ONTARIO COURT OF JUSTICE

DATE: 2023 05 30 COURT FILE No.: Brampton 724-20

BETWEEN:

E.C.L. Applicant

— AND —

A.L. Respondent

Before Justice Philip J. Clay

Trial Heard on March 2, 3, 6, and 7, 2023 Reasons for Judgment released on May 30, 2023

E.C.L. ............................................................................................................ on her own behalf Mr. A. Rubin................................................................................ counsel for the respondent

CLAY J.:

PROCEDURAL OVERVIEW

[1] This matter concerns the child N.L. born […], 2011. N.L. had primarily lived with the Applicant mother until late April or early May 2020 (the date was disputed). He then came to reside with the Respondent father. There were very few visits with the mother after the change in residence as N.L. refused to attend. He became very upset on the few occasions when he did stay at the mother's home and after a disastrous visit on April 15, 2022, he had not had a visit with the mother prior to trial.

[2] At the outset of trial, I enquired as to whether the parties had considered reunification therapy. I was told by Mr. Rubin that the OCL clinician did not think that such counselling was required and further that the mother did not consent to counselling. After hearing three days of evidence including evidence from the OCL clinician it was clear that the mother-son relationship had deteriorated significantly after the involvement of the OCL. The OCL had recommended that N.L. share time equally with both parties. By the time of trial, it was apparent that even if a final order was made in accordance with the OCL recommendations that the order would not be followed in that N.L. would refuse to attend at his mother's home.

[3] After receiving submissions, I decided to reserve my final decision and to release a temporary order on March 7/23. It read as follows;

TEMPORARY ORDER

1. The child N.L. born […], 2011 shall be registered in the CHAD program at William Osler Hospital (Brampton Civic) as soon as possible. If there is an opening prior to the end of the school year at the discretion of the program arrangements may be made for the provision of schoolwork to N.L. The sole focus shall be on the goals of the program and it is understood that this may mean that school work cannot be done.

2. By March 22/23 the parties shall provide to the court by way of email to my assistant (email address redacted) the following; a) The name and relevant details of a family reunification therapist or two names one of which is acceptable to the A. and the other to the R. and the court will select the therapist who shall do the work. The parties shall share half of the cost of the therapy. b) The relevant details shall include; i) The c.v. of the proposed therapist ii) A treatment plan including the therapist(s) to be engaged and whether or not the therapy will involve the mother, father and child or just the mother and child iii) A date when the therapy can start iv) The cost of the therapy including the hourly rate and an estimate of the total cost. Advice as to whether they accept insurance plans v) A list of all documents that need to be signed prior to therapy including consents provided that if the child's consent is not provided will they proceed based upon this court order that the child must participate.

3. The A. shall make an appointment with Dr. V. Murphy to be apprised of all information already communicated to the R. with respect to the therapy being provided to the said child.

4. a) The A. shall provide to the R. a copy of her work schedule as it becomes available and she shall set out times that she is available to meet the child in a public place. The R. shall take the child to the public place at a time agreed upon by email or text and then allow the child to speak with the A. He may observe from a distance but he shall not overhear the conversation between the parties. If necessary, the R. shall walk away from the child. The A. may bring her adult daughter F.C. to the meeting to assist in the exchange. If Mr. A.U. consents, and this does not delay the meeting, the child J.U. may join the meeting after 30 minutes. b) The parties shall each send a one-page summary of the date, time and length of any meetings that have occurred between the A. and the child but shall not comment on anything else about the meetings. The summary shall be submitted to my assistant (email address redacted) by May 15/23. If the child has been admitted to the CHAD program or his admission is pending the dates and times of his attendance shall be set out in the summary.

5. This matter is adjourned to May 19/23 at 10 a.m. in court TBD to advise as to the progress of the therapy, the CHAD program and the visits. The R. shall bring the said child to court at that time so that the undersigned can explain the decision that is being made.

[4] On March 28, 2023, I made the following endorsement;

At the conclusion of the trial of this matter on March 7/23 I made a temporary order that each party was to send to the undersigned by March 22/23 certain information about the therapist that they thought should be retained to provide family re-unification therapy for the parties and their son N.L.

I received from the Applicant;

1. Email correspondence with the Family Enhancement Centre
2. The c.v. of the proposed therapist Maryna Svitasheva. The documents to be signed will be provided at the first session

I received from the Respondent through Mr. Rubin

1. Email correspondence to the court
2. The c.v. of Pawel Biedrzycki and attached documents required
3. The c.v. of Joanna Seidel and attached documents required.

I had stated on March 7 that if there was no agreement on a therapist that I would make a decision based upon the information provided.

Qualifications

Dr. Svitasheva does not appear to have any specific training in family reunification therapy. Her model does include a meeting with each parent and the child but as no therapy plan has been put forward it is unclear as to how the father is involved in the reunification process.

I do not think that Ms. Svitasheva's qualifications are comparable to the other two therapists in this very specific type of intervention which I find requires the active involvement of the parent with whom the child is aligned.

Mr. Biedrzycki’s c.v. stated that he has been in the field of reunification therapy since 2012. He provided very specific documents and he will see mother, child and father.

Ms. Seidel has the most experience in re-integration therapy and in working with families in the Ontario court system. She has been providing this service since 2006. She is well recognized in this field.

Cost and timeliness

I note that the father's preference of his two choices is Mr. Biedrzycki. I note that his hourly rate is $200 per hour whereas Ms. Seidel's is $275 per hour. I also note that his total cost is estimated at $9,600 whereas Ms. Seidel cannot give a total cost estimate. I understand that it is very difficult to know how long a process will take but I also understand that the parties have limited funds.

I note that both therapists stated that they are prepared to proceed imminently. If Ms. Seidel can begin work in the next two weeks then I find that she should be retained. If Ms. Seidel is not available to begin within two weeks and Mr. Biedrzycki is available then the parties can retain him. Briefly stated I would select Ms. Seidel due to her greater experience and the fact that I often see her name put forward as a reintegration therapist. I had not seen Mr. Biedrzycki’s c.v. prior to this matter but it seems that he is well qualified. (I note that he may be well known in Toronto)

I should note that I have heard good reports about Ms. Svitasheva's work with both children and adults in the Peel region and I know that on another file that I am case managing she has just been retained to do family reunification work. Counsel chose her to do that work on the other file.

Next steps

The parties shall comply with the order of March 7/23 by sending their one page summary of the visits to my assistant (email address redacted) by May 15/23. There shall be no other communication with my assistant other than that.

ORDER

1. The parties shall immediately retain Ms. Joanna Seidel to conduct family reunification therapy with the parties and the child N.L. born […], 2011. Provided that if Ms. Seidel is not available to begin such therapy by April 14/23 and Mr. Pawel Biedrzycki is available in that time frame the parties shall retain Mr. Biedrzycki. If family reunification therapy has not begun with either therapist by May 19/23 due to no fault of the parties then the court may appoint Ms. Svitasheva on the return.

2. The parties shall share equally in the cost of therapy.

3. The R. shall ensure that the said child is taken to all therapy sessions.

4. If the child is admitted to the CHAD program the therapy shall be suspended to permit his attendance at this two-week in-patient program.

5. This matter remains adjourned to May 19/23 at 10 a.m. in court 208 for the parties to advise as to the progress of therapy, the CHAD program and the visits between the A. and the child.

[5] I intentionally limited the information I would receive after March 7 so that I would not be re-opening the trial. I simply wanted to know whether I was making a final parenting order for a child who had not seen his mother for nearly a year and had no counselling with respect to that fact or whether I was making a final parenting order for a child who had recent parenting time with his mother and in a situation where the family was receiving therapy.

[6] On May 15 I received information as to the contact between the mother and the child since March 7/23.

March 7 – s mother says 2 hours, father says 1.5 hours March 15 – both parties 10 minutes March 21 – mother says 60 minutes, father says 30 minutes March 29 – father says 3 minutes, mother does not mention it April 1 – mother says 10, father says 15 minutes April 13 – both parties say 30 minutes April 23 – delayed start – both sides say 10 minutes May 1 at mother's request PGF dropped off N.L. for first CHAD appointment – N.L. refused to accompany the mother into the hospital May 8 – both parties say 25 minutes May 11 – both sides say 10 minutes but mother stayed to watch his swimming lesson.

Updated submissions

[7] I permitted the parties to make brief updated submissions with respect to compliance with the March 7 temporary order.

[8] I was informed that there had been one further visit with the mother on May 16 or 17 for about 30 minutes.

[9] The mother met with Dr. V. Murphy and was provided with a list of the dates that he met with N.L. There was an assessment done March 2 and 4, 2022 which had been filed as an exhibit. There were then three in person counselling sessions on April 2, 2022, January 24, 2023, and March 6, 2023. Dr. Murphy's role was limited to assisting N.L. with his learning skills and his educational progress.

[10] Both parties have met with Ms. Seidel. The mother has had four in-person visits and a fifth by Zoom. Ms. Seidel wants N.L. to see a separate counsellor who had experience with kids with ADHD. The mother met with N.L.'s therapist on May 18.

[11] The father has had three appointments with Ms. Seidel and was to make another appointment on May 19.

[12] The mother confirmed that she did have an initial intake appointment for N.L. with the CHAD program at the Brampton Civic hospital. She asked the paternal grandfather Mr. S.L. to drop the child off. N.L. then refused to go into the hospital with the mother. The mother then went to the clinic. She was told that as soon as N.L. was prepared to come to the clinic he could be seen.

[13] As set out in the order of March 7 this matter was scheduled for May 19, 2023, for the court to meet with the child and to explain to him the decision reached. At the trial management conference, the case management justice had denied the father's motion for an updated OCL report. During the trial, I had denied Mr. Rubin's oral motion for a judicial interview of the child to obtain updated views and preferences. That request was also denied on the basis that the child was only 11 years old, he had not seen his mother for a year, he was clearly aligned with the father and there did not seem to be a real issue as to what his stated views and preferences would be at this time. The issue for trial appeared to be the source of the child's current views and the weight to be given to those views in the overall best interests test that must be applied. I noted on the record that there was no dispute between the parties about N.L.'s views. He was consistently refusing to visit with the mother

[14] I met with 11-year old N.L. in open court on the record. We sat in chairs facing each other. I explained to him that I had heard a lot about him. I told him that it was made clear to me in the trial that he wanted to remain living with his father, and he was very resistant to seeing his mother. I told him that his parents both loved him very much but could not come to an agreement upon how he would share time with them, so I had to make that decision. I explained in age-appropriate language that there were a number of factors I had to consider in deciding what was in his best interests. I summarized the final order that I was making that day and asked him if he had anything to say.

[15] N.L. was quiet but wriggled in his chair as I spoke with him. He simply told me that "I want to stay with my Dad." N.L. remained in the court after our talk and sat with his grandfather in the body of the court. I returned to the dais and read my final court order.

[16] I had hoped to release the final reasons for judgment by email to the parties immediately after meeting with the child. As the reasons were not fully completed and I wanted to add the updated submissions to the final reasons I advised the parties that I would release the final order on May 19 and provide reasons for judgment as soon as possible.

REASONS

Background

[17] The parties met when working in the same department at Air Canada. The mother had emigrated to Canada from Costa Rica when she was 18 years old. She had two daughters from her first marriage who are now adults. One lives in Costa Rica and the other now resides with the mother. The mother has another child J.U. who is now 16 years old. She has a shared custody order with J.U.'s father A.U. that results in J.U. spending a roughly equal amount of time in each home. The father had no other children.

[18] The parties began living together in 2010. Their son N.L. was born on […], 2011. They separated on January 2, 2014, when the father was charged with assaulting the mother. The father had to leave the home for a period of time. The mother asked the Crown to withdraw the charges and the father moved back into the home. On August 31, 2016, they signed a separation agreement and the mother, N L., and J.U. moved out of the home. The mother's daughter F.C., who was then 16, after initially living with the mother moved back to stay in the former family home with the father from about 2016 to 2018. She subsequently went to live with her boyfriend or on her own and since 2022 has been residing with the mother.

