ONTARIO COURT OF JUSTICE DATE: 2021 08 23 COURT FILE No.: Toronto D30412/19

BETWEEN:

E. B. Applicant (Father)

— and —

M. J. Respondent (Mother)

Before Justice Robert J. Spence

Trial Heard 26, 27, 28 July and 18 August 2021 Reasons for Decision released 23 August 2021

E.B, applicant in person Ms. Serena Lein – counsel for the respondent

R. J. SPENCE J.:

1: INTRODUCTION

[1] The parties are parents of a seven-year-old boy, (L. or child).

[2] The trial was about parenting issues, including decision-making and parenting time.

[3] The father sought 50-50 parenting time, joint decision-making and a form of parallel parenting, by which he would make the final decision on medical issues and the mother would make the final decision on education issues. In the alternative, he sought an order that he be the sole decision-maker

[4] The mother sought primary parenting to be with her, with specified parenting time to the father and sole final decision-making to the mother.

2: BACKGROUND

[5] The parties entered into a romantic relationship in or around 2012. Their son, L., was born in November 2013.

[6] The parties both have children from prior relationships. In the case of the father, his daughter D., is 21 years old and is currently attending university.

[7] Mother has a daughter, M., who is currently 15 years old. She is a high school student.

[8] Both parents had the misfortune of ending their previous relationships on a less-than-amicable note.

[9] At the time their current relationship began, the father was living in his own condominium unit which he has owned since about 2006. However, with the birth of L., the parties wanted to try living together as a family unit. Accordingly, the father rented out his unit and moved into the mother’s home in or around June 2014.

[10] Unfortunately, the cohabitation was not a happy experience. The father suffered from mental health and substance abuse issues. The conflict that ensued led to an early breakdown in the relationship.

[11] In December 2014 the conflict between the parties had reached the point where the mother asked the father to leave her home. He wanted to remain until June 2015 but she insisted that he move out in January. He did so.

[12] L. remained living with mother as the primary parent.

[13] Following the separation in January 2015, the parties made informal arrangements [1] for father to have access. The father did spend time with L., although mother says that his visits were often infrequent. She said that until 2017 when L. began kindergarten, father was seeing L. only 4-5 times per month. She says father made no request for entire weekends with L. until 2018 when L. was 5 years old.

[14] Father says that mother increasingly interfered with his parenting time and began to cut back his visits with L.

[15] In April 2016, the father had a grand-mal seizure while driving. Following successful surgery in May 2016, the father learned that the remnant of his tumor was non-malignant. The father says that the mother’s concerns about his health, including the fact that he had lost his driver’s licence following the seizure, led to a substantial reduction in his parenting time.

[16] He acknowledges, however, that once he successfully passed his driver’s re-licencing test mother was then comfortable with the father driving to pick up L. This was some time in 2017.

[17] The father blamed the mother for trying to marginalize him as a parent. The mother says she always wanted the father to be an actively involved parent, but he was inconsistent in his visits, he did not keep L. to a regular schedule which caused problems for L., and he was frequently abusive toward her in his emails and text messages.

[18] Ultimately, on March 14, 2019, the father issued his court Application claiming joint custody, equal shared parenting and, in the alternative, sole custody.

[19] The mother’s Answer sought an order for sole custody with final decision-making to the mother after consulting with the father.

[20] On October 10, 2019, the matter came before the case management judge, Justice Paulseth, who noted the following in her endorsement:

high conflict, unable to agree on temporary parenting schedule

[21] Justice Paulseth made the following temporary order:

(a) Parties were to refrain from threatening or contacting the other parent’s employer and to have no contact, direct or indirect with the employer; [2] (b) Parties to arrange mediation; (c) Father to have parenting time: (i) Tuesdays and Thursdays with pickup from daycare at the end of the day and return to daycare or school the following morning; (ii) alternate weekends from Saturday 9:30 a.m. until Sunday at 6 p.m., with pickup and drop-off at the front of mother’s home, with father to remain in the car; (iii) Thanksgiving Day from noon until 6:00 p.m., pickup and drop-off at mother’s home, with father to remain in the car; and (iv) Christmas as agreed upon. (d) Justice Paulseth also ordered financial disclosure.

[22] The matter returned to court on January 22, 2020, at which time Justice Paulseth noted that financial disclosure remained outstanding. She ordered that as no financials had been filed, the financial relief requested in the pleadings were struck. [3]

[23] Because of the escalating conflict, Justice Paulseth also made an order for the appointment of the Office of the Children’s Lawyer (OCL). The OCL declined to conduct an investigation.

[24] On April 21, 2020, Justice Paulseth noted that the parents were unable to agree on the parenting issues. Accordingly she set the matter over for a trial during the week of October 19, 2020.

[25] For various reasons, the trial did not occur on the scheduled trial week and subsequent trial dates were also adjourned, in part due to Covid-19 resulting in court closures. Eventually the trial was scheduled to begin on July 26, 2021.

3: THE CHILD L.

[26] Mother describes L. as mostly a happy child. She does state that he displays emotional/behavioural difficulties, both at home as well as in school. The documentary evidence, including school report cards, supports the existence of these difficulties.

[27] He has been diagnosed with strabismus amblyopia and is followed by the Hospital for Sick Children.

[28] This eye condition requires the patching of the good eye for two hours each day, as this is intended to strengthen the weaker eye. Mother reports that she follows this protocol. She complains however, that the father often fails to do so.

[29] L. wears glasses which is an important component of his eye condition. Not infrequently, mother testified, father will return L. to her home without his glasses. However, instead of returning to his home to retrieve the glasses (the parties live about 10 minutes apart by car), he will often drop the glasses off at mother’s house the next day, or the next evening. Mother expressed that the father’s casual attitude about L.’s eye condition reflects a less-than-appropriate concern by the father for L.’s wellbeing.

[30] L. attends Grade 2 with an Individualized Education Plan in the English stream. It appears that the modified learning environment imposed by Covid-19 has been a challenge for L.

[31] L.’s teachers report that he has been demonstrating behaviourial difficulties. In March 2020, L.’s paediatrician, Dr. Taylor made a referral for an assessment of L. at CAMH. [4] The reason for the referral was L.’s behaviourial challenges, his sometimes aggressive behaviour at home with mother and an inability to self-regulate.

[32] The parents consented to the admissibility of the 66-page CAMH report. [5] The court admitted this report into evidence.

[33] CAMH conducted a full assessment, which included standardized tests. The assessment included the following observations and conclusions about L.:

L. exhibits milder features of anxiety, particularly with regards to separation anxiety.

He does not appear to meet formal criteria for a diagnosis of ADHD despite the presence of some milder features.

