N.P. v. D.B.

Court File No.: D10037/17

Date: May 3, 2019

Ontario Court of Justice

Parties

Between:

N.P., Applicant

— AND —

D.B., Respondent

Before: Justice Roselyn Zisman

Heard on: March 26-29 and April 10, 2019

Reasons for Judgment released on: May 3, 2019

Counsel:

• Victor Pilnitz, for the Applicant
• Patricia N. Gordon, for the Respondent

1. Introduction

[1] This trial was primarily about the parenting arrangements for the parties' two children: a daughter HB who is 8 years old and a son NB who is 4 years old. Incidental to the parenting arrangements, the court was required to determine where the children would attend school. The trial also addressed the issue of child support that was dependent on the parenting arrangements.

[2] At the outset of the trial, both counsel advised the court that the parties had agreed to an order of joint custody and that they would share the children's section 7 expenses equally.

[3] I advised counsel that having read the affidavits that had been filed and the Interim and Final Reports of the clinical investigator Dawn Tracz of the Office of the Children's Lawyer ("OCL"), that I expected to hear evidence as to whether or not a joint custody order was in the best interests of the children as based on the materials I had reviewed such an order did not appear to be appropriate.

[4] Accordingly, in order to make a determination of what parenting arrangements are in the best interests of the children the court needed to assess if an order of joint custody is in their best interests and also what weight should be placed on the OCL's recommendations for joint custody.

[5] The trial proceeded as a focused trial. At a trial management conference before the case management judge, Justice Carolyn Jones, it was agreed that the direct evidence of the parties and any witnesses would be primarily presented by affidavit with the right of supplemental oral examination and cross-examinations as directed by the trial judge. A timetable for the filing of materials was agreed upon and an order made for disclosure from the mother.

[6] The parties and their respective partners filed affidavits as their primary direct evidence. They were permitted to supplement their affidavits with brief oral evidence and they were also subject to cross-examination. The OCL clinical investigator Dawn Tracz testified and was cross-examined by both counsel.

[7] Counsel for the father served a Notice of Intention to Rely on Business Records and filed 3 document briefs that included the records of the Catholic Children's Aid Society ("CCAS" or "the society") and Ms Tracz's observation notes and case notes of her investigation. Only the documents identified and referred to by the witnesses were made exhibits.

[8] The trial was held down briefly, so that counsel for the mother could review a Statement of Agreed Facts that he had been sent to him by the father's counsel and to which he not responded to could be reviewed. The parties then field a Statement of Agreed Facts.

[9] Both counsel filed written closing submissions and also made oral closing submissions.

2. Evidentiary Issues

[10] At the outset of the trial, counsel were asked to address the issue of the admissibility of the children's statements as the mother's affidavit relied heavily on statements of their daughter with respect to her wishes about a parenting plan and choice of school and allegations about mistreatment and neglect by the father and his wife.

[11] Both counsel advised that they had agreed that the alleged statements made by the children to either parent were not being admitted for their truth but only being admitted to show the children's state of mind.

[12] Therefore, I have only considered any statements made by the children to either parent in the context of the statement of mind exception to the hearsay rule.

[13] To be clear the basic requirements for the state of mind exception are:

a) a statement asserting a condition or state

b) the statement may not comprise the cause of the state, whether it be past or present events

c) the mental state can include a person's present intention to do a future act and

d) the statement must not be made under circumstances of suspicion.

[14] Although counsel did not specifically refer to which statements allegedly made by the children were being admitted pursuant to the state of mind exception to the hearsay rule, I have considered that statements regarding views and preferences about where they wished to live and what school they wish to attend, statements made regarding fear of the father and his wife, statements regarding conflict between the parents and any statements regarding their fears, anxiety and worries would fit into this category.

[15] In the OCL report there are also references made to statements made primarily by the daughter. Both counsel assumed that these statement were admissible and made submissions with respect to the weight the court should place on those statements.

[16] I agree that the views and wishes of children as expressed to a clinical investigator during an investigation by the OCL are admissible under the state of mind exception to the hearsay rule. The issue for the court to determine is the weight to be placed on those views and preferences.

[17] There are also references to statements made by the children, primarily the daughter, in the records of the CCAS that were filed as business records. The issue of the admissibility of those statements is problematic as it is second hand hearsay. Unlike the statements made by the children to Ms Tracz in her investigation, the case worker from the CCAS was not called as a witness and the court is unable to assess the weight to be given to those statements. Therefore, I have not considered any of the children's statement as set out in the CCAS records as an expression of the children's state of mind.

[18] However, Ms Tracz as part of her investigation contacted the society workers and had disclosure of the CCAS records. I have relied on the statements made by children to the society workers for the limited purpose of assessing if they are consistent with the statements made by the children to Ms Tracz or consistent with information obtained by Ms Tracz from the parents; if they are not consistent, how Ms Tracz then dealt with any inconsistencies as part of her investigation.

[19] There was no objection to the records of the CCAS being admissible as business records. They meet the requirements of section 35 of the Evidence Act, in that, notice was properly served, the records are made in the usual and ordinary course of business, there is a duty to report by the maker of the record and the records are made contemporaneously or shortly thereafter. The contents of the record are therefore prima facie admissible for the truth. Therefore, I have relied on the direct observations of the society workers with respect to the parents and the children, the results of any investigations and any statements or admissions made by the parents.

[20] However, not all of the information contained in a business record is admissible. Statements by third parties in these records who are not under a duty to report should be excluded. The records contain information provided to various CCAS workers from third parties who are not under a duty to report and were therefore not relied upon by the court as to the truth of their contents. This type of information from third parties in the society notes is not admitted for their truth but as information received by the society workers and to explain subsequent steps taken by the society workers.

[21] However, information from the police, school authorities and medical professionals who are bound by a duty to report issues of child abuse or neglect can be relied upon for their truth.

[22] An issue also arose as to the admissibility and weight of a report from Families in Transition titled, "Client Assessment and Treatment Plan" with the client stated to be the parties' daughter HB. During the mother's testimony she stated that their daughter had just undergone a psychological assessment by Families in Transition and the report was either prepared or being prepared. Neither counsel nor the father had any previous knowledge regarding the existence of this report.

[23] In view of the possible significance of such a report I requested both counsel contact Families in Transition. Both counsel agreed, after speaking to Josie Yu who is a case worker assigned to work with the daughter, that there was no psychological assessment of the daughter, that an internal assessment had been prepared regarding what services would be appropriate for the daughter and that the assessment was available but could only be released to one of the parents.

[24] The father undertook to attend and pick up the report that was then filed as an exhibit with the court. Neither counsel asked for an adjournment to require the author of the report (not Ms Yu) to attend to provide oral evidence.

[25] In closing submissions counsel for the mother requested that the court put considerable weight on the contents of the report and in particular statements made by the daughter.

[26] In closing submissions counsel for the father submitted that the court should put no weight on any statements attributed to the daughter, due to concerns about coaching by the mother, lack of any information as to the circumstances regarding the daughter making any statements and lack of information about the qualifications of the author of the report.

[27] I agree with the submissions made by father's counsel and have not put any weight on the statements made by the daughter contained in the report or on the conclusions or opinions reached by the author of the report. The purpose of the report is to outline the goals for counselling for the daughter and both parents, not for the purpose of a court proceeding. I also recognize that it would be unfair to the parties if weight was placed on the report as counsel had agreed that all evidence that they intended to rely upon had to be filed prior to trial and it was the court that requested the report be obtained and filed.

3. Position of the Parties

[28] At the outset of the trial, the mother sought an order in accordance with the recommendations of the OCL namely, an order for joint custody, that the children reside primarily with her and spend alternate week-ends from Friday to Monday with the father. A further order, in accordance with the OCL recommendations that each week their daughter spend Tuesday overnights and their son Wednesday overnights with the father and that the children attend the Catholic school close to the mother's residence.

[29] In closing submissions, counsel for the mother proposed that given the evidence presented at trial, particularly the difficulties the parties' experienced in cooperating with each other, that the court make a joint custody order but with parallel parenting decision making, with the mother being responsible for educational decisions and the father for medical decisions.

[30] At the outset of the trial the father sought an order for joint custody with an equal parenting residential schedule and a slight variation of the current parenting schedule of 2-2-3 and for a week about schedule within several years. The father also sought an order that their daughter continue to attend the Catholic school she presently attending and that their son, who would be beginning kindergarten in September 2019, also attend the same school.

[31] In closing submissions counsel for the father submitted that if the court determined that a joint custody order was not in the children's best interests, it had the jurisdiction to make another order despite the parties' consent to joint custody.

[32] The father then sought an order that he be granted sole custody and that after consulting with the mother that he have sole decision making authority. He submitted that despite such an order it was in the children's best interests that they spend equal time with both parents. He proposed a shared schedule with fewer transitions then the current schedule and a week about schedule by September 2021 when the son would be in Grade 1.

[33] With respect to child support, it is the mother's position that if she is granted primary residence, then she seeks child support in accordance with the Child Support Guidelines based on the father's income. If there is an order for shared parenting, then it is the mother's position that as she is currently unemployed that only minimum income of $29,100 should be imputed to her based on her educational credentials and her present circumstances.

[34] If a shared parenting plan is ordered, the father seeks that income be imputed to the mother in an amount of $45,000 which was roughly equivalent to the father's income and accordingly that no support be paid by either party.

4. Theory of the Case

[35] It was difficult to ascertain the theory of the case due to the parties' consent to joint custody. I appreciate that I put counsel in a difficult position in advising that the court had serious concerns about such an order as counsel may have felt that they could not withdraw their respective client's consent to a joint custody order.

[36] I infer that counsel advised their respective clients to agree to joint custody because of the recommendation of the OCL. During the testimony of both parties, neither provided any evidence that they had in the past or present been able to jointly make any major decisions about the children. Both parties in their interviews with Ms Tracz stated that they each wished a sole custody order and could not co-parent. It also became abundantly clear during the trial that neither party actually agreed to joint custody. Both counsel conducted their case as if each party sought sole decision making authority.

[37] It has been the mother's theory throughout that she was the primary caregiver of the children, that the father had a minor role, that the father and his wife are not properly caring for the children and are unable to meet the needs of either child. It is also the mother's belief that the father does not respect her or listen to her views or the information she provides about the children.

[38] It is the mother's belief that the shared parenting schedule is not workable and that the children should reside primarily with her.

[39] It has been the father's theory that both parents were involved in caring for the children when the parties resided together. But the mother treats him as if he knows nothing about caring for the children. Despite his concerns about the mother's lifestyle and her judgment, he believes that it is important for the children to have a meaningful relationship with both parents and he has always sought a shared parenting schedule.

[40] It is the father's belief that the mother has attempted to marginalize and devalue his role as a parent.

5. Credibility and Reliability Assessment

[41] In order to determine what parenting arrangements are in the best interests of the children it is important to assess the credibility of both parents. There were factual disputes regarding the father's past involvement in the children's upbringing, allegations of domestic abuse, allegations of physical discipline of the children, allegations of a lack of supervision and general concerns about the care of the children. There are also factual disputes about post-separation communication between the parties, post separation support of the other parent and respect for the other parent's role in the children's lives.

[42] Assessing credibility is not a science and it is sometimes difficult to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events".

[43] However, in order to evaluate the credibility and reliability of the witnesses, in particular the mother and father, I have considered whether or not there are inconsistencies and weaknesses in their evidence, including internal inconsistencies, prior inconsistent statements, inconsistencies between the witness testimony and the documentary evidence and the testimony of other witnesses. I have considered the motives of the witnesses and have assessed the overall probabilities and plausibility of their testimony.

[44] I have considered whether or not the witness testified in a candid and straightforward manner or whether or not the witness was evasive, strategic, hesitant or biased. I have considered whether or not questions were answered in a frank, forthright manner without evasion, speculation or exaggeration.

[45] There were significant inconsistencies with respect the mother's evidence that are important in the court's credibility assessment. In the case R. v. A.M. the Ontario Court of Appeal specifically commented on inconsistencies as follows:

...[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath... Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned...

[46] Generally I found the mother's evidence to be evasive, contradictory and unreliable. She changed her versions of events several times and admitted lying to the father on several occasions. She also misled the school and lied to the society workers. Where there is a discrepancy between her evidence and the evidence of the father I prefer his evidence. Where there is a discrepancy between her evidence and the evidence of other witnesses or the documentary evidence I prefer that evidence.

[47] The mother had to be continually admonished to stop muttering to herself when she and other witnesses were testifying. She needed to be told to answer questions directly. She needed to be told to stop gesturing when other witnesses were testifying. The mother tended to be emotional, exaggerated incidents and at times was evasive especially regarding her financial circumstances and her boyfriend's drug use.

[48] I found that the father was calm and conducted himself appropriately during the trial. His evidence was clear, straightforward, consistent and even handed. He was frank in admitting incidents where his behaviour was not flattering to him.