[19] The father remained living in the former family home and after the death of the paternal grandmother, the paternal grandfather ("PGF"), S.L., moved into the father's home.

[20] N.L. lived with the mother until an incident in the spring of 2020 that resulted in the child moving into his father's home. The date and the circumstances around the incident were disputed. Since the incident, N.L. has primarily lived with the father and had limited parenting time with the mother.

[21] The mother issued this Application in December 2020. The OCL was appointed on April 6, 2021, and the OCL report was delivered on December 14, 2021. During the period that the OCL was involved the mother was still having some limited parenting time.

[22] The mother's parenting time ended on April 15, 2022, when N.L. became extremely upset that he had been required to go to his mother's home. The father was eventually called to pick him up. He has not returned to her home since that time. While there was some discussion of counselling for N.L. nothing was agreed upon.

Mother's position

[23] The mother sought an order for sole decision-making responsibility. She adopted the recommendations of the OCL report. She took the position that the father was actively alienating the child from her. She submitted in her opening statement that there should be a period of time of up to 3 months when the child did not see the father so that the impact of his alienation of the child could be redressed.

[24] In her closing submissions, the mother supported re-unification therapy, and a period of exclusive parenting time with her until the end of the therapy when the therapist might be in a position to make recommendations.

[25] The mother was prepared to take a leave of absence from her employment in order to have exclusive time with N.L. She was also willing to request a change to her work schedule so that she could have longer blocks of time with N.L.

[26] The mother wanted to be able to take N.L. to Costa Rica where her eldest daughter and entire extended family reside. She has not gone since before the pandemic. She does not expect the father to consent to N.L. going so she sought an order that she could take N.L. with notice to the father, but not consent.

[27] The mother's position with respect to child support was that she knew she had to pay the appropriate table amount when N.L. was in the father's care, and if N.L. came into her primary care, she sought table child support.

[28] There were no before and after school costs and the s.7 expenses incurred by both parties in the past were not expected to be significant. The re-unification therapy costs are more than either party can really afford, but they were necessary. The mother will use all of her employment health benefits for therapy and pay her proportionate share of the amount not covered by either party's plan.

Father's position

[29] The father sought an order for sole decision-making responsibility and an order that N.L.'s primary residence shall be with him. The father thought the mother should have parenting time with N.L., but given the rupture in their relationship, his position was that it should be supervised day time contact at first and that it might over time graduate to more expansive time.

[30] The father's Answer sought an order that the mother shall engage in parenting counselling solely and/or with the child. In his opening statement the father's counsel stated that the mother had rejected all efforts at counselling and that she had falsely accused the father of alienating N.L. from her. The father said that he had encouraged N.L. to see his mother, but his son refused to attend because he felt rejected by his mother. The father said that N.L. was aligned with him only because of the mother's actions in throwing him out of her home due to her punitive parenting style.

[31] In closing submissions, the father said he would consent to re-unification therapy and participate in it. He said he would use his employment benefits and he felt that the parties should share equally in the cost of same.

[32] The father said that the mother had not been paying the appropriate amount of table child support since N.L. came to primarily reside with him. He sought an order for retroactive and ongoing support.

ISSUES

(1) Which party should have sole decision-making responsibility for the child? (2) How should parenting time be shared? (3) If one party has the primary residence of the child what amount of table child support should be paid by the non-primary resident parent?

EVIDENCE

[33] By order of the trial management justice the parties were to give all of their evidence in person. The witnesses for each of the parties were required to file affidavits for their direct evidence.

[34] The OCL clinician Ms. S. Tredree was the court's witness, and as the father had filed a dispute to her report and as he was opposed in interest, he was permitted to cross-examine her.

THE MOTHER'S EVIDENCE

Mother's children

[35] The mother stated that she came to Canada from Costa Rica when she was 18 years old and did not speak much English.

[36] She married and has two adult children from that first marriage. Her eldest child, A.C., is 25 years old. She made the decision to live and work in Costa Rica after graduating in Ontario as a nurse. The mother's second child, F.C., is 23. She is residing with the mother and studying to be become an educational assistant.

[37] The mother had a second marriage which produced a son J.U. who is now 16. J.U. is on the autism spectrum. As noted, the mother shares parenting time with J.U. with his father A.U.

Early relationship

[38] The mother said she met the father at work at Air Canada as they both worked in the baggage handling department. In 2010 they moved in together. At that time, the household consisted of the parties, A.C., F.C. and J.U. The mother said that initially the father was good with all of her kids.

[39] The mother then related an incident that occurred when she was five months pregnant with N.L. She was cooking food and an argument developed. She said she pushed the father, and he then began choking to her up against the fridge. She grabbed his genitals. The fight moved to the bedroom, and the PGF who was visiting had to pull the father off of her.

[40] Their son N.L. was born on […], 2011.

Anger management issues

[41] The mother said that the father would get angry at N.L. for all manner of little things. The mother admitted that she used to discipline her older children by striking them on the buttocks with a belt. She said she never did this to J.U. or N.L. although she admitted getting a belt out on one occasion so N.L. thought she might use it. She said that she did spank N.L. She said the father also spanked him and he hit harder. She said there were times when both parents wanted to discipline him that she would spank N.L. because she was afraid of how hard the father would hit him when he was angry.

[42] The mother said that the father was very sexually demanding and became angry with her if she did not immediately comply. She said that he was obsessed with video games often playing for 10 straight hours. If any of the children disturbed him when he was playing, he would get angry with them. He often called the mother a "bitch" directly in front of the children.

[43] The mother said that the father had anger management issues and had been fired from work after an altercation. The father was referred to counselling with Dr. Laura Sandor and after a period of time his union was able to get his job back.

[44] The mother said that the father did not treat her well during their relationship. She said that she was diagnosed with cancer of the uterus. She said that the father told her she could not have surgery until she gave him another child. She had the surgery and afterwards had a lot of pain and was immobile. She said that after he picked her up from the hospital the father did not help her. She recalled waiting 6 hours for him to come to check on her and eventually she had to drag herself downstairs to get something to eat.

[45] The mother said that it was at this point that she decided that she needed to leave the relationship. She looked into subsidized housing, but it was a three year wait.

January 2, 2014, criminal charge

[46] There was an incident on January 2, 2014, that resulted in a separation. The parties described the incident quite differently and the incident and its aftermath are relevant to their separate narratives as to the separation and their treatment of their son.

[47] The mother said that N.L. wanted to watch T.V. and fought with J.U. over the remote control. The mother said she picked up the remote and "tapped" N.L. with it to show him how it feels to be struck. She said that the father then lost control. She was standing with her back to the couch. She said the father leapt at her, began choking her and drove her into the wooden sides of the couch. She admitted scratching his face as hard as she could to try and get away. He grabbed her hair and kept banging her face into the side of the couch. The mother said that her face was bruised.

[48] The mother then said the father got up, hit his head against the wall and called the police. She said he reported that she had assaulted him. Two officers came to the home, saw their injuries and took statements. The father was charged with assault. He was required to live with the PGF.

[49] The mother said she did not want the father to go to jail or have a criminal record. It was arranged that she would meet with a lawyer. That lawyer sent a letter to the Crown stating that she wanted to reconcile and requesting that the charge be withdrawn. The father did some counselling with the Partner Assault Response program (PARS), and he was granted a peace bond.

[50] The father lived with his parents until the peace bond was put in place. During this time, he had phone contact with N.L. and in-person visits arranged through his parents. The mother said she had a close relationship with the paternal grandmother whom she described as very good woman. She said it was devastating for the father when she died.

Final separation

[51] After the peace bond was put in place the father moved back into the family home. The parties lived together in that home until June 2016 when the mother moved to a rented residence where she still resides. She said that F.C., J.U. and N.L. moved with her as A.C. had already left the home. The mother and F.C. had issues relating to her skipping school and her frequent use of marijuana and F.C. decided to move back to the former family residence and live with the father.

[52] The parties signed a separation agreement on August 31, 2016, in which they agreed to share custody of N.L.

[53] The mother said that in this period the father became obsessed with her and stalked her to see who was coming and going to her house. He began sending her songs to listen to and told her he wanted to reconcile. The mother said that she had no interest in reconciliation and the father stopped bothering her once he found out she was dating a person of colour.

Relationship with R.D.

[54] The mother met Mr. R.D. at Air Canada. He was her direct manager. After some complaints by other staff about the fairness of his strict implementation of the disciplinary policy Mr. R.D. chose to leave Air Canada and now has a job as head of security for another company. Mr. R.D. is an imposing and muscular man.

[55] Mr. R.D. moved into the mother's home and as he works night shifts, he can be available to help care for N.L. during the day. F.C. is also available for care if needed. The mother said that her partner and N.L. used to have a very good relationship. The father has always disliked Mr. R.D. and has clearly tried to persuade N.L. that he is not safe around him.

N.L.'s diagnosis

[56] The mother was quite concerned with N.L.'s behaviour which he exhibited both at home and at school. He could not concentrate for long and he angered quickly. He cut a child at school and pushed another child. The mother felt he needed professional help. She said the father did not agree. The mother first started looking for help through the family doctor in or about 2015.

[57] In 2018 when he was 9 years old, she again took N.L. to the family physician Dr. Curridor. He made a referral to a child psychiatrist Dr. Bakht. The mother took N.L. to see him at Brampton Civic hospital. He prescribed a low dose of medication.

[58] Dr. Bakht diagnosed N.L. with ADHD and severe oppositional defiance disorder (ODD). Dr. Bakht prescribed medication. He also recommended that N.L. be registered in a specialized two week in person program at Brampton Civic known as CHAD.

[59] The mother admitted that she did not tell the father that she was taking N.L. to see Dr. Bakht as she knew from their prior discussions that he would not consent. She also did not tell him about the prescription.

[60] She gave N.L. the first dose of the medication. The father found out about the medication and was very upset with the mother for going behind his back and making the child ill with medication. (N.L. had complained about an upset stomach). N.L. subsequently told her that "you are going to drug me and make me look like a zombie". The mother knows that this came from the father as she had not mentioned drugs to N.L. Due to the father's lack of consent the child has not received any medication for his diagnosis.

[61] The mother said that the school was supportive, and she accepted assistance. The school assigned a social worker to meet with N.L. N.L. had a few meetings until the father contacted the school and said he did not consent.

[62] Also in 2018, N.L.'s school called both parents for a meeting. The mother said that there were a lot of people from the school and school board there. It appears it was an IPRC meeting to determine the educational supports N.L. would receive on an ongoing basis. The mother attended and the father phoned in.

[63] The mother referred to the involvement of Ms. H. Thomas the vice principal of his previous school. This involvement is described in the OCL report. The mother said and Ms. Thomas confirmed to the OCL clinician that the mother was aligned with the school's strategies in giving N.L. time in the administration office when he was so frustrated and so anxious in class that he cannot focus. The father was reported to want more punitive measures to address any failures by N.L. to comply with the teacher's rules.

[64] The father's focus was always on forcible accountability for N.L. rather than diagnosis and identification. The V.P. stated that the father was very angry with the school policies and became escalated, raising his voice in front of the teachers and N.L. Additional staff were required to re-direct the father. At that time N.L. did not want to go to his father's home. The school reported that N.L.'s presentation was much like his fathers. If he did not get his own way, he would get frustrated and angry.

[65] The mother said that while the father rejected any diagnosis or treatment, she did seek out help. She went to Tangerine counselling a referral service for therapy in Peel Region. She was told that without the father's consent there could be no counselling.

N.L. leaves the mother's home

[66] The mother described the incident that she said occurred in late April or early May 2020. She said that N.L. and J.U. were playing Mario Cart on their console. They were getting upset with each other. N.L. threw the remote control at J.U., and it hit him in the head breaking his glasses.

