ONTARIO COURT OF JUSTICE

CITATION: M.K. v. M.A., 2021 ONCJ 658

DATE: 2021 12 2

COURT FILE No.: D20956/18

BETWEEN:

M.K.

Applicant

— AND —

M.A.

Respondent

Before Justice Melanie Sager

Heard on November 15, 17, 18, 19 and 22, 2021

Reasons for Judgment released on December 2, 2021

Lalit Kalra................................................................................................. counsel for the applicant

M.A. ........................................................................................................ acting on her own behalf

SAGER, J.:

I. Introduction

[1] This trial addressed the parenting and support issues regarding the parties’ son M.H.K. born […], 2016 who is four years old (hereinafter referred to as the child).

[2] The child lived in the primary care of the mother until February 16, 2021 when he was placed in the primary care of the father pursuant to the order of the case management Judge, Justice Robert Spence dated January 13, 2021. The child has remained in the father’s primary care since that time.

[3] The father asks the court to make final orders that the child have his primary residence with the father who shall have sole decision making responsibility. He further asks that the mother’s parenting time be virtual and supervised by him until Access for Parents and Children (APCO) resumes in person visits and can provide supervision services. The father provides a framework for the future consideration of expanding the mother’s parenting time to unsupervised day visits. The father also seeks a police enforcement order.

[4] With respect to child support, the father requests an order requiring the mother to pay child support as of January 1, 2023, based on an annual imputed income of $15,000.00 and the Child Support Guidelines (the Guidelines) unless the mother’s actual income exceeds $15,000.00 in which case child support would be payable in accordance with the Guidelines based on her actual income.

[5] The mother asks the court to order the child’s primary residence be with her and that she have sole decision making responsibility. She asks the court to reinstate the parenting schedule in place for the father at the time the child was removed from her care which was alternate weekends from Friday to Sunday; every Wednesday from 11:00 a.m. to 5:00 p.m.; and, every Friday before and Monday after a weekend the child is in the mother’s care from 11:00 a.m. to 5:00 p.m.[^1] She also seeks an order requiring the father to pay her child support effective upon the date the child is returned to her primary care.

[6] In addition to affidavit evidence in chief, the father gave oral evidence and called a worker from the Children’s Aid Society of Toronto (the society) to give evidence. The mother’s evidence was provided entirely orally, and she called her parents and a gentleman who the father had spoken to at his Mosque who also gave oral evidence.

[7] The trial was conducted by videoconference over five days.

[8] The issues to be determined are as follows:

(a) Who should the child have his primary residence with?

(b) Which parent should be granted sole decision making responsibility over the child?

(c) What parenting time is in the child’s best interest for the parent with whom he does not primarily reside?

(d) If the child has his primary residence with the father, should the mother’s parenting time be supervised and limited to video contact until such time as APCO resumes in person visits?

(e) Should an order be granted instructing police to enforce the orders of the court?

(f) Should there be orders permitting one parent to obtain government issued documentation for the child and/or travel with the child outside of Canada without the other parent’s consent?

(g) Should there be any orders restricting a parents’ travel with the child outside the Greater Toronto Area or other specified boundary?

(h) Should there be any orders limiting or dictating the method by which the parties communicate about the child?

(i) What order for child support would be appropriate after a consideration of the parenting orders?

II. The Parties

[9] The father is 31 and the mother is 29 years old. They were both born in Pakistan. The mother moved to Canada with her family when she was 8 or 9 years old and the father moved to Canada on December 8, 2016.

[10] The parties were married in Pakistan on June 15, 2015. They are first cousins and their parents arranged their marriage. The parties have no other children other than M.H.K.

[11] The father currently works as a pre-boarding screening officer at Pearson International Airport and the mother is enrolled at York University where she is in the second year of an undergraduate degree, but it is unclear if she is currently attending classes.

[12] The parties lived together in the mother’s parents’ home between December 8, 2016 and March 5, 2018 when they separated, and the father moved out.

[13] After the parties separated, the child resided with the mother and the maternal family and at the mother’s insistence, the father visited the child in the mother’s home and was not permitted to leave with the child.

III. Credibility of the parties and their witnesses

[14] The father gave his evidence in a clear and forthright manner. He provided details when answering questions and his evidence was logical and easy to follow. He had a significant amount of documentary evidence to corroborate his oral evidence. He never exaggerated or overdramatized his evidence. The father was very credible.

[15] The society worker called by the father provided very clear evidence and thoughtful answers to difficult questions. She was fair to both parents and in no way appeared aligned with either parent. She provided evidence that supplemented the society records that were filed as business records which the parties agreed in advance of trial would be relied upon for the truth of their content.

[16] The mother did not cross examine the father or the society worker and did nothing to diminish the credibility of these witnesses.

[17] The mother and her witnesses were not credible. The mother repeatedly made extreme and at times outlandish statements without providing any evidence whatsoever to support the statements. She provided illogical explanations for discrepancies in her evidence, could not explain contradictory affidavit evidence she provided in the course of the litigation, and she denied the accuracy of her own medical disclosure and the society’s records despite consenting to an order prior to trial that the documents can be relied upon at trial for the truth of their content.

[18] More specifically, the mother denied the accuracy of information she previously provided to third party professionals about her conflictual relationship with her parents and a long history of verbal and physical abuse directed at her by her father, the maternal grandfather. She said that she was forced to provide the false information by the father (of the child) even on dates that predated their relationship and without providing an explanation as to why the father would want her to lie about her relationship with her parents.

[19] In her evidence the mother made serious allegations of mistreatment by the father, repeatedly saying that he “tortured” her and that she is left “traumatized” by their relationship and the court proceedings. The mother provided no credible evidence, medical or otherwise, to support these claims despite her involvement with several medical professionals in recent years. While the mother did allege the father grabbed and shook her and slapped her across the face while in Pakistan, nowhere in any of the business records relied on by the parties does the mother report any other mistreatment by the father. To the contrary, except for the alleged incidents in Pakistan, the mother denies any mistreatment by the father to the society, the police and to her doctors.

[20] The mother’s efforts to explain her questionable behaviour throughout the litigation and some very serious parenting concerns raised by the father, included clear fabrications, convenient memory loss and long speeches about how she was forced to marry the father who is a horrible person and have a child before she was ready. She struggled to answer straight forward questions and blamed the father and the court system for traumatizing her saying that no one “fucking cares about my son” and “no one fucking cares about me”.

[21] The mother’s evidence of the trip she took to Pakistan with her mother and the parties’ son in December 2020 significantly damaged her credibility. She took the child out of Canada without the father’s knowledge or consent violating a court order granting him specified parenting time. She commenced court proceedings in Pakistan against the father for relief that was already before this court. She gave several contradictory statements about what precipitated the trip and she could not explain previously sworn contradictory affidavits that also contradicted her evidence at trial.

[22] When the mother found herself in a difficult position during cross examination and faced with having to give evidence adverse to her case, she resorted to becoming overly dramatic announcing that she is not comprehending what is being said in court and that she is being traumatized by the questioning and can barely follow what is being said in the court during the trial.

[23] The mother’s witnesses also made bold and sweeping statements about the father without the details a trial judge would expect to hear. Their evidence can only be described as sensational and completely unreliable. Their evidence simply parroted that of the mother. The paternal grandfather said repeatedly that the father has tortured his daughter. The paternal grandfather was argumentative and had to be asked several times by the court to answer the question and refrain from engaging with father’s counsel who always maintained his professionalism. The maternal grandfather and the gentleman from the father’s Mosque argued with counsel for the father rather than answer a question that would clearly undermine their evidence.

[24] Both the maternal grandparents gave evidence that they do not remember important meetings with society workers during which safety plans were discussed in order to protect the child from risk of harm due to the level of conflict in the home between the mother and her parents but mostly with the maternal grandfather. Their memories only faltered when asked about society involvement creating serious credibility issues for these witnesses.

[25] The evidence of the mother’s witnesses provided the court with little to no assistance in determining what orders are in the best interests of the child.

[26] The extent of the blatant lies, misrepresentations and unbelievable explanations in the mother’s evidence was overwhelming. Her evidence was completely unreliable and where it differed from that of the father, the court accepted the father’s version of events, the evidence of the society worker, and, the information contained in the business records filed by the father and which the parties agreed prior to trial would be relied upon for the truth of their content.

IV. History of the Case

2018

[27] The father commenced this Application on June 21, 2018 claiming that the mother had mental health issues and was abusive towards him during the marriage. He claimed she is unable to meet the needs of the child and is denying him meaningful parenting time. He requested an order for joint custody of the child.

[28] The father amended his Application on January 12, 2019, seeking sole custody (as it was then referred to in the Children’s Law Reform Act) and primary care of the child.

[29] The mother served and filed an Answer and Claim dated June 29, 2018 which she amended on January 24, 2019. In addition to seeking primary residence and sole custody of the child, the mother requested an order that the father’s access to the child be supervised because she said he had threatened to take the child away from her.

[30] On August 2, 2018, the parties consented to a temporary without prejudice order that the child’s primary residence shall be with the mother and the father shall have access for 2 hours twice per week increasing to 3.5 hours after the first five visits. The order also provided that the father shall pay the mother child support for their son in the amount of $230.00 per month based on the father’s annual income of $27,525.00 and the Guidelines.

[31] On November 10, 2018, the mother swallowed several prescription pills and was taken to the hospital where she remained in the Intensive Care Unit for several days. The society was notified of the mother’s attempt at suicide and became involved with the family. A safety plan was implemented that allowed the child to remain with the mother in the maternal grandparents’ home. The plan required the mother’s parenting of the child to be supervised by the maternal grandparents. A Protection Application was not commenced by the society.

[32] On November 29, 2018, the father brought an urgent motion without notice to the mother seeking orders granting him primary care and temporary custody of the child. The motion was brought after the mother was hospitalized again after having a bad reaction to a strain of marijuana she received from a friend. The motion was ultimately dismissed and the child remained in the mother’s care subject to supervision by her parents.

[33] On December 7, 2018, on consent, Justice Spence increased the father’s parenting time to be implemented on a step up basis between December 2018 and January 2019 ultimately resulting in the father having care of the child alternate weekends from Friday to Sunday commencing the week of January 21, 2019; every Monday and Wednesday from 3:00 p.m. until 7:30 p.m.; and, alternate Fridays prior to a weekend he is in his mother’s care, from 3:00 p.m. until 7:30 p.m.