L. is at risk for learning disability due to significantly underdeveloped perceptual speed and varied language-based capacity, combined with persisting writing difficulties. The combination of L.’s visual impairment to his cognitive profile of needs should be further clarified with a specialist.

L. requires a comprehensive occupational therapy assessment for intervention planning purposes related to writing facility (i.e. letter reversals, letter formation and spatial organization), attention, and self-regulation. . . . will benefit from a comprehensive speech and language assessment to further clarify his performance variability on language-based ability measures.

[34] The CAMH report notes that L. will typically fall asleep in his own bed but then comes to mother’s bed [6] in the middle of the night. L. enjoys this. Fathers says that by allowing this to occur, the mother “infantilizes” L. Father testified that when L. is at his home, he sleeps in his own bed, throughout the night.

[35] The parents clearly have different views about what is appropriate for L.’s emotional wellbeing.

[36] Father reported to CAMH that L. is an “active boy and not overweight”. And yet at trial, father expressed the view that L. is “grossly overweight”. Mother’s view of this is that father is body shaming L. [7]

[37] This is another area where the parents are in significant disagreement.

4: LEGAL FRAMEWORK

[38] Subsection 21(1) of the Children’s Law Reform Act (Act) provides:

Parenting order, application by parent

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and (b) parenting time with respect to the child. 2020, c. 25 , Sched. 1, s. 2 .

[39] Subsections 24(1), (2) and (3) of the Act provide:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25 , Sched. 1, s. 6 .

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25 , Sched. 1, s. 6 .

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25 , Sched. 1, s. 6 .

[40] Subsection 24(6) of the Act provides:

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25 , Sched. 1, s. 6 .

5: THE PARENTS’ COMPETING POSITIONS AT TRIAL

[41] The parents have very different views about the ability or willingness of the other parent to act in L.’s best interests.

[42] They also have very different views about important issues pertaining to L.’s wellbeing.

[43] The father accuses the mother of parental alienation, based on what he says is a concerted effort by the mother to marginalize his involvement in L.’s life.

[44] The father asserts that the mother has done whatever she can to reduce his parenting time over the years and to assert her own control over L.’s life to his exclusion.

[45] The way in which he has communicated with the mother leaves little doubt as to how he feels about her. [8]

[46] On the other hand, the mother says she wants nothing more than for father to be actively involved in L.’s life. However, the theme running throughout her evidence is one of conflict and verbal abuse, levelled against her by the father, both prior to as well as subsequent to the parties’ separation.

[47] The mother views the father as a highly controlling individual who, when he does not get his way, lashes out at her in anger.

[48] In a case such as this, where only the parents testified, corroboration does not come in the form of oral testimony from other witnesses.

[49] However, the court was able to watch and listen to the parents during the course of trial, to not only hear what they said, but also, to observe their demeanor.

[50] Whether fortunate or otherwise, with the advent of social media including the ubiquitous usage of text messaging and emails, parties often reveal themselves in a way which they otherwise might not have wished a court to see.

[51] It is those text messages and emails which the court has found to be quite revealing in this case.

6: ANALYSIS

6.1 The father’s request for joint decision-making or parallel parenting

[52] The starting point for the court’s consideration of the claim for joint custody is the Court of Appeal decision in Kaplanis v. Kaplanis, 2005 ONCA 1625. In that case, the trial judge made a joint custody [9] order. The Court of Appeal overturned the order, finding that joint custody was inappropriate. I summarize the important considerations of the Court of Appeal in its analysis found at paragraphs 9 through 16 of its reasons:

1. There must be evidence of the parties’ ability to communicate, historically, and that the communication has been appropriate and cooperative. The court will not order joint custody with the hope that the order will improve the parents’ communication.
2. Simply because both parents are fit to care for their child, does not mean that joint custody ought to be ordered.
3. The fact that one parent professes an inability to communicate with the other parent, does not preclude the making of a joint custody order.
4. The younger the child, the more important is effective communication.

[53] Effective communication is a theme which runs through Kaplanis as well as other case law which I will refer to as I continue my analysis in these Reasons.

[54] One of the few things about which the parties agree is that their case is indeed one of high conflict. The mother and the father are both unequivocal in this regard. Justice Paulseth noted this as well in her endorsement dated October 10, 2019 while she was managing this case before it came to trial.

[55] It is important to understand that the high conflict in this case goes straight to the heart of the parties’ inability to communicate effectively.

[56] That conflict began very early in the parties’ relationship. They had lived together for only a few short months following L.’s birth before the relationship fell apart.

[57] The father glosses over this by stating in his evidence:

We wanted to try to raise L. in a traditional family home environment, and so we cohabited in [mother’s] home from June 2014 until January of 2015. However, the relationship did not work out; I moved out and back to my condo.

[58] However, the evidence reveals something far more negative than simply “the relationship did not work out”.

[59] In his cross-examination, the father admitted that between 2010 and 2019 when he issued the court Application, he had substance abuse issues.

[60] His behaviour was marked by alcohol abuse and anger.

[61] When he first moved in with the mother in 2014, the father promised her that he would become sober and seek treatment. He told mother that he had enrolled in a Day Withdrawal Program through Toronto East Health Network. He asked her to attend a Family Support Group, which mother did, together with the father’s then 16-year-old daughter.

[62] Mother testified that father attended the Day Withdrawal Program three full days a week, and he had a case manager at the Toronto East General Hospital.

[63] In her testimony, the mother stated that addiction and mental health issues had been longstanding. He had previously sought help from Bellwoods treatment centre in 2011.

[64] Mother had hoped – and believed – that father had been taking steps to get the help he needed. But, according to mother, he failed to follow through, and he deteriorated, returning to his old habits. She says that by September 2014 he was drinking heavily again. [10]

[65] Mother tendered into evidence a picture of a hole in the wall which she says the father created when he punched the wall with his fist. The father denied punching his fist through the wall. However, in his closing submissions the father argued that even if he did this, the incident was so historical in nature that the court should place no weight on it.

[66] The court finds this argument to be very revealing. It demonstrates to the court the father’s lack of understanding and insight into his own personal issues.

[67] By September and October 2014, the father’s behaviour had significantly deteriorated. In one series of text messages the father sent to the mother in September 2014, the father and the mother engaged in the following exchange after 8:00 p.m. [my emphasis]: [11]

F: Pls leave the door open. I will be 10 min! M: Text me when close. Feeling safe is imp to us F: No MJ. I will flip out M: look at what you’re flipping out over F: Just leave it open now M: text me. I don’t leave doors open at night in urban Toronto F: Just leave it fucking open M: This never used to be an issue for you, you leave and get mad at me if I want us to stay safe?!?!!? F: You won’t feel safe if that door is locked! Capice! M: Okay I am crying now. What is wrong with you??!?