[49] Although there are many inconsistencies in the mother's evidence I outline only some of the significant inconsistencies as follows:

a) The mother deposed that the father was not involved in the care of the children prior to their separation. When it was pointed out that she told the CCAS during an investigation in August 2012 that both parents shared parental responsibilities for their daughter, she claimed she lied to the CCAS.

b) The mother claimed that the father and the paternal grandmother were not involved in the care of the children. However, Ms Tracz testified that she had spoken to the children's paediatrician who confirmed that both parents were involved and neither appeared to be more involved than the other. He was also familiar with the paternal grandmother who also brought the children to see him. The school was familiar with both parents and the paternal grandmother who they believed was a positive support for HB.

c) Ms Tracz testified that she believed the mother was untruthful when she claimed that the father and the paternal grandmother were not active participants in the children's lives.

d) The mother testified that she had the children in her care 70% of the time from the separation in February 2016 to January 2017. However, the mother's own email to the father dated June 24, 2016 contradicts her testimony as the mother complained that she only had the children in her care 40% of the time whereas the father had said that he wanted them to have a 50% schedule. In Justice Jones' decision on January 16, 2017 she confirmed that the status quo was a shared parenting arrangement when she ordered the mother to return the children to the father and resume the shared parenting schedule.

e) The mother testified that she told the father in May 2017 that she was considering changing their daughter's school for the upcoming school year. The father denied that this and testified that the first he heard about this change was at the OCL disclosure meeting on July 7, 2017. Ms Tracz confirmed that the father looked shocked at the mother's revelation and she understood this was the first time the issue had been raised by the mother. Ms Tracz also confirmed that she had spoken to the mother about the issue the day before the school issue and the mother told her that she had not spoken to the father.

f) Further, the mother signed the Statement of Agreed Facts less than an hour before the trial commenced agreeing that she did not consult with the father before changing their daughter's school and did so without his knowledge yet she testified that she told him about this.

g) The mother told the CCAS worker that Ms Tracz had told her to change their daughter's school as she needed a "fresh start". Ms Tracz testified that she never told the mother this and in fact told her the opposite that is, that she should not move HB's school.

h) The mother told the principal of HB's school that she would be living with her as of September 2017 so she wanted to change her school. This was simply not the truth. When confronted with this evidence the mother testified that she only told the principal that HB "may" be living with her.

i) The mother deposed that she changed their daughter's school because she was being bullied at her old school and her teacher confirmed that HB had been bullied for years. However, Ms Tracz testified that the mother never mentioned HB was being bullied or that the teacher told her this. The mother told Ms Tracz that she wanted to change schools because the school was closer to her home and it had a higher EQAO rating. The information Ms Tracz obtained from the school, never mentioned HB being bullied.

j) The mother deposed that she was acting in self-defence when she assaulted the father and that she had attended a program for victims of domestic violence. However, the police report states the mother was the aggressor and there is no mention of the mother stating that she acted in self-defence. In cross-examination after changing her evidence several times, the mother finally admitted that the program she attended was for women who commit domestic violence. The mother also admitted to the incident to Ms Tracz that she assaulted the father due to her extreme anger.

k) In the Statement of Agreed Facts field with the court, that mother agreed that she assaulted the father and did not say that it was in self-defence.

l) The mother deposed and testified that she lost the motion before Justice Jones on January 16, 2017 because the CCAS report needed to be submitted within 7 days but it could not be finalized for 60 days. This makes no logical sense. It is clear from the temporary court order that the court found that the parents had a shared parenting schedule, that the mother needed to return the children to the father and resume the shared parenting schedule and that the mother's allegations about the father's lack of proper care and supervision of the child was rejected by the court. A finding that was later confirmed by the CCAS.

m) The mother made many allegations about the father's neglect of the children's medical needs to the society and the OCL. None of her allegations were confirmed by Ms Tracz or the society workers who spoke to the children's paediatrician who had no concern about the care by either parent. The paediatrician specifically denied that NB had asthma as alleged by the mother. The paediatrician also denied that he had ever told the mother that HB had a severe lung infection and had to be in a sterile and dust free environment or that HB could only stay with one parent as was being alleged by the mother.

n) The mother in her evidence with respect to her boyfriend's use of drugs was evasive and not credible. She testified that when he moved in he was not abusing drugs but yet she testified that she had referred him to a methadone clinic. However, when RB testified he admitted that he had been abusing prescription opiates when he moved into the home where the parents lived and had a positive drug test around April 2016.

o) The mother made many allegations as to statements made by the children that used phrases that were not credible as they were not consistent with the ages and stage of development of the children. For example, she testified that the children on their own referred to the father as their "blood daddy," that HB told her she wanted to change school for a "fresh start," and that the children told her they wanted to be in a school with a good "air filtration" system but then changed her evidence to say that they told her they wanted to be in a school with air conditioning.

p) The mother testified that she lied to the father about her whereabouts when she told him she was working or at a job interview.

6. Background Facts and Court Proceedings

[50] The mother is 36 years old. She previously worked as an administrative assistant in a law office. Since July 2016 she has been unemployed and is currently in receipt of social assistance. The mother is presently living with RB who is also unemployed.

[51] The father is 40 years old. He is employed as a production coordinator at a radio station. The father married SM and is living with her and her son TL who is 9 years old.

[52] The parties met in January 2009 and began to live together about 8 months later.

[53] They resided together in the home the father presently occupies until their separation in about February 2017.

[54] When the parties met the mother was addicted to Percocet. When she became pregnant with their daughter she attended at a Methadone clinic to wean herself off the drugs. Their daughter was born in early 2011. Their son was born in 2015.

[55] Both parents were involved in the care of the children. After their children were born the parties initially worked opposite schedules to minimize the need for day care, with the mother working in the days and the father nights. As the father did not obtain full time employment until 2016, the mother returned to work early after their son was born and the father was home caring for the children.

[56] The maternal grandfather and paternal grandmother assisted the parents in caring for the children since as of 2016 both parents were working full-time.

[57] In January 2016, the mother asked the father if her friend RB (who is her current boyfriend) could move into their home temporarily in order to assist him with getting clean from his addiction to opiates as he was beginning his treatment at a methadone clinic. Despite the father's reservations he agreed.

[58] The parties separated in about February 2016 but agreed to continue to reside under the same roof to save some money and pay off some debts.

[59] The mother's boyfriend moved out in March 2016 into a small one bedroom basement apartment.

[60] In April 2016, the mother also moved out and began to live with RB. The children remained in the care of the father. The paternal grandfather who had been residing in the basement of the home continued to reside there after the mother moved out.

[61] Although the mother continued to see the children, there was no schedule in place. The father was resistant to the children sleeping over as there was no bed for their daughter and no crib for their son.

[62] On April 26, 2016 the mother attended at the home to remove her belongings. The father was in their daughter's room when the mother shut the door behind her and began to scream at the father, blocked him from leaving the room and she then proceeded to strike him 3 times in the face, punched and kicked him and ripped his clothing. When the father began to call the police, the mother stopped the assault and took the children with her and left.

[63] The mother was charged with assault and the police alerted the CCAS as the assault had occurred in the presence of the children. The terms of the mother's release prohibited her from having contact with the father or from attending at the home. Despite these terms the mother harassed and belittled the father and claimed he was "not a man" because he reported the assault to the police.

[64] The CCAS verified risk of physical harm due to the children's exposure to physical conflict and risk of emotional harm due to their exposure to parental verbal conflict.

[65] The mother had no contact with the children for about a week after the criminal charges. A friend of the mother's then began to act as a go between and the father also arranged for the paternal grandfather, who continued to reside in his home after the separation, to supervise the access exchanges.

[66] By June 2016, the parties developed a schedule with the mother picking up the children every other day at 6:00 p.m. and dropping them off the next morning. The mother complained that despite the father stating that he wanted an equal schedule she only had the children 40% of the time.

[67] According to the father, in about mid-July the mother and her boyfriend broke up and he kicked her out of his apartment but about month later they reconciled. The mother also lost her employment around this time.

[68] The father agreed to remove the no contact order to permit the parties to directly arrange access as the third party was no longer willing to act as a go between and the children were not consistently seeing their mother. The parties then agreed to a shared parenting schedule with the exchanges to occur every 2 days.

[69] Over the next several months there were several instances of the parents having ongoing conflict and concerns being raised about the care of the children.

[70] In September 2016, during an access exchange the mother became angry at the father and began to yell and swear at him in front of the children. The father attempted to walk away but the mother followed him and continued to yell and swear.

[71] In mid-September 2016, the school reported to the CCAS that the daughter had reported that the mother's boyfriend punches her in the head and her mother covers her mouth with her hands when she cries. The caller reported that the daughter also reported that when she is in the bathtub her mother puts her hands on her neck.

[72] As a result of these allegations the society investigated. The daughter did not disclose information about the mother's boyfriend punching her but told the society worker that her mother covered her mouth because her mother did not want her to wake up her brother.

[73] The society worker spoke to the mother's boyfriend and although he denied that he punched the daughter he admitted that he "flicks" her in the face when she does not listen to him. In his testimony, RB confirmed that he did this and demonstrated the action in court. He further admitted that he was cautioned about using physical discipline.

[74] The mother admitted that she has covered her daughter's mouth because their place is small and she does not want her son to wake up. Although the use of physical discipline was not verified, the mother was also cautioned about using physical discipline and advised to find more appropriate methods of discipline. The society worker gave the mother and her boyfriend information about parental supports.

[75] In November 2016, the mother picked up their daughter and became angry because the father's partner Ms SM (now his wife) had styled their daughters' hair in a style similar to her own. The mother sent a text message stating that she forbade the father's partner from ever touching their daughter's hair.

[76] The mother then returned to the father's home with their daughter and attempted to engage the father's partner in an argument. The father continually told the mother to stop yelling and leave but she only left after he told her she was in breach of her recognizance. According to the father, their daughter was happy with her hair until the mother became upset about it.

[77] This issue about Ms SM doing the daughter's hair became an ongoing issue. The mother only explanation about this incident was that she returned to the home because SM would not promise to stop doing her daughter's hair.

[78] Later in 2016, the father suggested changing to a 3 day schedule to reduce the number of transitions. The mother told the father she was not agreeable as she and her boyfriend were already having trouble sleeping as the children slept in the same bed as them.

[79] On January 4, 2017 the mother told the father she had taken their son to see the paediatrician but would not tell him why. The mother told him that her boyfriend would be dropping off the children and he would tell him. An argument ensued and the father said that if they were to co-parent they needed to share important information and if she was not prepared to do this, then he would have to commence a court proceeding. The mother then sent a text message that her boyfriend would not be dropping off the children and she would be keeping them.

[80] On January 7, 2017 both parents attended a birthday party for their daughter that had previously been jointly planned. The father told the mother he would pick up the children on January 9 th in accordance with their regular schedule. The mother refused to return the children and would not tell the father why she was keeping the children or for how long.

[81] On January 10 th , the mother brought an urgent without notice motion seeking custody of the children, supervised access for the father, an order that he not attend at their daughter's school and for police enforcement.

[82] Justice Carolyn Jones ordered that the motion be served on the father and the motion was adjourned to January 16 th .

[83] In the mother's affidavit in support of her motion, the mother alleged that there was "imminent danger" to the children, that the father "pushed her against a wall and cornered her," that she had continued to care for the children in her home after she moved out, that the father had no toothbrush for their son and that the father left the children unattended.

[84] The father brought a cross-motion for an order for a return to the shared parenting schedule that had been in place before the mother unilaterally withheld the children. The father denied the allegations by the mother.

[85] After hearing the motion, Justice Jones delivered an oral decision and made a temporary order that provided inter alia:

a) the children were to be delivered to the father's care and remain with him for the next full week;

b) the previous shared parenting schedule would then resume;

c) each parent would ensure the children have their own beds and not share a bed with an adult;

d) each parent would ensure that all prescription and non-prescription medications is kept in a locked cabinet to which the children do not have access;

e) neither parent or any caregiver to be intoxicated or impaired by any substance while in the presence of the children; and

f) each parent share important information with the other parent pertaining to health, education or welfare of the children.

[86] Justice Jones ordered the mother to pay costs of $2,825 and ordered the involvement of the OCL.

[87] The CCAS also investigated these concerns that were reported by the mother and did not verify them. The society worker concluded that the father and his partner were properly caring for and supervising the children.

[88] However, the society worker transferred the file for ongoing services as there was ongoing verbal conflict between the parties in front of the children related to custody and access issues. The parents continued to make allegations against one another exposing the children to new investigations. There was a pattern of conflict, including physical violence after their separation where the mother was criminally charged and the society worker noted that this was the third investigation in one year after the separation.

[89] The conflict between the parties continued despite the court intervention and the involvement of the society.

[90] In May 2017, Mother's Day fell on a day the children were with the father. In a series of text messages the father offered the mother that afternoon and that the children could sleep over that evening and he hoped that she would do the same for him on Father's Day. The mother's response to the father refusing his request is telling:

"since you are allowing the children to stay overnight so they can see there [their] mother mom on mother's day because you are doing it for the children on behalf of them I thank you…as for giving you the children the extra night [on Father's Day] I can't agree with that because they want to spend it with both of their dads. I'm sorry and I know you probably don't want to hear that but is their words they call him daddy and he is their father you are their blood daddy that's how [their daughter] explains it when she talks to people I hope you understand that is for the kids…."

[91] For the summer of 2017, the father wanted to enroll their daughter in day camp that he would pay for. The mother refused to take their daughter during the time she stayed with her. When the father suggested an alternate week schedule for the summer to facilitate summer activities, the mother would only agree if the father agreed to the mother having primary care.

[92] The parties, their counsel and the OCL attended a disclosure meeting on July 7 th , 2017 at which time the mother revealed for the first time that she had de-enrolled their daughter from her school and enrolled her at a school closer to her new residence. This was despite the fact that during the interviews with the OCL, the mother had been told that such a decision would have to be made by both parents.

[93] On July 24, 2017 the OCL released an interim report and recommended joint custody with the 2-2-3 shared schedule continuing and that the parties engage the services of Families in Transition, particularly to address the impact of the adult conflict on their daughter. Ms Tracz indicated she would reassess the situation once the parties had engaged the services of Families in Transition. She contemplated that the review would take place in about another 6 months.

[94] The OCL recommendations were incorporated into Minutes of Settlement dated August 28, 2017 that also required the mother to re-enroll the daughter in her previous school.

[95] The mother took no steps to re-enrol their daughter in her previous school until the Friday before school was to commence. Mother's counsel wrote to father's counsel stating that the mother had contacted their daughter's previous school and there was no availability to re-enrol her.

