Reesy started yelling at him from the apartment door but denies yelling at her. He states that he then went to the mother's door and "talked loudly telling Lily Reesy to get her clothing she needs especially the ones that [he] bought for her." There was no response so he left.

[335] According to Mr. Dalfen, it was the mother who was yelling and not him. Mr. Dalfen did admit to cancelling his access to Lily Reesy after this incident. He admits to sending the mother an email on April 20, 2014 that states "I WILL NOT CONTINUE WITH ACCESS UNTIL ALL OCL RECOMMENDATIONS ARE PUT IN A COURT ORDER…I WILL BE CANCELLING GYMNASTICS, TAEKWONDO AND REESY'S BIRTHDAY PARTY FOR MAY 4 TH . I WILL NOT BE ANSWERING PHONE CALLS FROM YOUR NUMBER SO IF REESY WANTS SHE CAN CALL ME ANYTIME JUST NOT FROM YOUR PHONE..YOU ARE FULLY RESPONSIBLE FOR ALL OF REESY UNTIL WE SQUARE THINGS UP IN COURT."

[336] Mr. Dalfen states that he cancelled his access after this incident because P.C. Kinghorn warned him he would be charged with harassment if he continued to call the mother. He testified that he agreed to reinstate access after a period of approximately two weeks because the child's therapist called him and persuaded him to reinstate his access.

July 2014 Summer Camp Incident

[337] Mr. Dalfen also denies yelling or pounding on the school bus door during this incident and demanding that Lily Reesy be delivered to him. He blames the mother entirely for this incident. He testified that if the mother had not forgotten to tell the camp that he was picking up Lily Reesy on that day, then the incident would not have happened.

[338] Mr. Dalfen testified that there were no other children around and that Lily Reesy was not traumatized. He stated that after waiting for a period of time, he knocked on the school bus door and told the staff to deliver Lily Reesy to him.

[339] Mr. Dalfen testified that this incident was not at all upsetting for Lily Reesy. He never saw any trauma in his daughter on that day. He disagreed with the Jewish Family and Child Services verification that the incident was traumatic for the child. He testified that the JFCS closed their file because they had no concerns going forward and that the entire JFCS investigation was manipulated and orchestrated by the mother.

[340] Mr. Dalfen admitted to being aggressive with Ms Devra Igra, the JFCS protection worker assigned to investigate the incident, during their conversations. When a copy of her case note recording their telephone calls was put to him, he acknowledged being very angry and aggressive and that he told her to "f..k off"; to go "f..k herself," and that she and the JFCS were "pieces of sh..t" and "dirty motherf…kers" and that Ms Igra was "a motherf..king bitch", among a number of other profanities.

Father's Cancellations of Access

[341] Mr. Dalfen initially denied cancelling his mid-week access and cancelling numerous weekends since early 2014, prior to this 2014 Motion to Change. However, he acknowledged that he did cancel his access after the April 2014 Passover incident. He further acknowledges that he cancelled some of this access after the July 2014 incident until he could speak to the JFCS worker. He further acknowledged that he had cancelled some weekend access.

[342] He admitted to cancelling all of the weekends in December of 2014 because of a back injury. He acknowledged cancelling both his 2014 Passover holiday (because Lily Reesy did not have the proper clothes) and his 2015 Passover holiday (because his Aunt was not available for Passover dinner). When numerous emails were put to him between 2014 to 2016, he admitted to cancelling all of these visits.

[343] Mr. Dalfen further admitted to cancelling all of his Thursday weekday access after the Order of Justice Murray dated November 30 2015 because the Order made it too difficult for him to facilitate access. He acknowledged sending an email to the mother's lawyer stating, "'As a result of Justice Murray's Order, I reluctantly have to cancel my Thursday twice a month access with Lily Reesy." He acknowledges that's since November 30, 2015, there have been no Thursday evening access because of transportation difficulties and that he "could not handle" taking her twice a week.

[344] When asked by the Court why he was seeking Thursday mid-week access after acknowledging that he had cancelled every Thursday since November 30, 2015, Mr. Dalfen explained that after this trial, if the Thursday weekday access is ordered, he is simply going to keep Lily Reesy overnight and return her to school the next morning. He said it is simply impossible for him to pick her up and bring her back in time during the time allotted and it is too physically difficult for him with his shoulder and back problems. He also does not want to have to see Ms Neger "ever again" and this can be avoided by dropping Lily Reesy off to school the next morning.

[345] When asked by the Court what Mr. Dalfen would do if the Court made an order for evening access only, no overnight, he advised that he would not respect this Court Order and that he would just keep Lily Reesy overnight. As he advised the Court, " I am telling you now..I'm telling you straight, I will not accept it."

[346] Mr. Dalfen acknowledged using what he called "the cancellation clause" in the 2010 Final Court Order on a number of occasions to cancel his access. He acknowledged using the clause to cancel his weekend access in February of 2016 before Ms Neger's planned vacation. He acknowledged sending an email to her lawyer that stated, among other things, "Until we have a court order different than the one we were forced to return to that exists today… I have a right to cancel 48 hours in advance and I did just that." He admitted to further writing to the mother that as the primary custodian, she will have "to figure it out."

[347] Mr. Dalfen testified that the only reason that there were so many cancellations in 2014 was because the mother tried to revert back to the 2010 Order. He testified that he had very little cancellations in 2013 because his time with Lilly/Reesy was good. He testified that after this trial, there will be no more cancellations because there will be a different order in place.

[348] Mr. Dalfen did not agree that the cancellations were harmful or upsetting to Lily Reesy. He testified that he always tells Lily Reesy in advance when he is going to cancel and he tells her to let her mother know. He testified that when he does this, she is never upset. He denied involving her in the decision-making although he does "get her thoughts". He does not believe that this is upsetting or disruptive to Lily Reesy.

Lily Reesy's Name

[349] He father testified that that Lily Reesy told him that she wanted to change her name to Lily. He was aware that this came from Lily Reesy. The father testified that he told he would still call her Reesy because he preferred that name, or 'Lily Reesy'. He testified that sometimes he calls her Lily Reesy.

Father's Description of Lily Reesy

[350] The father described Lily Reesy as "an incredible kid". He described her as "sweet", "great", "very outgoing", "very smart". He also testified that she "can be a tough cookie."

[351] The father acknowledged that Lily Reesy has "suffered." He testified that "she does not like conflict at all" and that Lily Reesy "loves both of us". He testified that she does not want to see the conflict and that she does not like stress at all.

[352] The father described Lily Reesy getting into a lot of fights at school initially at Associated Hebrew but not anymore. He described her as now being "very popular" at school and conceded that she was doing better at Glen Park Public School. However, he testified that the only reason that Lily Reesy is doing better now is because the mother is now a better parent and more engaged with her schooling. He believed that the reason why the Lily Reesy was doing so poorly at Associated Hebrew was because the mother was not well and unable to parent her when she was ill and addicted to drugs. He explained that he has always been very diligent with Lily Reesy's homework unlike the mother.

[353] The father testified that he does not want to take Lily Reesy away from her mother. He knows that Lily Reesy loves her mother. When he saw what was happening to the mother in 2012 and 2013, he wanted to help the mother for Lily's sake, not for the mother.

[354] The father denied saying negative things to Lily Reesy about her mother. He testified that when the mother was celebrating her first medallion for sobriety, he helped Lily Reesy write her speech. He testified, "I am the author". He described typing it out and practising it with Lily Reesy.

Father's Communication

[355] Mr. Dalfen identified and admitted to sending the emails filed in the mother's document brief to her. He did not believe that they were abusive or threatening and testified that they were taken "out of context".

[356] He admits that he became verbally aggressive with a number of the professionals involved in this case, whom he believes have been manipulated by the mother and are receiving false information from her. He admits to swearing and using very profane language towards the JFCS workers involved, Ms Murrel-Pritchard, Lily Reesy's counsellor, and to being verbally aggressive with PC Kinghorn and to other professionals involved.

[357] He admits to comparing the mother's lawyer to "Hitler" and calling him "a Nazi" during the court proceedings and in affidavits and he did so again during this trial. He accused Mr. Gottlieb of being "an evil extension" of the mother during this trial. He admits to calling the JFCS protection worker a "mother..king bitch" among other profanities and telling her to "go f..ck herself". He admits to telling the child's therapist that she was "a bitch" and that she "deserved to die" and that she was "useless" and "pathetic". He further admitted telling her that she was "damaging" the child and that she should go "F..k herself because she's not worth shit" among other profanities.

[358] He testified that he will be filing a complaint against the JFCS or its workers. During the cross-examination of Dr. Mantis and Ms Murrel-Pritchard, he told them that he will be file complaints against them. He advised the Court that that he is going to sue them after this trial. He testified that if he sees his daughter suffering from these investigations, he will sue.

[359] Mr. Dalfen's cross examination of Dr. Mantis became very aggressive at one point until stopped by the court. He accused her of being "a terrible doctor whose license should be revoked". He threatened to sue her during the cross examination for assisting Ms. Neger in getting his access suspended on the basis of reports that she prepared without having met either him or the child.

[360] Mr. Dalfen has also stated that he is going to report Mr. Gottlieb to the Law Society for professional misconduct and that he is going to report all of the judges involved to the Judicial Complaints Council. He accused Mr. Gottlieb of getting "greased" (paid) over and above his legal aid certificate. He further accused him of preparing an affidavit of one witness with a forged signature. He accused all of the case management judges involved in this case of being "incompetent" or in some in instances "terrible."

[361] Mr. Dalfen denied ever being physically violent but that he gets aggressive in a non-violent way. While acknowledging his aggressive behaviour, Mr. Dalfen testified " I am not a violent person. Do I get aggressive when my daughter is at stake? Yes. I made that very clear many times and I'll say it one more time. Yes…. I will tell them to "F" off, Stay away from my business unless you know what is going on."

