Court File and Parties

Date: January 3, 2017

Court File No.: D46760/156

Ontario Court of Justice

Re: Vashti Wilson – Applicant

And: Jamie Desouza – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Lauren Israel, for the Applicant
• Pamila Bhardwaj, for the Respondent

Heard On: December 16, 2016

Decision on Temporary Motion

1. Introduction and Background

[1] This is the return of an ex parte motion heard on November 17, 2016 in which the Respondent ("father") was granted permission to proceed on an urgent basis before a case conference and he was granted temporary custody of the child, Shakur Rain Desouza-Wilson born Oct 23, 2008 ("the child").

[2] The parties are the biological parents of the child.

[3] On consent on June 24, 2009 the Applicant ("mother") was granted final custody of the child and there was a final order that the father not remove the child from the City of Toronto without the written consent of the mother or a court order. There was a temporary order for supervised access to the father and an order that he pay child support of $150 per month pending further disclosure.

[4] On consent on October 14, 2009 the father was granted final access on alternate week-ends from Friday evening to Sundays with the times being arranged between the parties and the father was responsible for all transportation arrangements. The father on a temporary basis was ordered to pay child support of $195 per month.

[5] On consent on February 19, 2010 on a final basis the father agreed to pay child support of $195 per month.

[6] On consent on January 11, 2011 the parties agreed to changes to the order of October 14, 2009. They agreed to a joint custody order with primary residence of the child to be with the mother. In addition to his alternate week-end access, the father was granted further access namely every week for two days from 6:00 p.m. to the next morning with drop off at the daycare and other access as agreed upon. The father continued to be responsible for all transportation arrangements.

[7] In September 2016, the father commenced a contempt motion with a first return date of October 7, 2016 on the basis that the mother was denying him access in accordance with the court order of January 11, 2011 and that he had not seen his son since June 2016. The father deposed that in May he had been contacted by the child's school as the mother was not available. The father deposed that he was told by both the children's aid society and the school to return the child with him to St. Catharines, where he resided, until the matter could be resolved. About 4 days later the mother attended at his home to pick up the child and since then she did not permit him access as she feared that he would not return the child.

[8] The mother sought an adjournment of the motion by Form 14B that was refused. The mother did not attend the hearing on October 7th as she alleged she was recovering from surgery. The mother was allowed to participate by telephone conference. The mother filed a response alleging that she was not violating the court order as the order of June 24, 2009 ordered that the father not remove the child from the jurisdiction of the City of Toronto and since the father moved he refused to disclose his address to her. She alleged that the father kept the child in May 2016 and she needed to involve the police. The mother agreed that the father had not seen their child since the incident in May 2016 and that she feared he would not return the child. The mother stated that she was not denying access to the father but instead deposed that she put a stop to the father violating the court order by removing the child from the City of Toronto.

[9] At the court hearing on October 7th, the mother again sought an adjournment which was opposed by the father. As a term of the adjournment, which was opposed by the mother, I ordered that the father have access on every Sunday from 9:00 a.m. to 3:00 p.m. The father was required to confirm his access by Saturday. The father was advised to bring a Motion to Change to permit him to bring the child to his residence in St. Catharines. The contempt motion was adjourned to November 18th with leave for the father to bring any Motion to Change returnable on the same date.

[10] On October 31, 2016 the mother submitted a further Form 14B to adjourn the father's motion scheduled for November 18th. She indicated that the motion was "unopposed" but as there was nothing from the father indicating he agreed to the adjournment, the mother's request for an adjournment was denied. The father later confirmed that he was not aware of the motion and it only came to his attention when his lawyer attended at the court to review the file.

[11] On November 17, 2016 the father initiated his ex parte motion. Despite the fact that the parties were scheduled to be in court the next day, I granted the motion and placed the child in the care of the father, permitted the father to remove the child from Toronto and ordered that the police assist in enforcement of the order. I endorsed that the mother could address the concerns raised by the father on the next day, including his concern that the mother would abscond with the child if given notice of the motion.