[96] The mother took the position that since their daughter was already enrolled in the new school she should just remain there. Attached to mother's counsel's letter was a letter from the principal of HB's former school confirming that there was no availability for their daughter in the Grade 1 class. The letter stated that as the mother had informed the school that as of September their daughter would be residing with her at a new address therefore her home school would be the school closest to the mother's residence.

[97] The father contacted the school and explained that their daughter was still living in the school's catchment area in a joint custody arrangement. The school then agreed to have their daughter re-enrolled. HB attended at the new school for 4 days and then returned to her previous school.

[98] The mother sent the father a video recording of their daughter saying that she did not want to go back to her old school.

[99] In January 2018, Ms Tracz began her follow-up investigation and met with both parents. In February 2018, counsel for the father inquired what the next steps were. Ms Tracz advised that she planned to meet with the daughter who she hoped would be more receptive to speaking to her and she would follow up with Families in Transition. She further indicated that she was uncertain if she needed to do a new observation but if something came up when she speaks to the daughter she may do that.

[100] During the course of Ms Tracz's investigation there were several instances of a lack of co-operation between the parents and ongoing conflict.

[101] In March 2018, the father became aware that as the children were in a shared parenting arrangement that the mother was not entitled to claim the entire child tax benefit. The father on the advice of his accountant took steps to correct the situation.

[102] During an access exchange the mother confronted the father in front of the children about the child tax benefit and was yelling that he was "fraudulent" and he "committed a crime".

[103] The mother also became upset because the father and his partner were being married on the same day as the mother and father's first date. When the mother's partner told the children she loved them the mother stated that she does not love them and never will.

[104] When the father suggested that they enroll their son in a toddler soccer program, the mother would not commit to taking him on her week-ends even though the father offered to pay her bus fare.

[105] According to the father, the mother called the father to complain that she was having trouble managing their daughter's behaviour and that she was not listening to her. The father gave the mother some strategies and told her, as he had repeatedly told her in the past, that she needs to be parent to the children and not be a friend that is, set boundaries and consequences. The mother did not dispute this discussion in her affidavit or in her testimony.

[106] On April 13, 2018 the parties and their counsel met with Ms Tracz for a disclosure meeting. During this meeting she recommended joint custody with the children residing primarily with the mother and spending alternate week-ends with their father and each child spending one evening with their father.

[107] The father filed a formal Dispute to the report.

[108] On May 15, 2018 the parties attended before Justice Jones for a case conference and were able to agree to a final holiday schedule. It was agreed that each party would have the children for 2 non-consecutive weeks in the summer and evenly split other holidays. The parties also agreed that the mother would consent to the children participating in any programs offered by Families in Transition and that they could attend with the father.

[109] On June 20, 2018 the mother brought a motion to essentially implement the recommendations of the OCL. Justice Jones dismissed the motion for extensive oral reasons finding that Ms Tracz's recommendations were surprising given the level of continuing inability of the parents to coordinate plans for the care of the children and the degree of mistrust between them.

[110] Justice Jones stated that Ms Tracz had recommended significant changes to the status quo parenting arrangements after only doing a cursory investigation that did not involve an observation of the children with either parent and without even speaking to the son or considering his needs. Ms Tracz appeared to rely on interviews with the daughter but then noted in her report that she was not a reliable historian.

[111] With respect to the school issue, Justice Jones noted that there was evidence that the daughter's present school was a stable and supportive environment and that the daughters' behaviour had settled and that removing her from that environment appeared to be against her best interests.

[112] Justice Jones also noted that there was evidence of recent incidents that raised concerns about the stability of the mother's relationship with her boyfriend and other incidents that were not mentioned in Ms Tracz's report. Justice Jones ordered that a copy of the father's affidavit be sent to the CCAS.

[113] Justice Jones also ordered that neither parent audio or videotape statements made by the children or discuss the issues in dispute between the parents in the litigation in the presence of either parent.

[114] She also ordered that the daughter remain in her current school and that her school not be changed without the written consent of both parents or a court order.

[115] The mother was ordered to pay costs of $4,800 to be paid by the sum of $1,200 in 30 days and further payment of $300 per month.

[116] The mother has not paid any amount with respect to both costs orders and owes a total of $7,625.

7. The Reports of the Children's Lawyer

[117] Dawn Tracz was assigned to conduct an investigation and report pursuant to s. 112 of the Courts of Justice Act. As previously referred to she filed both an interim report dated July 20, 2017 and a final report dated April 30, 2018.

[118] Ms Tracz is a registered social worker who has worked primarily in the area of adoptions. She has been a clinical investigator with the OCL only since 2016. She testified that she had only conducted one investigation prior to this one.

7.1 Observations, Collateral Information and Recommendations in the Interim OCL Report Dated July 20, 2017

[119] Ms Tracz made the following observations of the children in the mother's home:

a) The mother and her partner RB made a few sarcastic remarks about Ms Tracz's visit in the father's home the previous day in front of the children.

b) The mother spoke about her problems with the father in the presence of the children.

c) HB challenged her mother's authority and needed to be redirected several times during the visit.

d) NB climbed on a folding chair to reach an object. The mother did not intervene although after a few minutes RB did.

e) Initially the visit was ruckus and somewhat unfocused until the mother suggested they go to the park.

f) The mother offered healthy and nutritious snacks.

g) The mother and RB are "great playmates for the children" and the children seem to enjoy their time with them.

h) As RB played a big role in structuring the visit, another visit was necessary to observe the children with only the mother present.

i) On the second observation of the mother and the children only, the mother discussed the challenges of planning their son's birthday party with the father in the presence of the children.

j) The mother in the presence of the children discussed her problems with the father namely, that he doesn't contribute financially, she does not receive communications from the school because the father throws away the notices and she discussed the difficulties of jointly planning their son's birthday party.

k) NB picked up a small round object about the size of a pea and held it between his fingers, the mother did not intervene and said he would eventually put it down which he did.

l) The mother was able to handle the competing demands of both children.

[120] Ms Tracz's concluded that her clinical impression was that the mother and RB were "great playmates" for the children and the children seem to enjoy their time with the couple.

[121] Ms Tracz made the following observations of the children in the father's home:

a) The father was affectionate to both children.

b) When HB suggested they make a cake, the father engaged both children in this activity and used the opportunity to teach them about following a recipe.

c) When HB had a temper tantrum after being scolded for being mean TL (his partner's son) the father used appropriate parenting strategies to calm her down.

d) Ms Tracz concluded that her clinical impression was that the father handled HB's challenges quite well. It was her view that HB and TL may be experiencing adjustment issues since he had only moved into the home 2.5 weeks earlier.

e) Ms Tracz arranged a further observation of the father's partner SM and the children as she had not been home on the previous visit and the mother had expressed concerns about the care she was providing.

f) Ms SM was helping the children with their breakfast and getting them ready to go out for an outing.

g) During the visit, NB hurt his foot and he turned to SM for assistance and she bandaged his foot.

h) It was Ms Tracz's clinical impression of the visit that the children and SM were very calm and relaxed. SM seems to have a good ability to manage the competing needs of both children. She agreed with SM's observation that the children were getting used to her and they are settled.

[122] Ms Tracz interviewed HB who was 6 years old at the time at her school. Ms Tracz noted that when she told HB that she wanted to hear about her thoughts she became nervous. Ms Tracz attempted to reassure her and told HB that she was curious about how she felt going back and forth between her parent's homes. HB said that she did not want to talk about that. Despite several attempts HB was unwilling to discuss her feelings.

[123] In the Appendix to Ms Tracz's report she sets out the collateral information she received.

[124] Ms Tracz spoke to a society worker and had the notes of the CCAS. HB had met with social workers from the society who noted that in their interactions with her she expressed that she was feeling happy with both parents. One note stated that HB said she was sad because her mother wants her father to sign a paper and he won't. During a different meeting she stated that her mother and father both want her to live only with them.

[125] The society worker to whom Ms Tracz spoke indicated that she observed that the level of conflict between the parents was so great that they find it difficult to agree on the basic tenets of good parenting for the children for example, communicating about medication and how to administer it. Due to this conflict the society had elected to keep their file open and the conflict was the greatest source of harm or potential harm to the children.

[126] Ms Tracz also spoke to the daughter's teacher who described how she can sometime be withdrawn and has difficulty expressing her emotions to others and she can sometimes get into conflict with staff and peers because of her holding onto pent up emotions.

[127] Ms Tracz spoke to the children's paediatrician. Her case note states that she told the paediatrician that at times the mother's attention to supervision may be lacking and he indicated that he had a similar impression however, neither child had ever been brought to appointments with accidental injuries as a result of the lack of supervision. The paediatrician confirmed that he had no concerns about either parent but wondered if the parents would not benefit from ongoing counselling for support.

[128] Ms Tracz also met with NB who was 2 years old at the time. But due to his age she did not interview him. She described him as a charming and active child who loves to explore his environment. She stated that supervision of a child of his age is important because he had not yet developed a sense of danger of safety. Ms Tracz observed him to be comfortable in the presence of both parents. Both parents are warm and affectionate with him and he responded to their attempts to comfort and/or redirect him.

[129] In her interim report Ms Tracz made the following comments in the Discussion part of her report at page 17:

Considering what is at the heart of this conflict, it seems that there are some residual feelings related to the break-up of the parental relationship. It is important that parents learn to manage these deep-seated feelings of betrayal and frustration if they hope to move forward to co-parent their children. Ms P [the mother] admits that she can feel a deep anger and she would like to access support for herself to help her understand it better. Both parents could benefit from understanding how this kind of animosity is viewed by H. and N. [the children], so they can be sensitive to the special circumstances that may need attention for the children.

By all accounts H [the daughter] is having difficulty expressing her emotions that makes her particularly vulnerable to the effect that her parents' conflict. If she has difficulty expressing herself then it will be hard for her to ask questions and communicate with trusted adults about her fears and worries regarding her new living situation. It's not enough to be willing to care for your child. You also need to be able to attune to that child's emotional state and to help him or her understand her own feelings. H [the daughter] may benefit from professional support to learn about her own emotions so she can more easily communicate them to those who want to support her.

It would seems that this family requires some clinical supports and education to help them navigate their changing circumstances. I have recommended that they attend the Families in Transition Program offered through Toronto Family Services. Through this program parents can learn about how separation could impact their family and they may begin to be proactive about how to support their children….also there are an array of services to individuals and children, should they require more assistance.

7.2 Interviews, Collateral Information and Recommendations in Final OCL Report Dated April 30, 2018

[130] On January 8, 2018, the file was re-opened and Ms Tracz then began her investigation in support of her final report that was released on April 30, 2018.

[131] In the opening paragraph of the report Ms Tracz notes that an interim report was filed on July 20, 2017 with parents to follow up on her clinical recommendations with the intention to evaluate the outcome 6 months later as it pertains to custody and access of the children. She specifically noted that both parents were asked to attend Families in Transition and explore supports that would assist the parents to learn to work together. It was also her hope that services for their daughter would be acquired to address the emotional turmoil that seemed to be influencing her behaviour.

[132] Both parents were interviewed. The father reported that he was quite frustrated when the mother changed their daughter's school prior to the interim report being released and without his permission. The father was able on his own to re-enroll their daughter in her old school but when he asked the mother to take some responsibility her response was, "well it is done now, let's just keep her there."

[133] The father admitted that over Christmas, he got involved in a conflict with RB during the pick-up of the children. The mother called the police and he was warned to act in a more responsible and calmer manner. There was also a conflict between the mother and his wife where there was a verbal argument where names were called.

[134] The father reported that there was less direct conflict with the mother but she continued to push and try to get her own way. He was managing by disengaging with her during all discussions.

[135] The father reported that there was some disruption at the beginning of the school year but things had settled down although his daughter continued to tell him she wanted to return to the other school.

[136] The father reported that he believes that their daughter had adjusted to the parenting schedule but she was influenced by the mother's opinions and emotions. He noticed that she shows oppositional and defiant behaviour towards him and his wife when she returns from her mother's home and it takes about a day for her behaviour to settle down. The father admitted that it can be difficult to parent her, especially when she draws him into the power struggle. He believes that she needs firm and consistent rules and expectations.

[137] With respect to his son, the father described him as a rambunctious toddler who is meeting his developmental milestones but is slow to potty train.

[138] With respect to Families in Transition the father confirmed that he contacted them in August 2017 to register for their orientation that he attended for an intake appointment in January 2018. The next step was for a clinician to complete an assessment and make recommendations. He believes that some of the services will be helpful for his family. He was also hopeful that the children's groups could help his daughter understand her situation better as he was worried that the separation and disputes between himself and the mother are affecting her. He was also concerned that the mother would not consent to the children participating in any programs.

[139] Ms Tracz interviewed the mother who reported that since July 2017 there have been fewer instances of conflict. However, she has attempted to speak to the father about their daughter's desire to attend the new school and he refused to discuss it with her.

[140] The mother reported that their daughter told her that she gets into too much trouble at her father's home and she was unhappy. The mother stated that she tried to talk to the father about their daughter's concerns and worries and he refuses to speak to her about it. He also refused to speak to her about health concerns regarding the children. The mother feels that the father does not respect her views or opinions about the children and that this is source of their conflict.

[141] The mother expressed that she was deeply concerned about their daughter's unhappiness with the current parenting arrangements, that she feels she does not live anywhere and that she wants to live with her and spend time with her father on the week-ends.

[142] With respect to their son, the mother described him as "still a baby who needs his mommy". She stated that he was meeting his developmental milestones.

[143] The mother stated that their son spent a week at his father's over the summer and at Christmas and both times it was difficult for him and he was clingy and cranky for a few day. She thought it was too long for him to be away and admitted it was hard on her too.

[144] The mother also expresses frustrated because the father does not support her with potty training him and felt that potty training will be more difficult if he moves between two homes.