[362] He admitted to telling Mr. Gottlieb in court, "You want to go outside and discuss it like men?" and also approaching Mr. Neger's father during this trial after his evidence and saying "You have an issue" because he mentioned his name. He admitted that Mr. Neger looked "pale and shaky" after that incident.

Ms Elaine Glatt, Father's Friend and Former Access Supervisor

[363] Ms Glatt is a close personal and family friend of Mr. Dalfen and one of his witnesses at trial. She has known his family for many years. Ms Glatt is a financial advisor for Scotia Bank and she has been with the bank for approximately thirty years.

[364] Prior to her testimony, Ms Glatt was excluded from the courtroom. The mother's counsel raised a preliminary objection to Ms Glatt giving any evidence at all. Mr. Gottlieb advised the court that on the evening before her testimony Mr. Dalfen had inadvertently recorded a conversation that he was having with Ms. Glatt on the mother's cell phone after he had called the mother to speak to Lily Reesy. Mr. Gottlieb stated that Mr. Dalfen was "dictating" or "spoon feeding" the evidence to Ms. Glatt during this recording.

[365] According to Mr. Gottlieb, when asked by the court, the conversation went far beyond preparation as there were no questions asked and Mr. Dalfen was simply telling Ms Glatt what to say. He submitted that in so doing, Mr. Dalfen was attempting to influence the outcome of this trial by witness tampering. He suggested that Mr. Dalfen could be charged with contempt or obstructing justice.

[366] Mr. Dalfen denied dictating the evidence that he wished Ms. Glatt to give in this trial. He stated that the entire conversation between them had not been recorded, only a portion of which had been taken out of context. It was his position that he was entitled to prepare his witness prior to her giving evidence and to go over the subject matter and questions that will ask her.

[367] After hearing submissions, the court permitted Ms. Glatt to testify and permitted Mr. Gottlieb to put the audio recording to Ms Glatt in cross-examination. What weight, if any, to be given to Ms. Glatt's evidence would be determined at the conclusion of the trial.

[368] Throughout this objection, Ms Glatt was excluded from the courtroom and Mr. Dalfen was not permitted to speak to her or to escort her back into the courtroom following the court's ruling.

[369] Ms. Glatt testified that she first became involved in this case in February 2012 when she was asked to supervise Mr. Dalfen's access visits. She had received a call from the mother's previous counsel to confirm that she was available and appropriate and she agreed to do this.

[370] Ms. Glatt was aware that Lily Reesy had not seen Mr. Dalfen for several months. She described Lily Reesy initially being very timid as she approached her father but then "she gravitated towards Mr. Dalfen like a sponge". She described Lily Reesy as warming up very quickly and not leaving her father's side.

[371] Ms Glatt testified that after the requirement for her supervision ended in May 2012, she remained involved because she became very close to Lily Reesy and had developed a relationship with her. She testified that since 2012 she has attended at least 60% of the father's access visits with Lily recede. During the time that Mr. Dalfen was living with his girlfriend Simona, she was not as involved in the access, however she continued to see Lily Reesy. She testified that during Mr. Dalfen's weekend access she usually always drops in for Shabbat and will participate in other activities with Mr. Dalfen and Lily/ Reesy throughout the weekend. She estimates that she has participated in well over 300 visits between Lily Reesy and her father.

[372] Ms. Glatt is also involved in almost all of the access exchanges because Mr. Dalfen does not drive or have a car. She will drive Mr. Dalfen and Lily Reesy to and from access exchanges. She is also attended numerous court appearances to act as a support for Mr. Dalfen.

[373] Ms Glatt also appeared to be very involved in assisting Mr. Dalfen with organizing extracurricular activities for Lily Reesy during his time with her. She found an organized Lily receives tae kwon do and her dance lessons and scheduled them on Mr. Dalfen's evenings with her. Mr. Dalfen then simply pays for the lessons after Ms. Glatt organizes them. As Ms. Glatt put it, I arranged all of the appointments and schedules for you.

[374] Ms. Glatt described in detail how involved the father became in Lily/ Reesy's care in 2013 when Ms. Neger became ill. She described how difficult the court process has been for him. She testified that on the many occasions that she has attended court with him, she has experienced Mr. Dalfen's frustration with the process and she has experienced the "lies and distortions" from the mother's counsel.

[375] Ms. Glatt testified that she has heard on a number of occasions in court from the mother's counsel that Lily Reesy is afraid of her father and fearful of him. She testified that she has never seen Lily Reesy afraid of her father. She described Lily Reesy as very close to her father; she gravitates towards and is "beyond excited" to spend time with him. She has seen Mr. Dalfen encourage a positive and respectful relationship towards her mother. She testified that he always facilitates telephone access between Lily Reesy and her mother.

[376] Ms Glatt described the Mr. Dalfen as "an amazing father" who keeps Lily Reesy busy and is independent to manage to do things on his own with her.

[377] Ms Glatt acknowledged that the father has canceled access on a number of occasions. She has been present when he is canceled weekend access with Reesy. She explained that the cancellations were largely because of his bad back and because he is a self-represented litigant who has to prepare and respond to all of the motions and documents served on him by mother's counsel. She also acknowledged in cross-examination that he has canceled because there was a flood in his apartment and because his aunt was not available for Passover dinner.

[378] Ms Glatt testified that she has heard the father tell Lily/Reesy that he has to cancel. According to Ms. Glatt, Lily Reesy has never expressed sadness or disappointment that there is a cancellation because Mr. Dalfen always follows it up with something positive and reassures her that he has something great planned for her the next time he sees her.

[379] Ms Glatt testified that she loves Lily Reesy and wants to make sure that she is having fun and that "everything is good". She often brings Lily to manicures and to the mall and they go shopping together with Mr. Dalfen during his weekends. They go to Chapters, or have lunch. They have enjoyed many manicures together, something Lily/ Reesy really enjoys. Mr. Dalfen will participate and help Lily/ Reesy pick out her favorite colors.

[380] When asked by mother's counsel whether Mr. Dalfen instructed Ms. Glatt on how to answer her questions today, Ms. Glatt did not agree. She acknowledged that she and Mr. Dalfen had discussed the case the night before and that they went over "some generalities" and areas to discuss and they discussed facts.

[381] She testified that she has never given evidence before so it was important for her to go over certain situations with Mr. Dalfen so as not to talk too much or say things that are not necessary.

[382] Mr. Gottlieb then played the audio recording. The recording was approximately two minutes long. It appeared to start mid-sentence and mid-conversation. Both Ms. the Glatt and Mr. Dalfen were talking intensely and with great animation. At some points they were talking over each other and interrupting each other frequently. At one point Mr. Dalfen states to Ms. Glatt: "But listen to me, I want you to say that I'm an incredible father. He [Mr. Dalfen] gives her the most attention I've ever seen anyone… She loves her father. She loves her mother. You have never seen any fears in Reesy"…"He is an incredible father… He doesn't rely on anyone else."

[383] After listening to the recording, Ms. Glatt testified that she stood by everything that she said. She did not agree that Mr. Dalfen provided her with the answers or told her what to say at trial. She reiterated that it was important for her to go over these things because she cares about Lily Reesy and she cares about her happiness, her health and well-being.

[384] Ms. Glatt testified that she is really passionate about Lily Reesy's well-being and her happiness so the outcome of this trial is not only important to her mother and father but also important to Ms. Glatt. She has grown into a relationship with her. She emphasized that she cares very much about the outcome of this trial as Lily Reesy needs her mother and she needs her father. She believes that Mr. Dalfen is an amazing father.

Mr. Elliot Brodkin, Director, Associated Hebrew School

[385] Mr. Brodkin is the Executive Director and CEO of the Associated Hebrew School. He was the CEO in 2014. He testified that he was contacted in November of 2014 regarding a dispute regarding the father's access to information about Lily Reesy. At the time Lily Reesy was a student in the school. He testified that at this time, the only Court Order that the school had on record was an order suspending the father's access to the child. He was unaware that in October of 2014, the court had reinstated the father's access.

[386] Mr. Brodkin testified that he met with the father on November 7, 2014. The father advised him that subsequent to the suspension of his access in September of 2014, the court had reinstated his access.

[387] Mr. Brodkin testified that it appeared that the mother had only provided the school with the order suspending the father's access. He explained that he had to consult the school's counsel to determine how to proceed. He wanted to proceed cautiously so that the school could be certain that they had the correct information regarding the status of the correct governing order. He acknowledged that it took approximately eight weeks before the school was able to confirm that the most current order had reinstated the father's access and that he was permitted to access information and to have access with Lily Reesy.

[388] In cross-examination, Mr. Brodkin advised that the most updated and proper court order was provided by the father in early December of 2014. Upon receiving advice from counsel, he instructed that access to information and to the child be immediately reinstated.

[389] Mr. Brodkin could not say for certain why the school had the incorrect court order nor could he say for certain that this was the fault of the mother.

Annette Kussin, Attachment Therapist for the Child in 2013

[390] Ms Kussin is a social worker and psychotherapist. She has been in practice for approximately forty years. Ms Kussin testified that in April of 2013, she was requested to provide an assessment and counselling for Lily Reesy and the parents. The referral was made by another agency to address difficulties that the mother was having in her relationship with the child.

[391] Ms Kussin testified that she specializes in the area of attachment and that the mother was reporting that the child was presenting with very difficult, angry and defiant behaviour and that she was having difficulties at school.

[392] Ms Kussin testified that she first met with the mother and Lily Reesy on April 16, 2013. Ms Kussin met with father and Lily Reesy on April 24, 2014. She testified that she met with Mr. Dalfen alone and met with the child alone. She did not recall meeting Mr. Dalfen and Lily Reesy together.