[12] On November 18, 2016 the parties attended court. The father was given leave to file a further affidavit attaching a letter from Jacqueline Knibb, a social worker with the Children's Aid Society of Toronto dated November 17th outlining its concerns and involvement. Ms Knibb confirmed that the society had received information from the child's school regarding concerns about the child hearing voices, speaking about death and feeling sad at school. The society verified a risk of mental, emotional harm or developmental condition due to significant conflict over custody. The case was then transferred for ongoing services to ensure the mother followed up with the child's health needs. In October 2016 the society received further information from the child's new school regarding concerns about the mother's mental health and how this may be impacting the child. The school reported that on two separate occasions the mother had gone into the child's classroom and attempted to bully students who she felt had wronged her child. It was reported that despite being witnessed by teachers and other students the mother denied that anything happened. Further, the school reported that the mother recently changed the child's name to "Ethan Rain" and that this was confusing to the child who wanted to be called Shakur. The mother produced a new birth certificate dated August 8, 2016. The school also reported to the society worker that the mother had removed contents from the child's OSR record pertaining to Shakur's name and replaced them with documents in his new name. On November 9th the society again received a call from the school reporting that the child had been sexually assaulted by another student. The society confirmed that it verified concerns that the mother was causing a risk to the child that would likely cause harm. It was concerned about the negative response the child received from the mother after he was the victim of sexual assault. The letter concluded by indicating that it was attempting to complete its investigation in regard to the change in name and the mother's mental health. At a minimum the matter would be proceeding to court on a supervision order.

[13] At the court attendance on November 18th the mother who was represented by counsel would not consent to the release of the society's records or to any access to the father. Based on the evidence before the court and as the mother wished to file further responding materials, the motion was adjourned with the child remaining in the custody of the father. Further, the mother was ordered to release to the father all of the child's identification documents and health card by November 24th.

[14] The motion to be heard on its merits was then adjourned to December 16th. Leave was also given to the father to bring a motion for the release of the children's aid society's records on notice to the society and for an order for termination or suspension of his child support obligation. The mother was to serve and file her response to the ex parte motion by December 2nd and any reply by the father to be served by December 14th. The mother then retained her present counsel who was unaware of the timelines for filing and was given a further extension to serve and file her response by December 15th. As a result the father was given leave to file his reply affidavit on the hearing date.

[15] The father relies on his affidavits sworn November 17, 18, and his reply affidavit sworn December 16, 2016. The mother relies on her affidavit sworn December 14, 2016.

[16] After submissions were made, in reply to my inquiry, I was advised that the mother had not complied with my order of November 18th to provide the father with the child's identification documents and health card. Mother's counsel undertook to forward the documents to the father's counsel.

[17] I also requested that the parties agree to access over the holidays. The parties were able to do so and filed a consent that provided that the child would be in the mother's care from December 17th to December 18th, December 24th from 10:00 a.m. to 8:00 p.m. and from December 31st to January 2nd, 2017. I advised that I would release a written decision.

[18] Subsequently on December 20th, the mother attended at the courthouse and filed a further affidavit that she wished the court to consider with respect to the motion that had been argued. I advised court staff to return the affidavit to the mother as I would not consider it with respect to the motion that was under reserve.

[19] On December 28th the mother filed a Notice of Change in Representation indicating she was now representing herself.

2. Summary of Evidence Relied Upon on the Motion

[20] The father raises the following concerns about the mother in support of his urgent motion:

a) The mother denied him access over the summer on the basis that he was in breach of the court order of June 24, 2009 that provided he not remove the child from the City of Toronto. This was despite the fact that the mother was aware that he moved to St. Catharines at the end of 2013 and despite the fact that he saw the child every week-end after he moved, picking the child up on Friday and returning the child to school on Monday mornings;

b) In September 2016, the father contacted that child's school, St. Barbara Catholic School and was told that the child was no longer at the school and the file was marked "moved." He could not obtain any information about where the child was now attending school;

