G.S.W. v. C.S., 2018 ONCJ 286

Court File and Parties

Court File No.: 56106/12

Date: May 1, 2018

Ontario Court of Justice

Between:

G.S.W. (Applicant/Mother)

-and-

C.S. (Respondent/Father)

Counsel:

• Bradley Berns, for the Applicant (Mother)
• Lisa Baumal, for the Respondent (Father)

Heard: April 16-20, 23-25, 2018

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This was a trial regarding both parties' motions to change the order of Justice Roselyn Zisman, dated September 29, 2015 (the final order). The final order provided that the parties have joint custody of their 6-year-old son (the child), with parallel decision-making responsibilities. The primary residence of the child was granted to the applicant (the mother) and the respondent (the father) was provided with specified and gradually increasing access. The father was also ordered to pay child support to the mother.

[2] The implementation of this order quickly fell apart and the father brought a motion to change it. On January 20, 2016, Justice Zisman transferred temporary custody of the child to the father (the custody transfer) and ordered that the mother have temporary supervised access at the Toronto Supervised Access Centre (TSAC) for two hours every other week (the temporary order).

[3] The temporary order has not changed for over two years.

[4] The father, for the most part, seeks a continuation of the temporary order. He has proposed that the mother can have additional supervised access by a private supervised access agency. He provided the court with a draft order setting out incidents of custody, information sharing between the parties and access terms. The father also seeks child support from the mother, starting on April 1, 2017.

[5] The mother seeks a parallel parenting order, with her having final decision-making authority over the child's medical and religious matters and the father having final decision-making authority over educational matters. She asks that the child spend three weekends each month with her and that the parties equally share holiday time with the child. She is prepared to pay child support on an ongoing basis based on her current income. She opposes any claim for support prior to April 1, 2018.

[6] The parties agreed that there have been several material changes in circumstances affecting the best interests of the child since the final order, most notably the changes in the child's residence and contact with the mother. The issues for this court to determine are:

a) What parenting order is in the child's best interests?

b) What are the parties' incomes, and in particular, should income be imputed to the mother for support purposes?

c) If the child primarily remains with the father, when should the mother's support obligation begin?

Part Two – Procedure

[7] At the trial management conference the court took note of the excessive material filed by the parties on the motions to change. Significant portions of the material filed appeared to be an attempt to retry the trial that had taken place before Justice Zisman. Much of the material was repetitive, immaterial and clearly inadmissible.

[8] This was an appropriate case for the court to apply subrule 1 (7.2) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) to ensure that the objectives of rule 2 were achieved. Following a structure previously set out by Justice Frances Kiteley in Singh v. Chandel, 2016 ONSC 3347 and Justice Carolyn Jones in Bandas v. Demidarche, 2013 ONCJ 679, and with the assistance of counsel, the court set out global time limits for the conduct of the trial. It also set out page limits for affidavit material that would be filed as direct evidence at trial.

[9] A limit of 40 hours was set for the conduct of the trial. Based on five hours for each trial day, eight days were set. The parents were ordered to provide their direct evidence by affidavit. The court set page limits for the parties – 50 for the mother and 62 for the father. The father was given a larger page limit as he had to respond to the evidence of four medical professionals providing evidence on behalf of the mother.

[10] The parties agreed to be limited to presenting 10 exhibits which they could attach to their respective trial affidavits. Groupings of documents (such as the TSAC business records) were counted as a single exhibit. If a party wished to provide a collateral witness's direct evidence by affidavit, that affidavit would be limited to 10 pages.

[11] The court allocated the father 24 hours to present all aspects of his case – the mother 16 hours. This was to include opening and closing statements, direct examinations, cross-examinations and re-examinations. Time spent on evidentiary objections would be allocated to the losing party. If a party was late, or trial time was lost due to the unavailability of a party's witness, the lost time would be allocated to that party. Neutral time, such as daily discussion of trial management issues, was allocated equally between the parties.

[12] The father complied with the page limit for his trial affidavit. The mother breached the spirit of the order by filing a trial affidavit with small font. This was indicative of a pattern of behaviour by the mother that started in the case before Justice Zisman and continued in this case. This rule stretching was completely unnecessary as large portions of the mother's affidavit were repetitive and many paragraphs were struck, having been found inadmissible.

[13] The parties did not require all of the time allocated to them. The mother only needed to use 12 hours to present her case as she presented much of it by affidavit. The court credits counsel for the excellent organization of the case and their ability to focus on the relevant issues.

Part Three – Pre-trial Evidentiary Issues

[14] The father brought a pre-trial motion to exclude five professional witnesses that the mother proposed to call at trial. His motion was heard on December 8, 2017.

[15] For oral reasons given on that date, the court excluded the evidence of a child psychiatrist the mother proposed to call at trial. That witness only had evidence pertaining to the period prior to the first trial and had not been called at that trial. Further, Justice Zisman had found that the mother had the child assessed under false pretenses, and that the psychiatrist had not informed the father that he was conducting an assessment of the child and did not obtain his consent. She made a specific order in the final decision that this psychiatrist was to have no involvement with the child.

[16] The court permitted the child's pediatrician, Dr. Daniel Flanders, to testify as a participant expert and set out the parameters of what he could testify about. This will be reviewed in more detail later in this decision.

[17] The father also sought to exclude the evidence of Dr. Dawn DeCunha, a psychologist, Dr. Sol Goldstein, a psychiatrist, and Dr. Chethan Mehta, a family physician. The court found it could not determine the admissibility issues for these doctors without first conducting an oral voir dire and ordered that a separate voir dire should be held regarding each doctor at trial.

Part Four – Background Facts

[18] The mother is 39 years old and lives alone. In March, 2018 she obtained a full-time job working in a daycare as an educational assistant.

[19] The father is 44 years old and lives with the child. The father is employed as a mechanical designer at a tool and die company.

[20] The parties never cohabited.

[21] The parties have no other children.

[22] The child was diagnosed at two years, 10 months with moderate to severe autism with accompanying language delay and global development delay. The child has received intensive services and in 2016 his autism diagnosis improved to a range of mild to moderate. The child has had significant physical issues, including kidney and urology issues and club feet. These issues have been resolved, for now. Presently, the child is healthy.

[23] The child lived with the mother until January 23, 2016. The child has resided with the father since then.

[24] The mother started an application for custody and access in this court on February 10, 2012.

[25] The case initially proceeded uneventfully. On June 13, 2012, on consent, Justice Marvin Zuker granted final custody of the child to the mother. The father was granted supervised access at the TSAC. The father agreed to pay child support of $447 each month, together with his share of special and extraordinary expenses pursuant to section 7 of the Child Support Guidelines (the guidelines). He also agreed to pay $1,500 directly to the mother's counsel at that time to satisfy her claim for retroactive support.

[26] The father started seeing the child at the TSAC on November 17, 2012.

[27] The father agreed to temporarily suspend his access to the child in April, 2013 while the child was being treated for his club feet.

[28] The father started a motion to change Justice Zuker's order in February, 2014, claiming that the mother had refused to restore his access.

[29] The father's supervised visits at the TSAC started again on February 22, 2014.

[30] On June 3, 2014, Justice Robert Spence made a temporary order granting the father unsupervised access to the child, with exchanges at the TSAC.

[31] In June, 2014, the Children's Aid Society of Toronto (the society) became involved with the family.

[32] The trial before Justice Zisman took place between April and August of 2015. It was a 15-day trial. Justice Zisman reserved her trial decision and released it on September 29, 2015.

[33] The mother filed a Notice of Appeal of the final order on October 28, 2015.

[34] The mother brought a motion in the Superior Court of Justice to stay the final order. The father brought a cross-motion for security for costs. The mother's stay motion was dismissed on December 17, 2017 by Justice Robert Del Frate. He also ordered the mother to provide security for costs in the amount of $20,000 within 60 days to proceed with her appeal. The mother did not provide security for costs and the appeal was dismissed.

[35] The father issued his motion to change the final order on December 7, 2015.

[36] The mother brought a cross-motion to change the final order on March 8, 2016. Her motion included a claim for sole custody of the child and an order that Dr. Daniel Flanders be appointed as the child's doctor.

[37] The parties both brought temporary motions that were heard by Justice Zisman on January 12, 2016. Justice Zisman reserved her decision.

[38] Justice Zisman made the temporary order transferring custody of the child to the father on January 20, 2016. She also found the mother in contempt of various terms of the final order and adjourned the sentencing hearing.

[39] The mother started exercising supervised access to the child at the TSAC on February 20, 2016.

[40] The mother was sentenced for contempt of the final order on March 21, 2016. On the same day, Justice Zisman ordered the mother to pay the father costs of the trial in the amount of $68,552 and permitted her to pay the costs at $500 each month, starting on April 1, 2016.

[41] On March 30, 2016, the mother filed for bankruptcy. She has made no payment towards the costs order.

[42] On April 5, 2016, Justice Del Frate ordered the mother to pay the father costs of $8,754 for the appeal. The mother has made no payment towards this costs order.

[43] On April 27, 2016, Justice Zisman ordered the mother to pay the father costs of $3,500 for the temporary motions. The mother has made no payment towards this costs order.

[44] In August, 2016, the society terminated its involvement with the family.

[45] In September, 2016, the child began attending an Intensive Behavioural Intervention program (IBI), jointly run by Surrey Place and the Catholic District School Board. There were 8 students in this class with intensive support. The child did very well in this program.

[46] On October 25, 2016, Justice Zisman set the case down for a summary judgment motion to be heard on February 14, 2017. Justice Zisman gave directions for the filing of evidence on the motion.

[47] On January 9, 2017, the mother's lawyer at the time was ill and did not attend the scheduled settlement conference. Justice Zisman vacated the summary judgment date and granted a short adjournment of the case.

[48] On January 18, 2017, Justice Zisman gave new directions for filing documents on the summary judgment motion and ordered the mother to pay the father costs of $500. These costs were paid.

[49] On April 7, 2017, the TSAC suspended the mother's access visits due to an incident with staff that took place at a visit on April 2, 2017.

[50] On May 3, 2017, the mother, through her counsel, wrote to the TSAC promising that she would comply with all of the TSAC's directions. On May 18, 2017, the TSAC wrote to the mother that they had come to a decision to give her a second and last opportunity to use their program, provided that the father was in agreement to continuing. They imposed conditions including: that the mother focus on the child at visits, that she not examine the child for marks and bruises, that she not instruct staff on how to do their job and that she not put her hands on any staff member. The mother agreed to these conditions and the father agreed to continue with the program.

[51] The supervised visits at the TSAC visits didn't start again until September, 2017 as a new intake process was required. The father facilitated and supervised visits taking place outside of the TSAC until August, 2017, at which time he advised the mother that he was no longer prepared to do this.

[52] The TSAC observation notes were filed at trial. They indicate that the mother's visits with the child since September, 2017 have been very positive and that the mother has complied with the TSAC's conditions.

[53] The case was adjourned several times. The mother changed lawyers a few times and the father's previous lawyer was appointed to the bench.

[54] On August 15, 2017, Justice Zisman dismissed a motion brought by the mother to bring her father (the maternal grandfather) with her to the child's kindergarten school graduation. The mother was permitted to attend on her own. Justice Zisman ordered the mother to pay the father's costs of $565. The mother has made no payments towards these costs. The mother did not attend the graduation.

[55] On October 13, 2017, Justice Zisman set the date for the pre-trial motion to exclude evidence. She also made procedural orders for production of documents and made trial management orders.

[56] On December 8, 2017, this court heard the pre-trial motions to exclude witnesses proposed by the mother. The court set trial dates and organized the procedure for the trial.

[57] The father has opposed the mother's discharge from bankruptcy. On January 11, 2018, the bankruptcy court adjourned the mother's discharge hearing, awaiting the outcome of this case.

[58] On April 5, 2018, Justice Zisman made further orders regarding the mother's disclosure. The trial started, as scheduled, on April 16, 2018.

Part Five – The September 29, 2015 Decision

[59] On September 29, 2015, Justice Zisman released her reasons for decision. She made an order for joint custody with an incremental access in access to the father with overnight access to commence within several months. She also made a multi-directional order regarding parental conduct and decision-making that gave the father final decision-making authority in the event of a dispute about any medical or educational issues. There were also specific provisions with respect to the mother not involving any new professionals in the child's life or making appointments without notice to the father.

[60] Justice Zisman directed which doctor would be the child's pediatrician and who would provide treatment of the child's club feet. She directed that Dr. Leon Sloman, a child psychiatrist, not be involved in the child's care in any way. She also prohibited the mother from inspecting and examining the child for marks and bruises after spending parenting time with the father and from taking repeated photographs or videos of these inspections.