[393] Ms Kussin testified that she first met with the mother and Lily Reesy on April 16, 2013. Ms Kussin met with father and Lily Reesy on April 24, 2014. She testified that she met with Mr. Dalfen alone and met with the child alone. She did not recall meeting Mr. Dalfen and Lily Reesy together.

[394] Ms Kussin testified that Lily Reesy did not present any fears of either parent, however, based on her assessment at that time, Lily Reesy would not seek out her mother's help when needed but would be more self-reliant. According to Ms Kussin, Lily stated that if she became ill, she would not wake up her mother for help, she would "suck it up" to use Lily Reesy's words.

[395] Ms Kussin met with the father on April 24, 2013. She testified that at that time, she learned that the mother had gone to rehab and that the father was caring for Lily Reesy. During that meeting, Mr. Dalfen told her that he was the primary caregiver for the child and that the mother could not handle her.

[396] Ms Kussin testified that she did not hear anything else until June of 2013 when she contacted the referring agency to determine the status of the family. She was advised that the mother was in rehab and that the child was living with her father.

[397] Ms Kussin testified that her next contact with the family was in October of 2013. On October 9, 2013, the mother came with her life coach. Ms Kussin did not see the child that day. During that meeting, the mother advised her that she was very sick when going off her medications and that she had been in 'rehab'. The mother stated that Lily Reesy was having nightmares and a lot of fears and that when the mother was in rehab, she spoke to Lily Reesy every day.

[398] Ms Neger also reported to Ms Kussin that she is doing much better now and that in addition to her life coach, she also has a psychotherapist.

[399] Ms Kussin met with Lily Reesy and the mother on October 16, 2013 and Ms Kussin completed a brief re-assessment of the child. Ms Kussin described Lily Reesy as being closed and protective of her parents and not very forthcoming. She did not want to talk about her parents. She did not say anything about her mother or why she was in rehab.

[400] Ms Kussin then met with the mother and her life coach on October 23, 2013 to provide feedback. Ms Kussin testified that she told the mother that Lily Reesy was very insecure in her relationship with her. Ms Kussin had no further meetings with the mother after that time.

[401] Ms Kussin met with the father on November 12, 2013. Ms Kussin testified that the father reported that he was seeing "good changes" with Lily Reesy and that she was happier. They discussed the father's activities with Lily Reesy and that he was doing homework with her. Mr. Dalfen reported that he was seeing Lily Reesy on Thursdays and alternating weekends.

[402] In November of 2013, Mr. Dalfen also reported to Ms Kussin that he felt that the mother was doing much better and that he was pleased to see this. Ms Kussin testified that the father told her that he did not believe that he had anything to do with the mother's problems with the child or the child's problems and that it was all the mother's fault. He also believed that the mother was bi-polar.

[403] Ms Kussin testified that at no time during all of her meetings with Lily Reesy did she ever express any fear of the father. Her last contact with this family, other than the trial, was 2013.

Ms Eva Casino, OCL Clinical Investigator in 2011

[404] Ms Casino is a clinical investigator with the Office of the Children's Lawyer (OCL). She has been an OCL clinical investigator for approximately fourteen years. She is a social worker with an MSW and she has worked as a therapist with families and children for approximately thirty years. In addition to work at the OCL, she is employed by the George Hull Center, a children's mental health center, where she has worked for approximately fifteen years.

[405] Ms Casino was assigned to conduct a clinical investigation and report in this matter in 2011, following a referral to the OCL by Mme. Justice Cohen on April 7, 2011. Ms. Casino completed her investigation and report on September 22, 2011. The Report was filed in these proceedings.

[406] In conducting her investigation, Ms Casino met and interviewed both parents, conducted observation visits with Lily Reesy and the parents on three separate occasions, and conducted two additional private interviews with Lily Reesy. She also interviewed numerous collaterals involved with the family, including Jewish Family and Child Services, Homewood Health Centre, family doctors and psychiatrists, school teachers, and other family members. She also reviewed the court documents and supporting letters provided by the parties, the medical and psychiatric records and the Toronto Police Services occurrence reports regarding both parties.

[407] At the time of her investigation, Lily Reesy. Mr. Dalfen had not exercised access with Lily Reesy for approximately twelve months. He was only exercising SKYPE contact with her. Ms. Casino testified that she decided to conduct two observation visits between the child and Mr. Dalfen because of the length of time that Lily Reesy had not had access directly. The observation visits occurred at a park and at her office.

[408] During the course of her investigation, Ms. Casino reviewed the entire psychiatric record of the mother that she received from Sunnybrook hospital, dating back to 1998. She summarized all of these records and notes extensively in her report.

[409] When asked by the court why she felt this comprehensive summary was relevant to her investigation given that many of the records dated back more than 18 years, Ms Casino testified that she felt that this information was relevant to the issue of parenting and the custody and access issues. Based on her review of the psychiatric records, it was her understanding that this Ms Neger had been diagnosed with a borderline personality disorder in March 2000. The records also indicated lengthy periods of psychiatric treatment and repeated hospitalizations due to "suicidality" and receiving ECT therapy. The records also indicated that Ms Neger had reported that she had been traumatically abused by her father in her youth.

[410] Ms Casino also reviewed extensive Toronto Police Service Reports dating back to 2000. A number of the reports were initially regarding the mother and a number of alleged suicide attempts by her as well as her attempts to get a restraining order against her father, Sol Neger. There were also reports regarding incidents between the parties and Ms Neger's attempts to get restraining orders against Mr. Dalfen.

[411] Ms Casino testified that she felt it was important to review these reports because the parties presented very different information about the same time in their relationship. According to Ms Casino, the police reports supported the view that Ms Neger was deeply affected by the relationship with her father and that she had reported abuse by her father. She found it striking that there were several incidents where the police could not find anything to support her concerns and it highlighted for her the anxiety that Ms Neger presented with during her investigation and the "anxiety based" concerns that she reported.

[412] Ms. Casino testified that her major recommendation was that the child (whom she referred to as Reesy throughout her testimony, as this was prior to her name change), should have immediate renewed contact with her father. She testified she was very concerned about what she observed to be "the beginning of a process of alienation of Reesy by her mother".

[413] Ms Casino described Lily Reesy as a very bright, very likeable child. She observed her to love both of her parents and to have fun with both of her parents. Ms. Casino testified that during her observation visits, she was very struck by "the obvious delight" that Lily Reesy had in seeing her father after having not seen him for quite a substantial period of time. She described Lily Reesy as being "very excited" to see her father. There was no evidence of fear or anxiety.

[414] Ms Casino testified that the child seemed to be confused about why she was not seeing her father and that Lily Reesy had reported to her various reasons why she was not seeing her father, as apparently told by her mother. Ms Casino testified that she was very concerned about what the child had told her and about why she was not seeing her father, including that her father was bad, or that he was going to take her away. Ms Casino described being deeply concerned as she felt that Lily Reesy clearly loved her father and clearly wanted to have contact with him. Lily Reesy also reported to her a close relationship with extended paternal family members, specifically her aunt and cousins.

[415] Ms Casino also expressed being very concerned about a home visit at the mother's home in which the mother did little or nothing to facilitate a telephone call between the child and her father and did not encourage the contact between the child and her father.

[416] Ms Casino testified that she observed the mother to implicitly give the message "very directly to Lily Reesy that she was unsafe with her father". She stated that a child of Lily Reesy's age at the time (6 years old) is easily influenced by a parent.

[417] Ms Casino testified that it was very apparent that Lily Reesy had a strong relationship with her father, that she loved him, and that she missed him very much. However, after a final visit with her, the child made statements to her that appeared to Ms. Casino to be very much influenced by her mother and the perception that her father was "dangerous" and "bad".

[418] It was Ms. Casino's impression that this was "the early stages of a process moving towards alienation". She was very concerned about that and hence she recommended that access should start immediately and that there should be a gradual increase in access similar to what had been in the 2010 Order. She did not believe that supervised access was warranted in the circumstances.

[419] Ms Casino was concerned about the impact of this on such a young child. She testified that children are psychologically affected when they do not have contact with the parent that they love. She was concerned about the child's self-esteem and her understanding of why she was not seeing her father, particularly if she felt that the child her father had essentially abandoned her or that he was too busy to see her or that he was a bad person or that he was dangerous.

[420] Ms Casino testified that during her last interview with the Lily Reesy prior to the conclusion of her investigation, Lily Reesy also made some concerning statements to her regarding her mother's physical and mental health. It was apparent that Lily Reesy was under the impression that her mother was sick with fibromyalgia. Ms Casino testified that Lily Reesy is a very bright child and she was struck by the fact that the child knew this word and the symptoms. Ms Casino testified that the mother did not disclose to her any concerns about her physical or mental health during her investigation, which concerned her.

[421] Ms Casino acknowledged that there had been some inconsistency in contact by the father by his own conduct in cancelling access visits. Ms Casino found that prior to the lengthy absence, where the father had not seen Lily Reesy for approximately twelve months, he had only canceled three visits in a nine-month period.

[422] Ms Casino found that the relationship between the child and both parents was positive, but that the relationship between the parents post-separation was not positive and that it was highly conflictual. She found that the child had observed verbal arguments between the parents and that she was very distressed by this. She testified that Lily Reesy like all children, did not want to see her parents whom she loves have conflict.

[423] Ms Casino recommended that the mother continue to have sole custody of Lily Reesy and that unsupervised access between Lily Reesy and her father be reinstated immediately. She also made recommendations regarding holidays and specific recommendations regarding religious holidays. She recommended that access exchanges occur in a neutral place wherever possible and that all communication occur through Family Wizard because of the conflict that the child had observed between her parents.

[424] Ms. Casino also recommended that the confirmation or "cancellation clause" in the 2010 Final Order providing that Mr. Dalfen had to confirm access prior to visits should be taken out completely. She found that this clause became a point of contention between the parties and is what led to the suspension of Mr. Dalfen's access for a period of almost one year prior to her involvement.

