Ontario Court of Justice

Date: May 30, 2024 Court File No.: Brampton File #23-466

BETWEEN:

V.R. Applicant

— AND —

S.R. Respondent

Before: Justice Beasley

Heard on: May 17, 2024 Reasons for Judgment released on: May 30, 2024

Counsel: Margaret Teixeira, for the applicant(s) Karen Cunningham, for the respondent(s)

Beasley J.:

[1] The motions involve the parenting arrangements for SSR, a child who is almost three years of age. What should the parenting arrangements be? Should the Court change the schedule from the consent order on March 14th, 2024? Is the child at risk of being sexually abused while in her father’s care? Is the child at risk of being physically or emotionally harmed while in her mother’s care?

[2] The decision, in this case, will be initialized. The court discussed initiation at the end of the full-day argument of the motions, with consent from both parties.

[3] The question is: should the names of the parties, the child, and all non-professional witnesses be initialized to protect their privacy interests?

[4] In M.A.B. v. M.G.C., 2022 ONSC 7207, Justice Deborah L. Chappel outlines the law regarding the initialization and sealing of exhibits.

[5] The focus, in this case, is on the privacy interests of SSR. Special considerations arise when the privacy interest of a minor is at issue. Children are particularly vulnerable, so this must be taken into account. Is the threatened loss of control over personal information an affront to the child’s sense of dignity and integrity? Initializing the parties’ and child’s names allows for the mandate of court openness to be met in terms of issues before the Court and the analysis of the decision while preserving the child’s privacy, especially where her physical body, diagnoses, and allegations of abuse are part of the evidence.

[6] Initialization is seen as a minimal intrusion upon the open court principle.

[7] Motions on this file were initially scheduled on November 27, 2023, and then adjourned to March 14, 2024, with supervised parenting time to occur between the father and child. On March 14, 2024, the parties spent the day working out temporary parenting time terms and adjourned the motion to July 2024.

[8] The motions were to proceed on May 9, 2024, and then May 10, 2024. The motions were argued on May 17, 2024.

[9] The father is requesting an immediate transfer of primary care of SSR to him. He also wants the mother to have supervised parenting time at a supervised centre at her own cost. Additionally, he is seeking an order for police enforcement. As an alternative, he is seeking an order that the mother immediately complies with the parenting terms of the temporary consent order dated March 14, 2024. He is also seeking an order for the involvement of the Office of the Children’s Lawyer.

[10] The mother seeks dismissal of the father’s urgent motion, an order for supervised parenting time for the father with the child, SSR, who turns 3 in June 2024, at a supervised access centre at his cost; alternatively, that the father's parenting time shall be in the community on the days and times agreed to by the parties in writing.

[11] Both parties sought production of the complete unredacted Peel Children's Aid Society and Chantel's Place records about the child, SSR, born June 14, 2021. The parties had received the disclosure up to December 7, 2023, and full disclosure pursuant to my Order of April 24, 2024, on May 9, 2024.

[12] The mother also seeks the production of the father’s work schedule, including his work schedule for private clients, from June 2022 to the present and the production of a copy of the video surveillance situated outside his home from June 2022 to the present.

[13] Both parties seek costs.

Background

[14] The parties dated for a few months in 2017. They resumed dating in August 2019 or early 2020. The parties did not live together other than from November 2021 to January 2022. They typically maintained separate residences.

[15] They are the parents of SSR, who was born on June 14, 2021. SSR is almost three years old and has severe atopic dermatitis and eczema.

[16] The mother indicates the date of separation to be on or around January 3, 2022. The father asserts that they separated on February 1, 2022.

[17] The father, 49, is a full-time private investigator with a flexible schedule who lives in Brampton, ON, with his mother and stepfather.

[18] The father has two children from his first marriage, namely DR, who is now 17, and SR, who is 14. The father has a shared parenting arrangement with his ex-wife. The boys reside with him every weekend and other agreed-upon times.

[19] The parties ended their relationship when SSR was eight months of age. The father initially paid $700.00 per month in child support. Later, the child support was increased to $900.00. There is no order for child support.

[20] Initially, the father saw the father SSR for 2 hours every day after work. The schedule was later changed to 4-hour visits every other day from 5:30 p.m. to 9:30 p.m.

[21] The father filed an Application on July 19, 2023, seeking primary residency for SSR, reasonable parenting time, sole decision-making responsibility, maintaining the child's residence in Brampton, prohibition of removal from Ontario without written consent, police assistance, involvement of the Office of the Children's Lawyer (OCL), addressing child support and section 7 expenses, and requiring communication to occur in writing. Additionally, the father requested an order prohibiting the mother from coming within 300 meters of his residence or place of employment, or anywhere he is known or likely to be, and from speaking negatively about the father in the presence of or within earshot of the child. His amended application seeks shared decision-making responsibility and a shared parenting schedule as an alternative.

