COURT FILE NO.: 4671/09 (St. Thomas)

DATE: 20120503

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

John Wainwright

Applicant

– and –

Terrie Wainwright

Respondent

Malcolm Bennett, for the Applicant

Mark A. Shields, for the Respondent

HEARD: September 26 & 27, 2011

Further Information November 3, 2011

Draft Judgment Released March 27, 2012

Nolan J.:

JUDGMENT

Introduction

[1] This matter involved a little girl named Ellie who was not yet four years old at the time that this trial started. Her parents have been separated since she was just over a year old. Ellie will have no memory of living together with both of her parents. Much of her life to date has been directed by court orders, many of them finally made on consent between two parents who have not spoken to each other since separation, and have found no other effective way of communicating with each other.

[2] The evidence in this case was completed in two days and the issues narrowed by the parties by way of Minutes of Settlement filed at the beginning of the trial, leaving only two issues for me to determine. However, this trial raised other issues which relate to part of the Minutes of Settlement dealing with future dispute resolution that are anything but simple. It is for that reason that I have divided this judgment into two parts: the first part deals with the two issues that were to be determined at trial:

1. The location for the exchanges of Ellie by her parents; and

2. How and by whom decisions about education are to be made in the future by Ellie’s parents.

The second part of the judgment deals with issues raised by certain paragraphs of the Minutes of Settlement.

Background and History of the Litigation

[3] Mr. and Mrs. Wainwright started living together in 2002 or 2003. They married on October 8, 2007, just a few months before the birth of their child Elizabeth Ruth Christine Wainwright (Ellie) who was born on […], 2008.

[4] Mr. Wainwright is currently a full-time student at Fanshawe College where he is in the Programmer Analyst program. He is not employed, even on a part-time basis, and is financing his education and child support for Ellie by cashing in his pre-marriage RRSPs and by receiving financial assistance from his mother. When he completes his program in June 2013, Mr. Wainwright will be qualified to obtain work as a Programmer Analyst, a position which involves developing applications for computers.

[5] Mr. Wainwright’s course began in January 2011. He had worked for a tool and die company for five or six years but was laid off near the end of 2010. He had started working there as a machinist, but moved into the engineering department where he began doing programming of the company’s proprietary software. After Mr. Wainwright was laid off, it was unclear from his evidence whether he attempted to get another job or decided to go back to school instead. It was his evidence that, although he was doing programming at the tool and die company, his formal education in programming was 14 years earlier and that he needed to update those skills to obtain another position in that field of work.

[6] Mrs. Wainwright is a pharmacy technician and has been employed in that capacity for some time at a Rexall pharmacy in London. She worked in London while she and Mr. Wainwright were living together. They moved to St. Thomas in 2005 or 2006 so that Mr. Wainwright would be closer to his work in Aylmer, Ontario. She continued to work in London.

[7] In October 2008, after Ellie was born and near the end of her maternity leave, Mrs. Wainwright went back to school part-time to become qualified as a Registered Pharmacy Technician. These studies consisted of four courses, each lasting for three months, with classes taking place one evening per week.

[8] Mrs. Wainwright completed her courses to become a Registered Pharmacy Technician in December 2010 and wrote the qualification examination on September 10 and 11, 2011, just before the commencement of the trial. She testified that she was expecting the results of the exam on December 9, 2011, and was optimistic that she had been successful. Being registered will permit her to dispense medication and will provide Mrs. Wainwright with an increase in pay, job security and additional opportunities to obtain more lucrative employment. One of those opportunities could be in a hospital pharmacy where the pay and benefits would exceed that of her current employment. She said, however, that she enjoys the job she currently holds and expects that her pay will increase once she receives her new qualification.

[9] The parties separated on March 23, 2009, after an incident at the matrimonial home in St. Thomas which resulted in Mr. Wainwright being charged with assault. He pleaded guilty, and was sentenced to probation for 15 months with a provision that there be no contact between him and Mrs. Wainwright except through counsel. A further provision of his probation order required Mr. Wainwright to attend a number of programs including “Changing Ways”, a program for persons who have been perpetrators of domestic violence, the “Caring Dads” program which works with fathers who have exposed their children to abuse and programs for the treatment of substance abuse problems.

