ONTARIO COURT OF JUSTICE

DATE: September 18, 2020

COURT FILE NO.: Toronto DFO-17-15534-01

BETWEEN:

L.D. Applicant Mother

— AND —

A.E. Respondent Father

Before: Justice Alex Finlayson

Heard on: July 13, 2020 and August 10, 14 and 21, 2020

Reasons for Decision released on: September 18, 2020

Counsel:

• Nicolas Cartel, for the applicant mother
• Irina Davis, for the respondent father

ALEX FINLAYSON J.:

PART I: OVERVIEW

[1] In March 2020, the Applicant mother unilaterally suspended the Respondent father's in-person access visits with the parties' 4 year-old daughter, based on various allegations that the father, and/or his partner, have been physically and emotionally abusing the child during those visits. The principal issue addressed in this decision is whether that access, determined by way of a trial in December 2017, ought to be varied by the Court on a temporary basis pending the hearing of both parties' Motions to Change. For the reasons that follow, I conclude that the father's access should be re-instated. At this point, I would make only minor modifications to the father's access on a without prejudice basis, by adding some additional terms.

PART II: THE PRIOR PROCEEDINGS

[2] On December 13 and 19, 2017, I presided over a two-day custody and access trial respecting this family. The trial concerned the parties' daughter, A. E-D., who was then two years old (as of the date of this decision, she is now about 4 years and 9 months old).

[3] At the time of the trial, the father was in the new relationship with T.S. T.S. had a 10 year old daughter from a prior relationship (she is now 13). About three months prior to trial, the father moved in with T.S., her daughter and certain other members of T.S.' family, in their home Newmarket. The father is still in that relationship, and he continues to reside with T.S. and her family.

[4] The mother works as a law clerk in the office of her counsel. At the time of the trial, she had not re-partnered. As far as I am aware, that is still the case. The maternal grandmother has been staying with the mother and the child in Toronto, since about March 2020.

[5] Both parents, T.S. and other witnesses testified at the trial. T.S. described the child as a "sweet caring girl". She testified that she loves A. E-D., as if she were her own daughter.

[6] In the trial Judgment dated January 22, 2018, the Court found that there had been much conflict between the parents, such that they were unable to make joint decisions about A. E-D. The Court granted the mother sole custody of A. E-D., and it made various orders concerning incidents of custody and access. The Court also found that the mother was being overly restrictive about the father's access. The Court found that T.S. appeared to be a positive influence during visits that the father had been having prior to the trial. The Court determined it was in A. E-D.'s best interests to increase the time she would spend with her father, including to permit that access to occur in the father's new home with T.S. The Court ordered that the father's access to A. E-D. would gradually increase, culminating in alternating weekends, from Fridays to Monday mornings, plus a weekly evening visit.

[7] Because the parents did not make submissions about a holiday schedule, travel, nor about more specific logistics as to how the mid-week visits would work, I directed the parties to re-attend before me on March 16, 2018 to make additional submissions. When the parties re-attended, they did not require any additional terms respecting the father's mid-week visits, and that issue resolved on consent. I did hear additional submissions about the holiday schedule and travel, and the Court then made an additional order to address those issues.

[8] In the main trial Judgment dated January 22, 2018, the Court found that the mother was hurt and angry towards the father regarding their relationship, that she was highly critical of the father's parenting of A. E-D. post-separation, and that she exhibited a strong dislike towards the father's new partner. Unbeknownst to the Court at the time, in the month that the trial commenced, the maternal grandmother hired a private investigator, to track and observe the father and T.S. This continued for approximately two years after the trial. The mother says that the grandmother hired this private investigator on her own accord, with the mother only becoming aware of this in the summer of 2018. The father disbelieves that the mother knew nothing about this from the outset, as the mother maintains.

[9] On March 13, 2020, the mother sent the father a message via the online communication tool that they use, suspending the father's in-person access altogether. She told the father that her lawyer would be contacting him about what would be happening next.

[10] Then, by letter from mother's counsel to the father, also dated March 13, 2020, the mother's counsel told the father that the child had been recorded, saying that she did not want to stay with the father and T.S. The letter also alleges that the child stated that T.S. had been telling her to make false claims, and to "perform acts that place [the child] in danger".

[11] More particularly, the letter alleges, based on child's statements to the mother:

(a) that T.S. told the child to say that the mother is evil;

(b) that T.S. forced the child to say that she loves the mother against her will;

(c) that T.S. told the child she is not allowed to love the mother, nor to confide in her, and that her mother is not actually her mother;

(d) that T.S. told the child to leave the mother's house at night, to stand at a near by cross-walk, then to stop a passerby and to say that she wished to go to her father's house;

(e) that T.S. told the child to run away from the mother's home;

(f) that T.S. told the child to tell teachers that the mother yells at her and hits her;

(g) that T.S. struck the child in the face as a form of discipline; and

(h) that T.S. forced the child to ingest melatonin.

[12] Mother's counsel advised the father that a police report had been made, and that the mother had contacted the "appropriate child services agency". Counsel said that the mother would be filing a motion to limit the father's access, and to prohibit T.S. from having any contact with A. E-D.

[13] To be clear, based on both my review of the material before the Court and the oral argument, the mother does not allege that the father has physically abused the child. Rather, the mother alleges that the child has been abused by T.S., with the father's "knowledge and permissiveness of this abuse". The mother does allege that both the father and T.S. have inflicted emotional abuse upon the child by way of parental alienation, or by way of alienating behaviours.

[14] After March 13, 2020, the father says he was not allowed to have the child for March break, nor was he allowed to take the child during his regular weekends either. It is not disputed that restrictions on his access imposed by the mother have now been in place for the last 6 months.

[15] The father communicated with Mr. Cartel by email, in an attempt to resume some contact with A. E-D. The father says that he tried to implement a schedule of calls with A. E-D., but the mother was not responsive in setting up a schedule for the calls, at least initially. However, the mother did allow phone calls between him and A. E-D., although they did not always occur, and those which did occur were not without incident.

[16] For example, the father says that during one call on March 30, 2020, the child told him that she did not miss him, "or [anyone] on his side of the family". He also says that the child looked to the mother to see if her responses were acceptable, when the child made this statement. The father says that during another call on May 1, 2020, the mother abruptly terminated the call, taking the position that the child did not want to speak to him. The mother admits this happened, but says the father was aggressively questioning the child. And on another occasion, the mother disallowed a different call because T.S. appeared on it.

[17] The father also made requests, via mother's counsel, to resume in-person access. For example, leading up to the Easter weekend in 2020, the father sent an email to Mr. Cartel to ask for a visit with the child. Mr. Cartel responded on April 1, 2020, writing that there would be "no physical access" and that he would "not entertain any more discussion on the point". Mr. Cartel once again said the matter would be addressed in court, in due course. Yet no proceeding was launched for a further three months. The next day, Mr. Cartel sent the father an email accusing T.S. of calling his firm multiple times.

[18] By early May, 2020, the father retained counsel. On May 8, 2020, the father's lawyer wrote to mother's counsel advising that unless the father's access was re-instated immediately, along with make-up access, the father would bring an urgent motion. Mother's counsel responded, saying that the mother "fully realizes that she is in breach of a court order but the alternative is to be put her child into a situation which may lead to her injury or worse; this cannot be tolerated."

[19] In that same written exchange, the mother offered to allow the father to resume in-person access visits to the child, but only if the visits occurred in her backyard. And in this exchange, mother's counsel for the third time said a motion record would be forthcoming. Yet once again, no motion was brought. Instead, it was the father, who on June 30, 2020 filed a 14B Motion dated June 24, 2020, seeking leave for an urgent motion date to ask that his access be re-instated, and to ask for make up access.

[20] As of May 26, 2020, the father began having visits with the child in the mother's backyard. However, in his affidavit of July 31, 2020, the father deposes that the mother cancelled a number of the backyard visits, particularly after she received his motion materials to re-instate his access.

[21] The mother has recorded some of the backyard visits. But it was not only the backyard visits that have been recorded. Various other interactions with the child have been extensively recorded, as has one telephone call between the mother and the child's teacher at school. The mother is responsible for the majority of the recordings, although the father has also engaged in recording the child.

[22] Upon receipt of the father's 14B Motion, I scheduled an appearance by teleconference on July 13, 2020, for this matter to be spoken to. On that date, I granted the parents leave to commence Motions to Change, and to bring interim motions within them. I made a scheduling order for the exchange of the motions, and affidavit materials. The schedule that I imposed would have allowed for the motions to be heard on August 14, 2020.

[23] Mother's counsel advised the Court that at the motions, the mother would seek to tender an "expert report" of the child's play therapist. I was told that the therapist would opine that the child was being emotionally and physically abused in the father's home. However, the report was not filed by the July 13, 2020 teleconference, so I directed the parties to re-attend before me for another call on August 10, 2020, in advance of argument, to ensure that the motions would be ready to proceed.

[24] The material the parties subsequently placed before the Court between July 13, 2020 and the subsequent court dates is voluminous. The record before the Court on these motions now consists of each party's Notices of Motion, affidavits, affidavits from collateral witnesses, and dozens of exhibits. It is the mother who has filed most of the exhibits. They include hours of audio recordings, numerous photographs of the child depicting cuts and bruises, a report of the private investigator that the grandmother had retained, and the therapist's report. The parties each filed facta and a number of authorities on various legal issues.

[25] On August 10, 2020, both sides advised the Court that they would be raising a number of evidentiary issues, and not just about the therapist's report. The evidentiary issues later argued, concerned the admissibility of the report, whether the therapist would be called to give viva voce evidence on the motion, the admissibility of the private investigator's report, the admissibility of various audio recordings, and other arguments about the affidavit material. Regarding the therapist, mother initially submitted that the therapist was a "litigation expert", and that a voir dire with viva voce evidence would be necessary for the Court to receive her evidence. Concerned that there would be insufficient time to address all this, I directed that the evidentiary issues would be argued first on August 14, 2020, with the main motions now to follow on August 21, 2020 instead.

[26] On August 14, 2020, both sides advised the Court that they were content to have the therapist's report admitted into evidence, irrespective of whether there would be viva voce evidence. However, both sides also wished to have the therapist testify at the motion, albeit for different reasons. The mother moved to strike certain portions of the father's affidavit material. The father challenged the admissibility of the mother's audio recordings, an affidavit of Mr. Cartel's employee, and the private investigator's report.

[27] For brief oral and written reasons, I directed that the therapist's report, the audio recordings and the employee's affidavit would remain in the record, subject to arguments at the main motions about the use to which this evidence may be put, and about weight. I dismissed the requests for viva voce evidence. I struck certain excerpts in the father's affidavit material. On consent, I struck the private investigator's report from the mother's material.

[28] I was told that the Children's Aid Society of Toronto had been involved with this family. I made a consent order for production of its notes and records. Counsel subsequently obtained and filed close to 200 pages of notes and records from the Children's Aid Society. Counsel for the father also excerpted certain pages of the CAS file, which he says are particularly relevant. And counsel obtained and filed the therapist's notes and records with the Court for use on the motions.

[29] In his Motion to Change, the father seeks a number of minor adjustments to the Final Orders of January 22 and March 16, 2018. He also asks the Court to appoint the Children's Lawyer to investigate and report to the Court under section 112 of the Courts of Justice Act. But mostly he wants the trial Judgment enforced. He seeks make-up access, an order for police enforcement, and an order preventing the mother from moving the child's residence outside of Ontario. He seeks the non-removal order because it has been revealed that the mother is claiming an order permitting her to move with the child to British Columbia. In addition, the father seeks an order preventing the mother from further changing the child's residence and day care, without his consent, irrespective of her request to move to British Columbia, based on her pattern of moving and changing day cares within the GTA.

[30] In his motion for temporary relief, the father merely asks that my Orders of January 22 and March 16, 2018 be followed, and he asks for a temporary order for make-up access. Although not specifically claimed in his Notice of Motion of June 24, 2020, the father's counsel orally asked for a temporary order for police enforcement too, for an Order that T.S. is permitted to pick the child up at day care in place of the father, and for an order prohibiting any further audio or video recording of the child, going forward.

[31] The mother's request to relocate to British Columbia is not before the Court on these motions. She does not seek to relocate on an interim basis; her relocation claim forms part of her Response to Motion to Change. However, the father nevertheless says that the mother's desire to move is relevant to the issues raised now, arguing that the abuse allegations are manufactured to bolster her claim to move with the child. The father also argues that the mother is motivated by her "hatred" of T.S.

[32] The mother's own position about the move does appear to be heavily related to the abuse allegations, at this stage of the case. For example, the mother says she wants to move "to protect A. E-D. from the physical and emotional abuse that she is suffering while in [the father's] care". The move will allow her to remove A. E-D. from the "tense and abusive environment that she is currently being exposed to while in [the father's] care". And while somewhat separately, she says she "would like to move back to British Columbia to have the financial and emotional support of [her] family, to have the opportunity to continue [her] education", she also says, "most importantly to remove A. E-D. from the abusive and confusing situation she is experiencing".

[33] Post-move, the mother's plan is that the father would not have any "in-person visitation with [the child], but may instead spend time with [the child] via teleconferencing services, if the court deems it appropriate".

[34] In her Notice of Motion for temporary relief dated July 24, 2020, the mother also seeks an order to "prohibit all in-person access and visitation [between the father and the child] until A. E-D. [who again is not yet even 5 years old] reaches an age which the court deems appropriate, such that she is able to make her own decisions". During submissions, the mother changed her position, submitting that she would be content that the father have access via telephone or video conference at this time. In the further alternative, the mother says that the father may have supervised access at Access for Parents and Children in Ontario, but not in the father's home with T.S. in Newmarket.