[22] The mother is 45 years old and has received social assistance and CCTB since 2020.

[23] The mother has an older daughter, age 18. She has filed two affidavits.

[24] In her Answer and Amended Answer, the mother is seeking sole decision-making responsibility, supervised parenting time for the father at a center, child support based on an imputed income of at least $127,000.00, medical coverage, life insurance, a provision that the father does not denigrate the mother in the presence of or within earshot of the child, order for the mother to disclose his address, email and contact numbers, travel government identification, and disclosure of the CAS file.

[25] SSR has continuously resided in her mother’s primary care.

[26] The issues that need to be determined in this motion are: a. Should the March 14, 2024, Order be changed? b. Who should have primary care for SSR? c. What should be the parenting schedule for SSR? d. Should the father disclose his work schedule particulars from June 2022 forward? e. Should the father produce video surveillance outside of his home from June 2022 to the present? f. Should a section 30 OCL assessment be ordered?

[27] The parties entered into a consent order on March 14, 2024, providing for unsupervised parenting time with SSR every evening for approximately 2 hours, weekends from 10:00 a.m. (or earlier) until 3:00 p.m. with a gradual expansion to overnights, Saturday mornings until Sunday at noon commencing March 31, 2024.

[28] After one overnight stay, the mother halted the father’s parenting time on April 5, 2024. No independent parenting time has occurred since then, except for one day on May 11, 2024, at his home.

Mother’s Position

[29] The mother is seeking supervised parenting time for the father.

[30] The mother has repeatedly reached out to Peel CAS, Chantel’s Place (a domestic abuse treatment centre in Mississauga), Sick Kids Hospital, SCAN (Suspected Child Abuse and Neglect Program), Police, her family doctor, SSR’s pediatrician, walk-in clinics, counsellors to report that SSR has been sexually interfered with by her half-brothers.

[31] The mother asks the Court to find her conduct reasonable and appropriate as a parent faced with a child who may have been sexually interfered with. She firmly believes that she did what any concerned parent would do. While the mother recognizes that the father is a caring and loving parent and that there is a close bond and attachment between him and SSR, she believes he is unwilling to acknowledge the risk the boys present to their younger sister. Therefore, he fails to protect her.

[32] She asserts that SSR has been sexually assaulted while in his care by his son, DR, SSR’s half-brother or both of her half-brothers. She does not trust that the father or his mother will always be in SSR’s presence. She does not trust him or the paternal grandmother to protect SSR.

[33] The mother feels that only supervised parenting time will protect the child.

[34] She is frustrated as she does not accept that the CAS, police, Sick Kids Hospital, SCAN, or Chantel’s Place have adequately investigated.

[35] The mother is frustrated that no agency has confirmed her concerns. She feels that her daughter is speaking out and no one is listening. She also asserts that the child’s eczema and demeanour improve when she does not see her father.

[36] The mother has asked for the production of the father’s work schedule and home video surveillance since June 2022. She asserts that the father has allowed SSR to be in his home, likely in the care of his sons, contrary to agreements or court orders concerning his parenting time.

Father’s Position

[37] The father seeks to reverse primary care for SSR or expand unsupervised parenting time.

[38] The father acknowledges that the mother loves SSR. His concern is that the mother’s repeated allegations of seeking out physical examinations of SSR and conducting daily examinations herself are damaging to SSR.

[39] The father has been active and involved. The parties separated when SSR was very young, and he maintained daily or alternating daily basis for 2 hours, then increasing to 4 hours. He has had very little “regular” parenting time. He has had SSR in his care for three overnights to date. He has maintained his desire to be a fully involved parent in SSR’s life. He persevered when the mother stopped his parenting time, insisted that she be present, insisted on supervised parenting time, etc.

[40] He asserts that SSR has always been in his primary care or that of his mother’s care. At no time have the boys had primary care of SSR. Much of the father’s parenting time has occurred during the day for 2 to 4 hours, sometimes in the mother’s presence or the community. In December of 2023, his parenting time was supervised by Renew Supervised Services.

[41] The father asserts that the mother defames his two sons, who have done nothing untoward towards their sister, whom they love.

Report and Investigations

[42] The mother’s reports of sexual abuse of SSR started in January 2023. SSR was 19 months of age.

[43] In January of 2023, CAS was contacted by a physician from SCAN when the mother attended with the child and indicated that SSR was sexually assaulted while in her father’s care by his teenage sons. The mother stated that she noticed cuts on the side of the child’s vagina after returning from the father’s house that was healed. There were no current injuries. The mother also noted that the child came home and appeared more upset and fussy with diaper changes and stated, “Dado is bad,” referring to a half-brother. The mother reported these concerns to her pediatrician on January 20, 2023, who referred her to SCAN. There had not been any disclosure of abuse or touching. Sick Kids chose not to examine SSR due to a lack of forensic evidence. They reported that the mother was upset, hysterical, and frustrated with how things were being handled.