[61] Justice Zisman made the following findings:

a) Both parents are loving and affectionate parents and have a loving relationship with the child.

b) The mother has devoted herself to meeting the child's needs.

c) Both parents are committed to the care of the child and understand his needs.

d) The mother would not concede anything positive about the father.

e) The mother went out of her way to portray the father in a negative light to almost every professional involved in the child's care.

f) In many instances the mother exaggerated, was inconsistent, non-responsive and contradicted the evidence of neutral professional witnesses and of the written reports. Where there was a discrepancy in evidence the court did not accept the evidence of the mother.

g) The mother had more knowledge currently than the father about the child's needs and had taken on the role of advocating and obtaining services for the child but this was based on her refusal to permit the father to take an active role in the child's life.

h) The mother had continually marginalized the father's role and limited his contact and involvement with the child. She had actively interfered with his relationship with the child and had taken steps to block the progression of their relationship.

i) The mother had used the existing order to frustrate the father's attempts to become more involved in the child's life.

j) The mother had unjustifiably complained to multiple professionals about the father resulting in repeated involvement and investigation by the society. The mother either raised unfounded allegations against the father or her stated concerns and fears were irrational. The court rejected the mother's allegations and implications that the father was physically abusing the child on access visits.

k) The mother had cancelled a number of access visits, consistently arrived late at visits and had been warned by the TSAC that her lateness jeopardized the ability of the parties to use the service.

l) The mother regularly refused to communicate with the father other than in a cursory fashion while being critical of his communication.

m) The mother had excluded the father from appointments and significant meetings concerning the child.

n) The mother had not involved the father or advised him of her efforts to find a school placement for the child.

o) The mother had continually omitted the father's contact information or not named him in various forms. Examples were provided in the reasons for decision.

p) The mother had exaggerated some of the child's symptoms to bolster her position that the father's access should not be increased, but rather that it should be decreased and revert to being supervised.

q) The mother's behaviour had been contrary to the spirit of the existing order.

r) The court specifically rejected the mother's evidence that: the father did not accept that the child had autism, did not understand his needs and was not able to safely care for him.

s) Despite the many hurdles that the mother had put in his way, the father had persevered in his desire to be an important part of his son's life. He had shown that he is a parent that can understand and meet the child's special needs.

t) The father had demonstrated a strong commitment to the child.

u) The father and the child had become bonded.

v) The supervised access visits between the father and the child went well.

w) Throughout, the father had been respectful of the mother and contrary to the mother's evidence, he had not spoken disparagingly about her. He had demonstrated extreme patience with the many demands made of him by the mother and tolerated some very disturbing behaviour and allegations against him by her.

x) If the father had a more developed relationship with the child Justice Zisman said that she might have considered a change of primary residency. Justice Zisman warned that if the mother continued on the same path she has followed this may be the end result.

y) The mother had disparaged the father at every opportunity and had not been able to separate her views about the father from the child's best interests. She had maintained a rigid and distorted view of the father as a dangerous outsider and abuser.

z) There are valid concerns about the mother's management of the child's club feet – that she had not followed the prescribed routine for him and had caused him to unnecessarily be monitored by multiple health care providers for no good reason and to his detriment.

aa) The mother did not follow a primary medical recommendation that the child needed to attend daycare on a regular and full-time basis to the child's detriment.

bb) The mother involved Dr. Sloman, not for the purpose of helping the child, but rather to obtain an opinion to curtail the father's access. The underhanded nature of the mother's actions was concerning, as was the doctor agreeing to prepare an assessment without first fully informing both parties of his intentions, especially as he had been aware that there was going to be an ongoing court case.

cc) The mother often had to be redirected by various service providers to speak about the child's needs rather than focus on the issues between her and the father. This interfered with the care that the child received.

dd) Justice Zisman accepted the father's denials of the mother's allegations of domestic violence.

ee) The mother was so intent on destroying a relationship for the child with the father that she had used her rights as a sole custody parent to jeopardize the child's best interests.

ff) The mother could simply not be trusted any longer to be the sole custodial parent.

[62] This decision by Justice Zisman was clearly meant as a wake-up call to the mother. Unfortunately, instead of listening to the messages Justice Zisman was giving her, the mother chose to reject them and escalated her negative behaviour.

Part Six – The Mother's Allegations from August 2015 until January 2016

[63] On August 22, 2015, in the child's communication book, the mother asked the father why he had grabbed the child forcefully and took pictures of him naked in the bathtub. The father denied the allegations.

[64] On August 28, 2015, the mother expressed several concerns to the society about the father's parenting and about marks that she had found on the child after visits.

[65] On August 31, 2015, the mother called the society alleging that the father had physically abused the child or had been negligent in his care of the child on his last visit.

[66] On September 1, 2015, the police attended at the mother's home and she repeated the allegations against the father.

[67] On September 2, 2015, another meeting was held at the mother's home with the society. The mother claimed that the child was being emotionally abused by the father and repeated the physical abuse allegations.

[68] On September 9, 2015, the mother reported to the society that the child had returned from a visit with marks on him and that his head was "floppy".

[69] On September 11, 2015, the mother had a meeting with the society at the school where she repeated similar complaints about the father. She expressed her belief that the father was emotionally abusing the child.

[70] On September 12, 2015, the father wrote in the communication book that he had played with stickers with the child. The mother took the child that evening to the Hospital for Sick Children as he had a sticker on his penis. The sticker was easily removed according to the hospital's business records. The father came to the hospital and was questioned. The mother warned hospital staff that the father may become aggressive. He wasn't. The father denied knowing anything about the sticker and said that they were not playing with the type of sticker found on the child. The child was subsequently taken to a police station to be interviewed.

[71] On September 14, 2015, the mother wrote to the Office of the Provincial Advocate, the Geneva Centre and a doctor at Holland-Bloorview Kids Children's Hospital (Holland Bloorview) about the sticker incident. She wrote that the sticker had been glued on the child's penis and did not come off after soaking it in a bath for 45 minutes. She said that it took five people at the hospital to hold the child down and use rubbing alcohol to remove the sticker. This description was clearly contrary to the hospital's record that the sticker was easily removed.

[72] On September 27, 2015, the mother reported the sticker incident to the police.

[73] On September 28, 2015, the maternal grandfather called the society complaining about the father, Justice Zisman and the society's response to the mother's allegations.

[74] Dr. Kadar from the Suspected Child Abuse and Neglect program (SCAN) at the Hospital for Sick Children called the society on September 28, 2016 to report that the matters that the mother had brought the child to the hospital to assess were not concerning. He expressed the need to reiterate to the mother the concerns about bringing in the child for non-specific marks and said that the society needed to consider the potential risk of emotional harm to the child if this pattern continued.

[75] On October 7, 2015, the mother alleged to the society that the child's physiotherapist (who Justice Zisman ordered be responsible for the treatment of the child's club feet) had hit the child in the past. She also alleged that the child was coming back from visits with half of his hair cut, cuts in his pants and the heads cut off stuffed animals.

[76] On October 14, 2015, the father was interviewed by the police about the sticker incident. They closed their investigation after the interview.

[77] At a meeting at the society office on October 19, 2015, the mother alleged that the father was too forceful with the child and had shaken him. She also alleged that since the visits became unsupervised, she had concerns about marks on the child and that the child came back from visits lethargic, with pupils dilated and appeared to have been sedated. She claimed that the child came back from the last visit repeatedly saying "mommy suck my penis".

[78] On October 27, 2015, the mother's friend, M.L. (who had testified at the first trial), wrote to the society complaining about Justice Zisman's decision and imploring it to commence a protection application.

[79] On November 1, 2015, the mother alleged that the child returned from a visit with the foreskin on his penis pulled back. She also reported a rash around the child's groin area. The father was contacted by the society and denied doing anything to the child.

[80] The society, the police and the Hospital for Sick Children did not verify any of the mother's allegations of abuse.

[81] On November 2, 2015, the society supervisor wrote a letter to the mother informing her of the society's findings.

[82] On November 16, 2015, the mother took the child to the Hospital for Sick Children. According to the medical notes, the mother reported that the child came back from a visit and said "put penis in bum hole" and "erection" and that the child's anus was red. The society notes state that the mother reported that she was worried that the father had penetrated the child's anus. At trial, the mother denied ever using any of this language. She deposed that she has asked the society to change its records and the society refuses to do so. She claims that she has never accused the father of sexual abuse.

[83] The child was prepared for an interview through the BOOST program. He was examined at the SCAN program and interviewed by the police. There was no evidence of anal penetration.

[84] On the temporary motion, the mother relied on the affidavit of M.L. This friend deposed that after the visit on November 29, 2015, the child took a little toy truck and placed it in his anus, saying, "truck in the bum". She said that when she asked the child who showed him to do this, the child answered the father's ex-wife.

[85] M.L.'s affidavit was not entered at this trial and M.L. did not testify. This evidence is only relied upon to establish the pattern of increasing allegations against the father (including those with implications of sexual impropriety) by the mother and her supporters – none of the allegations being supported by the evidence. The court does not find it coincidental that the allegations escalated as the father's access was gradually being increased to overnights as set out in the final order.

[86] The mother cancelled or was very late for several access visits in December, 2015 and January, 2016. She attributed this to the child's anxiety and his difficulty with transitions.

[87] On January 9, 2016, the father called the mother when he saw a rash on the child. On a doctor's advice, he took the child to the emergency department at the Hospital for Sick Children. He advised the mother about this and she said that she would bring him the child's health card. Instead, the mother called the police. The father was questioned by the police. The child had a bad diaper rash and the father was provided with medication to treat it.

Part Seven – The Contempt Motion

[88] Justice Zisman found the mother in contempt of the final order as follows:

a) The mother was in contempt of the provision that she keep the father appraised of the child's medical and educational appointments. She continued to book multiple medical appointments without advising the father, including medical appointments at her home.

b) The mother was in contempt of the provision that the father may participate in and attend all medical, specialist, treatment, assessment, educational, therapy and other appointments of a health care nature without securing the mother's consent.

c) The mother was in contempt of the provision that she shall not involve any new medical professional, specialist, therapist or educational professional unless already provided for in the order without first obtaining the father's prior written consent. Specifically, the mother had involved Dr. Sloman in the court case strictly against the court prohibition.

d) The mother was in contempt of the provision that she not attend any appointments with any new professional involved in the child's care without the father's prior consent.

[89] Justice Zisman also found that the mother had breached several terms of the final order, but these breaches did not rise to the level required for a contempt finding. She found that:

a) The mother had undermined the court's direction to register the child in daycare in the fall of 2015 by not actively pursuing an available subsidy.

b) The mother interfered with the father's access to give him less time with the child.

c) The mother attempted to frustrate the order about who would treat the child's club feet. The mother called the Hospital for Sick Children to cancel an appointment that the father had scheduled with the physiotherapist. The hospital's business records state that the mother screamed and yelled at hospital staff, alleged that the physiotherapist had been hitting the child and was not qualified.

d) The final order provides that only the mother and father attend at medical appointments. The mother still brought multiple people to the appointments but had them wait in the waiting room. This was not consistent with the intent of the order and contributed to adult conflict.

[90] The mother read an apology letter to the court on the sentencing hearing. She wrote:

I want to apologize for my breach of the court's order.

It was inexcusable and wrong, but I assure you it was not done maliciously. I acted thoughtlessly, without thinking either of the breadth of the court's order, or the gravity of my own actions. I have come to understand that I must be absolutely rigorous and detailed in my fulfillment of the terms of the court's order. My mistake will not happen again.

Your Honour, I love my son with all my heart. Whether I have been right or wrong in all my actions, that love for him has always been at the centre of everything I've done. I recognize that, in order to be the best mother I can be for the child, I have to be in full and specific compliance with the order of the court. I assure you, I will do so in every possible way, from this moment forward.

I am truly sorry that I did not do so, from the moment the court's order was handed down. But I am sorry for what I've done, and will act properly and in full compliance in future.

[91] In her sentencing decision, Justice Zisman wrote:

a) Despite the mother's apology, there is an element of her minimizing the breaches of the court order, not recognizing the seriousness of her actions and maintaining that the breaches were not flagrant and at the lower end of the spectrum.

b) The mother has breached the court order on numerous occasions.

c) The mother did not change her behaviour after the trial.

d) The mother has shown a lack of insight into the importance of the father being involved in the child's life and in the decisions that are made about his health and education. She has shown no insight into how her behaviour is not in the best interests of the child.

e) Although this is the first finding of contempt, the mother's breaches of court orders are a long-standing pattern of behaviour.