[35] The mother seeks a restraining order against T.S. However, T.S. was not served with the mother's motion. Mother's counsel's initial submission respecting service was that T.S. has seen the material, since she filed an affidavit along with the father's affidavits. Therefore, the Court may deal with the request for the restraining order. In the alternative, if the Court is not prepared to grant a restraining order at this time, then the mother may revive the restraining order motion at a later time, on proper notice to T.S., especially if the Court makes a finding that T.S. has engaged in abusive behaviour.

[36] Finally, the mother opposes the father's oral motion for police enforcement based on a lack of notice. Given that she is effectively asking for orders that would result in no contact between T.S. and the child, she is obviously opposing the father's oral motion that T.S. be permitted to pick the child up at day care in his stead. And while the mother was prepared to agree that some future recordings would be prohibited, such as recordings of the father or third parties, the mother's position is that she should be allowed to continue to tape conversations between herself and the child.

PART III: THE TEST TO VARY A FINAL CUSTODY OR ACCESS ORDER ON AN INTERIM BASIS

[37] Pursuant to section 21 of the Children's Law Reform Act, a parent may apply for an order respecting custody of or access to the child, or determining any aspect of the incidents of custody of the child. However, section 29 states that where there is already an order from an Ontario court in place, a court shall not make an order varying a custody or access order unless there has been "a material change in circumstances that affects or is likely to affect the best interests of the child."

[38] Various, well-established principles govern a material change analysis. See Gordon v. Goertz; see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60. Regarding the material change threshold:

(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;

(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;

(c) the focus is on the prior order and the circumstances in which it was made; and

(d) the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.

[39] And if the Court finds that a material change has occurred:

(e) the Court should consider the matter afresh without defaulting to the existing arrangement;

(f) the Court must consider all factors relevant to the children's best interests in light of the new circumstances;

(g) the Court must be guided by the statutory criteria set out in section 24(2) of the Children's Law Reform Act. The Court will consider the applicable statutory factors, in light of the evidence before it;

(h) in this case given the nature of the allegations, the Court must also consider the evidence in light of sections 24(3) and (4) of the Children's Law Reform Act;

(h) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and

(g) the Court should limit itself to whatever variation is justified by the material change in circumstance.

[40] Additional considerations apply when the Court is asked to vary a final custody or access order on an interim basis. While the Court should not shy away from making a new order where the best interests of the child require a change based on a material change in circumstances, it is also true that the governing order should generally be maintained pending the final disposition of the case absent compelling circumstances. See Webster v. Suteu, 2016 ONCJ 39 ¶ 76.

[41] Compelling circumstances might include a situation of "actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child's best interests". The status quo, "… will have a strong gravitational pull", but not if "the child is in peril". See F.K. v. A.K., 2020 ONSC 3726 ¶ 52. Even when compelling circumstances present, the magnitude of the Court's intervention should still be related and proportional to the evidence of the changed circumstances.

[42] In order to properly embark upon the necessary material change and best interests' analyses at this stage of the case, I will first set out in some detail what the evidence actually is, and I will explain how the Court is treating and weighing that evidence.

PART IV: THE EVIDENCE AND EVIDENTIARY ISSUES

A. The Audio Recordings

[43] I begin with the various audio recordings that have been placed before the Court. The mother has extensively recorded the child. She has recorded the child and the father together during the backyard visits. She has recorded a conversation she had with the child's teacher. And I am also told that she has many, many other recordings of the child, which were not placed before the Court. The father has recorded at least one of his interactions with the child.

[44] More particularly, the mother has filed eight recordings with the Court. Five of eight of the mother's recordings are of conversations she had with the child. One is of her conversation with the child's teacher, earlier this year. The other two recordings are of the child's interactions with the father during the backyard visits.

[45] The mother had these recordings transcribed, and she supplied to the Court complete transcripts for seven of them. The mother only provided a partial transcript of her eighth recording, said to have been made on August 11, 2020 as this motion approached. I am told this August 11, 2020 recording about is 2 ½ hours long.

[46] The father only filed a transcript of his recording, said to have been made on July 14, 2020.

[47] Earlier, I said the father may have made a second recording, also on August 11, 2020. In her affidavit sworn August 13, 2020, the mother says that she thought the father was recording his backyard visit with the child on August 11, 2020. She says she could see him adjusting his cell phone when speaking with the child. The mother says that he started and stopped the recording, she was worried that the father was "attempting to elicit responses from [the child]", and "his conversation with her took the form of an interrogation or to make her say statements to alienate [her as the child's] mother or to create a false narrative that [the child] wants to go to the house he shares with [T.S.] or that she is sad when he leaves."

[48] Therefore, the mother proceeded to make the 2 ½ hours long recording of August 11, 2020, ostensibly so that there would be an accurate recording before the Court. The father did not respond to the mother's allegation that he was taping the child on August 11, 2020.

[49] At the attendance on August 14, 2020, father's counsel moved to strike the mother's recordings from the record before the Court. Neither side requested a voir dire with oral evidence regarding the admissibility of the recordings. As such, I say no more about whether that would have been appropriate at this stage of the case, or not. But I mention the absence of a voir dire with oral evidence here, so that the state of the record before the Court, in which I have been asked to decide questions about this evidence, is clear.

[50] Rather than ruling on the motion to strike the recordings from the record, I directed the parties to make arguments about the use to which this evidence may be put, and about weight, at the argument of the main motions. I felt it was important to consider the recordings in the full context of the evidence and the submissions.

[51] I have reviewed all of the transcripts that have been put before me. I have listened to the audio versions of all of the recordings that I was given too, except for the 2 ½ hours long one. Counsel for the mother told me that the excerpts of it in the mother's affidavit and the partial transcript are its "highlights". Counsel for the mother also said that there was much "dead time" during the recording, but also that father was "interrogating" the child. So that said, I did nevertheless review the excerpts that counsel/ the mother highlighted from this 2 ½ hour recording. I say more below about the prejudice and the practical problems that arise, when a parent (in this case the mother) sees fit to file with the Court hours of recordings with negligible probative value related to the purpose for which they were tendered.

B. Applicable Legal Principles Concerning the Recordings

[52] In order for the recordings to be admitted into evidence, they must accurately depict facts, they have to be verified by the person who made the recording, and there must be an absence of any intention to mislead. See Rodger v. Strop, 1992 CarswellOnt 386; see also Webster v. Suteu, 2015 ONCJ 538 ¶ 44.

[53] The are a number of other authorities concerning the propriety of making and using recordings in family law proceedings. Some of the authorities also touch upon how the recordings are to be used, if admitted. Specifically, I have reviewed A.F. v. J.W., 2013 ONSC 4272; Children's Aid Society of Toronto v. L.R., 2020 ONCJ 22, aff'd by 2020 ONSC 4341; DeGiorgio v. DeGiorgio, 2020 ONSC 1674; F.(A.) v. A. (B.J.), 2017 ONCJ 108; F. (J.) v. C. (V.), 2000 CarswellOnt 2195; Fattali v. Fattali (1996), 22 R. F.L. (4 th ) 159 (Ont. Gen. Div.); Hameed v. Hameed, 2006 ONCJ 274; Matthews v. Matthews, 2007 BCSC 1825; Reddick v. Reddick, 1997 CarswellOnt 3477 (S.C.J.); Scarlett v. Farrell, 2014 ONCJ 517; Sordi v. Sordi, 2011 ONCA 665; and Turk v. Turk, 2015 ONSC 3165.

[54] I do not intend to summarize any one of these cases in any particular detail, in this decision. The outcome of any one particular case may differ from the end result of another. In some the cases, courts have excluded the recordings, whereas in others the tapes were admitted into evidence. Such decisions either to admit or to exclude, have been made at both the trial stages, but also at the motion stages of the various cases. In two of the above list of cases, the correctness of a trial judge's decision to exclude the recordings was affirmed on appeal. The different outcomes turn upon the underlying facts of the particular cases, and upon the application of the governing legal principles to those facts. Nevertheless, some common themes emerge.

[55] First, the Court retains a general exclusionary discretion to exclude otherwise admissible evidence, if its probative value is outweighed by its prejudicial effect(s). A recording will be probative if it is both reliable, and relevant to a particular substantive issue in the case, and sometimes, to credibility.

[56] Even if a recording is probative to an issue, not every recording will be equally probative. For example, while Spence J. admitted the recordings in Scarlett v. Farrell, at ¶ 48 he found that they only had "some probative value". In that case, Spence J. also found that the recordings had not been surreptitiously made. Had they been, Spence J. said he would not have admitted the recordings.

[57] Likewise, in F.(A.) v. A. (B.J.), 2017 ONCJ 108, Sager J. also admitted the recordings, finding that they were not surreptitiously made. But unlike Spence J., Sager J. would have admitted the tapes even if they had been surreptitiously made. See ¶ 24. Her reasons for that were seven-fold. She focused on their value being so probative as to outweigh the prejudice, even having regard to the policy that recordings made for use in family law proceedings should be discouraged.

[58] Second, as those two cases (and others) reveal, whether a recording was surreptitiously made, or even illegally obtained, is relevant, but not determinative in the analysis. Moreover, it is not just whether a recording was surreptitiously made or illegally obtained in itself that is relevant, but also the extent of the recording, and the manner in which the party who made or procured the recording went about it. For example, in Mathers v. Mathews, Barrow J., cited Seddon v. Seddon and described the example of a father, who had secretly placed voice activated recording devices around the home just prior to the separation, knowing that the separation was inevitable and imminent. The father then sought to introduce some 20 hours of surreptitiously recorded conversations in custody and access proceedings. While the Court in Seddon v. Seddon excluded the evidence on multiple grounds, the egregious method that the father employed to procure the recordings, weighed heavily in the analysis.

[59] To properly balance the competing factors, the Court should characterize the prejudice flowing from the recording. Prejudice may present itself in different ways. The cases reveal that there may be specific prejudice to the other party or to the child, there may be prejudice to the trial process, and there may be prejudice to the administration of justice. And in many of the cases, including this one before me, multiple kinds of prejudice will present.

[60] Specific prejudice may include the violation the other parent's, or the child's privacy interests. Harm may also be inflicted on the family relationships. For example, recordings may lead to increased conflict. Recordings may erode trust amongst the parents, and as between a parent and a child.

[61] Recordings may cause unfairness. For example, a recording may be created, with the goal of manipulating the evidence, to cast the other side in a negative light. But unfairness may also arise, simply from the sheer volume of the evidence to be dealt with. It will be time consuming for the Court to deal with such evidence. Delays may result. There may be increased costs to the other side to respond.

[62] The other parent may also be faced with a formidable task, in trying to respond to such evidence. For example, perhaps there would have been other conversations or statements made that would have rebutted the evidence recorded, had the other side known at the time that the recordings were being made, and therefore known what evidence might be needed to respond. Ironically in this case, when the mother thought the father was recording the child on August 11, 2020, she proceeded to make her own recording, 'just in case', and so the record would be accurate. According to her, she knew he was recording, but alleged he was manipulating the recording, and so she responded in kind.

[63] Setting aside the inappropriateness of responding in kind in this manner for a moment, I note that the father was denied this opportunity with respect to all of the mother's recordings. He is now confronted with the task of trying to respond, after the fact, to the multiple recordings amassed by the mother over the past number of months. And from the Court's perspective, recordings like this may jeopardize the Court's ability to properly dispose of the litigation, if the other side is unable to respond fully and fairly.

[64] Many of these considerations underlie the strong policy reasons, articulated in the case law, to discourage the recording of the other parent, or a child. In often quoted ¶ 11 of Hameed v. Hameed, Sherr J. said:

… Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[65] Consequently, at ¶ 13 of Hameed v. Hameed, 2006 ONCJ 274, Sherr J. placed the onus on the person seeking to admit the recordings, and required him to establish a compelling reason for their admission.

[66] For similar policy reasons, courts have discouraged parents from taping professionals involved with the family too, as was also done in this case (ie. the mother's recording of the child's teacher). The policy reasons while similar, also have a different dimension.

[67] For example, in Fattali v. Fattali and F.(J.) v. C.(V.), Justices Vogelsang and Steinberg respectively, excluded recordings of medical processionals involved with the family. The surreptitious nature of the recordings militated against admission in both cases.

[68] In Fattali v. Fattali, Justice Vogelsang referred to the recording as having been obtained by "subterfuge". In F.(J.) v. C.(V.), Steinberg J. commented about the chilling effect that taping professionals might have. Such professionals might be less inclined to help parents and children involved in family law proceedings in the future, if there is a risk that he or she might be surreptitiously recorded, and then the recording is allowed to be used in the proceeding. That, said Steinberg J. at ¶ 27 of the decision, would not advance the administration of justice.

[69] Zisman J. made a strong statement to this effect in Children's Aid Society of Toronto v. L.R., 2020 ONCJ 22 ¶ 43-56 relying heavily on policy grounds and the prejudice to the administration of justice. In the proceeding before Zisman J., the mother wished to play a recording she secretly made of a reunification therapist, because the therapist, "… in her evidence had wrongly portrayed [the mother] as being unreasonable and as threatening her during the meeting".

[70] At ¶ 47 and 53, after setting out the need to balance the prejudice of the recordings against their probative value, including their reliability, Zisman J. wrote: "[t]he systematic harm to the administration of justice and to the family law system in general of permitting a party to secretly record a third party professional who is attempting to help a child and parents far outweighs any probative value that the admission of such evidence could possibly provide". At ¶ 55, she said, "[t]here is already a reluctance of professionals who will agree to be involved in high conflict or child protection proceedings knowing the likelihood of litigation or being reported to their professional organizations." And at ¶ 643, Zisman J. prohibited the mother from recording the father, the child, any CAS worker and any third party professional without the express prior consent of that person. Horkins J. affirmed Zisman J.'s decision on appeal: see L.R. v. Children's Aid Society, 2020 ONSC 4341 ¶ 94-104.