[425] She also recommended that the family attend for family counseling with a therapist who will support contact between the child and her father. She further recommended that Lily Reesy not attend the "Here to Help" group run by the Jewish Family and Child Services. It was her view that this would further reinforce her false and negative perception of her father as "bad". This is a group that assist mothers and children who have experienced domestic violence. She further recommended private telephone contact between the father and the child during the week.

[426] Finally Ms. Casino recommended that should Ms. Neger not facilitate access between the father and Lily Reesy, then she should be sanctioned by the court financially. She testified that she was very concerned at what had been happening and that the child was losing her relationship with her father.

[427] In cross-examination, it was clear that Ms Casino was unaware that the father had chosen not to exercise supervised access to Lily Reesy in a supervised access centre or setting for the period of approximately twelve months prior to her investigation and report. She was aware that the father had declined supervised access at a supervised access centre in 2010 when first requested by the mother but she was not aware that a court order for supervised access was still available for the father at the time until 2012 and that the father did not take advantage of that order.

[428] Ms Casino acknowledged that a parent should exercise access visits with a child whenever possible and she was aware that the father was refusing to do so. She did not believe that this had an impact on her conclusion regarding the mother's parental alienation.

[429] Ms Casino also acknowledged that she had never met or interviewed Ms Neger's father. She was unaware that the mother had a supportive relationship with her father at this time and that he was one of her witnesses and supports during this trial.

[430] Ms Casino was also unaware that more recently, in 2014, the Jewish Family and Child Services has once again recommended that the mother and child participate in the Here to Help Program for mothers and children who experience or witness domestic violence.

[431] Ms Casino also acknowledged that generally, custody and access reports are of limited value five years after they are released. Her recommendations were made based on her investigation at the time, when Lily Reesy was only six years old. She confirmed that she has had no contact with the family since 2011, after the completion of her final report. She could not comment on the current situation and circumstances of the parties and the child.

6. The Law and Analysis

6.1 The Law and Governing Principles

[432] Rule 15 of the Family Law Rules governs the procedure for motions to change and applies to motions to change a final order for custody, access and child support.

[433] The test to be applied to change a final custody and access order is set out under section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 29, as amended. This section provides as follows:

"29. (1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29."

[434] The leading authority in interpreting this section is the Supreme Court of Canada's 2006 decision in Gordon v. Goertz, [1996] 2 S.C.R. 27. The court established a two-step process:

a) First, the moving party must meet the threshold requirement 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 have not 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 goes no further.

b) 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 CLRA. In this fresh inquiry, 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.

[435] The onus is on the person seeking to establish a material change in circumstances to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. The change cannot be "trivial" or insignificant, it must be material. The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. See Docherty v. Beckett, (1989), 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. See Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).

The Fresh Inquiry of Best Interests

[436] As set out in the second step of the Gordon v. Goertz test, once a material change in circumstances affecting the best interests of the child has been established, the court must then embark on a fresh inquiry regarding the child's best interests.

[437] In determining what custody and access order is in a child's best interest, a court is guided by section 24 of the Children's Law Reform Act. I must consider the best interest factors set out in section 24(2), (3) and (4) of the Act. Section 24 provides as follows:

(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,

(ii) 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.

(3) PAST CONDUCT — 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.

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

(a) his or her spouse;

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

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

(d) any child.

[438] I have carefully considered all of these factors in reaching my decision. Each case must be decided by a careful consideration of the unique circumstances and needs of each individual child.

[439] I have also considered the principle that children should have as much contact with both parents, provided that such an order is consistent with their best interests. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C).

[440] The best interests of the child have been held to be met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical, emotional or mental well-being. See Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).

[441] I have also considered the well-established principle that if one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent (a listed best interests factor under s. 24 (2) of the Act). See: Leggatt v Leggatt, 2015 ONSC 4502.

[442] I have also considered the fact that frequent moves and a lack of a permanent plan by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of children, also a relevant factor under s. 24(2) of the Act. See: Madill v. Madill, 2014 ONSC 7227; Lambert v Limoges, 2015 ONSC 6487.

Joint Custody versus Sole Custody

[443] In considering the issue of joint custody, the law is clear that joint custody should only be considered where both parents are fit custodial parents and have strong claims to custody, having regard to the factors set out under the Children's Law Reform Act in custody disputes. This is a threshold issue that must be determined before considering whether or not the parents are capable of effective communication and cooperation or that joint custody is appropriate.

[444] The leading case regarding joint custody is the Ontario Court of Appeal's decision in Kaplanis v. Kaplanis [2005] O.J. No. 275, 249 D.L.R. (4 TH) 620, 10 R.F.L. (6th) 373, 2005 CarswellOnt 266 (C.A.). In that case, the Court set out the following factors:

1. "There must be evidence of historical communication between the parents and appropriate communication between them;

2. Joint custody cannot be ordered in the hope that it will improve the communication between the parents;

3. Even if both parents are fit custodial parents, this does not necessarily mean that joint custody should be ordered;

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody;

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis;

6. The younger the child, the more important communication between the parents."

[445] In Kaplanis v. Kaplanis, supra, the Ontario Court of Appeal found that there was no history of co-operative parenting or effective communication between the parents. Rather the court found there was evidence to the contrary on these points. Accordingly, the court held that the trial judge erred in ordering joint custody and granted sole custody of the child to the mother who had been the child's primary caregiver.

[446] In Habel v. Hagerdon, [2005] O.J. No. 3566 (Ont. C.J.), Justice Margaret A. McSorley summarizes the principles developed in Kaplanis, supra, and Ladisa, supra, as follows:

"Although the Court of Appeal reached different conclusions on whether the trial judge erred in ordering joint custody and shared parenting in Kaplanis v. Kaplanis and Ladisa v. Ladisa, the court applied the same legal analysis. Several important guidelines can be taken from Appeals Justices Karen M. Weiler's reasons in Kaplanis v. Kaplanis and Ladisa v. Ladisa. They are as follows:

(a) there is no default position in favour of joint custody in Ontario;

(b) each case is fact-based and discretion-driven;

(c) past parenting experience, both during cohabitation and after separation, is of critical importance to a court's decision whether to order shared parenting in any form;

(d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;

(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate."

[447] Joint custody orders in the form of "parallel parenting orders", have also been ordered in high conflict cases, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, "full parallel parenting", where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel, [2007] O.J. No. 4189, 2007 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451.

[448] The Ontario Court of Appeal has also upheld joint custody or 'parallel parenting' in the absence of reasonably effective communication between the parents where it has been necessary to protect a parental relationship. In Andrade v. Kennelly, 2007 ONCA 898, 46 R.F.L. (6th) 235, [2007] O.J. No. 5004, 2007 CarswellOnt 8271 (Ont. C.A.), the Court of Appeal upheld a joint custody order where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children.

[449] Joint custody/parallel parenting orders have been made in high conflict cases. In K.H. V. T.K.R., [2013] O.J. No. 3463, Justice Stanley Sherr provides a very useful summary of when courts have ordered joint custody in the form of a parallel parenting order at paragraph 46 of his decision:

1. One parent is unjustifiably excluding the other from the children's lives and can't be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly, 2007 ONCA 898, [2007] O.J. No. 5004, 2007 CarswellOnt 8271 Garrow v Woycheshen, 2008 ONCJ 686; Madott v Macorig, 2010 ONSC 5458, [2010] O.J. No. 4371 (SCJ); Cooke v. Cooke, 2012 NSSC 73; Bushell v. Griffiths, [2013] N.S.J. No. 184, 2013 CarswellNS 240 (N.S.S.C.), and Izyuk v. Bilousov, supra, (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)).

2. Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v Romany, 2011 ONSC 2850, 2011 ONSC 2850; Scervino v. Scervino 2011 ONSC 4246, 2011 ONSC 4246 (SCJ). In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas [2006] O.J. No. 5124 (Ont. S.C.J.); Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont C.A.). See also V.K. v. T.S., 2011 ONSC 4305, where Justice Deborah Chappel also conducted a thorough review of the case law at paragraph 96 of that decision.

6.2 Analysis

Credibility and Findings

The Mother

[450] In cross-examination, Ms. Neger requested that she sit facing the rear of the courtroom, away from Mr. Dalfen so that she did not have to look at him directly. Mr. Dalfen agreed with this request for accommodation. The court agreed to this accommodation so long as Ms Neger was facing me so that I could continue to observe her face and demeanor throughout the cross-examination. Ms Neger's voice was also quite audible to the court reporter.

[451] Although it was a very lengthy and difficult cross examination that lasted approximately eight hours over a period of two days, the court was struck by how evasive the mother was in responding to the father's questions. It was very difficult for her to answer many questions directly. On numerous occasions, the mother would either not answer the question or state that she did not recall the incident or event in question.

[452] The mother's evidence that the father had limited involvement in Lily Reesy's care in 2012 and 2013 was not credible. The mother greatly minimized the father's involvement with the child and his assistance with her care during the period that the mother was very ill and sought treatment for her fibromyalgia and drug addictions. It was apparent from the evidence that the father was greatly involved in caring for Lily Reesy even before the mother left for residential treatment.

[453] The evidence also demonstrated that the father was instrumental in some respects in obtaining financial assistance from her family members in getting the mother the treatment that she needed at that time. The mother's evidence regarding this was evasive and not credible.

[454] It is noteworthy and concerning that in the mother's 2014 Motion to Change the Final Order wherein she seeks to greatly restrict the father's access, the mother fails to disclose this entire period, including her diagnosis of fibromyalgia, her drug addiction, her residential treatment and the fact that the Lily Reesy was being cared for by the father with the mother's consent during the period that she was away in residential treatment.