[145] Ms Tracz outlined that the key findings in her report as follows:

a) Both parents have different parenting styles. The father focuses on behaviour with clear expectations and consequences while the mother prefers to tune into her children's emotional state (that is the driving behaviour) and address the situation from there.

b) Both parents report that the children continue to have difficulty settling into each household. The mother reported that the children have vocalized a desire to not move back and forth as often. The daughter also vocalized to the clinician that she doesn't like going back and forth and that she feels she "lives nowhere."

c) The current debate over potty training, dust allergies and school placement appear to be an example of how these parents see their children differently.

d) The daughter seems to have settled into her school routine, her behavioural difficulties have been fewer than in the previous year. There have been some instances of oppositional behaviour.

e) There is a dynamic of relationship between the parents where both feel that the other does not listen to or accept their point of view. There is a mistrust in the other's motives that can overshadow each parents' ability to reflect on whatever issue the other person is attempting to bring forward. Both parents have stated a belief that their current conflict cannot be shifted.

f) When there have been instances of serious conflicts it has occurred at times of exchanges and both parents' partners have been involved.

g) The mother raised concerns over the cleanliness of the father's home but the clinician observed that while housekeeping standards are different in each home, neither home poses a serious risk to health.

[146] Ms Tracz interviewed HB who was 7 years old twice at her school on February 9 and March 8, 2018.

[147] A summary of the February 9 th interview is as follows:

a) HB did not show the same nervousness as at the first time and she was friendly and engaged.

b) When asked how she was feeling about going back and forth between homes, she shared that "things weren't going very well" and provided the following examples:

• Ms SM (father's wife) sometimes makes fun of her hair and how she wears it, telling her that it looks ugly if she doesn't wear it in a bun

• Ms SM says that her brother's hair looks ugly. She did it the other day when he woke up and it was sticking up in the air

• Ms SM doesn't like her orange shoes. SM thinks they are ugly.

• she frequently feels as if she is always "in trouble" at her father's house and that makes her feel sad. She said her Dad is mad at her all the time.

• she said there were things she liked at her mother, father and grandmother's home. All have good food.

• she said she likes the way her father does bedtime as he reads a story every night and her mother does not always have time

• she doesn't do her homework with her father only with her mother

• she said that she loves to visit her father and loves her dad very much but doesn't want to live with him because she doesn't like going back and forth. She added that she has a lot of fun with her father on the weekends when he doesn't work

• she doesn't like her father's girlfriend very much, although her dad likes her a lot. She believes that SM doesn't like her

c) she wanted to be clear that she would like the clinician to tell the judge, "I want to stay at my mom's and visit my dad on the weekends" like my friend.

d) She added that she was angry when her dad took her out of her new school because she likes taking the school bus and she made a friend on the bus.

[148] Ms Tracz wanted to meet with HB a second time to reinforce and remind her about the process as there was some "confusion" after the first visit as HB seemed to think that because she told her where she wanted to live that she could just stay with her mother because now the judge knew what she wanted.

[149] On February 12 th Ms Tracz spoke to HB on the phone and told her that it would take many weeks until the judge got her letter that explained how she felt and what she wanted.

[150] Ms Tracz then met with HB again on March 8, 2018. A summary of that interview is as follows:

a) Ms Tracz explained to HB that even if the judge read her letter [OCL report] that he or she may still decide that it is best for her to go back and forth but the judge will have a good understanding of what she feels and thinks about the situation.

b) HB nodded her head in agreement and said she understood now that it was still going to take time before she could stay at her mom's.

c) HB again said that she doesn't like that SM is mean to her. She reminded Ms Tracz about the times when SM said her hair looked ugly and that she has said that NB's hair looks ugly too.

d) HM then said that she thought that SM would make fun of Ms Tracz's hair, if she doesn't like how she wears her hair. Ms Tracz had to explain to HB that she wears her hair the way she feels is comfortable and it had nothing to do with SM.

e) HB explained that she liked her new school because no one there knew she was a kid who got into trouble and she liked taking the bus.

f) HB also said that she might feel jealous that SM takes her dad's attention and time and that was why she didn't like her.

[151] Although Ms Tracz makes comments and observations about NB in her final report. She did not observe him with either parent.

[152] Ms Tracz summarized her impression of her interviews with HB as follows:

"… I was left with the distinct feeling that the complaints against Ms M [SM] were a way to express anger. It is not clear that the actual events that H shared happened the way she explained them but that she believes them to have occurred and the emotion behind it was unmistakable. She clearly indicated her dislike of Ms M and a belief that Ms M doesn't like her. She described how bad it feels to be in trouble "all the time." These two emotions appear to be fuelling her desire to spend more time with her mother.

[153] Ms Tracz spoke to the children's paediatrician again and in the Appendix to her report she notes that he told her that he is quite frustrated with the current conflict that is brewing about their daughter's dust allergy and the bug bites that appeared on her arms and legs. His frustration is connected to the poor communication between the parents. He stated that he observed an antagonistic tone where each parent seems to be searching for instances when the other makes a mistake for the sole purpose of bringing it up in court. It is his belief that the bed bug allegation is fuelled by that desire. He would like to meet with both parents simultaneously to provide information about how best to manage HB's dust allergy. He wondered if the parents could not benefit from some ongoing support from counselling. The paediatrician confirmed that despite the conflict, both parents provide good care of the children.

[154] Ms Tracz spoke to the principal of HB's school who confirmed that she had difficulty settling in when she returned to their school for the first few months but she has now settled and is doing well. She still sometimes gets into conflict with staff and peers because of her holding onto pent up emotions. The school reported that it was "very aware" of the conflict between the parents.

[155] Ms Tracz also received information from a society worker that the conflict had settled and their file was closed. The society worker sated that she was hopeful that with support from Families in Transition the parents will be taught a new pattern of relating. She also felt that HB could benefit from counselling, perhaps a group for children.

[156] In making her recommendation that both children should live primarily with the mother, Ms Tracz concludes that:

"To protect H's sense of self-esteem she should spend time with caregivers who can attune to her needs and help her feel heard and right now that appears to be Ms P [the mother]".

[157] Ms Tracz points out that HB easily misinterprets social messaging and that on at least two instances she misunderstood her own interactions with her. HB misunderstood the court process and twice reported a belief that Ms Tracz was connected with her father's partner.

[158] Ms Tracz recommended that HB receive counselling in a children's group where she can explore her feelings of divided loyalty and that deals with separation. She further found it troubling that HB is expressing a lot of her emotional turmoil through behaviour in her relationship with her father. As a result she felt that they might benefit from some positive one to one time.

[159] With respect to schooling, Ms Tracz stated that HB might function well in either school. But as she would be spending more time in her mother's home, it was her opinion that it made sense for both children to attend the school closer to the mother's home and that school also had better outcomes connected to EQAO.

7.3 Ms Tracz's Testimony

[160] Ms Tracz provided further oral evidence. In response to questions from mother's counsel she confirmed that at the time she wrote her report although she would have made several more recommendations and corrected her "missteps" she would not have changed her conclusions.

[161] The court ordered a copy of Ms Tracz's testimony due to concerns about the very troubling nature of her evidence. Ms Tracz admitted that she omitted relevant information from her final report. Her evidence also revealed her lack of adequate investigation and failure to follow proper protocol.

[162] I summarize Ms Tracz's evidence as follows:

a) She agreed that HB exhibited challenging behaviours in both homes and in her school.

b) When asked for an example of the father handling HB's challenging behaviours Ms Tracz gave an example that occurred during an observation outlined in her interim report. Ms Tracz had concluded that the father had used appropriate parenting strategies to handle a conflict between his daughter and his partner's son over a video game by teaching her that there are consequences for her actions.

c) When asked for an example of how the mother handled their daughter's challenging behaviours, Ms Tracz stated that she joked with her, distracted her and then negotiated with her. Ms Tracz agreed that she never observed or reported that the mother set limits or boundaries for HB's challenging behaviour. She agreed that "negotiating" might not be a method of correcting those behaviours and negotiating was not a helpful technique to correct her behaviour at school.

d) Although Ms Tracz stated in her report and in her oral evidence that it was her impression that the mother understands HB's personality more and understands what going on emotionally underneath it, she provided no examples or instances to substantiate this impression.

e) She testified that it was her perception that the children's relationship was better with the mother's boyfriend than with the father's partner. She then refined her answer to state that the son is comfortable with both parents and with both their partners. Ms Tracz admitted that she had not made any further observations for her final report and nowhere did she document that RB had a better relationship with the children than SM had.

f) She agreed that after her first observation of the mother with the children she had concerns about how the mother structured her time with the children that she did not have those same concerns about the father.

g) She agreed that after the two observation visits of the mother with the children she had significant concerns about the mother's parenting. She agreed that she did not set out her concerns about the mother in her report.

h) She agreed that the mother making negative comments about the father in the presence of the children in both of her observation visits was a concern. Further she agreed that a parent making repeated negative comments about their other parent would be a concern. Yet she made no comments about this concern in her report.

i) She did not agree that HB telling a society worker that she was sad because her father would not sign a paper that her mother wanted him to sign raised concerns about the mother speaking negatively about the father. She explained that HB could have overheard this. But she finally conceded that even if HB overheard or was told this, such a discussion raised a concern about what she had been told or what she was hearing in her mother's home.

j) She agreed that her observations of the father with the children and with his partner were very positive.

k) As part of her investigation for her final report she made no further observations of either parent or their partners with the children and agreed that this may have been an error.

l) She agreed that the mother's comment that watching too much television can cause autism raised concerns about the source of the mother's medical information but she never addressed this issue with the mother or spoke to her about her source of medical information.

m) She agreed that the only information she had about the relationship between HB and Ms SM was from statements made by the child and that she had not observed any negative parenting behaviour in her observations of Ms SM and the children.

n) She agreed that she observed incidents that raised concerns about the mother's supervision of the children namely, their son holding a small object in his hand and climbing on a folding chair and the mother did not intervene. She agreed that the children's paediatrician had also raised concerns about the mother's lack of supervision. But she then testified that there was no indication that the children had actually been hurt and perhaps this was just the mother's "parenting style and she was more attuned to the kids than it appeared." Ms Tracz would not agree that a small child could choke on a small object but rather testified that her concern related to him putting the object up his nose. After further cross-examination Ms Tracz finally conceded that even if the children had not yet suffered an injury as a result of lack of supervision there is still a concern about a lack of supervision and risk of potential injuries. She did not feel this was important enough to address in her report.

o) Despite her knowledge of the mother's and RB's history of drug addiction and the misuse of prescription drugs, she does not refer to the issue in either report. She did not address the issue of the children's safety regarding drugs being stored in the home. She relied on RB's information that he was receiving methadone treatment and things were going well. In the notes of the society there is a reference to the mother having "marijuana pills" but this is not referred to at all in her report.

p) She testified that RB's lack of relationship with his own children raised "a bit of a red flag" did not feel the need to probe further. She accepted his information that he does not see his children because of a conflict with their mother and they live a distance away.

q) Ms Tracz testified that she did conduct a children's aid society records search regarding RB and there were no child protection concerns. She did not mention in her report that in January 2016, it was alleged that RB burnt his then girlfriend's child with a cigarette. She testified that as this incident was not verified it was not a concern. But she never asked RB about this or inquired if it was connected to his admitted drug use during this time frame.

r) She agreed that HB's school was a positive and supportive environment filled with adults who understood her needs and were well attuned to those needs. Despite stating that the new school had better EQAO ratings, she admitted that she had no case notes or actual knowledge of the comparison of the ratings between the schools.

s) She omitted from her report that she spoke to Ms Sylvia Bieweglowska of the CCAS who reported that she had no concerns about the hands on care of the children by both parents. But she was quite concerned that the mother gets herself all upset and then stirs up conflict between herself and the father. Ms Tracz admitted that she did not note this information in her interim report but made it appear that the conflict was mutual. She further conceded that in her own observations she agreed that the conflict was coming more from the mother than the father. But nowhere is her report does she allude to this.

t) Although she agreed that the mother was not honest about the history of caregiving, but that she did not feel this was a big enough concern to mention it is either her interim or final report despite the many other instances where the mother had not told the truth.

u) Despite receiving information, at the disclosure meeting for the interim report, that the mother had unilaterally taken steps to move the daughter's school, Ms Tracz did not include this significant information in her interim report. She testified that she saw the mother's behaviour as an extension of her emotional impulsiveness that was going to be addressed through the Families in Transition program and if the mother received some appropriate support for herself.

v) She agreed that nowhere in either report had she described her impression of the mother as "emotionally impulsive".

w) She agreed that she did not discuss in her final report that the reason the father had to take steps to remove their daughter from her new school was that the mother had unilaterally withdrawn HB and then after agreeing to return her to her old school, the mother had not done that. She agreed she "missed it" and it should have been addressed in her report.

x) She did not mention in her report that the mother videotaped HB saying that she wanted to stay in her new school and sent it to the father. She never mentioned in her report that the mother never corrected HB's understanding that her father removed her from her new school because the mother had registered her there without permission and that it was her fault.

y) She testified that it was the policy of the OCL and her understanding that once the interim report was done that it was a closed period and that she should not have any contact with the parties until she then began the investigation for her final report.

z) She admitted that she had spoken to the mother during this interval and the mother told her that she could not move HB back to her old school. Ms Tracz denied that she told the mother just to leave her in her new school, as testified to by the mother. Ms Tracz further admitted that she kept no notes of her discussion with the mother.

aa) She confirmed that the mother spoke to her about the child tax benefits namely, that the father changed the benefits and did not tell her before he did this. Ms Tracz also testified that she spoke to the mother about her financial situation. She explained that she did not speak to the father to obtain his side of what happened as it was not relevant to her. However, she then agreed that she told the father that he should not have done what he did regarding the child tax benefit and did not give him an opportunity to explain. She further testified that she believed the mother about her version of the events.