[92] Justice Zisman made an order that the mother comply with all court orders respecting the child and that the mother provide written proof that she has attended a course of individual counseling with a qualified therapist who has addressed, at least, the issues of the mother understanding the importance of the father's role in the child's life and the importance of resolving conflict. Further, within 12 months, the mother was to provide a report from her therapist to the father and the court confirming that she has changed her views about the father's relationship with the child and has attained an ability to work cooperatively with him.

Part Eight – The Decline in the Child's Post-Trial Functioning

[93] The child's behaviour seriously declined after the trial decision. The mother had significant difficulties managing his behaviour. He became increasingly aggressive, anxious and had tantrums.

[94] The mother had a very difficult time getting the child to school starting in October, 2015. He had multiple absences and late attendances. The school reported concerns about this and the mother's inability to manage the child's behaviour to the society. It reported that the mother was aggressive trying to convince staff of her side of the conflict with the father. It also reported that the child was having tantrums when picked up by the mother. The mother attributed the decline in the child's behaviour to the father's increased access.

Part Nine – The Costs Decision in the Superior Court of Justice

[95] The mother's motion for a stay of Justice Zisman's order was dismissed on December 17, 2015 and she was ordered to provide security for costs.

[96] In his costs decision dated April 5, 2016, Justice Del Frate wrote at paragraph 9:

As I outlined in my reasons for granting security for costs, the applicant is undeterred in her quest to prevent the respondent from having a meaningful relationship with his son. In spite of the opinions of experts and the comments of the trial judge, she still believes her position is the right one. When sanctioned, she plays the poverty card and continues in her irresponsible approach to the ongoing issues (primarily access) in this litigation. What she fails to understand is that impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably.

Part Ten – Summary of the Events that Led to the Custody Transfer

[97] Justice Zisman transferred temporary custody of the child to the father because of the mother's escalating allegations against the father, her continued obstruction of the father's relationship with the child, her breaches of court orders, the decline in the child's functioning and her inability to get the child to school regularly. She found the child at risk of emotional harm as a result of the mother's behaviour.

[98] Justice Zisman wrote at paragraph 102 of the January 20, 2016 decision:

I also find in the short term the mother's access must be supervised in order that the child can settle into his new home with his father and that the mother is prevented from undermining or interfering with this parenting arrangement.

[99] Except for my findings about Dr. Flanders, set out in part 13.2 below, nothing in the evidence led at trial caused the court to differ from any of Justice Zisman's findings of fact in her reasons for decision dated January 20, 2016, or her assessment of what needed to be done for the child at that time.

[100] The mother claimed at trial that she did not accuse the father of sexual abuse and that the society's records are incorrect. However, it is clear that the mother and her supporters were at the very least implying sexual impropriety by the father.

[101] The trial evidence confirmed that the mother and her supporters strongly disagreed with the final order. In her mind, the mother needed to convince people that the father was dangerous and that the child would be at risk with him if access was unsupervised. She took whatever steps she deemed necessary to prevent this from happening. Her allegations against the father escalated as she became more desperate to prevent the increased access.

[102] At trial, the mother testified that looking back, she can see that she overreacted and acted too quickly – but said that she only did this to protect the child.

Part Eleven – Legal Considerations - Custody

11.1 – Material Change and Best Interests

[103] Section 29 of the Children's Law Reform Act (the Act) provides that a court shall not vary a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The parties agreed that the material change threshold has been met. This means that the court has to determine what parenting order is now in the child's best interests.

[104] Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

[105] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[106] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ).

[107] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.

11.2 Joint Custody

[108] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

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

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not 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 is.

[109] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

[110] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[111] This court wrote the following about joint custody orders and special needs children in paragraph 33 of Ciutcu v. Dragan, 2014 ONCJ 602:

In Kaplanis, the court emphasizes that it is particularly essential for parents to have good communication when a child is young. The same reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well-being that there should be an effective decision-making process in place for them. For these children, important decisions frequently need to be made about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making and conflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J. No. 2564 (SCJ -- Family Court).

[112] In Smith v. Robinson, [2007] O.J. No. 458 (SCJ), the court refused a request for joint custody for a child with selective mutism, finding that there was not the necessary level of cooperation between the parties. The court found that the child required decisive, informed and consistent parenting.

[113] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642 at paragraph 59 for a review of cases applying this principle. It was a legal principle that Justice Zisman relied upon when making the final order.

[114] In S. (S.) v. K. (S.), 2013 ONCJ 432 this court wrote that courts should assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict;

b) more or less likely to expose the child to parental conflict; and,

c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[115] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

11.3 – Parallel Parenting

[116] This court wrote the following about parallel parenting orders in paragraphs 45-59 of K.H. v. T.K.R., 2013 ONCJ 418:

[45] Parallel-parenting orders can take the form of "divided parallel parenting", 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 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451.

[46] Parallel-parenting orders have been made in high-conflict cases, particularly in cases where:

a) One parent is unjustifiably excluding the other from the children's lives and can't be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly, 2007 Carswell 8271; Garrow v. Woycheshen, 2008 ONCJ 686; Madott v. Macorig, 2010 ONSC 5458, [2010] OJ No 4371 (SCJ); Cooke v. Cooke, 2012 NSSC 73; Bushell v. Griffiths, 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)).

b) 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] OJ No 5124 (Ont. S.C.J.); Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont C.A.).

[47] In Baker-Warren v. Denault, 2009 NSSC 59, the court held that a parallel-parenting regime is usually reserved for those few cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the child.

[48] Courts have found that parallel-parenting orders will not meet the best interests of the children where the conflict is too high to make such an order work. See: Roy v. Roy, 2006 CarswellOnt 2898 (C.A.); Mo v. Ma, 2012 NSSC 159; and Graham v. Bruto, [2007] O.J. No 656 (Ont. S.C.J.) aff'd at 2008 ONCA 260 (where the trial judge found that a joint custody and parallel-parenting regime made little sense since it would put the "children in the middle of conflict every few days" and "the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict").

[49] In V.K. v. T.S., ONSC 4305, Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[50] I would add four more considerations that I believe are relevant to a parallel-parenting analysis.

[51] The first consideration is for the court to evaluate the likelihood of one category of decision making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

[52] The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision-making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child's playoff hockey game?

[53] It may be possible to anticipate, define and create priorities for many of the potential conflicts regarding both the delineation of decision-making and the scheduling of activities and appointments, but a court needs to carefully consider whether this is really possible given the dynamics of the parents in the case before it. The court might just be developing a new battleground for the parties with a parallel-parenting order – a battleground that will create more conflict and instability for the children.

[54] The third consideration is the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

[55] The fourth consideration is about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents' conflict.

[56] A parallel-parenting order can be a useful tool for settlement. The risks associated with it (as set out above) may be outweighed by the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where both parties are fully engaged as parents. With parents who sincerely want to be involved with their children for their children's benefit, such an order will likely have the benefit of de-escalating conflict. The children, in such cases, will receive the benefit of two involved parents.

[57] However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[58] All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.

[59] Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a "full parallel-parenting model" order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.

[117] This court's comments about an enhanced need for communication regarding special needs children in Ciutcu, supra, apply just as much when determining the viability of a parallel parenting order. For example, when is the treatment of a child's autism an educational issue and when is it a medical issue? It was very telling and indicative of the challenges of a parallel parenting order with special needs children that the mother could not answer this question clearly at trial, stating that it would have to be worked out.

Part Twelve – The Voir Dires

12.1 Introduction

[118] The father's motion to exclude the evidence of Dr. De Cunha, Dr. Goldstein and Dr. Mehta was adjourned to the trial. It was agreed that a separate oral voir dire would be conducted on each witness.

[119] The court excluded all of Dr. DeCunha's evidence after her voir dire.

[120] The court qualified Dr. Goldstein as an expert in the field of psychiatry at the conclusion of his voir dire. He was permitted to give an opinion as to whether the mother had any psychiatric issues that may impact on her parenting capacity. The court did not admit other opinions contained in his affidavit prepared for trial.

[121] The court provided short oral reasons regarding these evidentiary issues at the conclusion of each voir dire, with the promise to provide a more detailed analysis in this decision.

[122] The mother withdrew Dr. Mehta as a witness.

12.2 Legal Considerations

[123] Generally, witnesses can only testify about what they did, observed or heard. However, witnesses who are qualified as "experts" may testify about their "opinions," including the state of knowledge in their field and quote from texts written by others that they consider to be "authoritative." Experts may testify about their knowledge of their field, relating it to the specific case before the court, and express "opinions" about the issues before the court. However, the Supreme Court held in R. v. Mohan, [1994] 2 S.C.R. 9, that the closer an expert witness comes to expressing an opinion about the "ultimate issue" in the case, the more the scrutiny there should be concerning the admissibility of this evidence. See: Expert Evidence and Assessments in Child Protection Law, 2015, Bala and Thomson.

[124] Both the "Inquiry into Paediatric Forensic Pathology in Ontario" (Toronto: Queen's Printer for Ontario, 2008) (the Goudge report) and The Report of the Motherisk Commission, February 2018, The Honourable Judith C. Beaman Commissioner (the Motherisk report) assert that judges have a vital role to play in protecting the legal system from the dangers of unreliable expert evidence. Both reports urge judges to act as gatekeepers by taking a more rigorous approach to examining the reliability of expert evidence.

[125] The Ontario Court of Appeal made the following comments about the judge's gatekeeper role in paragraphs 1 and 2 of Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502, as follows:

[1] The law regarding expert witnesses has evolved considerably over the last 20 years. Gone are the days when an expert served as a hired gun or advocate for the party that retained her. Today, expert witnesses are required to be independent, and their function is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan.

[2] The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness's training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts. This gatekeeper role is especially important in cases, such as this one, where there is a jury who may inappropriately defer to the expert's opinion rather than evaluate the expert evidence on their own.

[126] The Supreme Court of Canada has set out the steps for courts to take in admitting expert evidence in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The process has two main components.

[127] The first component requires the court to consider the four traditional threshold requirements for the admissibility of the evidence established in R. v. Mohan, supra. These requirements are:

1. Relevance (which has been defined as logical relevance);

2. Necessity in assisting the trier of fact;

3. Absence of an exclusionary rule; and

4. The need for the expert to be properly qualified.

[128] The party attempting to introduce the expert must establish each of the Mohan factors on a balance of probabilities. See: R. v. Terceira (1990) 3 S.C.R. 866.

[129] The second component is a discretionary gatekeeping step where the judge decides whether the potential benefits of admitting the evidence justifies the risks of doing so. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.

[130] The court in White Burgess explained that the lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witnesses' testimony, not just to its weight (par. 40).

[131] White Burgess also sets out the following principles with respect to the admission of expert evidence:

a) Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. The acid test is whether the expert's opinion would not change regardless of which party retained him or her. These concepts, of course, must be applied to the realities of adversary litigation.

b) Concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework. A proposed expert witness who is unable or unwilling to fulfill his or her duty to the court is not properly qualified to perform the role of an expert. If the expert witness does not meet this threshold admissibility requirement, his or her evidence should not be admitted. Once this threshold is met, however, remaining concerns about an expert witness's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.

c) Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. Absent challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. However, if a party opposing admissibility shows that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty, the proponent of the evidence has the burden of establishing its admissibility. Exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

d) The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert's interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.

e) Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence (paragraph 54).

[132] Where an expert appears to have adopted the role of advocate for a party, that witness will not be impartial and the evidence should not be admitted. See: Bruff-Murphy, supra.

[133] The court should clearly define the subject area of a witness's expertise and vigorously confine the witness's testimony to it. See: the Goudge Report, pages 471-475; Brandiferri v. Wawanesa Mutual Insurance Co., 2011 ONSC 3200.

[134] At the core of the admissibility analysis is the reliability of the proposed evidence. Unreliable evidence should never be necessary. Unreliable evidence cannot support a fact in issue – so it can't be relevant. Reliability is also a critical consideration at the gatekeeper stage as it will not be worth the time and cost involved to introduce unreliable evidence. See: The Motherisk Report at pg. 34; The Goudge Report, pars. 477-479; R. v. Abbey, 2009 ONCA 624; Children's Aid Society of Toronto v. D.S., 2013 ONCJ 531.

12.3 Dr. DeCunha

[135] Dr. DeCunha is a registered clinical psychologist.

[136] The mother sought to qualify Dr. DeCunha as an expert in the fields of: the assessment of attachment and childhood trauma, assessments and consultations for children, the treatment of intervention in childhood trauma and child maladaptive behaviour.

[137] Dr. DeCunha executed the Form 20.1 Acknowledgement of Expert's Duty. Her curriculum vitae was provided to the court.

[138] Dr. DeCunha's report was dated June 29, 2017. She was asked by the mother's previous lawyer to provide her professional opinion as to the likely psychological advantages and disadvantages to the child of the relief sought by each party in relation to custody and access.