2019

[34] The year of 2019 began with the first of several lawyer changes by the mother and litigation conduct that has resulted in this case lingering in the court system for over three years. The mother has had five lawyers of record throughout this proceeding several changes of which occurred just prior to a court date.

[35] Between February 2019 and the date of this trial, the mother either requested an adjournment or attended in court unprepared and unable to proceed on at least nine court appearances. At least three court appearances including the trial of this matter first scheduled for October 2021, were made peremptory to the mother.

2020

[36] By February 2020, the parties had agreed to the father having extensive parenting time. On February 24, 2020, the parties consented to a temporary order granting the father parenting time as follows:

(a) Every Wednesday from 11:00 a.m. to 5:00 p.m.

(b) Alternate weekends from Friday at 11:00 a.m. to Sunday at 5:00 p.m.

(c) Alternate Fridays before a weekend the child is with the mother from 11:00 a.m. to 5:00 p.m., and,

(d) Alternate Mondays following a weekend the child is with the mother from 11:00 a.m. to 5:00 p.m.

The mother’s trip to Pakistan in December 2020 and the court order changing the child’s primary residence to be with father

[37] The mother says that she went to Pakistan with the child and her mother on December 8, 2020 to attend the father’s brother’s wedding, to see her sick aunt (the father’s mother), and to obtain a divorce as she believed she could not obtain a divorce in Canada having been married in Pakistan. She was in Pakistan from December 8, 2020 until February 16, 2021.

[38] The mother knew that in late November 2020 the father travelled to Pakistan to see his sick mother.

[39] The mother acknowledged that she took the child to Pakistan without the father’s consent or knowledge.

[40] While in Pakistan, the child had no contact at all with the father. The father did not know where the child was for approximately two months although he suspected the mother was in Pakistan once he was served with her court documents.

[41] On January 13, 2021, the parties were scheduled to attend in court on a continuing Settlement Conference. On that date, the court learned that the mother was in Pakistan with the child without permission from the father or the court and in breach of the court’s order of February 24, 2020 granting the father specified parenting time. Justice Spence granted the mother’s third lawyer an order removing her as solicitor of record. In addition, Justice Spence ordered the mother to advise the father where she and the child are and to return the child to Toronto immediately where he will be placed in the primary care of the father who shall have authority to make medical and education decisions related to the child. Justice Spence also ordered the appropriate police forces to assist in enforcing the order, specifically that they shall locate, apprehend and deliver the child to the father. The mother was ordered to pay the father’s costs of the appearance fixed at $1500.00 and the matter was adjourned to January 26, 2021.

[42] On January 26, 2021, both parents participated in the court appearance from Pakistan. On that date the mother was assisted by her fourth lawyer of record. The mother advised the court that she had not complied with Justice Spence’s order of January 13, 2021, as she was still in Pakistan where she commenced divorce proceedings and must attend a court hearing on February 9, 2021.

[43] On February 16, 2021 the mother returned to Canada and the child was placed in the primary care of the father.

The events that followed mother’s return to Canada on February 16, 2021

[44] After returning to Canada in February 2021, the parties had scheduled court appearances on March 15, 2021, March 25, 2021, June 2, 2021 and August 25, 2021. On March 15, 2021, Justice Spence referred this case to trial the week of July 19-23, 2021. On June 2, 2021, unopposed by the father, Justice Spence reluctantly granted the mother’s request to adjourn the trial to October 2021 after she had only recently hired her fifth lawyer. Justice Spence made the October 2021 trial date peremptory to the mother and made several other orders as conditions of the adjournment including prohibiting the mother from brining any motions for substantive relief prior to the trial, the mother undertakes to proceed to trial in October 2021 with or without counsel, and, the mother will pay the father’s costs of $1500.00.

[45] On March 25, 2021, Justice Spence also made several procedural orders on consent in preparation for trial. The orders made include:

(a) The mother agreed to admit at trial copies of the notes and records of several medical professionals for the truth of their content and without the need to call the record keepers as witnesses at trial.

(b) The mother agreed to admit at trial several police occurrence reports, the records of the society and the child’s previous daycare and school for the truth of their content and without the need to call the record keepers as witnesses at trial.

(c) The mother agreed to provide the father with the notes and records of five medical professionals from January 2019 to the date of the order, translated copies of all the court Applications she commenced in Pakistan, an updated resume, and copies of her school transcripts for the past nine years.

[46] Unfortunately, this case was not reached in the October 25-29, 2021 trial week and was referred to the next trial sittings between November 15-26, 2021 as a back up to the child protection trials.[^2]

[47] At the commencement of trial on November 15, 2021, mother requested yet another adjournment saying that she needed more time to prepare her written evidence as her full time enrollment as a student at York University[^3] and the Covid-19 pandemic have made it difficult for her to prepare for trial. The mother suggested a one month adjournment.

[48] The father opposed the mother’s request to adjourn the trial but was not opposed to the mother receiving a day during the two week trial sittings to prepare her evidence which she was told she could give orally. The trial commenced with the father’s case on November 15, 2021 and the mother was given one day, November 16, 2021 to prepare her cross examination of the father and her evidence. The mother was provided with a written guide to ‘Representing Yourself at Your Family Law Trial’, produced by the Ontario Court of Justice and the trial was adjourned to November 17, 2021.

[49] On November 17, 2021, the trial resumed. The mother did not cross examine the father or the worker from the society. The mother advised the court that her evidence would be comprised of several videos she wished to file with the court along with a written statement of her description of each video. As the mother did not provide the videos or the statement to counsel for the father in advance, he was given the opportunity to review the videos and the statement with his client and they were entered as evidence.

[50] The court assisted the mother in giving her testimony by going through the father’s evidence and having her respond to the issues or provide her version of events raised by the father in his testimony.

[51] As the mother was self represented, the court gave her a lot of latitude when giving her evidence.

[52] The court was vigilant not to rely on the statements contained in the business records from third parties who did not give evidence at the trial. The court only relied on statements made by the parties and the maternal grandparents to the third party professionals who recorded the statements in the records.

Mother’s parenting time after her return from Pakistan

[53] After the mother returned with the child to Canada her parenting time was to be supervised. The mother has been offered in person parenting time supervised by the society and by a professional supervision service, but she did not respond to the offers. As a result, the mother’s parenting time since her return to Canada in February 2021 to the date of trial has been by video only.

V. The Law

[54] Subsection 18 (1) of the Children’s Law Reform Act (the Act) defines decision-making responsibility as follows:

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities.

[55] Section 20 of the Act reads as follows:

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

[56] Section 24 of the Act addresses the best interests of the child. It reads as follows:

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.

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 wellbeing.

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,

(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

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.

[57] Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case read as follows:

Parenting Orders and Contact Orders

28 1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of Information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

VI. Analysis of the best interest factors – Section 24 of the Children’s Law Reform Act

Section 24(2) – Primary consideration: The child’s physical, emotional and psychological safety, security and wellbeing

[58] The court must give primary consideration to the child’s physical, emotional and psychological safety, security and well being in determining his best interests.

[59] The evidence demonstrates that the child’s physical, emotional and psychological safety, as well as his security and well being is of the utmost concern to the father and that he has at all times conducted himself in a manner and made decisions that promote and put the child’s overall wellbeing before anything else.

[60] The father has met the child’s need for physical, emotional and psychological safety at all times by providing him with a safe, stable and happy home; ensuring he receives regular medical care; promoting his education and socialization; being alive to medical and dental issues that arise outside of annual check ups; promoting and attempting to foster a healthy relationship with his mother; and, taking steps to protect the child from adult conflict.

[61] The mother has been unable to recognize and meet the child’s need for physical, emotional and psychological safety. Her conduct and choices have had a negative impact on the child’s sense of security and well being. Examples are as follows:

a) The mother denied or at least limited the father’s parenting time unnecessarily following separation.

b) The mother removed the child from Canada without the father’s consent or court order during the court proceedings and travelled to Pakistan for two months. In doing so, she violated a court order for specified parenting time for the father.

c) The mother failed to obtain dental and medical treatment for the child when he needed it.

d) The mother enrolled the child in school over a month after the school year began and then failed to take him regularly before removing him for two months to travel to Pakistan.

e) The mother has failed to adequately address her mental health issues including depression and anger.

f) The mother allowed the child to be subjected to frequent adult conflict in the home she shares with her parents and siblings.

g) After the child was moved into the father’s primary care in February 2021, the mother did not take any steps to implement in person supervised parenting time despite it being available to her. As a result, her child has only seen her via video since February 2021.

h) The mother has repeatedly made unfounded allegations that the father is sexually abusing the child.

i) The mother has repeatedly breached court orders impacting the child’s relationship with his father.

j) The mother has behaved inappropriately towards the child during her video parenting time showing an inability to control her emotions to her son’s detriment.

k) The mother takes little to no responsibility for her behaviour and choices and shows little insight into the negative impact they have had on her son.

Section 24(3) – Factors to be considered where applicable when determining best interests

i. The history of care of the child

[62] The child resided primarily with both parents until they separated in March 2018 when he was not even two years old. The father’s evidence is that he worked the night shift at Tim Horton’s and was available to assist with childcare during the day. He says he was actively involved in the day to day care of the child. The mother did not provide evidence to contest the father’s version of events.

[63] In 2017, the mother reported to her psychiatrist that the father was supportive with respect to child care and on July 6, 2017 the mother told a society worker that the father “is a great person” and is “loving and patient” with the baby. She described the father as “kindhearted”.

[64] The court finds that during the marriage both parents were involved in the day to day care of the child.

[65] After the parties separated in March 2018, the child was cared for primarily by the mother until February 16, 2021 when he was placed in the primary care of the father. Before the child was placed in the father’s primary care, the father had regular and frequent parenting time with the child during which he engaged in various outings and activities. He also tended to the child’s medical and dental needs during his parenting time. The evidence before the court is that the father has met the child’s needs while in his care and no concerns have been noted by anyone.

[66] After being placed in his father’s care, the mother has only exercised video parenting time despite being given the opportunity to commence supervised in person parenting time.

[67] Since February 2021 the mother has missed several scheduled video visits with the child. In addition, the father has some concerns with the mother’s behavior during her parenting time which will be addressed in more detail below.

i. 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

[68] There is no doubt the child has a strong attachment to both parents. This is noted repeatedly in the society’s records. It is also noted that both parents were able to meet the child’s basic physical needs.

[69] The society workers recorded in their notes that the father was affectionate and appropriate with the child who often sat in his lap. The maternal grandmother gave evidence that the father always picked the child up and kept him in his lap.