c) The father then contacted the children's aid society and was told that the society was involved due to concerns about his son wanting to kill himself and that he had drawn a picture of people killing each other. By late September the father was finally provided with the name of the child's new school;

d) On the advice of counsel the father attended at the child's new school, Willow Park Public School, to obtain a copy of his records and met with the principal Ms Mari who asked if he was aware that his son had been sexually assaulted by another student at the school. The father was told that the child had disclosed this to his Special Education teacher and then to the principal. The father was further told that the school did not have the father's contact information in their file. The father was also told that the school had contacted the children's aid society about a week before this incident to report that the mother, who had been left alone with the child's OSR file, had removed documents and replaced the documents with new ones that now stated that the child's name was, "Ethan". The new identity documents included a student registration form, a new birth certificate dated August 8, 2016 and a new health card issued on October 15, 2016 all with the name "Ethan";

e) The principal also reported to the father that she had told the mother how confusing it was for the child who identified as Shakur and wanted to be called Shakur to now be called by another name but the mother insisted that her son's name was now "Ethan" and that is how she wanted him to be referred to;

f) The principal further reported to the father that the child was struggling with gender identity. The father was aware at a younger age that his son liked to dress up as a princess and made comments that alerted him to the fact that he could be a transgender child. The father took it upon himself to research and educate himself on the issue;

g) The principal also told the father that the mother became angry when she had asked for the father's information and was told that he had no access. The mother also told the principal that she was not allowed to speak to him or give him any information about his son. The father was also told about two separate incidents where the mother came into the school and approached a little boy and began to shout at him and threaten that she knew where he lived and that she was going to call the police. Despite being warned about such behaviour several weeks later the mother again attended the school and shouted at another child;

h) The principal also advised the father that the child was not attending school despite the mother being told that the child who raped his son has been removed. The mother would also not consider returning the child to his old school as she was angry that they had called the children's aid society. A letter from the principal regarding the school absences was attached to the father's affidavit;

i) The society worker, Ms Knibb advised the father that she accompanied the mother and child to the SCAN clinic. The mother insisted on the examination despite being advised that it was past 72 hours since the incident and unless the SCAN examination is done in the first 72 hours it is not likely to result in any evidence. The worker also advised the mother that such an examination can be hard on the child and may have a negative impact on him;

j) The child's school records indicated that the mother had been offered services for the child which she had either refused or not pursued. In the child's June 2014 report card it was noted that he was absent 39 times and he was exhibiting disruptive behaviour and he had difficulties in focusing and participating in the classroom. In October 2014, a school based support learning team was convened, it appears the mother did not attend and there is a notation that there was no permission granted for a social work referral made in January 2014. In a report dated November 11, 2015 the school again requested consent for the school social worker to provide support for the child's social and emotional issues and to assist the family in connecting with community resources. Permission was again not provided. In January 2016, the school offered a student support services conference so that the needs and concerns of the child could be identified and a referral made to the school social worker. The form and permission were never signed by the mother.

k) The father was not aware of the repeated requests from the school for a social worker. He deposed that he recalled one telephone call and he gave his permission. He admits that he did not follow up and should not have trusted the mother to do so;

l) The father called the children's aid society and essentially received the same information that had been relayed to him by the principal and as was set out in the letter dated November 17th filed on this motion. The father deposes that the society worker also advised him that she had concerns about the mother not following up with treatment and counselling for their son. The society worker reported that the mother had inappropriately questioned the child about his disclosure of the rape and she was not sending him to school. The society worker reported that the mother, in her presence and in the presence of the child, called the special education teacher and shouted at her and blamed her for the rape and demanded that the child confirm that there were other incidents also; and

m) Overall the father expressed concerns that the mother does not have the insight about the emotional needs of their son and that she has not followed through with any recommended services, that she has concealed important information from him and did not provide his contact information to the school. Further, the recent events in refusing to permit him access, changing the child's name and keeping him out of school raised issues about her absconding or hiding her whereabouts.