[10] Following the separation, Mr. Wainwright moved to London where he lives with his mother. Mrs. Wainwright continues to live in St. Thomas. Mr. Wainwright commenced this application in which he sought among other things, an order for custody of Ellie or in the alternative, an order for specific access to Ellie. He also sought child and spousal support, an equalization payment, and a division of household contents. All of these issues were resolved either by agreement or court order prior to trial. Mrs. Wainwright filed an answer in which she sought custody of Ellie as well as other financial and property relief.

Order of McGarry J.

[11] On April 8, 2009, approximately two weeks after the separation, McGarry J. made an order on consent that on an interim/interim, without prejudice basis, Ellie would be in the care of Mr. Wainwright every weekend from Friday at 11:30 a.m. to Saturday at 6:00 p.m. and every Sunday from 9:00 a.m. to 6:30 p.m., with those periods being supervised by Mr. Wainwright’s mother. Except for those times, Ellie would be “in the care and control” of Mrs. Wainwright. As well, Mrs. Wainwright was granted exclusive possession of the matrimonial home and possession of a 2006 automobile. The order also provided that Mr. Wainwright could not have any contact with Mrs. Wainwright directly or indirectly. The order provided that the transfers of Ellie between her parents would occur at the Tim Hortons on the south side of the 401 Highway at Wellington Road and that Mr. Wainwright’s mother would facilitate the transfers.

[12] This early order of McGarry J. brought some consistency to Ellie’s schedule. Mr. and Mrs. Wainwright, however, were unable to communicate with each other, partially because of the order of McGarry J. and subsequently because of the terms of Mr. Wainwright’s probation. Even after that prohibition was lifted by the termination of the probation order, Mr. and Mrs. Wainwright have been unable to communicate directly.

Orders of Granger J. and Marshman J.

[13] When Christmas 2009 approached, Mr. Wainwright brought a motion for “Christmas access”. Granger J. granted an order on consent which determined that Ellie would spend approximately equal time with each parent over the Christmas holiday in 2009.

[14] On December 21, 2009, Marshman J. granted an order, again on consent, deleting the requirement that Mr. Wainwright’s mother supervise the time that Ellie was with her father from the order of McGarry J. providing that Ellie’s health card would go back and forth between the parents with Ellie, and that each party must notify the other if Ellie’s health card was used.

[15] On May 10, 2010, another order was granted on consent by Granger J. which provided that Mr. Wainwright would commence paying child support on May 1, 2010, in the amount of $269 per month plus an additional $23 per month as his contribution to Ellie’s daycare, based on an annual income of $29,874. Prior to the sale of the matrimonial home in December 2009, Mr. Wainwright paid the mortgage in lieu of paying support.

[16] Granger J.’s order provided that $2,500 would be paid out of net proceeds of the matrimonial home being held in trust to Paula DeVeto, a mediator, with the amount attributed equally to each party, that monies would be paid out to discharge the CIBC line of credit, the motor vehicle loan with BMO, and that $15,000 would be paid out to each of Mr. Wainwright and Mrs. Wainwright, with the remaining sale proceeds to continue to be held in trust. As well, an appraiser was appointed who would appraise all of the contents and vehicles in the possession of each of the parties as of March 22, 2009, and the parties would each pay his or her portion of the appraisal.

[17] The same order of Granger J. provided that both Mr. and Mrs. Wainwright would be entitled to full and complete access to all Ellie’s records and documents including the right to meet and discuss issues related to Ellie with the persons involved in her health, education or welfare. The daycare which Ellie attended was required to “black out” Mrs. Wainwright’s contact information on all of their records so that it was not available to Mr. Wainwright. At the same time, the order provided that both Mr. and Mrs. Wainwright would be identified as Ellie’s parents in the records of any daycare or school which Ellie attended and both would be designated as the contact persons.