[44] In January 2023, the parenting schedule was 4 hours every other day with the father. The mother then stopped the visits.

[45] In February 2023, the pediatrician confirmed with CAS that she had not observed any injuries in January 2023. She also reported concerns about SSR’s eczema and weight. The doctor did not believe that the mother was compliant with the cream that she needed to be using, as SSR’s eczema was not under control. The mother uses only natural products, such as cocoa butter, not steroid cream.

[46] CAS did a home visit with the father. No concerns were identified.

[47] The mother had concerns that her daughter was refusing diaper changes, was opening her mouth oddly, and had cuts on her vagina that had since healed. The mother believed that the father’s sons may have done something and requested that the father ensure they would not be alone with SSR and only allow parenting time without the boys present and during the daytime.

[48] In March 2023, a physician from Sick Kids contacted CAS because the mother had reported concerns about SSR being sexually abused in her father's home. The concerns were based on new irritation around the vaginal and anal areas, as well as a cut in the perianal region. SCAN examined the child, and no concerns were noted.

[49] The March 24, 2023, examination was the only examination completed by SCAN in 2023. The doctors noted that the child had a completely normal hymen.

[50] The mother’s narrative later changed as she claimed to have seen blood in the child’s diaper and that SCAN chose not to look at the diaper. The report does not note any issue concerning a diaper; the report was reviewed then with the mother.

[51] In June 2023, SSR tested positive for HSV-1, specifically eczema herpeticum (herpes simplex virus that develops in a patient with atopic dermatitis). Eczema herpeticum is an infection usually caused by the herpes simplex one virus or “oral herpes” – the virus that causes cold sores to appear around and inside the mouth or in other places. An eczema herpeticum happens when the herpes virus infects large areas of the skin. People with atopic dermatitis are more susceptible to skin infections in general, including eczema herpeticum, especially infants and young children. SSR has atopic dermatitis. The herpes simplex one virus is spread through skin-to-skin contact.

[52] On June 28, 2023, the mother reported to police and CAS that the child contracted the herpes virus and believed someone at the father's home contracted it.

[53] In September of 2023, the CAS re-opened their file after the mother complained about their investigations to date. The mother provided the same information related to the sexual assault as was previously given to the Society worker. The mother advised there was blood in the child's diaper on two occasions. However, the mother did not produce this diaper or a picture to show to any medical or CAS professional. The father advised he had never seen blood in the child's diaper. It is possible that blood in the child's diaper could be related to an open sore from her eczema condition. SCAN and Chantel's Place assessments were completed in January 2023. The examinations revealed no physical evidence of sexual assault or abnormality with the child's genital area. The mother also reported concern about the child returning from the father's home with no diaper on one occasion. The father said this was an oversight and did not realize the diaper had fallen off.

[54] The mother continued to report that the child was crying and scared when DR, her half-brother, was mentioned. The mother advised that the child would repeatedly say “dado bad" and provided a recording of the child crying and making this comment.

[55] It is noted that throughout the CAS investigation, the mother had many conversations in the child's presence despite privacy cautions. The mother would openly discuss the concerns and repeat the phrase “dado bad" in front of the child. The mother advised that the child would also have night terrors, waking up screaming. She also suggested that the SSR would violently refuse to be bathed or have her diaper changed.

Should the March 14, 2024 consent Order be changed?

[56] The temporary without prejudice Order of March 14, 2024, needs to be changed. The mother’s failure to abide by the Order and her repeated allegations and seeking physical examinations for SSR justify the court determining what parenting orders are in SSR’s best interests. The March 14, 2024 Order was a temporary without prejudice basis that was expected to be last until July 2024 when the motions were scheduled to be argued.

Legal Considerations for Parenting Orders

Considerations

[57] Subsection 24 (2) of the Children's Law Reform Act states that the court must primarily consider the child’s physical, emotional, and psychological safety, security, and well-being in determining best interests.

[58] Subsection 24 (3) of the Children's Law Reform Act sets out a list of factors for the court to consider related to the child's circumstances. It reads as follows:

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 a vital role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

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

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

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

[59] Subsection 24 (4) of the Children's Law Reform Act identifies family violence factors.

[60] Subsection 24 (6) of the Children's Law Reform Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests.

[61] Section 28 of the Children's Law Reform Act sets out the types of parenting orders the court can make. Clause 28 (1) (c) of the Children's Law Reform Act reads as follows:

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

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

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

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

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

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

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

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

[62] Subsection 33.1 (2) of the Children's Law Reform Act addresses the importance of the parties protecting children from conflict.

