Court File and Parties

Court File No.: Toronto FO-12-11002
Date: 2017-07-31
Ontario Court of Justice

Between:

MICHELLE ROTH
Applicant

— AND —

LUKE HALSTEAD
Respondent

Before: Justice Sheilagh O'Connell

Trial heard on: November 23, 24, 30, 2016, January 3, 30, 2017

Reasons for Judgment released on: July 31, 2017

Counsel:

Michelle Roth — on her own behalf
Barbara Thurston — for Luke Halstead

O'CONNELL J.:

1. Introduction

[1] This trial was primarily about the custody and access order for the parties' son Thomas, who is now 12 years old.

[2] Both parties brought motions to change the custody and access provisions of the Final Order of Justice Ellen Murray dated May 15, 2014 (the "Final Order"). The mother also seeks adjustments to the child support and section 7 expense provisions.

[3] The child of the relationship is Thomas Adrian Roth, born November 19, 2004 ("Thomas"). The parties have been involved in litigating custody, access and support arrangements regarding Thomas since 2010, approximately seven years. This is the third motion to change a comprehensive final order. This case can appropriately be described as "high conflict".

[4] The Final Order, made on consent of the parties, is a joint custody, 'parallel parenting' order, with the child primarily residing with the mother and residing with the father four consecutive days each month, to be finalized by the parties 28 days before the start of the father's access period.

[5] The father does not want the joint custody order to change but he does seek to increase his parenting time with the child to include ten consecutive days each month and to have the child for five consecutive weeks each year during the child's summer school vacation, commencing on the child's last day of school. He also seeks other specified holidays and telephone access schedule.

[6] The mother seeks to change the joint custody order to sole custody to her, numerous incidents of custody, including the ability to change Thomas' name without the father's consent, and an order that the father have access to Thomas two overnights each month, from Friday after school to Sunday of the first weekend of each month, subject to a number of restrictions. She also seeks a specified holiday and telephone schedule.

[7] Throughout the case management process following this motion to change, numerous temporary orders were made regarding holiday access, access exchanges, telephone calls, the child's medication, and restrictions regarding the child's exposure to firearms, explosives, and weight training exercises during access periods with the father.

[8] At the time of the trial, the parties continued to follow the final order governing the father's parenting time with Thomas, subject to some additional restrictions made in temporary orders during the case management process. In addition, the father's summer holiday access for 2016 provided that Thomas have extended holiday access with his father.

[9] In this trial, I heard evidence from the father, the mother, the paternal grandmother, both parties' current partners, the mother's brother, and the clinical investigator from the Office of the Children's Lawyer (the 'OCL' investigator). Both parties agreed to file affidavits as their evidence in chief, subject to cross-examination, as well as the evidence of the witnesses in this trial. The affidavit evidence of both parties, the witnesses and the exhibits filed were voluminous.

2. Issues

[10] The main issue for me to determine is whether there has been a material change in circumstances since the 2014 Final Order of Justice Murray that affects or is likely to affect the best interests of Thomas. If so, what custody and access order is now in Thomas' best interests?

[11] The second issue for me to determine is the appropriate amount of ongoing child support, and whether there are retroactive arrears owing by the father.

3. Background

[12] Mr. Halstead is 34 years old and Ms Roth is 30 years old. Thomas is their only child.

[13] The parties met in 2003 when Ms Roth was 16 years old and Mr. Halstead was 20 years old. At that time, Ms Roth was in high school and Mr. Halstead was in the Army Reserves of the Canadian Armed Forces.

[14] Ms Roth became pregnant in 2004 when she was 17 years old and the parties started living together. Shortly after Thomas' birth, Mr. Halstead moved to the Canadian Armed Forces Base in Trenton, Ontario where he was posted for training. Ms Roth and Thomas remained in Toronto.

[15] The parties' relationship started to break down after that move. It is Ms Roth's evidence that the date of separation is December 2005, however Mr. Halstead states that the parties separated in the spring of 2006.

[16] After the parties' separation, Thomas remained in the primary care of Ms Roth. It is not disputed that Thomas has resided primarily with Ms Roth in Toronto and the Toronto region since the parties separated, when Thomas was one year old. Mr. Halstead had access as arranged between the parties.

[17] The parties disagree on the frequency and regularity of Mr. Halstead's visits and parenting of Thomas during that period, approximately 2006 to 2010. It is Mr. Halstead's evidence that he generally saw Thomas one weekend per month, holidays and some weeks during the summer. Ms Roth disputes this and states that Mr. Halstead's visits with Thomas were far more sporadic and irregular.

The Father's Current Circumstances

[18] Mr. Halstead is currently employed as a primary care paramedic for Toronto Paramedic Services. He obtained this employment in May of 2016. Prior to obtaining this employment, Mr. Halstead was living full-time in Pembroke, Ontario with his wife Ms Sarah Halstead.

[19] Mr. Halstead now divides his time between Toronto and Pembroke. He lives with his mother in Toronto when he is working as a paramedic, which is generally twelve to eighteen shifts of twelve hours during a six-week cycle. When not in Toronto, he lives with his wife in their home in Pembroke which is on a large rural property.

[20] Mr. Halstead and his wife Sarah married in August of 2012. Ms Sarah Halstead is a Captain in the Canadian Armed Forces and is regularly deployed overseas. Other than Thomas, Mr. and Ms Halstead do not have children of their own and have lived in Pembroke throughout their relationship. They separated for a period of time in 2016. However, they reconciled shortly thereafter.

The Mother's Current Circumstances

[21] Ms Roth lives in Toronto with her partner Mr. Christopher Coey. Ms Roth is currently doing some contract work through a temporary employment agency. As Ms Roth became pregnant before finishing high school, she later returned to high school and obtained her high school diploma. In April of 2015 she graduated from the Child and Youth Worker program at George Brown College. She is looking for full or part-time work in that field.

[22] Ms Roth and Mr. Coey have been in a relationship since 2012, and started living together in 2015, since Thomas was approximately 10 years old. They rent a townhouse in Toronto but during this trial, they both testified that they are looking to purchase a home outside of Toronto in an area that is more affordable to them. Other than Thomas, they do not have children of their own.

[23] Mr. Coey is a video game designer and developer and works full-time in this field. He is 43 years old. He has been very involved in this litigation. He assisted Ms Roth in preparing for this trial. After hearing submissions, the court permitted Mr. Coey to assist Ms Roth at trial in both the cross-examination of witnesses and submissions.

4. Litigation and Procedural History

[24] In July of 2010, the father brought an ex parte motion for custody of Thomas. According to the father, the mother had quit her job without a contingency plan and could no longer afford her rent and was facing homelessness. Mr. Halstead deposed that the mother was behaving in an increasingly erratic manner and that she was financially and emotionally unstable so he offered to take Thomas for a period of time.

[25] Mr. Halstead obtained a temporary without prejudice custody order of Thomas and brought him to his home in Pembroke. Mr. Halstead then abandoned his application in August of 2010 when Ms Roth agreed to move to his mother's basement apartment, where she had lived previously and been assisted by the paternal grandmother. Mr. Halstead returned Thomas to Ms Roth's primary care shortly after that.

[26] In 2012, Ms Roth commenced this application for custody of Thomas. She sought sole custody, a regular and specified access schedule, and child support. The parties attended mediation and on May 7, 2013, the parties entered into a Final Consent Order of Justice B. Scully for joint custody, with Thomas continuing to live primarily with the mother and with his father for one weekend each month, plus any additional time if the father is available and in Toronto.

[27] In December of 2013, only seven months after Justice Scully's Final Order, Ms Roth commenced a motion to change the final order of Scully, J. seeking sole custody, a modification of the holiday schedule and some further conditions and restrictions regarding the father's access.

[28] The mother stated that after Justice Scully's Final Order, the father had taken the child hunting, exposed him to firearms and venomous snakes that he keeps on his property, called the child "a wimp" and caused Thomas to be traumatized.

[29] In his response to the motion to change, the father stated that there had been no material change in circumstances justifying a change to Justice Scully's Final Order and denied the mother's allegations. He stated that the hunting incident described the mother took place in 2012, prior to Justice Scully's Final Order and that he no longer takes Thomas hunting as Thomas did not like it. He further denied constantly putting Thomas down but did admit to jokingly calling Thomas a "wimp" for which he later apologized.

[30] The father also raised a number of concerns about the mother's parenting, including concerns that the mother has periods of severe depression and mental health issued interfering in her ability to parent Thomas. As a result, Thomas has missed many days of school which has had a detrimental impact on his academic progress.

[31] On May 15, 2014, the parties entered into a further a further consent order, the current Final Order of Justice Murray. At the time the parties entered into this Final Order, the mother and Thomas were residing in Toronto with her partner Christopher Coey and the father was residing in Pembroke with his wife Sarah Halstead.

[32] The Final Order contains the following relevant provisions, among numerous other provisions:

1. The parties shall have joint custody of Thomas and his primary residence shall be with the mother;

2. The decision-making authority under the joint custody regime is divided between the parties such that the mother shall have final decision making authority over Thomas' education, psychological, social, behavioural assessments, therapy and counselling and any related treatments after consultation with the father. The father will have final decision making authority regarding serious illness or injury, or injury related health care decisions after consultation with the mother. Further, the parties "shall share the decision making authority regarding the prescription of psychiatric medications."

3. The father shall have access to for four consecutive days per month (two week days and two weekend days), to be finalized 28 days prior to the start of the access period;

4. If the father is in Toronto, then additional access may be provided upon reasonable notice of at least 24 hours provided it does not interfere with existing plans or activities. The mother shall not unreasonable deny he father's request for additional access;

5. Shared Christmas, and alternating spring break, Thanksgiving, Easter, and Civic holidays, Mother's Day and Father's Day;

6. The father shall have summer access for four weeks in 2014, to be increased to five weeks in 2016, six weeks in 2017 and 6 weeks thereafter, provided the father meet certain conditions set out in the Final Order;

7. The father shall pay child support in the amount of $420.00 per month, based on an annual income of $46,674.00 and $80.00 per month towards arrears of $4,768.00 owing;

[33] The Final Order also contains the following provision regarding the father's use of firearms, which was the focus of much attention during this trial:

"43. The [father] will not expose Thomas to any live loaded firearms, before Thomas reaches the age of 12 years. When Thomas reaches the age of 12, Thomas may handle legal firearms only under Luke's direct supervision and guidance, and provided said firearms for size 22 calibers or less. After Thomas reaches 14 years of age, Luke may expose the child to any other legal firearms only under Luke's direct supervision and guidance. Luke will refrain from exposing the child from said firearms, if it is unsafe, Luke is not carefully assessed and tested the firearms, or Luke assesses that Thomas is not ready to handle such firearms."

[34] In April of 2015, less than one year after Justice Murray's Final Order, the father brought a motion to change seeking a number of amendments to address what he described as the mother's restrictive interpretation of the Final Order in a way that has denied and greatly minimized his parenting time with Thomas and his access to information. He also sought to reduce his child support and the accumulated arrears.

[35] In her response to the father's motion to change, the mother once again sought sole custody and a further restriction of the father's access to Thomas.

[36] The parties agreed to refer the issues of custody and access to the Office of the Children's Lawyer (the "OCL") in August of 2015 for a clinical investigation and report. For various reasons, the Final Report was delayed and was not released until April of 2016.

[37] On April 25, 2016, the OCL recommended, in principle, among several recommendations, including holiday access, that the mother have sole custody of Thomas and that the father have alternating weekend access from Friday to Monday and one mid-week visit each week if he is living in Toronto. If he is living in Pembroke, then father is to have access the first weekend of each month for four consecutive days each month, in addition to holiday access.

[38] The OCL investigator also recommended counselling for Thomas and the parties. She further recommended that the father shall not allow Thomas to handle, in any way, a firearm and that the father shall not engage in any firearm activity in Thomas's presence.

[39] She also recommended that the father shall refrain from excessive exercises that have the potential to cause physical harm to Thomas.

[40] On June 17, 2016, after the father moved to Toronto (and the delivery of the OCL report) the father amended his motion to change seeking an increase in his parenting time to ten consecutive days each month, in addition to the other changes and amendments previously sought. In her amended response, the mother sought further restrictions and conditions to the father's access to Thomas.

[41] On June 24, 2016, the paternal grandmother, Gillian Halstead, brought a motion to be added as a party to this case. She also sought an order for independent access to Thomas every Tuesday overnight during the school year, in addition to other access.

[42] For the written reasons released on July 7, 2016, Justice Murray declined to add the paternal grandmother as a party to this case. However, Justice Murray urged the grandmother to wait for the resolution of this trial prior to commencing her own independent application for access to Thomas. As Justice Murray noted, the OCL clinical investigator found that Thomas enjoyed spending time with his paternal grandmother and that he would like to resume his regular weekly contact with her.

[43] On April 29, 2016, the parties entered into a Final Consent Order regarding child support which provided that the father shall pay child support to the mother in the amount of $724.00 per month, based on an estimated annual income of $80,000.00. This support obligation shall be adjusted by June 15 th of each year, based on the father's income from the prior calendar year, as shown on line 150 of his tax return.

[44] However, after the father brought his amended motion to change, in her amended response, the mother also sought changes to the final child support order and arrears owed.