[21] The mother in her responding affidavit denied many of the allegations made by the father. Specifically she deposed that:

a) The father moved to St. Catharines in 2014 without advising her. But in the next line of her affidavit she deposes that she knew he moved but that he withheld his address and she was unaware he was living in St. Catharines. She then states that she was aware that the paternal grandparents who reside in Ajax were often responsible for picking up and dropping off their son at school. She then deposes that she never agreed that the father could be out of the jurisdiction of the City of Toronto with their son. The mother deposes that it was only when the father over held the child in May 2016 did she learn he had moved to St. Catharines;

b) The mother denies that she ever agreed that the father could have access for one month over the summer in 2016 and that the father over holding the child in May created a great mistrust;

c) In the Spring of 2016, the mother alleges that the child was experiencing significant bullying at school as well as auditory hallucinations. The mother deposes that she was taking the child to the doctor and that the father was aware of this as the paternal grandfather had also taken the child to a doctor. Attached to the mother's affidavit is a note from a medical clinic dated May 12, 2016 referring the child to a pediatric psychiatrist. The note also confirmed that the child was brought by his paternal grandfather who stated that the child had injured a school classmate by sticking a pencil in his arm and that the child was hearing voices. The next note produced by the mother, as proof that she was seeing a doctor, is from a walk in clinic and is handwritten and although quite illegible does states that the plan was "to ER to crisis";

d) The mother alleges that the father was aware that there would be a change of school in the school year 2015/2016 as the child was being bullied and she produced copies of text messages between herself and the father;

e) The mother also deposes that she advised the father of their son's rape and attached various text messages she sent to the father on November 10th between 1:05 a.m. and 1:18 a.m. She also deposes that she tried to telephone the father but his partner blocked her calls. The text messages state that the father should contact her due to an urgent issue and complains about his partner blocking her number;

f) The mother deposes that she had very little contact with the school principal due to her concerns regarding Ms Mari's attitude towards her as a woman of colour. She states that due to her discomfort she dealt directly with the vice-principal, Mr. Lewin;

g) The mother states that she reviewed the child's OSR records twice, once in the presence of a school secretary, when it is alleged she removed and replaced documents, which she denies and the second time in the presence of Mr. Lewin. Mr. Lewin's letter, attached to the mother's affidavit, confirms that on November 1st the mother attended at the school to obtain information from the child's OSR as she was concerned about his academic progress and in particular about his literary skills. The mother believed he suffered from dyslexia which can be hereditary. The mother claimed she had seen signs of dyslexia in her son and in members of the family. On that day Mr. Lewin accompanied the mother to the paediatric clinic, located in the school, where she obtained forms to be completed in order for the child to begin the process of undergoing a psycho-educational assessment. Mr. Lewin also introduced the mother to a resource teacher to begin the process for her to meet the school support team to further discuss her concerns;

h) The mother also provided a copy of her inquiry on November 1, 2016 regarding a private psychological assessment for a cost of $2,700;

i) The mother deposes and attached another letter from Mr. Lewin dated December 6th, confirming that he met with the mother and the children's aid society worker, Ms Knibb on November 9th to follow up on their discussion regarding the sexual abuse of her son and that the mother advised that she would not be returning the child to Willow Park school. The letter also confirms that about a month earlier he recalled discussing with the mother that she wished to enrol the child in a private school specializing in teaching children with dyslexia. The mother provided him with proof that the child had been registered in Cardinal Leger Catholic School on November 21st, 2016. The mother deposes that this is proof that she did not simply keep the child out of school as alleged by Ms Mari, the principal;

j) With respect to the allegations that she has not met the medical and emotional needs of the child, the mother deposes that she was involved with the Shoniker Clinic in the summer of 2016 as a result of her son experiencing auditory hallucinations. The letter from a psychiatrist at the Shoniker Clinic indicates the child was referred to the clinic on May 16th, 2016 and seen on June 28, 2016. The child confirmed that he was no longer hearing voices, that he was being bullied at school and that he was under stress about his parents' relationship. The child also said that his grandmother had passed away and he was supposed to start a new school. The letter concluded that the child was not suffering from any psychiatric diagnoses and the symptoms were related to stress. The recommendation was for "F/U as needed" [follow up as needed] and "no therapy".