bb) She testified that the mother called her several times during her investigation for the final report expressing concerns or asking questions about how to support her daughter when her daughter was expressing frustration. But this information was also omitted from her report.

cc) Ms Tracz testified that she continued to engage the mother in conversations about accessing programs at Families in Transition. Ms Tracz did not clarify or document how many telephone calls she had with the mother. She testified that the mother went back and forth about whether or not she would go to Families in Transition. The mother's ambivalence was not set out in her report.

dd) In response to a question from the court, Ms Tracz confirmed that she felt the programs at Families in Transition would benefit the daughter and the mother. She agreed that despite this recommendation being in the interim report it was not in her final report. She testified that it was an "oversight".

ee) She confirmed that the mother told her that communication between her and the father and their level of conflict had not improved since the last time Ms Tracz saw her. Ms Tracz testified that it was during this discussion that the mother told her that she was not feeling as angry and she was feeling better. Ms Tracz could not explain why this particular discussion was not in her case note.

ff) She testified that the mother told her that she did not think their daughter needed support such as that offered through Families in Transition and that she really didn't think that anything at Families in Transition would be helpful to her because in her mind it was the father who was not working in a cooperate manner with her. This discussion and mother's inability to see the need for support for HB to help her cope and vocalize her emotions is not referred to anywhere in the report.

gg) Despite the Appendix to her report outlining that she had Collateral Information from Families in Transition, she testified that she only exchanged telephone messages and did not actually get any information from them.

hh) She agreed that she had some concerns that HB may have been coached or that someone spoken to her about what schedule she wanted but agreed that she did not address those concerns in her report. Ms Tracz stated that she did talk to HB about whether people had been asking her to say things. She had no case note about this and does not refer to any such discussion in her report. She agreed that this is something she would now include in her report.

ii) She agreed that her concerns about HB's truthfulness regarding her statements about Ms SM raised concerns about all of the statements HB made during the interview and suggested that she might need to do more probing. But she agreed that she did not do any such probing.

jj) She agreed that she considered the possibility that the mother might have spoken to HB about the school change as HB had the impression it was the father's fault but again this is not mentioned in her report.

kk) Ms Tracz felt that HB was genuine in wishing to be on the school bus with a friend whose name she could not remember. Ms Tracz does not raise any concerns in her report that the mother did not make it clear to HB that she would no longer be taking the school bus if she went to the school near the mother's home.

ll) She agreed that HB's reasons for wanting to change schools that is, being with a friend whose name she could not remember, going on a school bus and having the same parenting schedule as her friend had, were childish reasons, not well thought out and typical for a young child.

mm) She agreed that before speaking to HB, she had the impression from the parents that the children had settled and that the parenting schedule was working well.

nn) She further agreed that based on the information from third parties that is, the school, the CCAS and the paediatrician, no concerns were raised that required a school change or a change in the parenting schedule.

oo) Ms Tracz testified that she recommended joint custody because she hoped in the future the parents would be able to make decisions together. However, she confirmed that at the time she made her report the parties would not be able to make major decisions together without the support of Families in Transition or a parent co-ordinator. She agreed that she made this recommendation despite the mother stating that she did not see the need for Families in Transition and despite the fact she did not recommend the mother attend at Families in Transition or for counselling.

pp) Ms Tracz did not agree that the parenting schedule she was recommending was a significant change to the equal parenting schedule in place despite the fact that the children would now only be spending alternate week-ends with the father and each child one evening a week with him.

qq) She agreed that neither parent had suggested that the children should be separated or that there was a need for either child to spend one on one time with their father. But she then relied on a case note that HB said something about her father needing to spend time with SM and the implication to her was that HB wasn't getting enough time with her father. She did not ask the father about this and then agreed that there was actually no reference to HB saying she missed spending time alone with her father.

rr) She agreed that there was no reference in the report that the new schedule she was recommending was in the son's best interests and she admitted that she did not think about how the schedule might affect him.

ss) She agreed that in her interim report she viewed the father as an active, loving parent with good parenting skills and her impression of him did not change between both reports. However, she was concerned about HB's comment that she was always in trouble at her father's home would impact their relationship if that did not get addressed. She felt the best way to deal with that was to temporarily take her away from her father.

tt) When asked to explain her evidence that her recommendations being temporary she testified:

I didn't know what the –what happened once I was no longer involved with the family, but once there-there was, things change in families all the time. And once N [the son] was in school full-time, that would change things as well. And once H [the daughter] and her dad, assuming they addressed the tension that was brewing in that relationship, it could have evolved into something more, I think. Like a – more back to- to the older rotation of two days, two days, three days.

uu) She then agreed that the parents should return to a shared parenting schedule at some point but that she did not mention this in her report and agreed that this was something important that should have been mentioned.

vv) She agreed that she had considered the fact that if the mother had not chosen to move 40 minutes away, the children would not have had to make that trip and the issue of a change of school would never have arisen. She assumed that it was a function of finances but confirmed that she had not raised or discussed this issue with the mother.

ww) When father's counsel was provided with a copy of Ms Tracz's file she inquired about copies of text messages to and from the parents. Counsel was advised that copies of text messages had not been kept and that the texts were only about logistics or for planning purposes. However, when showed copies of texts the father was able to produce between himself and Ms Tracz she admitted that the content dealt with substantive issues about parenting and communication. She further admitted that as a result of her not keeping the text messages between herself and the mother, the father had no knowledge of the contents and could not respond to any possible misinformation.

xx) The mother had mentioned to her that the father was not giving the children medications that were prescribed, she discussed this with the father and had no reason to believe this was true.

yy) HB made statements to the society about domestic violence between RB and the mother and that RB had physically disciplined her. She testified that she spoke to RB and the mother about it and reviewed the society records. It was her view that there was a misinterpretation of what happened.

zz) In answer to questions from the court about why she put so much weight on HB's statements about her relationship with Ms SM and minimized HB's statements of domestic violence, she replied:

In terms of what H [the daughter] had said to me when I was talking to her at school, I didn't take everything that she said like, word for word as this is exactly the truth particularly some of the statements made around Ms M you know, I felt were more an expression of her frustration, reaction to the changes that had happened, I-I thought she was probably feeling some stress around the upcoming wedding because at that point, her father and Ms M were planning a wedding. I wondered, I tried to find out if maybe she and Ms M had had a conflict that morning on the way to school, which sometimes happens with kids. You know, they go to school angry. I couldn't get a lot of that detail from her in terms of what was fuelling that….But I did you know, I did certainly understand that- that they could've been numerous reasons why she was saying what she was saying, but my worry was more around the fact that she always, she said that she felt like she was always in trouble at her dad's.

[163] Ms Tracz never directly answered the court's question.

[164] When asked by the court, why then she did not arrange another observation of the daughter with the father and Ms SM, Ms Tracz replied,

"Well, and honestly, I don't understand it either. And I think that's one of the things that I probably in retrospect would have liked to have done to get a better sense of that".

[165] When asked by the court why Ms Tracz continued to recommend joint custody in her final report in view of the fact that her hope, as set out in her interim report, for communication between the parents improving depended on them obtaining the support of Families in Transition that had not happened, she replied that:

"I recommended joint custody because I really felt these kids needed both parents in terms of their skills and abilities. I see Mr. B's style and Ms P's style as being different, but kind of complimentary to each other. The one piece that Ms P, I think manages quite well is connecting to the kids' emotional life. And I think sometimes for – and Mr. B does the structure and the expectations really well."

[166] In a further question from the court, Ms Tracz confirmed that this opinion was based on her observations of 2 years ago and conversations with the parents. But when pressed about what this had to do with joint custody as the report did not provide evidence of parents being able to co-parent and communicate properly and make joint decisions, Ms Tracz stated that she agreed about the lack of ability to co-parent but,

"I think that's why I recommended it was, I really wanted both parents involved in the decision-making for the kids. I didn't want one parent excluded."

[167] When then asked by the court how joint custody would be workable if the parents do not communicate and don't agree on major issues such as the school the children should attend, Ms Tracz replied that,

"I was really hoping that the Families in Transition program would help ."

[168] When the court again asked how she envisioned joint custody working as Families in Transition hadn't even started yet and it was not clear if the mother would attend, Ms Tracz replied,

"I don't know".

7.4 Legal Principles with Respect to Weight to be Placed on OCL Report

[169] It is submitted by the mother's counsel that the court should place a great deal of weight on the report of Ms Tracz as she is "an independent court-appointed expert." It is further submitted that while the report is not perfect, the evidence gathered by the clinician is indispensable.

[170] It is submitted by father's counsel that the court should place little weight on the recommendations of Ms Tracz as the final report is now a year old, there are significant flaws in her process and her recommendations do not coincide with her observations and the information from third parties.

[171] The report of the OCL is not an expert report such as an assessment pursuant to section 30 of the Children's Law Reform Act.

[172] The author of the report is only a fact finder and not an expert.

[173] Although section 112 on the Court of Justice Act does give the author of the report the power to make recommendations on behalf of the OCL on the resolution of the issues. Those recommendations are only a starting point and not the last word.

7.5 What Weight Should be Put on the Report of the Office of the Children's Lawyer?

[174] Despite the legal principles the reality is that reports from the OCL have a significant influence on the parties in determining how they should resolve their dispute as most cases do not proceed to trial.

[175] In most cases, the report of the OCL is given considerable weight in settlement discussions and overshadows other evidence. Most litigants are concerned that the court will accept the OCL recommendations and that there is no point in then proceeding to trial.

[176] The court in making recommendations at a settlement conference relies on the thoroughness of the OCL reports and expects that the clinician's recommendations are based on their observations and the collateral information. The court also relies on the clinician in making their recommendations having an understanding of the legal principles regarding custody, access and the best interests of the children.

[177] I have outlined in great detail the observations and process followed in the preparation of the reports in this case due to the court's serious concerns about the flaws in the process followed by the clinician, the omission of relevant information from the report, the recommendations not being consistent with the observations or information from third parties and a lack of a basic understanding of the legal concept of joint custody.

[178] I find that I am unable and unwilling to place any weight on the fundamental recommendations in the final report of joint custody and in the significant change recommended that the children reside primarily with the mother.

[179] I find that I am able to generally rely on the observations, the admissions by the parties and the information received from the collateral sources as outlined in the reports.

[180] However, as the report is now a year old and the observations of the children are now 2 years old, the recent evidence of the circumstance with respect to the parents and the children must also be considered.

[181] I find that the basic flaws in the investigation and reports are as follows:

a) Ms Tracz did not understand the basic requirements of the legal concept of joint custody. She recommended joint custody despite her own findings of an inability of the parents to co-operate, share important information or coordinate activities for the children, mutual mistrust, lack of respect for the other parent's abilities, ongoing verbal conflict and their fundamental different views of parenting. She recommends joint custody in the "hope" the parents will learn to co-operate and communicate. It should have been abundantly clear that these parents could not jointly parent;

b) Ms Tracz did not require compliance with her own recommendations. In the interim report Ms Tracz recommends that both parents utilize Families in Transition to learn to co-parent and co-operate. Her entire hope for the parents learning better communication skills is based on them attending Families in Transition. Yet Ms Tracz continues to recommend joint custody despite the fact the mother states that she does not feel she needs that service. Ms Tracz seems to conclude that this is permissible despite her recommendation and the court order that both parties attend. She then ignores her own interim recommendations and does not recommend in the final report that the mother attend Families in Transition;

c) Ms Tracz did not conduct a thorough investigation. She did not conduct a further observation of HB with the father and SM in view of the significant changes in the HB's views about her relationship with her father and SM. She did not conduct a further observation of the mother and RB despite recommending that the children spend a majority of their time in that home in view of her concerns about their parenting style and appropriate supervision. Ms Tracz did not thoroughly investigate concerns regarding drug use, domestic violence and the background of RB;

d) Ms Tracz made recommendations about NB's time being reduced with his father without ever considering his best interests;

e) Ms Tracz placed undue weight on the views and preferences of a 7 year old. Ms Tracz appears to have come to her conclusion that both children should live primarily with their mother by relying heavily on the statements of a 7 year old. She did not make any attempts to determine if the child was being coached or influenced by her mother. This is despite the fact that the father had raised concerns about possible coaching by the mother, the fact that the mother and her partner both spoke negatively about the father in the child's presence, the fact that the child expressed negative statements about the father's partner that mimicked the comments made by the mother and despite the fact that the child had a great deal of information about the court process. These fact should have raised significant concern about HB being influenced or coached by her mother. Yet these is no mention of any of these concerns in her report or case notes and no steps were taken by Ms Tracz to address this issue;

f) Ms Tracz's observations do not coincide with her recommendations. The observations of the children with the mother raised concerns about her parenting style and ability to ensure the children were safe. Such concerns were not observed in the father's home. Yet despite this, Ms Tracz concludes that the mother can better meet the needs of her daughter as she is more attuned to her emotional needs without citing any examples or observations to back this up. Further, it is the father that appreciates the need for HB to have counselling so she better understands her parents' separation and to help her deal with her conflicted feelings whereas the mother simply blames the father;

g) Despite the mother's history of not telling the truth, Ms Tracz accepted the mother's statements about what the children said and believed the mother in several instances where it should have been obvious that the mother was not telling the truth such as, a 7 year old saying that she wanted to change schools for a "fresh start", the same phrase her mother used, or that 2 year old would say that he wanted go to a school with "air filtration" system or a school with "air conditioning". On other occasions, she accepted the mother's version of events for example, regarding the child tax benefit without even giving the father an opportunity to provide his version of events. Nowhere in her reports does Ms Tracz comment on the several misrepresentations, misleading comments, half-truths or outright lies told by the mother to her and others;

h) The investigation was not even handed. Ms Tracz omitted significant information that she received from the mother and third parties that reflected negatively on the mother but focused only on the father having challenges and difficulties managing their daughter's behaviour and ignored information that the mother was having the same challenges. She failed to report that both the mother and her partner had been cautioned about using physical discipline against the daughter. She failed to accurately report that the third parties considered that the mother was more responsible for inflaming the conflict than the father. She failed to accurately report the mother's ongoing misrepresentation of advice given to her by the paediatrician. For example, the mother alleged the paediatrician told her that HB needed to be in a dust free, sterile environment. In fact the paediatrician reported that he only told the mother HB needed to be in a smoke-free environment because he smelt smoke on the mother. She failed to outline the ongoing allegations by the mother against the father, his partner and the paternal grandmother to the CCAS, none of which were verified. This conduct by the mother should have raised some concerns about the mother's judgement in subjecting the children to unnecessary investigations;

i) Ms Tracz failed to reconcile her recommendations with information from third parties. Despite the information from the school and the CCAS that the children had adjusted to the parenting schedule and despite information from the school that HB has adjusted to returning to her old school, nevertheless Ms Tracz recommends a change to both the parenting schedule and the school without explaining why her opinion differs from the opinions of the collaterals; and

j) Ms Tracz failed to follow the proper protocol in preparing her reports. She had contact with the mother between both investigations which is against the policy of the OCL. She neglected to document all of her contacts and information she received from the mother and did not document some portions of her discussion with HB. She failed to keep copies of her text messages to and from the parties. She misled the father' counsel by stating that the text messages she disposed of were only related to logistical information about arranging appointments when it was proven that there were discussions of substance.