[455] Despite the mother's concerns about the father's abusive behaviour as set out in her 2014 Motion to Change, and the specific instances she cited in April of 2014 and July of 2014, she failed to disclose that she heavily relied on the father to care for Lily Reesy for a significant period of time in 2013 while she was very ill and struggling with addictions and fibromyalgia. The mother's illness at that time do doubt affected her parenting relationship with Lily Reesy and the evidence of Annette Kussin supports this finding.

[456] The mother's evidence that she has encouraged a relationship with Lily Reesy and her father is not entirely credible. The following evidence supports the finding that the mother has repeatedly sought to limit or restrict the father's access to the child:

a. It is not disputed that Ms Neger has commenced three court proceedings against Mr. Dalfen on an emergency without notice basis seeking to suspend or supervise his access: in 2008, in 2011, and again in 2014. She further brought an emergency motion in 2015 to restrict or suspend his access on a very little notice based on the "secret" regarding the father's apparently undisclosed new address. The evidence at trial demonstrates that these proceedings should not have been commenced without notice to the father and that some of the evidence in the mother's supporting affidavits, was misleading;

b. It is not disputed that Ms Neger attempted to unilaterally suspend the father's access in 2010 by instructing her lawyer to send a letter to the child's school directing that he not be permitted to have access with the child, based on the 2010 order;

c. In 2011, the mother did not agree with the OCL recommendations to reinstate unsupervised access to the father immediately and refused to consent to any access that was not supervised by a supervised access centre;

d. When the father was eventually granted access outside of a supervised access centre in 2012, the mother and family members hired a private investigator to conduct surveillance on the father and the child once his access was expanded to be in the presence of family members. The court found it very difficult to believe the mother's testimony that she did not know of the surveillance conducted particularly given the father's evidence that he obtained a copy of the investigation report in the mother's car which the mother had loaned him while she was in treatment;

e. The mother's psychologist Dr. Mantis, testified that the mother was "very upset and disappointed" after the court reinstated the father's unsupervised access following one of the mother's emergency motions to restrict or suspend the father's access.

f. Dr. Mantis further described the mother as being terrified by the father and that the mother reported to her that the child was terrified of the father. She described the mother reporting to her that she was very afraid that the father would kidnap or harm the child and that she was very concerned about the father's "influence" over the child;

g. The mother exercised poor judgment in involving Lily Reesy's therapist with her motion to restrict or suspend the father's access in May of 2015. This completely undermined the child's right to a safe and private space where she could talk openly and freely with a neutral third party professional about both parents. It was not surprising that the child refused to return to this therapist in June of 2015 after the mother brought her to an unscheduled meeting and sat with her and the therapist in an effort to persuade Lily Reesy to discuss the "secret". She then involved Lily Reesy's therapist in the court proceedings by having her swear an affidavit in support of her motion to restrict or supervise the father's access. It is unclear why the mother did not contact the OCL or instruct her lawyer to immediately write to the father to disclose his new address, or alternatively, to contact the children's aid society if she was very concerned about her daughter's safety.

[457] The court finds that the mother demonstrates very significant anxiety regarding the father's relationship with Lily Reesy and no doubt transmits some of this anxiety to Lily Reesy.

[458] There is undoubtedly some justification for the mother's anxiety about the father's access to Lily Reesy, as will be addressed below. However, the mother's exaggerated fears that the father will kidnap or physically harm or neglect Lily Reesy is not borne out by the evidence.

[459] The court was struck by the evidence of Ms Neger's therapist Dr. Mantis who testified that when the mother is anxious or upset, usually about the father, they try to look at the story of what has happened, and determine if Ms Neger is "catastrophizing" which she defined as the mother making the situation worse in her head than it actually is, by telling herself the "more extreme story that may not be reality-based". This recalled the evidence of the OCL clinical investigator, which although very dated, found that the mother either consciously or unconsciously appeared to influence Lily Reesy in the perception that her father was "dangerous" and "bad".

[460] Notwithstanding the above, there is evidence that Lily Reesy can be very frightened by the father's behaviour and his volatile temper in certain instances, which will be addressed below. The mother's anxiety and concern about the impact of the father's anger on Lily Reesy's emotional health is justified.

[461] Other than the concerns addressed above, the court finds that the mother's parenting of Lily Reesy is exemplary, as will be addressed below. The mother is to be commended for her very hard work in addressing her health and addiction issues in 2013 and in building a very strong support network since that time to maintain and strengthen her parenting of Lily Reesy. There was strong and undisputed evidence that Lily Reesy and her mother have a close, loving and stable relationship.

The Father

[462] The father's evidence that he has never exposed Lily Reesy to angry or explosive outbursts and to volatile behaviour is simply not credible.

[463] The father's evidence that he did not scream, swear or bang on the mother's apartment door during the April 2014 Passover incident in the presence of Lily Reesy is not credible. The evidence of the investigating officer who directly observed how frightened Lily Reesy appeared after this incident was consistent and credible and is corroborated by the overwhelming evidence of the father's explosive temper.

[464] The father's evidence that he did not bang on the door of the Lily Reesy's summer camp bus and yell and utter profanities at the young camp counsellors and the bus driver during the July 2014 summer camp incident is not credible. The investigation including multiple interviews of Devra Igre of JFCS confirms the incident took place. The camp issued a trespass order against him. Indeed the father admits to telling Ms Igre during her investigation that he banged on the school bus door and that he was entitled to do this. Based on the court's observation of the father during this trial, I have no doubt that this occurred.

[465] It is not disputed that the camp counsellors on the bus were teenagers. This must have been a very frightening experience for them as well as his daughter. Lily Reesy will soon be a teenager and the court is concerned about the impact of the father's anger and explosiveness on her as she heads into the sometimes turbulent teenage years, which can be difficult for even the best of parents.

[466] When asked in cross-examination to justify his behaviour during the summer camp school bus incident, the father once again took no responsibility and blamed the mother and the two teenage summer camp counsellors: "It happened. Sometimes you have to protect your daughter in situations like that. I felt that my daughter was not being taken care of by these two teenagers who were on the bus because the mother did not confirm what she was supposed to confirm earlier." He refused to acknowledge that his behaviour was traumatic for Lily Reesy and the teenage camp counsellors alone on the bus with the school bus driver.

[467] The evidence is overwhelming that the father has an explosive and volatile temper which the father has not addressed.

[468] Almost all of the professionals involved in this case described the father yelling, and swearing at them. During his evidence, the father has admitted to virtually all of the incidents of yelling and swearing to the child protection workers, the child's therapist, the mother's lawyer and others. The father admitted to yelling at Ms Devra Igre, the Jewish Child and Family Services protection worker and telling her to repeatedly "Fuck off" and calling her a "piece of shit" and "a mother fucking bitch" during her investigation. He admitted to yelling and swearing at Lily Reesy's therapist and telling her that she "deserved to die" and that she should go "F..k herself because she is not worth shit" among other profanities.

[469] The court saw firsthand Mr. Dalfen's inability to control himself when he is angered. During this trial, the father would become increasingly agitated and frequently interrupted the court and the mother's lawyer. During the trial, he called Mr. Gottlieb a "Nazi" and "worse than Hitler". He repeatedly called the mother "very very sick" and "evil" throughout the trial and referred to Mr. Gottlieb as an "evil extension" of the mother. He also called her repeatedly "a terrible mother", although later qualified that and stated, "Hopefully, that will change with all the doctors around her." He further testified that she is not capable of making decisions because of her brain and all of her memory lapses.

[470] Mr. Dalfen does not seem to understand that he often behaves like an abusive bully with a serious anger management problem if he does not get his own way. Throughout this litigation, the father has made very serious accusations against the mother's counsel and has threatened to report him to the Law Society. He confirmed in this trial that he will be doing so. During his very aggressive cross-examination of the mother's psychologist and the child's therapist, he threatened to sue both of them and advised the court that he would be suing them after this trial was over. He has accused all three previous case management judges in this case as being incompetent, and testified that he will be reporting to the Judicial Council.

[471] Mr. Dalfen did not believe that any of the above conduct constituted threatening or intimidating behaviour. As he puts it, "they are not threats, they are promises." In Mr. Dalfen's world, if he perceives that he is being attacked, or that his daughter is being harmed, or that his access to his daughter is being taken away, he becomes very aggressive and threatening. He describes his philosophy towards life as "Someone brings me positivity, I bring them more positivity. You bring me negativity, I'll bring you more negativity. That's the way it works in my life and everyone knows me. Be nice, I'll be nice."

[472] The court accepts that the father loves his daughter very much and wants to be very involved in her life and upbringing. The court also finds that the father can be a very good, loving and devoted parent to Lily Reesy and that he cares very much about her well-being. However, the father's inability to control his anger when he feels attacked by others, or when he feels that he is being denied access to Lily Reesy is very concerning. The father has greatly minimized his actions in front of Lily Reesy when he gets angry.

[473] I also find that the father has repeatedly cancelled his access visits with Lily Reesy since 2010 for a wide variety of reasons. The father does not accept that his repeated cancellations are damaging to Lily Reesy.

[474] There was also undisputed evidence that Lily Reesy loves her father very much and enjoys spending time with him. The evidence of the professionals involved, including the JFCS child protection workers and the OCL demonstrate that generally Lily Reesy is not fearful of her father and expressed being comfortable in talking with him and that she has a very close relationship with him.

[475] The father was permitted to introduce a number of photographs and "selfies" of he and Lily Reesy and the activities that they enjoy doing together on the weekend. The photos demonstrated that during those times, the father and Lily Reesy enjoy many activities together and Lily Reesy appeared to be laughing, spontaneous and having fun with her father. The mother's witness Felix Vikhman also described how excited and happy Lily Reesy was after coming back from a visit with her father.

Application of the Law to the Facts of this Case

1. Has there been a material change in circumstances since the 2010 Final Order that affects or is like to affect the best interests of the child?