[68] In December 2014, as the father’s behaviour escalated, the mother concluded she could no longer continue to cohabit with him. She asked him to leave. He did so, in January 2015.

[69] The parents did manage to implement an informal parenting schedule for the father following the reinstatement of his driver’s licence in early 2017.

[70] However, the father continued to engage with the mother in a highly critical manner. For example, in April 2019, the father texted the mother, insisting that he be able to pick up L. The following exchange occurred [my emphasis]:

F: I would like to see him this weekend. What time is he available? M: Are you drunk or high? Stop texting me. F: I’m waiting to be served!!??? U hv no clue how to parent and it shows in L. M: Stop insulting me, stop harassing me. Stop texting me F: Oh Ya M: Really, we’ll let the court decide. F: Cept that’s not where parenting occurs twit M: stop calling me names

[71] In later text message exchanges [my emphasis]:

F: You’re just a selfish cunt feminist cultural Marxist asshole . Get your expensive lawyer and take me to court you will no longer be getting the child care benefit and neither will I. M: You just said you are going to lie to the CRA, then called me a “selfish cunt feminist cultural Marxist asshole”. You are making me go to court. F: Pls go and fuck yourself . You either interrogated a 5 yr old or you pumped his stomach. It’s on you. Yes . . . your just a nasty cunt .

[72] Both parents have periodically recorded conversations with L. In this trial, both have filed transcripts of these conversations. Both parents have explanations and justifications for having done so. In father’s case, on one occasion the father believed the maternal grandfather had hit L., and he wanted to record the evidence of this in a conversation with L.

[73] In the mother’s case, the mother says there were a number of occasions when L. reported to her that he was mistreated by his father and she felt it was important to discuss this with L., and to record those conversations. She says, however, that she did not want to put L. in the middle so she ensured he was not aware that she was making the recordings. [12]

[74] In 2017, the father wanted to claim L. as a dependent for income tax purposes, notwithstanding that L. was living primarily with mother. The father messaged the mother that she had a to sign a document to that effect, in exchange for which he would pay her $2,500. He texted her [my emphasis]:

I am suggesting you politely go along with this despite being unemployed OR I can and will go to the DARK side . This has ZERO to do with defacto custody . . . which is yours and I would not challenge and I would never win. CAPICE! I want an answer TONIGHT .

[75] The father had stopped paying child support in 2019. [13] The mother continuously requested that he assist her financially. He refused to do so. He acknowledged at trial that he was earning $80,000 per year.

[76] The father never offered the court an explanation for refusing to pay child support to the mother.

[77] On October 3, 2019, the mother and father exchanged the following text messages:

M: L. tells me he was in a car accident with you on Tuesday night. Can you please tell me what happened? He said the car was hit abruptly from behind. He also says you were calling the other person names. Please explain what happened. F: L. is fine. I’m fine and my car will be repaired. I would advise if not the case.

[78] That was the full extent of the father’s response to the child having reported that he had been in a car accident with his father. The father says he can cooperate and parent jointly, but he refused to tell the mother what happened in an accident which directly involved the child. His response to the mother was dismissive of her, and insensitive to her understandable concerns.

[79] On January 27, 2020, at 10:54 a.m. the mother sent the following message to father:

M: You dropped L. off with a one inch cut on his cheek last night. See attached picture. [14] How did he get it. He does not seem to want to tell me. He is really off which is odd. Please explain.

[80] Four days later, on February 1st, the father responded:

L. cut his face in his bed. Not sure how but it wasn’t at the bike park.

[81] Leaving aside that strange explanation – the child cut himself in his bed - the child had returned to mother with a noticeable cut on his cheek; the mother understandably reached out to the father for an explanation; and the father failed to respond to this inquiry for four days.

[82] Once again, the father’s response, coming four days after the mother’s inquiry, demonstrates an indifference and dismissiveness, both in terms of the content of that response as well as its lateness.

[83] These kinds of messages from the father significantly undercuts his claim that he is willing to cooperate and work together with the mother to make decisions in the child’s best interests.

[84] On February 28, 2019, in an exchange of text messages, the father was accusing the mother of being “derelict or deceitful” in her reporting of travel inoculations. The mother tried to explain that a particular inoculation was not required because the planned trip was a cruise and, in any event, the vaccine was on backorder. The father responded [my emphasis]:

Spin all you want. A[re] you a doctor. U R simply a fatality mother and fucking LIER. Clearly U hv zero clue what the fuk your doing my MY sons health . Serve at work/Chester or voluntarily? ANSWER? [15]

[85] In the father’s own affidavit evidence he appends as an exhibit an email he sent to the mother on May 8, 2018. In that email, the father complained that the mother was unilaterally reducing his parenting time with L. However, the mother has stated that the father was not adhering to previously-arranged schedules, that he was inconsistent in his visits and he was missing scheduled visits. In that email, the father said to the mother [my emphasis]:

Our mee-too feminist society has granted you, as the female, the overwhelming power in case that’s not obvious, but with power comes responsibility?

[86] When the father believed that problems existed which required a solution, instead of contacting the mother directly, in a civil and respectful manner, he would go behind her back and reach out to other authorities. The court notes some examples of this behaviour in the following paragraphs.

[87] On December 8, 2020, the father says L. told him something which made the father believe L. may not have attended school by remote learning, on a day when L. was in the mother’s home. Instead of contacting the mother to discuss this, the father wrote directly to the teacher to tell the teacher what L. had said. This could have been an important discussion for the father to have with the mother. For example, did the child attend (that is, was his computer turned on), did he not attend (was his computer turned off). If he did not attend was there a reason for which the mother could shed some light – for example, illness, technology problems, or something else. However, the father chose to go ignore all these possibilities and, instead, go around the mother rather than engaging her in a discussion about a potentially important issue pertaining to their son.

[88] On August 31, 2020, the mother’s teenaged daughter had travelled to New York to visit with her father. The father concluded from the mother’s emails that the mother’s daughter may not have complied with public health protocols regarding Covid-19. Rather than attempting to explore this further with the mother – or perhaps even giving the mother the benefit of the doubt that she had ensured her daughter was in compliance with those protocols – the father called Toronto Public Health directly. He told the Public Health nurse with whom he spoke, about the mother’s daughter having travelled to New York. He gave full names.

[89] He recorded and (presumably) paid JML Transcription to produce a certified transcription of that recorded conversation. He filed that transcription as part of his evidence in this trial.

[90] The father made it clear to Public Health that he was complaining about the mother. He then added that this was the second time this had happened. He also stated “we are in a Family Court matter”.