[18] The order also provided for the transfer of a vehicle from Mr. Wainwright to Mrs. Wainwright with the provision that Mrs. Wainwright would be responsible for the insurance on the vehicle. As well, Mrs. Wainwright was to reimburse Mr. Wainwright for the payment of a water bill in the amount of $143.34.

[19] I provide the details of these and other orders as I am of the view that they are instructive as to the lack of trust between Mr. and Mrs. Wainwright. Although provisions of the orders were eventually reached on consent, court intervention was necessary in dealing with even the most trivial issues between the parties.

Order of Haines J.

[20] On December 20, 2010, Haines J. granted an order, also on consent, which provided as follows: Mr. and Mrs. Wainwright would jointly parent Ellie in “a parallel parenting mode.” They would consult with each other on any major decisions affecting the health, education or welfare of Ellie, either directly or through a third party, that they must attempt to make decisions affecting Ellie jointly and “if necessary, follow the advice and recommendations of the child’s doctor, dentist, teacher, or other such person who is responsible for the child’s welfare on such issue.”

[21] The order also provided that Mr. and Mrs. Wainwright would permit each of them to take Ellie to their church during the time that Ellie was with each of them, and that each could book activities for Ellie during the time that Ellie was with each of them that did not impact on the time of the other. If the activity would impact on the other parent’s time, it could only be arranged with the consent of the other parent.

[22] The order went on to provide that there would be a two week repeating schedule for Ellie as follows: in week one, Mr. Wainwright would pick Ellie up from daycare on Wednesday and keep her overnight until Thursday morning when he would drop her off at daycare. On Friday evening he would pick Ellie up at daycare and keep her until Monday morning when he would drop her off at daycare. In week two, Mr. Wainwright would pick Ellie up from daycare on Wednesday and she would be in his care until Friday morning when he would drop her off at daycare.

[23] Ellie would be with Mrs. Wainwright in week one from Friday when she would pick Ellie up at daycare until the following Wednesday morning when she would drop Ellie off at daycare. She would then pick Ellie up from daycare on Thursday and drop her off at daycare on Friday morning. During week two, Mrs. Wainwright would pick Ellie up at daycare on Monday and Ellie would be with her until Wednesday morning when she dropped her off at daycare. On Friday she would pick Ellie up at daycare and Ellie would be in her care until she dropped her off at daycare on Wednesday morning of the following week.

[24] The order also provided that the pick up and drop off for Ellie’s transitions between her parents would be at the daycare, if that was permitted by the daycare or, if that was not possible, the exchanges would be at Merrymount Children’s Centre “or such other means and location as agreed by the parties.” The order went on to provide for an alternating schedule for Christmas holidays starting in 2010, when Ellie would be with Mr. Wainwright from December 24 at 10 a.m. until December 30 at 6 p.m. Ellie would be with Mrs. Wainwright from December 30 at 6 p.m. until January 3 or, once Ellie was in school, until the first day back to school. In odd numbered years commencing 2011, the time with Ellie would be reversed.

[25] The order also provided for Mother’s Day, Father’s Day, an alternating of Thanksgiving and Easter holidays and an equal division of March break with the transition on the Wednesday at 2 p.m. As well, the order provided that the parties would attempt to accommodate a request by the other parent for a switch in the “access schedule” to accommodate special occasions.

[26] The order went on to direct that the parties communicate in a respectful manner about issues involving Ellie and her care and that they do so only by e-mail or text or through a third party, except in the case of an emergency. The order also provided that Mr. Wainwright’s mother, who is a physician, was not allowed to prescribe medication, provide medical treatment, order testing or make referrals for Ellie.

[27] Child support was reduced to $200 per month commencing January 1, 2011, and was to be reviewed on or after June 1, 2011. The order went on to provide that the parties would contribute their proportionate share to any special or extraordinary expenses, provided that the parties had consented to the expense in advance in writing, and that consent would not be unreasonably withheld. As well, the parties agreed to contribute their proportionate share to any medical costs for Ellie that were not covered by benefit plans and to the cost of any employment-related child care, over and above any subsidy or benefit that was received on Ellie’s behalf.