[71] While arguably Zisman J.'s comments will most often have application when a third party helping professional is taped, I carefully note that there is no hard and fast rule absolutely precluding admission of a recording of the other parent, the child, or even others. I note Barrow J.'s comments at ¶ 56 of Mathews v. Mathews, that prejudice may also arise if the evidence is excluded, saying "[i]f, for example, the evidence was highly reliable and showed active physical abuse of a young child, there can be little doubt that excluding it would adversely affect the reputation of the administration of justice".

[72] It is on this latter quote from Mathews v. Mathews, that mother's counsel heavily relies in submissions. However, as I will explain, most of the evidence in the recordings is neither reliable, nor does it demonstrate the abuse that the mother's alleges. The concern about excluding evidence, articulated in Mathews v. Mathews, is not present in this case before me.

C. Applicable Legal Principles Concerning Child Hearsay

[73] Like in this case before me, some of the above cases involved the recording of a child. In this case before me, there are the child's alleged statements in the affidavits and other documents too, not just in recordings. As Zisman J. said in Children's Aid Society of Toronto v. L.R., to strike the right balance in the prejudice versus probative analysis, it is necessary to consider the reliability of that evidence. Therefore, I also review the legal principles concerning child hearsay, to consider the child's statements contained both in the recordings and the other evidence, through the appropriate lens.

[74] Hearsay is an out of court statement tendered for the truth of its contents.

[75] In Children's Aid Society of Toronto v. G.S., 2018 ONCJ 124 ¶ 9-19, Sherr J. provided a helpful and detailed summary of the current state of the law regarding children's hearsay statements in particular. He began with the well-known premise that child hearsay can be admitted as an exception to the rule against hearsay, using the principled approach of establishing necessity and reliability as set out in R v. Khan, [1990] 2 S.C.R. 531 (S.C.C.).

[76] At ¶ 15-17, Sherr J. distilled the principles from the Supreme Court's more recent decision in R. v. Bradshaw, 2017 SCC 35. He explained how the Court should consider threshold reliability at the admissibility stage of the analysis. He also explained how any corroborative evidence may be used in that exercise based on R. v. Bradshaw.

[77] It is important to note the circumstances of this case before Sherr J., contrasted to the circumstances of this case before me. Sherr J. was called upon to consider the admissibility of children's statements in a voir dire, at a trial. And, the children's statements that Sherr J. was considering were made to a child protection worker.

[78] In this case before me, the case is at the motion stage, and most of the children's statements are coming through the mother, as opposed to statements made to a professional witness. Nevertheless, the same principles apply, but modified to the motion context.

[79] Hearsay is admissible on a motion, if the affiant has identified the source of the information, and states that she believes the information to be true. See rule 14(19) of the Family Law Rules. But even where the requirements of the rule are met, the Court retains discretion to refuse to admit the hearsay. See Berger v. Berger, 2016 ONCA 884 ¶ 76; see also Farooq v. Hawkins, 2018 ONSC 4841 ¶ 14 (d.). And even if hearsay is admitted for use on a motion, then there is still the question of how the Court will treat this evidence, and the weight to ascribe to it.

[80] Another decision of Sherr J., namely Catholic Children's Aid Society of Toronto v. C.P.I. v. R.S., 2020 ONCJ 304, includes analysis about the use of child statements on a motion. At ¶ 70, Sherr J. pointed out that neither the father nor the maternal grandfather set out an evidentiary foundation to establish either procedural or substantive reliability for the child's statements as set out in R. v. Bradshaw. Even if admissibility is not challenged on motions, the principles in R. v. Bradshaw remain important to assess how much weight to place on them. Sherr J. placed little weight on the statements in that case, as they did not even meet threshold reliability.

[81] For reasons that I will explain, the Court in this case has concerns about very limited probative value of the majority of the recordings when compared to their prejudicial effects. The Court similarly has concerns about the reliability of the child's statements across the various pieces of evidence.

[82] That said, while a statement might facially appear to be a hearsay statement, it is not hearsay if it is not tendered for the truth of its contents. It could be admissible for some other purpose. Later in this decision, I treat many of the child's statements in this manner. In other words, portions of the recordings and some of the child's statements do have some evidentiary value at this stage of the case, largely for purposes other than proving the truth of their contents. To be clear, I would not draw the conclusion that the child is being abused by either the father or T.S., based on the evidence before me.

[83] With those principles in mind, I turn first to the contents of the recordings themselves. I do so in date order.

D. The Contents of the Recordings

(1) The Mother's Recording of the Child dated March 1, 2019: The Driving Recording

[84] The mother's first recording of the child (that I was given) is said to have been made on March 1, 2019. The child was then just a little more than 3 years old. The recording/transcript starts with the following statement by the mother, talking to herself into the recorder:

Mother: Okay, so, I'm driving there right now. So wait a minute here. Okay, so, I'm driving there right now. I pulled over to the side of the car to, kind of, like, turn this on, and she doesn't know yet; she doesn't know she's going yet. I'm going to tell her, and I don't know if she'll react or not; lately, she has been – I mean, past several months she has been, so it'll probably be the same. Okay, so, we're on our way; I pulled over to the side to tell her, tell her, and we'll see how she reacts. Okay, sweetie, you ready to go now?

[85] For the next 7 pages (and about 13 minutes of this recording), the mother talks to the child in a sweet tone of voice, while the child pleads and cries with the mother that she does not want to go to the father's home. At one point, the mother says "Oh sweetie. It's okay, you're breaking my heard, [A. E-D.], honestly." At another point the mother says, "please don't hyperventilate".

[86] For much of this audio recording, the child can be heard pleading to the mother "please don't take me to my dad", while the mother continues to record her, and drive. At one point during the child's cries, it appears that the mother is talking to herself about how much traffic there is, while ignoring the child.

[87] Later on in the recording, the mother says to the child, "Can I be honest with you, baby?... I understand. I understand that you're upset about going, okay. I understand. I'm sorry that you're upset. I'm hearing what you're saying, but I have to take you, okay." The mother also says to the child, "you have to tell me why [you're scared]; I don't understand".

[88] Towards the end of this lengthy recording, the child can be heard yelling "No dad." The mother can be heard saying, "I love you. Have a good time, okay." I presume this is the actual exchange between the parents.

[89] There is a man's muffled voice at the end of the recording (which I presume is the father's). In a less comforting tone, and in the child's presence, the mother then says, "Why can't she take it? It's comforting for her. Okay, love you, baby."

(2) The Mother's Recording of the Child dated November 16, 2019: The "Meleton" Pill

[90] According to the mother, on November 16, 2019, the child told her that T.S. had given her "meleton" before bedtime. In one of her affidavits (and in the recording itself), the mother draws the conclusion that T.S. gave the child melatonin to make her sleep.

[91] In the recording itself, the child can be heard saying that T.S. gave her a "meleton pill" at bedtime. When asked by the mother what that is, the child described it as a pill for kids. The child also says to the mother, that the pill she took is one that children take when they are sick. On page 2 of the transcript, the mother asks her, "what does it do?" and the child responds, "it makes you – makes you to go away." However, the audio recording appears to record the child to say "it makes your throat go away".

[92] At the end of the recording, the mother can be heard speaking to herself, expressing disgust that the father and T.S. gave the child "hormones". The child can be heard saying "Hi mom" and "What?" in the background, as the mother expresses these views onto the recording.

(3) The Mother's Recording of the Child dated December 15, 2019: The "Grumpy Pets" Game

[93] The mother deposes that on December 15, 2019, she and the child were playing a game with certain toys. The child began referring to the toys as "Daddy", "T.S." and "L" ("L" is the mother's first name). During their play, the child described the game they were playing as "grumpy pets", and she referred to the "L" character, as the evil one.

[94] More particularly, during the game, the child says the pet named "L" is evil and has no friends. The child then says that "L" went back to her home.

[95] When questioned by the mother about the meaning of this, the child explains that she was referring to the dog/toy named "L", not the mother. The child says that the mother does, in fact, have friends. The conversation evolves into the child making statements about rainbows, and that T.S. does not like rainbows. This statement does not make much sense. Nevertheless, the mother then asks the child how that makes her feel, and the child says "sad".

[96] Later on in the recording, the mother, referring the child back to this exchange, says "I'm sorry that you have to hear that stuff and it makes you feel sad. Look at me, look at me, look at me: I love you." The child responds by saying that she loves her mother too. The child also tells her mother, that she knows her mother will miss her when she goes to her father's.

[97] When the subject matter of the conversation reverts back to the "grumpy pets" game, the mother once again circles back to the earlier statements, saying "You've been talking about that a lot lately. You've been mentioning that, the evil and stuff like that. Is it bothering you? Yeah, it's okay, come give mommy a hug. Give mommy a hug".

[98] The child's response is to continue to talk about colouring. I note that portions of this recording are also "indiscernible".

(4) The Mother's Recording of the Child dated February 3, 2020: The Child is Allegedly Encouraged to Report to Others that her Mother Hits and Yells at Her

[99] In one of her affidavits, the mother says that on February 3, 2020, the child told her, that T.S. had been encouraging the child to tell a teacher, that the mother was hitting her and yelling at her, and that she wanted to go to her father's house. The mother says she then reported this to the daycare, and to CAS worker Ms. Beckford.

[100] The mother has provided the Court with what is more than a 17 minutes long recording, and a transcript. Portions of the recording are described as "unintelligible" in the transcript (and on the recording itself). The recording does not reveal the child's statements, in the same manner as the mother described them in her affidavit.

[101] The recording/transcript begins with the mother talking about giving the child hugs and massages, to get the child to calm down. On page 5 of the transcript, the mother tells the child several times, in a very soft, whisper-like voice, that she is "special". She then asks the child what she is thinking about. The child's first response is I don't know, but then she says "About T.S. She's not nice".

[102] After making this statement, the child loses focus and asks the mother to lie down next to her. The mother would not lie down, instead prompting the child to continue. When prompted further, the child first says that she does not know why T.S. is not nice. But then, the transcript reads "[Unintelligible] Cause she said you hit – she said to the daycare, she said to the daycare you hit me, you yell at me and I want to go back to my dad's house".

[103] So at first, the child said to her mother that it was T.S. who told this to the daycare, not that T.S. had encouraged the child to do so. But then the mother asks a question of clarification, "She said to who?". This prompted the child to respond, "To the daycare to me". The child repeats the latter again, a second time.

[104] In the next passages, the mother says to the child, "What make you say that?" The response is "[unintelligible] T.S. I don't want to say anything". Then shortly thereafter, the child says that T.S. asked her to say this to the daycare. It is this latter statement which the mother highlights in her affidavit.

[105] The conversation with the child continues, with the mother first telling the child that she does not hit her, but only sends her to her room for "time outs". The mother then says to the child, "it sounds like she talks about mommy a lot", and "what else does she say".

[106] The mother then tells the child:

I'm sorry that you have to hear all those things, OK? Mommy won't tell you what to say. I'm not going to tell you to say this or that and I'm not going to talk bad about people because it's not good to talk bad about people, OK? And I don't want you to feel like you have to say things that aren't true or that you don't mean, OK?

Look at me. Nothing can come between you and me, OK? Right? Nothing can come between us because we love each other, OK? And I will never call you a liar because I know that you're honest and you're sweet, OK?

(5) The Mother's Recording of the Child's Teacher dated February 28, 2020: the Child's Behaviour and the Mother's Request for Documentation

[107] The mother says that on February 28, 2020, she recorded the child's teacher. The mother does not say whether she had the teacher's consent to record her. It appears that the teacher had initiated a call to the mother and the mother called the teacher back. It is the mother's return phone call that she recorded.

[108] The first part of the conversation between the mother and the teacher concerns having the maternal grandmother come to the child's classroom, to help manage the child's behaviours at school. This is something which had apparently been previously discussed between the grandmother and someone at the school. But that is not why the teacher initiated the call to the mother.

[109] This recording reveals that the teacher wanted to speak to the mother about the child's behaviour at school that day. According to the teacher, the child had run out of the classroom, then down the hallway and into a gymnasium, the doors to which happened to be open. The child was found jumping off the stage and hiding behind the curtains.

[110] In the recording, the teacher goes on to tell the mother that the child also had a tantrum that day, when it was time to clean up the classroom during an afternoon routine. The child started pouring water onto the floor, and sighed in exasperation. According to the teacher, the child then threw a water bottle across the room.

[111] It is then the mother who suggests to the teacher that the child has been acting out for quite some time. The mother (again not the teacher) suggests that this behaviour is occurring after access. Later in the conversation, the mother says "… typically, when I get her back I can – usually, it will take me at least a couple of days to, kind of, get her back to where she was in terms of listening and scheduling and – you know what I mean?".

[112] Towards the end of this conversation, the mother asks the teacher to document the changes the teacher noticed "over the past couple of weeks". The mother tells the teacher that she wants it documented because, "she knows why it's happening", but she "can't get the child away from it", or protect her from it. Without documentation, the mother says to the teacher, it would be a "he said she said" situation. When the teacher responded by saying she would need to talk to the office about this, the mother tells her just to make a note it in a file then, instead.

[113] It is true that the teacher did report to the mother that a few times over the course of this particular day in question, the child said that she did not want to go to her father's house, and the child referred to her mother by her first name. The mother's response to the teacher, is that the child gets in trouble "there" for "not conforming to how, like, what she's told to do" and "the thing she's being told to do are wrong".