k) The mother also produced a letter from Aisling Discoveries dated November 21, 2016 that indicates the mother had been referred to Aisling on June 1, 2016 by the Shoniker Clinic and an appointment had been scheduled for July 14th. The mother then cancelled the appointment as the child had seen a psychiatrist at the Shoniker Clinic and she had been told that "there is no mental health concern" with the child. The mother re-contacted the agency on November 11th due to the child being sexually assaulted and requested that the child needed counselling. After the agency assigned a worker, as the child was no longer in the mother's custody, the agency could not offer services for the child but the worker was prepared to inquire about possible supports for the mother;

l) In further support of the mother's position that she followed up on the child's medical needs she attached a note from the child's paediatrician dated November 2, 2016 stating that he saw the child who appeared medically healthy and that the mother believed he had dyslexia. The doctor recommended the child be seen by the school psychologist;

m) With respect to the allegations that she entered the classroom on 2 separate occasions to bully a child, the mother acknowledged that she responded inappropriately to the child but only states she told the child "firmly" to leave her son alone. The mother denied the second incident and only admits that she raised her voice to the supply teacher, not the child, as the teacher was not taking her concerns seriously;

n) With respect to the name change, the mother deposes that the father, principal and society worker are "inventing a massive issue". The mother deposes and provided a copy of the child's statement of live birth and birth registration indicating that the child was registered with the name "Ethan Rain Desouza-Wilson". She deposes that despite the legal name of Ethan, the child has always been called Shakur that recognizes his black identity. The mother provided a copy of the child's registration at St. Barbara Catholic School dated April 12, 2013 that indicated the child's legal name of "Ethan" and a preferred name of "Shakur". The registration forms also indicate the father's contact information and that the parties have joint custody;

o) The mother further denies the allegations that the child said he wanted to kill himself, drew a picture of people killing each other or that he has gender identity issues;

p) The mother acknowledges that she had a difficult relationship with the society worker as she did not find her very understanding in light of the trauma suffered by her son. She agrees that she insisted on an examination at SCAN to ensure the child had not been exposed to a sexually transmitted disease; and

q) The mother acknowledges that she has made some poor decisions but none were made with any intention. The mother deposes that she never refused support services for her son but rather she identified services that she preferred and that she has sought counselling services after careful research.

[22] In reply to the mother's allegations that she did not know the father was working and living in St. Catharines, the father attached a letter from his employer confirming that the mother was contacting the employer from April to June 2014 asking about where the company was located in the Niagara Region and why the father needed to work on Saturday evenings. The employer also confirmed that the father was using his truck to go pick up the child on Fridays and return him to school on Mondays and that he allowed the father to start work later on Mondays. The father deposes that his son told him that he told his mother about spending week-ends in St. Catharines and that his mother would question him about what he was doing.

[23] In reply, the father also questions the validity of the text messages the mother alleges she sent to him which he deposes he never received. He deposes that he and the mother only communicated by using an application called, "What's App" which was confirmed by the mother in her responding affidavit to his contempt motion.

[24] With respect to the child's name, the father deposes that the only name that the child has been called is Shakur and attached a copy of his health card issued in 2011 with that name. The father deposes that it is his belief that the mother registered the child under the name of "Ethan" in a new school in September 2016 as a means of hiding him and making it difficult for the father to locate him as he was searching for a child named "Shakur".

[25] In his reply, the father attached police records of the mother that were unavailable to him when he swore his initial affidavit. However, this is not proper reply evidence and I have not relied on these documents as the mother has not had an opportunity to respond or explain the circumstances of the incidents.

[26] I have reviewed in considerable detail the evidence relied on by each party that led up to the urgent ex parte motion and the evidence presented on the return of this motion to outline the divergent information before the court.