5. Position of the Parties

5.1 The Father

[45] The father submits that at the time of the Final Order, the father was residing in Pembroke, approximately five hours away from Toronto. Since he started working as a paramedic in Toronto he will be able to spend significantly more time with Thomas during his work periods in Toronto.

[46] The father proposes that Thomas reside with him for ten consecutive days each month while he is working in Toronto. He will be living in the fully equipped basement apartment of his mother's home (where both parties have resided) and will be able to take Thomas to and from school and to his extra-curricular activities during this period of time.

[47] The father states that if he is unable to be with Thomas during this time due to his shift work, then his mother, with whom Thomas has a close and loving relationship, will take care of Thomas, as she has done throughout his life since Thomas was an infant.

[48] The father also submits that the mother has interpreted the Final Order in a very restrictive manner, making it very difficult for him to exercise access to Thomas and causing the parties to exchange an overwhelming number of text messages in an effort to negotiate access each month. According to the father, the mother has arbitrarily denied and restricted his access to Thomas on numerous occasions since the Final Order, based on groundless accusations that he is causing Thomas physical and emotional harm.

[49] The father further submits that since the Final Order, the mother and her partner Mr. Coey have actively obstructed and undermined his relationship with Thomas. They have discouraged Thomas' involvement with him and have caused Thomas to be anxious and afraid to spend time with him and to participate in activities that they used to enjoy. The father believes that the mother and Mr. Coey are attempting to remove him from Thomas's life and to replace Mr. Coey as Thomas's father.

5.2 The Mother

[50] The mother submits that at the time of the Final Order, the parties did not contemplate that the parallel parenting provisions regarding decision-making for Thomas would cause significant confusion. As a result, given the child's special needs, the decision making provisions of the Final Order have caused serious delay in Thomas' treatment for ADHD and Anxiety as the parties have disagreed on the medication regime required.

[51] Further, given the parties' different interpretation of the Final Order, there is an overwhelming number of text and email communications between the parties each month in order to negotiate the access provisions of the Final Order.

[52] The mother also states that the father is an abusive and controlling man who constantly devalues her, denigrates her and blames her for everything, therefore making joint custody unworkable.

[53] The mother supports the OCL recommendations that she should have sole custody of Thomas however, the mother does not support the OCL's recommendations regarding the father's access nor does she support the father's position regarding access.

[54] It is the mother's position that the frequency and duration of access as recommended by the OCL or as proposed by the father will inflict harm to the child's emotional and psychological well-being and that Thomas's access with his father should be reduced to two overnights each month, on the first weekend of each month, subject to a number of restrictions, in addition to holiday access.

[55] According to the mother, the father's parenting style and the kinds of activities that he imposes upon the child when they are together cause the child undue stress and anxiety and have caused the child physical and emotional harm. She states that the father has forcibly exposed the child to guns, explosives, weightlifting, hunting, unsafe practices with dangerous animals, among other activities, all against the child's wishes.

[56] Finally, in addition to section 7 expenses, the mother seeks retroactive child support to January 2006, specifically the difference between what the father ought to have paid pursuant to the Child Support Guidelines and what he paid. It is the mother's position that the father has consistently underpaid or not paid his required child support over the past ten years.

6. Summary of the Relevant Evidence

The Father

[57] Mr. Halstead was raised by his mother as an only child. He had limited contact with his father who was 62 years old and had another family when Mr. Halstead was born. Mr. Halstead's father died a number of years ago. There was no evidence regarding Mr. Halstead's relationship with siblings (if any) from his father's other family.

[58] Mr. Halstead testified that as a child, he was diagnosed with Attention Deficit Disorder and Anxiety. He had a difficult time in school with peers and was bullied.

[59] Mr. Halstead joined the Canadian Armed Forces as a young reserve and remained in the Canadian Armed Forces from 2003 to 2013. As a result of a heart condition, he was honorably (medically) discharged. During his time in the Armed Forces, he was able to attend college to complete the Advanced Care Paramedics Program at Algonquin College.

[60] Mr. Halstead testified that when Thomas was born, he tried to be supportive to Ms Roth and Thomas and that he was very involved in Thomas' birth and infancy before he moved to Trenton. He testified that he loves Thomas very much and that they have a close and loving relationship.

[61] Mr. Halstead also described a warm and loving relationship that Thomas has with his wife and their extended family and his mother and mother's sister. In particular, he described his mother as being extremely close to Thomas and a pillar of support for Thomas and both parents since Thomas' birth. Mr. Halstead's mother was accustomed to caring for Thomas one night each weekend one weekend per month for many years until November of 2015 when Ms Roth unilaterally suspended all of the independent access that the paternal grandmother had with Thomas.

[62] Mr. Halstead is an avid outdoorsman, hunter, firearms' and gun enthusiast, and fitness trainer. As he put it during his testimony, "guns are a big part of my life." When Thomas is with him at his home in Pembroke, he has tried to expose Thomas to activities and opportunities that he does not have an opportunity to do in Toronto.

[63] He describes taking Thomas camping, fishing, hiking and swimming. He testified that in the summer of 2014 he taught Thomas to swim. He has done several types of sports and exercises with Thomas and has always tried to do something active with Thomas since he was very small. When Thomas was approximately 8 or 9 years old, Mr. Halstead started including Thomas in his work-outs. He has taught Thomas to pay badminton and squash.

[64] Other physical activities include taking him for runs with his dogs, snowshoeing, body weight workouts, hiking, trail running, play wrestling, nerf gun battles, boxing conditioning drills and canoeing. He has taken Thomas and his cousin on navigation expeditions where the children navigate through the woods from point to point collecting gift bags that he has hidden along the way.

[65] Mr. Halstead enjoys teaching Thomas about the outdoors and has taught Thomas the fundamentals of wilderness survival skills and has put together a survival back pack or "bug-out bag" for Thomas. This is a bag containing a lot of survival equipment such as water purifiers, fire lighters, and emergency food. He has taught Thomas about the equipment in the bag and how to use it and they have taken the bag on camping trips. In cross-examination, he denied being a 'conspiracy theorist' although he is aware of global issues and he has talked to Thomas about safety and evacuation plans if Donald Trump lost the election as there may be riots.

[66] Mr. Halstead has also introduced Thomas to guns and firearms. When Thomas was 6 years old, he bought him a BB gun. He described Thomas learning to become a very good and proficient shot and that they would play marksmanship games together.

[67] In the past, Mr. Halstead has also taken Thomas to a shooting range near his home in Pembroke for target practice. He described in detail in his testimony the safety equipment that he and Thomas always used for this activity, including ear plugs, safety glasses, a bullet proof vest and body armor.

[68] Mr. Halstead believes that in the past, Thomas very much enjoyed these activities and in particular, the gun training and marksmanship skills that they practiced. He testified that Thomas did not express to him any fear or concern about guns or target shooting until his mother and Mr. Coey began actively interfering with this bonding activity.

[69] Mr. Halstead testified that the mother has always been against his desire to expose Thomas to firearms and has created in Thomas a great deal of anxiety about this. He feels that Thomas has to align himself with his mother and Mr. Coey on this issue. He testified that Thomas did not express any fear or apprehension to him until the spring of 2016 after the children's aid society investigation initiated by the mother and the OCL investigation.

[70] In cross-examination, Mr. Halstead denied that Thomas has ever handled a loaded firearm, only BB guns and pellet guns. He acknowledged that on one occasion in 2014 when Thomas was approximately 9 years old he allowed Thomas to handle a modified pellet gun which caused a small laceration to Thomas's face when triggered. He further testified that he had never taken Thomas shooting without adequate protection and is very safety conscious. He also denied ever forcing Thomas to do tactical training.

[71] Mr. Halstead also testified that he did not entirely agree with the opinion of the OCL clinical investigator that Thomas feels unsafe when shooting guns or being around him when he is shooting guns or that Thomas is not comfortable with the kinds of activities that he wishes him to participate in. He did however acknowledge that Thomas is an anxious and sensitive child.

[72] He did acknowledge that Thomas is very sensitive about animals and that he did not like hunting. He has not taken Thomas hunting since 2012, when Thomas was approximately 8 or 9 years old because Thomas was upset when Mr. Halstead killed a deer in his presence. He did not recall if Thomas actually witnessed the killing but acknowledged that Thomas was present and that there was a lot of blood. He has not taken Thomas hunting since that occasion.

[73] Mr. Halstead accepts that Thomas does have a generalized anxiety disorder which causes him to be more anxious than other children. He has been aware that Thomas has had anxiety issues since he was very young. He described his own anxiety as a child and described ways in which he has been working with Thomas on these issues, including trying to expose him to some of these fears such as swimming and insects, in a manner to help him work through his fears and anxiety.

[74] Mr. Halstead acknowledged that in the past, in an effort to encourage or motivate Thomas in various activities, he has jokingly called him a "wimp." He stopped doing this after the mother reported him to the children's aid society for emotional and psychological abuse. He did not realize that Thomas was upset by this and he did not understand why the mother did not just discuss this with him directly rather than reporting him to the child protection authorities.

[75] Mr. Halstead testified that he has abided by the provision of the Final Order and the recommendations made by both the Jewish Family and Child Services (JFCS) child protection worker and the OCL clinical investigator. Both of those professionals recommended that Mr. Halstead should not engage in any firearm or gun activity in Thomas's presence and that he not allow Thomas to handle a firearm in any way.

[76] However, Mr. Halstead admitted that shortly after the recommendations of the JFCS child protection worker and the OCL clinical investigator, Mr. Halstead took Thomas to a shooting range on Crown land where Mr. Halstead then created an explosive device using Tannerite taped to a saline bag on a propane tank, taped to a tree. He and Thomas then watched it explode. This occurred during their two week summer holiday together in July of 2016.

[77] According to Mr. Halstead, Thomas expressed no apprehension or fear about this incident and that this was just "some country fun". When asked on more than one occasion, Mr. Halstead testified that he "did not recall" if he shot at the saline bag taped to the Tannerite to cause it explode. It is not clear how it exploded otherwise.

[78] Mr. Halstead disagreed that this was an illegal act, although he acknowledged that he received a formal warning from the Chief Firearms Officer after Mr. Coey and the mother reported him to the authorities and the children's aid society once they heard about it from Thomas. A child protection worker from JFCS also investigated and interviewed Thomas about the incident. No charges were laid, and according to Mr. Halstead, neither the mother nor Mr. Coey contacted him directly to discuss what took place or what safety measures were taken by him.

[79] Mr. Halstead testified that he and Thomas were more than 100 metres away from the explosive device and that Thomas was behind him when they watched it explode. They were both dressed in body armor. Thomas videotaped the entire incident while standing behind Mr. Halstead and showed the video to the child protection worker and to his mother and Mr. Coey. The video has now been deleted.

[80] Mr. Halstead testified that he was not advised that what he did was illegal nor that he endangered Thomas in any way. He further did not see this as contravening the direction or recommendation of the OCL clinical investigator that Thomas should not be around firearms or guns. Although he acknowledged that it may have been ill advised, he testified that "there is a big difference between ill-advised and dangerous". He testified that he did not recall if guns were involved.

[81] Mr. Halstead also denied ever forcing Thomas to do physical exercise against his will, or as punishment, or to exercise in any manner that is intentionally harmful to him. He testified that Thomas knows that there is an expectation in Mr. Halstead's household that he is required to do some form of physical activity every day. He is very concerned at the lack of physical activity in his mother's household and the amount of sedentary play and video games in which Thomas engages. According to Mr. Halstead, Thomas is required to earn "sedentary play time" by doing some form of exercise.

[82] He acknowledged that the mother did not want Thomas using weights at the age of ten and that he disagreed with her. He acknowledged that both Thomas's family doctor and the children's aid society have cautioned against using weights as a form of exercise for a child and he has since stopped doing this.

[83] When asked about the incident in February 2016 leading to the second children's aid investigation initiated by the mother, Mr. Halstead denied punishing Thomas or deliberately harming him through physical exercise. He testified that on that occasion Thomas has spent the whole day playing video games and had not done any physical activity. He required Thomas to do some physical activity so he took him through a number of exercises including 150 jump squats, 100 sit-ups and 50 push-ups. Mr. Halstead testified that Thomas was complaining of soreness or muscle stiffness the next day, however he did not think it was so serious as to require medical treatment or emergency intervention. He also acknowledged engaging Thomas in some weight training exercises.

[84] Mr. Halstead also denied that he has allowed Thomas to handle venomous snakes or to shut Thomas in a cage with a porcupine, some of the other child protection concerns raised by the mother. In the past, Mr. Halstead has had an interest or hobby in collecting venomous snakes and reptiles, which he manages at a private zoo in Eganville, Ontario. He created the safety protocol for the zoo's venomous snake collection.

[85] He testified that Thomas used to enjoy coming to the zoo with him. He acknowledged that on one occasion, he allowed Thomas to put his hand on a four foot handling hook for 15 seconds while a mouse was being fed to a pet viper. His evidence was that there was absolutely no risk to Thomas, who was behind him and well out of the snake's striking range and that Thomas was not at all scared.

[86] Regarding the porcupine incident, Mr. Halstead was standing between the porcupine and Thomas in the cage. Thomas was not shut in and was standing by the cage exit. However, the porcupine, which was described as an African Giant Porcupine, had backed out and fanned out its quills in the enclosure, which "did scare Thomas a bit."