[114] The father says he is "extremely concerned" that the mother is recording conversations with the child, but also with the teacher. He does not understand why the child would have said to the teacher that she does not want to see him. He says that the child and T.S. have a very close relationship, and that T.S. loves the child as if she were her own daughter. He says he believes that the mother is trying to destroy that relationship out of "jealousy" and "vindictiveness".

(6) The Mother's Recording of the Child dated March 4, 2020: The Child is Allegedly Instructed to Run Away

[115] In both of her July 24, 2020 affidavits, the mother alleges that on several occasions, the child reported that T.S. had instructed her to walk out of the mother's home at night when the mother is sleeping, and to go into the street. The mother alleges that the child has been instructed to find someone and to say that she wants to go to her father's home. In response to this, the mother then says that she has been "[barricading her] door every night because [she is] fearful [the child] will walk outside and be put in harm's way." The father denies that either he, or T.S. have ever encouraged the child to run away from the mother's home.

[116] On March 4, 2020, a few days before the mother suspended the father's in-person access, she recorded the following conversation with the child. The transcript of this particular recording is 8 pages long.

[117] According to the recording and the transcript, the conversation starts out with the mother reading the child a book. While reading the book, the child appears to get excited. There is an argument between the two about whether the child is excited or not, and the mother tells the child to calm down. The mother then starts to lecture the child about her behaviour, telling the child that the mother would be leaving, that she would take the child's tablet away, and that she would not be letting the child go to gymnastics the next day, if she did not behave.

[118] The mother then says to the chid, "Can we talk for a minute? Can we talk for a minute? Let's tell our secret. Can you tell me why you're doing it [unintelligible]. The child's response is because "because I don't like very sleeping.. and my eyes are not tired."

[119] The following exchange then occurs, entirely prompted by the mother:

Mother: Is somebody telling you not to sleep at mommy's house? You can be honest with me?

Child: [T.S. says – T.S. says] to run out of your door. But I want to go to a different people's house.

Mother: I know. What else does she tell you?

Child: Just let me go out the door.

[120] The conversation continues with the mother explaining to the child that it would be dangerous for her to run away. The child then says, in response to questions from the mother, that she does not love her mother.

[121] Midway through this conversation the mother threatens to leave the child again saying, "OK. Then I'm going to go then. I think somebody's telling you these things and it's not fair. It's not fair. It's not nice." And "If you want to stay with your dad then I'll take you to your dad's. Is that what you want? It's how you're behaving. That's fine then. I'll phone [T.S.] right now." The child then yells no.

[122] Next, the mother says, "Then why are you behaving this way? You need to stop behaving this way then." In response, the child says, "Don't tell T.S.", and "Don't tell her that because she doesn't' like you and T.S. yells at you. So Don't." The mother then says to the child, "Baby, I'm sorry that you have to go through this. Look at me. Look at me."

[123] This exchange between mother and daughter continues, after which the mother tells the child that she is allowed to love various people. The mother then prompts the child: "Who says you're not allowed to [love the mother]?" The child's response is "Nobody." And then " T.S.". To which the mother replies that it is not fair of T.S.

[124] The mother says that there is a second recording she made on November 11, 2019, during which the child tells her that she was instructed by T.S. to walk out of the home. However, this recording was not supplied to the Court.

(7) The Mother's Recording of the Father and the Child dated June 30, 2020

[125] The mother says that the child reported to her that T.S. has been "physically violent" on several occasions. According to the mother, the child reported that T.S. hit her in the face, and that caused her nose to bleed.

[126] The mother says that during the father' s backyard visit with the child on June 8, 2020, she overheard the father tell the child that he was going to take her to the beach soon. The child told the father that she was scared of T.S., to which the father responded that things will be better now, and that T.S. will be "good". The mother now argues that the father knows that T.S. is abusive to the child, based in part on this exchange.

[127] The mother did not provide a recording of this alleged June 8, 2020 conversation. I was, however, given a recording of the father and the child, said to have been made by the mother on June 30, 2020. The transcript of that recording is not accurate.

[128] At the beginning of the transcript, certain statements are attributed to the father. However, upon listening to the actual audio recording, the voice speaking appears to be a male's voice coming from something like a video, or a video game. Nevertheless, the mother has highlighted the following passages from later on in the transcript of this recording, much of which is indiscernible:

Child: When are we going to come back here [indiscernible]. My mom said [indiscernible] she will protect me from T.S.

Father: [indiscernible]

Child: But, she's not [indiscernible] to her.

Father: Huh?

Child: Well, she smacked me in the face though.

Father: [indiscernible]. If she said sorry, would you be okay?

Child: No, because if she smacked me in the face, I'd bleed, my nose bleeds. And, I have to take a cold shower and I don't like cold showers. I just like warm baths.

Father: Warm baths?

Child: Instead of cold showers.

Father: We'll have to all talk. You can tell her.

Child: And, I also want [indiscernible]

(8) The Father's Recording of the Child dated July 14, 2020

[129] The father has filed a transcript of a recording that he says he made on July 14, 2020. The transcript depicts the father and child playing together. Mid-way through, on page two, the father tells the child that he has to take her back. The child says no.

[130] In response, the following exchange occurred:

Father: Don't worry, soon we'll have a whole weekend together

Child: No, mom said she's going to protect me about T.S. She does bad things to me.

Father: Yeah.

Child: You have to tell her to stop doing bad things to me.

Father: Everybody should just say.

Child: So, I had to tell Tara. I had to tell everybody – everybody it. I had to tell everybody what T.S. does.

Father: Well, what does T.S. do?

Child: Like, she just – like blood comes out of my nose like. She hits me and pinches me. Puts me in a cold shower 'cause I don't want to shower. And she – and when blood comes out of nose. I don't really like what she does. Mom has to protect me. That's what she has to do.

Father: Well, somebody will figure it out. But mommy may protect you from T.S., then protect you from me too. So, let me just…

[131] The father then goes on to tell the child that the mother wants to protect her, from the father. When the child asks why, the father responds, "well, that's your mom" and "I don't know."

[132] The exchange ends with the child saying that in a "couple of days I'm going to be gone". The father is worried that this is the child's statement of a plan to go to British Columbia.

(9) The Mother's Recording of the Father and Child dated August 11, 2020

[133] This is the 2 ½ hours long recording that the mother says she made in response to her observing the father record the child. In her affidavit of August 18, 2020, the mother highlights that the child said, "Um, I don't know, mom said, she's going to help me help [T.S.], 'cause she's done lots of bad things to me". And then in response to questions from the father, the child said that T.S. hit her in the face, on her "whole face".

[134] In "Volume 2 of the Transcription" (again I was only provided with select excerpts from the transcript), the mother points out that the father said to the child, "I don't know why ["L" – the mother] doesn't want us to spend more time together". The child's response is "Probably because ["L."] loves me." And the father's response to this was "she loves you, but she hates us. Is she nice to you all the time." He also asked the child if T.S. was nice, but the child said, "sometimes T.S.' not nice to me".

[135] The father deposes that the child is "regurgitating information that has been frequently told to her" and that the statements the child made about wanting to stay at her mother's home seem rehearsed to him. He says the child is unable to articulate what the alleged "bad things" are that T.S. has done.

E. Other of the Child's Statements Allegedly Made

[136] The mother says that the child has made other like statements, many of which she did not record (or perhaps for which she did not provide the recordings). The mother says that she has not recorded many of these other statements, as some were "unprompted" such that she did not have time to record them.

[137] There is also the evidence of Ms. Chu, the Office Manager in Mr. Cartel's law firm, where the mother also works. The mother has filed an affidavit of Ms. Chu sworn May 11, 2020 as an exhibit to one of her affidavits. Ms. Chu's affidavit contains two statements that the child made on December 6, 2019, a day upon which the mother had taken the child into the law firm.

[138] More particularly, the mother says that back in July of 2019, the child began to physically attack both her, and their small dog. The mother says that when she asked the child why she was attacking them, the child said she was being encouraged to do so by T.S. According to the mother, the child said, "T.S. gives me treats every time I hit you".

[139] The mother says that on January 7, 2020, the child said she was feeling "so bad" before bedtime. According to the mother, the child said "you are angling me… I have to say you are tangling me, they say you are angling me, angling me." The mother says that she believes the child was being encouraged to say that the mother was strangling her.

[140] And according to the mother, the child has generally said other uncharacteristic things, like "I'm going to run away", "I never want to see you again", I can't look at you and tell you stuff", "I can't love you" and "T.S. says she is going to take me away from you".

[141] According to Ms. Chu's affidavit, while she and another lawyer in the firm were talking to the child on December 6, 2019, the child said, unprompted, "T.S. says my mom is evil". Ms. Chu also says she heard the child say, "I'm not allowed to drink milk, because T.S. says so".

F. The Photographs

[142] The mother has also assembled and filed a number of photographs of the child depicting bruises, cuts and scrapes, and in one instance, a rash. The photographs are said to have been taken at different points during a two-year period, covering between December 9, 2017 and January 19, 2020. At least one of the photographs pre-dates the December 2017 trial. There are also a number of emails and text messages between the parents, also attached to the affidavits, in which the parents discuss the markings and bruises. I have carefully reviewed those communications, too, and cross-referenced them with the actual photographs.

[143] The mother acknowledges that A. E-D. is a toddler, and so "it is realistic for her to obtain scrapes on her knee, and small cuts and bruises". However, the mother goes on to say that there has been an "accumulation of considerable questionable bruising". This, paired with the fact that the child has been expressing fear over visiting the father and more recently verbalizing that T.S. has been abusing her, has "obliged [the mother] to move forward to protect her."

[144] The mother says she did not question the father about the small ones, because they are "reasonable". However, the mother says she had concerns over "many of the facial bruising, 'goose eggs', broken lips and handprint bruising that [A. E-D.] has come home with and [she has] respectfully questioned [the father] about it."

[145] The mother says that sometimes the father would explain that the child had been injured and provide her with an explanation as to the cause, but at other times he has not provided explanations. She also alleges that when she would question him, the father would get defensive, he would deflect, and he would sometimes send her pictures of the child with minor scratches that he says the child had at the outset of his visits, perhaps under the mother's watch.

G. The Father's Responses to this Evidence

[146] The father has provided responses about several of the recordings, about the child's alleged unrecorded statements, and about the photographs (which I also deal with below), in his reply affidavits. As I already indicated, some of the father's other responses are in the nature of argument or speculation. However, his overarching response is that he loves his child, that he would never do anything to hurt her, and that he would never allow anyone else to hurt her.

[147] Regarding the photographs, the father argues that they do not actually document abuse. In addition, he says that the child has in fact come to him on a number of occasions with previous unexplained injuries, whether from daycare or otherwise. He says that he has tried to address those with the mother. He says he has been questioned repeatedly by the mother, but when he asks questions of her, his inquiries do not seem to matter.

H. T.S.' Responses to this Evidence

[148] Likewise, T.S. has filed an affidavit sworn July 31, 2020 in this proceeding. She denies that she has ever hit the child, saying that she once put her finger on the child's lips to stop her from saying a profane word. She says treats the child as her own child. She purchases clothing, shoes and toys for A. E-D., and she also plans birthday parties for the child. She feeds the child foods that she likes.

[149] T.S. deposes that she cares for A. E-D. on a day to day basis, when the child is in the father's care, as required. She has made arrangements to be able to leave her workplace early on Fridays, to pick the child up from day care. She works additional hours during the week to be able to do this.

[150] T.S. denies isolating the child from her mother, or the mother's side of the family. She says that she has facilitated calls between the child and the mother's other daughter from a previous relationship, so that they may speak on special occasions.

[151] T.S. denies that the child is afraid of her. To the contrary, she says that the child takes comfort in her, and knows how much she loves her.

[152] T.S. denies that she has ever called the mother "evil" to the child. She is concerned that the child may have overheard conversations between T.S. and the father, however. She says it was not their intention for the child to overhear such conversations, and she does say that they make best efforts to insulate the child from adult conversations.

[153] T.S. denies that she has told the child she would give her treats as an incentive to mistreat her mother. She denies that she instructed the child to run away from home. She says she never told the child that milk is bad, although she does admit to telling the child that milk is not the best for her, given that she has eczema. T.S. said this to the child, based on her own experience with her own daughter, who also has eczema and does not tolerate milk well.

[154] T.S. denies the many allegations of abuse that the mother has made. She points out that she lives in a shared residence with her parents, her daughter and the father. Were she actually abusing the child (which she denies), this would not be permitted by the other adults in the household.

[155] T.S. does say, however, that the child has reported to her that the mother hates her and the father. She deposes that the child told her that the mother hits her and puts her in excessive time outs. The child also apparently told T.S. that her mother had yelled at her for having an accident during potty-training, and withheld food from her.

I. The Children's Aid Society's Notes and Records

[156] Elsewhere in this decision, I discuss specific entries in the CAS file relating to particular pieces of the evidence. However, it is worthwhile to make some general comments about the CAS file, as a whole. The CAS file reveals that there has been multiple contacts with this family. The Society has not verified physical discipline in the father's home. To the CAS, the child has both failed to disclose physical discipline by either the father or T.S., and separately, she actually denied physical abuse. The parents have been warned by the Society about their conflict, and the emotional impact it could be having on the child.

[157] In her note of December 27, 2019, CAS worker Ms. Beckford wrote that the child presents as an active girl who told her that she loves visiting with her dad. The child added there is nothing that she does not like while visiting with her dad. The child made this statement about 2 ½ months before the mother suspended the father's visits with the child.