[476] In the case before me, I find that there have been material changes in circumstances since the Final 2010 Order of Justice Cohen. They are as follows:

1. The mother's diagnosis of PTSD and fibromyalgia in 2012, her admission into residential treatment 2013 to address her mental health and addiction issues and the establishment of a relapse prevention parenting plan upon her return to Canada in August of 2013 to support her parenting of Lily Reesy;

2. The father's primary care of Lily Reesy for a period of time in 2013 while the mother addressed her mental health and addiction issues, with the mother's agreement;

3. The continuing and escalating conflict between the parties since the Final Order and in particular, the father's increasingly volatile, verbally abusive and threatening conduct towards the mother and professionals involved in Lily Reesy's life, particularly when he perceives someone is trying to restrict his access to Lily Reesy;

4. The father's pattern of frequent cancellations of access since 2010 for significant periods of time and the impact of those cancellations on the child, notwithstanding the 2011 OCL's recommendations about the importance of consistent and regular access for the child;

5. The father's use of the confirmation and cancellation clause in the 2010 Final Order (paragraph 7) as a weapon by repeatedly cancelling his access so long as he does this within 48 hours. The mother's use of the cancellation clause to suspend the father's access unilaterally without a court order.

6. Lily Reesy's age. She is now 11 years old, and she will be entering her teenage years in a few short years. She was only 5 years old at the time of the 2010 Final Order. The aging of a child does not automatically mean a material change, but it can be a significant factor if the change in age has altered the child's needs or the ability of the parent to meet those needs. See Wiegers v. Gray, 2008 Sask 10 (CA); Brown v. Lloyd, 2015 ONCA 46.

Having found a Material Change, what custody and access order is now in the best interests of the child?

[477] In determining what custody and access order is in the child's best interests, I consider the following relevant factors, having regard to the statutory framework and the applicable legal principles set out above.

1. The love and affection and emotional ties between the child and the person claiming access and other members of the child's family or persons involved in the care and upbringing of the child:

[478] Lily Reesy has a close and loving relationship with both parents. To their credit, both parties acknowledged this during their testimony. Although very dated, the direct evidence of the OCL clinical investigator demonstrated that notwithstanding a lengthy absence between Lily Reesy and her father, there was a strong and loving relationship between them during her observations and no evidence of fearfulness by Lily Reesy. The more recent evidence of Michelle Cukier, the JFCS child protection worker, demonstrated that Lily Reesy did not appear to be fearful of her father and that he was a very important part of her life. Much more recently, even the mother's close friend, demonstrate that Lily Reesy loves her father very much and does enjoy spending time with him when he descried how happy she was after spending the weekend with her father.

[479] The mother did not seek supervised access in this trial despite her fear of the father's volatile temper. She recognized that Lily Reesy enjoys the time that she spends with her father for the most part. The father, to his credit, also recognised that Lily Reesy needs her mother and acknowledged during his testimony that the mother is a very important, if not the most important figure in Lily Reesy's life, despite the father's concerns about the mother's mental health and addiction issues.

[480] Despite the parents' disagreement on virtually everything in this trial, the one common ground was Lily Reesy. It was very apparent that both parents are devoted to Lily Reesy. They both love her very much. They both agree that she is a wonderful child. They both gave very positive and detailed evidence about her engaging and delightful personality and disposition.

[481] The evidence also demonstrates that Lily Reesy has close and loving relationships with her maternal grandparents, her father's extended family members, and with friends of both parents, including Ms Elaine Glatt and Mr. Felix Vikhman.

[482] Lily Reesy is very fortunate to be loved by so many people.

2. The views and preferences of the child where such views and preferences can reasonably be ascertained:

[483] Very regrettably, despite Lily Reesy's age, there was no recent and independent evidence of her views and preferences. Lily Reesy is 11 years old, so this information would have been very helpful to the court. Despite Justice Murray's referral for an updated OCL "Voice of the Child" Report shortly before this trial commenced in 2016, neither the father nor the child would participate. The court was concerned that the father chose not to participate, although he stated in this trial that he later changed his mind. The court was also concerned that the mother did not encourage Lily Reesy to participate in this updated Report. It would have been very helpful to have received this information and the court was concerned that the mother was reluctant in ensuring that this information was available to the court.

[484] After this trial was completed, I carefully considered whether I would recall the parties and propose conducting a judicial interview with Lily Reesy. In the end, I determined that it would not be in her best interests to be interviewed by me in the context of this very high conflict trial, after so many years of her parents' litigation. I did not wish to put Lily through yet another interview with yet another stranger, particularly one who is the judge in her parents' trial, when the evidence establishes that Lily Reesy is so clearly aware of her parents' conflict and has been interviewed by multiple professionals over the past eight years.

[485] The most recent independent evidence that I have of Lily Reesy's views and preferences are from Ms Cukier, the JCFS child protection worker in 2015. Ms Cukier testified that Lily Reesy enjoyed the company of both of her parents and felt comfortable talking to both of her parents.

3. The length of time the child has lived in a stable home environment:

[486] It is not disputed that Lily Reesy has been in the primary residential care of her mother since the parties' separation, but for a period of approximately four months in 2013 when the mother was in treatment. It is further not disputed that the mother and Lily Reesy have lived in the same stable home, a comfortable two bedroom apartment, since 2010.

[487] The father has not demonstrated a stable home environment. Although his evidence at trial was somewhat unclear, it is not disputed that he has lived in a number of different places over the years. During the time of this trial, he has been living in a hotel suite, where he has been living for several months before the trial. Prior to that, he was living at 88 Erskine Avenue, the home of an acquaintance, and also prior to that, with his girlfriend in her condo. He appeared to be living at both places during one time period, although the father testified that this was because it was easier for him to see Lily Reesy during the week while at 88 Erskine Avenue.

[488] The father does not have a permanent plan for Lily Reesy. He is currently living in temporary housing, in what he acknowledged is a hotel suite. The father plans to move again once this trial is over and testified that he would be looking for a two bedroom apartment closer to the child's school.

[489] The mother has a far more permanent and solid plan for Lily Reesy. She has permanent housing and she has a built-in support network involving her mother, her father, her sister-in-law, her mental health supports, and other extended family members. She plans to continue to live in the home that she and Lily Reesy have lived since 2010, a period of six years. Her support network is strong and she has demonstrated great resourcefulness in ensuring that there is a good network of support around her.

[490] The father acknowledged in this trial, to his credit, that Lily Reesy should continue to have her primary residence with her mother, although he qualified this by saying that Lily Reesy should stay with him rather than another third party (such as babysitter extended family or friend) when the mother is not able to care for her.

4. The ability and willingness of each person applying for custody of the children to provide the children with guidance and education, the necessaries of life and any special needs of the children and to act as a parent:

[491] I find that both parents have been able to meet the Lily's physical, educational and medical needs.

[492] Notwithstanding the mother's concern about the father's ability to care for Lily Reesy, during the mother's illness and treatment in 2013, the father was greatly involved in the care of Lily Reesy and cared for the child when the mother went into treatment. The mother clearly trusted the father in caring for the child during this period in her life. The father described his involvement in meeting Lily's physical, medical and educational needs in a very detailed and credible manner. He is clearly very involved in helping her with homework and engaging her in physical activity when Lily Reesy is in his care.

[493] The evidence at trial supports the earlier findings of Justice Cohen in the motions before her as case management judge. Despite the mother's concerns about the father's temperament, there was undisputed evidence that she has relied on the father to care for the child many times in the past when she required his assistance. This fact speaks to the mother's general trust in the father's caregiving.

[494] The father has raised a number of concerns about the mother's ability to provide stability for Lily Reesy because of her history of mental health and substance abuse. There is no question that the mother went through a very difficult time in 2012 and 2013 which no doubt affected Lily Reesy. The mother has made tremendous gains and with the help of her support network, the mother's ability to provide Lily Reesy with guidance, education and the necessaries of life is strong and stable and there is little or no risk of relapse.

[495] To his credit, the father did acknowledge in his testimony that although he believes that the mother is still "sick", it is "different now" because she has a network of people around her. As he put it, "She never had this in place before so I'm more comfortable knowing that…The father then testified that "I'm not here to take away my daughter in any way from her. I want to explain to you that her mother is the most important person in my daughter's life. I agree with that."

Summary of Findings Regarding Custody and Access

[496] Although I have found that there have been material changes in circumstances, I find that these changes only affect the access provisions in the 2010 order, not the provision for custody.

[497] The mother should continue to have sole custody of the child. She is a competent and fit parent who has made good decisions about Lily Reesy's health, welfare and education. As indicated, I find that the mother has addressed her addiction and mental health issues and she has developed and maintained a very strong support network to assist her. She has achieved remarkable stability and provided strong parenting to Lily Reesy since she returned from residential treatment in 2013.

[498] The court was also very reassured by evidence of more recent and positive change by the mother regarding the child's visits with her father. The evidence of Felix Vikhman, although a close friend and support of the mother, was credible when he described in detail how the mother appeared to be supportive and encouraging of Lily Reesy after she came home very happy and excited from a visit with her father.

[499] The evidence is also overwhelming that there is a long history of very poor and any effective communication between the parents. The father's aggressive, intimidating and volatile temper and his abusive conduct towards the mother when he feels his relationship or access to Lily Reesy is being undermined makes joint custody completely unworkable in the circumstances.

[500] As indicated, both parents are able to meet the children's educational needs, however there needs to be one decision maker (subject to consultation) given the parties' inability to make decisions together.

[501] The mother's decision to transfer Lily Reesy to Glen Park Public was a sound one, based on significant concerns about Lily Reesy's need for a different education plan for her needs. The evidence supports that Lily Reesy is doing much better at Glen Park, both academically and socially. However, the father should have been provided with more notice.