[87] Mr. Halstead testified that because the mother and her partner strongly disapprove of these activities as well as his relationship with Thomas, they have done everything they can to actively undermine Thomas' relationship with him, including minimizing and restricting his access and telephone calls, causing Thomas to feel very anxious about the activities that they once enjoyed together, and repeatedly reporting Mr. Halstead to the children's aid society and to the police. According to Mr. Halstead, none of the investigators involved have expressed any concern for Thomas's safety and there have never been any findings of emotional or physical abuse.

[88] Mr. Halstead did not agree that the current joint custody provisions have caused delay in ensuring that Thomas receives the proper medication and treatment. He acknowledged that he originally disagreed with the decision to place Thomas on ADHD medication. The medication had been prescribed in March of 2015. He acknowledged that he did not consent to the commencement of the medication until August of 2015. He testified that Thomas did not want to be on the medication and that he told Thomas that if he demonstrated that his school marks improve, then he did not need to be on the medication.

[89] Mr. Halstead testified that when he attempted to attend an appointment with Thomas's psychiatrist to discuss Thomas's treatment, Ms Roth threatened to call the police if he attended and then cancelled the appointments. She refused to let him participate in any of Thomas's medical appointments.

[90] Mr. Halstead filed extensive evidence, including voluminous text messages between the parties regarding what he described as the mother's denial of access and her ongoing interference with Thomas' relationship with him.

[91] According to Mr. Halstead, Ms. Roth has repeatedly told him that Thomas does not want to spend time with him, that Thomas does not like him, and that as Thomas gets older, he will spend even less time with him. In various text messages when referring to her partner, Mr. Coey, Ms. Roth will refer to Thomas as his son or their son together (that is, Mr. Coey and Ms Roth) and that he is Thomas's "real father". A number of these text messages were filed as exhibits.

[92] Mr. Halstead testified that the mother and Mr. Coey have repeatedly involved Thomas in these court proceedings and their campaign against him, such as reading court documents to him, advising Thomas how to call the children's aid society or the "Kids Helpline" during access visits with him, and programming the numbers for these agencies into Thomas' cell phone on speed dial.

[93] Ms. Roth has further interpreted the Final Order to mean that Mr. Halstead has only three consecutive days with Thomas rather than four consecutive days set out in the Order. She has reduced his parenting time with Thomas accordingly. Further, Mr. Halstead described on a number of occasions Ms. Roth's refusal to allow him to see Thomas if he was visiting Toronto for various reasons, as provided for in the final order. For example in February 2015, when Mr. Halstead was visiting Toronto often to spend time with his mother while she was undergoing cancer treatment, Ms. Roth repeatedly refused to give him additional time with Thomas during that time.

[94] Mr. Halstead also testified that Ms. Roth has denied his request for weekend and holiday time during the summer and she has refused to allow him to pick Thomas up from the school or day care and has made pickup and drop-off arrangements very difficult. She also removed Mr. Halstead as Thomas's secondary emergency contact at school and replaced him with Mr. Coey. She is also advised school officials that he is not permitted to pick Thomas up from school unless she gives her express permission.

[95] According to Mr. Halstead, Ms. Roth has also attempted to prevent him from accessing information directly from Thomas' doctors and service providers and insist that he obtained all information only directly through her.

[96] Mr. Halstead is very concerned that if Ms. Roth obtains sole custody of Thomas then she will only use that power to further alienate him from his son. He further completely denies the allegations of abuse now made by Ms Roth against him. He questioned why she consented to two comprehensive orders for joint custody in the past if that was the case.

[97] Now that he is living in Toronto for approximately one-half of the time, Mr. Halstead testified that he is also able to spend significantly more time with Thomas than what had been contemplated and agreed to in the Final Order, which was made while he was living full-time in Pembroke.

[98] According to Mr. Halstead, his work schedule as a paramedic gives him greater flexibility and allows him to book off certain blocks of time thereby better allowing him to balance his employment with his parenting. During "on-peak" times, he is eligible for eighteen shifts of twelve hours in a six-week cycle. During "off-peak" times, he is entitled to twelve hour shifts during a six-week cycle. He is able to book his own availability as long as he meets the required number of day night and weekend shifts in each cycle.

[99] If Mr. Halstead is granted the ten consecutive days each month that he is seeking, he intends to exercise that access in Toronto while living at his mother's home with Thomas. During his time with Thomas, he intends to work for part of the time as well as taking off days to be with Thomas. His mother has always looked after Thomas in the past and is extremely close to Thomas. She is capable of looking after Thomas if Mr. Halstead has to work.

The Mother

[100] Ms Roth's parents separated when she was born. In her early years, she and her three siblings were raised by her mother, who suffered from paranoid schizophrenia. Ms Roth was placed in foster care at the age of six years old and then again at the age of nine years old due to her mother's ongoing mental illness and inability to care for her children.

[101] At the time she met Mr. Halstead, Ms Roth was a crown ward and had lived in foster care for a significant part of her childhood. She left foster care and started living independently as a crown ward at the age of 15 years. Ms Roth continues to have a close relationship with some of her siblings and her maternal grandmother.

[102] Ms Roth worked in collections before deciding to return to college to complete the three year Child and Youth Worker Program at George Brown College. She is now employed on a temporary part-time basis in that field, through a 'temp' agency.

[103] Ms Roth and Mr. Coey they have been in a relationship since 2013 when Thomas was approximately 8 years old. They started living together in 2015. They plan to marry and have children. They also want to move out of Toronto and to purchase a house in a more affordable area. Ms Roth described Mr. Coey as being very actively involved in the day to day care of Thomas and that he and Thomas share many similar interests.

[104] In her affidavit forming part of her evidence in chief, Ms Roth described in detail Thomas's mental health and treatment history and the work that she has done to ensure that Thomas get the appropriate help. According to Ms Roth, in addition to Thomas' generalized anxiety disorder and ADHD, and learning disabilities, Thomas also has a history of suicidal ideation and depression. She attached a picture that she deposed Thomas drew when he was 8 years old to support this conclusion.

[105] According to Ms Roth, a large part of Thomas's mental health issues, and in particular his anxiety, is a result of his relationship with his father.

[106] Ms Roth testified that Thomas is afraid and anxious around his father and does not like the activities that they do together. She further testified that the father has placed Thomas at risk of grave danger as a result of their activities and had caused him significant emotional and physical harm.

[107] Regarding firearms and explosives, Ms Roth testified that Thomas has repeatedly told her, Mr. Coey and other adults that he does not like guns, firearms, or weapons of any type and he does not wish to be exposed to guns.

[108] According to Ms Roth, Thomas is severely anxious and fearful around guns. She also greatly fears for his physical safety given that Thomas's anxiety and ADHD could place him at a greater risk of injury when being exposed to firearms and explosives. Ms Roth also described one incident in 2014 when Thomas injured his eye as a result of a kick back caused by a modified pellet gun which could easily have been a much more serious injury.

[109] Ms Roth has repeatedly told Mr. Halstead that Thomas has expressed fear around guns and that he does not wish to be around them. She testified that Mr. Halstead does not believe this or believes that Thomas is only afraid of guns because she and Mr. Coey have made him so.

[110] Ms Roth believes that despite the OCL recommendations that Thomas not be exposed to firearms, the father continues to do so and that the father does not respect Thomas's wishes in this regard. She cites the Tannerite explosive device incident that occurred during Thomas's summer holiday with his father in July of 2016 as an example. This incident occurred after the 2016 recommendations of the both the OCL investigator and the children's aid society that Thomas not be exposed to firearms.

[111] Ms Roth and Mr. Coey became aware of this incident when Thomas returned from summer holidays with his father and showed them the video of the Tannerite exploding. She and Mr. Coey contacted the Ontario Provincial Police, and the Chief Firearms Officer for the province to report this incident. According to Ms Roth, this led to a third child protection investigation against Mr. Halstead. He was admonished by the CFO and a formal warning was placed on his firearms license regarding the misuse of firearms and Tannerite. She did not call the father to discuss what had occurred before contacting the appropriate authorities.

[112] Ms Roth also testified that the father forces Thomas to do excessive exercises as punishment. According to Ms Roth, this "forced over-exertion" has caused Thomas physical harm. She testified that Thomas often came home from access visits complaining of muscle pain and back pain as a result of this forced exertion by his father, making it very difficult for him to fall asleep. For example, she testified that in February of 2016, Thomas came home after an access visit unable to walk due to the pain in his legs. She and Mr. Coey then brought Thomas to the Scarborough General Hospital Emergency and reported to the hospital that the father forced Thomas to do strenuous exercises against his will as a form of punishment.

[113] In cross-examination, Ms. Roth testified that she and Mr. Coey reported to the hospital staff that "this was a CAS case" and that Thomas was being forced to do these workouts as punishment. She acknowledged that at the time it was not in fact a CAS case and that there was no CAS investigation pending. She further admitted that Thomas was discharged the same day for "muscle strain."

[114] Ms Roth deposed that Thomas was in so much pain that he was unable to dress himself and requested that his mother help him for at least one week after this incident. Ms Roth reported the forced over exertion to the children's aid society.

[115] Ms Roth also testified that the father calls Thomas derogatory and demeaning names such as "weak", "wimp" and "wuss", which she also reported to the children's aid society, resulting in the first child protection investigation in this matter. Ms Roth advised that she did not discuss this with Mr. Halstead before contacting the children's aid society, but according to the mother, the father advised her that he has just joking and that she was "coddling" Thomas.

[116] In cross-examination, Ms. Ross acknowledged that she initially brought Thomas to the principle of his school to request that the principle report this to the children's aid society, which he would not do. She did not agree with the OCL's report and investigation regarding this incident, in which the school principal advised that he would not be making a report to child protection services on Ms. Roth's behalf and that he felt that Ms. Roth was trying to create bias with the school staff against the father by saying a number of critical things about him.

[117] Ms. Roth would not agree that she initiated all three child protection investigations regarding the father's allegedly abusive behavior towards Thomas.

[118] Ms Roth testified that although the father stopped calling Thomas a wimp after the first child protection investigation, he now calls Thomas "a spoiled brat" and "a selfish ass". (The father denies this.)

[119] Ms Roth also described many other parenting concerns about the father. She testified that through the father's actions and words, he has increased and exacerbated Thomas's anxiety and caused him emotional harm. She described numerous incidents, including the following:

a. forcing Thomas to handle venomous snakes against his will and placing him in a cage with a porcupine;

b. discussing with Thomas what may happen to him if the father is called for active duty overseas, and the risk of death, capture or torture;

c. forcing Thomas to engage in simulated exercises for crisis situations, including forcing Thomas to be used as a simulation patient in a class of paramedic students at the father's college;

d. encouraging Thomas to watch him hunt and kill animals;

e. using a shock collar on the father's pet dog even though his dog has a painful hip problem that requires surgery;

f. locking Thomas in the car with bugs to make Thomas get over his fear of bugs, among many other concerns about that the mother has about the father's parenting.

[120] The mother also described the father as very emotionally abusive towards her and was also physically violent towards her in the past. She describes him as an emotionally and physically abusive person.

[121] According to the mother, the father attempted to or pushed her down the stairs during an altercation in 2012 when they were both living separately in the paternal grandmother's home. It is also the mother's evidence that the father has attempted at all points in each child protection investigation and during the OCL investigation to demeaned and slander her and her family by accusing her of having mental health issues and a personality disorder. The father has also sent the mother text messages about what he describes as her borderline personality disorder and has advised her how she can manage this.

[122] The mother's evidence is that the father has also discussed her family history with Thomas and according to the mother, the father attempted to teach Thomas about schizophrenia when Thomas had described some behavior that he observed in one of the mother's brother. According to the mother, the father has a history of "bigotry", "ignorance" and "personal hatred" towards anyone with mental health issues.

[123] Regarding the issue of custody, the mother testified that she reluctantly agreed to the first final order for joint custody in 2013 because she felt coerced by the appointed mediator to compromise. Regarding the second final order for joint custody in 2014, the mother testified that she was without counsel and at the time that she brought the motion to change, she did not understand the legal requirement to demonstrate a material change in circumstances when bringing a motion to change. Without counsel and under the threat of further financial expense, is the mother's evidence that she reluctantly agreed again to joint custody.

[124] Notwithstanding these previous orders, it is the mother's evidence that joint custody regarding decision-making is completely unworkable. She testified that she and the father are simply not able to reach agreements on major decisions such as education, mental health, physical health, or treatment and medication for Thomas. Furthermore, notwithstanding the parallel parenting provisions in the final order, the term joint custody has led to multiple delays and blockages in Thomas's treatment. She cites as an example the five-month delay in commencing Thomas's treatment for ADHD medication in 2015 because the father did not agree that Thomas should be receiving medication.

[125] Further, it is the mother's testimony that the father disrupted the Thomas's ability to continue seeing his psychiatrist at the Hospital for Sick Children, as service that Thomas had been on the waiting list for more than one year. This caused Thomas further delays in treatment. The father has also threatened to "show up" for other medical appointments that the mother has made with Thomas and he has booked his own appointments without her knowledge or consent during his access periods.

[126] In cross-examination, Ms. Roth acknowledged that she told the father that his presence was unwelcome at the appointment with Thomas's psychiatrist to discuss his treatment plan. She acknowledged that she told him that he should not attend and that she threatened to call the police if he did attend. According to Ms. Roth the father was not permitted to access information about Thomas's health needs in this manner. It was her view that by wanting to attend the appointment also, he prevented Thomas from obtaining treatment for his ADHD and anxiety.