[70] While in his mother’s care, the child also created important relationships with his maternal grandparents, uncles and aunts. The mother’s evidence included video of the child with his young uncles and their closeness was obvious.

[71] The maternal grandmother and uncles can be seen in some of the videos of the mother’s virtual parenting time. The love of the child can clearly be seen on the maternal family’s faces.

ii. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[72] The parties are both of Indian descent and practicing Muslims. No evidence was given by either party that there is any disagreement with respect to the child’s religious or spiritual upbringing.

iii. The child’s views and preferences

[73] While the child is too young to express his views and preferences in relation to the parenting orders the court is being asked to make, the court finds that the child loves both of his parents and has an important connection with both.

iv. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

(a) Denying the father contact with the child following separation

[74] When the parties first separated the mother only allowed the father to see the child in her home. He complied with this requirement in order to see his son. Then the mother began to ignore his requests for parenting time which ultimately resulted in the commencement of court proceedings.

[75] Once court proceedings were commenced, the mother consented to court orders granting the father parenting time. At first his parenting time consisted of short day visits but over time increased to include regular overnight parenting time.

[76] On several occasions the mother interfered with or unilaterally denied the father his parenting time, violating court orders. At the beginning of the Covid-19 pandemic in March 2020, the mother insisted on suspending the father’s weekday parenting time. The father agreed to this arrangement for a couple of weeks, but the mother denied him weekday parenting time until August 2020. It makes little sense to suspend the father’s mid week parenting time but allow him to continue to care for the child alternate weekends as per the order of February 24, 2020. The mother did not provide evidence as to why the mid week visits did not resume until August 2020.

[77] In September 2020 when the child commenced junior kindergarten, the mother once again attempted to unilaterally alter the father’s court ordered parenting time. The father did not agree to the change and asked the mother whether the child is attending school in person or virtually, so he knows where to pick the child up for his parenting time. When the mother did not respond to his communications, he had to involve the parties’ lawyers.

[78] Even after the lawyers became involved, the mother attended at the child’s school on the father’s parenting time and removed him so that the father could not pick him up.

[79] The mother also incorrectly told a society worker on November 16, 2020 that the father’s parenting time is pursuant to a verbal agreement when it was actually pursuant to a court order made on consent on February 24, 2020. She complained that he was attempting to pick the child up from school on the days the order granted him parenting time from 11:00 a.m. to 5:00 p.m. and that she attended at the school in order to stop him from doing so. This resulted in conflict between the parents in front of the child, the mother calling the police and video taping the father, and the child eventually becoming visibly upset and crying.

[80] In her interaction with the society worker on November 16, 2020, the mother unsuccessfully tried to convince the worker that a video she recorded showed the father holding the child up against a fence so that he could not get to his mother. The worker did not agree with the mother’s interpretation of the video. This is important as there is a pattern of the mother trying to convince third parties that the father is abusive and a danger to the child in an attempt to reduce or restrict his time with the child.

[81] The father provided the court with multiple emails, text messages and WhatsApp communications evidencing the numerous times the mother cancelled his parenting time. He also produced letters between counsel addressing the issue of mother cancelling his visits to support his claim that the mother regularly interfered in his parenting time and did so arbitrarily and unilaterally.

[82] The mother did not contest the accuracy or authenticity of the communications between her and the father. She provided no evidence to adequately explain the numerous occasions she cancelled the father’s court ordered parenting time.

(b) The mother’s repeated unfounded allegations of sexual abuse by the father

[83] On October 25, 2018, the mother called the society and reported to the Intake worker that she is worried the father is sexually abusing their child. She reported that the child, who was just under two years of age at the time, is tired after visits with his father, lashes out at her physically when he wakes up and makes moaning sounds. The mother was advised that what she reported would not justify an investigation.

[84] On June 19, 2019, the mother asked the society worker to describe signs of sexual abuse in a child. The worker gave some examples and asked the mother if the child is displaying any of the examples given. The mother answered “no”.

[85] On August 25, 2019, the mother took the child to Humber River Hospital to be examined as she was concerned that he was being sexually abused. The mother reported to the doctor that she noticed redness and swelling around the child’s anus upon his return from visits with the father. She also reported that the child behaves differently upon return from visits with his father.

[86] Upon examination, the doctor found no signs of sexual abuse. The attending doctor consulted with the Suspected Child Abuse and Neglect department at the Hospital for Sick Children, who agreed with the attending doctor’s conclusions.

[87] On August 28, 2019, the mother reported to the society worker that she is concerned that the father is sexually abusing the child because he holds and hugs him too tight and sometimes will not put him down when he wants to be put down. She expressed concern to the worker that the father is gay. The mother acknowledged that there is really no evidence of sexual abuse and that “it’s just a feeling”. By the end of the discussion the mother told the worker that she does not believe the father is sexually abusing the child.

[88] On September 9, 2020, the society received a referral that the mother is alleging the child is being sexually abused by the father. The society’s records state that the mother told them she took the child to emergency at Etobicoke General Hospital. The mother complained that she waited six hours to see a doctor and by that time the swelling and redness around the child’s anus had subsided. She complained that the doctor who made her findings too quickly, is not a pediatrician and only an emergency room doctor.

[89] The society investigated the allegations during which the mother reported that she did not approve of how long the father hugged the child or held him in his lap. The society did not verify the mother’s allegations.

[90] The mother made further allegations of sexual abuse by the father in discussions with the society on November 17, 2020. She advised the worker of behaviours the child was exhibiting that led to her belief he was being sexually abused. This included hair pulling and resistance to hugging. The worker advised the mother that these are typical behaviors of young children and not signs of sexual abuse.

[91] At trial, the mother submitted several videos to corroborate her oral evidence. One video she referred to as “Father-son interaction” lasted for five and a half minutes. The child is five months old and is lying on his back. The father is playing with the child, kissing him, rubbing his belly, lies down with him, and, places his finger in the child’s mouth. The video shows a loving, doting father who appears completely enamoured with his baby. The mother’s evidence is that she finds the father’s interaction with their son “unusual” and “unsettling” as she says the father was never this intimate towards her.

[92] The mother’s repeated allegations that the child is being sexually abused by the father based on a “feeling” or “mother’s intuition” is disconcerting. In addition, the timing of the allegations is suspect. The mother did not raise these concerns until the parties had exhausted attempts to reconcile their relationship and separated with no prospect of reconciliation.

[93] The mother subjected the child to intrusive and repeated examination of his genitals and anus. She repeated her claims over and over despite medical professionals assuring her that there is no evidence of sexual abuse.

[94] The mother’s repeated baseless allegations are very serious and part of a disturbing pattern of her interfering or attempting to interfere in the child’s relationship with his father.

(c) The mother’s trip to Pakistan with the child without notice to the father

[95] The mother took the child to Pakistan in December 2020 for two months without notice to the father. She did so in the face of a court order granting the father frequent parenting time. She was prepared to suspend the father’s parenting time for two months in contravention of a court order. This behaviour heightens the court’s concerns about the mother’s ability to support the development and maintenance of the child’s relation with his father

[96] The mother has interfered with the child’s relationship with his father prior to the commencement of court proceedings and during the proceedings. At trial she was unable to provide a suitable explanation for doing so. In the absence of an acknowledgment from the mother that her conduct was inappropriate there is no basis for the court to assume it will not happen again.

[97] The father’s evidence demonstrates his understanding of the importance of the mother’s role in the child’s life. He always shared important information impacting the child with the mother, he consulted the mother before scheduling any appointments for the child, and, he attempted to implement in person parenting time for the mother upon her return from Pakistan as he appreciated the importance of in person parenting time to the child.

iv. Any plans for the child

[98] In his evidence the father provided the court with a detailed plan for the child’s care if his primary residence is maintained with him. The father has a routine in place for the child that includes a regular bedtime, wake up time and meal schedule. The father provides the child with structure by implementing a routine that includes play time as well as learning or educational time.

[99] The father is also fostering friendships between the child and other children in his area in order to ensure the child develops socialization skills.

[100] The child is enrolled in senior kindergarten at Clinton Street Public School. The father has a doctor, dentist and optometrist in place for the child and schedules and takes him to his appointments regularly.

[101] The father takes pride in the fact that he has exposed the child to different cultures, events and interesting locales in the City of Toronto. He says this is important for the child’s overall development.

[102] The mother provided no evidence of her plan for the child other than he would return to Elms Junior Middle School which is close to her current home if he were returned to her primary care.

v. 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

(a) Ability to meet the child’s medical needs

Dental Issues

[103] There is no evidence that the child’s medical needs were not met during the marriage. After separation, the evidence shows that the father took an active role in ensuring the child’s medical and physical needs were met. He attempted to engage the mother and tend to the child’s medical needs together, but she did not respond to his communications. As a result, he often took it upon himself to make necessary medical appointments for the child and ensure he received treatment when required.

[104] There is overwhelming evidence of the mother’s failure to meet the physical needs of the child after separation. The mother’s neglect of the child’s dental health resulted in him undergoing extensive dental surgery including a crown, deep filings and root canal while under anesthesia at the age of four.

[105] The father was concerned about the child’s teeth and oral hygiene and in January 2020 he acted immediately and responsibly. He took the child to Toronto Public Health to have a check up and learned he had cavities. The father emailed the mother right away advising of the appointment and sharing information the dentist provided about the care and treatment of the child’s teeth.

[106] The mother responded to the father via email asking questions about the dentist and any future appointments. The father replied immediately and provided the name and address of the dentist, the list of pediatric dentists he was referred to in order to have the cavities addressed, and, information about the Healthy Smile Ontario program which covered the cost of the check up. The father asks the mother in his email dated February 25, 2020 if she will book the follow up appointment or if he should make the arrangements and, he suggests they attend the next appointment together.

[107] The father did not receive a response from the mother to his February 25, 2020 email. As a result of the mother’s failure to arrange the dental treatment, in August 2020 the father took it upon himself again to make an appointment with a dentist for September 4, 2020 and promptly notified the mother of the appointment. He did not receive a response from the mother and when she did not attend the appointment he sent her an email advising her of the outcome of the appointment and specifically that the child had x-rays and has cavities in his front teeth that must be treated under anesthesia. The mother’s email in response simply chastised him for taking the child to the dentist and other medical professionals without consulting her and obtaining her availability to attend such appointments in advance. She asks for the names of all medical professionals he has taken the child to without her knowledge. She does not request any information about the cavities and the need to fill them under anesthesia.