8. Events Subsequent to Final Report of the Office of the Children's Lawyer Report Dated April 30, 2018

[182] On May 15, 2018 the parties attended a case conference before Justice Jones and were able to settle on a final basis a holiday schedule. The mother also consented to the children participating in any programming offered by Families in Transition and that they could attend with the father.

[183] On May 9, 2018 the mother contacted the father a half hour before her time to pick up the children and requested that he keep the children overnight as she was at the hospital with a hernia.

[184] When the mother picked up the children the next day, she had visible black marks all over her face. When the father asked what happened, she said, "I told you, I fell down the stairs," which is not what she had told the father.

[185] The mother asked the father if he had told RB that she asked him to keep the children because of her hernia. The father told her that he had not had any contact with RB. The mother told him she knew that he had not contacted RB and that RB lied to her to upset her.

[186] On May 30, 2018, the father received a call from his aunt who asked for the mother's telephone number. The aunt explained that the mother had rushed into her home at about 4:30 pm that day without knocking or calling ahead and said she had to leave their daughter with her for half an hour. After two hours past and the mother had not returned, the aunt became concerned and was calling the father. The father could not reach the mother by phone and her mailbox was full so he could not leave a message. The father contacted the paternal grandfather to see if he could reach the mother. The mother finally called the paternal aunt and said her boyfriend would pick up their daughter. By 8:40 p.m. as no one had picked up HB, the father went to his aunt's home and took her to his home.

[187] The mother then called the father and asked for him to keep HB for the night and she would pick her up in the morning. The mother did not show up in the morning. The father dropped HB off at his parents to take her to school. She did not have her school bag that was with the mother.

[188] The father did not hear from the mother until 11:00 am asking if their daughter had lunch. She would not respond to the father's questions about what happened.

[189] When the father picked up HB, she told him that the mother had a cut on her head from a curtain rod. When the father told her accidents happen, she responded that it was not an accident and that RB pulled the curtain rod down on her head because they were fighting and he was angry. HB reported that she saw it happen as she was in the bathroom. The father reported this incident to the CCCAS due to his concerns about violence in the mother's household.

[190] On or about June 1, 2018 the mother called the father and stated that she had been attacked. The father saw marks on the mother's face and a cut on her head. In cross-examination, the father testified that the mother told him that she had a fight with RB. The mother testified that she received the cut and marks because she had been robbed, knocked to the ground and her purse stolen. She did not report the incident to the police.

[191] On July 24, 2018 the society caseworker attended the father's home as part of her investigation regarding allegations of potential domestic violence in the mother's home pursuant to the order of Justice Jones.

[192] The worker met privately with the children to interview them. When she asked HB about her mother and RB, HB did not wish to talk about it. She also did not want to talk about her father and his partner. She reported that there is some yelling at both homes. She also reported that she gets time outs at both home when she is in trouble and that nothing worries or bothers her. HB did not want to leave NB alone with the worker but she finally left. When asked how people get along, he only reported that his mother and RB yell at each other.

[193] The worker documented her observation of the father and children and noted that:

While at the home, I observed D [the father] to redirect the children appropriately if misbehaving. N was very attached to Dad, telling him he loved him and they were very playful. H too was seen close to D, and they were seen having a good conversation together .

[194] In December 2018, very shortly before the trial scheduling date, the mother reported to the CCAS that Ms SM's son TL who is 9 years old had asked NB to put TL's penis in his mouth. The father was asked to keep the boys apart while the society investigated. The father then arranged for both of his children to sleep over at their paternal grandparents' home. TL and NB were both interviewed and denied this ever happened. However, the father was advised that NB had made this allegation while he was with his mother. The society then arranged for the father to bring NB to be interviewed at a reporting centre.

[195] On January 9, 2019, the father was contacted by the society worker as the mother had called and told them that the father was not keeping TL and NB separate and that TL had again asked NB to put his penis in NB's mouth.

[196] On January 15, 2018 the father was scheduled to bring NB to a reporting centre to be interviewed when he received a call that the mother was refusing to permit him to pick up NB and that she had taken NB to the reporting centre.

[197] Later that day, the father was advised that the investigation was completed and there was no evidence to suggest what the mother was alleging had happened. The worker confirmed that the boys could continue to share a bedroom together.

[198] The father testified that he is concerned about the mother now coaching NB to report that TL was sexually inappropriate with him and to lie to authorities similar to the pattern of her coaching HB.

[199] The society worker also advised the father that the mother told them that he was not agreeable to counselling for the children. The father assured the worker that he was entirely supportive of the children getting counselling. Since receiving the case notes of the society, the father became aware that the mother contacted the society on January 9 th to inquire about counselling for NB but never discussed or sought his opinion about it.

[200] Despite the consent of May 15, 2018 confirming that the mother consented to HB attending counselling at Families in Transition, the mother refused to consent to her going with the father. The father deposed that despite the court order, the policy of Families in Transition is that both parents must provide their consent. The father again requested the mother consent but she refused. Sometime prior to this trial, the mother finally did provide her consent.

[201] The father requested that the mother permit him to register NB in the school HB is attending for September 2019 when he will be starting junior kindergarten so that a placement is reserved for him. The mother refused to permit him to do so, stating that he wants to attend a new school with central air conditioning. The mother agreed that there could be a risk that there will not be a place available if he is not registered.

[202] The mother testified that she had been going to HB's school, on the days she was not with the mother, to give her medicine without telling the father because she stated that HB told her that the father was not giving her the medicine. After several questions in cross-examination, the mother finally admitted that it "could possibly be bad" if a child was receiving double doses of medication. She also testified was going to the school to do HB's hair.

9. Legal Considerations with Respect to Custody

[203] In making any parenting decision, the court must consider the child's best interests and the relevant of factors set out in subsection 24 (2) of the Children's Law Reform Act.

[204] The decision in the well-known case of Kaplanis v. Kaplanis sets out the principles the court should consider in determining whether an order for joint custody is appropriate as follows:

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

2. It cannot 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.

[205] Joint custody should not be ordered where there is a history of poor communication and the parties fundamentally disagree on too many issues that affect the child's best interests.

[206] Although courts do not expect communication between separated parties to be easy or comfortable or free of conflict, 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.

[207] Joint custody with parallel parenting orders, as is being requested by counsel for the mother in his closing submissions, has been made in high conflict cases especially where one parent has been unjustifiably excluding the other parent from a child's life and cannot be trusted to exercise sole custody and where the court has found that both parents are equally competent and agree on major issues.

[208] With respect to contact, a child should have maximum contact with both parents if it is consistent with the child's best interests.

9.1 Application of Legal Principles Regarding Custody to the Findings of Fact

[209] Notwithstanding the formal consent of the parties to an order of joint custody, the evidence is clear that the parties have no history of co-parenting since the separation, they do not effectively communicate, they do not agree on basic parenting issues and they have not jointly made any major decisions. They mistrust and disrespect each other and have different parenting styles.

[210] The mother has unilaterally made decisions such as attempting to change their daughter's school without advising the father. The mother refused to share information about the children's health with the father or provided him with misleading and false information about their health. The mother has refused to co-operate with the father in arranging summer camp or extraordinary activities for the children. There has been conflict about the receipt for the child tax benefit.

[211] There have been ongoing reports to the Catholic Children's Aid Society of Toronto. The society initially became involved due to the mother assaulting the father in the presence of the children. There were ongoing allegations by the mother against the father and his partner that resulted in various interviews of the children. The father also contacted the society and reported concerns about possible domestic violence in the mother's home.

[212] The society stayed involved until about July 2017 due the risk of emotional harm because of the children's exposure to the conflict between the parents. The society expected that the parents would become involved with Families in Transition as recommended by the Office of the Children's Lawyer.

[213] Although it appeared that the conflict had lessened when the society closed its file, in April 2018, the mother raised new concerns about the father not properly giving the children their vitamins and generally neglecting their health.

[214] Once that investigation was not verified, in December 2018 the mother raised an allegation of inappropriate sexual contact between the son and the father's partner's son. Although that allegation was also not verified, both children were required not to sleep in the same home and NB was subjected to multiple interviews by the society workers and the police.

[215] The school and the family paediatrician are aware of the conflict between the parents. The parents have involved both the school and the paediatrician who have had to navigate disputes between the parents.

[216] In face of this evidence it is quite astonishing that Ms Tracz recommended joint custody. Her recommendation created a dilemma for the parties and their counsel and in my view she singlehandedly created the need for a trial. The mother naturally relied on the report and the father had no choice but to require the issues be determined at trial due to the substantial concerns about the reliability of the report and its recommendations. Concerns that were shared by Justice Jones in her decision of July 12, 2108 dismissing the mother's motion to implement the recommendations of Ms Tracz.

[217] The submission of the mother's counsel for parallel parenting with the mother making educational decisions and the father medical decisions was made without much thought or any evidentiary basis.

[218] The mother has constantly been critical and reported concerns about the medical care that the father provides to the children. There is no evidence that she trusts him to make medical decisions in fact her evidence was to the contrary.

[219] During the trial, the father learnt that the mother had been going behind his back and attending at the school and giving their daughter medication without his knowledge because she did not trust that he was properly giving their daughter her medicine. It was not clear what medicine the mother was giving the daughter creating a possible medical risk to her.

[220] The father does not trust the mother to make educational decisions. The mother acted impulsively in registering their daughter in a new school and misled the school authorities to believe that the children resided full time with her and that she had the legal right to make schooling decisions.

[221] I find that given the overall inability of the parents to communicate, the extreme mistrust and the divergent parenting approaches, there is little likelihood that any sort of joint custody or co-parenting arrangement would be workable or beneficial to the children.

9.2 Application of Best Interests Factors

[222] It is then necessary for the court to determine which parent can be entrusted to make decisions for the children. I have considered and applied the best interests factors in section 24 (2) of the Children's Law Reform Act.

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

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

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

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

[223] The children are loved by both parents. Each have been observed to be affectionate and loving with the children by Ms Tracz and the Catholic Children's Aid Society of Toronto workers.

[224] I find that the children also have a positive and loving relationship with each of the parent's partners as was observed by Ms Tracz. I specifically reject Ms Tracz opinion that the children had a better relationship with the mother's partner than the father's partner as it was not based on any objective evidence. I further note that the mother told her daughter that the father's partner does not love her and made a scene about the father's partner doing her hair and continues to go to the school to do the daughter's hair thereby continuing to disparage Ms SM's role in the daughter's life.

[225] I also put no weight on the statements made by the daughter to Ms Tracz about Ms SM. Many of the statements related to incidents that occurred prior to Ms Tracz's final report and during the initial investigation. Ms Tracz made no negative findings about the relationship between HB and Ms SM. Further, the findings are not supported by her one observation of the children with Ms SM. Ms Tracz was not even certain the incidents about Ms SM were true. Ms Tracz failed to observe HB with Ms SM after these comments were made by the child, failed to speak to Ms SM to understand the context and failed to consider the mother's negative influence on the daughter. Further, it is possible that as observed by the child herself, that these remarks and feelings were situational in that the father and Ms SM were getting married. Since the final OCL report that is now a year old, there is no evidence of any problems in the relationship between HB and Ms SM.

[226] I find Ms Tracz's analysis and conclusion that even if the statements were not true, the statements represented the child's anger against her father to be faulty. She did not observe the father with his daughter or speak to anyone at Families in Transition about their relationship. No concerns were expressed by the society regarding their relationship. Further, Ms Tracz failed to explore whether or not HB's views were being unduly influenced by her mother when she had evidence that even during her interviews with the mother and RB they spoke negatively about the father in the presence of the children.

[227] Both children have a positive relationship with their paternal grandparents who have been closely involved in their day to day care.

[228] I also find that the children have a positive relationship with their maternal grandfather who assisted the mother in the care of the children.

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

[229] As previously outlined, I find that the views and preferences of HB who was 7 years old when interviewed by Ms Tracz are not independent views and cannot be relied upon. I find that there is abundant evidence that HB is being influenced in her views about where she wishes to reside by the mother. The views and preferences are not reasoned or well-thought out and are based on childish reasons such as wanting a parenting schedule like her friend.

[230] Contrary to the statements of HB, the objective evidence supports that HB enjoys spending time in the home of both parents and has adjusted to the shared parenting schedule.