[67] The mother said she told N.L. to go to his room, but he refused. She told him to apologize to his brother. He wanted to keep playing. She said she put him in his bedroom and held the door shut on him and said she would let him come out of his room when he was ready to apologize. She then said that N.L. ran out of the room, out of the house and into the street. She said went into the to the street after him and brought him back. She admitted that she lost her temper when N.L. spit on his hand and tried to wipe it on her. She said she grabbed N.L. hard by the chin and he threw her off with his arm. She then grabbed his ear. N.L. began shouting "call my dad - I will go to my dad".

[68] The mother said that at other times when she had tried to discipline N.L., he had yelled that she should call his father. The mother then grabbed two grocery bags with clothes in them and she said she put them next to N.L. and told him that you are going to stay with your Dad for a couple of weeks to see if you like it. She said N.L. then sat on the inside stairs in the house.

[69] The mother then called the father. She said about a minute before he arrived N.L. put his jacket and boots on and waited outside. The father arrived and N.L. ran to him. The mother said she told the father she could not handle him today and he should stay with his father for a couple of weeks.

[70] The mother said it was about a week and a half before she saw N.L. again. She said she apologized to him for hurting his feelings. N.L. said that his father had bought him a PS4, and he had asked his father for a dog.

[71] N.L. told his mother that she had drugged him and now she had kicked him out of her home. The mother said that she never told N.L. that he had to leave and could not come back.

[72] The father contacted the Children's Aid Society for the Region of Peel (PCAS). It was involved a few times in the party's lives. The records were released to the parties and also reviewed by the OCL.

[73] After this incident N.L. began resisting visits to the mother's home. The mother estimated that she only had about 20 or 30 overnights after April 2020 with the final visit before trial being April 15, 2022.

OCL involvement

[74] After the involvement of Ms. S. Tredree, the OCL clinician, overnight visits with the mother resumed. When N.L. was at his mothers the father would call three or four times during the visits to check on N.L. and see if he was safe. The father told the mother that if she did not accept the calls, he would call the police. The mother said that when N.L. was with his father, he would never call her.

[75] The father contacted a therapist Dr. Laura Sandor to obtain some therapy for N.L. N.L. saw Dr. Sandor on four occasions. Dr. Sandor was the therapist that the father saw for anger management after he was fired from his job. The mother said she did not object to Dr. Sandor seeing N.L. as she had always wanted N.L. to have a professional to speak with.

[76] The father took the position in this litigation that the mother opposed Dr. Sandor's involvement and did not consent to any therapy for N.L. The mother said the exact opposite was true. The father only wanted N.L. to talk to someone once N.L. had stated that he wanted to stay with his father and not visit with his mother. The mother did call Dr. Sandor. At some point the therapist recalled that she had counselled the father and she took the position that she should not then counsel N.L. The mother did not know that Dr. Sandor was not counselling N.L/ until much later.

Further attempt at professional help for N.L.

[77] In August 2021, the mother arranged another appointment for N.L. with the CHAD program. As N.L. was refusing to spend time with his mother the father took him to the program. The father spoke to the persons at the clinic and decided that he did not want N.L. to attend, and he took him home.

[78] The mother then rescheduled the appointment for September 12. The father stated that he would not bring the child. He told her that as the program required the child to stay at the hospital for two weeks N.L. should not attend as he would miss too much school. The mother found this frustrating as the program had been recommended by Dr. Bakht and N.L. was receiving no treatment for what that child psychiatrist had determined to be a severe case of ADHD and ODD,

[79] On March 22, 2022, both parties and N.L. went to Brampton Civic with N.L. The mother saw Dr. Raymond Chappelle first and then the father and N.L. went in for an interview. After they came out Dr. Chappelle came out and told the mother that he could not work with the father. She said that it was her understanding from the discussion that Dr. Chappelle would see N.L. if the mother had a sole decision-making responsibility order.

[80] Discussions about obtaining help for N.L. continued through the case management process. The father found Dr. V. Murphy and set up an appointment with him. The parties recollection of the process with Dr. Murphy differed.

[81] The mother said she attended the scheduled appointment, but the father did not bring N.L. as he was supposed to. The father called into the appointment by Zoom. The mother's understanding from that appointment was that Dr. Murphy did not do family therapy. She thought there was no further involvement with him.

[82] Dr. Murphy is a specialist in psycho-educational assessment, and he completed an assessment on N.L. on March 2 and 4, 2022 and his report was filed in evidence. The mother said she was not told that Dr. Murphy had done this work and that the assessment was sent to the school board. The mother said she was also unaware that after declining to do family therapy Dr. Murphy continued to see N.L. in counselling sessions. As noted above, I made a temporary order on March 7 to allow the mother to speak to Dr. Murphy about his involvement. This was the first time since the initial meeting that she had any information about his involvement with her son.

[83] The mother said she would not have opposed Dr. Murphy's continued involvement because she always wanted her son to have psychological and educational supports. She felt that the father chose to exclude her from the process so that Dr. Murphy would see him as the primary resident parent who was seeking help for a child who was rejected by his mother.

[84] The father also did not share any information with the mother about the involvement of the school special education teacher B.C. The father had been unsuccessful in convincing Ms. Tredree the OCL clinician that the mother had rejected and abandoned N.L. The mother's view is that after the OCL recommended that she have sole decision-making responsibility the father changed tactics from blocking all counselling to looking for counsellors who might accept his narrative.

N.L.'s changing position

[85] The mother said that the incident in late April/early May of 2020 caused the first rupture in the mother/son relationship. She admitted that N.L.'s behaviour had always been challenging. She also admitted that she herself had ADHD and that she had lost her temper with her children over the years. She noted though that she had raised her two daughters and that she was able to make a shared parenting relationship work with the father of her autistic son J.U. The mother said she had parenting flaws, but overall had been able to successfully parent all of her children until the father took advantage of the spring 2020 incident to drive a wedge between herself and N.L.

[86] N.L. did come for some visits after spring 2020, but he began to refuse visits and he was very oppositional and defiant during visits. N.L. started changing stories about what had happened to him. He showed the mother photos of the injuries that the father had sustained during the 2014 incident that had resulted in both parents having injuries and the father being charged. He said that the mother had kicked his dog.

[87] The mother said that N.L. used to be afraid of his father's temper and his treatment of her. After the spring 2020 he began to minimize his father's behaviour and grossly exaggerate her disciplinary behaviour.

[88] The mother said that the father had not been involved with the school or the doctor or the dentist prior to the spring 2020 incident, but after that and particularly after the court process began the father became involved.

[89] The mother said that the father was not a good parent or role model. She said that after the separation her daughter F.C. was very depressed and did not want to do anything other than smoke marijuana. The mother tried to get her to go to school regularly, but she refused, and they had conflict over that. The father, her step-father, said she could come back to her former home and live with him. The mother alleged that the father imposed no rules and let her smoke marijuana in the home. After about four years F.C. moved back in with the mother. She completed her high school credits and is now taking a college course with a plan to be an educational assistant

[90] The mother said that the father allows N.L. to do what he wants. She said the father is an obsessive gamer and plays up to 10 hours a day when not working. She said that the father has strongly encouraged N.L. to play video games and lets him stay up very late doing so. She says he plays very violent games.

[91] The mother said that the father buys N.L.'s loyalty by purchasing video games for him. The father says that he wants N.L. to visit his mother and that he cannot get him to get in the car. The father promises N.L. video games if he visits his mother. The mother said the fact that her relationship with N.L. has worsened significantly after the OCL report recommended that she should have sole decision-making responsibility and shared parenting.

[92] There was a disastrous visit on April 15, 2022. The mother said the problems began at 11:45 p.m. on a Friday night. The mother told, then 10 year old, N.L. to go to bed. The child refused because he wanted to play online games for "ratings" something which he is apparently allowed to do late at night at his father's home. A stand-off developed. N.L. had a complete meltdown and started emptying the laundry baskets and throwing laundry around the house. He then crouched inside the basket and refused to move.

[93] The mother called the children's crisis line for help. She told them that she was in a high conflict family case and that her son was acting out. As a result of advice received, she asked F.C. to video the incident to show the father how extreme N.L.'s behaviour had become. She was frustrated by the fact that the father said that N.L. did not present behavioural problems in his home. F.C. took the video. The mother emailed it to the father. The father's counsel played the video in court while cross-examining the mother. The video was disturbing. The mother and N.L. were screaming at each other. The mother tried to physically restrain N.L. from leaving. He shoved her and she fell on the stairs.

[94] N.L. kept screaming that he wanted his father to pick him up. After about 2 hours of chaos the mother called the father. He picked N.L. up. The mother said that as he was leaving N.L. smiled at her through the car window. This was the last in-person visit that occurred before the trial in March 2023.

[95] After parenting time ended the mother made numerous calls to N.L. on the phone his father gave him, and she also tried to call the father directly. There were a few very limited telephone and video interactions before the trial. The mother estimated that she may have spoken to her son about 10 times.

[96] The father made no effort for N.L. to contact her during the Christmas school vacation. He purchased presents for N.L. to give to his step-siblings F.C. and J.U. and dropped them off. N.L. saw J.U. at Mr. A.U.'s home, but he did not see F.C.

Mother's proposed parenting plan

[97] The mother said that currently she worked 10 hour, 40 minute shifts with 4 days on and 4 days off. Those shifts sometimes overlap with the father's shifts. She said the bidding for new shifts occurred in early May each year and her seniority was such that she was sure that she could obtain the shift she wanted. She said if she had N.L. every alternate week, she could obtain a 4 and 2 schedule, trade away the two days she has N.L. and trade for two extra shifts on the days she does not. She was also confident that she could obtain a 2 -3 month leave of absence if she could get an extended time with N.L. in her home.

[98] The mother said she felt that she needed a block of time with her son to counter-act the brainwashing that he had undergone with his father. She thought that if therapy was in place, then up to 3 months in her home without overnight visits with the father might work to be followed by a 4 nights with her and 2 nights with the father. She said that this recognized the realities of their shift schedule. When the mother was giving this evidence, the father interrupted with a comment "what you think you are the judge" and he then smirked at the mother.

[99] The mother said that as the trial approached the father arranged a Zoom call with Dr. Murphy to show her that N.L. was seeing a therapist. After the Zoom call he said he would not agree to family therapy involving N.L. and herself and pressured her to drop the litigation.

Mother's concerns for N.L.

[100] The mother said she is very worried about her son. Nothing has been done to address his challenges. He has been involved in many fights at his school. He does not have any friends. He does not go out and like his father his entire life is spent online in video games.

[101] The mother said she understood that N.L. was very fixed in his views. She did not think seeing a therapist on a weekly basis would help. She felt that there needed to be really intense therapy that focused on his ADHD and ODD and that is why she tried to enrol him in the CHAD program. If it was her decision alone, she would follow Dr. Bakht's recommendation and put him on medication that would need to be closely monitored.

[102] The mother said the father had disagreed with CHAD and refused all therapy. After he was upset with the OCL report he did have N.L. see Dr. Murphy without her knowledge but there had been no willingness by the father to see that N.L.'s rupture in his relationship with the mother was something that had to be addressed. The father may have tried to get N.L. to visit but the damage had already been done in the negative narrative about the mother that the father had fed to his son since at least April 2020.

[103] The mother was quite emotional when she said that she did not want to see N.L. in jail or dead. She said her only goal in this litigation was to give her son a chance at a healthy life.

F.C.

[104] Ms. F.C. filed an affidavit with her direct evidence. She is the mother's 23 year old daughter. Her parents separated when she was about 4 years old, and she and her elder sister A.C. were raised by their mother. F.C. said she has known her step-father Mr. A.L. since her mother began dating him in 2009.

[105] F.C. said that when the parties separated, she was 13 years old. She said she tried to stay with her step-father as she did not see an urgency to leave the home she had grown up in and at the time she considered Mr. A.L. as her parent.