[91] On cross-examination he was asked why he would do such a thing, why would he try to get the mother into trouble. He answered that he was just trying to get the mother into “compliance”. However, that explanation is belied by the father’s own words in his recorded transcript with the Public Health nurse, when he referred (at page 8 of the transcript) to the call as “my complaint”.

[92] Furthermore, it is obvious to the court, that when he made his decision to call Public Health, and when he decided in advance to record the conversation, and then paid a transcription service to produce and certify a copy of that conversation, it could have been for no purpose other than to use that recording in a way which he hoped would make the mother appear to be a poor parent.

[93] The father’s own words, reveal to the court that his sole purpose in making this call was to contact some supposed authority figure who might be able to create trouble for the mother.

[94] The father also called the Children’s Aid Society of Toronto – twice, to complain about the mother. On each occasion, the Society performed its statutory due diligence and concluded there was no reason for the Society to be involved.

[95] On June 2, 2020, the father called the police to the mother’s home after he became angered when he believed the mother was being unreasonable about his court-ordered access visits. [16]

[96] The police attended at the mother’s home, in the presence of L. and the father. The police eventually asked the father to leave, but mother says the whole incident left L. “shaken, scared and confused”.

[97] Regardless of the disagreement between the parents – whether to wait for the Covid-19 test result, or not wait – the father chose a path which led to considerable conflict and embarrassment, with L. caught in the middle.

[98] The father also threatened to contact the mother’s employer, thereby potentially jeopardizing her employment. I note the following text exchange [my emphasis]:

F: I will be formulating a privacy complaint to your employer (MOHLTC) regarding the unauthorized use and misuse and mischaracterization for your own selfish gain of my PHI in public documents. You may want to discuss with your union or in house council at the Ministry. M: Excuse me? Have you spoken to your lawyer about this? I have not gained any access to your health information through my work. F: It’s illegal federally and provincially to access and/or reveal KNOWLINGLY my PHI. Enjoy your week at work. M: Keep my work out of things. You are taking your harassment of me to a very sick level. F: You hv violated PIPIDA and unless you redact your mock reveal of my PHI, I will gladly report you directly to your union and employer. Enjoy your week. Your employer and union will be on notice!! Fuk U M: You are incredibly unwell. Get help please. I am not using my work to get information about you. I can’t, it’s not possible. If you make contact with my work your harassment of me will be dealt with by a higher authority.

[99] On many occasions, the father refused to engage civilly with the mother. The court has seen many dozens, possibly hundreds, of texts and email exchanges between the parties. The abusive language and the threats originate exclusively from the father. [17]

[100] When the father was unhappy with something the mother was stating, he often ended his text with “blocked” or “you’re blocked”. This is not a recipe for co-parenting, for making decisions together.

[101] The father refers repeatedly to the mother as a “disgusting” parent.

[102] While criticizing the mother for recording conversations with L., the father acknowledges having done the same.

[103] Having carefully listened to and observed the parties in this trial, the court finds the mother’s evidence to be credible and believable. Her credibility is further buttressed by the available documentary evidence. The court accepts her evidence that she has made sincere efforts to keep the father involved in L.’s life. The court accepts her evidence that she has made sincere and meaningful efforts to keep the father informed of L.’s service providers.

[104] The father’s bad behaviour toward the mother makes him a less credible witness. That lack of credibility undermines his oft-repeated allegations against the mother, including his assertions that she is an alienator and an abusive parent.

[105] The mother has continuously demonstrated a willingness to involve the father in the child’s life. She made no attempts to hide from the father the child’s school, the child’s teacher and the child’s various medical providers.

[106] The mother has made continuous and ongoing efforts to keep the father involved in L.’s life. While she may have had difficulties from time to time, with transitioning L. to pickups by father, she makes bona fide attempts to encourage L. to spend time with his father.

[107] If mother had been attempting to marginalize father, as father has insisted, mother would not have acceded to father’s request to take L. to the father’s cottage property on Manitoulin Island for several days, as recently as June 2021. L. went with his father, where he swam, cycled and engaged in other activities with the father.

[108] The court rejects father’s characterization of the mother as an “alienator” and as a parent who is practising a form of “child abuse”.

[109] While the court does not condone either parent recording conversations with L, the father’s attempts to characterize mother as an alienator when she does so, ignores the fact that he has done so as well.

[110] The evidence reveals that father has gone out of his way to act in an abusive, authoritative and bullying manner toward the mother. And despite all this, the mother has never changed her position that L. should have a relationship with the father.

[111] All the evidence pertaining to conflict between the parents points to the father as the initiator of that conflict. The father has rarely, if ever, demonstrated to the mother any deference or respect for her decision-making.

[112] Because of the court’s findings of credibility, where the father’s evidence conflicts with the mother’s evidence on material issues, the court prefers the mother’s evidence over the father’s evidence.

6.2 Joint decision-making and parallel parenting is contrary to L.’s best interests

[113] The court began this analysis with Kaplanis. However, other courts have expanded on Kaplanis, including analyses of situations where joint custody has been ordered even in the absence of cooperative historical communication.

[114] For example, courts have ordered joint custody in situations where the court was concerned that one parent would marginalize the other parent. See D.C. v. H.C., 2014 ONSC 6696.

[115] The father relies on Moreira v. Garcia Dominguez, 2012 ONCJ 12, for the proposition that joint custody may be ordered to preserve a parent’s relationship with a child, at paragraph 127 [my emphasis]:

Joint custody may be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and to limit the other parent's involvement with the child.

[116] While that is a correct statement of law, this court has previously found as a fact, the mother is not attempting to marginalize or limit the father’s involvement with L. Accordingly, on the facts of the present case, the principle upon which the father relies in Moreira has no applicability.

[117] I turn to another case upon which the father relied in his factum. The case of Madott v. Macorig, 2010 ONSC 5458 was a decision of Justice Jennifer Blishen. In that case, Justice Blishen made an order for joint custody in circumstances where there was a lack of trust between the parents. However, what is important to recognize is that the underlying facts in that case were very different than the facts of this case. At paragraph 86, Justice Blishen stated [my emphasis]:

Despite their lack of trust and respect for one another , Ms. Madott and Mr. Macorig have demonstrated an ability to communicate with each other through text messaging and to place Ireland’s needs and interests first. In addition, given Ms. Madott’s previous actions to marginalize Mr. Macorig and prevent access to Ireland, there is concern that an order for sole custody in favour of Ms. Madott would result in further attempts by Ms. Madott to limit Ireland’s contact with her father and his involvement in her life. As noted above, Mr. Macorig is able to provide a stable and loving home for his daughter with the full support of his family.