[108] When asked why she did not ask the father about the cavities in her correspondence to the father, the mother said that she is not really “cognizant” and “taking in the information that you are saying to me”. The mother said that this is “psychological torture” and “I’m literally being traumatized right now.”

[109] On September 30, 2020 the father emailed the mother with possible dates for a consultation with a specialist. The initial consultation with the specialist took place on October 21, 2020 and December 15, 2020 was scheduled for the extensive dental treatment to be completed. The mother did not take the child to the appointment on December 15, 2020 despite an email from the father to the mother on November 18, 2020 advising of the December 15th, 2020 appointment (presumably because she was in Pakistan).

[110] The mother gave conflicting evidence on whether she contacted the dentist. She said that she cannot remember if she spoke to the child’s dentist or the specialist who completed the work but later said that she did not have the opportunity to consult a dentist. She also cannot remember if she received the email from the father notifying her of the December 15, 2020 appointment. When asked if she believed the teeth were “milk teeth” that would fall out, she said that this was her belief at the time. She angrily added that she let the father take the child to one dental check up and as a result she had to endure all this abuse.

[111] The mother’s evidence is that the emails from the father are unclear and that she felt harassed by him. In fact, the father’s email communication very clearly sets out that the child has serious issues with his teeth that must be addressed by a specialist and that someone has to make the necessary appointments and take the child for treatment. There is no ambiguity in the emails in so far as the child has serious dental issues that require attention immediately. No reasonable person would view the emails as harassment or abusive.

[112] The society worker who gave evidence said that the father raised his concerns with her several times about the mother’s failure to respond to his emails regarding dental treatment for the child. The worker said she spoke to the mother about this issue on a few occasions and as early as February 2020. She said the mother was “quite dismissive” and felt that this was not a priority as the teeth would fall out.

[113] After the father tried to work with the mother for almost a year to have the dental work completed, it was finally done in March 2021 after the child returned from Pakistan with the mother and was placed in the father’s care pursuant to the order of Justice Spence dated January 13, 2021.

[114] On April 16, 2021, a society worker visited with the mother at her home and asked her why she did not arrange for the dental work to be done when the child was in her care. The mother told the worker that his teeth were worked on in Pakistan and she did not agree that the child required a root canal as determined by the child’s dentist in Toronto. The mother told the worker that the teeth are “milk teeth” and fall out and that she did not believe that they could cause pain.

[115] The mother’s memory during cross examination failed her when it was convenient. She often resorted to answering a question in cross examination by saying that she has been threatened and harassed or tortured and traumatized without any evidence whatsoever to substantiate these serious allegations. Her attempt to deflect the questions answers to which would harm her case was obvious.

[116] The mother completely neglected the child’s dental health when he was in her care. As a result, the child required root canal under anesthesia at the age of 4 years. If the treatment was done expeditiously, it would have been done when he was only three years of age. The mother concluded that the child did not need the treatment based on her uninformed knowledge and belief. She took no steps to contact the treatment providers to educate herself on the issue and make an informed decision. She did not arrange for the required treatment and when the father did, she took the child to Pakistan for two months and missed the appointment. The child’s treatment was unnecessarily delayed from January 2020 until March 2021 after his return from Pakistan because of the mother’s neglect.

General Health

[117] The mother also did not show adequate interest in the child’s general health and welfare. The father took the child to the doctor to discuss issues such as diet and sleep. He shared information he received from the doctor with the mother, but she did not respond to his email. He also took the child for an eye check up and advised the mother in advance of the appointment. She did not respond to his email or attend the appointment.

[118] The father took the child to the doctor on February 9, 2020 after noticing a rash on his buttocks. The child had a fungal infection and was prescribed cream that was sent to the mother with the child upon his return to her care. The mother did not respond to the father’s email for two weeks and only after he sent a second email noting that it appears that the fungal infection has spread. In her responding email she says that she has been applying the cream, but she does not think it is working. She also says the child has been itching the area which is likely why the infection is not improving. Strikingly missing from the mother’s email or her evidence was that she had taken the child to or at least spoken to his doctor about the infection worsening and the possibility that the cream prescribed was not working. If the mother thought the cream was not effective why did she not contact the child’s doctor?

[119] The fungal infection persisted and spread between February and May 2020. The father sent the mother several emails to which she did not respond including one in which he invites her to make an appointment for the child during his parenting time and he will take him to the doctor. The father contacted the child’s doctor in April and May 2020. On May 17, 2020, the father advised the mother via email of the doctor’s instructions and that she must take pictures of the infection and send them to the child’s doctor after one week of treatment.

[120] The mother only communicated with the father about the child’s fungal infection on one occasion between February and May 2020. This is unacceptable. The child was not even four years old at the time. He was itchy and in pain and the infection was not going away. The mother’s failure to communicate with the father and work together to address the infection highlights for the court the mother’s inability to meet the child’s basic medical needs.

(b) Ability to meet the child’s educational needs

[121] The father gave evidence that the mother rarely took the child out of the home when they were together. He believed the child was not being adequately socialized and would not be prepared for school. The mother saw no need to send the child to daycare as she and her parents were available to care for the child before he started school.

[122] After the father expressed an interest in enrolling the child in daycare, the mother spoke to society workers about the need to do so as she did not believe it was necessary. Suddenly and contrary to her beliefs, she enrolled the child in a daycare in December 2018.

[123] The uncontested evidence before the court is that the child was only enrolled in the Centre for Early Childhood Education from December 10, 2018 to March 5, 2019 during which time he was absent for 11 days. He was dropped off at different times between 9:35 a.m. and 11:15 a.m. and always by the maternal grandmother. The daycare had no concerns about the child who often cried for a short time after his grandmother dropped him off but otherwise adapted well.

[124] The child was in the daycare for a very short time and the father’s evidence is that an opportunity was lost to create structure and routine in his life prior to commencing full time school. In addition, the child lost the opportunity to socialize with other children in his age group.

[125] The mother did not give evidence explaining why the child was enrolled in daycare, missed several days, and then was abruptly withdrawn.

[126] In April 2020, the father raised with the mother the issue of the child being enrolled in junior kindergarten for September 2020. He advised her via email that they could enrol the child on line and asked if she would like to do it or should he. The mother responded to the father and advised that she would enrol the child and advise the father once she has done so.

[127] By late August 2020 it became apparent that the mother had not provided the school with the documents necessary to complete the child’s enrollment in the school. The father emailed the mother on August 26, 2020 reminding her that she had to provide the school with the child’s birth certificate, health card and proof of his address. He did not receive a response from the mother. When school began the father asked the mother via email if the child is attending in person or not, so he knows where to pick him up for his parenting time. He received no response.

[128] The uncontested evidence before the court is that the mother did not enrol the child in school until October 30, 2020. After missing the first month and a half of school, the child missed 16 days of school and attended late on 5 days between October 30, 2020 and December 7, 2020, when he was withdrawn for two months to go to Pakistan. As a result of the mother’s choices, the child effectively missed three quarters of his year in junior kindergarten.

[129] According to the society’s records, on November 17, 2020 when the worker met with the mother to investigate the conflict that took place at the child’s school in front of the child, the worker told the mother that as part of her investigation she spoke with several school officials and that none had any concerns about the child’s behaviour or emotional issues but that they did feel he was “academically lagging”.

[130] Even after being advised of the school’s concerns about the child academically, the mother saw fit to keep him from school not only for most of November 2020 after receiving this information but for an additional two months between December 2020 and February 2021 to travel to Pakistan.

[131] The mother’s evidence is that it is not mandatory for the child to attend junior kindergarten, so she was not doing anything wrong. While it is correct that a child is not required to attend junior kindergarten, the mother gave no explanation for why she enrolled the child in school a month and a half after school began or why the child missed 16 days in a span of less than two months. The school records show that the child was absent due to illness, but the mother provided no proof of the child being so ill that he would miss 16 days of school in two months.

[132] Once the child was placed in the father’s care upon his return from Pakistan and out of quarantine, he started before and after school daycare at Centro Clinton Daycare and junior kindergarten at Clinton Street Junior Public School. Between late February 2020 and June 2021, the child only missed one day of school and was not late at all.

[133] The mother’s evidence is that she has not spoken to or met anyone from Clinton Street Public Junior School, but she did send an email requesting information. She could not recall when she sent the email.

(c) Ability to provide the child with a safe and healthy home environment

[134] The father’s evidence is that the mother has a very unhealthy relationship with her parents that results in frequent arguments. He says there is a significant amount of yelling and arguing in the maternal family’s home. He also says that there is a lot of conflict between the maternal grandparents. He says that the mother has threatened to kill her father and provided a text message from her from 2016 in which she makes this threat. He says that when the parties were together in the home they shared with the maternal grandparents, the environment was toxic and extremely unhealthy, especially for their son.

[135] The father has produced text messages from the mother from 2016, that she acknowledges are authentic, in which she complains about the treatment she is receiving from her parents, that they are always arguing, that they do not care about her and that she wishes she could leave their home.

[136] The business records admitted as evidence and for the truth of their content is replete with disclosures by the mother to third party professionals that she endured a very troubled childhood that included verbal and emotional abuse by both parents and physical abuse by her father. She has made several disclosures about the abuse she experienced at the hands of her parents to the father, the society, her family doctors and to two psychiatrists. The following are some examples of the evidence set out in the business records on this issue:

(a) July 15, 2014 reports to her doctor, Sofia Alahi that she has arguments with her parents and once left home and lived in a shelter for a few weeks.

(b) November 5, 2015 mother reports to Dr. Alahi that she has issues with her parents.

(c) In text messages from the mother to the father in 2016 she writes:

i. All my parents do is fight.

ii. I’m gunna kill my dad tonight; I’ve had enough.

iii. If I could I would leave this house.

iv. I’m sad that even though they know I’m pregnant they’re not helping me they’re just stressing me out more.

v. You know how mama and papa make me upset.

vi. Mama started arguing with me again.

vii. No one gives a shit if I die or my baby dies. That’s why I can’t ask anyone for help. Because no one cares. Not even my parents.

(d) August 25, 2017 – mother tells her doctor that living with her parents is a stressor for her.

(e) September 17, 2017 – mother tells her doctor that she has been experiencing low mood as a consequence of her mother and father.

(f) September 27, 2017 – during a psychiatric assessment by psychiatrist, Dr. Nadia Stroganova at William Osler Health Centre, the mother reports the following:

i. Her father has been physically and verbally abusive to her and her siblings from a young age.

ii. Her father is a very angry person.

iii. She began feeling sad at age 12 and had severe panic attacks and began inflicting superficial cuts to herself. She said that this was mostly related to “the physical abuse from her father, physical and verbal abuse from her parents, especially her father.”

iv. She has a lot of stress related to her conflictual relationship with her parents.

v. That her current living environment with her parents is not healthy.