[106] F.C. admitted that at that time she "was high the majority of the time." After she initially moved in with her mother they got into a fight and her mother did slap her in the face. She left and went back to the former family home to live with her step-father. F.C. said that she then went "back and forth" between her mothers, her step-father's and her boyfriend's home but she had been back with her mother full time since October 2022.

[107] F.C. admitted that she resisted going to school and fought her mother's attempts to have her stop using so much marijuana. She said that her step-father offered her cigarettes and marijuana for doing the dishes or other things around the home. She said that her mother treated her like a parent and her step-father treated her like a friend.

[108] F.C. said that Mr. A.L. was "manipulative and lazy". She said other than go to work he spent the rest of his time smoking marijuana and playing video games. She said that when he lived with them her step-father would make inappropriate comments around herself, J.U. and N.L. including complaining that their mother did not give him enough sex.

[109] F.C. said when the parties lived together her mother was primarily responsible for caring for N.L. After the separation it was her mother who paid for his clothing, took him to extra-curricular activities such as swimming and the step-father shrugged off those responsibilities.

[110] When she lived with Mr. A.L. after the separation, she said that he did not cook so she ate a lot of pizza. He did drive her to school. He also asked that she look after N.L. when N.L. was with them. If she did not do it, he would have the PGM look after him.

[111] After she was back at her mother's home, she and her mother would have to help N.L. with the homework that was uncompleted when he was at his fathers.

[112] F.C. went to see N.L. in July 2020. She said that N.L. asked her where she was living. He told her that if she was not living with her mother full time, then her mother should be paying his father child support. N.L. was 9 years old at this time and it was just a couple of months after he had moved to his father's home and resisted seeing his mother.

[113] F.C. confirmed that on April 15, 2022, N.L. was dropped off for a visit, but that he immediately wanted to leave to go back to his father's home. The situation escalated and F.C. confirmed her mother's account. She said that in trying to leave N.L. did knock his mother down the stairs. N.L. denied doing this even though it happened right in front of her.

[114] F.C. admitted videoing N.L.'s tantrum on April 15, 2022. She said she only did this after he had been crying and screaming for a long time. She said that N.L. can cry for four or five hours and will not stop until his mother calls his father to pick him up.

[115] F.C. said that when N.L. is on video calls with her and her mother he will repeatedly glance over his shoulder before providing responses. She thought his father was nearby and N.L. was looking for his approval before saying anything.

[116] F.C. related that she herself has ADHD and she has had to learn a lot of coping skills over the years. F.C. said she had matured a lot since returning to her mother's home. She began and ECE course at Humber college in 2020. Due to her ADHD, she does not do well with online learning. She is currently taking a break from her studies and is working as a bartender. She said she plans to live with her mother for an indefinite period. Her mother strongly supports her obtaining her education.

R.D.

[117] Mr. R.D. filed an affidavit that contained a lot of hearsay. I have not considered any of the hearsay statements in evidence in this matter.

[118] Mr. R.D. stated in his affidavit that he has known the mother since 2008, they started dating in 2018 and have lived together since March 2020. He said that he used to work at Air Canada as a manager but is now working in personal security. He works from 7:30 p.m. to 7:30 a.m. so he is home by 8 a.m.

[119] Mr. R.D. was present for the April/May 2020 incident. He confirmed that N.L. threw a controller and broke J.U.'s glasses. He gave the same account as to what happened as the mother. He said that he heard the mother state that N.L. would go to his father's home for 2 weeks. He said she never told N.L. that he was "kicked out" of his home. He said the mother did pack some clothes but at the time she said that N.L.'s clothes at his father's home never fit so she wanted to give him enough for the two weeks he would be there.

THE FATHER’S EVIDENCE

Background

[120] The father said he worked at Air Canada as a manager in the baggage handling department. He met the mother at work in 2009. They began living together on September 11, 2010. He then became a step-father to A.C., F.C. and J.U. N.L. was born on […], 2011.

[121] The father said that the mother was very volatile. He said she punished her children by hitting them with a belt. He said they often worked different shifts and the mother would call him at work to seek help in managing N.L.'s behaviour. He felt her use of physical discipline was excessive.

[122] The father provided a totally different version of the incident in 2014 when the police were called. The father said the N.L. and J.U. were fighting over a video game. N.L. tossed the remote at J.U. The mother completely overreacted. She grabbed the remote and began hitting N.L. with it. He pushed her onto the couch to try and stop her assault upon their son. He noted that the mother was a black belt in tae kwon do and could handle herself physically. The father said that the mother grabbed his genitals and scratched his face to the point where he was bleeding.

[123] The father denied choking the mother. He denied banging her head against the wood frame of the couch. He denied banging his own head against the wall to create injuries. He said that the mother was the aggressor as she was the one with the violent temper. He said N.L. and J.U. witnessed her aggression on this and other occasions.

[124] The father called the police. They arrived and interviewed both parties. The father was charged. The father had to leave the home and live with his parents. He continued to see N.L. regularly with his mother doing exchanges.

[125] The father addressed the incident which resulted in him being fired from his job. He said that a co-worker and himself got into an argument and the co-worker made an obscene comment about his recently deceased mother. The father said he reacted to that comment, and he thought it was grossly unfair that he was the one fired.

[126] The father then took anger management counselling from Dr. L. Sandor. He said that he had learned how to talk himself down and that there were consequences for his actions. He said he is not an angry person.

Final Separation

[127] After the father received a peace bond, he moved back into the family home. The parties lived together again until June 2016 when the mother moved to another residence. The father said that F.C. decided to stay with him. He said that the mother was being physically and verbally abusive to her so F.C. wanted to live with him. He denied providing marijuana to F.C. He said that F.C. had only recently returned to live with her mother.

[128] The parties signed a separation agreement on August 31, 2016, that provided for joint custody and equal time with N.L. The first thing the father said when he began his evidence was that the agreement specifically said that N.L. would get to make his own decision about spending time with his parents and he had made his views quite clear.

[129] Sub-paragraph 3.8 of the separation agreement stated that;

N.L.'s views and preferences will be taken into account when determining access an in particular on each and every special occasion and as he gets older.

[130] As both parties worked shifts, they arranged time with N.L. around their respective shift schedules.

[131] The father said N.L. was a wonderful little boy. He said he had a great relationship with his son and described the fun things they do together. He said N.L. does what he asks him to do except that he refused to spend time with his mother. He said that this was because the mother was very inflexible in her parenting, and she created confrontations that lead to N.L. having meltdowns. He said that the mother acts in an abusive manner, and then refuses to apologize for her behaviour.

N.L. comes to his home

[132] The father said that this incident occurred in February not in April/May 2020 as the mother said. He was at work when he received a call from the mother that N.L. was out of control. She asked him to "pick up my shitty son." He emphasized that this was not the first time the mother had called him asking him to get N.L. before he was due to return.

[133] The father said he drove to the mother's home. He saw N.L. sitting on the front steps in the snow with his snow suit on and with two big garbage bags full of his clothes. He said both he and N.L. cried a bit in the car together.

[134] N.L. made it clear that he did not want to ever go back to his mother's house. He said she will slap him and kick him if he did. The father said he told N.L. that he will change his mind. However, N.L. has had sporadic and limited time with his mother since then.

N.L.'s parenting time refusals

[135] The father said he did everything he could to try to get N.L. to go to his mother's home. He said that his son would hide in the bathroom, refuse to get in the car, and if he did get in, he then refused to get out when they arrived at the mother's home. Sometimes he would bribe N.L. to go by promising to buy him a new video game. The father admitted calling N.L. on the phone he bought for him to see if he was alright when he was at his mother's home.

[136] The father addressed the incident in which the mother sent him videos of N.L.'s behaviour. He said N.L. did not want to go and he had to "negotiate with him" to get him in the car. He said that he was very sad when he saw how the mother was treating their son. She clearly had no ability to control his behaviour.

[137] The father said that unlike the mother he does not need to resort to physical discipline with N.L. He conceded that on one occasion when N.L. and J.U. were at his home and refused to clean their room, he did spank them "on their butt" three times. The mother and Mr. R.D. then came to his home, and when he did not answer they tried to kick in his front door, and he had to call the police.

[138] The father made it clear that the responsibility for N.L. not attending at his mother's home was completely with the mother. He said N.L. will not go if she does not change her behaviour. He said the mother was inflexible and resorted to violence with her son. N.L. is afraid to be in her care. By way of contrast, he has learned from what he has read, and what he has been told by professionals who have seen N.L., is that an effective form of discipline is to take things that N.L. wants away from him until his behaviour improves. The father said he does not see the type of meltdowns that the mother describes and that were shown in the video.

Care of N.L.

[139] The father said he had always been actively involved in N.L.'s care and since 2020 he had been taking care of him full time. He said he had been communicating effectively with N.L.'s teacher Ms. G. He has a good relationship with the special education teacher Mr. B.C.

[140] The father said that quite a few kids were bullying N.L. at school. He said he had kept the mother informed of this.

Father's proposal for mother's time

[141] The father said that he wanted N.L. to spend time with his mother, but first she needed to prove that there was no ongoing violence in her home. Then there would need to be a way to get N.L. to attend.

[142] The father said he was initially prepared to do a 3 day on/off schedule with the mother, but N.L.'s refusals are so vehement that he cannot now propose that. He said that ideally the mother would be able to take N.L. for two consecutive days when she is off work.

Professional help for N.L.

[143] The father said that in 2018 the mother deceived him by telling him to take N.L. for an appointment at the CHAD clinic. He was not told it was an in-patient program, and when he was informed of that he simply took N.L. home.

[144] The father also said the mother deceived him by obtaining medication from Dr. Bakht without his knowledge. While Dr. Bakht's clinical note said that this trial was at a very low dose the father said N.L. did not tolerate it as it gave him stomach pain and made him sleepy. He did not want N.L. to be medicated again.

[145] The father said that on August 9, 2020, he had a telephone consultation with Dr. Bakht and noted that Dr. Bakht discharged N.L. from his care. Dr. Bakht's clinical note said that N.L. has lived with the father "for the last four months". This is interesting as that information came from the father, yet it is inconsistent with his narrative that N.L. was left outside in his snowsuit and boots in February, but consistent with the mother's narrative that it was late April or early May when the father picked up N.L. from the front steps.

[146] Dr. Bakht's note stated that "Since he is not on any medication, I am discharging him from my care." Prior to the note being made an exhibit the father had underlined the part that referenced discharge and wrote "Dr. discharge" in the margin. The father was the parent who did not want N.L. on a trial of medication and who had refused to co-operate with Dr. Bakht's recommendation for N.L. to attend at the CHAD clinic. The father's decisions meant that there was no point in having a child psychiatrist involved in his care. At the father's request, Dr. Bakht gave him a list of potential counsellors for N.L. to address his diagnosed ADHD and ODD.

[147] The father said he then took N.L. to a few different psychologists. The father said about counsellors "they are like shoes, so if one is uncomfortable go to another." He did go back to Dr. L. Sandor "whom he had to see because of the Air Canada issue". He said she was focused on finances and was continuously asking for payment for discussing things on the phone, so he decided to switch counsellors.

[148] He said he contacted Dr. Balmer, but she would not see N.L. as he did not have the mother's consent for counselling.

[149] It was at this point that the father found Dr. Murphy, and notwithstanding that Dr. Murphy's expertise was in educational assessments, he felt that he was the only counsellor that N.L. required and that any issues that N.L. might want to raise about his mother could be addressed by Dr. Murphy.

[150] Contrary to the mother's evidence the father said he told the mother about Dr. Murphy. He said she did not attend the first meeting and did not participate in N.L.'s psycho-educational assessment.