[139] Dr. DeCunha's report included opinions about:

a) The child's attachment to his parents.

b) The impact on the child of his transfer to the father's care.

c) The impact on the child on his reduction in time spent with the mother.

d) The father's insight into the child's needs.

e) The respective parenting plans of the parents.

[140] Dr. DeCunha opined that the mother's proposal for a parallel parenting order with designated areas of authority best met the needs of the child.

[141] The court excluded Dr. DeCunha's evidence because it was so seriously flawed that it did not even meet the standard of threshold reliability. The evidence was not relevant and not necessary. It was one-sided and unbalanced. It was not fair or objective. Despite Dr. DeCunha executing the Form 20.1, the court was unable to qualify her as an expert in this case. Accordingly, Dr. DeCunha's evidence did not pass the first stage of the White Burgess test. Her evidence would also not have passed the second stage of the White Burgess test – the gatekeeper step. The unreliability of her evidence, combined with its unfairness and lack of objectivity dictates that its probative value is outweighed by its prejudicial effect.

[142] Dr. DeCunha described her report as a "paper review". She has never been qualified as an expert for conducting paper reviews – only for assessments ordered by the court. She conceded that such a report has limitations and does not follow the same protocols and standards that would be followed in preparing an assessment. The court finds that the report's limitations are far too significant to be viewed as reliable and admitted into evidence.

[143] The serious flaws in the report were as follows:

a) Dr. DeCunha never saw the child. It should be fundamental for an expert providing the opinions that Dr. DeCunha provided to see the child, not just once, but several times, alone, and separately with the mother and the father. It is also important for the expert to observe the child over a period of time. A "paper review" was seriously inadequate to support such opinions.

b) Dr. DeCunha testified that paper reviews are usually used for clinical and treatment purposes. They are not used for forensic purposes.

c) Dr. DeCunha never met the father or spoke to his lawyer. This was not only important to obtain their perspectives and to have a balanced report, but to obtain important information about the child. Dr. DeCunha should not have been providing opinions about the father's understanding of the child's needs without first providing him with the opportunity to speak to her. It is noteworthy that the mother specifically instructed Dr. DeCunha not to speak to the father or her lawyer. This was one of the limitations of her report that Dr. DeCunha admitted.

d) Dr. DeCunha only reviewed documents provided to her by the mother. She was unilaterally retained by the mother who paid for her report.

e) The mother did not provide important background documents to Dr. DeCunha – in particular Justice Zisman's reasons for decision dated January 20, 2016. It was critical for her to read these reasons before opining on parenting plans. It meant that Dr. DeCunha only had the mother's skewed version of why custody was transferred and the mother's access was supervised.

f) The mother did provide Dr. DeCunha with Justice Zisman's September 29, 2015 reasons for decision. It became apparent to the court during her cross-examination during the voir dire that it was unlikely that Dr. DeCunha had read them. This was baffling. It should have been fundamental to Dr. DeCunha's understanding of the case, the child's functioning at the time and the court's concerns about the mother – including her credibility.

g) Due to her failure to read both reasons for decision, Dr. DeCunha was unaware that Justice Zisman had found that the mother had emotionally abused the child through her continual allegations against the father and the intrusive investigations. She was unaware that the child's behaviour had seriously deteriorated in the mother's care prior to the custody transfer as the child was exposed to the mother's agitated state. She was not aware that the child had become much calmer and settled after the custody transfer. Instead, she attributed any of the child's negative behaviours after the custody transfer (primarily with the mother) to a ruptured attachment. That may be true, but without having critical information to make this assessment, the court can place no value on this evidence.

h) The mother also did not provide Dr. DeCunha with an assessment of the child from Holland-Bloorview written in April, 2016 which set out significant gains made by the child.

i) The mother did not provide Dr. DeCunha with the child's June, 2017 report card or his IBI service plans that would have shown the significant gains made by the child since the transfer.

j) The mother did not provide Dr. DeCunha with any affidavits from the court proceeding. This information would have shown: multiple reports to authorities by the mother and her friends about the father that were not verified, the child's distress in the mother's care and concerns of independent third parties about the mother's ability to manage the child's behaviour.

k) Dr. DeCunha has raised serious concerns about the child. She opines that his emotional functioning is declining, with more and more serious signs of psychopathology emerging over time. She opines that a dissociative process could be emerging. The child is being seen by multiple professionals. They actually know the child. None of these professionals have raised anything approaching these concerns.

l) Dr. DeCunha makes limited reference in her report to reports from multiple professionals involved with the child that his behaviour and overall functioning has been improving. She makes no reference to the child's autism level significantly improving in the father's care. She continued to refer to his autism level as moderate to severe, when it had actually improved to mild to moderate.

m) Dr. DeCunha did not contact important collaterals, such as medical professionals dealing with the child or the child's teacher, to obtain their insights into his needs.

n) It became apparent in cross-examination that Dr. DeCunha was very selective in picking out child statements from observation records to support her opinions. For instance, she refers to a concerning comment that the child made at the IBI program in March, 2017, but doesn't state that this was the only concerning comment that the child made at this program from September, 2016 until August, 2017.

o) Dr. DeCunha makes no reference in her report as to why the child was removed from the mother's care.

p) Dr. DeCunha makes no reference to the mother's suspension from the TSAC on April 2, 2017, or the impact of the mother's behaviour in front of the child at that visit.

q) It was unfair for Dr. DeCunha to opine that it appears the father is trying to exclude the mother from the child's life without first giving him the opportunity to speak to her.

r) Dr. DeCunha had no reliable basis upon which to make a parenting recommendation.

12.4 Dr. Goldstein

[144] Dr. Goldstein is an experienced psychiatrist.

[145] The mother asked the court to qualify Dr. Goldstein as an expert in the fields of: psychiatry, child psychiatry, psychiatric assessments (including parenting capacity assessments and parental alienation) and with respect to attachments.

[146] The court qualified Dr. Goldstein, for the purpose of this trial, as an expert in psychiatry.

[147] Dr. Goldstein provided his evidence in an affidavit sworn on May 5, 2017. He executed the Acknowledgement of Expert's Duty – Form 20.1.

[148] Dr. Goldstein testified that he prepared a parenting capacity assessment of the mother.

[149] Dr. Goldstein gave opinions in his trial affidavit about:

a) The mother's parenting capacity.

b) The mother's willingness to work and cooperate with the father.

c) The mother's ability to engage and interact in a positive way with others.

d) Whether the mother was a danger to the child, physically or emotionally.

e) The mother's willingness and ability to support the father in the child's life.

f) The needs of autistic children in general.

g) The risks to the child due to the deviation from his previous relationship with the mother.

h) The type of education plan that is best for the child.

i) Factors that this court should take into consideration in preparing the child's parenting plan.

j) The mother's psychiatric condition.

[150] With the exception of his assessment of whether the mother had a psychiatric issue that affected her parenting capacity and his observation that the mother had developed some insight into the inaccuracy of her previous perceptions of the father and understanding of how she came to them, the court excluded Dr. Goldstein's evidence.

[151] The reliability of the balance of Dr. Goldstein's evidence was so seriously flawed that it did not achieve threshold reliability. The excluded evidence was not relevant or necessary and did not pass the first stage of the White Burgess test. It also would not have passed the second stage of the White Burgess test – the gatekeeper step - as the unreliability of the evidence dictates that its probative value is outweighed by its prejudicial effect.

[152] The court found that Dr. Goldstein has no expertise in autism and went beyond his area of expertise in opining about autism, the type of education plan that is best for autistic children and the risks to this specific autistic child by a deviation in his relationship with the mother.

[153] The following are the serious flaws in Dr. Goldstein's report that led to the court finding large portions of his evidence to be unreliable and inadmissible:

a) The methodology used in conducting the assessment of the mother did not come close to meeting generally accepted standards in his profession. In fact, no methodology was set out in his evidence. Dr. Goldstein said that he did not follow the generally accepted methodology because it was not an assessment under section 30 of the Act (section 30 assessment). Yet he opined on the very same questions that he would be asked to comment on in a section 30 assessment. When this was put to him, Dr. Goldstein acknowledged that his opinions are less reliable than if he had conducted a section 30 assessment. The generally accepted standards are there for a reason. They are there to ensure that opinions of the nature provided by Dr. Goldstein are reliable. The failure to follow these standards is a serious flaw in his evidence.

b) Dr. Goldstein never saw the mother with the child. An assessment of her parenting capacity without such an observation is of little value to the court.

c) Dr. Goldstein acknowledged that when he is conducting a section 30 assessment he will see the child over an extended period of time, alone, with both parents and in different environments. He will interview both parents. He will speak to collateral sources. He acknowledged that to get a full picture of parenting capacity the assessor must consider the care parents are providing in a variety of settings and at different times during the day. None of this was done here.

d) Dr. Goldstein did not assess the mother's ability to put the child's needs first, her ability to acknowledge problems, her ability to ensure the child's emotional security or to manage the child's behaviour. He answered that he would do this in a section 30 assessment. He should have done this here before answering the questions put to him.

e) Dr. Goldstein based the mother's acceptance of the father's role in the child's life almost solely on his interviews with her. However, this is only part of the equation in assessing the mother's level of insight. It is vital for an opinion of this nature to have any value for the expert to examine whether the mother had been able to put any of her words into actions (the very issue this court will need to determine). This meant that to give such an opinion it was a fundamental step for him to speak to collateral sources. Dr. Goldstein did not do this. He did not speak to the father or his lawyer, any of the child's service providers or teachers, or review any of the TSAC notes.

f) All of the documentation provided to Dr. Goldstein was from the mother. She unilaterally retained him and paid for his report.

g) If Dr. Goldstein had read the TSAC notes he would have learned that the mother often struggled in focusing on the child during visits, constantly wanted to document evidence from the child and that she was often insistent that staff document child statements. He would have learned about the mother having been suspended from the program on April 2, 2017 – after a dispute over her perception that the staff was not accurately reporting child statements that she could use against the father. This certainly would or should have impacted upon his opinions about her acceptance of the father's role in the child's life (at that time) and her ability to engage in a positive way with others.

h) An important element of assessing the mother's acceptance of the father's role in the child's life should be to determine her acceptance of her past behaviour. However, Dr. Goldstein testified that the mother told him that she was not permitted to discuss court proceedings or the past (this was not the case). Dr. Goldstein described this as a limitation in his report.

i) Dr. Goldstein had insufficient information to give an opinion about whether the child was in any emotional danger from the mother.

12.5 Concluding Comments

[154] The court hopes that this decision will provide a message of caution to the family law assessment community before they accept a unilateral request to provide expert evidence in contested custody matters. It should also be a message that assessors not only need to contain their opinions to their fields of expertise, but that they should not give opinions on matters where they have inadequate information to provide reliable opinions. Most courts, and certainly this court, are likely to treat such reports with considerable caution.

[155] The court also hopes that this decision will provide some guidance to assessors and counsel as to what information and methodology will be required by the court before such evidence is found to be admissible.

Part Thirteen – Medical Evidence Orally Presented at Trial

13.1 Dr. Goldstein

[156] The court accepts Dr. Goldstein's opinion that the mother does not have a psychiatric issue that would adversely impact upon her parenting capacity.

[157] Dr. Goldstein found that with regard to her mental status, the mother is well oriented to time, place and person and shows no cognitive impairment by way of perception, illusion or delusion. He deposed that the mother's mood was, as of May 7, 2017 (the date of his affidavit), stable, even though she was struggling with the anxiety resulting from the possibility of losing regular contact with the child.

[158] The mother expressed to Dr. Goldstein that she was aware of how the court has found her to be wanting as a parent. She acknowledged that she became increasingly protective of the child and told Dr. Goldstein that she felt compelled to limit the father's involvement and participation in the child's life.

[159] Dr. Goldstein expressed an opinion that the mother has developed some insight into the inaccuracy of her previous perceptions of the child's father and understanding of how she came to them.

13.2 Dr. Daniel Flanders

[160] Dr. Flanders was the child's pediatrician from March, 2015 until late January, 2016.

[161] Dr. Flanders did not testify at the first trial.

[162] Dr. Flanders swore an affidavit in support of the mother's stay motion in the Superior Court of Justice. He also swore an affidavit in support of the mother's temporary motion heard before Justice Zisman on January 12, 2016.

[163] In her January 20, 2016 decision, Justice Zisman put no weight on Dr. Flanders' evidence as she found that he had crossed the line into becoming an advocate for the mother.

[164] The court had the opportunity of hearing directly from Dr. Flanders and assessing the quality of his evidence.