[502] The father should continue to have overnight access to Lily Reesy. There was no evidence in this trial that the father had not provided safe and comfortable sleeping and living accommodation for Lily Reesy during his access visits even if he does not have a permanent address and is residing in the Monte Casino hotel, where he had been residing for the past several months at the time of trial. However, based on the number of moves that the father has made since the separation, the father must immediately provide any change of address or contact information to direct directly to the mother, as he is obligated to do as an access parent and he will be so ordered.

[503] The mother's proposal to limit the father's access to three daytime visits only per month will, in my view, only cause more conflict between the parties and potentially expose Lily Reesy to more conflict. The mother's proposal will necessarily involve at a minimum, six exchanges (and two exchanges each day visit) between the parties each month. This will inevitably create potential conflict between them at access exchanges to which Lily Reesy will be exposed.

[504] By maintaining an alternating weekend schedule with the father picking up and dropping off Lily Reesy at school, the need for any contact between the parties will be minimized, thus providing a safe and conflict-free transition for Lily Reesy.

[505] Further, it is not in Lily Reesy's best interests to limit the access to day visits only, given the evidence of the many activities that the father and Lily Reesy do together during the weekends and the homework and evening routine that the father has established during his time with Lily Reesy.

[506] However, the evidence of the father's history of repeated cancellations since the final order, and in particular the cancellations of his midweek access and Thursday access, supports a reduction of the father's midweek access to one overnight per week. It is not in Lily Reesy's best interests to be repeatedly exposed to her father's cancellations. The father does not seem to understand that this is hurtful to Lily Reesy and will damage her relationship with him.

[507] The father's request for one half of the summer holidays is also completely unrealistic given the evidence that the father has rarely if at all exercised the summer access that he was granted in the 2010 Final Order. Further, for a number of years now Lily Reesy typically is away at summer camp during the summer.

[508] Finally, the cancellation clause in the 2010 Final Order has created much confusion and conflict for these parties over the years. The father has also used it as a weapon to cancel access when he is upset with the mother and the mother has used it to unilaterally suspend access without a court order. That clause will be eliminated from the final order that I make.

Police Enforcement Clause

[509] The mother requests a police enforcement clause pursuant to section 36 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended. Mr. Gottlieb submits that there is undisputed evidence that the father is ungovernable and that he will not follow or obey court orders. He submits that a police enforcement clause is necessary in the circumstances of this case to ensure that the father will follow the final order in the future.

[510] Indeed, the father told me during this trial that he would not obey an order that limits his mid-week access to evenings only. He stated that he will simply keep Lily Reesy overnight, given the difficulties in returning Lily Reesy to the mother's home before 7:30 p.m. the same evening during the week. As he advised the Court, "I am telling you now. I'm telling you straight, I will not accept it."

[511] The case law is clear that a police enforcement order should be used sparingly. It is an order of last resort to be made in exceptional circumstances. Involving the police to enforce an order can frighten children and polarize a difficult situation. See Allen v. Grenier [ 1997] O.J. No. 1198 (General Div.); Klinkhammer v. Dolan and Tulk 2009 ONCJ 630; F. (M.) v. M. (C.) (2009), 2009 NSFC 15, 72 R.F.L. (6th) 226 (N.S. Fam. Ct.).

[512] In Patterson v. Powell, [2014] O.J. No. 985, 2014 ONSC 1419 (S.C.J.), Justice A. Pazaratz provides a very thorough and comprehensive review of the law and the factors that a court must address before granting such a police enforcement order. That decision sets out clearly the very negative impact on children of involving police in the conflict between their parents and emphasizes the court's obligation to consider less destructive and more creative alternatives.

[513] There are obvious examples when police enforcement orders are necessary, such as in the case of an emergency: an abduction or kidnapping, an existing danger or risk of harm to a child or where it is necessary to immediately retrieve a child from a dangerous or inappropriate situation and where "time of the essence." See Patterson v. Powell, supra, at paragraph 23.

[514] Although the mother testified that she was fearful that the father would kidnap or harm the child, there was no evidence that the father had ever kidnapped Lily Reesy or caused her harm, despite a number of child protection investigations and previous police involvement.

[515] Ongoing police enforcement clauses should not be used as "a long term compliance strategy" in temporary or final orders. Justice Pazaratz states the following at paragraph 24 of his decision:

… when ongoing police enforcement clauses are requested as a long-term compliance strategy in temporary or final orders, courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit - most particularly, the children themselves :

(b) Has the child already experienced police involvement in family disputes?

(c) How is the child likely to perceive or react to future police involvement?

(d) Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other?

(e) Does the child have any special needs or vulnerabilities?

(f) Have any members of the family had involvement with the criminal justice system or child protection authorities?

(g) Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges?

(h) How are these particular parties likely to respond to interaction with police? Could any of the parties be regarded as being "anti-police" -- such that police intervention might inflame, rather than defuse the situation?

(4) Are there mental health issues the police may have difficulty recognizing or responding to?

i. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes?

j. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy?

[516] In my view, having regard to all of the above factors, making a police enforcement clause in the circumstances of this case will only serve to create more conflict for Lily Reesy and inflame rather than diffuse the issues between these parties. It is my judicial responsibility to craft an order that is in Lily Reesy's best interests, that will reduce conflict, and that I have a reasonable expectation will work for the child and the parties in the long term.

Restraining Order

[517] The mother also requests an order restraining the father from molesting, annoying or harassing her and from coming within metres from her home, pursuant to section 46 of the Family Law Act or section 35 of the Children's Law Reform Act.

[518] Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]". In Fuda v. Fuda, 2011 ONSC 154, [2011] O.J. No. 138, 2011 CarswellOnt 146 (Ont. S.C.), Justice McDermot explained the following at paragraph 31 of that decision:

"It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed . An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature , but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears."

[519] The fear can be subjective, so long as it is reasonable and based on compelling facts. The fear may be equally for psychological safety, as well as for physical safety. See McCall v Res, 2013 ONCJ 254 (Spence, J.); Lawrence v. Bassett [2015] O.J. No. 3038, 2015 ONSC 3707, 65 R.F.L. (7th) 207 (S.C.J.) at paragraphs 12 to 15.

[520] In Lawrence v Bassett, supra, Justice F. P. Kiteley granted a restraining order in circumstances where the applicant feared for her psychological and emotional safety based on the threatening and intimidating email correspondence that she received from the respondent. Justice Kiteley states as follows at paragraph 16 of her decision:

"I accept the evidence of the Applicant from which I infer that, based on the email communications described in her affidavit, she had reasonable grounds to fear that, if the order was not made, her psychological and emotional safety were at risk: his threats constituted a weapon to deter her from proceeding to court and jeopardized her right to seek recourse from the court. As indicated above, subjective fear is sufficient so long as it is legitimate. In this case, the fear raised is not entirely subjective but is corroborated by the content of emails. The restraining order is warranted to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible and to provide the litigants with some element of order in this difficult and acrimonious litigation … [paragraph 16]."

[521] In this case, there is compelling evidence that the mother does not feel psychologically or emotionally safe from the father's volatile temper, his inability to control his anger, and his threats and intimidation towards her and others. The court reviewed the emails filed and many of the emails sent by the father are intimidating, demeaning and disrespectful. The evidence is overwhelming that the father can become explosively angry and make many derogatory and hurtful statements towards the mother and others. The father's conduct during the April 2014 incident in which he approached the mother's apartment and banged repeatedly on the door and then sent seventeen texts after he left in short time span, as reviewed by the police, is further evidence that the father should not attend at the mother's home.

[522] The restraining order will be granted but with a provision that permits the parties to communicate by email regarding access and other issues affecting Lily Reesy, so long as that communication is civil and respectful.

Determination of Child Support

[523] Mr. Dalfen is 36 years old. Lily Reesy is now 11 years old. It is not disputed that he in arrears of his child support obligation is well over $10,000.00, although he has paid for some of her extra-curricular activities when she is in his care.

[524] As a result of the father's ongoing breach of court orders for basic financial disclosure in these proceedings, Justice Murray struck the father's pleadings relating to child support, both retroactive and prospective.

[525] The mother therefore seeks a final order on an uncontested basis that the father's annual income for child support purposes should be imputed at $40,000 and that child support based on that amount should be payable retroactive to September 1, 2014. She further seeks ongoing contribution to section 7 expenses at a proportional contribution rate of 72% based on the father's income imputed at $40,000 per annum and the mother's income at $16,000 annually.

[526] In her decision, Obodoechina v. Ayetor, [2013] O.J. No. 6066, at paragraphs 49 to 59, Justice Carole Curtis provides an excellent summary of the governing principles in determining whether income should be imputed to individuals for child support purposes in circumstances similar to the case here:

"49 The purpose of the Child Support Guidelines, Ont. Reg. 391/97, as amended, is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency: Lee v. Lee

50 Section 19(1) of the Child Support Guidelines addresses imputing income:

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;

51 Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he is capable of earning: Drygala v. Pauli, 2002 CarswellOnt 3228, 29 R.F.L. (5th) 293, [2002] W.D.F.L. 406, 219 D.L.R. (4th) 319, 61 O.R. (3d) 711, 164 O.A.C. 241 (Ont. C.A.), para 31 , 32, 35.

52 There is a duty to seek employment in a case where a parent is healthy: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 38.

53 The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 28.

54 Section 19(1) (a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity: Drygala v. Pauli, supra, 2002 (Ont. C.A.).

55 A parent cannot pursue an improvident career path at the expense of the child: Evans v. Gravely, [2000] O.J. No. 4748 (Ont. S.C.J.), para. 10 .

56 A parent cannot avoid child support obligations by a self-induced reduction of income: Weir v. Therrien, [2001] O.J. No. 2612, 20 R.F.L. (5th) 199, 106 A.C.W.S. (3d) 494 (Ont. Sup. Ct.), para 25 .