[151] N.L. was comfortable talking to Dr. Murphy so the father thought he could continue counselling with him. He said that the mother chose not to be involved with counselling for N.L. The father admitted asking Dr. Murphy to talk to the mother about stopping the court application. The father said it did not make sense to keep spending money on his lawyer when there was nothing, he could do to make N.L. see his mother.

OCL report

[152] The father said that at his first meeting with Ms. Tredree the OCL clinician was very "combative" and difficult to talk to. She refused to read his text messages. She accepted statements made by the mother as facts and did not make critical comments whereas she qualified his statements with words like the father "claims."

[153] The father said that there was a disclosure meeting on November 9, 2021, prior to the release of the report. He said that he was shocked that Ms. Tredree did not report that the mother continually hits and slap N.L.

[154] He was upset that the clinician said it was "illegal" for him to leave N.L. alone while the PGF drove him to work. The father said he does not want to leave his car at work, and he cannot drive the PGF's car in the winter, so the solution was to leave N.L. at home while the PGF drove him. He said N.L. is 11 and taken the home alone course.

[155] He said he later proved to the clinician that it was not in fact against the law to leave an 11 year old child alone at home. The father was quite upset that Ms. Tredree did not apologize to him for her error.

[156] The father said he felt right from the beginning of the investigation that the clinician was not being objective, so he wanted to have her removed. The father said the report was "completely one sided." He said it felt like the clinician was simply "out to get him." He filed a lengthy dispute to the OCL report which was placed with in the Trial Record.

[157] The father objected to the recommendations that the mother have sole decision-making responsibility and that her parenting time be graduated until she had equal time. He said that the OCL report failed to address the main issue - how to get N.L. to his mother's home. He said that the OCL recommendation was bound to fail.

Response to allegations of control

[158] The father denied that he had exhibited controlling behaviour with the mother. However, he admitted to putting a tracker on the mother's car.

[159] The father said he had only been disciplined three times at work for aggressive behaviour; and in each case, it was the other employee's fault. He admitted to seeing a psychologist Ms. V. Orekhsovsy when he was younger to learn how to deal with his frustrations.

[160] He took a required PARS course when he was charged in 2016. He said he was forced into an anger management course with Dr. Sandor when he was fired over the workplace incident, but he was not satisfied with her work. Dr. Sandor told the OCL that the father blamed others for every incident of aggression.

[161] The father admitted that the union obtained his job back, but that he went 6 months without pay and was not given any retroactive pay on his reinstatement.

[162] The father admitted that before N.L. came to reside with him in 2020 the mother attended to all of his doctor and dentist appointments. The father said he was solely responsible for education after 2020. The mother pointed out occasions when the child's homework was not done because the father had failed to check his emails. The father conceded that he might have missed emails, but did not take personal responsibility for it, but instead blamed the system.

Father's parenting plan.

[163] The father did not provide his schedule and therefore his availability to directly care for N.L. In response to the court's questions the father said that he is currently working four shifts in a row-two mornings and two afternoons. If he works in the morning, he must leave home at 5:30 a.m. and he returns at 2:30 p.m. If he works afternoons, he leaves at 1:30 p.m. and is home by 10:30 at night.

[164] The routine is for the PGF to take N.L. to school when the father is working mornings. Sometimes his girlfriend L.F. stays overnight so she can take N.L. The father said that the PGF is always home when he leaves to work nights (except that the PGF drives him to work and then returns).

[165] The father said that N.L.'s bedtime on school nights in 9:30 p.m. and he gets up by 7:30 or 8 a.m. On weekends N.L. stays up until midnight.

[166] The father said that he does "force" N.L. to take walks in the evenings and he makes him complete his homework before he plays video games. N.L. spends about 2.5 hours a day playing video games. The father said that he himself plays 2-3 hours a day not the 10 hours or more alleged by the mother. In response to the mother's allegations about violent content the father said he does monitor that and that he can figure out who N.L. is talking to online.

S.L.

[167] The PGF said he is 78 years old. He has lived with the father since 2019. He has been actively involved in N.L.'s life for years. He said he has watched his son care for N.L. for the past three years "devoid of any contribution" from the mother.

[168] The PGF described the father's parenting style and his involvement with N.L.'s school and his doctors. He said that the father ensures that N.L. cleans, does his homework, and does not speak back to his father.

[169] In his affidavit the PGF said he thought that the father pushed N.L. too much to go to his mother's home. He said that "the entire fabric of our household becomes ruined" when the father pushes too hard as N.L. screams, hits people and runs away from the mother's home when the father forces him to go. He said that he did not think these efforts were helping as they make N.L. angry and uncontrollable.

[170] The PGF said that the father makes these efforts even though the mother has "tried to knock down their door." He said that he had witnessed the mother scream at both N.L. and the father "incessantly and without regard for N.L.'s feelings."

[171] The PGF said he watched the father encourage a relationship with the mother, make all major decisions for him and help him control his ADHD and ODD without the use of medication.

L.F.

[172] Ms. L.F. said she met the father in November 2021, so they have been dating just over a year and three months. She said she was a parent of two other children one with attention deficit disorder (A.D.D.) as well as O.D.D. She co-parents that child with the child's father. She also has a 32 year old son with multiple disabilities which require his use of a wheelchair. He is fully dependant on the assistance of herself and others.

[173] Ms. L.F. lives in Bradford with her eldest child. She has help from a personal support worker. She works three days a week in Orangeville.

[174] Ms. L.F. estimated that she spent about 60% of her time at the father's home including many overnights. She is often there when N.L. comes home from school. She said that she had witnessed exchanges between the mother and father. She said that the mother refused to come to the door. She sent her son J.U. to the door to pick up N.L. N.L. followed J.U. to the car. He talked briefly to his mother and then came back inside the house.

[175] Ms. L.F. said that the father does his best to raise N.L. and she has seen mutual love and respect between the father and the son. She said she has seen the father punish N.L. when he refuses to go to his mother's home. If the father tells N.L. that his mother would like to spend time with him, he becomes frustrated and slams his bedroom door and refuses to discuss the matter further.

[176] She said the father helps N.L. with homework. He disciplines him, if necessary, by removing his video games or internet usage. She also confirmed that the PGF is an integral part of the child's life. He picks him up from school when required or when the father is working.

H.S.

[177] Ms. H.S. is the father's ex-partner. Her affidavit related to an incident in 2019 when the two were still together. She said that she was present when the mother's son J.U. called the father to advise that the mother had hit N.L. when he was being disobedient.

[178] The mother and her partner Mr. R.D. came to the father's home yelling and screaming and banging on the door. Ms. H.S. said that they tried to knock the door down. She said the father had no choice but to call the police. She said that N.L. appeared to be "visibly frightened" by his mother's actions and was deeply worried that the police were going to forcefully take him away from his father. Following this incident Ms. H.S. said that N.L. made disclosures to her about being hit and having his ears pulled by his mother.

[179] Ms. H.S. said that she saw N.L. upstairs in his father's home lying in a fetal position crying hysterically and begging her not to make him go with "that monster."

B.C.

[180] Mr. B.C. is a teacher at [elementary school] where N.L. is a student in Grade 6. He has been a teacher for 18 years with the last 9 at this school. He has known N.L. since September 2022.

[181] Mr. B.C. has a classroom within the school to which children can be sent when they are exhibiting behavioural problems. There are about 25-30 students that are sent by their classroom teachers to his class which acts as a safe space for students to de-escalate. Mr. B.C. said that he has had very specific training in de-escalation strategies and restorative justice. He uses the latter to show students how their actions have hurt others.

[182] Mr. B.C. said that N.L. is a lovely boy. He is well natured, but he has challenges with self-regulating his impulsive behaviour. He said that N.L. is a difficult student to manage.

[183] Mr. B.C. said that at the beginning of the year when he met N.L. he was living with his father. He had had a meeting with N.L. and both parents in August 2022. He said he had spoken to each parent about N.L. about thirty times during the year. He has had parent teacher interviews by phone and some text messages. He had described what had happened in class and provided some strategies for managing N.L.'s behaviour.

[184] Mr. B.C. said that both parents communicate effectively with him, and they provide timely responses to his texts. Mr. B.C. said that the last meeting they had was in January in the office with other support staff.

[185] The reason for the meeting was that N.L. had become agitated and upset with other students that he thought were bothering him. He escalated and started pushing and shoving another student. N.L. then spit at the other student. They discussed N.L.'s challenges and the strategies put in place to try to deal with them.

[186] Mr. B.C. said he read Dr. V. Murphy's report. He had a meeting with the classroom teacher and the school social worker Vanessa has now had two sessions with N.L. and she will continue to see him weekly. Vanessa de-briefs with him ever alternate week.

[187] Mr. B.C. said that N.L.'s perspective differs from that of other students. When he gets angry, he perceives things as being highly impactful to him. He gave a couple of examples of this. Some relatively minor incidents could occur that would not trouble other students. N.L. perceives incidents as being directed to hurt him and he reacts strongly to that. In other words, things that were non-existent to other students were triggering for N.L.

[188] Mr. B.C. said at the very beginning of the year N.L. became escalated three to five times a day. He said that N.L. was definitely in the top three of the 25-30 students he sees in terms of challenging behaviour.

[189] Mr. B.C. said that the mother had told him that N.L. had been recommended for the CHADD program. Mr. B.C. said that this program normally utilized school supports. Mr. B.C. said that he had other students attend this two-week program. He said he did not negatively impact upon their education. The school can provide work that the student can do when at the clinic.

[190] Mr. B.C. was aware that N.L. had a modified program in line with Dr. Murphy's recommendations. He has a person in the classroom who supports him. Mr. B.C. said it was still very challenging for N.L. to do the curriculum even with all of the supports that have been put in place.

OCL

[191] Ms. Susan Tredree was the OCL clinician assigned to this file on June 15, 2021. She completed her last interview on August 28, 2021, but the report was not released until December 14, 2021.

Allegations of bias

[192] Ms. Tredree was cross-examined by Mr. Rubin. The theme was that the father felt that the clinician was biased against him almost from the outset of her investigation. Ms. Tredree denied that she disliked the father.

[193] She confirmed that the father asked her to send him an email apologizing for saying it was illegal for the father to leave N.L. at home alone at age 11. She did have some concern that N.L. was a child with challenges who was left alone by the father in the early morning hours when the father and PGF went to the father's workplace.

[194] She said that she did review the matter and verbally told the father that there was no law that said an 11-year old could not be left alone. It was clear that the father was upset, but she did not think she should recuse herself over the issue as he wanted. She said that after the final interview she emailed both parties and told them to register N.L. for the home alone course.

[195] The clinician said that the father did not accuse her of bias until after he filed his Dispute to her report. The Dispute, which was required to be filed within 30 days, was actually filed about 18 months after the report's release. The OCL did not respond.

[196] The father also alleged that Ms. Tredree was biased because she had communication with the mother without copying the father. The clinician said there was one instance when the mother brought up an issue of N.L. having a different physician. She followed up directly with the mother. She said that all other contacts were with both parties.

[197] The father also stated that the clinician refused to accept text messages from him. She said he wanted to provide historical text messages and she did not require them at that time. She said that both parties had provided her with email communication. She denied that she had deleted emails sent to the mother.

[198] Ms. Tredree was asked how she could come to the conclusion that the mother was more open to treatment and counselling than the father when she failed to provide a consent for the child to see Dr. L. Ballmer. The clinician responded that in the interviews the mother was more forthcoming about health concerns. She concluded that this was because the mother was the parent that was very concerned that N.L. was not being treated for his diagnosis of serious ADHD and ODD.

[199] The clinician said that the mother had been referred to the CHAD program and the father had refused to consent to N.L.'s attendance. Dr. Ballmer did not refuse to do counselling due to a lack of consent from the mother. She refused to do it because her view was that N.L. should complete the CHAD program first.

Other allegations of unfairness

[200] The clinician was challenged on her finding that the father demonstrated racist attitudes that N.L. would be exposed to in his home. She conceded that she had not heard him say anything discriminatory in the child's presence, but referenced the comments made by the father in her presence and in the presence of the mother and her eldest daughter A.C. The clinician felt that her conclusion was supported by this evidence.