[118] In the present case, the father has demonstrated virtually no real ability to communicate with the mother in a manner which is civil and respectful. The two-way “lack of trust and respect for one another ” in Madott is a one-way street in the present case. The lack of trust and respect in the present case emanates solely from the father. Second, I have found as a fact that the mother has not engaged in any conduct designed to marginalize the father in L.’s life. Rather, it is quite the opposite.

[119] Long before Justice Paulseth made her interim parenting order, the mother had demonstrated a willingness and ability to facilitate parenting time with the father. The father even acknowledged that, for a period of time following separation, the parties had organized parenting time without the need for a court order.

[120] Courts have held that parents who choose to use the children’s aid society as a complaints department, instead of attempting to work through these issues on their own, are usually poor candidates for a joint custody order. See N.T. v. R.R.K., 2017 ONCJ 829.

[121] In T.M.B.-P. v. B.P.G., 2018 ONCJ 435, Justice Stanley Sherr had the following to say at paragraph 89 [my emphasis]:

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

[122] In Jama v. Mohamed, 2015 ONCJ 619, Justice Sherr began his analysis of the parent’s claim for joint custody, with reference to Kaplanis. Beginning at paragraph 29 of his Reasons, Justice Sherr stated [my emphasis]:

[29] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests . See: Graham v. Butto, 2008 ONCA 260, Roy v. Roy, 2006 ONCA 15619, [2006] O.J. No. 1872 (Ont. C.A.) .

[30] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ) . The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.

[31] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents , especially where one parent has been primarily responsible for the conflictual relationship: See: Garrow v. Woycheshen, 2008 ONCJ 686, (Ont. C.J.) ; Hsiung v. Tsioutsioulas, 2011 ONCJ 517.

[123] These are, of course, general principles to be applied when considering cases where there is a claim for joint custody. Then at paragraph 35 of his decision, Justice Sherr noted the following [my emphasis]:

[35] After observing the parties interacting over three days, it was very evident to the court that the communication between the parties is terrible. They dislike each other intensely. Very importantly, they lack respect for one another. They cannot make joint decisions together. It is not in the best interests of the children that important decisions regarding them be paralyzed because of the inability of their parents to communicate .

[124] That “terrible” communication and extreme disrespect exists in this case. However, unlike the parents in Jama, where both parents were responsible for that toxic dynamic, in this case, it is the father who is almost solely responsible for the abusive way in which the communication takes place.

[125] Where, as is the case here, the parent who seeks joint decision-making is also the parent who is primarily responsible for the toxic dynamic between the parties, it would be contrary to the child’s best interests for the court to make a joint decision-making order, with the hope that the father will suddenly change his stripes.

[126] The father said that his poor behaviour was attributable to his non-malignant brain tumour. There was no evidence to support this. The court rejects this explanation given the long history of bad behaviour by the father both prior to his 2016 surgery, and continuing up to the present.

[127] The mother has pleaded with the father to change his behaviour. He has resolutely displayed an inability or unwillingness to do so.

[128] It is significant that the parties lived together with the child only for a few months. Apart from that short period of time, the child has always lived with his mother. She has made most of the important decisions for the child. But significantly, she has also involved the father and kept him informed of important decisions.

[129] The court has seen from the evidence that the mother has tried to keep the father informed regarding doctors, school and other important third-party service providers for L.

[130] The father complained that the mother attempted to shut him out of important medical services for the child. And yet, the recently released CAMH report reveals that father was actively involved in the intake process and the ongoing assessment.

[131] However, the father’s self-acknowledged history of behaviour and substance abuse issues seems to have prevented him from simply trusting the mother to act in good faith in the best interests of their child.

[132] The father deposed in his affidavit evidence sworn July 5, 2021:

To help manage the stress and to reduce conflict I am and continue to seek professional coaching and cognitive behavioral consultations with Homewood Health. I have come to realize that I need outside help in order to communicate more effectively and better respond to [mother] with respect to parenting L. I acknowledge this has been an issue in the past and that I have been less than courteous at some points in the was [sic] expressing my stress and frustration in an unregulated way that was not entirely child focused and I am sorry, and I can see now my behaviors were not always helpful in the past. I want to and continue to work on my communication skills and these sessions have really helped me manage the conflict that inevitably occurs when coparenting in general and coparenting L. in particular. I have also engaged the Families in Transitions organization at their Church St. offices, and I look forward to reengaging their specialized help in person (after lock-down) and how to effectively co-parent and navigate challenging relationships as family’s transition after separation.

[133] To the father’s credit, he finally acknowledged the obvious, namely, the overwhelming evidence before the court of the abusive and inappropriate way in which he has interacted with the mother.

[134] To the extent that father continues with his coaching and his cognitive behavioral consultations, it may, at some point in the future, assist him in the way he copes and, more importantly, in the way, he interacts with the mother.

[135] However, the court cannot make orders based on the hope for future changes by a parent. In the absence of evidence of a meaningful change now in place, the father’s evidence amounts to little more than a promise to effectuate changes in the future, something which may or may not come to pass.

[136] The court has no doubt that the father loves L., that he is sincerely interested in L.’s welfare and his academic and medical wellbeing. However, he is a controlling person.

[137] That aspect of his personality was made abundantly clear in this trial. He was combative and aggressive with counsel during cross-examination. On the other hand, counsel was polite and respectful to the father.

[138] On two separate occasions, counsel asked the father to acknowledge something which was not controversial, namely, that L.’s primary residence was with his mother. On each occasion, the father responded by asking counsel “what’s your definition of primary?”

[139] This is a father who prides himself on his level of intelligence and his academic and professional accomplishments; yet he twice insisted counsel define the word “primary”.

[140] He was combative in the way he responded to counsel’s questions – not only in the words he used but, importantly, in his tone of voice. He refused to admit even the most obvious fact. Here is one example. On March 31, 2020, the parties had the following exchange of emails [my emphasis]

M: I am not emailing you back and forth every day you see L., to try to arrange L.’s pick up and drop off times (only for them to be adjusted repeatedly). On Tuesday and Thursday, your pick up time will be 6 p.m. from now, so as to not interrupt your work day and to provide us a clear and predictable scheduled pick up time. Ok? F: Sorry 6 p.m. won’t do for me. I didn’t hv to set a PU time when the school/daycare was involved. I can do 4 p.m. drop tomorrow and 4 p.m. PU Thursday. 6 pm would interrupt 4 days of exercise .

[141] On the face of father’s words, it is apparent that he was involved in some sort of exercise routine, and he did not want to interrupt his routine by having to pick up L. at the time suggested by mother. When counsel asked father whether his exercise took priority over the suggested pickup time, the father responded by twisting his own words out of all meaning, even suggesting that perhaps his words were intended to refer to exercise with himself and L. together.