[165] At the pre-trial motion, the court did not exclude all of Dr. Flanders' evidence as requested by the father, but placed limitations upon it. The court ordered that Dr. Flanders could testify as a participant expert, with his evidence being limited to the following issues:

a) His treatment of the child.

b) His observations of the mother's care of the child.

c) His involvement with the father, but only after the trial decision.

[166] Dr. Flanders impressed the court as a caring and concerned professional. He testified how he often sets up meetings between parents and service providers to ensure that his child patients receive the help that they need. In this case, Dr. Flanders set up a meeting with the child's school and the parents. He said that he wanted to coordinate services for the child and educate the school that children with autism often have difficulties with transitions and that was the likely reason the child was having difficulty getting to school.

[167] The court found Dr. Flanders to be thoughtful and child-focused.

[168] Dr. Flanders testified that the mother never appeared unreasonable when bringing the child to him – her concerns about the child were appropriate.

[169] Dr. Flanders described the mother as being nervous in addition to being worried about the child.

[170] Dr. Flanders had a negative impression (his words) of the father. He felt that the father was much more focused about the litigation than the child's needs. He described an incident where he felt that the father was more concerned about the accuracy of his notes than the medical matter at hand. He felt that the father had a limited appreciation of the child's needs. When the mother asked for services for the child's behaviour in December, 2015, Dr. Flanders suggested a referral to a child psychiatrist. Dr. Flanders said that the father did not provide his consent for this. He did not feel that this was a child-focused decision.

[171] The court has no concerns with Dr. Flanders' credibility. It does have some concerns with the reliability of his evidence. He was involved with the family over two years ago. He said that his clinic has between 3,000 and 10,000 patients at any time. It is difficult to remember specific dealings with one family without referring to notes taken at that time. However, Dr. Flanders did not bring any of his notes to court.

[172] The evidence also indicates that the mother provided Dr. Flanders with negative information about the father before Dr. Flanders even met him – including a claim that he did not accept the child's autism. This faulty information might have affected his general impression of the father.

[173] English is not the father's first language. He is not nearly as effective in articulating himself as the mother. He often presented his evidence at trial in a slow and deliberate manner. The father legitimately felt that the reasons of Justice Zisman would far better explain what was happening in the child's life and his current needs than he could. Dr. Flanders clearly perceived that the father was asking him to review the decision as an attempt to involve him in the litigation – he testified that he wanted to focus on the child.

[174] Dr. Flanders rejected the father's request to read Justice Zisman's decision and subsequently his lawyer's request to read it, with a comment that he is not being paid to do this.

[175] It is also possible that Dr. Flanders misinterpreted the father's cautious style of assessing information as being obstructive. The father explained that he was concerned about obtaining a child psychiatrist for the child, based on the child's behaviours with the mother, when the child's behaviours were calm in his care. He wanted to explore this suggestion further.

[176] The father has dealt with many professional service providers since his involvement with Dr. Flanders. The doctor's concerns about the father not focusing on the child's medical needs and not following medical advice have not resurfaced. If they had, the court would have attached more weight to his observations of the father.

Part Fourteen – Review of the Mother's Position and Current Allegations

[177] The mother states that she has now accepted the father's role in the child's life. She acknowledged that he loves the child and that the child loves him. She states that both parents should play an equal role in the child's life.

[178] The mother believes that she has done everything asked of her. She saw a therapist for 8 or 9 sessions in 2016. She has attended parenting classes for parents of children with autism. She saw Dr. Goldstein. She has stopped making reports about the father to the society and the police. The TSAC access observation reports since September, 2017 are positive and she is not getting into conflict with service providers. She says that she has been rehabilitated and recognizes the mistakes that she has made in the past.

[179] The mother has been in considerable emotional pain. She feels that she has lost her child and said that she is still grieving this loss. She feels that she has been badly misunderstood by the child's school (in 2015-2016), the society, the TSAC and the courts. She feels that her words and intentions have been twisted and misinterpreted. She feels that the consequences of her actions have been too severe and have been harmful for the child.

[180] The mother believes that the father is now doing to her what she was found to have done to him – excluding her from the child's life. She says that the father has been resistant to any increase in access. She says that he has only permitted her four telephone calls since the custody transfer. She says that he does not communicate with her about the child's needs and if he does so, it is in a sparse and untimely manner. She feels that the father is still angry at her and is trying to punish her.

[181] The mother feels that she has reached out to the father to improve their relationship. She has invited him and the child to family functions and he rejects her requests.

[182] The mother and two of her family members were also very critical of the father for not facilitating access visits with the maternal family.

[183] The mother believes that she is the parent better able to understand all of the child's needs.

[184] The mother asks for a parallel parenting order. She wants to be in charge of medical and religious decisions. The father would be in charge of educational decisions. She proposes spending three weekends each month with the child and an equal division of holidays. She suggests that exchanges take place at the base of the father's driveway – she would wait in the car and the father would send the child out.

[185] The mother, in her trial affidavit, was extremely critical of the father's care of the child, including allegations that:

a) He is not adequately addressing the child's medical needs.

b) The child should be seeing a pediatrician and not a family doctor.

c) He shouldn't have switched the child's doctor.

d) He is not following medical advice.

e) He is not attuned to the child's kidney and urology issues.

f) He is not adequately addressing the child's dental needs.

g) He shouldn't have switched the child's dentist.

h) He is not giving the child proper food.

i) He is not advocating hard enough for the child to receive additional services at school. The mother was also critical about the school the child attends.

j) He is not as attuned as her to the child's cues and emotional needs.

k) He has an authoritarian style of parenting.

l) The child is suffering emotional harm from her absence from his life.

[186] The evidence did not support the mother's concerns.

[187] The final order permitted the father to make medical decisions for the child. Justice Zisman directed that Dr. Lindzon be the child's pediatrician. This was because Dr. Flanders had a negative view of the father. Unfortunately, Dr. Lindzon chose not to be involved with the family. It was very reasonable for the father to select another doctor for the child, particularly after Dr. Flanders refused his request to read Justice Zisman's decision and then became involved in the litigation, filing two affidavits that were highly critical of him.

[188] The father selected Dr. Pop to be the child's doctor. She works in a medical community centre that has a number of clinics attached to it. Although she herself is not a pediatrician, there is a pediatric clinic that she is associated with. Dr. Pop consulted with the pediatric team and it was determined that the child should continue to see her and she could consult with that team, if required.

[189] The mother conceded that Dr. Pop is a caring, compassionate and competent doctor providing good health care for the child. Dr. Pop has also been friendly to her, describing her in her clinical notes as a loving parent. The mother could point to no medical issue that would have been treated differently by a pediatrician.

[190] Most of the child's medical needs have improved in the past two years. His autism has improved from a diagnosis of moderate to severe to mild to moderate. The doctor treating his kidney condition wrote a report that this issue is resolved. There is no further medical treatment required for the child's club feet at this time.

[191] The mother expressed a concern that Dr. Pop was in a conflict of interest because she is also the father's doctor. She is worried this might influence her opinion of her. There is no evidence supporting this suspicion. However, the mother's initial plan was to switch the child's doctor back to Dr. Flanders, despite his extremely negative view of the father.

[192] The father switched the child to a dentist who would accept the child's insurance. This was reasonable to do, given the father's limited finances. The child did have five cavities in late 2016 that were treated. His teeth appear to be fine now. There is no evidence that the father isn't providing the child with a balanced diet at this time or that he is neglecting the child's dental care.

[193] The court accepts the father's evidence that he has followed medical instruction since the custody transfer. The child is healthy and doing well.

[194] The court finds that the father has been diligent in attending to the child's autism and educational needs.

[195] The father has worked well with professionals involved with the child since the custody transfer. The society worked with him and closed its file in August, 2016. The father has worked well with the child's teachers. There have been no complaints about his parenting from any of these professionals.

[196] The child's attendance at school changed immediately after he was placed in the father's care. The child did not miss school and was not late for school.

[197] The child's report card in June, 2016 indicates significant improvement after the custody transfer, largely attributable to his attendance. The report indicates that:

a) The child's behaviour had improved.

b) The child was eating better.

c) The child's speech was improving.

d) The child had made tremendous progress in personal and social development.

e) The child was calmer, more social and more articulate.

[198] The mother claimed that the teacher didn't like her and made a malicious report to the society against her. This was a pattern of response by her when people did not support her. Where the mother's evidence conflicted with the business records filed from professionals involved with the family, the court preferred the evidence of the professionals.

[199] In April, 2016, a developmental pediatrician (who had evaluated the child in 2014) noted significant improvement in the child.

[200] The child attended the IBI program from September, 2016 until June, 2017 and did very well. An IPRC was held and a recommendation was made that the child go to a regular classroom in the fall of 2017, with autism support.

[201] The child's transition into a regular classroom in September, 2017 did not go smoothly and the child often refused to complete tasks. He was given additional help and in January, 2018, started going to an autism class on occasion (across the hallway). His spring 2018 report card showed some improvement. An IPRC was held in March, 2018 and the recommendation is for the child to continue in this class.

[202] The father is following the IPRC recommendations. This is a reasonable decision.

[203] The father is very engaged with the child. He has taken him to all of his appointments, attends all school meetings and has put the child into extra-curricular activities, such as swimming, soccer and the Y. He arranged for the child to attend a social skills program with the Toronto Developmental Institute from January to March, 2018. The child will go to camp this summer.

[204] The father has been proactive in obtaining services for the child. He has the child attend Kumon classes for reading. The father pays for this. The child is on a wait-list for speech therapy at school and has recently been approved for private speech therapy for up to $1,800 through the President's Choice program. The mother criticized the father for not obtaining speech therapy quickly enough for the child. However, at no point did she offer to pay for these services.

[205] The independent evidence from the child's school indicates that the child is friendly, happy and well-settled in the father's care. The child's February, 2018 report card states that the child is responsible and regularly brings homework to school. He shows some initiative with learning. He does require support and constant reminders to follow classroom routines and needs support with his reading.

[206] In the past two years, the child's life has settled down. His autism level and behaviour has improved. The society is no longer involved with the family. There have been no further police reports.

[207] The father impressed the court in his testimony as a responsible and caring parent.

[208] The mother alleged that the father did not advise her that the child would attend his present school until after school started. The father produced an email confirming he notified the mother about the new school in June. The mother could only say, "it feels very confusing".

[209] The court finds that the father has kept the mother informed about the child.

[210] The mother was in a difficult position when she could no longer exercise access at the TSAC. The TSAC records indicate that the mother became angered because the access supervisor wasn't taking down statements that she claimed the child was making. The mother followed the worker around the room and grabbed her arm when the worker tried to get away from her. The mother claims that the worker didn't like her and made up these allegations. She also claimed that other TSAC workers were deliberately not recording notes accurately.

[211] The father, if he had wished to exclude the mother from the child's life, could have taken the position that this was the mother's problem of her own making. Instead, he offered to write a letter to the TSAC offering to support her appeal of its decision. The mother's reinstatement in the program was conditional on the father's consent. He provided this consent.

[212] The father also agreed to supervise additional visits when the mother was unable to exercise access at the TSAC. He said that he supervised 18 visits. He permitted the mother's family members to attend these visits. He also permitted telephone access. Despite the mother's complaints about his failure to facilitate access, the father had no obligation to grant this additional access. It is also noteworthy that in over two years the mother never brought a motion to increase access.

[213] The mother and her family were very critical of the father's supervision of these visits. They felt that he hovered too close to them. The mother felt that the father was intimidating her. After a series of allegations against him, the father decided to no longer supervise the visits. This was a reasonable decision in the circumstances.

[214] The mother proposed that an agency called Central Neighbourhood House supervise her access during this time, as it is free. However, the father deposed that this agency does not have a supervised access program on their website and had no intake process. He was concerned that it did not have the qualifications to properly supervise the mother's visits. This was a reasonable concern.

[215] The mother also proposed that her sister or the maternal grandfather supervise access. However, the father was legitimately concerned about their independence and their understanding of why the mother's access needed to be supervised. It was surprising at trial that the mother's sister had such little understanding as to why Justice Zisman made her decision.

[216] The father offered to have visits supervised by a private for-pay supervised access program. The mother rejected this suggestion and as a result had no access until the visits began again in September, 2017 at the TSAC. The mother did not want to pay for the visits. However, she was able to obtain over $30,000 between loans from friends and internet fundraising campaigns run on her behalf during this period to pay for lawyers and experts. She could and should have put some of that money into seeing her child.

[217] The father also did not oppose the mother attending the child's graduation in 2017 – only that she not bring the maternal grandfather. Even after she lost her motion to bring the maternal grandfather, the father made it clear to the mother that she was welcome to come to the graduation.

[218] The TSAC observation notes show that the father has the child bring gifts and cards for the mother on special occasions.