J. Police Involvement with this Family

[158] As set out above, in his letter of March 13, 2020, Mr. Cartel advised the father that the mother has made a complaint to the police. During oral argument, Mr. Cartel submitted that the mother has had contact with the police in an attempt to involve the criminal justice system. I am not clear about the extent to which, or about the timing of the mother attempting to involve the police or the criminal justice system. As of the date of the motion, I am aware of no criminal charges having been laid.

K. Findings Respecting this Evidence At this Stage of the Case

(1) Findings Respecting the Recordings and the Child's Statements

[159] I am not prepared to find, as the mother would have me do, that either the father, or T.S. has physically or emotionally abused the child. I am nevertheless concerned about the impact of all this upon this child. I am also concerned that the child has other health needs that are not being explored.

[160] Based on the factors in Rodger v. Strop and Webster v. Suteu alone, it is arguable that all of the recordings, are inadmissible. In any case, these factors also affect the weight that ought to be ascribed to the statements therein, when assessing weight and reliability.

[161] The mother deposes that her various recordings were made contemporaneously with an iPhone or a tape recorder, then stored electronically and copied onto a USB. The transcripts, she says, were transcribed unaltered, and in their entirety, by a third-party transcription service. The father has not said anything about the methodology he employed to record the child.

[162] In some instances, there appear to be errors in the transcriptions, when compared to the audio recordings themselves. In some instances, portions of the recordings are unintelligible or inaudible.

[163] Second, and more importantly, although she does not specifically say when she began doing this, in one of her July 24, 2020 affidavits, the mother deposes that she started "making recordings of [the child's] drop offs from start to finish as proof that [the child] has anxiety over going to [the father's] home and that by no means [does she] coach her to behave in this manner as [the father has accused her of doing]". According to the note of CAS worker Antoinette Beckford dated February 12, 2020, the mother admitted to recording the child "all the time for the first two days following her return home" from visits, too. And during submissions, there was some suggestion that the mother might have videos of the child.

[164] Despite the existence of what appears to be a voluminous amount of additional recordings, the mother provided only select recordings to opposing counsel and to the Court. This underscores again the point that prejudice may arise, not only by virtue of the sheer volume of recordings, but also by selective disclosure. At this point, it is impossible to ascertain whether the recordings that I was provided accurately depict facts as a whole, when there are apparently many more recordings that have not been filed. The fact that there may be hours of recordings that could be of positive interactions, or even unremarkable interactions, may be relevant. And even if the Court were just to focus on the recordings selected mostly by the mother, as the mother would have the Court do, I still do not know what went on between the mother and the child, either before the tape started rolling, or after. There is a strong suggestion from the father of an intention to mislead by the mother. He says that the child is being coached.

[165] Regarding the father's recording, as he has not said anything about the methodology that he employed to record the child, the father's recording would fail on the verification branch of the test in Rodger v. Strop and Webster v. Suteu. Nevertheless, he placed it before the Court, and the mother's counsel referred to it in argument.

[166] In terms of the probative value of the recordings, the mother argues the recordings show the child's behaviour surrounding access, that T.S. is telling the child to act out in the mother's care, that T.S. is physically abusing the child, and that both the father and T.S. are emotionally abusing the child. The father asks the Court to conclude that the mother is trying to bolster her ultimate request to relocate to British Columbia. I do not find the recordings (nor the other unrecorded statements) to be terribly probative of any of these points, at this stage of the case.

[167] There are two recordings that could be interpreted to suggest the child does not want to see her father, for some reason. But likewise, I do not find the statements to this effect to be terribly probative of this. First of all, the driving recording of the child is almost 2 years old. At its highest, in the full context of this record before me at this stage, it is a point in time statement of the child's state of mind. At its highest, it reveals that on one occasion, when the child was three, she became upset about going to visit her father.

[168] Moreover, I agree with the father that the entire driving incident appears to have been set up by the mother. I say that based on the mother's own "set up", described by the mother herself, in the recording. I find this recording to reflect very poorly on the mother. It was disturbing to listen to this recording. The mother got the child upset right before an access visit, and then allowed her to cry for about 13 minutes on the drive to the visit.

[169] In the case of the hearsay statement of the teacher about what the child had said that day about her father (ie. about the child not wanting to go see her father), I have no evidence as to the circumstances surrounding the child's statement to this effect. The hearsay danger, namely the difficulty in accurately assessing the child's perception that day, is obvious. In the absence of better evidence about the circumstances surrounding this statement, there is reliability problem. In fact, the only evidence I have to potentially explain that statement, comes from the mother, ie. her own theory that she offered up to the teacher, during their call.

[170] In contrast to these two statements about the child's state of mind, I refer again to the statement the child has made to the CAS worker on December 27, 2019 about her visits with the father. Unlike the child's statements to the mother, this statement was recorded by a professional child protection worker, who is likely skilled at interacting with children, and who has a duty to record such things contemporaneously.

[171] Regarding the "meleton" tape, the mother wants the Court to conclude that T.S. gave the child melatonin. Quite apart from making any finding about how harmful that would have been had T.S. done that (which the Court is not prepared to comment upon at this stage of the case and based on the state of the evidence before me), the same hearsay dangers and reliability concerns exist. Again, it is not clear what happened before this exchange occurred, and the child herself is not even clearly describing the pill she says she took.

[172] According to the mother, the February 3, 2020 tape is supposed to establish that T.S. had been coaching the child to make a false report of abuse by the mother to the day care. However, as I have explained above, in the child's initial statement to the mother in this recording is that T.S. made that report to the daycare herself. That is something that did not occur. The child then changed her description as to what happened, when the mother asked her for clarification.

[173] Nor am I prepared to find that T.S. hit the child, forced the child to take a cold shower, or coached the child to run away. While the child did make some statements about these subjects, I cannot determine that these things actually happened on the evidentiary standard that I must apply. First, I take some comfort in the CAS investigations. But second, in some of these conversations, the mother seems to get the child ready for various conversations in which she then makes the statements.

[174] For example, towards the end of the recording of December 15, 2019 (the "grumpy pets" tape), the mother tries to refocus the child back to the subject matter of "alienation" in the father's home, when the child is trying to resume playing. Another example is in the recording of March 4, 2020, when the mother, after threatening to take away the child's tablet and not take her to gymnastics, says to the child, "Let's tell our secret". The entire conversation about "running away" that follows is prompted by the mother. Towards the end of this conversation, the mother threatens to take the child to her father's home. Indeed, during submissions, Mr. Cartel referred to some of these conversations as having occurred during the child's "bedtime routine". The Court is concerned that discussions about the other household appear to form part of the mother's bedtime routine with the child.

[175] Having reviewed the statements and recordings in considerable detail, in the context of evidence before the Court as a whole, I place very little weight on the unsworn statements attributed to the child for the truth of their contents. That includes those which were both recorded, unrecorded, and contained in Ms. Chu's affidavit. There is little to no evidence about the circumstances surrounding these statements, and there are questions about the trustworthiness of the evidence coming from these sources. The hallmarks of procedural and substantive threshold reliability are absent from this record before me. See Catholic Children's Aid Society of Toronto v. C.P.I. ¶ 72-73.

[176] There is a dark cloud of suspicion over all of this evidence. At this stage of the case, the probative value of this evidence to prove abuse or alienation cannot be characterized as anything other than very limited. By contrast, the prejudicial effects of the evidence, and the policy reasons to discourage this kind of recording, are strong.

[177] More particularly, there is no evidence before me that either the father, or the teacher were aware that they were being recorded. There is a real risk of harm to the father's relationship with the child, and to the child's relationships in the father's household. His access has now been interrupted for months. I am equally concerned that the child is being manipulated.

[178] Despite all this, I would not completely exclude the recordings and the other statements. However, I am only prepared to draw the following other conclusions from this evidence at this stage:

(a) Obviously, this is a high conflict relationship. In their affidavits, both parents agree they have a "very toxic and high conflict relationship";

(b) The mother has been behaving incredibly inappropriately with the child, through the recording itself, but also in other ways as exhibited in the recordings, and referred to above;

(c) It was inappropriate for the mother to allow the father to have backyard visits, and then to record him and the child together;

(d) There has been some inappropriate behaviour on the part of the father, too. It was inappropriate for the father to record the child, although in terms of degree, the evidence before me is that he did this only once (and perhaps twice). The recordings demonstrate two inappropriate statements by him to the child about the mother (see the recordings of July 14 and August 11, 2020).

(e) The child is obviously aware of the parental conflict;

(f) The child is obviously aware of the conflict between the mother and T.S.;

(g) The mother has clearly been discussing T.S. with the child. This is evident the recordings;

(h) The child has been told by the mother, and is aware that the mother wants to "protect" her from T.S.; and

(i) There is some evidence that the child may have overheard discussions between the father and T.S. in their household. T.S. candidly admits this.

[179] Regarding the recording of the teacher, despite the strong policy to discourage recording professionals, most recently articulated by Zisman J. in Children's Aid Society of Toronto v. L.R, I am placing some weight on the teacher's statements about the child's behavioural issues at school. I accept her description of the child running out of the classroom and having the temper tantrum, for the truth of their contents, on this motion, pursuant to rule 14(19) of the Family Law Rules. I am concerned that the child has health needs that are not being met. And I note that there is also other documentary evidence about this.

[180] As set out in Mathews v. Mathews, I find it would be prejudicial to the child if the Court did not accept this evidence of the teacher. I place no weight on the mother's explanation to the teacher as to the cause of the behaviour. While it was inappropriate for the mother to surreptitiously record the teacher, in this case, the policy concern against recording professionals will be addressed by the order prohibiting recording in the future, that I intend to make.

[181] There is another bothersome theme in at least three of these recordings upon which I am relying at this stage of the case (see the recordings of December 15, 2019, February 3, 2020 and March 4, 2020). In her messaging to the child, including as part of the bedtime routine, the mother seems to be telling the child that she is loved and supported by her, while subtly and not so subtly portraying the other household, and T.S. in particular, as problematic.

(2) Findings Respecting the Photographs

[182] Nor would I conclude that the photographs before the Court are evidence of abuse, as the mother would have me do. Some of the concerns I have highlighted about the recordings as reflected in Rodger v. Strop and Webster v. Suteu, also apply to the photographs.

[183] But moreover, for all but two photographs, there exists a written communication between the parents explaining what happened. The parties communicated with one another contemporaneously, upon noticing the bruising or marking. Many of the conversations were initiated by the mother. But sometimes the father proactively told the mother about an incident involving the child.

[184] In the case of at least one of the photographs (upon which the mother relies as evidence of abuse), there was some consensus between the parties that the bruise or marking did not occur under either's watch. For example, according to the parent's written communications dated December 23, 2018, it appears the child was injured while at day care. The mother even acknowledged knowing this, at least in part. And in the result, the child was then questioned, and disclosed that she got hurt by a boy at school.

[185] There are only two photographs in the material before me, said to be taken on April 15, 2018 and May 14, 2018, about which neither side attached any communications between them about the markings. But quite apart from the fact that there is no medical evidence before me about these bruises/markings and when the corresponding injury might have occurred (about which I say more below), I have no idea with whom the child was that particular weekend when the photograph was taken. No one told me that in their material.

[186] The father points out that the child is a toddler, who plays, jumps and falls. He points me to various entries in other documents filed by the mother where the mother has described the child as "hyperactive" and that she will jump "from the highest heights". There is corroboration of this point in the mother's own recordings, too. I refer again to mother's own recording of March 4, 2020, during which the child apparently started to jump around, and according to the mother, bumped her head. This happened under the mother's watch. There is also the mother's recording of the teacher, in which the teacher reports to the mother that child ran out of the classroom and into the gymnasium and started to jump around.

[187] The father also questions the veracity of the mother's allegations about bruises, based on the mother's own statements that she made to others. According to the note of CAS intake worker Colleen Cohen dated March 24, 2019, the mother told Ms. Cohen that she understands that the child is young, and that even when with her, the child will get scratches and bruises. Back then, she told Ms. Cohen that she thought the child was trying to keep up with her older sister, and gets bumps and bruises in the process; not that the child was being abused. In fact, she told Ms. Cohen that she did not believe that the father was hurting the child at all, and she felt he provided probable explanations for the bruises. Some of the photographs that the mother now files as evidence of abuse are said to have been taken before the mother made these comments to Ms. Cohen.

[188] Likewise, on July 18, 2019, CAS worker, Michelle Henry, met with the mother and the child. There is a note in the file that indicates that the mother had pictures, but there is no context with which the worker could confirm that this occurred at the hands of the father or T.S. Ms. Henry noted that during this meeting on July 18, 2019, the child did not disclose that the father or T.S. had hurt her. While I do not know what exact photographs the mother showed to Ms. Henry, the Society worker was aware of the existence of photographs, in making the notation on July 18, 2019.

[189] Similarly, according to another note dated February 20, 2020, the mother told CAS worker Ms. Beckford that the child fell at daycare and this caused her nose to bleed. Although this incident is not linked in the affidavit material to any particular photograph tendered by the mother, the father relies on this entry as an example of the types of injuries that the child occasionally incurs.

[190] There is no evidence whatsoever before me, that over the two years when the photographs were taken, the mother ever took the child to a doctor regarding the injuries. A child protection worker from the CAS has spoken to the child's doctor, Dr. Kulick, who did not have concerns. There are notations in the CAS file documenting the advice of child protection workers to the mother, that she should take the child to the doctor if she has concerns.