(g) On June 13, 2017, the mother told a society worker that she grew up with a lot of conflict and living with her parents was not helpful. She advised that her and the father might move to a shelter.

(h) On July 6, 2017, a society worker met with the mother and father in their home. The worker reported that the mother described much conflict with her parents. She reported they argue a lot and there has been pushing and the police have been called. Both parents disclosed concern with the baby being exposed to the adult conflict. Mother reported she is very angry about her relationship with her parents and that her father triggers her.

(i) On August 2, 2017, the mother reported to a society worker that she is upset and angry about growing up with constant arguing and that her father exercises control over her.

(j) On August 8, 2017, the parents met with a society worker and they discussed the “stressors they face” which included “living in a home where yelling and verbal conflict was seen as a norm (with mat. Grand-parents)”.

(k) On August 2, 2017, a society worker met with the parents and the maternal grandparents. The grandfather acknowledged that there was a lot of disagreement in the house. He acknowledged that there are arguments in the home including screaming and name calling and door slamming which he does not think is good for the baby. The mother told the worker that her parents are always arguing. The parties discussed a safety plan given their concerns for the baby which included the grandfather and the mother making an effort not to engage with one another for the “sake of [the] baby”.

(l) On November 7, 2017, the parents met with a society worker and the mother told her that their counselling is going well but that they will need support for a long period of time in order to address her own childhood abuse.

(m) March 27, 2018 – psychiatrist Dr. Salvatore Mallia, reports that in his assessment of the mother she elaborated on her childhood and “the verbal and physical abuse she went through.”

[137] Despite these repeated disclosures to third party professionals and the involvement of the society in the mother’s life when she was a child due to what she described as “corporal punishment” by her father, the mother insisted at trial that her parents have not been and are not abusive and that they have a happy and healthy relationship. The mother’s evidence is that she falsely made these reports to third parties as a result of manipulation and control exerted over her by the father. The mother’s evidence is that the existence of any and all reports to third parties by her of a conflictual relationship with her parents or abuse by her father is a fabrication she was forced to make by the father.

[138] The mother and both her parents gave evidence that there is no yelling or arguing in their home and that it is a safe and happy place. Both the grandmother and grandfather said they do not remember speaking to the society about the conflict in the home and the risk it posed to the child. They have no recollection of discussions with the society of a safety plan.

[139] The court does not believe the mother or her witnesses on this issue. No where in the court documents or to any third party professional does the mother allege that she made false reports of the maternal grandfather being physically and verbally abusive towards her. This explanation was only provided at trial. There is no explanation provided by the mother as to why the father would want her to make false reports about her father’s treatment of her. No rational explanation was provided to explain why the parties and the maternal grandparents required a safety plan in their home to protect the child from adult conflict if there was no such conflict present in the home.

[140] The mother’s descriptions of the arguing and yelling in her home in the presence of the child when he was a baby is extremely concerning. The mother knows that this is potentially harmful to her son. On February 7, 2020, the mother was discussing her hope for her and the father to move out of the maternal grandparents’ home with their child with a society worker. She told the worker she “feels concerned about her younger brothers”. The worker noted that there has been no abuse of the brothers since the file was opened but that “parents yelling at the boys was common”.

[141] The mother expressed concern about the well being of her younger brothers in the care of her parents yet she asks this court to make an order placing the child in her care while she lives in the very home she is concerned to leave her brothers in. Her decision to remain living with her parents who create an inordinate amount of stress in her life and subject her son to constant arguing and yelling discloses very poor judgment on her part. The court finds the mother’s desire to have her son returned to her care to live in what she has described as an extremely unhealthy environment to be misguided and contrary to her son’s best interests.

(d) Failure to acknowledge and address mental health needs

[142] The mother’s medical records disclose a long history of depression and other mental health diagnoses dating back to when the mother was 12 years old. The medical records contain several statements by the mother that her sadness and poor sense of self worth stems from the abuse she suffered as a child. She describes her father as angry and physically abusive. She feels controlled by her parents, yet she cannot extricate herself from their home and control. The mother reported to medical professionals that when she was younger, she had panic attacks and engaged in self cutting. She even reported thoughts of jumping from the balcony of their apartment building.

[143] The mother has been on and off medication to address her mental health issues over the years. In November of 2018, the mother attempted suicide by ingesting two bottles of prescription pills. She swallowed the pills and then called the father who alerted the maternal grandparents to check on the mother and call 911. The mother reported to her family doctor on November 23, 2018, that she took the pills and then called the father to “get him back”.

[144] The mother was ordered to disclose her more current medical records to the father prior to trial. She did not comply with this order. As a result, there is no third party professional evidence before the court of the current state of the mother’s mental health, if she is receiving treatment and whether she is compliant with the treatment, although she did give evidence that she is fine and not receiving treatment or counselling. The court draws an adverse inference from the mother’s failure to provide the court ordered medical disclosure.

[145] The society worker who gave evidence said that the mother was averse to services as she reported that while she built a rapport and trust with her former counsellor over time, she found the counsellor to be judgmental and things she said to be unhelpful so the mother was no longer fond of counselling.

[146] The mother’s evidence at trial is that she took medication for depression in 2014. She said she was “cleared” in November 2019 and prior to that she had two diagnoses. She could not recall the diagnoses. Despite her medical records reporting her suffering from depression back to age 12, engaging in self cutting and reporting to several doctors that her sadness stems from the verbal and physical abuse she experienced by her parents she denied that any of this was true.

[147] The mother’s evidence is that her memory of the suicide attempt in 2018 is “fuzzy”. She said she took a lot of pills but does not know why. She has worked on herself since then and has a safety plan that involves turning to her parents when she feels “low or something like that”. The mother acknowledged that she has not had any counselling since the suicide attempt as she has returned to University,[^4] “which is my priority” and she has not had the time or felt the need for counselling.

[148] The mother’s evidence is that her mental health issues have no impact on her ability to care for her son. The court disagrees.

[149] The mother minimizes her mental health issues. She says that she is well and does not require treatment or counselling. Her parents denied any knowledge of their daughter having a history of mental health issues. They both gave evidence that their daughter is perfectly healthy and happy. The maternal grandfather said that the idea of the mother suffering from mental health issues is a creation of the father and his lawyer.

[150] There is no doubt that the mother has suffered from mental health challenges in the past. Her denial of the truth of her own statements to several medical professionals over the years and her failure to acknowledge the significance of her mental health issues and especially her suicide attempt in November of 2018, places the child at risk of harm. Her lack of ongoing treatment or at least a relationship with a mental health professional that she can turn to when needed is of significant concern to the court. This is exacerbated by her failure to provide up to date medical records as ordered by the case management judge.

[151] It is also very concerning to the court that the mother’s major source of emotional support are the very people that exasperate the mother and test or worsen her mental health and who apparently have no knowledge of their daughter having any mental health issues despite her attempt at suicide three years ago. The maternal grandparents are therefore not a protective factor and provide no comfort to the court should the child be placed in the mother’s primary care.

[152] The child’s primary caregiver must be able to take care of themself first and foremost before being entrusted with the primary care of the child. In other words, if a parent is unable to meet their own needs then they are not well positioned to persuade a court that they can meet the needs of a young, completely dependent child and should be entrusted with their primary care. The mother’s failure to acknowledge her mental health issues or take steps to maintain good mental health in this case impairs her ability to care for a soon to be five year old child full time.

(e) Inability to meet the child’s emotional needs and inappropriate behaviour in the presence of and directed at the child during video parenting time

[153] When the mother returned from Pakistan in February of 2021 and the child was placed in the primary care of the father, video calls were arranged immediately between the mother and the child three times per week for 15 minutes. Counsel for the father confirmed in writing with mother’s counsel that the video calls will be recorded to protect both parties from false allegations.

[154] In March 2021 the father’s lawyer enquired with the society if they would be willing to supervise in person visits between the mother and the child. When the society advised they were unable to do so at that time due to Covid-19 protocols, the father proposed the use of a professional supervision service. The mother did not respond to the proposal.

[155] On July 14, 2021, the father’s lawyer corresponded with counsel for the mother and proposed three potential supervision services. The father offered to pay 50% of the cost of the first 4 visits. The mother did not respond to the proposal.

[156] On July 20, 2021, counsel for the father corresponded with the society again to see If their policies had changed and they could supervise the mother’s visits with the child.

[157] On August 27, 2021, the society emailed counsel for both parents to advise that they are agreeable to supervising six one hour visits at their offices. On that same date, counsel for the father responded to the email and copied the mother as she was no longer represented by counsel. The father’s lawyer advised the society that the father was agreeable to all the terms of access as set out by the society in their correspondence to the parties.

[158] The mother did not respond to the society’s offer.

[159] The mother’s evidence is that she did not believe her parenting time should be supervised and therefore did not respond to the society’s or the father’s counsel’s communications or contact the professional supervision services. She also said that the society did not consider her schedule and availability to attend supervised visits, yet she acknowledges that she never contacted the society to discuss her availability.

[160] The mother’s inability or unwillingness to cooperate to arrange for in person parenting since February 2021 is difficult for the court to understand. The mother’s reasons for not making these arrangements are illogical. She says that when the society offered to supervise her visits, they did not consult with her about her schedule or consider her needs. As the mother did not contact the society to discuss the arrangements for her visits with the child to be supervised, her evidence is not accurate. Counsel for the father and the society worker both reached out to the mother to make the arrangements for her visits with the child, but she did not respond to either.

[161] As a result of the mother’s choices, she has only exercised video parenting time since February 16, 2021. The mother’s evidence at trial discloses no insight into how her choices may be impacting her son and how he must feel not having had physical contact with his mother for eight months. The evidence demonstrates that currently the mother is unable to put the needs of her child before herself.

[162] The father provided the court with recordings of some of the video visits. While the court acknowledges that it did not receive complete videos of the visits or recordings of all of the visits, and that there may be many visits that went extremely well, some of what can be seen in the videos provided to the court is distressing. Even if many visits went well and the mother acted appropriately, this would not diminish the negative impact of the visits where she did not act appropriately and conducted herself in a manner that was harmful to the child. What the court saw in the videos is serious enough on its own to be very concerned, even if there were many appropriate visits.

[163] During some of the video recordings, the mother is heard making the following inappropriate comments to the child:

(a) Do you miss mama?