[27] I have considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examination and are meant to come to a reasonable acceptable solution pending a final settlement or a trial. Much of the evidence presented on this motion is based on hearsay statements, generally in the form of unsworn letters made by a children's aid society social worker, therapists, the principal and the vice-principal of the child's school. I find that evidence from such disinterested third parties is credible and trustworthy and can be relied upon at this stage of the proceedings. I also find that I can rely on the information contained in the school records and medical notes. Further, both parties filed lengthy affidavits in support of their positions. However, where there is a conflict, I prefer the evidence of the father as the mother's explanations for her actions are either contradicted by third party information or simply do not make any common sense.

3. Applicable Statutory and Legal Principles Regarding a Motion to Change

[28] Section 29 of the Children's Law Reform Act provides that a court shall not make an order that varies an order with respect to custody or access unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[29] This is a two-step process:

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

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

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

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

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

24. Merits of application for custody or access.

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

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

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

(i) each person entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

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

4. Application of Findings of Fact to the Applicable Legal Principles

[33] I find that in this case the father has met the onus on him to prove that there has been a material change in circumstances that affects or is likely to affect the best interests of the child. I find that since the order of January 11, 2011 for joint custody with primary residence to the mother, the mother has not addressed the child's educational and emotional needs. The mother has not involved the father in any decision making regarding the child and she disrupted the child's long standing relationship with his father.

[34] I make these findings based on the following findings of fact:

a) The mother terminated the father's parenting time as of June 2016 without any valid reason. Although the mother relies on the term of the October 14, 2009 order that prohibited the father from removing the child from the City of Toronto, she must have been aware that as of 2013 the father no longer resided in Toronto. The mother was calling the father's employer to obtain information about his job site in the Niagara Region. Also on the child's school registration form dated April 12, 2013 she listed the father's address as being in Ajax. Further, it is inconceivable that she would not have asked the child questions about where he went and what he did during the time he spent with the father for 3 years. I also note that the court orders of February 19, 2010 and January 11, 2011 both list the father's address as being in Ajax. Therefore it is obvious the mother was aware the father no longer resided in Toronto and she could not possibly have thought that he was exercising alternate week-end access in Toronto. If the issue was that she did not know his exact address in St. Catharines, then surely she could have simply requested the address. Despite the mother producing several text messages she allegedly sent to the father, there is no text asking for his address or raising this as an issue;

b) Regardless of the reason for the parties consenting to the order of June 24, 2009 that prohibited the father from removing the child from the City of Toronto, those concerns must have long abated. The mother simply used that term of the order, that had been superseded by several later orders, as a convenient excuse to terminate the father's access in June 2016;

c) The mother did not address the child's learning and behavioural issues at school. She did not attend a student support services conference offered by the school in October 2014 or again in January 2016. Instead the mother has self-diagnosed the child as suffering from dyslexia;

d) The mother did not consent to the child being referred to the school social worker that was offered in January 2014, in October and November 2015 and again in January 2016;

e) The mother did not follow up with counselling for the child. It was the paternal grandfather who at the request of the father took the child to the doctor due to concerns about the child's auditory hallucinations. It was only after that the mother made an appointment for the child to be seen by a doctor and then the child was referred to a psychiatrist. Despite the fact that there was no psychiatric diagnosis, the mother did not follow through with a previously scheduled appointment for counselling through Aisling Discoveries. The mother did not seem to appreciate that the child would benefit from counselling based on the finding that the child's auditory hallucinations were stress related, that he was being bullied, that he was upset because his grandmother died and he was stressed because of his parents' conflict. Further, the school had already recommended on several occasions that the child be seen by the school social worker due to their concerns about the child;

f) The mother caused the child emotional harm due to her insistence that he be examined at SCAN after he divulged that he had been sexually assaulted by an older student despite being told that it was too late for the examination to provide any evidence. She also improperly questioned the child regarding the incident;

g) The mother embarrassed the child on 2 separate occasions by barging into his classroom and shouting at another student who she felt was bullying the child;