57 The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support.

58 In Duffy v. Duffy, [2009] N.J. No. 245, 2009 NLCA 48, 73 R.F.L. (6th) 233, 289 Nfld. & P.E.I.R. 132, 2009 CarswellNfld 211, 179 A.C.W.S. (3d) 879 (Nfld & Lab. S.C. - C.A.), para. 35, the Newfoundland and Labrador Court of Appeal set out a list of general principles to be considered regarding child support and when determining whether to impute income:

The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;

A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control;

The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;

A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and,

A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

The support recipient bears the burden of proving that the support payer is intentionally under-employed. If the court is not satisfied that the support payer is intentionally under-employed, the inquiry ends there. Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable. The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish an acceptable reason. Intentional underemployment requires a voluntary act by the respondent: Rilli v. Rilli, [2006] O.J. No. 4142, 2006 CarswellOnt 6335, 151 A.C.W.S. (3d) 1130 (Ont. Sup. Ct.), para 18 ."

[527] In this trial for the first time, the father produced notices of assessment for 2012 2013, and 2014 indicating very limited income ranging between $11,000 and $23,000 per annum as a self-employed person or independent contractor, and sometimes salaried employee.

[528] However, based on his testimony at this trial, the father has at least $30,000 annually in living expenses, including the $1,800.00 per month for his hotel suite at the Monte Casino. The father testified that his family pays for his living expenses however he offered no evidence to prove this. He appears to be capable of living a comfortable lifestyle notwithstanding his unemployment.

[529] The father further testified that he was unable to currently work as a result of chronic back issues and a shoulder injury that he sustained from a fall in 2015. The father did not provide any medical evidence regarding the impact of these injuries on his ability to work.

[530] According to a record of employment that the father did provide as an exhibit to his sworn affidavit dated December 21, 2015, he was earning a regular income of approximately $1,300.00 bi-weekly from Ontario Wholesale Energy before he left that employment.

[531] Mr. Dalfen is an intelligent, educated, healthy, able-bodied person who is capable of obtaining full-time employment and should be paying child support in accordance with the Child Support Guidelines for Ontario. The court finds that a fair and reasonable amount of income to be imputed to him is $30,000.00 per annum, commencing in October 1, 2014 which is the first full month after Ms Neger issued, served and filed her amended motion to change and sought increased child support from Mr. Dalfen.

[532] The father should also be contributing to Lily Reesy's reasonable section 7 expenses, in accordance with section 7 of the Child Support Guidelines and this will be so ordered.

7. Conclusion and Final Order

[533] The parties have been in court about Lily Reesy for eight years, almost all of her life. This needs to stop now. By all accounts, Lily Reesy is an intelligent, wonderful child with many talents. She is well loved by both of her parents, her grandparents, extended family and close family friends. She deserves to have a relationship with both of her parents that is free of acrimony, hostility, and conflict so that she can develop into a healthy and well-adjusted person who reaches her fullest potential. The court urges the parties to take these words to heart and to conduct themselves in a civil, respectful and child-focused manner for the sake of Lily Reesy.

[534] I make the following final order:

1. All existing custody and access orders are terminated.

2. The mother will have sole custody of the child, Lily Reesy Dalfen, born May 1, 2005.

3. Commencing on the father's next regular access weekend, the father shall have access with the child as follows:

a) on alternate weekends from Fridays after school and no later than 3:30 p.m. until Monday morning before school commences. The access shall extend until Mondays at 8:00 p.m., if the Monday is a statutory holiday.

b) every Tuesday after school and no later than 3:30 p.m. until Wednesday morning before school commences.

4. Transportation and access exchange: the father or a third party designate shall pick up the child at school and return the child to school the next morning. When the father is returning the child to school the next morning, the child shall be delivered to school on time.

5. If the access exchange occurs on a non-school day, all access exchanges shall take place at the second cup coffee shop at Lawrence Plaza at Bathurst and Lawrence.

6. Each parent shall be entitled to have reasonable telephone and "Skype" or "Facetime" contact with the child while she is in the care of the other parent. Such telephone contact shall not exceed two calls daily and shall not be permitted to interfere with the child's ordinary meal and night routines. The mother shall make best efforts to facilitate this access. The child shall also be able to communicate with either parent directly by calling on her mobile device. The parents shall be able to call the child directly on the child's mobile device.

7. Neither parent shall make disparaging or derogatory comments or talk negatively about the other parent in front of the child.

8. The father shall be restrained from directly contacting or communicating with the mother, subject to the provisions in paragraph 8 and 9 of this Order.

9. The father shall be restrained from coming within 50 metres of the mother's apartment building at 525 Lawrence Avenue West in Toronto, Ontario.

10. The father shall immediately advise the mother in writing of any change of address or contact information and no later than 24 hours after such change occurs.

11. Unless there is an emergency, the parents shall communicate by email and shall respond to all time-sensitive emails concerning the child as soon as possible and no later than 12 hours. In the event of an emergency, a parent is permitted to text or call the other.

12. The mother shall consult the father by email about any major decision concerning the child. After consultation, she will make the final decision.

13. The father shall have permission to meet with any doctor, medical professional, teacher, leader, coach, principal or other professional who has contact with the child in order to obtain information about the child. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this.

14. The father shall be permitted to obtain his own copies of school report cards and notices directly from the school. In the event that the school does not provide second copies, then then mother shall provide the father with copies of the child's report cards.

15. The father shall be given notice of any school events to which parents are invited and be permitted to attend. He shall also be permitted to arrange and attend at parent-teacher meetings at different times than the mother.

16. The mother shall provide the father with a copy of the child's health card.

17. The mother shall provide the father with the schedules of extracurricular activities of the child as soon as she is enrolled in same, and promptly notify him of any changes to these schedules. The father shall not enrol the child in any extra-curricular activities without the mother's written consent if the activity interferes with the mother's scheduled time with the child.

18. Either parent may attend at special events at the child's extracurricular activities outside of school on days that they are not scheduled to be with the child, such as for a concert, final competition or game. Neither party shall communicate with the other during such events, although the child shall be permitted to greet the other parent, provided that they return to the parent that they are scheduled to be with at that time.

19. The father shall be listed as one of the emergency contacts with any school or any service provider (such as doctors, dentists, camps or counselors) for the child. The father shall provide the mother with any alternate emergency contacts in writing and she will provide those to the appropriate service provider.

20. Summer holidays: the father shall have one week with the child during the summer holiday being from Sunday pickup at 6 PM to the following Sunday drop off at 6 PM. The one week shall take place at a time other than during the period when the child is attending at an overnight summer camp. The father shall advise the mother by email of the one week he requests by May 1 of each year for the upcoming summer.

21. In even-numbered years, the child shall spend the entire March school break with the father, from 6:00 PM. on the Friday preceding the commencement of the March school break until Sunday at 6:00 PM at the conclusion of the March school break, in even-numbered years. In odd-numbered years, the child shall spend these times with the mother.

22. The child shall spend every Mother's Day with the mother from 10:00 a.m. onward, if she would otherwise be with the father, and every Father's Day from 10:00 a.m. to 6: 00 PM if she would otherwise be with the mother.

23. Jewish holidays:

a. each parent shall spend Shavuot and Rosh Hashanah with the child in alternating years, with the child spending Shavuot with the father in odd years and spending Rosh Hashanah with the father in even years. Each access visit for these two holidays shall not exceed 72 hours from the time of pickup to the time of drop-off;

b. the child shall spend the first night of Pesach with the father in even years and she shall spend the second night of Pesach with the father in odd years. The father shall pick up the child at 4 PM and shall drop off the child at 4 PM the following day. Each access visit shall not exceed 24 hours from the time of pickup to the time of drop-off;

c. each year the child shall spend the first day of Sukkot with the father from pickup at 4 PM to drop off at 4 PM the following day. Each access visit shall not exceed 24 hours from the time of pickup to the time of drop-off;

d. for all Jewish holiday access, the father shall confirm no less than seven days prior to the date and time of the commencement of the access visit that the access visits are going ahead. The father shall confirm by email only to the mother.

24. All other statutory holidays shall be shared in accordance with the regular weekend access schedule.

25. The holiday access schedules set out above shall take priority over the ordinary access schedule.

26. The parents may agree on further and other access.

27. The parents are not to change this schedule without the consent of the other parent. The only exception is if a child is too ill to exercise access on the father's weekend, in which case the mother must provide the father with a doctor's note evidencing this after the weekend if requested by the father. If a visit is cancelled for this reason, it shall be made up on the following weekend.

28. The mother shall not move the child's permanent residence further than twenty-five kilometres from her current residence without the father's written consent or a further order of the court.

29. Travel: Neither party shall remove, or shall help anyone else to remove the child from the Province of Ontario, without the consent of the other party. Such consent not to be unreasonably withheld provided that: the party requesting travel with the child shall provide a detailed itinerary, including departure and return dates, flight numbers or other transportation plans, place of stay and emergency contact information. Neither party shall deny a reasonable travel request and will provide notarized consents if requested.

30. Commencing October 1, 2015, the father shall pay the mother the Guideline Table amount of child support for one child based on income imputed at $30,000.00 per annum, being basic child support of $245.00 per month. The arrears of support are payable at a rate of $100.00 per month, commencing January 1, 2017.

31. The father shall also contribute to his proportional share of the child's reasonable section 7 special expenses, upon written notice by the mother. These payments shall be paid on the first day of each month. At the present time, the father's proportional contribution shall be fixed at 60% of the child's section 7 expenses.

32. The parents shall exchange their complete income tax returns and notices of assessment, and the mother shall provide the father with all Reesys for special expenses by June 30th of each year. The parties are expected to annually adjust child support in accordance with the Child Support Guidelines.

33. A support deduction order shall issue.

[535] If the parties are unable to resolve the issue of costs, they may make written submissions to the court.

Released: December 22, 2016

Signed: "Justice Sheilagh O'Connell"