[127] Ms. Roth disagreed that she has ever attempted to stop the father from speaking to Thomas's service providers about his treatment. She testified that it is only now that the father wishes to be involved in Thomas's treatment.

[128] According to the mother, the confusion and misunderstanding under the current final order have also led to delays and blockages in the mother's ability to register Thomas for extracurricular activities and summer programs.

[129] Regarding the father's access with Thomas, it is the mother's position that Thomas does not want further access with his father. Further, according to the mother, any extended access between Thomas and his father will interfere with Thomas' progress with his anxiety and depression and cause him to regress. She described a number of negative behaviors that are according to the mother a typical of Thomas, after extended time with his father, such as crying, decreased self-esteem, heightened anxiety and sensitivity, decreasing efforts and progress in school, clinginess, nervous tics, acid reflux and nausea.

[130] According to the mother, all of these behaviors and symptoms demonstrated by Thomas are a direct result of extended access periods with the father and that access should be minimized as much as possible.

[131] Consequently, the mother does not agree with the OCL recommendations that the father should have alternating overnight weekend access. The mother testified that the fixed regular access schedule should be consistent and predictable and limited to the first weekend of every month from Friday after school to Sunday evening which is a reduction of the current access schedule.

[132] The mother did not believe that the father had the ability to independently care for Thomas for any extended periods of time and that it was not in Thomas's best interest to spend most of the access time with the paternal grandmother who she described as a woman in her 70s and who is in ill health.

[133] The mother testified that she is not opposed to future discussions regarding the extension of the father's access time with Thomas however, this would not be something that she would discuss or even consider for "years" and she would require a number of conditions imposed upon the father before so doing.

[134] In cross-examination the mother denied attempting to restrict or interfere with the father's access to Thomas. When showed numerous emails and texts which appear to demonstrate otherwise, the mother testified that these emails were actually attempts by her at establishing access.

[135] Ms. Roth further acknowledged that she and her partner Mr. Coey had programmed in the phone numbers for the "Kids Helpline" and Jewish Family and Child Services in Thomas's cell phone and advised him to contact these numbers immediately during access with his father should he feel unsafe.

[136] Ms. Roth also is seeking to change Thomas's last name to her partner's name Coey without the father's consent. She testified that she and her partner wish to give Thomas the option to change his name in the future without his father's consent. She did not think that this would put Thomas in a loyalty bind. She further did not think it was inappropriate or unusual that Mr. Coey refers to Thomas as his son and that she and Mr. Coey together refer to Thomas as our son. Ms. Roth did not dispute that she changed the school's emergency contact information for Thomas by replacing the father with Mr. Coey.

[137] Regarding Thomas's education Ms Roth testified that she did not inform the father that she and Mr. Coey decided to drop Thomas's French classes, nor was he informed of the consultation that they had at Thomas's school, "due to the negative communication between them". She further did not provide the father with Thomas's report cards or the Individual Education Plans (IEP) that were prepared for him, nor did she inform him that these reports were being prepared. According to the mother, the father should have contacted the school directly if he wanted to see these reports. She acknowledged that in the past she did not want to father to directly contact Thomas' service providers.

[138] In cross-examination, Ms. Roth denied reading the court affidavits and documents in this case to Thomas. However she did acknowledge that he may have been exposed to some information about the court case by overhearing conversations between her and others.

The Paternal Grandmother

[139] Gillian Halstead is the paternal grandmother of Thomas. She was a registered nurse from 1975 until 2014 when she retired at the age of 70. She is now approximately 73 years old. She lives in Toronto in her own home.

[140] It is Mrs. Halstead's evidence that she has been intimately involved in Thomas' life since his birth. She has known Ms. Roth since she was 17 years old, before she became pregnant with Thomas.

[141] The paternal grandmother described a very close and loving relationship between her and Thomas. She described Thomas as a very generous, kind, loving, thoughtful, engaging and intelligent young boy with a good sense of humor and a sense of fun. She described Thomas as being very relaxed and at ease when at her home, either during his access visits with his father, or when he and the paternal grandmother were together on their own.

[142] As Ms. Roth was very young when she gave birth to Thomas, the paternal grandmother provided support and guidance to her as a new mother and assisted her in finding prenatal care. When the parents first moved in together, prior to Thomas's birth, the paternal grandmother visited them as often as she could and after Thomas's birth, the parents and Thomas visited her home frequently.

[143] According to the paternal grandmother, after the parents separated, she looked after Thomas in her home one or two nights each week and one weekend per month for many years. Thomas has come to her summer cabin with her on many occasions when has spent weekends with her.

[144] In 2006, when Ms. Roth's living situation in Brampton did not work out, she and Thomas moved into the paternal grandmother's basement apartment. This gave the grandmother an opportunity be more involved and supportive. The grandmother testified that she took Thomas to dental and medical appointments and picked him up from daycare whenever Ms Roth needed help.

[145] In September 2014, the grandmother was diagnosed with blood cancer. This has now been treated and she is in a remission. It is Ms. Halstead's evidence that this illness does not currently impact her in any way. Her day-to-day activities and fitness level are now the same as they were prior to her becoming sick when she was very active. She testified that she is fully capable of taking care of her grandson when necessary.

[146] The grandmother testified that she tried very hard over the years to maintain a good relationship with Ms. Roth. She often felt that she was "walking a tight rope "with Ms. Roth due to her anger and sometimes volatile personality. Contrary to Ms. Roth's evidence, Ms. Halstead testified that over many years, she never saw any type of abuse by her son towards either Ms. Roth or Thomas, nor did Ms. Roth ever say anything to her about her son being abusive towards her.

[147] The grandmother testified that in 2014, after Ms Roth entered a relationship with Ms. Coey, her weekends with Thomas gradually became less frequent. She still continued to care for Thomas in her home one or two evenings per week, to accommodate Ms. Roth's work or school schedule. Thomas usually spent Tuesday nights with her.

[148] However, in November of 2015, the grandmother testified that she received a phone call from Ms. Roth advising her that she would no longer be able to care for Thomas on Tuesday nights or during the week. Ms. Roth was very upset and angry that the grandmother had taken a school form out of Thomas's school bag on a previous access visit and had given the form to that father. The form contained the emergency contact information for Thomas's parents. Mr. Halstead had apparently taken the form to Thomas's school and requested that he be included as an emergency contact.

[149] According to the grandmother's evidence, the school form was not in an envelope addressed to Ms Roth. It was simply lying loose in the bag, so she have it to the father. Ms. Roth was extremely upset with the paternal grandmother for doing this. She would no longer permit the grandmother to spend independent time alone with Thomas during the week.

[150] In December 2015, the grandmother testified that she received a further phone call from Ms. Roth advising her that she would reconsider allowing Thomas to continue to see her on Tuesday nights so long as she agreed not to take things out of Thomas's school bag.

[151] According to the grandmother, during the same telephone call, Ms. Roth made very negative and critical comments about the father. Ms Roth told her that the father meets most of the criteria for a sociopath and that she should be very concerned about Thomas's safety when he is with the father. She told the grandmother that she and Mr. Coey wanted to meet with her to discuss their concerns.

[152] The grandmother testified that she initially agreed to meet with the mother and Ms Coey. However, she then she changed her mind because she did not feel comfortable being a party to Ms Roth's issues with her son, given the court proceedings between them.

[153] Since November 2015, the paternal grandmother has only been able to see Thomas during his access visits with the father. She no longer has an independent relationship with Thomas and her relationship with the mother has gradually deteriorated. Although she has not had much interaction with Mr. Coey, she described him as being extremely rude to her on a couple of occasions and she has observed him to be extremely rude and angry with her son.

[154] She testified that she was able to visit Thomas at his home with Ms Roth and Mr. Coey on one occasion. She asked Ms. Roth if she could take Thomas out for dinner, but Ms. Roth would not agree. She described Ms. Roth as being rude to her during that visit and she did not feel comfortable returning to her home.

[155] The grandmother testified that she has sent Thomas text messages, but Thomas has told her that he is not comfortable responding to those messages when he is with his mother and Mr. Coey. The paternal grandmother now writes to Thomas and sends him photos that she has taken. She continues to see him during his access visits with his father.

[156] The paternal grandmother decided to bring a motion to be added as a party to these court proceedings in an attempt to reinstate her independent access to Thomas. Her motion was not successful. She then tried to arrange a meeting with Ms. Roth and Mr. Coey and a mediator. Ms. Roth would not agree to meet with a mediator and the paternal grandmother, even though the grandmother offered to pay for the service.

[157] It is the grandmother's evidence that the mother and Mr. Coey are attempting to replace Thomas' father with Mr. Coey. She has heard Mr. Coey describe Thomas as "his son" on a number of occasions and heard both the mother and Mr. Coey refer to themselves as "Thomas' parents". She testified that during the OCL disclosure meeting in which she participated, she observed Mr. Coey and Ms. Roth both refer to Thomas as "our son" and that they are "his parents" while Mr. Halstead was present in the room. She believes that they are actively undermining Thomas' relationship with his father.

[158] The paternal grandmother described the father as a very loving and devoted father to Thomas. She described her son as a very active and interesting individual who has tried to provide Thomas with different experiences to enlarge Thomas's horizons. She described Thomas as always very happy and excited to see his Dad. The grandmother testified that no negative comments are ever made to Thomas about his mother or her family when Thomas is with her or his father.

[159] Regarding Thomas's exposure to firearms, the grandmother testified that before the mother started reporting the father to the children's aid society, Thomas never expressed safety concerns around guns and always seem to enjoy a target practice or shooting range activities with his dad. The father bought Thomas a BB gun about three or four years ago and taught Thomas how to use it. According to the grandmother, Thomas had a lot of fun and became quite a good shot, better than his friends.

[160] The grandmother described the father as being very safety conscious and extremely diligent in teaching Thomas safety precautions when using a BB gun. Similarly, whenever they have gone to the shooting range, the father has ensured that Thomas has always worn safety equipment such as earplugs, safety glasses, and a bullet proof vest.

[161] The grandmother described her son as a very safety conscious individual and corroborated much of what the father described regarding his activities with Thomas, including the father's management of a collection of venomous reptiles in a zoo near Pembroke.

[162] The grandmother acknowledged that Thomas now expresses that he is not comfortable around guns and that he does not want to do be exposed to guns. In cross-examination, when asked if Thomas fears are genuine, the grandmother responded that she did not know but testified that Thomas had never expressed safety concerns until his mother started reporting the father to the children's aid society.

[163] The grandmother was not present for the incident in July 2016 when the father was making an explosion with Thomas, although she is aware that the mother and Mr. Coey reported this incident to the children's aid society and other authorities.

[164] The grandmother has also seen the father and Thomas working out together on many occasions. She testified that her son has never used exercise or working out as punishment but he does encourage Thomas to be more active given the mainly sedentary lifestyle he has with his mother, according to the grandmother.

[165] On Sunday, January 31, 2016, the grandmother did observe the father do a series of workout exercises with Thomas because Thomas had been playing video games all day with friends. The grandmother acknowledged that the exercises caused Thomas some muscle soreness the following day but nothing out of the ordinary as he was able to get dressed himself and go to school as usual on Monday. He did not report to her that he was unable to walk. The grandmother is aware that the mother and Mr. Coey took Thomas to the hospital emergency the next day and reported the father to the children's aid society.

[166] In cross-examination, the grandmother acknowledged that in her affidavit sworn February 7, 2016 about this incident, she deposed that Thomas had complained of some pain and discomfort in his back and legs and that she helped him put on his socks on Monday morning. However she denied that the account changed in her trial affidavit as Thomas was still able to dress himself. Although she helped him, she did not feel that this was necessary.

[167] The grandmother is very aware of Thomas's anxiety and has practiced meditation and relaxation exercises with him. She testified that the mother has given her books about anxiety and meditation tapes which she and Thomas would listen to at night to help him.

[168] The grandmother also expressed concern about the mother's involvement of Thomas in the court proceedings and the very negative things that the mother has said to Thomas about the father. In the past, when the mother was living at her home, the grandmother has witnessed the mother involve Thomas in her issues with the father and say derogatory things about the father to Thomas.

[169] The grandmother testified that Thomas has frequently told her that he has overheard his mother talking about the court case and his father. The grandmother observed this to be very distressing to Thomas and to cause him anxiety. He would often tell the grandmother about these things at bedtime when he had difficulty going to sleep.

[170] The grandmother gave evidence about an incident in April 2015 in which Thomas told her that his mother had shown him court papers which included his father's financial statements. Thomas believed that his father had been lying to him based on what his mother had told him. The grandmother reported that Thomas was very distressed and confused and could not sleep. The grandmother lay on the bed with him and did breathing and relaxation exercises to help him to get to sleep.

[171] The grandmother's evidence is that she has tried to remain neutral in terms of the conflict between the parents although she supports her son's relationship with Thomas and believes this is important. All she can tell Thomas is that "he has the right to love both parents and that both Mommy and Daddy love him".

The Father's Partner, Sarah Halstead

[172] Mrs. Halstead has been in a relationship with the father since April 2010. They married in August 2012. They have lived in Pembroke Ontario since they met. Mrs. Halstead is currently employed as a Captain in the Canadian Armed Forces. They met when the father was employed in the Canadian forces.