[231] NB is too young to express any views. But there is evidence that he enjoys spending time with both parents and was not exhibiting any trouble in transitioning between the homes.

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

[232] Since birth both children have resided in the home where the father continues to reside. Their paternal grandparents live close by as does a paternal aunt. They are familiar with the neighbourhood and that community.

[233] Since the mother left the family home in April 2016, the mother has moved twice. But as of July 2017, she has lived in a stable residence and each child has their own bedroom. However, she moved out of the neighbourhood where the children had been raised and had ties to that community. No evidence was provided as to any efforts made by her to find accommodation in that neighbourhood.

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

[234] The mother has not been responsible in meeting either the children's medical or educational needs. Without any thought, she created chaos for HB in registering her in a new school and then after agreeing to return her to her old school and being ordered to do so, she waited until the day before school was to commence only to be told that there was no space for HB at her old school. I find that the mother orchestrated this scenario so that she could have HB attend the school of her choice. Further, she did so even though HB would be bused to a temporary school while the new school was being renovated. So that there was absolutely no reason to change HB's school for the 2017-2018 school year.

[235] I find that the mother has not properly met the medical needs of either child as she has consistently misstated medical advice she was given and exaggerated the medical needs of both children. Her views about watching too much television causing autism also raises concern about the source of her medical opinions that in the future could jeopardize the health and well-being of the children.

[236] Although the children's paediatrician has indicated that both parents provide good care for the children, it is not clear if the paediatrician is aware of some the misinformation the mother has conveyed or that the paediatrician is aware that the mother is overmedicating HB.

[237] The father has met all of the children's medical needs. I do not accept the mother's evidence that he has neglecting those needs or that he is not properly administering any medication. All of the mother's allegations against the father have been investigated by the Catholic Children's Aid Society of Toronto and found not to be verified.

[238] The father has acted in HB's best interests in ensuring that she was re-enrolled in her old school. The school is a stable and supportive environment for her and has met all of her educational and emotional needs. Her recent report card indicates that she is receiving B's and C's and is continuing to improve. The father reads to her every night she is in his home. I do not accept the mother's evidence or HB's statement that the father does not do homework with her as it is not supported by the evidence from the school.

[239] Although neither child has special needs at the present time, HB is being affected by the conflict between her parents and counselling has been recommended for her. The mother does not appreciate the need for such counselling and simply blames the father and proposes that he obtain counselling for himself due to his "attachment issues". The father is the parent who has pursued and sees the benefit of individual or group counselling for HB and joint counselling for them both. He is the parent who will meet the emotional needs of HB.

(e) any plans proposed for the child's care and upbringing

[240] It is the mother's plan that the children reside with her and RB and attend the school close to their home.

[241] Although the mother and RB have met the basic needs of the children and the children enjoy their time in that household, I find there are concerns about their parenting as there appears to be a lack of limits and boundaries. I agree with the observation of Ms Tracz that they are "great playmates" for the children. There is also a concern about the use of physical discipline by both the mother and RB.

[242] The mother did not provide any details about the routines or schedule in their home.

[243] At present both the mother and RB are home full-time and are not employed. It is not clear when they plan to return to the workforce.

[244] I found that RB was an evasive witness. He testified that he was paying child support but then clarified that there was a child support order that required him to pay child support but he was in arrears for about $18,000.

[245] He was also evasive about his employment. He testified that he was looking for employment but he had to be recertified as a forklift operator. When asked by the court the length of that program he testified that it was only 1 day course. He then testified that he was actually not able to look for work as he had to attend the methadone clinic once a week and sometimes when randomly required to attend for drug testing.

[246] He did not admit that he had an addiction to prescription opiates. He testified that he had been given Percocet for an injury but they were insufficient for his pain. When asked if he requested his doctor give him another prescription, he replied that his doctor refused and he "sought out extra". Only after further questions did he admit that he was obtaining the drugs illegally.

[247] He testified that he has been on the methadone program since about April 2016. He testified that it will be another 18 months before he is weaned off methadone.

[248] The mother testified that she is enjoying her time off and spending time with her children and had no immediate plans to return to work.

[249] Although the paternal grandfather was assisting the mother in caring for the children, she testified that his health has deteriorated and he is no longer as involved in caring for the children as he was in the past.

[250] Both the father and his partner are working full-time. The father has the support of the paternal grandparents who take HB to school and while HB is in school the paternal grandmother takes NB to an early childhood centre. The paternal grandmother is also teaching the children Portuguese and the children are taken to community events. The father picks up the children after work. The children have a set routine including, dinner times, bath and bedtimes. The father works for a few hours in Saturday morning, Ms SM attends to the morning routine and then they pick up the father and spend the rest of the week-end as a family.

[251] The father and Ms SM were observed to have a positive parenting strategy with the children.

[252] It is the father's plan that HB continue to attend her current school that is close to his home and that NB also attend that school.

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

[253] The mother has been in a relationship with RB since 2016 but there are some concerns about the stability of that relationship. There is evidence of some short separations and possible domestic violence.

[254] The mother's life appeared to be somewhat unstable. Her explanations of her injuries on one occasion as being accidental and another as a victim of a robbery were suspect. Her failure to report the robbery to the police also raises concerns about her judgment.

[255] The father and his partner have recently married and their relationship is stable.

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

[256] The mother is a loving and committed parent.

[257] However, the mother has acted impulsively and shown a lack of judgement on several occasions and as a result involved the children in the parents' conflict and exposed them to both physical and emotional harm.

[258] In April 2016, she assaulted the father in the presence of the children. She described the incident to Ms Tracz as follows:

....[mother]admits to the incident and states that she was so angered and frustrated that D.[the father] might have been taking some of her stuff that she just lost it. It was almost as if all of her pent-up anger and frustration from the almost as if all of her pent-up rage had just bubbled to the surface and exploded in to a rage .

[259] The mother exhibited this same emotional impulsivity then she withheld the children from the father in January 2017 despite a shared status quo parenting arrangement. Her actions then involved the Catholic Children's Aid Society of Toronto being involved and the children interviewed due to her exaggerated and unfounded allegations about the father's neglect of the children.

[260] She demonstrated this same emotional impulsivity and lack of judgement in exposed the children to adult issues when she argued with the father in front of HB about Ms SM doing their daughter's hair or about the child tax benefit. She showed the same impulsivity and lack of judgement in assaulting the father in the presence of the children.

[261] The mother showed bad judgment in moving into a 1 bedroom apartment where with no beds for the children. She showed further bad judgement to a rental townhouse that was a 40 minute trip, one way, from HB's school.

[262] She showed a lack of judgment in how she handled the issue of changing HB's school. She never corrected HB's impression that her father was responsible for her needing to return to her old school. In fact, she did the opposite by audiotaping HB saying that she wanted to go to the new school. This staged type of recording would clearly indicate to the child that she is expressing a view contrary to the wishes of one of her parents. The mother never explained to HB that she was responsible. The mother never explained to HB that even if she was allowed to change schools she would no longer be on the school bus which appeared to be the primary reason HB wanted to change school. The mother left HB with the impression that it was her choice with respect to where she lived and what school she went to.

[263] She shows bad judgment in continually made negative comments about the father in the presence of the children and devalued his role as a parent. She admitted in cross-examination, that she told HB that she does not to like the father because he is rude to her. She told HB that the father does not provide her with financial assistance.

[264] She never corrected the children when she alleges they referred to the father as their "blood Daddy" and told them that he was their dad.

[265] The mother did not appreciate the harm she was inflicting on HB by involving her in these discussions and testified quite proudly that these are "our issues" and she does not lie to her children. Even after the Catholic Children's Aid Society of Toronto became involved because of the emotional harm that was being inflicted on the children because of their exposure to the conflict between their parents, the mother has continued and escalated that conflict.

[266] I find that, contrary to the opinion of Ms Tracz that the mother, is not attuned to the emotional needs of her children and in particular to the needs of HB. It appears from the most recent allegation of the mother regarding her son and Ms SM's son that the mother is now drawing NB into the conflict and trying to coach him to make false statements in the same way she has coached and manipulated HB to align herself with the mother.

[267] The father is also a loving and committed parent.

[268] I find that the father although not perfect, is aware of the need to deescalate the conflict and obtain supportive counselling for HB so that she is able to better cope with the conflict between her parents and cope with living in two different households.

[269] The father values the mother's role in the children's lives and despite his concerns about the mother's judgment, concerns about her parenting and concerns about her devaluing his role as a parent, he believes it is in the children's best interests to spend equal time in both households. He wishes a schedule that will involve fewer transitions for the children and eventually a week about schedule.

[270] The father proposed the following schedule with all exchanges taking place at the school once NB commences school:

Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week 1	F	F	M	M	F	F
Week 2	F	F	M	M	M	M

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

[271] This is a neutral factor.

9.3 Parenting Order

[272] For the reasons outlined above, I find that a joint custody order with or without parallel decision making is simply not workable and not in the best interests of the children. One of the parents needs to be able to make decisions for the children.

[273] I find that the father is the parent best able to make well-thought out and reasoned decisions that are in the best interests of the children.

[274] The parents were both involved in the care of the children prior to separation and since separation both have continued to be involved in a shared parenting arrangement.

[275] The father has proven himself to be a stable parent and shown to be able to make rational and well-thought out decisions about the children. He is the parent who acknowledges the challenges he has in caring for the children and the parent who is willing to seek support from professionals such as Families in Transition to assist him in the difficult job of parenting in this high conflict situation.

[276] I find that the father will not misuse his authority to make decisions about the children. He has shown that he wishes to have a less stressful and conflictual relationship with the mother. I find that he will be willing and able to consult in a respectful manner with the mother and consider her views before making any major decisions.

[277] The mother has proven to be an immature, emotionally impulsive parent who acts more like a friend to the children rather than a parent. The mother is not open and honest about her parenting struggles and at times simply lets the children do what they want as the easy way out of handling difficult parenting issues. She is not willing to accept the assistance of professionals. Instead of improving her parenting techniques she spends her time and energy in undermining the father's parenting and making false allegations against the father and his wife Ms SM and most recently Ms SM's son.

[278] If not for the father's position that there be an equal parenting schedule, I would have seriously considered reducing the mother's time with the children until she obtains counselling to deal with her own anger and impulsivity issues and until she learns better ways to communicate and co-operate with the father.

[279] But if the mother continues her present course of conduct and continues to discuss adult issues with the children, continues to pressure the children to become aligned with her or blames the father for the order that will be made, then there will be no option but to curtail her contact with the children. I have serious concerns that the mother will continue to attempt to interfere with the father's relationship with the children and attempt to alienate the children from the father.

[280] The father's suggested parenting arrangement has the advantage of fewer transitions and less contact at exchanges between the parents and their partners that should reduce the conflict that the children have been exposed to. I intend to make the order he has requested and for a future week about schedule.

10. Choice of School

[281] Although the issue of which school the children should attend could be considered to be moot in view of my decision that the father be granted sole custody, it is necessary to address this issue briefly given the prominence the choice of school has had in this case.

[282] A choice of school is one of the most important decisions a parent must make. The choice should be based not on proximity or EQAO scores but on which school best meets the individual needs of the particular child before the court.

[283] The court in K.L.H. v. T.W.H, the court commented about the use of a similar ranking system as follows:

I am not persuaded that a straight ranking system, as tendered by the Fraser Institute, is a reliable indicator of what is in these children's best interests... Obviously rankings will fluctuate year by year. I accept that there are many factors, as suggested by Dr. Toohey, that define a "good" school. These children ought not to be shifted about simply because their particular school dropped in ratings based solely upon test results. So long as the Ministry of education can demonstrate that a school meets or exceeds standards set by that Ministry (as here) the fact that some other school might score higher, is not in my view a basis for changing schools in the facts of this case .

[284] In the case of Thomas v. Osika Justice Audet outlined a number of general principles emerging from the case law that a court should consider in making decisions about a choice of schools as follows:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567);

b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679);

c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567);

d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz);

e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811);

f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746);

g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746);

h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746);

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479);

j. Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479);

k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811);

l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431);

m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

[285] In this case, the mother and Ms Tracz appeared to rely on the proximity of the school proposed by the mother and the EQAO scores. Although I do not rely on the EQAO scores, the scores between the two schools do not vary appreciably except the mother's school scored slightly higher with respect to reading scores.

[286] However, the school HB is attending is only school she has ever attended. It provides stability and continuity for her. The school principal, her teachers and the school social worker are aware of her particular circumstances and have put in place strategies to deal with her behaviour, if it becomes problematic. Based on the information received by Ms Tracz HB's behavoiur at school has improved and HB's recent report card does not reveal any particular behavioural problems.

[287] Neither parent raised any specific issues with the education HB is receiving or that her needs are not being met at the school.

[288] The father has a good relationship with the school. The mother until recently also had a good relationship with the school she will have to work on repairing that relationship.

[289] If the distance is a problem for the mother there is no reason that the mother and her partner could not move closer to the school. They are both not working and have no particular ties to the neighbourhood where they now reside.

11. Child Support and Imputation of Income

11.1 Legal Principles and Positions of the Parties

[290] As the children will be living in a shared parenting arrangement, section 9 of the Child Support Guidelines applies. Neither counsel provides any budget or expenses for the children and submitted that there should simply be a set off of the applicable table amounts for each parent.

[291] It is the father's position that the parties not pay any child support to the other on the basis and that income be imputed to the mother. It is submitted that the mother has the ability to earn income in the range of $45,000 that is, the range of the father's income.

[292] It is the mother's position that the mother is not working and on social assistance and if income is to be imputed to her it be no more than minimum wage. In that case, the father would pay child support to the mother on a set off basis.

[293] Section 19(1) (a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed.

[294] Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment.

[295] When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.

11.2 Court Orders Regarding Disclosure and Incomes of the Parties

[296] In the temporary order of August 30, 2017 the mother acknowledged that the incomes of the parties, actual or imputed were similar and that no child support should be payable. The mother did not offer any evidence as to why she agreed to this order.