Best Interests

[63] The list of best interests’ considerations in the Act is not exhaustive. See: Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Instead, it calls for the court to take a holistic look at the child, their needs, and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[64] The court must ascertain a child’s best interests from the child's perspective rather than that of the parents. See: Gordon v. Goertz. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

[65] A party’s failure to protect a child from conflict may be important in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, 2022 ONSC 6510.

[66] The Court must also consider family violence. Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v. Baker, 2022 ONSC 4235.

What parenting time is in the best interests of SSR with her father, the father?

[67] SSR will be three years old in July 2024. When the parties separated, she was nine months old.

[68] After separation, the father exercised parenting time initially at his home for 2-hour intervals. The father had a dog, and it was believed that the child was allergic. The mother refused to allow parenting time to occur at the father’s home. The mother indicates the allergy was confirmed. The father says the allergy was not confirmed and that SSR’s symptoms continued after he gave away the dog. The mother allowed the father’s parenting time to resume.

[69] The mother is opposed to the father having parenting time while his sons are in his care and insists that only supervised parenting time will protect SSR.

[70] The mother alleges that SSR has been sexually assaulted by her older half-brothers (ages 14 and then 16).

[71] The mother blames the father or his family for the herpes infection in June of 2023. There is no basis for this.

[72] The mother has interrupted the father’s parenting time a number of times since separation. The father did not see SSR from June 27, 2023, until the case conference on November 27, 2023. On that date, supervised parenting time was agreed to.

[73] Allegations of sexual abuse have been investigated by Sick Kids, SCAN, Chantel’s Place, the Peel CAS, and the police. No one has established that anything inappropriately sexual has happened to SSR.

Events March 2024 and forward

[74] The events from March 2024 forward are also relevant to determining what the parenting arrangements should be. The parties entered into a Consent Order on March 14, 2024. They spent the entire court day negotiating the terms.

[75] Unbeknownst to the father, the mother had reported sexual abuse concerns earlier in the week.

[76] On March 8, 2024, the mother noticed that SSR was walking funny after the father’s parenting time. The father also noted a gait issue.

[77] On March 11, 2024, the mother took SSR to Chantel’s Place, reporting that SSR said, “No, it’s mine,” when the mother attempted to apply Vaseline to her vagina.

[78] The mother reported that SSR said that her bum bum and vajay hurt on March 11, 2024.

[79] The mother told the CAS and Chantel’s Place that the boys were present at the father’s residence during parenting time on March 8th and 10th. The father asserts that the boys had not been present.

[80] The Chantel’s Place nurse practitioner advised the mother and CAS that SSR’s saying “no” is age-appropriate developmentally.

[81] On March 12, 2024, the mother took the child to a walk-in clinic to have the child’s gait assessed. A genital examination was aborted when the child was crying so much. The mother says that this was merely an examination of the child’s legs, feet, ankles, knees and hips.

[82] On March 12, 2024, the mother contacted Chantel’s Place, asking them to contact Peel CAS. She also calls Peel CAS, insisting that a file be opened and that the worker do her job.

[83] On March 13, 2024, the mother attended at Chantel’s Place with SSR. A physical examination in the frog position was completed, and labial separation and traction were performed. An annular hymen with a smooth, uninterrupted edge was observed. No lesions, redness or discharge were noted. The anal exam was unremarkable.

[84] The mother’s standard practice is to examine SSR’s genitals and apply Vaseline after bathing. The mother’s daily examinations of the child include digital separation of her labia to look inside. The mother’s examination occurs after any bowel movement. The mother says this is normal and needed as a child of this age does not always clean herself properly. Chantel’s Place has advised the mother that opening the labia and looking inside the vagina is not common hygiene practice. It is intrusive and could be painful.

[85] On March 13, 2024, the mother contacted a counsellor from Every Mind/Tangerine Walk-In Counselling by sending an urgent email requesting general information about what the symptoms of sexual abuse look like in a toddler, such as refusing a diaper change. This agency is a mental health counselling service for infants, toddlers and children. The mother has accessed their services every few months since early fall 2023.

[86] On March 14, 2024, Peel CAS contacted Chantel’s Place. The Nurse Practitioner shared her concern that repeated genital examinations done at the mother’s request by health care professionals are unnecessary, intrusive and could be painful.

[87] In 2024, SSR has been genitally examined four times. No findings have been confirmed sexual abuse. The examinations in 2024 occurred at SCAN on March 24, 2024, Chantel’s Place on March 13, 2024, the aborted walk-in clinic assessment on March 12, 2024, and the pediatrician also did a physical examination in April 2024. Chantel’s Place has expressed concerns that the mother continues to seek sexual assault examinations of the child and that she conducts daily examinations of the child, including separating the labia and looking in the vagina.