[142] During the mother’s examination in chief, the father objected to, or otherwise interrupted her testimony 9 times in the space of 17 minutes. Each interruption/objection was entirely without justification. Finally, after the ninth objection, the court was forced to rule that these repeated interruptions were preventing the mother from giving her testimony in a fair manner and that the court would permit no further interruptions or objections, that henceforth the court would decide whether there was anything objectionable, either in the question being asked or the answer being given.

[143] Regrettably, the father is not someone who has demonstrated that he has any flexibility whatsoever. His rigidity and inflexibility, his insistence on complete control do not create a realistic underpinning for joint decision-making.

[144] In L.B. v. P.E., 2021 ONCJ 114, Justice Sherr had the following to say at paragraph 97:

[97] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests.

[145] In the present case, the father acknowledges that, despite his annual income of $80,000, he has failed to provide any child support whatsoever to the mother. Nor does he offer any justification for his refusal.

[146] In S.S. v. S.K., 2013 ONCJ 432, Justice Sherr had the following to say [my emphasis]:

Recently, in K.H. v. T.K.R., 2013 ONCJ 418 (an analysis of a request for a parallel-parenting order), I wrote that courts should assess the dynamics of a family when determining if a parallel-parenting order is appropriate. Particularly, the court should examine if the granting of such an order is more or less likely to expose the child to parental conflict and if a parent is seeking the order as a mechanism to inappropriately control the other parent . The comments that I made in paragraphs 55-57 of that decision are just as applicable to a joint custody analysis. They read as follows:

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

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

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

[147] The emphasized portions of Justice Sherr’s comments have direct applicability to the facts in the present case

[148] Parallel parenting as requested by the father, would entitle him to make final decisions with respect to medical treatment, whereas mother would have final decision-making with respect to education and extracurricular activities.

[149] These areas are not independent silos. Particularly for a child like L., who has special physical needs and emotional/behavioural challenges, there is inevitable cross-over between these areas. This cross-over would require the parents to exercise a high degree of cooperation in making important decisions.

[150] Equally, joint decision-making and parallel parenting both require a high degree of trust between the parents. The father has made it abundantly clear that he does not trust the mother.

[151] At the end of the Canada Day long weekend, July 4, 2021, mother and her daughter were driving back to Toronto from Muskoka. Mother was scheduled to pick up L. from father’s home. Instead of taking 2.5 hours as it normally did, she was caught in heavy traffic and the trip took about 4.5 hours. Mother (or her daughter) texted father to let him know of the problem and the likely delay. The following is an excerpt of their exchange during the mother’s trip back from Muskoka [my emphasis]:

M: still caught in traffic, looks like another hour F: It’s interesting because all major roads to Toronto are clear sailing M: It’s Canada Day long weekend traffic Ed, I should have been home at 6:30 F: Where did you go? I’ve checked all the live feed apps and it appears you’re not being forthcoming which is no surprise at all M: stop texting me, you are harassing me F: Anyway, I sent you an email re same and copied your lawyer . . . I don’t believe anything you say that I cannot verif y.

[152] The fact that the father would check the news reports for traffic conditions, that he would go onto “live feed apps” to challenge the veracity of mother’s statements about the heavy traffic, is a stark and dramatic example of the extreme level of the father’s distrust of the mother. As he made abundantly clear, “I don’t believe anything you say that I cannot verify”.

[153] This example, together with the other examples discussed earlier demonstrate that father is consumed with focusing his anger on the mother, as well as his distrust of her. This is not a basis for ordering joint decision-making. See: Wagg v Simms, 2018 ONSC 1143.

[154] On the evidence presented in this trial, that high degree of cooperation would not be forthcoming from the father.

[155] The evidence presented in this trial leads to the conclusion that the father has engaged in behaviour designed to intimidate, bully and control the mother. The “sad reality” that Justice Sherr referred to in the K.H. case, is applicable to the facts of this case. The father wants to control the mother. If he were to have either joint decision-making or parallel parenting, he would almost certainly be dismissive of the mother, dismissive of her suggestions, and he would likely try to intimidate her and wear her down to the point where she would have no choice but to accede to his position.

[156] Joint decision-making or parallel parenting would be a recipe for conflict and an even greater toxic dynamic than what has existed to this point.

[157] An order for joint decision-making or parallel parenting would be contrary to L.’s best interests.

[158] L. has been caught up in a sad, high conflict dynamic between his parents. The court must do its best to craft an order which provides L. with certainty and, hopefully, keeps the parents out of court following this trial.

6.3 Sole decision-making by the mother is in L.’s best interests

[159] As the court noted earlier, the father does love L. The evidence shows that L. spends quality time with his father. Certainly, maintaining that relationship is in L.’s best interests.

[160] If father were to be the sole decision-maker, he would make decisions which he believes are in L.’s best interests.

[161] However, in balancing all the factors in subsection 24(3) of the Act, the court has concluded it is in L.’s best interests that mother be the sole decision-maker. The court places particular emphasis on the following paragraphs of the Act (set out earlier in these Reasons):

(1) Paragraph 24(3)(c) – I conclude that the father is not readily willing or able to support the development of L.’s relationship with the mother. As the evidence has shown, the father believes the mother is a terrible parent, that she is abusive and an alienator. He is the instigator of conflict. He has made threats – both veiled and direct – against the mother. It is impossible for the court to conclude that he would willingly support the relationship between L. and the mother. (2) Paragraph 24(3)(d) – The mother has been the parent who has historically been responsible for L.’s care. (3) Paragraph 24(3)(i) – For reasons stated above, the father is highly unlikely to communicate and cooperate on matters affecting L.

[162] The court has also considered other relevant factors, including:

(1) The father’s poor judgment. It stands to reason that good judgment is an essential element of effective parenting. Father’s history of abusive treatment of the mother, his denigration of her parenting skills, his dismissiveness of her decision-making, and his unambiguously-stated distrust of the mother all point to a lack of sound judgment. (2) Father’s refusal to pay child support. Despite earning an income of $80,000 per year, the father has not paid any child support to the mother for approximately 2 years. It does not credibly lie in his mouth to assert on the one hand that he is able to make sole decisions in the best interests of his son while, at the same time, refusing to contribute to his son’s support. (3) Father’s flagrant disregard for court orders. As discussed earlier, Justice Paulseth made a temporary parenting order on October 10, 2019. One of the provisions of that order required father to remain in his car during drop-offs and pick-ups at the mother’s home. Despite this order, the father knowingly breached it on a number of occasions. He would come to the house, honk his horn, and even come to the front door when L didn’t immediately come outside. When he was cross-examined about his knowing breach of that order, he stated

I have been known to ring the bell to see if anyone was there

In other words, if things weren’t happening according to the father’s expectations, and despite his knowledge of an existing court order, he would simply decide to take matters into his own hands.