[191] More particularly, an excerpt from the CAS file (labelled page 115 and attached as Exhibit "A" to the father's August 19, 2020 affidavit) indicates that the mother had never expressed her concerns about the child's behaviour to the family doctor, yet a recommendation was made for her to do so. That same note documents that CAS worker Ms. Henry, told the mother to take the child to the doctor if she retuned home with a significant bruise, and especially if the father did not provide an explanation. And a different note of Ms. Beckford dated December 27, 2019 again states that the mother has never expressed her concerns to the child's family doctor. Despite this advice, I have no no medical evidence before me as to whether these markings are normal or atypical, or about when they could have developed.

[192] In the case of the photograph of the rash on the child's legs (it is a photograph showing a number of skin-coloured small bumps), I do not understand why that was placed before the Court. Incidentally, the father responded to the rash issue, right away by email. There is certainly no evidence that the child was abused, and that was what caused the rash.

(3) Next Steps

[193] Although I have carefully reviewed an abundance of evidence, it will remain open to the trial judge to determine whether any of this evidence should be admitted at the trial, or treated differently. Despite the numerous evidentiary problems that I have identified and addressed, I would not foreclose the possibility of on a voir dire with oral evidence at trial. See Sharpe v. Sharpe, 2002 CarswellOnt 1565 (S.C.J.) ¶24. But at this stage of the case, this evidence does not form a foundation for the Court to find abuse, and for there to be compelling circumstances, to drastically limit the father's access.

PART V: ISSUES AND ANALYSIS CONCERNING THE CHILD'S PLAY THERAPIST

A. Background Concerning the Therapy Evidence

[194] A number of therapists have been involved with the mother and the child. At least three times, allegations of abuse by the mother were made to the Children's Aid Society of Toronto and now the York Children's Aid Society, via therapists.

[195] The mother says that on May 17, 2019, she reached out to the Etobicoke Children's Centre for support respecting the child's "anxiety, sleep disturbances and pattern of being returned to [the mother from the father] with visible injuries". To one of her affidavits, the mother has attached a summary from a walk-in session at the Etobicoke Children's Centre dated May 17, 2019. Although the summary is heavily based on the mother's self-reporting, it indicates that the therapist discussed with the mother the possibility of a sleep assessment for the child, another program to connect the mother with others to socialize with, and ongoing counselling at the Etobicoke Children's Centre.

[196] The mother says she and the child used several of the Etobicoke Children's Centre's resources such as counselling and parenting classes for "explosive children". However, there are no further details before me about any of this extra programming that mother says she pursued per these recommendations of Etobicoke Children's Centre.

[197] The Etobicoke Children's Centre summary also reveals that the mother had been meeting with a therapist of her own, and that therapist made a referral to the Children's Aid Society. To the Court in one of her affidavits, the mother says that a therapist named Diana Da Conceicao, was so concerned that she called the Children's Aid Society.

[198] I have reviewed the note of CAS intake worker Colleen Cohen dated May 17, 2019, the timing of which appears to cross-reference to this call to the CAS, referenced in the Etobicoke Children's Centre summary. What the mother does not say in her affidavit (but the CAS note does say), is that the mother had told the therapist her theory that the father was not hitting the child.

[199] Another report to the CAS was made by a different therapist on the mother's behalf. The mother says that in June 2019, after the child disclosed that T.S. hit her, she sought other professional assistance, this time from Samantha Hunt, MSW, RSW. To her affidavit of July 24, 2020, the mother has attached an email chain between her and Ms. Hunt on June 7, 2020. In the email chain, the therapist says that she would be calling the Children's Aid Society to make a report, and although "the last time we had called together… they were not helpful", Ms. Hunt would really be advocating this time. To Ms. Hunt, the mother responded that she was "on board with anything that will help" the child, that the child was with her father that particular weekend and that she was nervous and had anxiety about "backlash from [the father] and T.S."

[200] Neither this email, nor the mother's affidavit, explains what the mother told Ms. Hunt that triggered her to telephone the Children's Aid Society. According to the case note of CAS worker Michelle Henry dated September 23, 2019, Ms. Hunt had called because the mother reported that when she was putting the child in a time out, the daughter raised her hand in a defensive way and said "please don't spank me". The child then apparently said, when asked by the mother, that T.S. spanks her in her face.

[201] Beginning in early April, 2020, the mother arranged for a play therapist, Ms. Rachel Tara Koblitz, to see the child on a weekly basis for play therapy. This is the therapist to whom I referred in a footnote earlier in this decision. Ms. Koblitz has authored the "expert report" that was the subject of argument on August 14, 2020. As I will explain, it has now been revealed that in late August, post-motion, Ms. Koblitz made another referral to both the Children's Aid Society of Toronto and to the York Children's Aid Society.

B. The Request to Tender "Expert Evidence" From Ms. Koblitz

(1) Applicable Legal Principles Concerning Oral Evidence On a Motion

[202] On August 14, 2020, both sides advised the Court that each wished to have the therapist testify at the motion, for different reasons. I dismissed the requests for viva voce evidence, for brief oral reasons at the time. My reasons had to do with the nature of the evidence sought to be introduced, the purpose for wanting to call the oral evidence, and the stage of this proceeding. I indicated I might later release written reasons as to my decision not to allow Ms. Koblitz to give oral evidence on the motion. I do so now.

[203] The Family Law Rules, recently amended in 2019, now delineate different kinds of experts. Rule 20.2(1) defines a "litigation expert" as a person engaged for the purposes of litigation to provide expert opinion evidence, a "participant expert" as a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue, and a "joint litigation expert" as a litigation expert engaged to provide expert opinion evidence for two or more parties. The definition of "participant expert" in the rule uses similar, if not identical language as that used by Simmons J.A. in Westerhof v. Gee Estate, 2015 ONCA 206; see also Girao v. Cunningham, 2020 ONCA 260.

[204] Rules 20.1 and 20.2 set out the duties that apply respecting certain experts, timelines for the exchange of reports, and what must be included in the different kinds of reports, among other things. Rule 20.2(15) does say that all kinds of expert opinion evidence may be used on an interim motion, although there is little guidance in the rule as to how it should be admitted.

[205] Rule 14(17)(3.) of the Family Law Rules allows for oral evidence on a motion, with the Court's permission. In Riss v. Greenough, 2002 CarswellOnt 2326 (S.C.J.), Quinn J. applied a "special circumstances" test. The facts of that case are distinguishable, however. At ¶ 12, Quinn J. found the fact that three witnesses, with information relevant to issues on the motions, had refused to provide affidavits, and that amounted to special circumstances. The outcome turned on the inability to get that evidence before the Court via other means.

[206] Arguably, the need for a voir dire to introduce expert evidence on a motion could be a "special circumstance" under which oral evidence might be permitted. For example, in J.K.L.D. v. W.J.A., 2020 ONCJ 335, I indicated the Court was prepared to hear oral evidence from a medical doctor, but that was because what was filed in the record before the Court was a practitioner's report, the report was admitted into evidence on that basis, and section 52 of the Evidence Act obliges that there be cross-examination at the request of a party. In this case before me now, neither counsel suggested that section 52 of the Evidence Act applied to Ms. Koblitz' report, and certainly no Evidence Act notice under that section had been given.

[207] In determining whether to permit oral evidence on a motion, the Court must also be mindful of time, expense and proportionality. Although he allowed the viva voce evidence in Riss v. Greenough, Quinn J. averted to this. He said that oral evidence would make motions more expensive and time consuming for the parties, and the Court. This is something that E. Murray J. also echoed in Copeland v. Perrault, 2006 CarswellOnt 9305 (C.J.) ¶ 18-20, too.

[208] In Copeland v. Perreault, Murray J. had to decide whether to permit an out of court questioning a social worker from the Office of the Children's Lawyer in advance of a motion, versus whether that social worker could only be examined in Court, as the Children's Lawyer argued. While that is not the exact issue that now presents before me, Murray J. made some comments about process and judicial resources, which I find to be applicable to this case before me.

[209] Murray J. said, "[o]ral evidence on a motion is thus the exception, not the rule…", "…[r]ule 14(17) would suggest that there is a presumption against an oral hearing", and "… a reading of Rule 14 which always required oral evidence from a particular category of witnesses for whom cross-examination was sought is contrary to the primary objective of the Rules. Such an interpretation would necessarily mean longer motions, and scheduling of such motions would result in further delays."

(2) The Need for Viva Voce Evidence at this Stage of the Case

[210] The Court was initially told, by counsel for the mother, that Ms. Koblitz would be offered up to the Court as a "litigation expert". Counsel submitted that a voir dire with oral evidence would be necessary, so that she could be qualified as an expert.

[211] By letter dated July 3, 2020 to Ms. Koblitz, Mr. Cartel requested that she prepare a report. Portions of Mr. Cartel's suggest that she might be characterized as a "litigation expert", but there is also a reference in the letter to her involvement just as the child's regular therapist.

[212] More particularly, paragraph 1 of the instructing letter to Ms. Koblitz reads:

We are legal counsel to [Ms. L.D.], mother to the child [A. E-D.]; it is understood that you have seen [A.] regularly as her therapist. We wish to retain your services to provide an expert opinion with respect to [A.] and whether any of her behaviours exhibited in therapy are indicative of any form of abuse sustained by her.

[213] Paragraph 2 of the letter states that the purpose of the opinion is for use on a motion to obtain an order prohibiting the father from having any form of physical contact with the child, among other relief.

[214] Paragraph 3 of the instructing letter asks the therapist to explain the nature of play therapy and how it "is used to determine if a child has been abused or is in some form of conflict", as well as to comment on whether A. E-D. has been subject to either physical or emotional abuse while in the care of the father or T.S.

[215] In response to the request, Ms. Koblitz wrote a report for Mr. Cartel dated the next day, July 4, 2020. She also signed the Acknowledge of Expert's Duty form, which is required of "litigation experts".

[216] Regarding the initial statement to the Court by Mr. Cartel that Ms. Koblitz is a "litigation expert", the contents of her report do not comply with the requirements of a litigation expert's report, as set out in rule 20.2(2). I also note that, according to rule 20.2(8) of the Family Law Rules, "litigation expert opinion evidence" may only be presented by a "joint litigation expert" in cases about custody or access under the Children's Law Reform Act, " unless the court orders otherwise". Ms. Koblitz was not jointly retained, and the mother did not seek leave to present this evidence otherwise, as is required by rule 20.2(8).

[217] Nevertheless, as the motion materials came in and the Court heard the submissions, the Court learned that Ms. Koblitz was not actually hired as a "litigation expert" by the mother. Rather, as I have averred to, she had been engaged by the mother as the child's therapist. Even Mr. Cartel's instructing letter of July 3, 2020, and Ms. Koblitz' own report dated July 4, 2020, states this.

[218] More particularly, the mother says she started having the child see Ms. Koblitz because of the child's anxiety and increasingly aggressive behaviour, as well as the many disturbing things the child had been telling her, and being hit by T.S. such that her nose bled. The mother believes that now that the child is older, she can better articulate her feelings and she wanted the child to form a relationship with Ms. Koblitz out of a concern for her mental and physical well-being.

[219] If anything, it may be said that Ms. Koblitz is a "participant expert". Both counsel eventually took this position during argument on August 14, 2020. Assuming without deciding at this point that is the case, then I query whether or how that would impact the mother's request for viva voce evidence, at this stage of the case?

[220] There are multiple reasons why oral evidence was not allowed in this case.

[221] First, and to be clear, I would not foreclose the possibility that oral evidence may be required on a motion, if that is needed for the proper presentation of expert opinion evidence, regardless of the type of expert opinion evidence. However, in light of the change about the nature of Ms. Koblitz' evidence, the need for a voir dire to qualify her to give opinion evidence as a "litigation expert" dissipated.

[222] Second, in light of the concession from counsel for the father that Ms. Koblitz' report (and notes) could go into evidence and be considered by the Court on this motion regardless of whether there would be oral evidence or not, I need not comment further about whether oral evidence was needed to explore Ms. Koblitz' ability to give evidence as a "participant expert".

[223] Third, I did not find Mr. Cartel's request to have the therapist testify so he could have her elaborate about her findings, including commenting on the child's "verbal and non verbal cues" to be a persuasive reason to have her testify. The therapist was readily willing to write a report for Mr. Cartel. Indeed, she did so within one day of his request for a report. Certainly, any elaboration could have been achieved by other means, such as an affidavit or a supplementary letter. And as I will explain, Mr. Cartel did procure an additional affidavit from Ms. Koblitz, recently after the motion was argued. This is not a situation, such as in Riss v. Greenough, where the evidence sought to be adduced orally could not be obtained by any other means.

[224] Fourth, in her report, Ms. Koblitz does not actually offer up the very answer to the question that the mother asked. The point of oral evidence therefore became quite questionable, given that the report essentially concludes with Ms. Koblitz saying she is unable to offer the opinion sought.

[225] Had there actually been such an opinion, then the Court might have had to deal with whether this particular therapist is even able to give opinion evidence in answer to the question sought (ie. that the father and T.S. have abused the child). I raise this here, because if the mother still intends to call this particular witness, later on in this case to establish such a proposition, then she must consider whether that is proper. See for example B.(C.) v. M. (T.), 2013 NSCA 53; Re M. (L.J.R.), 2000 ABPC 64; R. (C.L) v. L. (J.G.), 1998 CarswellBC 3033 (Prov. Ct.); and Children's Aid Society of Algoma v. S.B., 2019 ONCJ 815.

[226] And to that I would add that the length of Ms. Koblitz ongoing involvement is in dispute. Ms. Koblitz' clinical notes that were available to the Court at the time the motions were argued, reveal that the mother was in the process of changing therapists. While the new information that Mr. Cartel sent to the Court on September 17, 2020 (which I will come to) reveals that Ms. Koblitz has continued on since the motion, the Court has serious concerns about that.