[201] With respect to the criticism that she interviewed Mr. R.D. but did not interview Ms. L.F., or Ms. H.S. the clinician simply stated that she interviewed all of the people that the parents asked her to contact. The father did not have a girlfriend at the time of her investigation.

[202] Ms. Tredree was asked why she did not address the mother's physical abuse of N.L. She was directed to a note from the Peel Children's Aid Society (PCAS). An anonymous caller had reported to the society that the mother had hit N.L. with a belt. The clinician said that on multiple occasions the PCAS said that both parties had used physical discipline.

[203] The mother had admitted spanking N.L. but had denied using a belt (though she threatened to). The clinician said that the call was anonymous and the PCAS did not verify that a belt was used.

[204] Ms. Tredree had expressed concern about the father's anger and set out his criminal charge of assaulting the mother. The father's counsel said she did not emphasize that he took an anger management course and received a peace bond. The clinician said that this charge was one of a number of concerns that she had with the father's ability to control his anger and she referenced the workplace incident that resulted in him being fired.

[205] Ms. Tredree had concluded that the father supported N.L.'s refusal not to see his mother. It was put to her that the father drove the child to the mother's home. Nevertheless, the clinician did not back away from her view that the father effectively manipulated the child into thinking that he should not see his mother. The child had a narrative about what the mother had done to him that was not fully supported by the facts.

[206] Ms. Tredree concluded that after causing the child to have negative views of his mother, the father then relied upon the fact that it was N.L. who was refusing to attend. She felt that the father pretended that he did what he could to convince N.L. to go. She said that in the period after the April/May 2020 incident, when N.L. did not see his mother for some time, the child had been completely supported in not having a relationship with his mother.

[207] As to the objection that the father's driving the child for visits was not mentioned Ms. Tredree, said she did note that the father had certain bribes to get N.L. to attend. For instance, she had noted that N.L. will go to his mother's home if he receives money or a video game.

[208] The clinician was asked why she said that the mother "reported" facts to her while the father "claimed" that certain things occurred. Ms. Tredree said she did not consciously distinguish between them in her choice of wording, and she felt that she was quite even-handed in her language.

[209] The clinician said the father had told her that he when he drops N.L. off, he has a "gut feeling that things are not OK," so he calls him to check in. The clinician said that these calls appeared to be intended to reinforce to N.L. that he will not be safe at his mother's home. She asked the father to stop making the check in calls so that she could spend uninterrupted time with N.L. The father called N.L. on the next visit after receiving this request.

Concerns about father's mental health

[210] Ms. Tredree was asked how she could possibly come to the conclusion that the father had undiagnosed mental health concerns. She said she based this on the father's admission of anxiety and an October 1, 2021, email that he wrote to Dr. Ballmer that "seemed strange as he was all over the place."

[211] The clinician said that her interview with Dr. Ballmer provided some very useful information. Dr. Ballmer had 30 years experience as a psychologist. The father had google searched her. He presented a narrative about how horrible the mother was. He claimed that N.L. had been kicked out of his mother's home. She said he "bulldozed" the process and claimed that the mother would not talk to a therapist. She then contacted the mother who was very cooperative. The mother explained that to Dr. Ballmer that N.L. had been referred to the CHAD clinic by Dr. Bakht, but the father had not consented to his attendance.

[212] In Dr. Ballmer’s follow up with the father he claimed that N.L. did not have any behavioural problems. He also said that the program was during school, and he did not think it was a good idea. Dr. Ballmer was concerned that the father was trying to manipulate the process.

[213] She said she insisted on privacy for her video interview with N.L. However, when she asked questions, N.L. looked across the room. She was convinced that the father was in the room but hidden from the screen.

Interviews with N.L.

[214] The clinician said she usually interviews children twice during an investigation. In this case, the father insisted that she interview N.L. a third time. She said that she did one interview in person and the other two were by video. The clinician admitted that N.L. appeared to be fairly calm on each occasion.

[215] Ms. Tredree's first interview with N.L. was on June 26, 2021. The child told her that his father hit him with his hand on his bum, and his mother used to hit him with a belt. N.L. said he has not been hit after the separation.

[216] In the second interview N.L. told her that his mother "kicked him out of house" and threatened to kill his dog. N.L. said he feels more loved at his father's home.

[217] In the third interview N.L. said he felt safer at his father's home.

Recommendations

[218] Ms. Tredree recommended that the mother should have sole decision-making responsibility for health and education. She felt it was critical that N.L. be able to attend the highly specialized CHAD program. She felt that the entire history of this matter, together with the mother's comments, made it clear that she sought help for N.L.'s challenges and the father did not. (It should be noted that the report was completed before the father consulted Dr. Murphy and cooperated with Mr. B.C. and other teachers at N.L.'s school).

[219] It was noted that the clinician did not recommend reunification therapy for N.L. She said that at the time of her investigation she had observed N.L. to be quite comfortable in his mother's presence even though he had said he did not want to attend visits. At that time visits were sporadic, but some overnight visits were still occurring. Her report was released prior to the complete termination of parenting time after the disastrous April 15, 2022 visit.

FACTUAL FINDINGS

[220] There were a number of areas where the evidence for each of the parties diverged. Their different perspectives are made clear in the summary of the evidence set out above. I will address the differences and my findings on the credibility of each account.

Domestic violence

[221] I accept the mother's account of an incident in early 2011 when she was five months pregnant with N.L. The mother admitted that she pushed the father, but she then said he grabbed her by the neck and choked her. The PGF finally had to separate them.

[222] I also accept the mother's account of the incident of January 2, 2014, when the father was charged with assault. The mother's narrative was that she tapped N.L. on the head with the controller, that the father overreacted and attacked her by choking her, that she tried to defend herself, and in the process, she attempted to inflict pain on the father. She said he repeatedly hit her head on the wood frame of the couch, and this is consistent with the injuries she sustained. Her account and her delivery of it rang true.

[223] By way of contrast the father statements that the mother repeatedly struck N.L. with the controller, that she attacked him causing injuries and that he never struck the mother is not credible. The father is a tall and muscular man. The mother is slight but athletic. The father's version has the mother hitting her son yet causing no injury and then hitting the father causing his face to bleed. Her injuries are not explained, and his evidence is that he did not physically engage with the mother.

[224] The police spoke to both parties. The father was charged. The mother agreed to a reconciliation and had a lawyer request a peace bond. The father saw the peace bond as a complete vindication. He took no responsibility for his actions. This failure to accept any responsibility is seen throughout the father's evidence.

Anger management

[225] The mother and father both work at Air Canada and are subject to the same disciplinary procedures. The father had three disciplinary proceedings all related to his inability to control his anger. He was fired from his job. It was only through taking his second anger management course, this time with Dr. L. Sandor, and through the diligent efforts of his union that he got his job back. He did not get back pay, so he was clearly not fully vindicated. The father blamed the entire incident on the other employee and did not think he did anything wrong.

Physical discipline of children

[226] The mother admitted spanking her children. She admitted to threatening to, but not actually using, a belt. She admitted grabbing N.L. by the ears and the chin to direct his attention to her when he was having a meltdown.

[227] The father said the mother was repeatedly and consistently violent with N.L. He said that he never physically disciplined him except on one occasion when he spanked N.L. and J.U. It is noted that the father could not deny this as J.U,'s father was aware of it. The OCL clinician's conclusion was that N.L. was somewhat afraid of his father as he had been struck by him. I find that the father grossly exaggerated the mother’s use of physical discipline. I accept the mother’s evidence that she has lost her temper with her children and that she has struck them in the past. I do not believe that the only time the father struck N.L. was when he spanked N.L. and J.U.

N.L. leaving mother's home

[228] The father's position was that the mother has kicked N.L. out of the house in February and packed up all his belongings in two garbage bags and forced him to sit outside for hours in the cold and snow such that he was wet and shivering when he picked him up.

[229] The mother said that after a meltdown in late April or early May she told N.L. that he could stay with his father for two weeks. She packed enough clothes into two shopping bags for that time. He only sat out front for a short time once the mother knew the father had left work and was on the way.

[230] I accept the mother's evidence and reject the father’s on this point. It is an important point as N.L. being kicked out of her home and then abandoned by the mother is the foundation for the father being able to convince N.L. that his mother did not care about him. The father built on this by denying the mother contact with N.L. for a period of time and persuading N.L. that his mother was violent and untrustworthy. He even showed him photos of his injuries from the January 2, 2014 incident, and reminded him that his mother would spank him. I find that N.L. was persuaded by his father that he was struck with a belt.

THE LAW

[231] The statute that is applicable to this matter is the Children's Law Reform Act. The test with respect to parenting orders is set out in s. 24. I have set out below the sub-sections that are relevant to the evidence in this matter.

Best interests of the child

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

Primary consideration

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

Factors

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

a) the child's needs, given the child's age and stage of development, such as the child's need for stability; b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent; d) the history of care of the child; e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; j) any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

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. 2020, c. 25 , Sched. 1, s. 6.

ANALYSIS OF THE PARENTING ISSUES

[232] I will approach this matter by considering the facts of this case and the applicable law under the heading of the issues to be resolved. The first two issues are:

(1) Which parent should have sole decision-making responsibility? (2) How should parenting time be allocated between the parties?

Primary consideration

[233] The father's argument is that the child feels physically and emotionally safe with him and feels unsafe in his mother's home. N.L. made statements to Ms. Tredree to that effect. The father's position is that the mother presents a risk to N.L.'s emotional and physical safety and until the mother proves that she has "changed" N.L. should not be forced to spend time with her. The father knows that he cannot take a position that N.L. should never see the mother, but he does not really see a role for her in N.L.'s life.

[234] The mother's position is that there is no risk to N.L.'s physical safety in her care and that N.L.'s stated concerns are the product of years of manipulation by the father. She notes that her autistic son J.U. divides his time between her home and his own father's home.

[235] With respect to psychological safety, security and well-being the father said N.L. feels safe and secure in his home and that is why he wants to stay there. I find however, that N.L.'s preference for his father's home is based upon a false narrative that the father has woven. The mother is clearly not a “monster” as N.L. has come to believe. The father never accepts responsibility for anything and has what might be termed a victim mentality. He has convinced N.L. that his reactions to his mother are justified as his mother is a violent person who cannot control her emotions.

[236] There are of course some facts upon which the father could build this false narrative. The mother admitted that she is an emotional person. She has yelled at N.L., she has spanked him, she did ask him to leave the home. It may be that most children who had primarily been cared for by their mother (as I find that N.L. was) would not accept that she posed such a risk to him. This is where the evidence of Mr. B.C. is helpful. He sees N.L. a few times a week. He was able to provide concrete examples of situations in which N.L. perceived threats and attacks upon him that were not consistent with the incident involved. Things not noticed by other students became huge incidents for N.L. such that he had to be removed from his class.

[237] The father initially maintained that N.L. only acted out at his mother's home, and he had no behavioural problems elsewhere. He did not accept Dr. Bakht's diagnosis of severe ADHD and ODD in 2018. He refused medications recommended by the child psychiatrist and he refused to allow N.L. to attend a specialized program for children with severe ADHD.

[238] The end result of the father's intransigence is that N.L. has not been properly treated. The father's actions, or failure to act, have impacted upon the child's emotional and psychological safety. The father has created a situation in which N.L. feels isolated and attacked at school. He has convinced N.L. that he is only safe with him and the PGF. The evidence is that N.L. has retreated into a world where his interactions with others are largely with people with whom he plays violent video games. I find the father's estimate of N.L. being online 2.5 hours per night to likely be understated. The father appears to be addicted to online gaming, up to 10 hours per day when not working, and N.L. and his father share a bond over this activity.