h) When the mother registered the child in November 2016 at the Cardinal Leger Catholic School, she did not include any information about the father on the registration documents or indicate that there was a joint custody order. There is no proof that the mother ever advised the father of the details of the new school; and

i) Despite the mother's explanation that the child's legal name is "Ethan" and that he was called Shakur as this is a name that helps him identify with his cultural roots, she does not explain why suddenly after almost 8 years she is telling everyone to call him "Ethan". The mother appears to have no appreciation as the upheaval and emotional distress this would cause the child who his entire life had been called Shakur. I accept that the father's concern that this was an attempt by the mother to make it difficult for him to locate the child and obtain information about him. Further, although the mother denies that she removed any documents from the child's OSR records and replaced them with documents listing "Ethan" as the child's name, she never explained why she attended on two separate occasions to review the file or explain the existence of the various documents with the child's new name.

[35] Having found that the father has met the onus on him to prove that there has been a material change in circumstances that affects or is likely to affect the best interests of the child, the next step in the analysis is a consideration of the parenting arrangements that are now in the child's best interests.

[36] I have considered the factors as set out in section 24 of the Children's Law Reform Act and find the following to be relevant:

a) Both parents clearly love the child and both parents have been involved in the child's life. They consented to a joint custody order;

b) The mother focuses on the fact that the father was not initially involved in the child's life. But based on the various court orders, the father's access increased over the years and the mother admitted that in the last several years the child has spent almost every week-end with the father;

c) The father and his partner have a child and the father deposes that the child has a close and loving relationship with his partner and his half-sibling. The mother did not dispute this or raise concerns about the father's partner. The mother did not raise any concerns about the father's parenting abilities;

d) The child has lived in the primary care of the mother but he has spent significant time in the care of the father;

e) The mother in the last several years has failed to meet the educational and emotional needs of the child. Although she now deposes that she has taken steps to arrange for counselling at Aisling Discoveries in the past she has not followed through with any counselling for the child. The mother did not explain why she did not consent to the child seeing the school social worker or why she did not see the need herself for counselling for the child who clearly was in distress in May 2016 if not earlier. Although the mother has now provided a copy of information about a private psycho-educational assessment, she did not explain why she did not meet with the school staff and co-operate in arranging a free assessment through the school. The mother has not actually arranged for the assessment and does not indicate if she has the funds to pay for it;

f) The mother has had a difficult relationship with the staff at both of the schools the child attended. The principals at both of those schools reported their concerns to the children's aid society. The mother acknowledged that she had a difficult relationship with the children's aid society's social worker assigned to her and did not dispute that she did not follow the advice of the children's aid society;

g) The mother did not keep the father, who was a joint custodial parent, advised of many of the issues the child was facing or keep him advised of the recommendations made by the school with respect to referrals to the school social worker or for other educational supports. The father acknowledges that he should have been more pro-active in following up with the school;

h) Since the child has been in the care of the father, he has been enrolled in school and he has already begun counselling. The father deposes that the school has resources in place to assist the child. The father is open to listening to the advice of professionals regarding what supports the child needs whereas the mother appears to be convinced that the child has dyslexia and that is the reason for his academic difficulties. At present there is no diagnosis for the child's difficulties in school but this is the fault of the mother who did not pursue the opportunities offered by the school for the child to be assessed;

i) The father's plan is for the child to continue to live with him, his partner and their child, for the child to continue attending the local school, continue with his counselling and enrol the child in extra-curricular activities.

j) The mother's plan is for the child to attend at the school she enrolled him in before he was placed in the care of the father on November 17th. She deposes that she has already followed through with counselling at Aisling Discoveries, that she has looked into a psycho-educational assessment and will work co-operatively with the children's aid society. The mother states that the church has always played a large role in her family. The mother also states that the father has dyslexia and she has begun to identify the same traits in the child. The mother also points out that she has worked in the mental health field since 2011 as a personal support worker and worked a social service worker since 2016;

k) Although both plans will meet the needs of the child, the fact that the mother has not followed up with any of the services that were offered by the school and did not arrange for and follow through with any counselling for the child weigh heavily in favour of the father's plan;

l) The father has the ability to work co-operatively with service providers and follow their advice whereas the mother has had difficulty working with the child's teachers and with the children's aid society while the child was in her care; and

m) The father is the parent best able to ensure that the child maintains a relationship with the mother if he is placed in his primary care.