[173] Mrs. Halstead confirmed that since the father was medically released from the Army and is now working as Toronto paramedic, he divides his time between Toronto and Pembroke. Ms. Halstead's testified that the father returns to their home in Pembroke as often as possible in order to help with work on the property and to maintain their marriage.

[174] Ms. Halstead testified that the distance to which their marriage has become accustomed did put a strain on their relationship and there was a period of the time that they thought they might separate. However they have reconciled and are focused on strengthening their relationship.

[175] Despite these challenges, it is Mrs. Halstead's evidence that the father has never been abusive towards her in any way. She described him as a loving and caring person whom she could never see as an abuser of any sort. As a parent, she described him to be fair and even-handed, balancing discipline with love and respect.

[176] Ms. Halstead testified that she and the father share similar ideas on parenting and have similar parenting styles, although not identical. It is very important for both her and the father to incorporate physical activity, exercise, sports and other team-building activities into parenting. She stated that it is much more challenging for Thomas to do exercise and that he is not a naturally active or athletic child. However she believes that it is important for Thomas to engage in some physical activity. She described the many activities that the father has organized for Thomas.

[177] Ms. Halstead described Thomas as a genuinely nice and kind child and a good person. However she also sees him as a nervous child who is not being taught the skills to cope with adversity outside his limited scope of experience. Ms. Halstead believes that Thomas has been coddled and spoiled, in particular by the mother and Mr. Coey.

[178] According to Mrs. Halstead, when Thomas is at their home in Pembroke, he is expected to participate in regular age-appropriate household chores and activities. Some examples would include stacking firewood, working in the yard, and carrying water while camping. Thomas does not like to do some of these activities and if he complains to his mother a task or an event will be blown out of proportion and made to seem far worse than it actually is.

[179] She acknowledged that there is a significant difference in the parenting styles of the father and Ms. Roth. From her perspective, Thomas has much more responsibility and chores to do at their home compared to the mother's home. When Thomas does complain about activities or chores that he has to do, she feels that sometimes Thomas exaggerates because he does not like doing chores or activities. She believes that many of the incidents described by the mother are blown out of proportion.

[180] Mrs. Halstead testified that Thomas has to be pushed hard to do certain things. For example, it took years for the father to teach Thomas to swim. According to Ms. Halstead, with a lot of time and effort, the father successfully taught Thomas to swim which is a life-saving skill. She has witnessed Thomas swim.

[181] Ms. Halstead is aware that the father is seeking ten consecutive days each month with Thomas while he is working in Toronto as a paramedic. She testified that she believes that he is capable of doing this but not alone. He will require the assistance of Thomas's grandmother to care for Thomas on those days that he works shifts. She testified that the father's shifts are twelve hours in length and can be both day and night shifts. They are hoping to move to Toronto in June 2018 if Ms Halstead is not deployed again overseas, so she can also offer assistance.

[182] Ms. Halstead does not approve of video games nor does she participate in video games. She is aware that Mr. Coey is a videogame developer and designer. She does not approve of Thomas watching video games or participating in them. When asked, she would not "hazard a guess" as to whether Mr. Coey was a positive influence on Thomas, however based on her own personal experience, she has not seen any positive changes in Thomas since Mr. Coey became involved in his life.

[183] Ms. Halstead has observed that during the course of any extended access visits between Thomas and his father, such as during summer holidays, Thomas changes in a very positive way. Thomas usually begins the visits with fears and anxieties and that by the end of extended visits, his fears and anxieties have significantly subsided. She testified that Thomas does not have a strained relationship with his father but sometimes he is made to feel guilty about participating in activities with his father because he knows that his mother does not like these activities.

[184] Ms. Halstead has no relationship with Ms. Roth and they do not communicate. She testified that over the six years that she has been with the father the relationship between the parties has been contentious and strained and it has not improved. She has witnessed irrational behavior on the part of the mother. She described an unreasonable amount of text messages from the mother around access issues.

[185] Ms Halstead described a psychiatrist's appointment that she attended with the father to discuss Thomas's ADHD treatment. During that appointment, the mother refused to be in the same room with the father and refused to allow the father to come in to the meeting room with the psychiatrist. The mother spent a very long time with the psychiatrist privately. Ms. Halstead and the father and Thomas were waiting in the waiting room.

[186] Ms Halstead testified that she observed Thomas to be relaxed and comfortable with the father in the waiting room however as soon as the mother exited the doctor's office, he became visibly uncomfortable and anxious and ran to his mother.

[187] She further testified that Thomas was not afraid of guns or BB guns prior to the children's aid society investigations. She observed that now Thomas seems to be afraid of guns.

[188] Ms. Halstead acknowledged that she is not as involved as a parent with Thomas. Given that the father does not have as much time as he would like with Thomas, he generally spends a lot of time one-on-one with Thomas. Further, she was also deployed overseas in 2016 for six months. Although she is now back in Canada, most of Thomas's access time with his father is exercised in Toronto.

[189] Ms. Halstead testified that generally Thomas's access with his father occurs in Toronto and she now sees Thomas approximately once per month. However during extended access periods or holiday times, she participates in access when Thomas is at their home in Pembroke. She has also engaged in a number of family and holiday activities with Thomas such as camping and fishing. They also vacationed in Alberta together in Rocky Mountains.

[190] When asked if Thomas is accepting of the father's parenting style, Ms. Halstead testified that the father's parenting style is obviously different than the mother's parenting style but Thomas does accept it. However, Thomas does compare and contrast the two parenting styles and this does create conflict and difficulty for him.

[191] Ms Halstead gave evidence that on March 2, 2016, during the time that she and the father had briefly separated, she received an email from the mother and Mr. Coey. They accused the father of being found guilty of child abuse and committing tax fraud and requesting that she contact them. The mother advised her that she and Mr. Coey have taken action against the father by reporting him to the CRA and that prosecutors may launch a federal case against him.

[192] According to Ms Halstead, the mother implied that she could be drawn into such a case and wrote her the following:

"Given that you are in the middle of the major change in your relationship with Luke, and you may not have been fully aware of the extent of Luke's financial misrepresentations or fraudulent behaviors, we thought it prudent to reach out to you to give you a chance to get ahead of this."

[193] Ms. Halstead stated that the email was sent to her work address. She found it offensive, highly inappropriate and inaccurate. It is her evidence that there was absolutely no tax fraud or concealment of income on the father's part nor has he been investigated by the Canada Revenue Agency.

The Mother's Partner, Christopher Coey

[194] Mr. Coey has been in a relationship with the mother since August 2013, when Thomas was eight years old. They moved in together as a family in August 2015. Prior to that time, Mr. Coey was spending approximately two or three nights per week at the home of Ms. Roth and Thomas and even more time leading up to cohabitation.

[195] Mr. Coey is an interactive video game designer and developer. He develops video games for children and he is also a writer for children's television shows.

[196] Mr. Coey described having a strong bond with Thomas and stated that he is a parent and father to him in every way save for biologically. He described the efforts that he and the mother have made to ensure that Thomas "has a stable live-in father for the first time in his life". Although the OCL clinician and social worker described the ease in he and Thomas' relationship and noted their many shared interests, Mr. Coey believes that these comments somewhat undervalues the effort and work that he is put into developing his relationship with Thomas.

[197] Mr. Coey describes Thomas as his son and that he is a father to Thomas. It is Mr. Coey's evidence that when he first met the mother she shared a number of issues and troubles that she and others, including school teachers and social workers, were experiencing with Thomas. They discussed this is in detail.

[198] It is Mr. Coey's opinion that all of Thomas' issues seem to center around the troubles and frustrations that Thomas was having in his relationship with Mr. Halstead. It is Mr. Coey's strong view that Thomas' stress and anxiety is almost entirely caused by his relationship with his father.

[199] Mr. Coey described Thomas as a deeply sensitive child and very emotionally vulnerable. His emotional vulnerability and sometimes overt sensitivity is a factor of his special needs which he believes the father does not understand or handle appropriately.

[200] According to Mr. Coey, that father had only recently come back into Thomas' life in 2013 and that his request for more access was creating stress and anxiety for Thomas. He described Thomas as often acting out, exhibiting signs of distress, nervous tics, and having "outright anxiety attacks" on the nights leading up to access time with his father.

[201] Mr. Coey also listed a litany of concerns, based on what Thomas has told him, regarding the father's parenting of Thomas, including "forcing" Thomas to handle venomous reptiles, "forcing" Thomas to watch him kill animals, "forcing" Thomas to engage in dangerous activities with guns and explosives and, "forcing" Thomas to exercise and overexert himself as a form of punishment.

[202] Mr. Coey described many conversations he had with Thomas regarding complaints that Thomas made about his father. It is his evidence that he and Ms. Roth are constantly confronted by Thomas about his father and the fears and anxieties that he has over his father's growing access.

[203] Mr. Coey testified that Thomas is frightened of additional access with his father It is Mr. Coey's evidence that Thomas will often lay awake and cry just before an access period with his father or leave a "heartbreaking" note asking he and the mother for " help with his Dad".

[204] Mr. Coey does not believe that he and the mother had interfered at all in Thomas's relationship with his father. According to Mr. Coey, the multiple children's aid investigation into abuse as well as the OPP and CFO (Chief Firearms Office) into allegedly illegal firearm explosive activities were clearly necessary given his view of the father's dangerous and abusive behavior.

[205] Mr. Coey expressed very serious concern about the father's continued exposure of Thomas to guns and explosives. According to Mr. Coey, the father's continual efforts to force guns upon Thomas is detrimental and abusive. As Mr. Coey states, "as reasonable responsible adults who are deeply concerned for their son, Michelle and I are forced to confront Luke where his decisions and actions will knowingly lead to harm Thomas."

[206] It is Mr. Coey's view that Thomas's sadness, low self-confidence and sensitivity are a direct result of the father forcing himself into Thomas's life through extended access. It is clear to Mr. Coey that Thomas is afraid of his father. He also believes that the father exposes Thomas to dangers and engage him in activities that he knows will trigger Thomas's phobias and anxiety.

[207] Mr. Coey described in very specific detail the level of involvement that he has in parenting Thomas, including working diligently with Thomas on a near daily basis to help him with his school and homework. It is his evidence that the father's assistance with Thomas's homework is destructive and counterproductive to Thomas, based on Thomas's complaints to him. Mr. Coey is of the view that the father and paternal grandmother "were attempting to forcibly impose themselves on to Thomas's school work and homework."

[208] Mr. Coey also does not believe that the father taught Thomas to swim. According to Mr. Coey, Thomas can only tread water and doggie paddle very slowly, which is far from swimming. Mr. Coey stated that he is now teaching Thomas to swim but Thomas presents as a child scared of the water and even more terrified now after his father forced his head underwater when trying to teach him to swim. According to Mr. Coey, this was a horrible experience for Thomas.

[209] Mr. Coey testified that the father has on numerous occasions belittled and verbally abused him including telling him during one court hearing to "go play games while the adults talk little boy" in the presence of his lawyer. According to Mr. Coey, the father has also threatened him with physical violence. During one court appearance the father told him in the waiting area that if they were not in court, "I'd take you outside and show you exactly how I feel."

[210] Mr. Coey stated that he "loves and cherishes Thomas as his own" and believes the father is unreasonably threatened by that. He acknowledged that he often refers to Thomas as "my son" in public and that he did so during the OCL disclosure meeting. He did not see this as a problem, or as confusing to Thomas or as difficult for the father.

[211] According to Mr. Coey he has never met a person with "such intense self-focus and narcissism" as the father. It is his view that the father has placed his own ego above the interests of his son on countless occasions. He further described the father's reactions to Mr. Coey and his role as Thomas's stepfather to have been disproportional to a jealous emotion.

[212] Mr. Coey spent a considerable amount of time researching Tannerite to determine if it was illegal after Thomas described to him that he and his father blew something up during their July 2016 summer holidays and showed him the video. Mr. Coey contacted the Chief Firearms Officer and the OPP to launch an investigation.

[213] Mr. Coey determined that because Thomas was the only witness, he and the mother decided not to pursue criminal charges against the father. He acknowledged that the OPP the CFO and the children's aid society did not verify abuse or that Thomas was in danger and that no charges were laid by the authorities after interviewing Thomas. He did not agree with the outcome of this investigation. In his view, the father was committing a crime during his July 2016 summer holiday and that he was exposing Thomas to an extremely dangerous situation.

[214] Mr. Coey also acknowledged that he programmed the Jewish Family and Child Services' phone number and the Kids' Helpline phone number into Thomas's cell phone so that he could contact those agencies during access visits with his father if he felt unsafe. He further acknowledged sending the following text message to Thomas during an access visit with his father:

"Thomas we just want to remind you that you are allowed to speak with us at any time. You just need to ask. As well, just as the CAS worker assured you, if you are being prevented from using your phone and don't have access to help, you should call her immediately. We put her number in your phone. Your Dad is not allowed to deny you access to her, or to us."

[215] Mr. Coey also acknowledged that it was he who pulled the nurse aside when they took Thomas to the emergency room in February of 2016 and told her that "this was a children's aid case" and that they believe that they believe that Thomas was suffering because of "excessive physical discipline" by the father.

[216] Mr. Coey clearly does not agree with the outcome of the multiple CAS investigations. In his opinion, "the children's aid society takes a narrow view of non-physical abuse".