[219] The court finds that the father has not tried to exclude the mother from the child's life. He has done his best to deal with her.

[220] The court does not fault the father for not setting up separate access for the mother's family. The maternal grandmother was an active accuser of him and participant in the meetings with the society in 2015, the maternal grandfather had reported the father to the society and the maternal grandmother and the mother's sister ended up writing highly critical affidavits of him at trial. His concern that the maternal family might use the access as an opportunity to make further allegations against him was legitimate.

Part Fifteen – The Father

[221] The father was a very credible witness. He answered questions directly and thoughtfully, even if the answer wasn't always to his advantage. Unlike the mother, he did not try and deflect or rationalize when asked difficult questions. He was willing to give the mother credit when due. When the child made concerning comments about the mother he didn't jump to the conclusion that they were true, as he said that the child often said nice things about her as well.

[222] The father took some responsibility for the poor communication with the mother. He attended, at Justice Zisman's direction, at Families in Transition, a program that, amongst other things, educates parents about dealing with conflict. The father also took a parenting course to improve his parenting.

[223] The father readily agreed that there have been no new concerns since September, 2017 and that the child enjoys his visits with the mother.

[224] The father is pleased with the child's general progress, but was not pleased with his most recent report card.

[225] The father's position is very clear. He feels that the child has considerably improved since being placed in his care. Everything is calmer now. He is afraid that if the mother is given unsupervised contact, it will be letting the proverbial "genie out of the bottle" – the mother will renew her campaign against him and destabilize the child's life. He does not feel that the mother has taken the necessary steps to improve her insight and judgment. He fears that the gains the child has made will be undone if he is exposed again to the chaos that existed before the custody transfer in January, 2016.

[226] The father believes that the mother's improved access with the child is due to the strict boundaries set out in the temporary order and by the TSAC when it restored the mother's access. He believes that without these boundaries the mother will revert to negative behaviours. The father seeks sole custody of the child and supervised access to the mother.

[227] The father's concerns are understandable given his experiences with the mother. In crafting a decision, the court will need to weigh those concerns against the benefits of increasing the mother's involvement with the child.

[228] The father provided a detailed draft order. He now proposes to change the temporary order to permit the mother to attend medical and school meetings affecting the child.

[229] The father plans to continue to use Dr. Pop as the child's doctor. He is pleased with the medical care that the child is receiving. He deposed that he will continue to work closely with the school and follow recommendations for schooling made at the IPRC.

Part Sixteen - Best Interest Factors

[230] The following is the court's analysis of the best interest factors set out in subsection 24 (2) of the Act.

Factor #1: The love, affection and emotional ties between the child and,

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

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

(iii) persons involved in the child's care and upbringing.

[231] The child loves both parents and they both love him.

[232] The mother has a large extended family who also care about the child. Their contact with the child has been very limited since the custody transfer.

Factor #2 The child's views and preferences, if they can reasonably be ascertained

[233] The evidence indicates that the child has a close relationship with the father and is doing well in his care.

[234] The father told the court that the child would like to spend more time with the mother. He testified that the visits at the TSAC have gone much better since they started again in September, 2017. He said that the child enjoys going to the visits, has a good time and is happy when he returns home.

[235] The TSAC observation notes contain comments from the child asking to go to "mommy's house". He has, at times, not wanted to end the access visits with the mother. A November, 2017 observation note indicates that the child asked the mother if he could spend "100 days" with her.

[236] The TSAC observation notes show that the mother and child are very affectionate with one another. The child shows no fear or anxiety with the mother. This is different from the visits that took place prior to September, 2017. The mother's change in behaviour has clearly had a positive impact on the quality of her relationship with the child. It also shows some ability to alter her behaviour.

Factor #3 The length of time the child has lived in a stable home environment

[237] The father has provided a very stable home environment for the child since January 23, 2016.

[238] The child was not in a stable home environment with the mother prior to the custody transfer. His functioning was deteriorating. His school attendance was terrible. The mother was in a high state of anxiety, worried about the order for increased contact with the father. The society, the police and the Hospital for Sick Children were all involved with the family.

Factor #4 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.

[239] Notwithstanding the mother's concerns, the court finds that the father is responsibly providing the child with positive guidance and education and the necessaries of life and is properly attending to his special needs.

[240] The father consistently paid child support while the child was in the mother's care. He has paid for extra services, child care and extra-curricular activities for the child without assistance from the mother.

[241] Justice Zisman found that the mother was not properly addressing the treatment of the child's club feet. She also found that she was exaggerating the child's medical conditions.

[242] The mother has done a lot of work educating herself about autism and the child's medical issues. She knows the child's medical history. If she could control her behaviour, she would have a lot to offer regarding the child's medical care.

[243] This court is very critical of the mother's failure to pay any child support to the father since the child came into his care.

[244] The mother claimed that she could not pay child support because she was on social assistance until March, 2018 and had no money. The mother spent the $30,000 she received from loans and fundraising proceeds during this time on the litigation – not a penny was paid for child support.

[245] Financially supporting your children is an important component of responsible parenting. The mother has failed the child in this respect and has prioritized her own needs over those of the child. See: Jama v. Mohamed, [2015] ONCJ 619; Cuevas v. Allen, 2017 ONCJ 562; Pinda v. Pankiw, 2018 BSSC 190.

Factor #5 - Any plans proposed for the child's care and upbringing

[246] The father has proposed a responsible plan for the child. He described consistent routines for the child. The child will continue to attend the same school and see the same doctor and dentist. He will receive additional reading assistance and speech therapy. He will be enrolled in extra-curricular activities.

[247] The mother's plan for the child's medical care is unclear. She initially said that she would change the child's doctor back to Dr. Flanders. She later said that she would consider staying with Dr. Pop, although she does not trust the father's relationship with her.

[248] The mother vacillated on whether the child should stay in the same school. She finally agreed that he should – but only to the end of the school year.

Factor #6 The permanence and stability of the family unit with which it is proposed that the child will live

[249] Both parties have stable family units.

[250] The mother has many friends who support her. It is impressive that they rallied to raise so much money for her.

Factor #7 The ability of each person applying for custody of or access to the child to act as a parent

[251] The father has demonstrated that he can act in a positive, thoughtful and mature manner as a parent. In a very difficult situation he has shown tremendous commitment to the child.

[252] The father is mistrustful of the mother. His mistrust is understandable. He has experienced the following conduct from the mother:

a) She did everything in her power to prevent him from having a relationship with the child.

b) She made false allegations of physical abuse, with intimations of sexual abuse, and neglectful parenting against him.

c) He had to go through several society and police investigations as a result of these allegations.

d) She unsuccessfully tried to limit his contact with the child after the first trial.

e) The father incurred significant legal fees to preserve his relationship with the child and to respond to the mother's stay motion on appeal. He was awarded $68,532 in legal costs by Justice Zisman and the mother filed for bankruptcy 10 days later. That order and other costs orders remain unpaid.

f) She has failed to contribute anything to the child's support.

g) She has continued to relentlessly criticize his parenting decisions and behaviour towards her.

[253] The father has made many sacrifices for the child. He now earns less income. He rarely works overtime so that he can attend appointments for the child and be with him. He did not complain about this.

[254] The mother has often not acted responsibly as a parent. She tried to exclude the father from the child's life and placed the child at the centre of her unfounded or irrational allegations (as described by Justice Zisman) against the father.

[255] Although she loves the child, the mother has often prioritized her own needs to his. She has failed to pay child support for him. The TSAC observation notes indicate that she would examine the child for marks and bruises at the visits from February to June 2016 and take photos of him. She would speak negatively about the father in the child's presence – putting her need to demean the father ahead of the child's need to be protected from parental conflict. She chose not to attend the child's graduation when the court denied her motion to bring the maternal grandfather. She chose not to exercise access to the child when she could have seen him through a paid supervised access service.

Factor #8 The relationship by blood or through an adoption order between the child and each person who is a party to the application.

[256] This is a neutral factor.

Part Seventeen – Custody Analysis

[257] The level of communication between the parties doesn't come anywhere close to justifying the court making a joint custody or a parallel parenting order.

[258] The parties have been in litigation regarding the child since he was a toddler. They have never co-parented and have no history of effective communication with each other.

[259] The court finds that the mother is often hyper-vigilant and controlling. Her perceptions of the risks to the child often have little to do with reality. She can be very difficult to deal with if you disagree with her. She not only has had conflict with the father, but has had conflict with the child's school, the society and the TSAC staff. She believes that they (and the staff at the Hospital for Sick Children) have all fabricated evidence against her. She always perceives herself as the victim and as being misinterpreted. She is not able to effectively co-parent the child with the father.

[260] The mother still deeply mistrusts the father. At trial, she mistrusted simple statements made by him, such as his description of the child's morning routine and what he feeds the child. She wrongly maintained throughout the litigation that the father had removed the child from the IBI program. Justice Zisman finally made an order that the mother provide some proof of this allegation by a set date. The father had not removed the child from the program. She is suspicious about his motives for using Dr. Pop. She is suspicious about why he changed the child's dentist. When asked if she believes what he reports to her about the child, she could only answer, after deliberation, "I don't know, I hope so". She still worries that the father is a flight risk, without any evidence to support this belief. Some element of trust is required for parents to co-parent a child. That trust does not exist in this case.

[261] The mother presented as a generally mistrustful person. She feels that Justice Zisman is biased against her. She feels that the TSAC notes were negative because the father had some type of relationship with an access supervisor. She said that she likes Dr. Pop - she is a caring and competent doctor, but something about her relationship with the father, "is just not right".

[262] The mother also doesn't respect the father. In a very lengthy trial affidavit, she had nothing positive to say about him – it was all attack. When discussing the father being able to get the child to school on time, she did not concede in her trial affidavit that this was positive. She attributed this to the father's authoritarian parenting style. She still distrusts his decision-making. The mother did concede some positive aspects about the father in cross-examination, but it had to be pried from her. There must be a basic element of respect for a joint custody or parallel parenting order to work.

[263] The mother's distrust and dislike of the father results in her defaulting to casting the father in the most negative light when there are multiple explanations for events. When she saw bruises or a rash on the child, she immediately jumped to the conclusion that the father had abused him. Instead of calling the father to ask him what happened, she would call the police or the society. If the child speaks in a negative manner to her, the first reaction is to blame the father. When the father advised her that he was taking the child to the hospital for a rash and asked her to bring him the child's health card, she assumed that she was being "set up". For what, she couldn't explain. So instead she called the police, once again escalating the conflict.

[264] Dealing with the mother is very challenging for the father. The mother is highly demanding and critical of him. The father described how hundreds of emails are exchanged between the parties and none of his explanations are ever good enough for her. It has clearly been an exhausting process for him trying to accommodate the mother's demands.

[265] The evidence showed that the mother has at times been manipulative and dishonest. Justice Zisman set out many examples of this behaviour in her decisions. This behaviour has continued. None of the $30,000 the mother obtained from loans and fundraising proceeds went into her bank account. The mother said that the fundraising monies went directly to her lawyers. She said that she received two loans of $8,000 each from two friends that were given to her in cash. The mother admitted that she has not reported any of these loans or fundraising proceeds to legal aid or to social assistance. She did not report the fundraising proceeds to the Trustee in Bankruptcy. It was apparent that the monies were not put into her bank account (at the very least the loans) as they might have been discovered by legal aid, social assistance officials or the father. The mother was clearly trying to avoid paying the father any of the costs awarded by the court.

[266] The mother also still breaches court orders or breaches the spirit of court orders if it suits her interests. This makes her a poor candidate for a joint or parallel parenting order. She can't be trusted. Justice Zisman found the mother in contempt of the final order and cited several other breaches of the final order. The mother has breached other court orders as follows:

a) She continued to examine the child at the TSAC for marks and bruises and photograph him from February to June, 2016, contrary to the final order.

b) She breached the final order (and the contempt sentence to comply with court orders) by discussing with medical professionals her view that the father had abused and intimidated her.

c) She failed to provide the father with copies of her employment contracts as required, despite multiple requests. She only provided her recent employment contract on the second day of trial after another court order was made to produce it.

d) She failed to provide timely financial disclosure as ordered, requiring a further production motion by the father.

e) She breached the order that the clinical notes of Dr. Mehta and Dr. DeCunha be delivered directly to the father's lawyer by either the doctors or the mother's counsel. Instead, the mother delivered these records. The father alleges that the mother removed clinical notes (including invoices) from the clinical notes she delivered to the lawyer.

f) The mother, despite multiple requests, did not deliver her job search list to the father until the second day of trial. Even then, the search was sparse and of little use.

g) The court directed that the mother's trial affidavit be no more than 48 pages. The mother broke the spirit of that order, to obtain a litigation advantage, by using a small font.

h) The mother has not complied with three court costs orders, including two orders made after she filed for bankruptcy.

i) The mother has avoided payment of costs orders by not having the loans and fundraising proceeds deposited into her bank account.