[88] At the March 13, 2024, examination at Chantel’s Place, SSR grabbed her feet and opened her legs to allow the nurse practitioner to look.

[89] The normalizing of an intrusive genital examination creates a risk of emotional and physical harm to the child.

[90] The father was not aware that the mother attended the walk-in clinic or at Chantel’s Place twice when the March 14th, 2024, court attendance and negotiations occurred.

[91] On March 22, 2024, CAS met with the mother to address its concerns that the mother’s ongoing intrusive measures of taking SSR to doctors to be vaginally inspected and doing her own vaginal inspections at home could place the child at risk of emotional or physical harm. The mother continued to assert that despite the extensive evidence that she had provided, SCAN, Chantel’s Place and the police have all stated that molestation and fondling are not ruled out. She did acknowledge that the abuse had not been verified.

[92] On April 5, 2024, the mother indicated that that SSR had allegedly said “DR and SR touched my bum bum and vajj” on her way to daycare and that the comment had been repeated to a daycare staff person. I will address the evidence of AB, the daycare assistant director, later.

[93] The mother stopped the father’s parenting time on April 5, 2024. She was aware that the father had a family celebration planned for April 6-7th while SSR was to be in his care for his birthday. The mother attended the father’s residence with SSR on April 6, 2024. She was prepared to allow some parenting time in her presence, at his home or her home.

[94] The mother then made another report to the police. The Police indicated that no new investigation would be opened as the allegations had already been investigated.

[95] On April 11, 2024, at the mother’s insistence, Dr. N, SSR’s pediatrician, wrote a letter to the CAS advising that SSR said a half-brother had put his finger into her vagina. Dr. N examined SSR and found no concerns. This was the fifth examination of the child in 2024, the sixth in total. The mother then asked that the letter be edited to remove SSR’s comments that she liked her half-brothers.

[96] Both parents disclosed what SSR was saying to them. The father reported that while SSR was in his care, she spontaneously said, “Daddy, Mommy told me today that DR and SR hurt me.” He asked her to repeat it and recorded the statement. The statement was provided to Peel CAS.

[97] Dr. N advised CAS on April 18, 2024, that she believes the mother is putting words in SSR’s mouth. She queries the need for the mother to be assessed for underlying psychological issues that may be the root of the mother’s behaviour. Dr. N indicated that she did not know if the mother had a mental health issue but felt the mother would benefit from psychotherapy. The mother presents with a particular psychological presentation/personality trait that makes her more challenging to deal with, such as being persistent and adamant about her ideas and beliefs. Dr. N has a long-standing relationship with the mother, her older daughter and SSR and has been able to work with her. Dr. N noted that the mother does not follow medical advice at times, including the treatment of the child’s eczema and three other examples. Dr. N acknowledges that the mother will not be happy about her statements. CAS reports Dr. N verbatim and has confirmed it with the doctor. The mother later calls CAS to report that the report is false. CAS called Dr. N to re-confirm her statement.

[98] The mother attended Every Mind Counselling's walk-in clinic on April 19th and 22nd, 2024, requesting an examination of SSR. She wanted the agency to make a report to CAS.

[99] On April 22, 2024, the mother contacted CAS, questioning why they had not opened another investigation into the father’s care of SSR and the risk of sexual harm. CAS advised that the concerns were previously investigated, and the two collateral sources were concerned about the mother’s level of influence with respect to SSR’s comments.

[100] No independent parenting time occurred between April 5th to May 11, 2024. The father saw SSR at an allergist appointment on April 9th, driveway visits in the mother’s presence on April 16 and 27, a short walk on April 28, a bike ride on April 30, and a McDonald's meal on May 1, 2024.

[101] On May 9, 2024, the mother took SSR for a consultation for a mental health assessment.

[102] On May 10, 2024, the mother asked the father if he wanted to see SSR on Saturday, May 11, 2024. This was a day that the father would have the boys in his care. The mother indicated that parenting time could occur as long as the boys were not left alone with SSR. Parenting time occurred on Saturday, May 11, 2024, from 10:00 a.m. until 9:00 p.m., not overnight.

[103] May 12, 2024, Mother’s Day, SSR spends with her mother.

[104] The mother then makes further allegations related to the parenting time day on May 11, 2024.

[105] On May 13, 2024, the mother again asked the father if the boys would be with him. When he declined to answer, she said his parenting time must occur at McDonald's.

Analysis of the Evidence

[106] A plethora of affidavits have been filed for these motions.