[217] Mr. Coey and Thomas enjoy playing video games together and described this as one of their past times together. He was very critical of the video games and films that the father has exposed Thomas to during his access. He described them as "violent shooter" games or films with inappropriate and sexually graphic material.

[218] In cross-examination Mr. Coey acknowledged that he has played the "Halo" game with Thomas which is a "first-person shooter" game. Thomas was approximately 9 or 10 years old when they played it. However, Mr. Coey explained that closely supervised Thomas's use of Halo as he is "kind of an expert on this game".

The mother's brother, Joshua Roth

[219] Mr. Roth is 23 years old. He is the mother's brother and Thomas' uncle. He was 11 years old when his sister gave birth to Thomas. Given how young he was when Thomas was born, he described himself as more like a big brother to Thomas rather than an uncle.

[220] Mr. Roth testified that he is been very close to Thomas all of his life. He met Mr. Halstead prior to Thomas's birth and he has known the paternal grandmother for quite a while. He recalls visiting his sister and Thomas in the paternal grandmother's home.

[221] Mr. Roth has read the trial affidavits of the father and the paternal grandmother. He disagreed with most of the contents of these affidavits. He stated that the father was not as involved in Thomas's life as he claims nor was the paternal grandmother.

[222] According to Mr. Roth, these affidavits contain numerous falsehoods. He stated that if the father and paternal grandmother were as involved in Thomas's life as they claim in their affidavits and court documents, then they would have been more a part of his own life.

[223] Mr. Roth testified that he has seen his sister and Thomas approximately once every two weeks for their entire lives. He spent more time with Thomas and his sister after he left foster care at the age of 16. After he left foster care, he lived in group homes before living independently.

[224] Mr. Roth believes that due to the stable home and family life that Thomas now shares with Michelle and Mr. Coey, Thomas has improved dramatically. He described Mr. Coey as being a very positive influence on his life and he now enjoys doing his homework with Mr. Coey and his mother. He described Thomas and Mr. Coey as having a wonderful relationship.

[225] Mr. Roth does not believe that giving the father more access to Thomas is a good idea at this time. According to him, Thomas is happy and stable with his mother and Mr. Coey. He is concerned about the unsafe visitations and the general disrespect towards Thomas's mental health by his father.

[226] Mr. Roth acknowledged in cross-examination that his opinion is largely based on what his sister tells him but also on what Thomas tells him.

Ms Laura Barlas, the OCL Clinical Investigator

[227] Ms. Barlas is the clinician assigned by the Office of the Children's Lawyer to conduct a social work investigation and report of the custody and access issues in this matter, in accordance with section 112 of the Courts of Justice Act. The case was assigned to her on December 8, 2015. A disclosure meeting with the parents, the paternal grandmother and Mr. Coey was held on April 14, 2016.

[228] The Children's Lawyer Report ("OCL" Report) dated April 25, 2016 was filed as evidence in these proceedings.

[229] Ms. Barlas has an undergraduate degree in psychology and a Bachelor of Social Work, graduating from McMaster University in 1997. She was employed in the child protection field from 1997 to 2006. In 2006, she joined the social work panel for the Office of the Children's Lawyer to conduct social work investigations. Over the past ten years, she has completed approximately eighty OCL reports for the court.

[230] As part of her investigation, Ms. Barlas interviewed Thomas, both parents, and Mr. Coey. She conducted two interviews with the parents and two observation visits with Thomas, one at each parent's home. She also interviewed a number of collaterals, including child protection workers, school teachers, school principals, pediatricians, the paternal grandmother, and the maternal uncle, Joshua Roth. She also reviewed Toronto police service reports, OPP Pembroke police reports, Scarborough Hospital emergency records, and child protection records.

[231] Ms. Barlas describes Thomas as a quiet, sensitive and thoughtful 11 year old boy. She confirmed that Thomas suffers from ADHD, a Learning disability and an Anxiety disorder. Despite his special needs, Thomas generally gets along well with his peers and is progressing well academically. He does not appear to be exhibiting any signs of anxiety at school. At home, Thomas appears to be experiencing some anxiety relating to his relationship with his father and his parents' conflict.

[232] Ms. Barlas met privately with Thomas on three separate occasions at her office. Thomas described having a good relationship with his stepfather Mr. Coey. He reported to her that they have similar interests including video games and board games.

[233] According to Ms. Barlas, Thomas described wanting to have a good relationship with his father but at times he is not comfortable with the kinds of activities that his father wishes him to participate in. Thomas feels that his father does not always listen to him and that he does not understand his worries. Specifically, Thomas feels unsafe when shooting guns or being around his father when his father is shooting guns. According to Ms Barlas, Thomas worries for his safety and the safety of others.

[234] Thomas also does not enjoy the physical workouts that he and his father have engaged in together. He reports that he and his father engaged in weightlifting and body weight exercises together. After doing some body weight exercises with his father in February 2016, Thomas suffered significant pain and discomfort for approximately 2 to 3 days. He reported that his mother took him to the emergency department at the local hospital and the doctor said that there could be long-term complications for Thomas. This worried Thomas.

[235] In the first interview, Thomas was anxious about spending time with his father over the March break in Pembroke. He does not enjoy camping and has a fear of bugs and spiders. His father had also shared with him that they would be participating in some shooting activities in an abandoned warehouse. Thomas also worried that his father may have him engage in excessive workouts. He prefers when visits are in Toronto because the visits take place at his paternal grandmother's home and he enjoys spending time with her.

[236] The second interview took place at the end of the March break. Thomas had just spent a week with his father in Pembroke. Thomas spoke positively of the week with his father and indicated that his father did not make him participate in any gun activities or workouts. He felt more confident that his father was listening to him, but was still guarded about long-term change.

[237] According to Ms. Barlas, throughout the OCL process, Thomas began talking more openly with his father about his feelings. Thomas felt that his father was listening and making an effort to change but was cautious about his father's commitment to change long term.

[238] Thomas was able to identify things that he enjoyed about his visits with his father and would like to do more of these things. These included playing badminton, playing board games, playing video games together, going to the park, playing the guitar, and spending time with his friend to lives close to his paternal grandmother's home.

[239] Thomas did not share any anxiety be about staying at his paternal grandmother's home. They discussed what access would look like if the father was living in Toronto including alternating weekend access. According to Ms. Barlas, Thomas was open to this possibility.

[240] Thomas acknowledged that historically if he is upset with something that has happened at his father's home, he may exaggerate his complaints to his mother upon return to her care. He recognized how this impacted on his mother and father's relationship and created hostility between them.

[241] Thomas was consistent throughout all of his interviews in expressing his fear and lack of enjoyment in exposure to guns and workouts. He recognized the importance of regular exercise but preferred badminton or squash or going to the park with friends over workouts.

[242] At the time of the investigation, the father had yet not yet moved to Toronto but was planning to move to Toronto. According to the OCL investigation and report Thomas was open to exploring spending more time with his father given the pending move to Toronto. Thomas was uncertain about what kind of access schedule he would be comfortable with. His comfort level depended on whether or not his father continue to respect his wishes and whether or not the visits continue to go positively.

[243] Thomas was consistent in his desire to spend time with his paternal grandmother and to see her on a regular basis. He expressed it is a desire to see his paternal grandmother approximately once a week but wanted there to be some flexibility in the schedule.

[244] According to Ms. Barlas, Thomas appeared to be under considerable stress given the pending court matter and the conflict between his parents. While he denied either parent in involving him in court matters, who reported that he sometimes overheard them talking. He reported feeling anxious about these issues and identified trouble focusing at school and falling asleep because of these worries.

[245] In the discussion section of her report Ms. Barlas reported that it is evident that both parents are committed to Thomas. They each have unique strengths and have something positive to offer Thomas. Ms. Roth is nurturing and attentive to Thomas needs. She listens to Thomas and makes them feel heard. Mr. Halstead offers Thomas's opportunities to explore and try new things, take risks that sometimes her out of his comfort zone and has worked hard to find a common interest, the guitar.

[246] A page 14 of her report Ms. Barlas states the following:

"Ms. Roth and Mr. Halstead had significantly different parenting styles. Ms. Roth is more of a nurturer and protector while Mr. Halstead is more firm. He encourages Thomas to take risks and to step outside of his comfort zone and admits to lacking patience when he feels Thomas is not giving 100%. Differences in parenting are normal and generally children adjust well to unique parental responses as long as the child's needs are being met overall…. The differences in parenting styles as described by Thomas appeared to be causing some to stress and frustration for Thomas. When he returns home from visits with his father, he is quick to vent to his mother and admits that he sometimes exaggerates his complaints. This serves to fuel the conflict between Ms. Roth and Mr. Halstead."

[247] Regarding the issue of joint versus sole custody, Ms. Barlas recommended that sole custody be awarded to Ms. Roth. Given the high conflict nature of this case, the parents' historical inability to communicate effectively, the parents' different views about parenting, and the confusion for professionals arising from the current final joint custody order, Ms. Barlas found that joint custody would only serve as a source of ongoing disagreement and litigation between the parties. As she put it, this will continue to leave Thomas in the middle of his parents "never ending battles".

[248] According to Ms. Barlas, this by no means minimizes the important role Mr. Halstead plays in Thomas's life. It is important to remember that a parent does not need joint custody to have a meaningful relationship with their child. Mr. Halstead should continue to remain actively involved in Thomas's education, medical treatment, and counseling needs by meeting regularly with the professionals involved in Thomas's care. She recommended that Mr. Halstead has the right to access all information about Thomas directly from the source. Ms. Roth will need to keep Mr. Halstead informed of any new professionals who become involved with Thomas.

[249] Regarding access, Ms. Barlas found that the current final order of four consecutive days each month to be determined on a month-to-month basis requiring 28 days' notice has resulted in an overwhelming number of texts back and forth between the parties each month, confusion and conflict. It is her view that it was important to eliminate the need for the parties to communicate as much as possible and she recommended that a set access schedule be put in place.

[250] Ms. Barlas recommended that if Mr. Halstead continued to reside in Pembroke then access should take place the same four consecutive days each month, specifically, the first weekend of each month and every four weeks thereafter. If Mr. Halstead is residing in Toronto, Ms. Barlas recommended that access occur on alternate weekends from Friday after school to Monday morning drop off at school and one midweek visit each week. Midweek visits should start as evening visits from after school to 7:30 PM and graduate to overnight visits after a period of six weeks.

[251] Ms. Barlas also put conditions on access between Thomas and his father. Although she recognized that firearms are a hobby and interest of the father and that his intent was for this to be a bonding experience between him and Thomas, it is her recommendation that the father not allow Thomas to handle in any way a firearm. Furthermore the father shall not engage in any firearm activity in Thomas's presence.

[252] According to Ms. Barlas, there is no benefit to exposing Thomas to firearms at this time. Thomas is identifying this as a primary reason why he is anxious about spending time with his father, particularly in Pembroke. In order for Thomas to build trust and feel heard by his father, it is important that Mr. Halstead respects Thomas's wishes.

[253] Regarding exercise, although physical activity is a crucial part of Thomas's development, Ms. Barlas found that Thomas is a child whose interests are more into gaming the most sports and finding a fun physical activity to do with Thomas can be challenging.

[254] Ms. Barlas found that although the father's efforts to expose Thomas to some weight and body training exercises was intended in good faith as an opportunity to spend time with Thomas and to build on their relationship, it unfortunately had the opposite effect. Thomas does not enjoy this form of exercise and it has caused some anxiety for him.

[255] During her investigation, Ms. Barlas found that the father's intentions were never to cause harm to Thomas. She did not find that the father's actions were abusive. Mr. Halstead simply wants Thomas to be healthy and active. Ms. Barlas recommended as a condition of access, that Mr. Halstead shall refrain from excessive exercises that have the potential to cause physical harm to Thomas.

[256] Regarding the child protection investigations, Ms. Barlas found based on her investigation of the reports, that the Jewish Family and Child Services (JFCS) did not verify any of the allegations of cruel and inappropriate treatment by the father towards Thomas. The father's actions were not deliberate, he did not intend to cause harm to Thomas and his actions were not considered abusive.

[257] All of the investigations were closed at intake after Thomas and the parents were interviewed. However the father was cautioned and a letter was written to both parents advising that Thomas was not to be exposed to any type of gun use or any activity that made him feel uncomfortable. Further, the father was to refrain from excessive exercises that have the potential to cause physical harm and finally the parents were cautioned by JFCS not to expose Thomas to any type of adult conflict.

[258] Based on her investigation, Ms. Barlas did find evidence to suggest that the mother may be feeding into Thomas his fears and anxiety by not supporting his relationship with his father. Both the child protection worker and the principle of Thomas's school corroborated these findings. Although there was no evidence to suggest that the mother suffers from a mental health disorder, there was evidence that the mother did not support Thomas's relationship with his father. According to Ms. Barlas, Ms. Roth needs to stop labelling Mr. Halstead as an abuser and stop engaging professionals in the conflict. Attempting to get professionals to align with her is detrimental to Thomas. It causes stress and emotional harm to Thomas who is caught in the middle.

[259] Ms. Barlas expressed great concern about the ongoing parental conflict between the parents and the potentially long-term damaging effects it can have on the child's social emotional and cognitive development. She found that that the majority of Thomas's anxiety related to the ongoing conflict between his parents and that Thomas had acknowledged to her that a lot of his anxiety was related to the ongoing conflict.