[267] Both parents should have reasonably good judgment for a joint or parallel parenting order to work. The father's judgment is reasonably good. However, the mother has shown alarmingly poor judgment. For example:

a) She breached the final order on multiple occasions.

b) She breached the contempt sentence to comply with all court orders.

c) She made false allegations of physical abuse, with intimations of sexual abuse against the father.

d) She condoned her family and friends making similar allegations against the father to the society.

e) She exposed the child to multiple interviews and intrusive examinations as a result of these false allegations.

f) She brought at least 8 people to the turnover of the child to the father on January 23, 2018, making this a more dramatic, tense and stressful experience for the child.

g) She engaged in conflict with the TSAC staff, resulting in her suspension from the program.

h) When she first attended the TSAC, the mother frequently discussed adult matters in front of the child, inspected him and made complaints about the father.

i) When Justice Zisman dismissed the mother's motion to bring her father to the child's 2017 graduation, she chose not to attend the graduation.

j) The mother has paid no child support. She hasn't offered to pay for any services that might help the child, such as speech and language therapy. She has prioritized the litigation and being vindicated over the child's interests.

k) The mother's friends started three fundraising campaigns for her. The mother approved of these campaigns. In one campaign, the child's picture and details of his medical history are on the internet. The mother claims that she had never seen this. The court finds her denial to be highly unlikely.

[268] The child's special needs don't fit into defined areas of parental responsibilities. Will autism treatment be a medical or educational decision? What about speech therapy? The evidence informs the court that there would be significant conflict over these issues.

[269] The parties' communication is so poor that the court has no confidence that the parties could coordinate scheduling meetings and activities for the child. This coordination is even more critical for a special needs child.

[270] Lastly, history has shown that increased engagement between the parties only leads to more conflict. None of this is in the child's best interests. Justice Zisman made a parallel parenting order and it broke down within weeks. A joint or parallel parenting plan is unworkable for this family.

[271] The court remains concerned that the mother has not fully addressed her issues that led to the custody transfer. She provided sparse evidence of compliance with the counseling requirement set out in Justice Zisman's contempt decision. The court questions whether the counseling she obtained was intensive enough to address what appear to be deep-rooted issues of trust.

[272] The evidence is overwhelming that it is in the child's best interests for the father to be granted sole custody. He has demonstrated that he is the parent best able to meet the child's needs, make the best decisions for the child, protect him from conflict and promote his relationship with the other parent.

[273] The father's draft offer contains incidents of custody that are fair and reasonable. They will be included in the order with some minor modifications. His proposal to permit the mother to attend medical and school meetings is a generous one in these circumstances. The court might not have otherwise ordered this as it creates an opportunity for conflict that could potentially destabilize the child. However, given the father's willingness to try this, it will be ordered.

[274] The court will dispense with the need for the mother to consent to the father obtaining government documentation for the child or traveling outside of Canada with the child. It is in the child's best interests to be able to travel with the father freely and the evidence has shown that the mother will delay providing relevant documentation to the father.

Part Eighteen – Access

18.1 Legal Considerations

[275] 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.

[276] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See: Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[277] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[278] In Izyuk v. Bilousov, 2015 ONSC 3684, the court made the following observations about supervised access orders at paragraphs 52-54:

52 Supervised access is not intended to be a long-term solution to access problems. M. (B.P.) v. M. (B.L.D.E.) (1992), 59 O.A.C. 19; Boudreault v. Charles, 2014 ONCJ 273; M.T. v. M.G., 2010 NSSC 89. Slawter v. Bellefontaine, 2012 NSCA 48.

53 Supervision may be an intermediate step in certain situations such as:

a. Where there are substance abuse issues which need to be addressed.

b. Where the child requires protection from physical, sexual or emotional abuse.

c. Where there are clinical issues involving the access parent.

d. Where the child is being introduced or reintroduced to a parent after a significant absence.

54 In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve.

[279] While supervised access is usually a temporary arrangement, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. See: Tuttle v. Tuttle, 2014 ONSC 5011.

[280] In A.H. v. R.C., 2015 ONSC 5890, the court ordered supervised access when it found that a mother and her family remained fixated that the father had sexually abused the child. The court found the risk of the child being exposed to turmoil if access was unsupervised to be too serious.

18.2 Analysis

[281] As the evidence unfolded, it became clear that the only difficult issue for the court to decide was whether the mother's access should be supervised, and if not, how much access she should have, and what conditions should be attached to the order.

[282] The court has to balance the real risk of destabilizing the child through exposure to negative conduct by the mother with the benefits of increased contact with her and her family – additional time that the child is asking for.

[283] The father seeks an acknowledgement from the mother and her family that the mother made false allegations of physical and sexual abuse against him and that she deliberately tried to exclude the child from his life. He feels that unless the mother can make such acknowledgements she is unlikely to change her behaviour. He wants her to attend for intensive therapy. He believes that if the mother has unsupervised access, the allegations will start up again and the child's welfare will be compromised.

[284] The court understands the father's fear and he may be right. However, the court finds that he has created too high a standard for the mother to attain before her access can be expanded.

[285] The court finds that the mother has obtained some insight into her behaviour since the custody transfer as follows:

a) She was able to say that looking back she can understand how her complaints could have impacted on the father.

b) She said that in retrospect she often reacted too quickly.

c) She admitted that she interfered in the child's relationship with the father, although not deliberately.

d) She showed some understanding of how matters spiraled out of control. She acknowledged that Justice Zisman transferred custody because of her exclusion of the father and breach of the court orders (although she does not agree with the decision).

e) She was able to acknowledge that it has been emotionally and financially difficult for both parents – not just herself.

f) She admitted that she often broke the spirit of the court order.

g) She admitted, albeit grudgingly, that some of the child's improvements may be due to the father.

h) She acknowledged that the father has a close connection with the child.

i) She acknowledged that the father is doing his best now and wants what is best for the child.

j) She stated that the child is safe with the father.

[286] Gains in the mother's insight have been supported by the following conduct:

a) She has not made any allegations about the father to the police since the custody transfer.

b) She has not made any allegations about the father to the society since it closed its file in August, 2016.

c) She has not made any complaints about the father to the TSAC staff at the supervised access visits since September, 2017.

d) She no longer inspects the child for marks and bruises at the TSAC or insist that staff document negative comments by the child.

e) It appears that the last time she made a physical abuse complaint to a professional about the father was in the spring of 2017.

f) It appears that the last time she complained directly to the father about his behaviour with the child was in July, 2017.

g) She had the child prepare a Valentine Day's card for the father.

h) She has reached out to the father by inviting him to family events.

[287] The mother's access with the child at the TSAC has considerably improved. At the start of these visits, the child was often difficult for her to manage, often hitting her. This changed in September, 2017 when the visits started again. The third party observations are that the mother is warm, loving and nurturing with the child and he responds well to her. There have been no concerns noted about child management. She is focused on the child and no longer talks about the father or tries to document evidence against him. She is now on time for all visits. She has shown an ability to positively alter her behaviour.

[288] The court has also considered that the mother has experienced the harsh reality of losing primary care of her child and her time with him due to her conduct. It has been a heavy price for her to pay. This order will help to restore her relationship with the child. Her awareness of the consequences of breaching this order should be a powerful disincentive to not revert to past behaviours.

[289] The mother in this case has made many more gains in her insight and conduct than the mother described in A.H., supra, where the court made a final supervised access order.

[290] However, the mother still has a long way to go to obtain a sufficient level of insight into her behaviour that would make the court comfortable with making an order for the extensive access requested by her. Her level of insight is very much a work in progress. For instance:

a) She still rejects most of Justice Zisman's findings and has reported to professionals that she feels the judge was biased and rubber-stamped the father's position.

b) The mother still claims that she never provided false information to professionals about the father, despite Justice Zisman's explicit findings that she had done this.

c) The mother continued to tell professionals in 2016 and early 2017 that the father had physically abused her, was aggressive, didn't accept the child's autism diagnosis, had turned down access she offered and had chosen not to attend meetings for the child. All of these allegations had been rejected by Justice Zisman.

d) The mother still claims that she didn't secretly involve professionals with the child despite Justice Zisman's explicit finding that she had done this.

e) The mother strongly stated in her trial affidavit that the child's medical and educational needs are being neglected, despite significant evidence to the contrary. At trial, the mother was less forceful on these issues. However, she still appears reluctant to accept that these needs of the child are being dealt with appropriately by the father.

f) The mother was still preoccupied at trial about correcting errors she claims have been made in the records of the society and the TSAC.

g) The mother sincerely feels that she has done everything in her power to move her relationship with the father forward, but her actions don't always back this up. For instance:

i. She filed a lengthy trial affidavit attacking the father's parenting skills, honesty and motives. The affidavit did not acknowledge any of the positive things the father has done for her and especially for the child.

ii. She has not paid any support for the child.

iii. She asked for Dr. Flanders to be the child's doctor when she is aware of the doctor's extremely negative view of the father.

h) She still demonstrates an unjustifiably heightened sense that the child is at risk of harm in the father's care, because of his inability to properly address the child's medical, social and educational needs (despite her statement at trial that the child is safe with him).

i) She remained focused on the litigation ahead of the child's interests. She used all of the loans and fundraising proceeds for the purpose of the litigation, instead of financially supporting the child. She was determined to obtain evidence that the child was not doing well in the father's care.

j) She maintains a deep distrust of the father that is not supported by the evidence. When asked if she accepted the findings of the police, the hospital and the society that the abuse allegations against the father were not verified, she could only say (after much deliberation), "I don't know".

k) She does not fully appreciate how her deep mistrust of the father is adversely influencing her actions.

l) She continues to externalize blame for her limited contact with the child and takes limited responsibility for her actions – she is always misunderstood and not properly heard. She still maintains that the child's teacher, the society and the TSAC workers fabricated evidence against her.

m) The mother still believes that she was suspended from the TSAC due to false statements, not her own conduct. She still is unable to draw the connection between her improved visits with the child since September, 2017 and the changes in her behaviour (focusing on the child and not collecting evidence against the father).

n) The mother continues to either breach orders or breach the spirit of court orders to obtain an advantage, as set out in paragraph 266 above.

o) The mother continues to engage at times in dishonest, manipulative and secretive behaviour to achieve her objectives, as set out in paragraph 265 above.

p) The mother continues to exercise poor judgment, as set out in paragraph 267 above.

[291] The child is more vulnerable than most children due to his autism. There are very real risks to the child due to the mother's lack of insight and judgment, including:

a) She may undermine the child's sense of security with the father. Will she teach the child that the father is a parent to be feared and not trusted?

b) She could renew her unfounded and irrational allegations against the father and expose the child to investigations again by the society, the police and medical professionals. This would be intrusive, destabilize the child and possibly cause him emotional harm.

c) The mother and her family might denigrate the father and expose the child to parental conflict. This could also destabilize the child and possibly cause him emotional harm.

[292] Balancing all of these considerations, the court will expand the mother's access, but very cautiously.

[293] It is time to end the supervision of the mother's access. The temporary order was clear that supervised access was a short-term solution to stabilize the child. The child is now stabilized with the father and the mother has made sufficient gains that it is in the child's best interests to increase the amount of access. The access schedule will have an additional benefit for the child of giving him time to spend with the mother's family and friends.

[294] Accordingly, the order will provide for a gradual increase in day access, leading to a single weekend overnight visit and holiday access in about 6 months and full weekend and holiday access after one year. The frequency of the visits will also be increased, so that access takes place on two out of every three weekends. The current frequency of access is not meeting the child's need to have a meaningful relationship with the mother.

[295] The mother should have telephone access with the child, with boundaries. The father is to select one evening during the mid-week between the hours of 7 and 8 p.m. and the mother shall be able to speak with the child for up to 20 minutes on this day each week. The father is to give the child privacy during these calls.

[296] The court will set some boundaries for the mother's access to address its concerns as follows:

a) Unless there is a medical emergency, the mother is not permitted to have any doctor see the child, without the father's prior written consent.

b) The mother shall not make any disclosure of, or complaints of historic domestic violence, verbal abuse, emotional abuse, intimidation, or of threats by the father towards her, nor shall she discuss in any way her version of these details, nor the details of her relationship with the father and its breakdown, in the presence of the child, or to the society or to any third parties who have a duty to report to the society.

c) The mother shall not speak negatively about the father or discuss any court matters in the child's presence.

d) The mother shall ensure that family members and her friends not speak negatively about the father or discuss any court matters in the child's presence.

e) The mother is prohibited from inspecting the child for injuries and photographing the child for the purpose of documenting purported injuries.