[227] Fifth, the father's counsel's request for oral evidence was simpler, and easier to address. Father's counsel's request to question Ms. Koblitz was more in the nature of a disclosure request. Counsel was initially concerned that she did not have full disclosure of Ms. Koblitz' file. However, Mr. Cartel confirmed on the record that she did. As I explain below, I have just learned that was a false submission.

[228] Once she was informed by Mr. Cartel on the record that she had all of Ms. Koblitz' notes, counsel for the father further indicated that she wanted to have Ms. Koblitz testify, so she could question her about two entries in the notes that she did have, in particular. Counsel indicated that she had been having some difficulty speaking to Ms. Koblitz prior to the motion, and that mother's counsel had objected to her speaking to the therapist, in the absence of Mr. Cartel. For reasons delivered on August 14, 2020, I ordered that the father or his counsel could speak to Ms. Koblitz. By the time this motion returned before me, additional material was filed to clarify the two entries in the notes about which father's counsel wanted clarification. As I will also explain below, I have now learned that the day after I made this ruling, mother warned Ms. Koblitz that father's counsel would be calling, and what to anticipate during that call.

[229] Sixth, rule 20(5) of the Family Law Rules makes provision for an out of court questioning. Neither side asked for an out of court examination. While that may have been due to timing issues related to the manner in which this motion was brought on before the Court, an out of court examination will normally be a good alternative to a request for oral evidence on a motion.

[230] And finally, I return to Quinn J.'s and Murray J.'s comments about the effect of oral evidence on a motion on court resources and the process, applied to the particular context of this case. I note again that this case has only just begun. There is already voluminous affidavit and other material before the Court. As I have already said, these motions took multiple attendances to organize and to argue. It seems to me that Murray J.'s and Quinn J.'s comments are quite apt. This is especially so, when the Court considers the ultimate nature of the therapy evidence sought to be adduced, and the questionable need in this case to supplement it with oral evidence.

[231] So how will the Court treat this therapy evidence then? Albeit at a trial, at ¶ 287 of D.J. v. S.F., 2017 ONCJ 879, O'Connell J. allowed a therapist to give evidence as to her observations and clinical impressions of the child during her therapeutic sessions, but she would not qualify her as a litigation expert nor allow her to give a diagnosis or psychological opinion. In this case before me, Ms. Koblitz does not even purport to offer a diagnosis, a psychological opinion, or even many opinions at all. I intend to follow O'Connell J.'s approach, applied to Ms. Koblitz evidence, but based on the written record.

(3) Ms. Koblitz' Report dated July 4, 2020

[232] I have reviewed Ms. Koblitz' written report, as well as the notes and records which I was provided at the time of the motion.

[233] As of the date of Ms. Koblitz' report, there had been twelve online play therapy sessions with the child. According to the father's affidavit of July 31, 2020, there was another session on July 11, 2020, after the date of the report.

[234] In her report, after explaining the nature of play therapy, Ms. Koblitz says she observed the child to be controlling and rigid in her play. Ms. Koblitz says that if she were to deviate from the child's script of what she wanted, the child would often become irritable.

[235] Ms. Koblitz reports that when she asked the child questions about her stepmother or the father, the child did shut down and remained guarded. She did say that the child reported that "T.S. fights over Mom. She does all the bad stuff", but she also remarked the child would not say what "bad stuff" means.

[236] Ms. Koblitz' conclusion/opinion is that the child is conflicted about the parental relationships in her world. The Court does not require opinion evidence to come to this conclusion.

[237] Regarding Mr. Cartel's question to Ms. Koblitz about abuse, Ms. Koblitz said she could not "clearly state" that the child is experiencing physical or emotional abuse in the father's or T.S.' care. Ms. Koblitz notes that the child did not make any direct disclosures of physical or emotional abuse, although the mother has "repeatedly informed this therapist of her concerns".

(4) Ms. Koblitz' Notes and Records Provided At the Time of the Motion

[238] Many of Ms. Koblitz' notes and records are typed. There are also handwritten notes that contain additional information.

[239] It is clear from the affidavit material as a whole, including Ms. Koblitz' report and her notes that I was provided with at the time of the motion, that the mother repeatedly articulated her own views to the therapist as to the cause of the child's behaviour, right from the outset. For example, right on page 1 of the very first typed note dated April 7, 2020, the mother told Ms. Koblitz that the child needs to be protected, and she believes that the child's behaviour is caused by the father. She said the child is "angry and confused". She also told the therapist about the allegation that the child is being coached to run away.

[240] On April 13, 2020, the mother reported that the child is very "closed off and defiant" after visits with her father and T.S. Then 7 days later, on April 20, 2020, the mother claimed that she has not been concerned about the child, as the child had been engaging in safe behaviours. The mother pointed out that the child had not seen the father in several weeks, although they talk on the phone. The mother went on to claim that the child was "hyper aroused" after the phone calls, though.

[241] On May 4, 2020, the child had a small tantrum. On this date, the mother discussed T.S.' treatment of the child. I presume the father must have contacted Ms. Koblitz around this time, because a discussion between mother and Ms. Koblitz about this is documented in the note. The note reads that the mother told Ms. Koblitz that the father was only reaching out to her, because the mother had limited his contact with the child. To Ms. Koblitz, she accused the father of recording "snippets" of his calls with the child, without context.

[242] Although the mother had previously said that the child's behaviour improved since terminating the father's access, on May 14, 2020, the child was distracted. The mother said the child had been having a challenging day, and was having some meltdowns. On the mother's account, this behaviour was still occurring well after access had been suspended by the mother.

[243] Likewise, on May 25, 2020, the mother reported that the child had been "very needy lately". It is this note that suggests the mother may be sourcing another therapists. The mother said that the child would be starting therapy with another therapist offered through a military families' program, since a family member of hers is a military member.

[244] In her typed note of June 8, 2020, Ms. Koblitz opines that there may be a theme of confusion as to who her mother is, and who is nice or not nice, her mother or T.S.? In her handwritten note, the therapist appears to suggest to the mother that she investigate the Developmental Clinic at the Scarborough Hospital, if she thinks the child needs an assessment for a potential ADHD diagnosis. I have no evidence that this was done. And in the same note, when discussing T.S., the therapist also writes: "scared of T.S. What's happening? Manipulation".

[245] In her typed note of June 17, 2020, Ms. Koblitz documents that the child shut down when asked about her father, or T.S. The therapist observed that the child was guarded, and maybe "coached".

[246] In his affidavit of July 31, 2020, the father suggests that Ms. Koblitz' two entries about child being coached or manipulated, mean it is the mother who has done this to the child. It is these two notes that counsel for the father sought clarification about. The subsequent evidence placed before the Court after I granted the father's counsel permission to speak to Ms. Koblitz on August 14, 2020, reveals the following. Regarding the "manipulation" entry, Ms. Koblitz documented the mother expressing her belief that the child was being manipulated by T.S. Regarding the reference to being "coached", Ms. Koblitz clarification is that it was "possible" that the father and his partner could have been telling the child not to share "the bad stuff" with the therapist.

[247] In the case of the former clarification, this is nothing more than the therapist re-stating what the mother told her. In the case of the latter, it is nothing more than Ms. Koblitz' musings. I would also note that by the time of this entry in the notes, the child had not been in the father's care for multiple weeks. That would mean that the father would have had to coach the child weeks earlier.

[248] I also note an addition in Ms. Koblitz' handwritten note of June 17, 2020, that is absent from the typed note of that date. In the typed note, Ms. Koblitz says that the child shut down when asked about her father. But in the handwritten note, Ms. Koblitz writes that she observed the child ask her mother, if she had a father. When the mother responded that her father was "daddy", the child told Ms. Koblitz that she likes to play with her father.

(5) The New Affidavit Sworn September 16, 2020 and Additional Notes

[249] As the Court was literally just about to release this decision, court staff placed in my office a letter from Mr. Cartel dated September 17, 2020 enclosing yet another affidavit, this time from the child's therapist, Ms. Koblitz sworn September 16, 2020. The affidavit attaches a plethora of new notes not previously provided, including notes of therapy sessions dated from both before and after argument of the motion on August 21, 2020.

[250] As I indicated earlier, when father's counsel advised the Court on August 14, 2020 that she wanted to ensure that she had full disclosure from the therapist, Mr. Cartel advised that all the notes had been provided. He told the Court he had confirmed this with Ms. Koblitz. That all the notes had been provided to opposing counsel was incorrect.

[251] Mr. Cartel's letter of September 17, 2020 to the Court says, "[w]e understand that you are not functus officio, and we serve and file this affidavit and seek its admission at the discretion of this Honourable Court". I have no indication as to whether counsel for the father consented to Mr. Cartel writing to the Court directly. In any event, Mr. Cartel ought to have filed a 14B Motion seeking leave to file additional evidence. He did not do so.

[252] Nevertheless, in order to determine how to address this late request from mother's counsel and to decide whether to invite a response from the father and additional submissions, I have now reviewed the new affidavit and the notes. I would not delay the release of this decision. Nor do I require a response from the father at this time.

[253] I begin with the new affidavit. I will then turn to the additional notes with which I have now been provided.

[254] First, I note that apparently the therapist had a discussion with the child about whether she knows what a lawyer is, and what a judge is. The affidavit says that the child knows this.

[255] In her new affidavit, and without giving me much context, the therapist apparently decided to ask the child how she felt about seeing T.S. again. According to the therapist, the child shook her head "no" and then said "[T.S.] does bad things". The therapist decided to ask the child a follow up question. Now the therapist reports that the child responded, "she hit me in the face, pinches me, and puts me in a cold shower". The therapist went on to explain to the child that someone might come and talk to her, and that she should be honest and share with that person what happened.

[256] According to the new affidavit, the mother then provided Ms. Koblitz with "the current [not named] CAS worker's phone number." Ms. Koblitz says she could not get in contact with that worker, so she made a call to the intake department of the York Children's Aid Society. She says that the York CAS is now investigating. It is baffling to the Court why this was not brought to my attention, when this occurred back in August, and specifically that the therapist contacted a new Society, perhaps as soon as the day after this motion was argued.

[257] Insofar as the new notes are concerned, they reveal that there were a series of therapy sessions, leading up to the disclosure that the child has now made to the therapist in late August. Several of these sessions occurred well before the motion was argued, yet the notes of those sessions were not produced.

[258] According to her note of July 11, 2020, the therapist tried to read a book with the child called "A Terrible Thing Happened", but the child did not want to be read to. The therapist did not persist, but she did decide to try again at the next session.

[259] According to Ms. Koblitz' note of July 18, 2020, she did read the book this day. These two notes reveal that "A Terrible Thing Happened" is a book for children who have "witnessed any kind of violent or traumatic episode without naming what the trauma is". The child apparently said the book was "kinda scary".

[260] The therapist then tried to get the child to draw the "scariest thing that happened to her". The child's response was that she could not do this. The child started drawing other pictures, and she talked positively about going to the beach with her father. The mother later told the therapist that the child likes to go to the beach because "T.S. doesn't hit there".

[261] According to her note of August 1, 2020, Ms. Koblitz chose to read a different book to the child, this one called "Do you have a secret". The note says the purpose of reading this book was to help the child understand what good secrets are, versus what bad secrets are: "eg. someone hitting you". The note goes on to explain that the mother and the therapist encouraged the child to share both a good and bad secret, with the mother explaining to the child that the therapist was "a safe person".

[262] When the mother then told the child to tell the therapist about T.S., the child said, "I don't know what she did" and "I want to play now". Apparently, the therapist did not want to pressure the child, so they started to play.

[263] According to her note dated August 15, 2020, the therapist read another book to the child, this one about different family constellations. According to the note, the child seemed to enjoy the story. The child went on to explain to the therapist who are the members of her mother's household, and who are the member's of her father's household. According to the child, the people in the father's household are the father, T.S., T.S.' daughter and people the child referred to as her grandparents (whom the Court understands to be T.S.' parents).

[264] Above, I said that the mother warned the therapist that father's counsel would be calling her after the Court rendered its ruling on August 14, 2020. The note of August 15, 2020 (one day after that ruling) is the note that reveals that the mother's conversation with the therapist about this. The mother explained to the therapist what she thought father's counsel's questions of clarification would be.

[265] In her note of August 22, 2020, Ms. Koblitz reported that the child said she understands that judges make decisions about what visits should look like. While this day the therapist was apparently reading a book to the child about divorced dinosaurs, it appears that mother has been discussing this litigation with the child, including via these therapy sessions.

(6) Conclusions Respecting the Therapy Evidence

[266] The actual evidence of the child's therapist that was before the Court when this motion was argued, is not helpful to my determination of the issues that have been raised in this case at this stage. The father says that he wants both access to information from the therapist, and to be involved in the child's therapy. That was not an unreasonable request for him to have made before, and even more so now in light of the new affidavit from Ms. Koblitz of September 17, 2020, and the new notes not previously disclosed. The father has been excluded from the child's therapy. By contrast, several of the notes, new and old, reveal that the mother sometimes participates in the child's therapy, and certainly she has been talking to the therapist about this proceeding and her views.

[267] Although Ms. Koblitz may offer her observations of the child as the child's therapist, it is difficult to tell, to what extent Ms. Koblitz' observations might have been influenced by the fact that the mother has given the therapist her perspective, repeatedly, about the background and need for this therapy in the first place. The Court is concerned about this dynamic.

[268] Ms. Koblitz would not offer an opinion in her report of July 4, 2020, because the child had not made a disclosure to her. In light of Ms. Koblitz' failure to give an opinion in her report of July 4, 2020, I need not decide this further at this point. In due course, there may be cross-examination of Ms. Koblitz if she is called as a witness at trial. Perhaps she will change her opinion. But I refer again to my comments above, about what might or might not be permissible expert evidence.