Moreover, father made no attempt to apologize for disregarding Justice Paulseth’s order. He didn’t say, for example, something like, I realize I shouldn’t have done that, I’m sorry, it will never happen again. Instead, he simply acknowledged his disregard for that order in a factual, almost off-handed manner.

[163] The court concludes it is in L.’s best interests that mother be the sole decision-maker.

6.4 Father’s parenting time

[164] The court recognizes the importance of maintaining the relationship between L. and the father.

[165] In support of his request for 50-50 parenting time, the father relied on B.V. v. P.V., 2012 ONCA 262, which cited the principle of “maximum contact. However, as the court noted in B.V., the maximum contact principle is always applied contextually, that is, what is the maximum contact which is in the best interests of the child before the court (paragraph 15).

[166] The father also relied upon the Moreira case (referred to earlier in these reasons) for the proposition that children should have “frequent” contact with parents. The father cited the court’s comments at paragraph 111, which states [my emphasis]:

[111] Public policy suggests that we: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child ; (2) provide a safe, stable and non-violent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

[167] However, once again, what is meant by “frequent” contact is very much fact-dependent, as noted by the Moreira court at paragraph 115 [my emphasis]:

[115] Cases affecting the parent-child relationship are intensely fact-driven, which is why courts have developed best-interest tests that consider and balance numerous factors . Unless one is to apply a fixed but arbitrary rule, the issue can be resolved only on a case-by-case basis. Because they are fact-sensitive, no two cases are the same and it is therefore essential that the court have the flexibility to deal with unforeseen fact patterns. Given the many relevant factors, courts have explicitly rejected formulaic tests .

[168] This court fully intends to ensure maximum and frequent contact between L. and his father. However, that contact will be based on what is in L.’s best interests.

[169] The father has largely been complying with Justice Paulseth’s temporary parenting order which has now been in place for almost two years. However, he has been inconsistent with his Thursdays, often missing those days.

[170] Missing scheduled days is contrary to a child’s best interests. This is even more so when the child is old enough to have expectations; and particularly for a child like L., when his expectations may collide with his emotional challenges.

[171] Children have a right to expect that a scheduled visit will occur except for rare and exigent circumstances which may intervene.

[172] In response to those missed Thursday visits, mother has suggested it would make more sense to “chunk” that Thursday time with his weekend time. This would minimize the mid-week transitions for L., and it would provide L. and father with more extended time together.

[173] The court disagrees with the father’s argument that mother’s request amounts to an attempt to marginalize him in L.’s life.

[174] The parenting time order the court makes, will reduce the father’s overnights from five nights every 14 days to four nights every 14 days. However, the order will provide for additional extended parenting time, including longer weekends and holiday time.

[175] The court views this as an appropriate way of structuring L.’s time with his father in a way which is easier and less disruptive for the child. This is particularly important given L.’s emotional challenges which have sometimes made for difficult transitions from his mother’s home to the father’s home. It will also alleviate the recurring problem of the missed visits on Thursdays.

7: CONCLUSION

[176] The court has carefully considered all the factors which are relevant to L.’s best interests. For the reasons discussed, the court makes the following final order: [18]