(b) You look sad.

(c) Don’t look sad mama is going to come get you.

(d) You look bored, I know you are bored.

(e) Mama is busy because mama is fighting the monsters. Mama is going to come get my baby.

(f) What’s happening? What’s wrong? How do you feel? Do you feel happy or do you feel sad?

(g) You ask God, okay, ask God that you go home to mama okay.

(h) Who’s in your house? Is it just you and baba [father] in the house, you get bored. I know you are bored. You wanna come to mamma house? I will bring you home, don’t be sad.

(i) You are spending so much time with baba and mama is not getting any time to spend with you. Mama is so sad.

[164] In one particularly disturbing video the mother repeatedly tells the child that no one can touch his body and that his body is his own. She asks him if his father teaches him about his body. She says to the child that he is 4 years old now and he is a big boy who can go to the washroom by himself. She then tells the child that she is worried for him.

[165] In another video the mother appears unkempt and clearly angry. She is having a very difficult time engaging the child and becomes angry with him for not paying attention to her. She tells the child that he has a mother and that his father is not his only parent and he is being rude to her. As her voice raises and she sounds angry, the child stops what he’s doing and looks straight at the computer screen and says “bye”.

[166] The mother was asked to explain her behaviour in the video viewed by the court. She says, “It has been psychological torture not to see my son and have this schedule imposed on me and what you are seeing is a reaction to the abuse that has taken place and you are seeing my child being subjected to his mother who has been psychologically tortured for the last eight months.” Sadly, she is so focused on how she feels and what she is experiencing that she pays little to no attention to what her son must be feeling because of the experiences he is having

[167] The way in which the mother has chosen to spend her 15 minutes of video contact with her 4 year old son demonstrates for the court that the mother does not understand the needs of her son. It also demonstrates that the mother is unable to control her emotions during these short visits as she uses to time to address her need to assure herself that her son is unhappy or unsafe in his father’s care rather than trying to engage her son by employing age appropriate methods.

(f) The society’s position on whether the child is at risk of harm in the mother’s care

[168] The society worker who gave evidence said that due to the information they have gathered about the mother’s failure to address the child’s dental care, her failure to take the child to school regularly, taking him in and out of daycare in a short period of time, her unannounced trip with the child to Pakistan, and, her repeated unsubstantiated allegations that the father is sexually assaulting the child, the society would have protection concerns and would commence a Protection Application and seek a supervision order if this court were to make an order placing the child in the mother’s primary care.

vi. 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

[169] The father’s evidence included several communications with mother in which he attempted to engage the mother on important issues affecting the child. He provided information, requested her input, and, enquired about her availability before scheduling appointments. The tone of his communication with the mother is always civil and appropriate.

[170] For the most part the mother ignores the father’s emails, text and WhatsAPP messages even when he raises important issues involving the child’s medical and educational needs. Her reasons for ignoring the father’s communication about the child’s teeth, for example, is “because there is no point talking to an abusive person”.

[171] The father advised the mother when he had to go to Pakistan on an urgent basis. Conversely, the mother took the child to Pakistan without advising the father and obtaining his consent or a court order.

[172] The father has demonstrated that he is willing and able to advise of the mother of and involve her in making important decisions affecting the child. The mother unfortunately has been unable to do the same. The court does not accept the mother’s evidence that she cannot communicate with the father because he is an abusive person. The mother is unable or unwilling to put her emotions about the father aside and work cooperatively with him in the best interests of the child.

vii. Any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[173] Both parties have accused the other of being physical with them. The mother’s evidence is that the father assaulted her in Pakistan in 2016 but that when she reported the assault to police in Toronto in 2018, she was told charges cannot be laid because the alleged assault took place outside of Canada. The parties claim to have been assaulted by the other on June 4, 2017.

(a) The incident in June 2017

[174] The court heard evidence of an altercation between the parents that allegedly took place on or around June 4, 2017. The evidence is that when the father’s phone rang in the morning the mother grabbed it and when he took it back, she jumped on him and pinned him to the bed all while the child was also on the bed.

[175] At trial the mother denies assaulting the father and says he assaulted her.

[176] When asked if the society verified the mother’s assault of the father, the society worker said that they verified the child being exposed to conflict and the file was sent for ongoing services.

[177] The society’s records disclose that on July 6, 2017, the mother described herself to a worker as “very angry” about the marriage and her relationship with her parents. She said when she is at her worst she will yell and lash out verbally and has pushed the father. The mother told the worker that she pushed the father on the morning his phone went off and he grabbed it back from her. The notes said nothing about the father pushing or assaulting the mother.

[178] The maternal grandfather gave evidence that on the morning in question he heard noise coming from the mother and father’s room and opened the door to find the father on top of the mother “jumping and pushing and assaulting her”. He said he separated them and asked the father to leave. He said that he was witness to “to so many assaults by him”.

[179] When asked why he did not report the incident on June 4, 2017, the maternal grandfather said that he was very busy at the time and his job is to unite his daughter and her husband not to do anything that would contribute to them being apart.

[180] The father denies ever assaulting the mother or being physical with her in any way.

[181] On August 25, 2017, the mother visited her doctor and told her that her father forced her to get married and now she has a child. She said that they all live with her parents which is a stressor for her. The mother denied to her doctor that the child’s father is abusive towards her.

[182] On August 2, 2017, the society’s records state the follows:

[Mother] and [Father] are new parents who are committed to their son but are opposed on the state of their new marriage. According to [Mother], the marriage was “forced” and she is “adverse” to the marriage. In each other’s presence, the couple talked freely about their new marriage (emphasis mine). [Mother] shared that she begrudgingly accompanied her parents to Pakistan to consider marriage. She arrived on the Friday and found herself married on the Monday. [Mother] said that [Father] is a lovely man (emphasis mine) but she does not want to be married to him. Conversely, [Father] shared his commitment to the marriage, family life and to new life in Canada. He is very excited about having a son. He wants the opportunity [to] sic be a husband and provide for [Mother] and [child].

[183] On July 6, 2017 when the parents met with a society worker, they were asked what the child will see when they are at their best and worst. The worker recorded the mother’s answer in response to the question “What are they like at worst?”, as, “it is mostly her” and she has “bouts of anger”.

[184] The mother also filed as evidence a video of her and the father taken by her brother that she says is evidence of abuse. The court reviewed the video and does not agree with the mother’s assessment of what takes place. There is no evidence of abuse in the video.

[185] The business records before the court do not support the mother’s claims that the father was abusive. Conversely, the records describe the mother as very unhappy and angry. She admits to being angry and to pushing the father. On July 6, 2017, she describes the father to the society as a “great person” who is “kindhearted”, “a loving father” and who “inspires her”.

[186] On November 18, 2018, the mother’s doctor recorded that the mother “has given conflicting statements of her husband being verbally abusive and selfish and then saying she herself kicked out husband which she now regrets.”

[187] The police occurrence report discloses that the mother called the police on March 22, 2018 to report that the father had assaulted her in Pakistan in 2016. The mother told the police that on one occasion while in Pakistan the father grabbed her by the arms and shook her and on another slapped her across the face. The mother reported to the police that she does not feel in danger.

[188] A second police occurrence report dated April 1, 2018 states that the officer spoke with the mother who reported “no allegations of assaults or threats that occurred in Canada” and that there are no safety concerns.

[189] Both reports were made after the mother claims she was assaulted by the father on June 4, 2017 yet neither makes any mention of this alleged assault.

[190] The evidence before the court also included a police report from 2015 when the police were called to the mother’s home due to a physical fight between her and a sibling that her father tried to break up but then became involved in the physical altercation. The father relied on this report to demonstrate that the mother has a propensity for violence.

[191] The mother and her witnesses’ lack of credibility is so severe that her claims that the father was abusive towards her must be rejected. Her claims are not supported by the business records before the court and in fact are contradicted several times by the mother’s own reports to neutral third parties. These reports include her admitting she pushed the father.

[192] The mother’s admission to the society of pushing the father, especially near the child, on June 4, 2017 is troubling but on its own would not have a significant impact on the court’s decisions in this case. Rather, considered with all the evidence this incident supports the father’s evidence that the mother is quick to anger and has difficulty controlling her emotions.

viii. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[193] The evidence establishes that the mother’s home environment is dominated by conflict, stress and unhappiness. This environment existed long before the marriage. The mother has reported to several third party professionals at various points in her life that she knows she should move out of her parents’ home. She has acknowledged repeatedly that living with her parents is a major source of stress for her. She said at trial that she knows she should move out of her parents’ home.

[194] The parents and maternal grandparents have admitted in the past on more than one occasion to society workers that the adult conflict in the mother’s home is not healthy for the child. They agreed to implement strategies to reduce the risk to the child of being exposed to adult conflict. The most effective way to protect the child from the risk of harm is to remove him from the risky situation. The mother has been unable to do that.

[195] As the mother continues to reside in her parents’ home, she does not offer the same level of stability as the father who resides alone in his own apartment.

[196] The court is also very concerned about the mother’s inability or unwillingness to take the child to school regularly and the negative impact this could have on his development and stability should the pattern repeat itself if the child has his primary residence with the mother.

[197] The father has provided the child with a loving and stable home since separation. Since the child has had his primary residence with the father, he has created routine and structure for the child. He prioritizes the child’s needs over his own. He makes sure he sees his medical professionals regularly and that milestones are being met. He ensures that the child attends school regularly and supports his education. He also encourages play time and socialization and frequently takes the child on outings to experience the sites, parks and various events the city has to offer.

ix. Other important factors impacting the court’s decision

[198] The factors enumerated in section 24 of the Children’s Law Reform Act must be considered by the court when determining what is best for the child. The list is not exhaustive. The court may consider any facts it considers relevant to the parenting issues.

(a) Ability to follow court orders

[199] Courts have considered parents’ ability to follow court orders as a relevant consideration when deciding parenting issues. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201 at paragraphs 253-258.

[200] There is no evidence to suggest that the father will not comply with orders of this court. There have been several parenting orders over the three years of litigation to which he has fully complied. In addition, the father has always acted in a very child focused manner and the court finds that he would not violate a court order that was made in the child’s best interests.

[201] On the contrary the mother has violated several court orders. They are as follows:

(a) She violated the court order for parenting time for the father when she travelled to Pakistan.

(b) She failed to pay the costs order of Justice Spence dated August 25, 2021 in the amount of $750.00.

(c) She failed to provide the medical disclosure ordered by Justice Spence on March 25, 2021.