[107] The mother has filed affidavits dated February 9, 2024, April 16, 2024, May 2, 2024, May 9, 2024(2), and May 16, 2024, and affidavits of AB, her daughter, sworn February 9, 2024, and April 16, 2024, HR, her mother, sworn April 16, 2024, and KW, a law clerk, sworn April 19, 2024.

[108] The father has filed affidavits sworn April 10, 2024, April 17, 2024, April 23, 2024, and May 16, 2024; CR, his ex-wife, sworn May 2, 2024; and RP, his mother, sworn May 2, 2024.

The father’s ex-wife’s evidence

[109] CR, the mother of the boys, provided an affidavit. She was married to her father for ten years. They have two sons, who are now ages 14 and 17 and are in high school. She speaks of a positive co-parenting relationship with the father. Her current partner has two children from a previous marriage, and they have one daughter together. She describes the family as close-knit, and they celebrate holidays and other special occasions together.

[110] Her evidence also speaks to conflict with the mother—one text discussion centred around the mother calling SR gay about three years ago.

[111] CR knows SSR. She believes that SSR has a wonderful relationship with DR and SR, her daughter, and her partner’s children. SSR has spent time at her home with her father and family. SSR enjoys playing hide and seek, throwing a ball and playing peek-a-boo with her half-brothers.

[112] CR’s affidavit describes her sons as ordinary teenage boys. The boys volunteer at local food shelters, community clubs, and their Church. The boys are in high school and doing well. They are active in their community. They have had no police involvement. The mother says that the boys’ volunteering is part of the high school requirement and diminishes these efforts.

Paternal Grandmother

[113] RP, the paternal grandmother, provided affidavit evidence. The father resides in her home. RP also resides with her partner of 24 years. RP enjoys her role as grandmother to the two boys and SSR. She watches the children play and take delight in each other as siblings.

[114] RP is outraged at the mother’s allegations against SSR‘s half-brothers. She believes that the children are firmly and appropriately bonded. She also confirms that the boys have not been SSR’s caregiver. If the father is not available, she has cared for SSR.

[115] She also confirms the boys’ excellent character and her pride in her grandsons.

[116] RP takes significant exception to the mother and the maternal grandmother, who assert that she would not protect SSR. She is very concerned about the allegation that SSR has inserted her finger into her vagina and her doll’s vagina, claiming that the brothers did that to her. RP has observed SSR playing with nine different dolls, and nothing such as this has occurred.

[117] The parents do reside close to each other, approximately 4 minutes apart. RP does notice the mother driving by to see if SSR is in her father’s care.

Daycare

[118] On April 5, 2024, the mother reported that SSR made important statements on her way to daycare. The mother then asks AB, the assistant director of the daycare, to come to the office. AB arrived, and the mother reported that SSR made a disclosure in the car to her and asked if she could be her witness. Mom then proceeded to instruct SSR to “tell Miss AB what you told me in the car.” The mother repeatedly instructed SSR to tell AB what the mom was referring to. The mother repeated “tell her” a few times. SSR said SR and DR hurt her. The mother asked SSR to say where she was injured. After several more “tell her” directions, SSR pointed to her bum.

[119] As a daycare professional, AB reported the conversation to CAS under her duty to report any disclosure. She did indicate her level of concern about the mother’s influence on the child’s statements.

[120] The mother also contacted the police on this day.

[121] The mother followed up with Peel CAS, questioning why a new investigation had not been opened regarding SSR’s statements in front of AB.

[122] On April 23, 2024, the mother advised CAS that their report of what AB reported to CAS was inaccurate and that AB was upset and would be filing a complaint. CAS spoke to AB again. AB confirmed the CAS report. She stated the mother is putting words in her mouth.

SSR’s older half-sister AB

[123] AB is the mother’s older daughter. She supports her mother’s position with respect to SSR’s risk of harm in her half-brothers’ care. Her evidence is focused on the risk and character of DR and SR based on her involvement with them when the parties dated.

[124] In the spring of 2020, when DR would have been 10, DR and AB’s cousin were playing basketball. AB alleges that DR picked up a piece of glass on the driveway and threatened to cut his wrists during the next hour with the other two children present. No injury occurred.

[125] During the winter of 2021, at the time of DR’s grandmother’s death, AB alleges that DR texted AB that he wanted to kill himself. AB told her mother, and her mother contacted his father.

[126] She also speaks to DR’s sexual interest in her tik-toks, SR’s touching of her from behind and a comment with respect to her body part. It is noted that the comment is a text and is shown in isolation, and the whole conversation is not provided.

[127] AB also confirms some of her mother’s observations regarding SSR.

[128] The evidence of AB speaks to some teenage conduct and some concerning behaviour. None of the information raises the level of risk of harm to SSR by her half-brothers. It is also dated.

[129] The maternal grandmother also provided an affidavit.