[37] In summary I find that the father is the parent most capable of meeting this child's complex needs. The child has suffered a serious trauma, has a history of becoming stressed and having auditory hallucinations, has made threats of self-harm and has had learning and behavioural difficulties at school. He needs a parent who can ensure he obtains the assistance he requires at school and a parent that can meet his emotional needs. The father is the parent best able to ensure that the child is listened to and if he has issues with his gender identity or has a learning disability, he is the parent best able to obtain and follow the advice of professionals and work co-operatively with those professionals.

5. Conclusion

[38] The issues facing this young child and his needs are so concerning that a change of custody on a temporary basis is necessary and is in his best interests. In view of the current level of distrust and animosity between the parties, I find that at this time there is no possibility that the parties can work co-operatively to make joint decisions about the child. There will therefore be an order that the father has sole custody of the child.

[39] At the end of the submissions by father's counsel, I inquired as to the father's position regarding the mother's access if the child was placed in his care. The father agreed in principle with the mother having access on three out of four week-ends but the logistics of the access and specific times were not canvassed. As the parties are returning to court on January 10th, I will hear further submissions with respect to access at that time.

[40] Despite the father now being granted sole custody, it is important that the father keep the mother advised of any decisions made regarding the child and provide her with any verbal or written reports received such as, school reports or assessments and update her with respect to the progress of the child's counselling.

[41] As the child has been residing with the father since November 17th, 2016, his child support obligation as set out in paragraph 1 of the Order of Justice Bovard dated February 19, 2010 should be terminated until further court order as of December 1, 2016.

[42] At the time of the motion, mother's counsel agreed to facilitate the child's identification documents and health card being given to the father by December 17th. As the mother is now self-represented, if the documents have not been given to the father, the mother must bring them to the court on the return date.

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

1. The Respondent James Paul Desouza shall have temporary sole custody of the child, Shakur (Ethan) Rain Desouza-Wilson born October 23, 2008. The child shall reside with the Respondent in St. Catharines.

2. The Respondent shall keep the Applicant Vashti Abigail Wilson advised of any decisions he makes regarding the child and provide her with any verbal or written reports received such as, school reports or assessments and update her with respect to the progress of the child's counselling.

3. The Respondent's child support obligation as set out in paragraph 1 of the Order of Justice Bovard dated February 19, 2010 is terminated until further court order as of December 1, 2016.

4. If the Applicant has not provided the Respondent with the child's identification documents and health card she shall bring the documents to court on the return date.

5. Further submissions regarding access by the Applicant to the child shall be heard on the return date of January 10, 2017. The Respondent may participate by telephone conference call.

6. Support Deduction Order to issue.

[44] As the Respondent has been the successful party on this motion, he is presumed to be entitled to costs. If the parties cannot settle the issue of costs, the Respondent is to serve and file brief written costs submissions not to exceed 3 pages, with any Offer to Settle and a Bill of Costs within 30 days. The Applicant shall serve and file her brief written responding costs submissions not to exceed 3 pages, with any Offer to Settle and a Bill of Costs within 30 days after receipt of the Applicant's submissions. All filings to be provided to the trial-coordinator.

Justice Roselyn Zisman

Date: January 3, 2017

Footnotes

[1] The father did not proceed with the contempt motion.

[2] Gordon v. Goertz, [1996] 2 S.C.R. 27

[3] Docherty v. Beckett, 21 R.F.L. (3d) 92

[4] Marchand v. Dumas, [2006] A.B.J. No. 967 (CA); Norland v. Norland, [2006] O.J. No. 5126 (SCJ)

[5] Forte v. Forte; Abrego v. Moniz, 2006 ONCJ 500, [2006] O.J. No. 5167