(d) She failed to provide an English interpretation of all the court Applications she commenced in Pakistan against the father as ordered by Justice Spence on March 25, 2021.

(e) She failed to provide a copy of her official University transcript as ordered by Justice Spence on March 25, 2021.

(f) She failed to provide an updated sworn financial Statement for trial as ordered by Justice Spence on March 25, 2021.

(g) She denied the father parenting time contrary to court orders on several occasions without good reason.

(b) The mother’s trip to Pakistan with the child on December 8, 2020 without notice to the father or the court

[202] On or around December 8, 2020, without notice to the father, the mother’s lawyer of record or the court, the mother took the child to Pakistan. Her plan was to be gone from December 8, 2020 until January 26, 2021. The mother changed her return dated to February 16, 2021.

[203] The mother’s unannounced trip to Pakistan amid a global pandemic informs the court’s understanding of the mother’s judgment, maturity, insight and understanding of her responsibility in relation to her son. This incident must be given special attention as it exemplifies the mother’s inability to not only put the needs of her child before her own but to recognize and address his needs.

[204] The mother’s evidence at trial regarding the trip to Pakistan with the child is as follows:

(a) She admits that she left Canada without notifying anyone and that this was a mistake on her part.

(b) She travelled with her mother and son.

(c) She went to Pakistan to see her sick aunt (the father’s mother), to attend the father’s brother’s wedding, and, to obtain a divorce.

(d) She did not facilitate contact between the father and their son while in Pakistan.

(e) She commenced court proceedings against the father while in Pakistan. She explained that once in Pakistan her male cousin took over and made all the arrangements for her to meet with a lawyer and prepare court documents. She had little knowledge or understanding of what she was signing.

(f) In order to attend in court in Pakistan on February 9, 2021 she extended her stay with her son until February 16, 2021.

[205] The reasons given by the mother at trial for her travel to Pakistan differ from those given during the litigation. In an affidavit sworn by the mother on January 25, 2021, she deposes that she went to Pakistan out of concern for her mother-in- law (also her maternal aunt) and that upon her arrival in Pakistan she learned her mother-in-law was not ill and that the father had in fact travelled to Pakistan to attend a wedding. She then “decided to stay in Pakistan to file divorce proceedings against the Applicant”. As the Divorce Application is dated December 11, 2020, only two days after her arrival, it appears that the affidavit sworn on January 25, 2021 is untrue.

[206] The mother could not adequately explain how she could have been travelling to Pakistan for a wedding that according to her affidavit sworn January 25, 2021, she did not even know about until she arrived in Pakistan.

[207] The mother’s evidence at trial that she did not facilitate contact between the father and their son while in Pakistan is different from an affidavit sworn by the mother on January 25, 2021, in which she deposes that while in Pakistan contrary to what the father told the court at the time, “The Applicant father is able to exercise virtual access to the child (by phone and video-call) and has been exercising reasonable and liberal physical access to our son since we have been in Pakistan.” Another affidavit sworn by the mother on July 6, 2021 contradicts the January 25, 2021 affidavit as it states that, “I did not inform the Applicant of my whereabouts in Pakistan as I feared for my safety and safety of my child”.

[208] The mother’s explanation for these two conflicting sworn affidavits is that her lawyer who prepared the January 25, 2021 affidavit included information she did not provide to her and that she “didn’t discuss a god damn thing with me”. She also said that she was under enormous stress at the time and cannot recall signing the January 25, 2021 affidavit.

[209] The documentary evidence also contradicts the mother’s oral evidence as to why she travelled to Pakistan with the child in December 2020. In a conversation with a society worker on April 16, 2021, the mother told the worker that she went to Pakistan to obtain a divorce and enquire about her land rights. She makes no mention of her desire to visit her sick mother-in-law or to attend a wedding.

[210] The mother’s affidavit of January 25, 2021 is also different from her oral evidence at trial during which she said that she left Canada for Pakistan without notifying anyone but in her affidavit, she claims to have advised the father of her travel plans one day outside of the child’s school.

[211] The mother’s conflicting evidence on her decision to take the child to Pakistan without notice to the father is concerning for obvious reasons including her willingness to violate a court order. But it is also important evidence in relation to the parenting issues before the court for the following reasons:

1. The mother made the choice to travel with the child who was almost 4 years old and not vaccinated during a global pandemic. In her evidence she said in retrospect it was not a bad decision as the child did not die.

2. The mother’s choice resulted in the child missing two months of school after effectively not attending between September and December 8, 2020.

3. In the mother’s judgment it was acceptable to take the child away from his father for two months.

4. The mother’s decision to travel to Pakistan resulted in the child missing an important dental appointment for work that should have been completed many months earlier but for her negligence. The trip resulted in a further four month delay in the work being completed.

5. The mother thought it appropriate to commence court proceedings in Pakistan seeking the exact same relief she sought in this court, including custody and child support. The court Applications were eventually withdrawn by the mother.

6. While in Pakistan the mother made the choice to extend her trip in direct violation of Justice Spence’s order dated January 13, 2021, to return the child to Canada immediately.

(c) Failure to take any responsibility for her actions and how it negatively impacts the child

[212] While the mother did acknowledge that in retrospect, she should not have taken the child to Pakistan in December 2020 without advising the father, she took little to no responsibility for any other of her questionable decisions or choices.

[213] The mother showed no remorse for the lengthy delay the child endured in having important dental work completed.

[214] The mother showed no understanding of the impact on the child to enrol him in daycare, bring him late or not at all and then withdraw him as abruptly as she enrolled him.

[215] The mother showed no understanding of the impact on the child to enrol him in junior kindergarten almost two months after school started only to have him miss many days and then be removed entirely for two months to travel to Pakistan.

[216] The mother showed no appreciation for how her refusal to communicate with the father negatively impacts her son’s wellbeing.

[217] The mother showed no understanding of how constant yelling and arguing impacts a toddler. This is striking in light of the reports she has made over the years of how being abused by her father has dramatically impacted all aspects of her adult life.

[218] The mother’s failure to take steps to have in person parenting time with her son since her return from Pakistan is distressing especially because she seems to understand how this is hurting her son as she made several comments in the videos that he must be sad being taken from her care and how he had never been apart from her until he was placed in the father’s care. The mother knows that the lack of physical contact is harmful to her son, yet she has taken absolutely no steps to implement in person parenting time. She did not even respond to the father’s offer to utilize a paid supervision service for which he would pay for half the cost of the first four visits.

[219] The mother often externalizes responsibility onto other people. She blames her lawyer for inaccurate information contained in her sworn affidavits; she blames her cousin in Pakistan for not knowing what information and statements were contained it the court documents she signed; she blames the society for not enquiring with her about her availability for not having in person parenting time with her son since February 16, 2021; and, she blames the father for her child being removed from her primary care.

[220] Finally, and very concerning for the court is the mother’s inability to improve her mental health. She clearly struggles with the effects on her of a very troubling childhood. In fact, she continues to struggle with a conflictual adult relationship with her parents and sadly has been unable to make true and lasting changes to improve her mental health and in turn her life. This is a very concerning issue for the court as good mental health would likely have a positive impact on the other concerning behaviours displayed by the mother.

[221] The child needs the mother to address her history of abuse by her parents and the impact it continues to have on her life today. He needs her to do this so that she can be a positive influence in his life and parent him in the manner he deserves.

[222] The mother has been understandably distracted by her emotions and anger stemming from her historical and present relationship with her parents for which no one can blame her but there is no one else the court can hold accountable but the mother for her failure to address these emotions and the anger so she can be a better parent. Until she does so, she will be unable to focus on her son the way in which he needs her to.

(d) Protecting the child from conflict

[223] Subsection 33.1(2) of the Children’s Law Reform Act provides that, “A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.”

[224] The evidence reveals very clearly for the court that the father will shield the child from adult conflict. As stated above, the father’s communications with the mother are always appropriate and child focused. The video evidence provided by both parents supports this finding as at no time did the father behave inappropriately during the videos even when the situation was uncomfortable. There was no evidence of the father behaving in a manner contrary to the child’s best interests when around the mother or her family.

[225] Unfortunately, the evidence set out above in detail exposes the mother’s inability to protect the child from the harmful impact of witnessing adult conflict. The mother could not even refrain from engaging the father in a negative manner in front of the child while having video parenting time.

ii. Conclusion regarding the best interests of the child after a consideration of the factors enumerated in section 24(3) of the Children’s Law Reform Act

i. Decision making responsibility and primary residence

[226] The evidence demonstrates that the father can meet the child’s need for physical, emotional and psychological safety, security and wellbeing. There is an abundance of evidence for the court to rely upon in making this conclusion both before and after separation. A summary of the evidence is as follows:

(a) During the marriage as evidenced by the videos provided by the mother and photographs provided by the father, the father was an involved parent who provided his son with love and affection. It is very clear that the child has a loving and significant connection to his father.

(b) When the parties separated the father agreed to visit the child in the mother’s home and in her presence to maintain contact with his son.

(c) The father’s parenting time following separation increased in increments until he had regular overnight parenting time. There is no evidence of any difficulties in meeting the child’s needs during these periods.

(d) During his parenting time, the father ensured that the child’s dental and medical needs were met. The father kept the mother informed of all the appointments and invited her to attend but she did not. He shared information with her after the appointments.

(e) The father has demonstrated a willingness to work cooperatively with the mother to ensure the child’s needs are being met.

(f) The father’s evidence is that he encourages his son to explore all that is offered in the City of Toronto and the surrounding area. The father has taken his son on many outings and adventures while in his care to ensure he regularly enjoys new experiences. He fosters his imagination and inquisitiveness by exposing him to different cultures and experiences.

(g) The father is very concerned about the child socializing with other children and his overall development. He was particularly concerned about the mother’s unwillingness to take the child to junior kindergarten. As soon as the child was placed in the father’s care in February 2021, he arranged for him to attend daycare before and after school and he enrolled him in public school where has only missed one day.

(h) The father understands the importance of routine and structure in a young child’s life. Part of this routine and structure is daycare and school. He sees the routine and structure as helping to prepare his son for his future endeavors.

(i) The father showers his son with love and attention. This love provides the child with a very important emotional bond that creates emotional safety and security. The father also provides the child with a happy and stable home environment where the child enjoys the feeling of physical safety and security.

(j) The father demonstrates an understanding of the child’s need to have safe contact with his mother. He has facilitated video parenting time three times a week since February 2021. He offered to pay for the first four sessions of supervised parenting time with a professional supervision service so that the child could have in person visits with the mother. He was agreeable to the mother’s parenting time being supervised by the society. He demonstrated very clearly for the court that he understands the importance of his son having a healthy relationship with his mother.