Who should have primary care of SSR? What parenting arrangements should be in place for SSR?

[130] I find that SSR should reside in the primary care of her father at this time. The mother’s repeated seeking of physical examinations, her daily examinations, and her continual reporting of sexual abuse without justification means that the child’s best interests require her to reside in her father’s household.

[131] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266; K.M. v. J.R., 2022 ONSC 111. This also applies to contact orders. See: F.S. v. N.J. and T.S., 2024 ONCJ 199.

[132] The mother is continuing to seek out physical examinations of the child in support of her belief that SSR has been abused.

[133] The mother has repeated old allegations that have already been investigated in an effort to have the CAS, police or Sick Kids investigate whether the child has been sexually abused. She does not accept any professional’s opinion on this issue.

[134] Her conduct is concerning. The mother is opening the labia and looking inside the vagina. This is not common hygiene practice, according to Chantel’s Place. Professionals are concerned about the normalization of such an intrusive physical examination and that such examinations could be painful to the child.

[135] The pediatrician and SCAN’s concern is that the mother is not following medical recommendations and that SSR does not need further examinations. It has been stressed to the mother that it is not necessary because, eventually, this can cause some harm to SSR. One of SCAN’s main worries is that the mother may take SSR to be examined by other medical professionals who do not have the expertise in doing these examinations.

[136] SSR has shown no signs of sexual misconduct, sexual mistreatment or sexual abuse.

[137] SSR continues to have a close and loving relationship with her father. He also has a loving relationship with his sons. He is clearly committed to his family and extended family. There is no evidence to suggest that he would not protect SSR from anything untoward or inappropriate. There are no concerns with respect to his care of SSR.

[138] Both parents indicate that SSR is an intelligent, engaging toddler. She is thriving in preschool. The mother wishes the court to take notice of the child’s intelligence and place significant weight on her reported comments of harm to her mother. The court does not accept this position. SSR is 3. Also, professionals have noted concern about the mother’s influence in her questioning of SSR.

What should be the parenting schedule for SSR?

[139] The next issue is what parenting time should the child have with her mother. I find that the mother’s parenting time needs to be supervised at this time. The mother has been cautioned that the seeking of physical examinations is unneeded and potentially harmful. She has continued to do so, and in 2024, her efforts have escalated. The mother has been cautioned against daily physical examinations. She continues to do so. She separates the labia and looks inside. This is not an appropriate hygiene practice. She has been advised that the examination is invasive and possibly painful. Only supervised parenting time will ensure the mother’s examinations end.

[140] Supervised access is beneficial for children who require gradual reintroduction to a parent or whose safety requires it until the parent is sufficiently rehabilitated. The child is no longer in danger of physical or emotional harm. See: Najjardizaji v. Mehrjerdi, 2004 ONCJ 374, [2004] O.J. No. 5472 (OCJ); I.O. v. I.G., 2023 ONCJ 520.

[141] Miller v. McMaster, 2005 CarswellNS 420 (N.S. S.C.): "supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following:

a) Where the child requires protection from physical, sexual or emotional abuse;

b) Where the child is being introduced or reintroduced into the life of a parent after a significant absence;

c) Where there are substance abuse issues; or

d) Where there are clinical issues involving the access parent.

[142] A court may restrict access if a parent uses access as an opportunity to denigrate the other parent. See: J.M. v. M.M., [2000] O.J. No. 142 (SCJ); Frost v. Allen, [1995] M.J. No. 111 (Man.QB) - where denigration severe, access denied.

[143] I find that the mother has influenced the child to make statements against her half-brothers. I also find that the mother has repeated her theories in front of the child, which could influence the child in and of itself. The repetition of “bad dado” by the mother could also affect the child.

[144] The parenting time order will be for supervised parenting time by the mother with SSR at an agency or in the presence of the father or his designate. The mother will be prohibited from bathing, changing, or addressing toiletry issues with the child.

[145] The mother shall be prohibited from denigrating the father or the half-brothers during her parenting time.

[146] In the event that the father or his designate supervises the mother’s parenting time, and if, in the father’s opinion, the mother breaches the order, the parenting time shall be suspended, and the parenting time shall only occur at an agency.

[147] The child must be protected from unneeded and inappropriate physical examinations. She must also be protected from hearing inappropriate conversations.

[148] It is hoped that the mother will use the next few months to participate in psychotherapy. Therapy will not be part of the Order, but it is encouraged, and a copy of this decision should be shared with any treatment provider. She clearly loves her daughter and wants what is best for her. For some reason, she is unable to accept the findings of professionals and has continued her search for a finding of harm by the half-brothers against their sister.