[269] Based on the new affidavit and notes now provided, it appears that leading up to the motion, both the mother and the therapist were trying to get the child to make a statement. Based on the manner in which this therapy has unfolded, the Court has a real concern about this therapy, and in particular that the mother and the therapist are both pressuring and prompting this child.

[270] I find the therapy evidence that was before me at the time of the motion more to be relevant to what the mother told the therapist, than to any particular observation of the child over the 12 or 13 sessions. The therapist's file also appears to confirm that the child suffers from attention or behaviour issues, which I come to next.

[271] Regarding the new affidavit and the additional notes, the Court again states that it is concerned that this child is being pressured and prompted. There is a lot of unfairness to the father here in the manner in which the mother is trying to present this evidence. Most of the newly disclosed notes ought to have been disclosed to counsel for the father quite some time ago.

[272] On the main issue, namely that the child has now made a disclosure of abuse, the child's latest statement in the new affidavit of Ms. Koblitz and her corresponding note, is not new. It is a similar, if not the same statement, that the child made previously in one of the recordings, the admissibility and weight of which I have already dealt with. What has now happened is that the child has now just repeated it to someone else. Just because the child has repeated it again, after multiple therapy sessions that on the face of the notes are highly suspect, does not somehow bolster the reliability of this statement.

[273] Although Ms. Koblitz telephoned two children's aid societies weeks ago and prepared the child for a further interview from a child protection worker that would ensue, again I am just learning about this, the day before the release of this decision. I have no information as to the outcome of any investigations that may have been initiated as early as several weeks ago. The outcome or status of any such investigations is noticeably absent from the new information that Mr. Cartel has sent to the Court. Nevertheless, I will direct that this decision is to be provided to any child welfare agency involved in an investigation or with this family more generally. If something new comes to light as a result of recent child welfare involvement that might warrant the Court to change this decision, then I may be contacted.

[274] When this matter returns before me, I invite counsel to bring a motion to address this therapy. If any remedies are sought, including about the father's involvement in it, or that therapy should stop, perhaps pending recommendations from an appropriate individual like a custody or access assessor, I am prepared to hear argument.

PART VII: THE CHILD'S BEHAVIOURAL ISSUES

[275] While the mother has made the focus of this case one of alleged abuse, the child's health needs may be going untreated. Even according to the mother, A. E-D. has anxiety and engages in "self-destructive" behaviour. She describes the child as having "complete meltdowns". Again, she says she took a parenting course for "explosive children". But instead of exploring further the root cause of this (which she has been advised in to do in some way or another by the CAS, the Etobicoke Children's Centre and even Ms. Koblitz), she links this to the father's access.

[276] The father denies that the child exhibits self-destructive or aggressive behaviours while in his care. He says that during his parenting time, he maintains an active lifestyle. He provides the child with an outlet to expend her energy. He says that he spends a lot of time playing with the child, and that he is able to handle her. According to the father's evidence, he does not see the behaviour that the mother is describing. Yet at the same time, he is also critical of the mother for not exploring an ADHD referral and diagnosis (see below).

[277] Quite apart from the parents' perspectives, there is other evidence before the Court about the child's behaviour. Others involved with the child have observed aggressive behaviour. There are three principal documents in the record now before me, generated by others, to this effect.

[278] First, the child's report card dated December 11, 2019, from her first term in junior kindergarten, reads that the child is a "confident student who is still learning to adjust to the academic and social demands of kindergarten", yet she "experiences a wide spectrum of emotions that vary from extremely happy to full blown temper tantrums and meltdowns on a daily basis". The report card goes on to document that, whether the child will cooperate with peers, depends on her emotions at the specific time in issue. The child also has difficulty cleaning up after herself, she requires several reminders when transitioning from one place to the next, and she sometimes refuses to line up with the other children.

[279] Second, already at this early stage of the child's education, school officials have generated a safety plan for their interactions with the child. This safety plan, filed by the mother, appears to form part of an Individual Education Plan. The IEP itself was not supplied to the Court by the mother.

[280] The safety plan indicates that the child will throw objects in anger, she kicks or pinches other students, that she will fall to the floor or block staff who are trying to intervene, and that she will refuse to move if it is time to move to another activity, or if she does not like the next activity. The safety plan states that the child may be triggered when asked to complete a task that she is not interested in doing, that she may react when she is not picked for something that she would prefer to do, that she may react when school staff counts to get her to move to the next task, and that she may be triggered by being asked to eat a snack that is offered to all students, rather than a treat of her own from her backpack.

[281] The safety plan contains a number of strategies for staff to manage this behaviour. The father was excluded from the development of this plan. He is not even listed as one of the child's parents on the document.

[282] Third, there is an email exchange dated October 25, 2019 between the child's day care and the mother. This particular email exchange began by the mother emailing a daycare staff person to advise that the father would be picking the child up at the end of the day. The staff person responded by describing the child's behaviour of that morning. According to the email, the child pushed three different children. Apparently, the child also said to daycare staff that "she can't see babies and doesn't like them".

[283] I note that the date of the particular email between the mother and the daycare staff person fell on a Friday. At least in the narrow case of this particular incident, the child's behaviours occurred on a morning, after the child was in her mother's care, not the father's. The father's last weekend with the child, would have been two weekends earlier.

[284] The father tells the Court about all of the changes in the child's life that the mother has caused. He says that by the time the child was three years old, she had already attended four different day cares and two public schools. The mother moved her home three different times, and the father says new schools and day cares were chosen without input from him. The father also says that the mother has most recently placed the child in a French day care, and that the child does not understand the language. The father says the change in day cares prevented him from having midweek access, because it was too far from his workplace. To all of this I would add that this young child has now experienced some interruption to important relationships in her life, for the last six months.

[285] Much of this is admitted by the mother. But she does not acknowledge that any of these changes could be contributing to the child's issues.

[286] The father states that the mother was told to have the child assessed for ADHD. There are a number of entries in the therapist's notes that point to the child's difficulties focusing. Again, ADHD is mentioned by the therapist and it is referenced in the CAS file.

[287] Yet very little information was put before the Court about what has been done to explore ADHD or another diagnosis. In fact, the parties exchanged emails about potentially getting an ADHD assessment. The mother commented to the father, that she did not want to stigmatize the child.

PART VIII: CONCLUSIONS RESPECTING MATERIAL CHANGES AND THE CHILD'S BEST INTERESTS

[288] Based on the evidence before the Court, and the Court's findings at this interim stage, I find that there has been a material change in circumstances within the meaning of section 29 of the Children's Law Reform Act.

[289] The conflict between the parents, which existed to some degree before, has exploded. The maternal grandmother retained a private investigator. The parents (but mostly the mother) have turned to questioning and recording this child. The mother unilaterally suspended the father's access to the child for months, based on allegations of abuse, which I do not find as fact at this stage. The child has been enrolled in therapy and is being prompted there to disclose abuse. The father's relationship with his daughter has been interrupted. While the child is keenly aware of the parental conflict and is clearly being affected by it, the most reliable state of mind evidence (from the child, and said to the CAS and more recently to Ms. Koblitz) is that the child enjoys spending time with her father.

[290] The evidence suggests that the child may have an undiagnosed health issue, perhaps ADHD. It would not be appropriate for the Court to conclude at this stage that it is the access schedule that is contributing to the child's behaviour. Equally, it would not be appropriate for the Court to conclude that the child has ADHD and that is the cause. However, there is an adequate evidentiary basis such that both are worth exploring further, as is the mother's conduct with this child. The child's needs, and the ability and willingness of the parents to satisfy those needs, must be explored.

[291] So while there have been material changes in circumstances, the facts do not warrant a suspension of the father's access. The terms that I intend to impose on a without prejudice basis, are to manage the parental conflict and its impact on the child, until the issues that I have identified can be better, and properly explored. I find that the terms I intend to order, are proportional to the changed circumstances in this case.

[292] Finally, the father has asked for a considerable amount of make-up access, on a 1 to 1 basis, to make up for all of the access he has missed. The father asks the Court to order that make up access on the alternating weekends, when the child would normally be with the mother. That would mean that the child would essentially be in his care each weekend, for quite some time into the future.

[293] In fact, father's counsel advised the Court that the total make up time he seeks would be the equivalent of an additional 20 weekends. Taken consecutively, the child would not be in her mother's care at all on weekends for about the next 10 months.

[294] On the one hand I am somewhat sympathetic to the father's request. But the Court must be guided by the child's best interests. The amount of make up access that I have been asked to order, is an incredible amount of make up access under these circumstances.

[295] I do not intend to order make-up access. While it is very unfortunate (and not in the child's best interests) that the mother acted this way, it would equally not be in the child's best interests to alter the schedule I ordered following the 2017 trial in such a dramatic fashion. I do not know if the child could tolerate that new schedule, particularly in light of the long period of suspension, and the child's other behaviours that I am now aware of. Make up access is also sometimes a recipe for parental conflict, and there is much of that already in this case as it is.

[296] Likewise, I do not intend to grant the father's oral motions for police enforcement, at this point. The parents, and I direct these comments at the mother specifically, are expected to follow the Court's Order. I do not intend to add any fuel to the conflict by adding the police. This term may be revisited once the access resumes, and should more information comes to light, or if there is any non-compliance by the mother going forward.

[297] The request that T.S. may do the pick up in the father's place was not part of the father's Notice of Motion; it was an oral request that counsel added during the motion. I need not deal with this. The trial Judgment of January 22, 2018, provides for pick up and drop off at the school/day care, and for a return at the mother's home during the mid-week. I leave it to the father to make these arrangements in a responsible manner, and one that does not result in conflict in the presence of the child. I would recommend at this point that T.S. not attend at the mother's home for any mid-week drop offs, to insulate the child from the conflict.

[298] I do, however, intend to make an order that there be no further recording of the child, the other parent, and others. The mother's position on this, that she wishes to continue to record the child, reflects a serious lack of insight on her part into the risk of harm to the child, and to the child's important relationships, that continued recording may cause.

[299] Lastly, as considerable amounts of evidence have been placed before and considered by the Court already in this case, I intend to be quite directive to the parties as to the next steps in the litigation.

PART IX: ORDER

[300] I make the following orders:

(a) The parties are to resume following this Court's Orders of January 22 and March 16, 2018. When the motion was argued, the father advised the Court that his next weekend with the child would have been August 28, 2020 had the schedule not been interrupted. Therefore, according to the calendar of alternating weekends since then, his next weekend with the child will now resume on September 25, 2020. To be clear, the Court's Orders of January 22 and March 16, 2018 are re-instated in full;

(b) The mother's cross-motion dated July 24, 2020 is dismissed;

(c) The father's request for make up access is dismissed;

(d) The father's oral motion for police enforcement is dismissed, without prejudice for it to be revived later in the case, if warranted;

(e) The mother's motion for a restraining order against T.S. is dismissed;

(f) Neither parent shall record each other, A. E-D. or any professional involved with this family in any way, without the express authorization of the particular person. I make this Order pursuant to section 28(1)(c) of the Children's Law Reform Act; and

(g) Counsel are directed to forthwith provide a copy of this decision to whomever is the current child protection worker at any children's aid society now involved with this family. To my knowledge that may include the Children's Aid Society of Toronto, and now York Children's Aid Society. Because this decision uses initials, counsel's cover letters to the Society should specify the parties' names, and the child's name and date of birth.

PART X: NEXT STEPS

[301] The next event in this case shall occur on November 20, 2020 at 2:30 pm, by telephone conference using the same dial in details and conference ID code that was supplied for these motions. Two hours are required.

[302] To prepare for that event, the parties are to consider whether there should be a custody and access assessment in this case, which might include psychological and ADHD assessments. If so, the Court will require some evidence about who should conduct the assessment pursuant to section 30 of the Children's Law Reform Act, his or her curriculum vitae and consent, evidence about time frames to complete the assessment, submissions about what information that should be supplied to the assessor, information about the estimated cost of the assessment, and submissions about how any such assessment will be paid for. Alternatively, the Court will hear submissions about whether the Children's Lawyer should be appointed.

[303] Counsel may also wish to make submissions about the therapy as set out earlier. If any remedies are sought as a result, then motions may be brought.

[304] The Court has been made aware of the existence of many other recordings. If there is any issue respecting their production to the other parent, that may be addressed next time. The precise relief sought, if any, should be set out in Notices of Motion.

[305] The Court has also been made aware of some apparent police involvement. If either parent seeks access to any notes and records of a police force, counsel should be prepared to address that next time, too. Alternatively, they should consider signing consents to the release of that information beforehand and work on getting the records in advance. The precise relief sought, if any, should be set out in Notices of Motion.

[306] Finally, the father has been substantially successful on this motion. Subject to offers and any other arguments, it may be that he is entitled to costs. I would encourage the parties to discuss costs and to determine whether costs might be dealt with on consent, or perhaps whether the responsibility to pay for the assessment, if ordered, might be adjusted.

[307] If, despite these comments, costs cannot be settled, then each side shall serve and file a Bill of Costs, copies of any Offers to Settle and any relevant case law, at least 7 days prior to the next Court date. Costs will then be argued orally next time.

[308] In view of the amount of court time these motions took to hear and decide, I strongly encourage counsel to resolve the matters addressed in this section of this decision, on consent. If they do, a 14B Motion may be filed in advance for a consent order.

[309] I have selected the next Court date based on the Court's schedule without consultation with the parties. If either side is not available, then a 14B may be submitted to reschedule this case to another date. The parties should do so promptly to avoid any delays should the Court's calendar fill up further.

Released: September 18, 2020

Signed: Justice Alex Finlayson