(k) The father also demonstrates a much better understanding of his son’s emotional and psychological needs than the mother by recognizing that his son should not be subjected to conflict between the parents or between the mother and her parents. He recognizes that it is not healthy for a child to around excessive yelling and arguing. He also understands that it is not healthy for a child to hear one parent speak negatively about the other parent or anyone they love.

(l) The father understands mental health issues in so far as they may result in people behaving in a manner that at times is harmful to themselves and others. He understands that people with mental health issues can parent children provided they show insight into their mental health and they are obtaining the appropriate medical care to ensure that their mental health does not deteriorate and put the child at risk of harm.

[227] Unfortunately, the court’s concerns with the mother’s inability to meet the physical, emotional and psychological safety, security and wellbeing of the child are abundant and significant. To summarize, the following are the court’s concerns:

(a) The mother did not act in the child’s best interest and failed to meet the child’s emotional and psychological needs by unnecessarily limiting the father’s parenting time with the child following separation.

(b) The mother’s decision to take the child away from his father for two months to travel to Pakistan demonstrates a lack of appreciation of the importance of the child’s relationship with his father.

(c) The mother’s persistent and unsupported allegations that the father was sexually abusing the child put the child’s emotional and psychological wellbeing at serious risk of harm.

(d) The mother’s conduct during interaction with the child by video put the child at risk of emotional harm as did her refusal to take steps to have in person contact with the child since February 2021.

(e) The child’s emotional and psychological wellbeing was put at serious risk of harm because of living in an environment, while in the mother’s care that is extremely high conflict with an inordinate amount of arguing and yelling. The mother asks the court to make an order that would return the child to live primarily in this environment. This highlights for the court the mother’s poor judgment and lack of understanding of her child’s needs.

(f) The mother failed to meet the child’s physical needs by ignoring significant dental issues that required treatment and when she did not recognize the need to consult a doctor regarding a persistent fungal infection.

(g) The mother has demonstrated repeatedly that she is either unable or unwilling to put the needs of the child before her own. An example is her unwillingness to communicate with the father even regarding important medical issues affecting the child or removing him from the country while in a global pandemic.

(h) The mother ignored the child’s educational needs by enrolling him in school over a month after the school year started, by failing to take him on a regular basis, and, then by withdrawing him for two months to travel to Pakistan.

(i) The mother’s denial of a toxic relationship with her parents and a history of abuse by her father is having a significant impact on the mother’s emotional and mental health. The mother displays no insight into the effect this may be having on her ability to parent. As a result, the child is being parented by a mother who is sad and at times depressed and even suicidal. The mother’s failure to address these issues puts the child at risk of emotional, psychological, and physical harm.

(j) The mother has a long history of mental health issues that include depression, self inflicted wounds, aggression displayed towards family members and the father, a suicide attempt in 2018, and, repeated admissions that she is a very angry person. Despite the mother’s history, and without engaging in meaningful therapy the mother has concluded that she is fine. She is not fine. Believing that she is healthy when she is not puts the child at serious risk of harm. As a result, the society would seek a supervision order within a Protection Application if the child was placed in her care following this trial.

[228] The court finds that it is in the child’s best interest to have his primary residence with the father and for the father to have sole decision making responsibility for the child.

ii. The mother’s parenting time

[229] Subsection 24(6) of the Children’s Law Reform Act provides that “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.”

[230] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).

[231] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Young v. Hanson, 2019 ONSC 1245, at para. 32; and, Klymenko v. Klymenko, 2020 ONSC 5451.

[232] As described above, the mother has only exercised video parenting time since February 2021. In person parenting time should resume but as the mother has been unable to conduct herself appropriately during her video parenting time, it is in the child’s best interest that any future parenting time be supervised. Supervised access is appropriate where a child requires protection from emotional harm. See: Miller v. McMaster, 2005 CarswellNS 420 (N.S. S.C.).

[233] The mother will have to demonstrate that she can behave in a child focused manner throughout her supervised visits before her parenting time can be unsupervised. She cannot ask the child inappropriate questions during her parenting time. She cannot tell him he will be returning to live with her. She must refrain from speaking negatively in any way about the father.

[234] A court may restrict access if a parent uses access as an opportunity to denigrate the other parent. See: J.M. v. M.M. 2000 CanLII 28621 (ON CJ), [2000] O.J. No. 142 (SCJ). To ensure that the mother complies with these rules while her parenting time is supervised, she will only speak to the child in English. If she cannot comply with these rules her parenting time could be suspended. A court may limit or cancel access to minimize risk to a child from a parent’s conduct. See: W.(B.H.) v. W.(S.M.) [2001] S.J. No. 161 (QB).

[235] Access for Parents and Children has announced that they will be resuming in person visits. An order will be made accordingly. The visits shall take place in a centre convenient to the father. If for any reason that policy changes, the parties can engage a private supervision service, but it will be at the mother’s expense.

[236] The parties will have the benefit of independent observation notes from APCO which can be relied upon to decide if and when the mother and child can enjoy unsupervised parenting time.

[237] As the father will have primary care of the child and be entrusted to make all decisions regarding his care and upbringing, the evidence does not support the need for an order for police enforcement. Due to the mother’s removal of the child from Canada to Pakistan without the father’s consent or court order, the evidence does support an order restricting the mother from removing the child from the City of Toronto without the father’s written consent or court order.

[238] As the mother is unable to communicate with the father and often ignores his correspondence, it is in the child’s best interests to grant the father an order that permits him to obtain government issued documentation or identification for the child without the mother’s consent or signature on the application forms.

[239] The father has an apartment, a job and is putting down roots in his downtown Toronto community. He is very focused on his son’s education and general health and well being. There is no evidence to suggest that he would permanently remove the child from his home in Canada.

[240] For the same reasons set out above in paragraph 238, I find that the mother would not cooperate to allow the child to travel with the father and it is therefore in child’s best interests to allow the father to travel with the child for a purpose of a vacation without the mother’s consent. Therefore there will be an order that the father can travel for up to three weeks with the child within North America and up to 4 weeks outside of North America for a vacation without the mother’s consent or court order with notice to the mother and after providing her with a detailed itinerary of his trip.

Child Support

[241] The father proposes that the mother have a year to organize her life before she is required to begin paying child support on a nominal income of $15,000.00 and the Guidelines. This would amount in a monthly child support payment of $79.00 commencing January 1, 2023.

[242] The father’s proposal is abundantly fair and allows the mother time to address some of the pressing issues in her life. She has worked in the past and she is intelligent. She should be able to earn a nominal annual income of $15,000.00 as of January 1, 2023 and contribute towards the cost of providing for her son at that time.

Orders

[243] There shall be final parenting orders as follows:

1. The child shall have his primary residence with the father.

2. The father shall have sole decision-making responsibility for the child.

3. The father shall keep the mother advised at all times of the name of the child’s school, teacher and the names and contact information for all doctors, dentist and service providers for the child.

4. The parties shall immediately notify each other by phone, text and email if the child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment and the name of any doctor treating the child.

5. Other than in the event of an emergency, the parties shall communicate in writing by text message, email, WhatsAPP or such other source as they agree.

6. The mother may obtain information directly from the child’s teachers, doctors, or other service providers. The father shall execute any authorizations or consents to permit the mother to do this.

7. The father may obtain or renew government issued documentation and identification for the child, including passports and renewals of passports without the mother’s consent or signature on the applications.

8. The father may travel with the child for the purpose of a vacation without the mother’s consent for up to 3 weeks if the travel is within North America and 4 weeks if it outside North America. The father shall provide the mother with a detailed itinerary of his travel at least 21 days in advance of his travel.

9. The mother shall have parenting time with the child on the following terms and conditions:

i) Virtual Parenting time twice per week for up to 15 minutes, supervised by the father.

ii) Supervised Access at Access for Parents and Children once per week on Saturday or Sunday for up to 3 hours subject to the availability of the program. The father shall be permitted to choose the location at which the supervised parenting time shall take place. The mother shall only speak to the child in English.

iii) The parties shall promptly schedule an intake appointment with Access for Parents and Children and pay the applicable fees.

iv) The mother may have unsupervised parenting time when the father deems it appropriate and safe for the child and on the terms and at times agreed upon by the father.

v) The mother shall not remove the child from the City of Toronto without the prior written and notarized consent of the father or a prior court order.

10. The parties shall keep the other updated, in writing, of their current address, of any change in email address and their cell phone numbers. This shall be done immediately when there is a change.

11. All communications between the parties shall be respectful and child focused.

12. The parents shall not demean or criticize the other in the presence of the child. They are expected to support the other’s relationship with the child.

Final support orders shall go as follows:

[244] The order of Justice Spence dated September 24, 2020, requiring the father to pay child support to the mother in the amount of $192.00 shall terminate effective February 16, 2021.

[245] Commencing January 1, 2023, the mother shall pay the father $79.00 in child support for the child on an imputed annual income of $15,000.00 and the Child Support Guidelines.

[246] If at any time the mother’s annual income as disclosed at line 150 of her Income Tax Return if higher than $15,000.00, she shall cooperate to obtain a child support order which requires her to pay child support on her actual income and the Child Support Guidelines.

[247] The mother shall provide the father with a copy of her Income Tax Return and Notice of Assessment each year by June 1st commencing with the 2021 tax year.

[248] All other claims made by the parties not dealt with are dismissed.

Costs

[249] If the father is seeking costs of the Application, he shall serve and file his costs submissions with a Bill of Costs within 20 days of the date of this decision. His submissions shall not exceed five pages not including the Bill of Costs. The mother shall have 20 days to respond to a request for costs by the father and shall serve and file a Bill of Costs with her submissions. Her submissions shall not exceed five pages not including the Bill of Costs.

Released: December 2, 2021 _______________________ Justice Melanie Sager

[^1]: This schedule, which includes full day visits was implemented when the child was not school age and the father was unemployed due to the Covid-19 pandemic. The child is now in full time school and the father is employed full time. [^2]: The parties were aware prior to the October 2021 trial sittings that if their case was not reached it would be put in the child protection sittings between November 15-26, 2021 as a back up to the child protection cases. [^3]: During the trial the mother gave evidence that she has not in fact been attending York University since September 2021 due to the stress of the litigation and planning for trial. [^4]: Later in her evidence it became clear that the mother was not currently attending University. She also failed to disclose official transcripts of her University education as ordered by Justice Spence on consent on March 25, 2021.