[297] The court seriously considered having access exchanges take place at the TSAC. The mother has demonstrated considerable discomfort being alone in the father's presence. Further, the more direct contact the parties have, the greater the opportunity there is for conflict in front of the child. Both parties testified that conflict took place at the visits the father supervised outside of the TSAC.

[298] The court had to weigh this concern against the inflexibility of the TSAC hours. Using the TSAC for access exchanges would likely restrict the mother's access to alternate weekends. The day visits would have to be shorter and during the hours that the TSAC is open. There are also several weekends that the TSAC is closed. Given the inflexibility of the TSAC services, the court will order that exchanges take place at the father's home with the following protocol:

a) The mother shall text the father when she is leaving to pick up the child with an estimated time of arrival.

b) The mother shall park at the street curb outside of the father's residence and text him that she has arrived.

c) The father shall send the child out to the mother.

d) The mother shall not leave the car and the father shall remain in his home, unless the child has items with him that he cannot carry alone.

e) The same protocol shall be followed when the mother returns the child home to the father at the end of the visit.

f) The mother may bring one support person with her on the exchanges. This person is to remain in the car and have no contact with the father.

[299] Although he will undoubtedly worry about the mother's conduct backsliding, the access order will also have the benefit of giving the father some parenting relief. Parenting is a difficult challenge for a single parent, and even more so when the child has special needs. Giving the father a little time off might even help him as a parent.

[300] The court strongly emphasizes to the parties that this is a final order – not just another order for the time being, or a stepping stone to a future order for increased parenting responsibility or time with the child. The court expects the mother's access to go well. It expects that her relationship with the child will continue to improve as the access increases. These will not be material changes in circumstances.

Part Nineteen – Child Support

19.1 Positions

[301] The parties agree that the mother is now earning annual income of $32,240 and should pay the guidelines table amount for one child of $275 each month on an ongoing basis. The court will order this support to be paid starting on April 1, 2018.

[302] In addition, the father asks that the mother's income be imputed at a minimum wage level for support purposes as of April 1, 2017. The mother asks that no income be imputed to her prior to April 1, 2018.

19.2 Legal Considerations

[303] Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

[304] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

[305] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:

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

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

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

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

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

[306] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational or medical needs, or those of a child?

3. If not, what income is appropriately imputed?

[307] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).

[308] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[309] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417 (Ont. S.C.).

[310] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[311] The third question in Drygala is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

19.3 Analysis

[312] The court finds the father's position on this issue to be generous, particularly since the mother has paid no child support. The father has solely paid for the child's Kumon costs, before and after-school costs and extracurricular activity expenses, while significant costs orders have been ignored by the mother.

[313] The mother did not actively seek work after the custody transfer. In September, 2016 she enrolled part-time in a counseling and advocacy program at George Brown College. The mother did not complete the program and stopped going to school in April, 2017. The mother acknowledged that she took the program more out of interest. It did not really provide a career opportunity.

[314] The mother did not provide a job search list (despite court orders) until after the trial. It was sparse with few meaningful details of job searches. The court finds that the mother has been deliberately unemployed.

[315] The mother did not provide a reasonable excuse for her unemployment. If the father had sought a start date for support of February 1, 2016, she might have been able to justify a period of unemployment as she adjusted to the harsh reality of losing primary care of the child. The court would have also considered that she had been out of the work force and on public assistance for over four years. However, over one year later, these excuses are no longer viable.

[316] This leads to the issue of how much income to impute to the mother. The mother is an intelligent, capable person. She attended the general arts program at Centennial College. She started, but did not complete, a paramedic program. She has worked as a nanny, as a teacher's assistant in a daycare, as a receptionist at an insurance company and as a corporate services assistant earning annual income of about $40,000.

[317] The court finds that the mother was capable of earning annual income of $25,000 from April 1, 2017 to the end of March, 2018.

[318] The guidelines table amount for one child at this income is $200 each month from April through November, 2017 and $199 each month from December, 2017 through March, 2018. This totals $2,396 for the period up to March 31, 2018.

[319] The court will permit the mother to pay the support owing at the rate of $100 each month, starting on June 1, 2018. However, if she is more than 30 days late in making any ongoing or arrears payment, the entire amount of arrears shall immediately become due and payable.

Part Twenty – Limitation on Further Court Proceedings

[320] There has been far too much litigation between the parties. They have been litigating since 2012. They were provided with a 15-day trial by the court in August, 2015 and started new court proceedings within three months of the final decision. They were then provided with another eight-day trial. The litigation needs to stop. It has been relentless. It is harming the parties and will eventually harm the child.

[321] The court has the ability and an obligation to other court users to control its court process to ensure that the objectives of rule 2 are met. This is particularly the case when there has been a long court history involving multiple court attendances, multiple orders, two trials and multiple costs awards that have not been paid. See: Tiveron v. Collins, 2017 ONCA 462.

[322] This is an appropriate case to require the parties to seek leave of the court before they start any new court process. This does not mean that the parties are barred from court. What it means is that a judge and not the parties shall ultimately determine if there is sufficient merit to bring the case back to court.

[323] The process to seek leave to bring the case back to court will be set out in the order.

[324] To maintain consistency, I will case manage the case if it returns to court unless I am unavailable. Court staff should bring any Form 14B directly to me.

[325] The parties are forewarned that there will need to be a compelling issue affecting the child's best interests before leave will be granted to return to court. They need to start learning other ways to resolve their disputes. The court strongly recommends that they use an alternate dispute process such as mediation before bringing a Form 14B motion.

Part Twenty One – Conclusion

[326] All prior orders are to be terminated.

[327] A final order shall go on the following terms:

a) The father shall have custody of the child and make all final decisions regarding him, including, but not limited, to medical, educational and therapeutic decisions.

b) The father shall consult with the mother on any major decision affecting the child.

c) The mother alone may attend the child's school for parent-teacher meetings with the father, and any special school events, such as concerts and recitals, with friends and family as the school may permit. The father shall provide the mother with reasonable notice of these events.

d) The mother may attend any of the child's extra-curricular activities with friends and family. The father shall provide the mother with a schedule of these activities.

e) The mother alone may attend any medical, specialist, treatment, assessment, educational therapy, IPRC or other appointments of any nature with respect to the child with the father. The father shall provide the mother with reasonable notice of these appointments.

f) The mother shall be entitled to receive information and documentation regarding the child from any third party, directly from those parties, without the need for the third party to seek the father's consent to release the information. If the father's consent is required, he shall provide it.

g) The parties shall continue to communicate about the child, in a respectful manner, using their communication book.

h) The parties shall keep each other informed of their addresses and each shall provide the other with 60 days of notice of any intended move. They shall also provide complete details of any new contact information.

i) The father may apply for or renew all government documentation for the child, including passports, without the mother's consent.

j) The father may travel with the child outside of Canada for vacation purposes, without the mother's consent, for a period of up to two weeks. In advance of any such trip, the father shall provide the mother with his travel itinerary by email. The father shall permit the mother to speak with the child during the vacation every other day for up to 20 minutes by telephone.

k) The mother shall have regular access to the child on the following terms:

i. Starting on May 6, 2018, the mother shall have access to the child on two out of every three Sundays from 10:00 a.m. until 2 p.m. The mother will have the child with her on two consecutive Sundays followed by the child spending the third Sunday with the father.

ii. Starting on July 8, 2018, the Sunday visits shall increase to 10:00 a.m. until 7 p.m.

iii. Starting on October 21, 2018, the visits shall be expanded to start on Saturdays at 10:00 a.m. until Sundays at 7 p.m., expanding to Mondays at 7 p.m., if the mother's access weekend falls on a statutory holiday. The visits shall continue to take place on two out of every three weekends.

iv. Starting on the mother's first access weekend in May, 2019, the visits shall be expanded to start on Fridays at 6 p.m. until Sundays at 7 p.m., expanding to Mondays at 7 p.m., if the mother's access weekend falls on a statutory holiday. The visits shall continue to take place on two out of every three weekends.

l) Holiday access shall be on the following terms:

i. The father may have the child with him for two exclusive weeks each summer. He shall notify the mother by May 30th each year what weeks he is choosing. The mother's regular access shall be suspended during these weeks.

ii. In 2018, the child shall spend Christmas Day from 2 p.m. until December 26th at 7 p.m. with the mother.

iii. Starting in 2019, the mother may have exclusive time with the child for one week in the summer. Starting in 2020, this exclusive time shall be increased to two weeks. Once the father notifies the mother about what exclusive summer weeks he is choosing, the mother shall notify him within two weeks about what summer weeks she is choosing.

iv. Starting in 2019, the child shall spend equal time with the parents during the two-week winter school break. In odd-numbered years, the child shall spend the first week of the break with the mother and the second week of the break with the father. In even-numbered years, the child shall spend the first week of the break with the father and the second week of the break with the mother.

v. Starting in 2020, the child shall spend the entire March school break with the mother in even-numbered years and with the father in odd-numbered years.

vi. The child shall spend Father's day with the father from 10:00 a.m., if it would otherwise be the mother's weekend.

vii. The child shall spend Mother's day with the mother from 10:00 a.m. until 7 p.m., if it would otherwise be the father's weekend.

viii. The child shall have the child with him on every Orthodox Easter Sunday from 10:00 a.m., if it would otherwise be the mother's weekend.

m) The holiday schedule shall take priority to the regular access schedule.

n) The following are terms of the mother's access:

i. Unless there is a medical emergency, the mother is not permitted to have any doctor see the child, without the father's prior written consent.

ii. The mother shall not make any disclosure of, or complaints of historic domestic violence, verbal abuse, emotional abuse, intimidation, or of threats by the father towards her, nor shall she discuss in any way her version of these details, nor the details of her relationship with the father and its breakdown, in the presence of the child, or to the society or to any third parties who have a duty to report to the society.

iii. The mother shall not speak negatively about the father or discuss any court matters in the child's presence.

iv. The mother shall ensure that family members and her friends not speak negatively about the father or discuss any court matters in the child's presence.

v. The mother is prohibited from inspecting the child for injuries and photographing the child for the purpose of documenting purported injuries.

o) The mother shall exchange the child at the father's residence as follows:

i. The mother shall text the father when she is leaving to pick up the child with an estimated time of arrival.

ii. The mother shall park at the street curb outside of the father's residence and text him that she has arrived.

iii. The father shall send the child out to the mother.

iv. The mother shall not leave the car and the father shall remain in his home, unless the child has items with him that he cannot carry alone.

v. The same protocol shall be followed when the mother returns the child to the father.

vi. The mother may bring one support person with her on the exchanges. This person is to remain in the car and have no contact with the father.

p) The mother shall have telephone access with the child. The father is to select one evening during the mid-week between the hours of 7 and 8 p.m. and the mother shall be able to speak with the child for up to 20 minutes on this day each week. The father is to give the child privacy during these calls.

q) Starting in 2020, the mother may travel with the child outside of Canada for vacation purposes for up to two weeks in the summer, while the child is not in school, with the father's written consent, such consent not to be unreasonably withheld. The mother is to provide the father with not less than 30-days-notice of the details of any proposed vacation. In advance of any such trip, the mother shall provide the father with her travel itinerary by email. The mother shall permit the father to speak with the child during the vacation every other day for up to 20 minutes by telephone. The father will provide the mother with all necessary documents and consents, in a timely manner, to permit her and the child to travel.

r) The mother shall pay the father the sum of $2,396 for her child support obligations accrued up to March 31, 2018. The mother may pay this amount at the rate of $100 each month, starting on June 1, 2018. However, if she is more than 30 days late in making any ongoing or arrears support payment, the entire amount of the arrears owing at that time shall immediately become due and payable.

s) The mother shall pay the father the guidelines table amount of child support for one child of $275 each month, starting on April 1, 2018, based on her annual income of $32,240.

t) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.

u) A support deduction order shall issue.

v) The mother shall provide the father by June 30th each year, starting in 2019, with complete copies of her income tax return and notice of assessment.

w) The parties shall not bring any further court proceedings without prior leave of the court. If a party seeks leave, they must first file a Form 14B motion, not exceeding two pages, setting out why they seek to bring the case back to court. It is not to be served on the other party. The court will then determine if the case can be brought back to court immediately, or whether the Form 14B motion should be served on the other party for response and determination by the court. I will case manage the case if it returns to court unless I am unavailable. Court staff should bring any Form 14B to me.

[328] If either party seeks their costs, they shall serve and file their written costs submissions by May 14, 2018. The other party will have until May 28, 2018 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

[329] The court commends counsel for their excellent presentation of this case.

Released: May 1, 2018

Justice S.B. Sherr