1. The Mother shall have primary decision-making authority of L. The Mother shall consult with the Father in regard to major decisions for the Child, including educational and non-emergency medical. The parents shall attempt to arrive at a consensus in consultation with one another and any professionals. Unless the Mother agrees in writing to extend the consultation period, in the event the parents are unable to agree within 21 days of the commencement of the consultation, the Mother shall have final decision-making authority. The consultation shall be in writing only, including electronic exchanges.
2. On an ongoing basis, the Mother shall keep the Father advised, in writing, of the names and contact information for all service providers, including schools, for the Child. The Father has the right to consult with and obtain information directly from the Child’s teachers, doctors or other professionals about the health, education and welfare of the Child in accordance with subsection 20 (5) of the Children’s Law Reform Act.
3. The Mother may apply for passports, renewals of same, and all other government documentation for the Child, without the consent of the Father, and she shall provide him with copies of those documents. In the event Father is travelling internationally with the child, the Mother shall give the father the child’s passport no later than 48 hours prior to travel. No later than 48 hours following the Father’s return to Canada with the Child, he shall return the passport to the Mother.
4. Except as provided for in this order, the Mother shall be the sole custodian of all the Child’s official documents, including his government and government-related documents, such as his Health Card and his passport.
5. The Father shall have parenting time with the Child as follows: (a) Every Wednesday overnight from after school/daycare/camp to return to school/daycare/camp the following morning; and (b) Alternate weekends from Friday after school until Sunday at 7:30 p.m., to extend until Mondays at 7:30 p.m., if the Monday is a statutory holiday.
6. If the access exchange occurs on a non-school day, all access exchanges shall take place at the Mother's home. Exchanges will remain peaceful with no horn honking, yelling or high beam flashing. The Father shall remain in his car (unless necessary to place items in the trunk or on top of the car, such as bicycles, skates, clothing, etc.) and not approach the front door of the Mother's residence. If the access exchange occurs on a school day, then the father shall pick up and drop off the child at school.
7. The holiday schedule, set out below, shall take priority over the regular parenting schedule, except as otherwise ordered. The holiday schedule shall be as follows: (a) Christmas: The Child shall reside with the Mother from December 24th at 2:00 p.m. to December 25th at 2:00 p.m. The Child shall reside with the Father from December 25th at 2:00 p.m. to December 26th at 2:00 p.m. The balance of the Christmas School Break shall be shared equally with Mother having the first half of the break in even-numbered years and the Father having the first half of the break in odd-numbered years. (b) New Years: Commencing in 2021 and in odd-numbered years thereafter, the Child shall reside with the Mother from 3:00 p.m. on New Years eve to 3:00 p.m. New Years day, and the Child shall reside with the Father on from 3:00 p.m. until 8:00 p.m. on New Years day. In even-numbered years, these times spent with each parent shall reverse. (c) March Break : Commencing in March 2022, in even-numbered years the Child shall reside with Father commencing with the Monday (a.m.) and ending on the Friday (p.m.) of the school break and will attach to his regular weekend. In odd-numbered years, the Child shall reside with Mother. (d) Summer Break : Summer commences on the Friday after the last day of school and ends on the Sunday before the return to school. Each party shall have a two-week period of uninterrupted time with the Child during July and August, attached to his/her regular weekend. The Mother shall have her first choice of weeks in even-numbered years, and the Father in odd-numbered years. The party with the first choice shall advise the other in writing by March 15 annually. The party with the second choice shall advise the other in writing by March 31 annually. The balance of the summer school break shall follow the regular schedule. (e) Easter and Thanksgiving : The non-resident parent shall have between 8 – 10 hours time on the Easter weekend and Thanksgiving weekend. More time shall not be unreasonably withheld if an overnight is planned. (f) Child’s Birthdays : The non-resident parent may take the Child out for dinner for up to 3 hours on his birthday, or such longer period of time as the parents may agree, in writing.
8. All other statutory holidays shall be shared in accordance with the regular weekend access schedule.
9. Each parent shall be entitled to have reasonable telephone and "Skype" or "Facetime" contact (or other similar video electronic contact) with the Child while he is in the care of the other parent. Neither party shall record the other’s conversations with L., and he shall be given privacy to speak to the non-residential parent.
10. Either parent may attend at special events at the child's extracurricular activities outside of school on days that they are not scheduled to be with the child, such as for a concert, final competition or game. The Child shall be permitted to greet the other parent, provided that he returns to the parent he is scheduled to be with at that time.
11. The parents shall not change this schedule without the consent of the other parent, consent to be in writing. The only exception is if the Child is too ill to exercise access on the Father's weekend. If this occurs, then the Child shall remain with the Mother. The Mother shall provide the Father with a doctor's note, if that note can be reasonably obtained, evidencing this after the weekend if requested by the Father. If a visit is cancelled for this reason, it shall be made up on the following weekend.
12. The Mother shall not move the Child's permanent residence further than twenty kilometres from her current residence without the Father's written consent or Order of the Court.
13. Either party may travel with the Child outside of Canada during his or her parenting time. The Father requires the consent of the Mother, such consent not to be unreasonably withheld. The Mother may travel internationally with the Child without the consent of the Father, but she must advise him accordingly. The travelling parent shall provide the other with a minimum 14 days’ notice of the intended travel. If the non-travelling parent is the Mother, she shall provide the father, at his request, a notarized travel letter authorizing the Child to travel outside the country with the Father no less than 7 days prior to the travel. If the none-travelling parent is the Father, he shall provide the Mother, at her request, a notarized travel letter authorizing the Child to travel outside the country with the Mother no less than 7 days prior to the travel. For greater certainty, the mother has an absolute right to travel outside Canada without the father’s consent, and without a notarized letter, and presentation of a certified copy of this Order shall be her authority to so travel. The travelling parent shall provide the other with a complete itinerary, to include a description of travel arrangements and an address and telephone number where the Child and he/she may be reached.
14. Neither parent shall enroll the child in any extra-curricular activity that impacts on the time with the other parent without the knowledge and the consent of the other parent.
15. In the event there are any activities occurring that are beyond the control of either parent, such as a school recital, sporting event or competition, then the parent who has care of the Child on that day shall ensure that the Child is taken to the activity on time and with sufficient time to prepare.
16. Neither parent shall make disparaging or derogatory comments or speak negatively about the other parent in front of the Child. Nor shall either parent permit anyone else with whom the Child comes into contact to make disparaging or derogatory comments or speak negatively about the other parent to the Child.
17. Unless there is an emergency, the parents shall communicate by Our Family Wizard and they shall respond to all time-sensitive messages concerning the Child as soon as possible and no later than 12 hours. In the event of an emergency, the parent shall text or call the other immediately. Until such time as the Father pays child support to the Mother in accordance with the table amount set out in the Child Support Guidelines, the Father shall pay the entire cost of Our Family Wizard. He shall ensure this app is put into place and fully operational no later than 21 days following the date of this order. The Mother shall cooperate to whatever extent is necessary to enable the Father to do so.

[177] In the event the mother seeks her costs of this trial, she shall serve and file her written submissions with the trial coordinator, by email, no later than 14 days following the date of this judgment. The father shall have 14 days thereafter to similarly serve and file his responding submissions. No reply submissions will be permitted. Submissions by both parties shall not exceed five pages, exclusive of attachments, which shall be limited to a Bill of Costs and any Offers to Settle. Any case law or other authorities upon which the parties rely shall be in the body of their five-page submissions and shall be hyperlinked. Submissions to be double-spaced and in 12-point font.

Released: August 23, 2021 Justice Robert J. Spence (signed electronically)

[1] They did not enter into a separation agreement specifying access provisions; nor was there a court order at this time, as the court proceedings did not commence until 2019. [2] The only evidence of such behavior was a threat made by the father to contact the mother’s employer. The court will refer to this evidence later in these Reasons. [3] For reasons never made entirely clear to this court, the request for financial relief was never reinstated. [4] Centre for Addiction and Mental Health [5] The assessment occurred over a period of several months, commencing in or about August 2020. [6] The report contained what appears to be a typographic error, stating that L. “can fall asleep in his own bed but often comes to join him [my emphasis] in the middle of the night”. Mother pointed out to CAMH that this was in error, noting that L. will join her in the middle of the night. Mother also corrected this in her trial testimony. [7] Apart from the opinions expressed by each parent on the weight issue, the court received no independent evidence. Accordingly, to whatever extent this issue might otherwise have been relevant, the court makes no finding whether L. is overweight. [8] I will expand on this later in my Reasons. [9] With the recent amendments to the Act, the word “custody” was changed to “decision-making”. I will use those terms interchangeably, depending upon context, including references to the case law. [10] The father does not deny that he had the kinds of issues that mother generally referred to in her evidence. [11] In these Reasons, the text/email exchanges from father will be shown as F, and those from mother will be shown as M. [12] The court ruled during the course of the trial that the fact of the recordings is admissible in evidence, but the contents of those recordings, and in particular, L.’s statements would not be admissible in evidence, as neither of the parties were able – or even attempted – to satisfy the legal requirements for the admissibility of child hearsay statements. [13] Or possibly January 2020. The evidence on the exact date was unclear. [14] Picture of L.’s face with a cut shown on his cheek was part of the evidence in the trial. [15] The father was in the process of preparing to issue his court Application and was telling the mother that one option for service was at her place of work. [16] The father had just been tested for Covid-19 and the mother requested that he wait a day or two until he received his test results before visiting again with L. [17] During closing submissions, the court specifically asked the father whether in the dozens or hundreds of texts/emails included in the trial evidence, there were any texts/emails sent by the mother which the court could possibly interpret as vulgar, abusive, or hostile. The father responded that there were none. [18] While the court has used initials in these Reasons, the formal order will contain the full names of the parents, where necessary, as well as the full name of the child, where necessary, together with the child’s birthdate, where necessary.