[260] Ms. Barlas recommended that the father would benefit from some parenting support to assist him in understanding Thomas's developmental needs, responding to Thomas in a more empathetic way and learning ways of helping Thomas scope with his anxiety.

[261] She also recommended that the mother would benefit from counseling to help her learn to manage her own stress and anxiety and to help Thomas work through his. She further recommended that Ms. the mother needs to learn ways to support and facilitate Thomas and having a relationship with his father.

[262] Finally she recommended that Thomas would benefit from counseling at the Shoniker clinic to help him learn ways to manage his anxiety and cope with family stress. It would be beneficial for both parents to participate in the counseling so that they can learn effective tools for helping Thomas with his anxiety.

[263] Ms. Barlas recommended that summer access be shared equally between the parties. This is in line with Thomas's views and preferences. His preference is an alternating two week schedule. She further recommended that the parties alternate March breaks so that in odd-numbered years the mother will have Thomas for March break and in even-numbered years the father would have Thomas for March break. She recommended that Christmas holidays be shared equally and that access exchanges take place on Christmas Eve to allow Thomas an opportunity to celebrate with both sides of his family.

[264] Regarding access to Thomas's grandmother, Ms. Barlas could not make a recommendation on this issue as the paternal grandmother is not currently a party to the proceedings. However, Thomas shared with Ms. Barlas that he enjoy spending time with his paternal grandmother and that he would like to have regular contact with her on a weekly basis although he didn't necessarily want to commit to a set schedule.

[265] During the OCL process, it was Ms. Barlas's opinion that the father had made some positive gains and that he was open to making an effort to listen to Thomas and to be respectful of Thomas's wishes regarding gun activity. Thomas came back from the March break holiday with his father very happy as his father had not made him participate in any gun activity or do any excessive physical discipline.

[266] Ms Barlas testified that she would be concerned about the father continuing to expose Thomas to guns and excessive physical exercise because Thomas had made it very clear to her that he was very uncomfortable about those activities and that he wanted his Dad to listen to him about this. However she felt positive that the father was listening to Thomas and committed to listening to Thomas about these issues.

[267] When told during cross-examination that after the release of the OCL Report and recommendations, the father had exposed Thomas to an explosion on a shooting range near his property, Ms. Barlas testified that she would be very concerned about this given Thomas' clear views and preferences about being exposed to gun activity.

[268] However, Ms Barlas testified that this did not change her recommendations with respect to alternate weekend access should the father be residing in Toronto. She testified that during her interviews with Thomas, he was very thoughtful and open with her. According to Ms Barlas, Thomas really wants to have a relationship with his father but there are some very "big things" that he is anxious about with his father and he wants his father to listen to him. Although he was quite open about his worries, at no point did Thomas say that he was scared or frightened of his father or at what his father would do if these concerns were shared with him.

[269] According to Ms. Barlas, Thomas consistently maintained with her that he wanted a relationship with his father.

[270] In cross-examination Ms. Barlas reiterated that a significant amount of Thomas's anxiety at the present time is the conflict and the fight between his parents.

[271] During cross-examination, Ms. Barlas was advised that since the release of the OCL report, the father is now dividing his time between Toronto and Pembroke and that he is residing with the paternal grandmother while he is working in Toronto. She testified that knowing that information would not change her recommendations that the father have alternating weekend access and midweek access while the father is in Toronto. It was her very strong opinion that Thomas needs a set and consistent schedule which minimizes communication between the parents.

[272] Regarding the father's twelve hour shifts as a paramedic, Ms. Barlas also testified that this would not change her recommendation for alternating weekend access, assuming that the father exercises that access in Toronto. She was not concerned about that schedule given the grandmother has a close and loving relationship with Thomas and that most parents work and have proposed caregivers to look after their children when they work. Knowing this information did not change her recommendations. She was of the very strong view that Thomas have a set and consistent schedule.

[273] When asked if it is possible that Thomas says different things to each parent, Ms. Barlas agreed with this statement. She testified that Thomas definitely struggles with being completely caught in the middle of his two parents. He tries not to talk about one parent with the other because it increases his stress and anxiety.

[274] Ms. Barlas testified that she was not aware at the time of her investigation that Ms. Roth wanted to change Thomas's last name to Coey without the father's consent. She would not comment on this information without more information and without canvassing this with Thomas.

[275] Ms. Barlas testified that after she completed and delivered her report, she received a very lengthy email from Mr. Coey setting out his concerns with the report and updating her on further concerns and to further emails from the mother. She cannot recall how she responded if at all to these emails but she consulted with her supervisor.

[276] This concludes the summary of the evidence in this trial.

7. The Law and Governing Principles

[277] 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.

[278] 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."

[279] 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.

[280] 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.

[281] 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.).

[282] 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.).

Has there been a Material Change in Circumstances since the Final Order?

[283] In the case before me, I find that there have been material changes in circumstances affecting Thomas' best interests since the Final Order of Justice Murray, dated May 2014. They are as follows:

1. Since 2016, the father commenced new employment in Toronto and he is now living in Toronto with the paternal grandmother and dividing his time between Toronto and Pembroke, thereby permitting more regular, consistent and predictable access to occur, subject to Thomas' best interests. At the time of the Final Order, the father was residing in Pembroke, approximately five hours away from Thomas. He will not be able to spend significantly more time with Thomas during his work periods in Toronto.

2. The divided decision making authority under the joint custody regime set out in the Final Order, particularly regarding Thomas' medical and health care needs has caused considerable confusion for the parents and service providers and it is not working. This has resulted in Thomas not receiving treatment or having his treatment delayed. The parties also do not interpret the Final Order in the same way and did not contemplate this confusion and ongoing conflict as a result.

Having Found Material Changes, what Custody and Access Order is now in the Best Interests of the Child: the Fresh Inquiry of Best Interests

[284] 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.

[285] In determining what custody and access order is in a child's best interests, 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.

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

[287] The best interests of the child have been held to be met by a child having a loving relationship with both parents. 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).

[288] A child should have maximum contact with both parents if it is consistent with the child's best interests. See Gordon v. Goertz, [1996] 2 S.C.R. 27. This applies even when a child may be reluctant to see a parent. The "maximum contact" principle is well enshrined in Canadian family law.

[289] I have also considered the well-established principle that if one parent does not facilitate a child's relationship with the other parent, or undermines the child's relationship with the other parent, it will be a relevant factor in determining the person's 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.

[290] Absent concerns about such issues as abuse, each parent should be expected to support the children's relationship with the other parent, and to take steps to ensure that the children have a positive attitude about that relationship. Where there are equally qualified parents, who would best facilitate access is a significant factor in making custody and access decisions. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128.

Joint Custody versus Sole Custody

[291] 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. (6 th) 373. 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."

[292] 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.

[293] 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."

[294] 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.

[295] 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.

[296] 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 cannot 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.).

Application of the Law to the Facts of this Case

[297] In determining what custody and access order is in the child's best interests, I make the following findings of fact and considered the following:

[298] It would be an understatement to say that these parents and their respective partners have vastly different parenting styles and values. My task is not to pass judgment on either parent's lifestyles or values. Both parents and their partners are interesting, intelligent and fundamentally decent people with widely divergent lifestyles and perspectives on parenting. They all love Thomas very much.

[299] Joint custody is simply not possible in these circumstances. The high level of conflict between the parties, including their disagreement on a number of parenting issues has caused considerable stress and anxiety for Thomas. The court reviewed the voluminous documentation of text messages between the parties and there is a lengthy history of the parents' inability to communicate effectively regarding Thomas and his needs.

[300] All of the witnesses in this trial describe Thomas as a quiet, thoughtful, sensitive, very intelligent, loving and kind 12 year old boy. All of the family and extended family witnesses in this trial, especially his mother and father, love Thomas very much.

[301] Thomas has been diagnosed with a Generalized Anxiety Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and a Learning Disability. He is an anxious child. Despite these challenges, Thomas is currently progressing well at school. At the time of trial, he was in grade 6 in a regular classroom and he is entering grade 7 in the fall of this year.

[302] However, this conflict has now been going on for many years. The parties have been involved in litigation regarding Thomas's custody and access issues for at least seven years. The OCL clinician found that the conflict between the parents is a significant source of Thomas's anxiety and greatly exacerbates it. The evidence at trial clearly supports this assessment.

[303] As Ms. Barlas stated in her report, high ongoing post-separation parental conflict is damaging for children, in all aspects of their life. It can have lasting, damaging effects on a child's social, emotional, and cognitive development. According to Ms. Barlas, Thomas has acknowledged that a lot of his anxiety right now is related to the ongoing conflict between his parents.

[304] The court was impressed with Ms. Barlas's evidence. The report was thorough and comprehensive and her testimony and her findings were supported by much of the evidence at trial and the court's findings. She was not shaken in cross-examination.

[305] The joint custody provisions has further delayed the ability to obtain the required medical treatment for Thomas's special needs. The evidence establishes and it is not disputed that Thomas's ADHD medication was delayed for approximately five months because of the disagreement between the parents on whether this should be administered. Thomas's psychiatric treatment was also delayed when both parents attended the psychiatrist office and the mother did not want to proceed with the father present. There was also confusion among medical professionals regarding the provisions of the joint custody order and the need to obtain consent from both parents. A joint custody order will only serve as a source of ongoing disagreement and conflict between the parties.

[306] Thomas has been in his mother's primary care since his birth and since the parents separated in 2005 when Thomas was only one year old. He is now 12 years old. The mother has made most if not all of the decisions regarding Thomas's treatment plans to address his special needs and is followed through with medical recommendations. She has been a responsible and conscientious parent in that regard. If the mother is granted sole custody, she will responsibly ensure that Thomas's medical and educational needs are met.

[307] However, notwithstanding the above, the court was very concerned that there is one area in which the mother cannot be trusted to exercise sole custody responsibly. Very regrettably, the evidence is overwhelming that the mother does not support Thomas's relationship with his father.

[308] Throughout the trial, the mother and her partner Mr. Coey made it clear that they believe the father is a violent, abusive, narcissistic, sociopath (words that they have used) who has abused Thomas and has deliberately caused him physical and emotional harm. The mother and Mr. Coey's exaggerated fears regarding the father and the kinds of activities that he has engaged in with Thomas have served to undermine Thomas's relationship with his father.

[309] The litany of complaints that the mother and Mr. Coey had regarding the father was relentless and in many instances, grossly exaggerated. The mother and Mr. Coey had very little positive to say about the father. It was clear from listening to and reviewing their evidence that they absolutely do not believe that Thomas wants a relationship with his father and they believe that Thomas is afraid of his father.

[310] The evidence of the mother and Mr. Coey was not reliable in this regard. The evidence of the OCL investigator, which the Court accepts, was clear: Thomas wants a relationship with his father and he is not afraid of his father. He does not like some of the same activities that his father likes and wishes that his father would accept this.

[311] There is no doubt that the father has exercised poor judgment with some of his parenting decisions regarding Thomas. Thomas has made it clear that he is uncomfortable around guns and firearms. The independent evidence from the OCL clinician and the child protection investigations make it clear that Thomas is nervous and afraid around guns, notwithstanding how careful the father's safety protocols. Even the father acknowledged that Thomas has expressed this to him, although the father believes that Thomas only started to become fearful as a result of the mother's views and the child protection investigations initiated by her.

[312] The court appreciates that guns are a big part of the father's life and his former career and that he hoped that Thomas and he could bond over target shooting practice and other gun related activities together. However, Thomas's views on this issue are clear. The father needs to respect this and to listen to Thomas in this regard.

[313] The father's decision to arrange for an explosive device to be detonated in a shooting range during his summer holidays with Thomas only months after the OCL clinician recommended that Thomas not be exposed to guns or gun activity was ill advised to say the least and an example of very poor judgment. The father' evidence that he did not recall whether he used a gun to cause the explosion was not credible and simply did not accord with common sense.

[314] The court also understands that the father wants Thomas to have an active lifestyle and to be physically fit. The evidence from a number of witnesses in this trial made it clear that Thomas is not naturally athletic. He does not particularly like to exercise. The father is very physically active and it is important to him to be physically fit. The father should not be running Thomas through a series of military-like drills when it comes to exercise. Thomas has expressed that he enjoys badminton and the father needs to respect Thomas's differences and engage in physical activity that Thomas enjoys.

[315] Nevertheless, the court does not accept that the father was forcing Thomas to do exercise as punishment and intending to deliberately cause him harm. Nor does the Court accept that the father was forcing Thomas to use guns against his will. It was clear from the father's evidence that, although very ill-advised, the father was acting in good faith and that he was hoping that he and Thomas could enjoy these activities together.

[316] Furthermore, the multiple child protection investigations initiated by the mother and Mr. Coey against the father did not verify any abuse or that the father is an abusive person. All of the child protection investigations were closed after intake. The OCL clinical investigator did not find that the father was abusive. Although the father was cautioned in his use of intense physical exercise or weights and in exposing Thomas to guns, the professionals involved supported Thomas's continuing relationship with his father.