Work Schedule

[149] The mother seeks two years of the father’s work schedule in order to establish that he has not always been present during his parenting time. The father opposes this relief. He asserts that he has followed the court orders with respect to his parenting time and the terms outlined therein.

[150] I decline to make this order. Such an order would be a fishing expedition on irrelevant information. I note that no agency has confirmed that anything has happened to SSR inappropriately.

Video Surveillance

[151] The mother seeks two years’ worth of the home security system through Rogers. The father indicates that his plan would not cover two years’ worth of video clips. He opposes the relief on the basis of privacy.

[152] The mother seeks to know who is coming and going out of the father’s home. She believes that the production of the records will allow her to establish that SSR has been left in the care of her half-brothers.

[153] The mother advised that she and the father reside in the same neighbourhood. She was driving to get groceries when she saw an older black male wearing a winter hat on the father’s porch. She believes that the male was one of the father’s sons and that the father had left SSR alone in the care of her half-brothers. A screenshot of a male on the porch was included in the evidence.

[154] I decline to make this order. I also note that even if the half-brothers were responsible for the care of SSR, it could only have been for a very short time, given the scarcity of time that the father has had SSR at his home. Also, the paternal grandmother and grandfather reside in the house. Most importantly, I note that no agency has confirmed that anything has happened to SSR inappropriately.

[155] RP’s affidavit includes screenshots of someone on the front porch camera. It is a silhouette of a person. Identification would not be relevant or determinative of any parenting issues before the Court.

Section 30 Assessment – OCL

[156] SSR is almost three years old. A Section 30 assessment may be helpful. I adjourn this issue to July 15, 2024, at 10:00 a.m.

Medical Records

[157] On May 13, 2024, Dad asked Dr. N for SSR’s medical records.

[158] Dr. N’s office refused as the mother is the primary care parent. The mother refused to consent to the disclosure.

[159] The mother texted and emailed the father: – Let me VERY clear, you have NO LEGAL RIGHTS to my child!

[160] The police then attended the father’s residence on May 15, 2024, as the mother had reported the father to them regarding the medical records request.

[161] The mother then decided to consent to the disclosure.

Current CAS Investigation

[162] The Peel CAS file has been re-opened, and a current investigation has been opened regarding the mother’s actions in continuing to do and seek out physical examinations of SSR. The Court places no weight on the fact that there is currently an open investigation. There have been a number of investigations by CAS in the past into the alleged events occurring in the father’s home, and no concerns have been verified. No findings have been made by the CAS at this time other than post-separation conflict.

May 30, 2024

[163] The parties attended in court to hear the decision today. SSR is at the daycare today and the Applicant father will pick her up today from the daycare.

Order

1. The Applicant father shall have primary care of SSR, born June 14, 2021.
2. The Applicant father shall ensure that the child SSR, born June 14, 2021, shall attend her same daycare and retain the same pediatrician.
3. The Respondent mother shall have supervised parenting with the child as follows commencing May 31, 2024: a. Up to 3 times per week or more if agreed upon by the parties; b. The parenting time may occur at an agency at her expense or in the presence of the father or his designate; c. The Respondent mother shall not bathe the child. d. The Respondent mother shall not take the child to the bathroom or change the child during her parenting time. e. The Respondent mother shall not address toiletry issues with the child.
4. The mother shall be prohibited from denigrating the father or the half-brothers during her parenting time.
5. If the Applicant father or his designate supervises the Respondent mother’s parenting time and the Applicant father believes that the Respondent mother is in breach of the Order, the parenting time shall be suspended and shall only occur at an agency.
6. The child SSR born June 14, 2021 shall not be brought to any medical appointment without both parties being advised and Peel CAS being advised of the appointment in advance in writing.
7. The issue of a section 30 assessment by the OCL shall be adjourned to July 15, 2024, at 10:00 a.m., courtroom #210. The 17F confirmations only for July 15th, 2024 to address costs, the OCL and the parenting time for the Respondent.
8. The child support order contained in the November 27, 2023 Order shall be suspended as of today.
9. SDO to issue.
10. All other claims dismissed.
11. Approval of the Order for self-represented parties is waived.

COSTS

In the event that the parties are not able to resolve the issue of costs of the Motion, written submissions may be forwarded as follows:

1. The Applicant shall serve and file submissions within 15 days
2. The Respondent shall serve and file submissions within 15 days thereafter;
3. The Applicant shall serve and file any reply submissions within five days;
4. Submissions shall be restricted to three pages, double-spaced and 12-point font, not including Bills of Costs and any relevant Offers to Settle. Reply submissions shall be restricted to two pages.
5. Parties are to file electronically to Brampton.OCJfamilycourt@ontario.ca
6. CA to send submissions to chambers upon expiry of the two deadlines.

Released: May 30, 2024 Signed: Justice Joanne Beasley