The need for stability and strength of relationships

[239] On the surface these factors set out in s. 24 (3) (a) and (b) would appear to support the child primarily residing with the father. N.L. has lived almost exclusively with the father since April/May 2020, and he has had very little contact with his mother since April 15, 2022.

[240] N.L. is clearly very closely bonded with the father and the PGF. He is comfortable with the father's girlfriend Ms. L.F. He spends some time with his half-sibling J.U. at each home. N.L. does not have a good relationship with his mother, and he has not seen Mr. R.D. or his half-sister F.C. for some time.

[241] N.L. is not yet 12 years old. He has been effectively cut off from his mother's side of the family. Prior to the incident in April/May 2020, when he was nearly 10, N.L. had the benefit of a positive relationship with his mother's side of the family. As noted by Ms. Tredree, there is no legitimate reason for N.L. to feel so angry with his mother. I find that it is in N.L.'s long term best interest be able to have positive healthy relationships with all of the adults who love him and care so much about him. Not seeing his mother means he does not see F.C. and J.U. nearly as much as he should. N.L. has currently lost all contact with the maternal family living in Costa Rica including his half-sister A.C. All efforts should be made to restore these formerly positive relationships.

Views and preferences of the child

[242] It is quite clear that N.L. wants to live with his father. He has made it clear that he does not want to see his mother.

[243] I am required by the law to give weight to N.L.'s age and maturity. As a child becomes older their views and preferences are generally entitled to more weight. At nearly age 12 N.L.'s views would normally be given significant weight. I must though consider his "maturity." I find that in the context of the facts before me that this should include his ability to form and maintain relationships and his ability to perceive reality.

[244] N.L. has severe ADHD. He has effectively been denied treatment by his father. His father's statements to the OCL clinician that N.L. does well in school and does not misbehave in his care are not supported by the evidence. N.L. is struggling. He does not have any friends. He has to be removed from his classroom two or three times a week due to his challenging behaviour even though he has educational assistants and a modified program. A great deal of N.L.'s life is lived online in make believe scenarios. I find that all of this evidence persuades me that N.L. does not present as an age appropriate and mature 12 year old.

[245] There is also a significant amount of evidence that N.L. has been manipulated by his father and is not able to form and articulate independent views. The father seemed convinced throughout this litigation process that if N.L. said he wanted to live with his father, then that would happen. The father ignored or fired any professional who found fault with him or who did not do what he wanted. Dr. Ballmer, Dr. Sandor and Ms. Tredree all came to the same conclusion. The father’s view was that their assessments or therapy had to be done based on the narrative that the father provided. Otherwise, the father would find a more "comfortable" therapist in the same way he would look for more comfortable shoes.

[246] I conclude from the evidence that N.L. did not have the opportunity to form truly independent views and preferences. I will not give his views any weight on the issue of decision making but I cannot discount his stated feelings entirely. I note that Ms. Tredree recommended a gradual phasing in of more parental time with the mother due to the limited and sporadic contact that the child had with her at the time of her report.

[247] At the time of trial, the mother had not seen N.L. for nearly a year. Their last visit was the debacle that was April 15, 2022, with the yelling and screaming and the video recording of same. As noted above, I did provide for some parenting time in the temporary order of March 7 as I wanted the child seeing the mother when re-unification therapy was occurring. I made it clear to the parties that I did not want the substance of the interactions to be set out as I did not want to re-open the evidence. However, the date and length of the visits, if any, would help in deciding what to do with parenting time.

[248] It is interesting that the first visit was the full two hours, and the subsequent visits were much shorter if they occurred at all. It is helpful though that some contact has begun again as this means that I am not making a parenting order for a mother who has not seen her child in a year, but one for a mother who has had limited and sporadic contact. In that sense at least, the landscape is now more similar to what it was when Ms. Tredree filed her report.

Willingness to meet the needs of the child and to cooperate with others.

[249] I will consider s. 24 (3) (h) and (i) together. I find that both parents love N.L. and want what they think is best for him. I also find that while the mother was responsible for most of N.L.'s instrumental needs prior to April/May, 2020 the father has been an engaged parent since that time.

[250] I find that this litigation and the requirement in the OCL report for counselling has finally caused the father to see that N.L. has more generalized behaviour problems. Prior to that time, he took the position that N.L. only acted out at his mother's home and that he had no problems in his care or at school. The need for counselling caused the father to connect with Dr. Murphy.

[251] I find that as Dr. Murphy's focus was on N.L.'s psycho-educational needs, rather than family dynamics, that the father was able to absorb the information he provided. The father was not able to cooperate with therapists that required information about parenting and family dynamics. If they challenged the father's perspective, he could not engage with them.

[252] I accept the mother's evidence that the father intentionally shut her out of any involvement with Dr. Murphy and that she did not know of his ongoing involvement with her son until the time of trial. This resulted in the father feeling that he had built an alliance with Dr. Murphy. When the discussion of ongoing therapy for N.L. came up the father insisted that Dr. Murphy was the right person to do it as N.L. felt "comfortable" with him.

[253] The involvement with Dr. Murphy was important because it allowed the father to understand that N.L. required modified learning and extra help. This led to a school meeting in August 2022. The mother attended that meeting, but the father did not recall that. The father's evidence was that he had established the connection with the school and ultimately with Mr. B.C. and he was the sole parent responsible for N.L.'s education. Mr. B.C. was called as the father's witness to support that position. It appeared to be a surprise to the father that the mother had also been regularly communicating with the school and specifically with Mr. B.C. He knew she was called in for the January bullying incident, but he clearly saw that as legal requirement only as their separation agreement referred to joint custody.

[254] Notwithstanding the father's late conversion to the reality that N.L. required educational help he was still not willing to consider the CHAD program. Even though the CHAD program was recommended by Dr. Bakht, and Dr. Ballmer will not see N.L. if it is not taken and even though the program is fully supported by the school, the father felt it was not required. He suggested at trial that if N.L. could go without missing school, he would consider it.

[255] I find on all of the evidence that it was a major error in judgment for the father to oppose a specialized program for his son recommended by a child psychiatrist. The error was compounded by the fact that the father created a narrative that has led N.L. to state that his mother wants to" kidnap" him. In 2018, when the father very reluctantly took N.L. to his intake appointment, when the mother was working, he refused to consent to the program once he found out that involved in-patient therapy. After the order of March 7, 2023, requiring the father to take him the child was taken by the PGF, and N.L. refused to go into the hospital. This program is now seen by N.L. as part of the mother's efforts to separate him from his father.

[256] The father's case began with an opening submission that the mother had rejected counselling and had not been involved at all in the child's education since she abandoned N.L. in February 2020. The evidence showed that the incident was clearly in April/May 2020 and that the mother had been trying to have parenting time with her son ever since. The mother has taken every step possible to obtain psychiatric and educational help for her son. The father has blocked those efforts and excluded her from her son's life.

Family violence

[257] As noted above, I find that the father generally initiated the family violence that N.L. witnessed. The mother was not a passive victim, however. She fought back and there was no evidence that she lived in fear of the father. The mother admitted she was emotional and did not deny yelling at the children. Both parents spanked N.L. and the mother admitted pulling him by the ear and chin.

[258] N.L. was no doubt impacted by the arguments and fights in the home when he was there. N.L.’s reaction when asked to do things he does not want to do is to act out sometimes violently. Two examples were the April 15, 2022, push of his mother down the stairs, and the January 2023 bullying of a student at his school.

[259] Ms. Tredree concluded in her report that after witnessing his father's inability to control his anger N.L. has come to fear his father and that is why he may not act out in his presence. The clinician also concluded that the mother tried to impose limits and boundaries on N.L.'s actions whereas the father was more likely to give in to what his son wanted. This resulted in almost unlimited gaming time and late nights.

[260] There is no evidence that the father tried to coerce or control the mother at least not after the separation. As noted above there is evidence that the father has manipulated and controlled N.L. The mother is prepared to attend at school meetings with the father and is not afraid to interact with him. Both of them send strongly worded email and text communication to the other. The mother has attended at the father's home to pick up her son. I find that she did try to confront the father after he spanked N.L. and J.U. but that while she and Mr. R.D. may have knocked loudly at the door, I do not accept the father's evidence that they tried to knock his door in.

[261] I find that there is a history of family violence in this matter. I also find that the father has a long-standing anger management problem. He has difficulty getting along with others whether it be co-workers or professionals who challenge his perspective. However, this is not a case where family violence prevents the parties from communicating and it is not a case where the mother feels unable to express her views to the father. The parties both have strong personalities and there is no doubt that they were engaged in a power struggle during and after their relationship. I do not find that the power dynamic was so adversely affected by domestic violence that this impacts upon the parenting time order to be made

CONCLUSION

Sole decision-making responsibility

[262] Both parties wanted sole decision-making responsibility. Neither of them thought that joint responsibility could work. They are both right in that regard. They may be able to communicate, but they cannot cooperate. One of them has to make decisions in the best interests of the child. The evidence supports the mother having that responsibility.

[263] The mother was N.L.'s primary parent from birth until April/May 2020. There was no real dispute that she attended to all of his instrumental needs. The father may have taken his son to the occasional doctor's appointment. The parties worked opposite shifts and practical decisions were made.

[264] The parties did agree upon joint custody in August 2016, and they did build a parenting schedule around their work schedules. However, by 2018 they could not agree upon N.L.'s care. The mother as an experienced parent with ADHD herself knew that N.L.'s behaviour was outside the normal range for a child of his age. The father could not see this, or he was wilfully blind to it. The mother sought help first from the family doctor and then, through a referral, from Dr. Bakht.

[265] The mother wanted to follow the psychiatrist's recommendations. She knew that the father did not. The mother gave the child the prescribed medication and when the father found out he was very upset. He did not want his child medicated. N.L. was given a very low dosage but claimed that he had an upset stomach as a result. He has come to view this incident as the mother attempting to poison him.

[266] The father did not want N.L. attending the CHAD program. He resisted counselling until the OCL report essentially required it.

[267] With respect to education the mother was the link to the school until the father became involved after N.L. came to primarily reside with him. The father did not really engage with education until after Dr. Murphy became involved.

[268] I find that the mother has always been concerned about N.L.'s diagnoses and sought the best advice and treatment from 2015 on. The father refused to believe that his son had any problems and stated that the child was fine at his home and only acted out at his mother's due to her inflexible and punitive parenting. The father alleged that the mother was not involved in N.L.'s education and refused to consent to counselling. He was wrong on both counts. I find that he knew he was wrong, but he made these statements as he wanted to convince any professional involved in N.L.'s life that he was a caring and involved father raising a child that had been cruelly abandoned by his mother.

[269] The mother has demonstrated tremendous diligence and tenacity in pursuing what she knows is best for her son. She was self-represented at trial, but her evidence was organized and focused. She was subjected to a vigorous cross-examination, but she was not shaken. She admitted responsibility for some misjudgements and errors, and she gave credible accounts of the conflict with the father. The mother said she knew that she could not fix her relationship with her son overnight and she was prepared to proceed gradually and to accept advice. She fully supported Ms. Tredree's report and recommendations. She immediately accepted the proposal for re-unification therapy. She did not object when the court appointed a therapist proposed by the father and she has attended all of the sessions.

[270] The father seemed exasperated by the entire trial process. He could not understand why the mother would spend time and money trying to have N.L. stay with her when the child had so clearly said he did not want her in his life. The father said he had done everything he could to get N.L. to see his mother. I find that by the time the father began driving N.L. to the mother’s home, and giving him bribes to attend, the damage was already done. I do not know whether the father intentionally tried to destroy N.L.'s relationship with his mother or whether it was the inevitable consequence of the father's inability to find any fault with himself and his need to blame others for everything that happens to him.

[271] I find that the father grossly exaggerated the mother's actions. A two week break in contact in the spring became a dramatic rejection of the child forced to wait outside for hours in the depths of winter. The domestic violence that N.L. witnessed became the mother's fault when the father showed him photos of his injuries. The spankings N.L. received became frequent beatings with a belt. The father's narrative made N.L. fearful of, and angry with, the mother long before the April 15, 2022, complete break in contact.