[317] It was evident that the mother and Mr. Coey did not agree with the outcome of the child protection investigations, nor did they agree with the outcome of the Chief Firearms investigation regarding the Tannerite incident. The mother also attempted to engage other professionals such as Thomas's school principal, in her campaign against the father. Mr. Coey did the same when he admitted to taking the nurse aside at the hospital emergency and advising her that "this was a CAS case" and that the father was being investigated for using exercise as punishment. In fact, there was no open CAS investigation and the father was not being investigated.

[318] It is worth noting that the mother took the child to the emergency because he complained of muscle soreness after exercising with his father. The mother testified that the father's "forced over-exertion" caused Thomas serious physical harm and that Thomas was unable to walk resulting in emergency hospital treatment. According to the hospital emergency report filed as an exhibit by the mother to support her position, the discharge diagnosis was "muscle strain" due to strenuous physical exercise. Thomas was given a pain medication which appears to be Ibuprofen, although the note was somewhat illegible.

[319] The mother's evidence in this trial that the father "encourages Thomas to watch him hunt and kill animals" relates to one deer hunting incident that occurred in 2012 or 2013, well before the parties entered into this Final Order, on consent, in 2014. There was absolutely no evidence that the father ever took Thomas hunting again after that incident. The father acknowledged that Thomas did not like hunting and that he was very upset when the deer was killed. The father has not taken Thomas hunting since that time. This was another of many examples of the mother's exaggerated evidence regarding the father.

[320] The mother's unilateral termination of Thomas' independent relationship with his paternal grandmother was also very concerning to the court. This was not a child focused decision or in Thomas's best interests and shed some light on the mother's motivations when she felt that the grandmother was somehow aligning with the father.

[321] The evidence demonstrated that Thomas had a close and loving relationship with his paternal grandmother, who had been very involved in his life since birth. The court also finds that she provided support to the mother in her parenting of Thomas for many years and that she and Thomas have a very close and loving relationship.

[322] The OCL clinical investigator found that Thomas was consistent in sharing that he enjoyed spending time with his grandmother and that he wanted to have contact with her on a weekly basis.

[323] The court was impressed by the paternal grandmother's evidence. Despite the difficult position that she was in, she did attempt to be more balanced in her evidence that either parent, although she obviously was in court to support her son.

[324] Notwithstanding a very hostile, argumentative and extremely critical cross-examination by the mother, who frequently interrupted her, the grandmother maintained her composure and answered the mother's questions calmly and patiently. The mother's inability to the even remotely grateful for the paternal grandmother's parenting assistance to her over the years was very telling. At one point in a very hostile, aggressive and accusatory tone, the mother questioned the grandmother, "Do you deny that you had to abandon a good chunk of your care of Thomas when you got sick?"

[325] The Court was also very concerned about Mr. Coey's influence over the mother's views about the father and Mr. Coey's influence on Thomas regarding his relationship with the father. Mr. Coey repeatedly refer to Thomas as his son or "my son" and identified himself as Thomas's father in a manner that suggested Thomas's relationship with his biological father was secondary or not as important, or in fact should be replaced by him.

[326] The mother's request to change to Thomas's last name to Coey without the father's consent also supported this finding. The court was also concerned with the mother's request to relocate outside of Toronto.

[327] Mr. Coey further viewed his role as protecting Thomas from his 'abusive' father. For example, he admitted that he programmed the "Kids' Helpline" and Children's Aid Society's emergency phone numbers into Thomas's cell phone so that Thomas could have "access to help" during his access visits with his father. He admitted to texting this to Thomas and to telling him to call CAS immediately if he felt unsafe during access with his father. This was very concerning and supports the Court's view that the mother and Mr. Coey are feeding into Thomas's fears and anxieties by not supporting his relationship with his father.

[328] Although the father's parenting is very different from the mother's, and one may not necessarily agree with some of the father's views and lifestyle, this does not mean that the father is abusive. There is no evidence to support that the father is abusive. The court however, does find that the father exercised some very poor judgment in some instances and did not listen to Thomas or the mother's concerns.

[329] However, the court strongly agrees with Ms Barlas's view that Ms Roth "needs to stop labelling Mr. Halstead as an abuser and stop engaging professionals in the conflict".

[330] Notwithstanding the court's very serious concerns about the mother's ability to support a relationship between Thomas and the father, maintaining the current joint custody order will only serve to create further conflict between the parties and will further increase Thomas' stress and anxiety for the reasons explained above.

[331] In my view, given that Thomas has been in the mother's primary care and custody since birth, he continues to reside with her, and she has exercised most of her parenting decisions responsibly, the mother should exercise sole decision making authority for Thomas. However there should be very clear provisions which permit the father to remain actively informed about Thomas's educational, medical and counselling needs. Given the difficulty in the parties' communication, and the mother's efforts to interfere with the father's ability to obtain this information, the father should have the right to access this information directly from the professional source.

Access

[332] According to the OCL clinical investigator, Thomas has consistently maintained that he wants a relationship with his father. Thomas wants a good relationship with his father and he has expressed that he does enjoy spending time with his father. He has also consistently expressed that he does not like guns or being exposed to guns and some of the activities that the father has exposed him to. He wants his father to listen to this. Thomas has not expressed that he is fearful of his father. The mother and Mr. Coey concede that Thomas has enjoyed extended access visits with his father, such as the March break of 2016 Christmas holidays.

[333] Thomas is now almost 13 years old and he deserves to have a safe and healthy relationship with his father and it is in his best interests to do so. It is also consistent with his views and preferences as reported to neutral independent investigators.

[334] As previously stated, I do not find that the father is abusive. The evidence of all if the independent professionals involved in this case did not find the father to be abusive. The father has exercised some poor judgment regarding some of the activities that he has engaged Thomas in, in particular once he learned that Thomas no longer liked these activities, if in fact Thomas ever liked these activities.

[335] There will therefore be restrictions placed on the father's access. The father must respect Thomas's views regarding guns and firearm activity and other activities that Thomas may feel uncomfortable doing. Thomas is entering into his teenage years, difficult times for the best of parents. The father needs to listen to Thomas when he expresses reasonable discomfort or anxiety with some activities and to have an open communication with him.

[336] I agree with the OCL recommendations that the access must be consistent, regular, predictable and structured. The current final order of four consecutive days per month to be determined on a month to month basis has resulted in an overwhelming number of text messages and emails back and forth between the parties each month, leaving access uncertain and unpredictable. Further, it also allowed the mother to restrict and undermine the father's access with Thomas, which I have previously found has occurred.

[337] The mother's proposal that Thomas's access be reduced to two overnights each month is unduly restrictive and not in his best interests and will only serve to continue to undermine Thomas's relationship with his father. Further, the father's proposal that Thomas reside with him for ten consecutive days each month while he is working in Toronto will be far greater than the regular status quo that has existed for most of Thomas's life and will only serve to cause more anxiety and stress for Thomas based on the hostility between his parents and Thomas's comfort level.

[338] The alternating weekend proposal, with one mid-week visit recommended by the OCL clinical investigator while the father is in Toronto will provide Thomas with the consistent, regular and frequent contact with his father. It will reduce the conflict and confusion between the parties and the anxiety for Thomas. Further, although the father testified that he has some flexibility in creating his work schedule so he should be able to arrange this in accordance with his access.

[339] Further, if the father is working for part of the weekend, the paternal grandmother can care for Thomas and spend time with him. As Ms Barlas's pointed out, this is the reality of most working parents' lives. Further Thomas has consistently maintained that he enjoys spending time with his grandmother and that he would like to resume the regular weekly visits with her. I find based in the evidence that the paternal grandmother was greatly involved in Thomas's life since his birth and enjoyed her own independent access to him until the mother unilaterally terminated her independent time with Thomas in November of 2015. Further, the grandmother is often present during Thomas's access time with his father.

[340] Thomas is also entitled to extended holiday access time with his father during the summer, March Break and Christmas holidays. I agree with Ms Barlas's proposal that the summer holidays should be divided, so that each parent has two consecutive weeks during the months of July and August.

Summary of Findings Regarding Custody and Access

[341] The parties have been in court about Thomas since 2010, approximately half of his life. This has caused Thomas significant emotional harm and has increased his anxiety and stress.

[342] As previously indicated, all of the witnesses in this trial describe Thomas as a quiet, thoughtful, sensitive, very intelligent, loving and kind 12 year old boy. All of the family and extended family witnesses in this trial love Thomas very much.

[343] Thomas deserves to have a healthy relationship with both of his parents and extended family that is free of acrimony, hostility, and conflict so that he can develop into a healthy and well-adjusted person who reaches his 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 Thomas.

Child Support

[344] The final child support order that the father pay $724.00 per month based on the father's income of $80,000.00 in accordance with the Child Support Guidelines, shall continue, subject to annual financial disclosure.

[345] The mother's request to re-open the issue of retroactive child support after the father amended his motion to change is dismissed. The parties entered into a Final Consent order fixing all child support arrears owed by the father. This issue was resolved. There has been not material change in circumstances and the issue is res judicata.

8. Conclusion and Final Order

[346] 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, Thomas Adrian Roth, born November 19, 2004.

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

4. 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 directly about the child. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this. The mother shall notify the father in writing of all professionals, including doctors, medical professionals, counsellors, teachers, leaders, coaches, music teachers, extra-curricular coaches etc., who are involved in Thomas's life.

5. 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.

6. 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.

7. The mother is the custodian of Thomas's identification documents, including the child's passport and shall provide the father with a copy of the child's health card. Should the father require the child's passport for travel, the mother shall deliver same to the father upon request, subject to the travel provisions set out below.

8. The mother shall provide the father with the schedules of extracurricular activities of Thomas as soon as he is enrolled in same, and promptly notify him of any changes to these schedules. Neither parent shall enrol the child in any extra-curricular activities without the other parent's written consent if the activity interferes with the other parent's scheduled time with the child. Neither parent shall make disparaging or derogatory comments or talk negatively about the other parent in front of the child.

9. 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.

10. 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.

11. The father shall have regular access with Thomas as follows, to be exercised in Toronto, subject to the conditions and holiday provisions set out below:

a) on alternating weekends from Fridays after school until Monday morning before school commences. The father or his designate shall be permitted to pick Thomas up at his school. 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;

c) if the father is working during a part of his time with Thomas, then the paternal grandmother or another designate such as the father's partner is permitted to care for Thomas;

12. Transportation and access exchange: the father or a third party designate shall pick up the child at school and return the child to school at the conclusion of the access visit. If the Friday is a statutory holiday or Professional Development Day, then the father or his designate shall pick up Thomas from the mother's home and if the Monday is a statutory holiday, then the father shall return Thomas to his mother's home on the Monday evening.

13. The holiday access schedules set out below shall take priority over the regular access schedule. The holiday access schedule does not need to be exercised in Toronto.

14. Summer holidays: the father shall have two consecutive weeks with the child during the summer holiday, being the two weeks (14 days) of July and the two weeks (14 days) of August. The father or his designate shall pick the child up at 9:00 AM on the first day of the holiday and return the child at 6:00 PM on the 14th day of the holiday during each month. The father shall notify the mother by email of the weeks that he requests by May 1st of each year for the upcoming summer that year.

15. For the summer of 2017, each parent shall have two consecutive weeks of summer holidays (14 days) in August. If the parties are unable to agree upon the two weeks that the father will have with Thomas, then the court will forthwith determine the 14 days to which the father is entitled to spend with Thomas.

16. March Break holidays: 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.

17. Christmas holidays: in even-numbered years, Thomas shall be in the care of the mother from the start of the Christmas break until the evening of December 24th at 5:00 PM, and the father shall have Thomas from December 24th at 5:00 PM until January 2nd at 5:00 PM. In odd-numbered years, Thomas shall be in the care of his father from the start of the Christmas school break until December 24th at 5:00 PM and the mother shall have Thomas from December 24th at 5:00 PM until January 2nd. The regular alternating weekend access schedule shall re-commence on the first full weekend in January.

18. 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.

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

20. All of the father's access is subject to the following conditions:

(a) The father shall not allow Thomas to handle in any way a firearm. Furthermore, the father shall not engage in any firearm activity in Thomas's presence.

(b) The father shall refrain from excessive exercises that have the potential to cause physical harm to Thomas.

21. 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.

22. Each parent shall be entitled to have reasonable telephone or "Facetime" contact with the child while he is in the care of the other parent. Such telephone contact shall not exceed one call daily. Both parents shall make their best efforts to facilitate this access. The child shall also be able to communicate with either parent directly by calling on his mobile device. The parents shall be able to call the child directly on the child's mobile device.

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

24. 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 proving 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.

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

26. 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.

27. Commencing August 1, 2017, the father shall continue to pay the mother the Guideline Table amount of child support for one child based on an income of $80,000.00 per annum, being basic child support of $724.00 per month.

28. The father shall also contribute to his proportional share of the child's reasonable section 7 special expenses, upon written notice by the mother, subject to the father's consent or further court order. These payments shall be paid on the first day of each month.

29. The parents shall exchange their complete income tax returns and notices of assessment, by June 30th of each year. The parties are expected to annually adjust child support in accordance with the Child Support Guidelines.

30. A support deduction order shall issue.

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

Released: July 31, 2017

Signed: "Justice Sheilagh O'Connell"

[1] The court sincerely apologizes for the delay in the release of this judgment due to family circumstances and a resulting absence from the office.

[2] See also V.K. v. T.S., 2011 ONSC 4305, where Justice Deborah Chappel also conducted a thorough and comprehensive review of the case law at paragraph 96 of that decision.