[297] The parents also agreed to equally share all section 7 expenses of the children.

[298] At the settlement conference on October 26, 2018, the mother was ordered to provide an updated financial statement, a current resume, copies of all bank accounts from the date of separation, a statement with respect to her current employment situation, and a breakdown of all attempts to find employment since separation including copies of all job applications and a list of all interviews she attended.

[299] Based on the Notices of Assessments filed the mother's income is as follows:

• 2013: $32,419
• 2014: $41,147
• 2015: $37,340
• 2016: No proof filed
• 2017: $20,214

[300] Based on the mother's financial statement her current income is 2018 is $21,588. She is in receipt of social assistance and half of the child tax benefit.

[301] Based on the Notices of Assessment filed the father's income is as follows:

• 2015: $42,611
• 2016: $42,710
• 2017: $42,611

[302] Based on the father's financial statement his income for 2018 is $42,200. His base salary is $37,000.

11.3 Evidence and Findings of Fact Regarding the Mother's Education and Employment

[303] The mother filed a resume that outlines that she worked in the mailroom of a law office from December 2009 to December 2011 and she worked in the mailroom and as a reception relief for another law office from January 2012 to May 2016. She describes herself as having strong interpersonal, organizational, research, written and verbal communication skills. Her computer skills include Microsoft Word and Excel, general typing and experience with legal software such as Primafact and PC law.

[304] The mother was shown her Linkedin profile that indicates that she was an administrative assistant with a legal firm and that she had obtained a legal assistant/law clerk/litigation law/medical mal-practice certificate from George Brown College in 2013-2016. She denied that this was true and testified that someone in the law firm of her former employer fabricated her educational background. I find that it is not logical or credible that a law firm employee would falsify her social media profile.

[305] In the mother's 2013 tax return summary she claimed $863 for a tuition and text book credit which coincides with the dates on her Linkedin profile that she attended George Brown College.

[306] While at times testifying that she had limited experience at other times she boasted that even working part-time she earned more than the father.

[307] The mother provided various reasons for losing her job in July 2016. She told Ms Tracz that she was fired because of the criminal charges against her but she testified that there was a shortage of work. Then in re-examination, the mother testified that she was not given a reason for being let go. She also did not explain how criminal charges that arose in April 2016 was connected to her being fired in July 2016 especially when those charges were withdrawn and she does not have a criminal record. The mother provided no Record of Employment.

[308] The mother only produced bank account statements from November 1, 2017 to October 31, 2018. When questioned about her failure to produce all of her statements from the date of separation as ordered by the court, she testified that did not have a bank account from the date of separation. This is not credible as the mother worked full-time for a law firm until July 2016. Further the bank account statements she produced for November 1, 2017 indicates that prior to November 1, 2017 she had a credit balance in her account, so her evidence once again was not truthful. I draw a negative inference from the mother's failure to provide all of her bank records as the statements may have provided evidence as to her actual income.

[309] The bank accounts that the mother attached to her financial statement sworn February 11, 2019 showed deposits aside from her Ontario Works benefits, child tax benefits or any other government sources and then numerous cash withdrawals. The mother testified that the bank account belongs solely to her and offered no explanation of the source of these other deposits or cash withdrawals.

[310] The mother and RB gave conflicting evidence regarding the Ontario Works benefits they receive. The mother testified that she receives Ontario Works of $1,538 per month, $1,182 is for her and the children and $400 for RB. However, RB testified that he only receives $147 per month for transportation costs.

[311] The mother told Ms Tracz that she supported the household in part from the rental income she received from her father. The mother did not declare such rental income on her financial statement or on her tax return.

[312] When the mother was cross-examined on this issue, she had a great deal of difficulty explaining how her father assisted her. First, she said he paid her rent and then she said he paid the rent directly to the landlord. Eventually, she testified that since they rent the entire house it is a benefit to her as the rent is cheaper. No lease was produced.

[313] The mother did not provide any clear evidence as to how RB and her father assist her financially.

[314] The mother was also cross-examined about evidence that suggested she was working or attempting to find employment.

[315] On November 11, 2016 the mother sent a text to the father stating she had a "gig", needed money for Christmas and did not want to burn any bridges because she wanted to… "be able to get a shift from them at some point the future even if it was 2 months from now". The mother testified that she was referring to a Salvation Army Christmas program in which volunteers receive food vouchers for working shifts. When it was pointed out that two months away would have been mid-January and after Christmas, she replied that it would be around HB's birthday. She did not respond regarding the fact that the Christmas program would have been over by that date.

[316] On November 20, 2016 the mother sent the father a text saying she would be late picking up the children because she was waiting for a job interview as a receptionist and there were two applicants in front of her and that she had already been waiting for several hours.

[317] In July 26, 2017 the parties were texting about arranging a parenting schedule. The mother stated that she could not budge about changing the week-ends when the father asked what she was talking about, she said that she was working 16 hours a day every other week-end starting that week-end "so it is a start".

[318] When confronted with these texts about needing to work and not changing schedules or being late picking up the children, she testified that she lied to the father as it was none of his business where she was or what she was doing. But she does not explain why she would have made up such specific and detailed lies.

[319] I find the mother's evidence not credible. Although it is possible the mother was lying to father about her whereabouts despite the details and specifics she provides or she could have been working or looking for work. Either way the mother is simply not believable.

[320] The mother also offered several explanations as to why she was not working that I also find are not reasonable or credible. Those explanations are as follows:

a) The mother claimed that she cannot be employed because she did not complete high school and would only be able to obtain minimum wage jobs. However, she worked for almost 10 years in law offices earning more than minimum wage;

b) The mother claimed that the cost of daycare would outweigh the benefits of any position she might obtain. However, HB is in school full-time and NB will be starting school in September 2019. The children are only in the care of the mother half-time. The children have never required daycare as they have been cared for by either the paternal grandparents or the maternal grandfather. The mother also has the assistance of RB who is not working or looking for employment and she testified that she trusts him to care for the children. Further, the parties agreed to equally share the cost of any section 7 expenses that would include the cost of daycare;

c) The mother testified that she needs to care for her elderly father who suffers from back and feet conditions. But the mother testified that the paternal grandfather is capable of doing the 80 minute commute to take and pick up HB from school and that the children are safe in his care. RB testified that the paternal grandfather cares for himself and lives in his own separate unit in their home. The mother also testified that the paternal grandfather plays an active role in the children's lives. The paternal grandfather did not file an affidavit or testify in this trial. I draw an adverse inference from the failure of the paternal grandfather to corroborate the mother's evidence on this issue; and

d) The mother claimed that she cannot work because of the children's medical issues. Specifically she stated that:

…..[HB] has a severe dust allergy which attacks her respiratory system and requires medication daily and requires dust free environments, which poses a challenge to the daycare option, as well as requiring a lot of time spent as per directed by her allergist to change all bedding vacuum dust every second day. My son has a heart condition and has appointments and follow-up care for same.

However, Ms Tracz's report states that the paediatrician confirmed that there were no health concerns about either child. The CCCAS records indicate that the mother made these same allegations to the society and when investigated, the paediatrican confirmed that they were untrue. I find that the mother misrepresented the medical conditions and health needs of the children in order to bolster her claim that she was unable to work.

[321] Despite giving these various explanations as to why she could not work, the mother agreed that she has not made any attempts to find employment as she considered receiving employment insurance as of July 2016 as a windfall that allowed her to spend time with the children. The mother testified that she resented the fact that she had to return to work shortly after the birth of each child and has decided to "make up for it" since losing her job in July 2016.

11.4 Should Income be Imputed to the Mother

[322] I find that income should be imputed to the mother.

[323] I find that the mother has misrepresented her education, skills and employment experience.

[324] I find that based on her resume and her Linkedin profile that she has the education and employment history to obtain a job as an administrative assistant in either a law office, a medical office or any other office.

[325] I find that the mother in all likelihood has had some sporadic employment income that is not being reported.

[326] I find that the mother has chosen not to work full-time. I place no significance on the fact that the mother has been able to obtain Ontario Works as it is clear that she is not looking for employment and there is no valid reason for her inability to work.

[327] The mother has no childcare responsibilities that prevent her from obtaining a full-time job. As of September 2019, both children will be in school full-time. Even now, she has the assistance of RB who is not working, the paternal grandfather who resides in the home and she only has the children in her care half-time.

[328] Based on her skills and experience I find that the mother has the ability to earn as much as the father. The last year the mother worked a full year was 2014 when she earned $41,147 in the following years she was either on maternity leave, in receipt of employment insurance or recently in receipt of social assistance.

[329] I find that the mother was able to earn $41,147 almost 5 years ago and with the increase in wages over the last several years, the mother should be able to earn in the range of $45,000.00. I find that on that basis there should be no child support payable by either parent to the other.

[330] The parties have agreed that the children's extra-curricular expenses be spilt equally.

12. Order

[331] There will an order as follows:

Custody

1. The Respondent father, DB, shall have sole custody of the children namely, HB born […], 2011 and NB born […], 2015.

Decision-making

2. The parties shall share important information regarding the health, education, religious instruction, extra-curricular activities, special events, social environment and general welfare of the children.

3. In the event of a non-emergency, major decision pertaining to health, education, religion, extra-curricular activities, special events, social environment or welfare of either child, the parties will discuss the issue and each will have an opportunity to provide input.

4. If the parties cannot agree, they will seek input from a third party professional involved with the child in the area of the disagreement, if any such professional exists. For example, they will seek the advice of the children's paediatrician for a medical issue and their teacher for an educational issue. The parties will then discuss the issue again, with the benefit of the professional advice.

5. After considering the Applicant mother's views and the advice of any relevant professional, the Respondent father will make the decision that he believes to reflect the best interests of the child in question and that decision will be implemented.

6. For clarity, the Respondent father shall be entitled to enroll either child in any counselling or therapy that he considers to be in their best interests. If the counsellor or therapist, despite the Respondent father having sole custody, still requires the Applicant's mother's consent she shall provide her written consent within 7 days of any such request.

Parenting Schedule

7. The parties shall have a shared parenting schedule for the children as follows:

a) Commencing Monday May 6, 2019 until August 31, 2021, on the following two-week schedule, with exchanges to occur at school as of September 2019:

(i) For the Respondent father from Monday pick-up after school until Wednesday drop-off before school;

(ii) For the Applicant mother from Wednesday pick-up after school until Friday morning drop-off before school;

(iii) For the Respondent father from Friday pick-up after school until Wednesday (of week 2) drop-off before school;

(iv) For the Applicant mother from Wednesday (of week 2) pick-up after school until Monday morning (of week 1) drop-off before school.

b) From September 1, 2021 onward:

(i) On a week-about basis, such that the children are with one parent from Friday after school to the following Friday after school and then with the other parent from that Friday after school to the following Friday after school, with exchanges to occur at school. In the event that there is no school and until NB commences school, the parent whose residential time is commencing shall be responsible for the picking up the children. All pick-ups and drop-offs shall occur between the parents or the grandparents.

Communication

8. The parties shall not disparage each other in the presence of either child, nor shall they knowingly expose either child to a risk of him or her hearing any negative comments about his or her other parent, either from his or her parent or third parties.

9. Neither party shall discuss with the children or with another party in the presence of the children, present, past or future legal proceedings or issues between the parties related to court proceedings or regarding any conflict between the parties relating to any parenting issues.

10. The parties will keep each other informed of any medical, dental or other health concern or issue that arises with either child during the time that the children are in his or her care. During the time that the children are with one parent, should either child be unwell or suffer an injury, the parent with whom that child is residing shall notify the other parent as soon as possible of such illness or injury.

11. The parties shall communicate with each other either through email or by using Our Family Wizard or any other similar application. The emails shall not be read by the children. Each party shall respond promptly by return email. All emails between the parties regarding the children shall not be deleted or forwarded to third parties without the other parents' consent. Emails shall be brief, respectful and related only to the children. Absent an emergency, the parties shall not email each other more than once a week.

12. The parties shall share all documents pertaining to the children by scanning the document and then sending it to the other parent by email. The parents shall not rely on the children to transport documents.

13. Both parents may attend school-related functions for either child, regardless of whether the children are residing with that parent at the time of such events.

14. Neither parent shall administer medication to either child during the other parent's parenting time, without the express knowledge and consent of the parent with whom the children are residing at the time.

School

15. The child, HB born […], 2011, shall continue to attend […] School.

16. The child, NB born […], 2015, shall be enrolled at […] School for the 2019-2020 academic year forthwith. The Respondent father will be responsible for enrolling the child for the 2019-2020 academic year. The Applicant mother shall comply with any steps necessary in order to effect the child's enrollment, including providing any documents or records necessary and, if required, providing her consent to the child's enrollment.

Child Support

17. In accordance with the parties' consent, the parties shall each pay 50% of the children's reasonable section 7 expenses to be agreed upon in advance and in writing. If a parent does not seek a contribution of the other party, then that party can enrol the children in any activity they wish as long as it occurs only while the child is in their care.

18. For child support purposes, the Applicant mother, NP, shall be imputed with an income for child support purposes of $45,000 per annum.

19. There shall be no child support payable between the parties, in accordance with the shared parenting schedule, the Respondent father's 2018 income of $45,489, the Applicant mother's imputed income of $45,000 per annum and set-off of each party's respective Child Support Advisory Guidelines' table amount for two children.

[332] As the successful party, the Respondent is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Respondent shall submit written costs submissions not to exceed 5 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Applicant shall submit her written response not to exceed 5 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Applicant's costs submissions. All submissions to be filed with the trial co-ordinator. If counsel are referring to any case law, copies of the cases do not need to be submitted.

Released: May 3, 2019

Signed: Justice Roselyn Zisman