Re-unification therapy

[272] Ms. Tredree did not recommend re-unification therapy in December 2021. She felt a gradual increase in N.L.'s time with the mother, supported by therapy for N.L. and both parents should lead to a roughly equal sharing of time.

[273] After the complete break in contact re-unification therapy was needed but had not been arranged. It is good that both parents have kept their appointments. The father brought N.L. to be interviewed when the appointment was for his interview. I do not know whether that was an error in communication or whether the father thought that if N.L. could tell the therapist how strongly he felt the process might be shortened if not ended. The submissions on May 19 made it clear that the father needed to book the next appointments. He appeared to not be motivated to do so and after hearing the final order read to him, he presented as being frustrated and upset.

[274] I find that this therapy is crucial and subject to the views of Ms. Seidel that the mother, father and child should participate. I am very concerned that after the final order was made that the father might not participate further. For that reason, I seized myself of any contempt motions that might be brought and stated that no motion to change could be brought until after the therapy was fully completed.

[275] The final order is not conditional on therapy being concluded. The mother will have sole decision-making responsibility for all of the reasons set out above in addition to the fact that she clearly supports this therapy.

Parenting time

[276] I agree with Ms. Tredree that the mother's time with N.L. needs to be gradually expanded. Given the worsening of the situation since her report, the final order will be different than her recommended terms.

[277] N.L. is attending school regularly and has a good rapport with Mr. B.C. I do not want to do anything that could upset that. Therefore, N.L. shall live in his father's home until the end of the school year on June 29, 2023. I note that the mother said that if she were granted sole decision-making responsibility she would leave N.L. at the […] school, which is near to her home, as she appreciates the efforts that school has made to assist N.L.

[278] I told the parties on May 19 that in the period prior to June 29 N.L. should continue to see his mother on her days off for at least 2 hours as set out in the March 7 order.

[279] On June 29 N.L. shall begin a two-week alternating schedule over the course of the summer school vacation. The schedule shall begin with two weeks at his mother's home. The hope is that if the re-unification counselling continues N.L. can come to see that his mother loves him and genuinely wants to spend time with him. N.L. should also be told that his mother is not trying to kidnap him or take him away from his father.

[280] I have set out the summer schedule in such a way that the mother has the last week that leads into the first week of school. It is important that N.L. see that his mother supports him in his school he shall go to school and then return to her home in the first week of the new school year. While both parents have been equally involved in school decisions N.L. has a perception that his life would change dramatically if he spent time with his mother. He needs to understand that he can spend time with his mother without losing his close connection with his father.

[281] I chose to not put in a fixed weekly or bi-weekly schedule after the first week of school. Both parties work shifts, and they often trade shifts with others. The shift schedule can change. The mother said her seniority was such that she expected to be able to get the shifts she wants, and she could also take a leave of absence if it would help with her re-connection with N.L.

[282] I am concerned that if the order sets out fixed days with each party that are not in accordance with their shift schedules that this may result in N.L. being with his father when he is scheduled to work and vice versa. The parties did reasonably well in the period leading up to April/May 2020 by having N.L. with them when they were not working. They even managed to schedule visits in accordance with their schedules post-trial although some visits did not happen due to N.L.'s refusals.

[283] It is important that N.L. not go too long without spending an overnight time with each parent, so I have put in a maximum period of five days without that happening. The school holidays need to be fairly divided and as N.L. did not spend any holiday time with the mother in 2022, she will have the significant days for Christmas 2023, and she will have N.L. on March Break 2024. These times will then change annually.

[284] Finally, the mother should be able to travel to Costa Rica with N.L. so that he can re-connect with his half-sister A.C. and see his mother's family. N.L. spent time with them prior to the separation but has had no opportunity to see them since.

Child support

[285] There was no evidence led as to child support. Both parties sought child support if the child was primarily in their care.

[286] The mother filed a financial statement dated October 20, 2022, in which she stated that she expected to earn $57,987 in 2022. Her 2021 Notice of Assessment showed income of $52,479.

[287] The father filed a financial statement dated December 30, 2022, in which he stated that he expected to earn $40,530 in 2022. His 2021 Notice of Assessment was not attached but the financial statement stated that he earned $34,349 that year.

[288] Both parties work in the baggage handling department of Air Canada and should earn a similar income. It is noted that there was evidence that the father was fired from work and lost 6 months of income, but it was not clear if that impacted the 2021 or 2022 years. The father said that he had to give up shifts to care for N.L. He said that sometimes he has to sell his shifts as he needed the time off and co-workers did not want to take his shifts without compensation. Both parties are now working full time. As they should have equal time with N.L., they should both have the same ability to organize their shift schedule.

[289] I find that the order made is a shared parenting order and s. 9 of the Child Support Guidelines is applicable. I find that as both parties have lived in their home for some time and as they separated in 2016 that there are no factors that require any adjustment due to the provisions of s. 9 (b) or (c). This case is one where s.9 (a) is applicable and there should be set off between the party’s incomes. I find that on the evidence before me that this should result in neither party paying the other any support after June 30, 2023.

[290] A temporary order was made by Justice L. Rogers on June 18, 2021, that required the mother to pay to the father child support in the amount of $434 per month beginning July 1. 2021. After making an order that all arrears were to be paid by June 30, I was advised on May 19 that the mother has paid her monthly support to and including for the month of May. As the child will be primarily residing with the father until June 29, she must pay the June support. Her child support obligation will end at that time as the shared parenting will begin.

FINAL ORDER

Parenting order

(1) The Applicant shall have sole decision-making responsibility for the child N.L. born […], 2011.

(2) The said child shall continue to primarily reside with the Respondent pending the completion of the school year on June 29, 2023. Provided that if the CHAD program will accept N.L. prior to the end of the school year the Respondent shall take the child to the program, and he shall be responsible for his attendance for the entire program. The Applicant has consented to the program and the Respondent’s consent is not required. Provided that as N.L. had refused to go for the initial appointment this issue will be reviewed in the therapy with Ms. Seidel or her associate.

(3) On June 30/23 the Respondent or the paternal grandfather S.L. shall take the child to the Applicant’s home. N.L. shall remain at the Applicant’s home until July 14. There shall be no in-person visits with the Respondent during this time period. The child may make a 15-minute video call to the Respondent on July 4 and 11. If asked by the child to pick him up early the Respondent must tell the child that he is to stay with the Applicant until July 14.

(4) The child shall be with the following parent during the school summer vacation; (a) June 30 to July 14 with the Applicant (b) July 14 to July 28 with the Respondent (c) July 28 to August 11 with the Applicant (d) August 11 to August 25 with the Respondent (e) August 25 to September 8 with the Applicant

(5) During the school summer vacation, the child shall have 15-minute video calls with the parent with whom he is not residing at that time. The child shall make the calls, but he shall be strongly encouraged to do so by the parent with whom he is staying. The parents shall not question the child about the other parent or their family but shall respond in an age-appropriate way to topics raised by the child and deflect any questions by the child about a change in living arrangements by simply telling him that the arrangement is what the judge feels is best.

(6) The child shall remain at the [elementary] school until he completes Grade 8.

(7) The Applicant shall be responsible for taking N.L. to school and picking him up from September 5-8. N.L. can have a 15-minute video call with the Respondent on September 5 provided that if the Respondent is working that day the call can be on September 6.

(8) The parties shall determine a parenting time schedule from September 8 forward based upon the following principles; (a) The recommendation, if any, of the re-unification therapist Ms. J. Seidel; (b) The work schedules of the parties and their ability to be present when the child is staying in their home. Given that the parties work shifts they do not have to be present all of the time that the child is in their home, but they shall exchange their shift schedules with a view to having N.L. stay with them when they are not required to work. There will be times when they are both working and the child can be cared for by another adult person such as the paternal grandfather, S.L., the Applicant's partner R.D., or N.L.'s adult step-sibling F.C. (c) The child shall not go more than 5 consecutive days without in person overnight time with each parent.

(9) The parties shall arrange school vacation time as follows; (a) In 2023 and in every odd numbered year thereafter, the child shall be with the Applicant on Christmas Eve and Christmas Day; (b) In 2023 and every odd numbered year thereafter the child, shall be with the Respondent on Boxing Day and December 27; (c) In 2024 and in every even numbered year thereafter, the child shall be with the Respondent on Christmas Eve and Christmas Day; (d) In 2024 and every even numbered year thereafter, the child shall be with the Applicant on Boxing Day and December 27; (e) The balance of the two-week winter holiday shall be equally divided between the parties taking into consideration their respective work schedules. The dates that N.L. will be in the care of each parent shall be determined by an exchange of emails prior to November 30 each year. (f) In 2024 and every numbered year thereafter, N.L. shall spend the March Break week with the Applicant. The week shall include either the first weekend of the break or the second weekend of the break at the Applicant’s choice. (g) In 2025 and in every odd numbered year thereafter, N.L. shall spend the March Break week with the Respondent. The week shall include either the first weekend of the break or the second weekend of the break at the Respondent's choice. (h) The school summer vacation shall be divided into two-week blocks of time with the Respondent having the first two weeks in 2024 and every numbered year thereafter and the Applicant having the first two weeks in every odd numbered year thereafter.

(10) The parties shall attend for all counselling sessions arranged by Ms. J. Seidel and follow all recommendations that she makes. The parties shall pay equally for the said counselling.

(11) Neither party shall permit the said child to read the reasons for judgment when released and neither party shall discuss with the child any of the trial evidence. Neither party shall say anything negative about the other party or their children or partners and they shall not permit anyone to do so in the presence of the child.

(12) Neither party shall use physical discipline with the child.

(13) Except in an emergency if the child makes any allegations of physical or emotional abuse by a parent the party receiving the disclosure shall email or text the other party for their explanation before making any calls to the Peel Children's Aid Society or the police.

(14) This order once issued shall be filed with the child's school.

(15) As sole decision-maker the A. shall keep the Respondent informed by email of any appointments that the child has with respect to his physical or emotional health or his education. She shall sign a direction permitting the Respondent to obtain any information about medical or education issues that she can receive.

(16) The parties shall not sign the child up for any extra-curricular activities without at least 14 days email notice to the other party. The other party must respond by email within 7 days. The parties shall review by email the reasonableness of the activity and the expense. If they cannot agree the Applicant as sole decision maker shall make the decision and the Respondent shall pay 50% of the after-tax cost of the expense (summer camps may be tax deductible).

(17) The Applicant shall obtain and renew a passport for the said child and keep the passport in her possession and provide it to the Respondent for needed travel.

(18) Each party may travel with the child outside of Canada on at least 30 days notice (except for trips of less than 3 days to the U.S. where formal notice is not required). The travelling party shall provide the other party with a copy of the return airline ticket, and a contact number at which the child can be reached while travelling. If the travel is for less than 14 days and occurs in the party's school summer vacation time no written consent from the other party is required. If the travel occurs at any other time written consent is required, but it shall not be unreasonably refused.

Child support

(19) The Applicant’s obligation to pay child support to the Respondent pursuant to the temporary order of Justice L. Rogers dated June 18, 2021, shall be terminated effective June 30/23. If there are any arrears of child support pursuant to that order the said arrears shall be paid at the rate of $434 per month beginning July 1/23 and continuing on the first day of each and every month until the said arrears are fully paid.

(20) Based upon the shared parenting provisions of this order neither party shall be required to pay child support to the other after June 30/23.

(21) The undersigned is seized with any contempt motions or motions to change in this matter for so long as he is a full-time justice of the Ontario Court of Justice. It is expected that there may be challenges in the implementation of this order and no motions shall be brought until after the re-unification therapy has been fully completed.

Released: May 30, 2023 Signed: Justice Philip J. Clay