[28] Mr. and Mrs. Wainwright’s claims for spousal support were each dismissed.

[29] The order went on to deal with some procedural matters related to the divorce itself, proof of the transfer of the vehicle that had been referred to in an earlier order and a requirement that Mrs. Wainwright provide Mr. Wainwright with a notarized copy of Ellie’s birth certificate and health card within seven days. A specific provision required that “Paula DeVeto, social worker, is hereby appointed and authorized to deal with the child’s daycare in order to facilitate using the child’s daycare for the purposes of transitioning the child between the applicant and the respondent.”

[30] Although the order is identified as a Temporary Order, it appears to settle many of the issues on a final basis except for the following, which were left to be determined by the trial judge:

1. Arrears of child support, any equalization payment to be paid by either party, and the following as set out in paragraph 17 of the order:

2. There remain issues for agreement or determination by the court, being as follows:

a. As to important decisions affecting the education or health of the child, the parties cannot agree whether this issue, failing their agreement, should be decided by one of them or submitted to mediation and arbitration for a final decision.

b. The issue as to ownership of contents and entitlement to possession of the contents has not been agreed.

c. The above two issues shall be submitted for determination by the court.

The Minutes of Settlement Filed at Trial

[31] On the first day of trial the parties filed a document entitled “Minutes of Settlement” as an exhibit, the provisions of which were to be included in the final order of the court to be granted after a determination of the outstanding issues. The Minutes dealt with summer vacation and how professional days/statutory holidays are to be handled by the parties in relation to Ellie. As well, the paragraph in the order of Haines J. of December 10, 2010, as to the specific days and times when Ellie would be with her mother were replaced by a provision that Ellie would be with Mrs. Wainwright at all times except when she is specifically with Mr. Wainwright as provided for in the court order of December 20, 2010. The parties agreed in their evidence at trial that this change in the wording as to Ellie’s residence was to facilitate and secure the daycare subsidy from the city of St. Thomas that was available to Mrs. Wainwright at the daycare in St. Thomas. Interestingly, the wording reverted to similar wording found in the order of McGarry J. made only weeks after the separation.

[32] The Minutes of Settlement went on to provide that both Mr. and Mrs. Wainwright are entitled to make inquiries and be given information from teachers, school officials, doctors, dentists, healthcare providers, counsellors, or any others involved in Ellie’s health, education and welfare, and each have the right to meet with those persons involved with the child to obtain the information and to discuss any matters relating to Ellie’s health, education and welfare.

[33] The Minutes also provide that written consent of the other parent for Ellie’s extracurricular activities that would impact on that other parent’s time with Ellie had to be given in writing, that if either Mr. or Mrs. Wainwright planned a vacation with Ellie outside of Canada the other parent would provide a letter authorizing Ellie to travel, that the parties live in proximity to each other for the purposes of the parenting schedule and that neither party will move the child’s residence a distance greater than 40 km from London without first providing 60 days’ written notice and obtaining the other’s written consent or a court order.

[34] The Minutes went on to provide that both Mr. and Mrs. Wainwright can attend all school functions and parent interviews once Ellie begins school and that they will alternate attendance on school trips with Ellie. If one of them is unable to attend, he or she will notify the other immediately.

[35] As for child support, the Minutes of Settlement provide that Mr. Wainwright will continue to pay in the amount of $200 per month. It was acknowledged that this amount could change once he is finished with his course at Fanshawe, that there will be an annual adjustment of child support; each will pay his or her proportionate share of any special or extraordinary expenses. It was acknowledged that there were no arrears of support.

[36] The Minutes provide that no equalization payment was owed by either party, that all personal property had been divided between them to their mutual satisfaction, and that the remaining proceeds from the sale of the matrimonial home would be divided between them equally. In addition to the usual releases, there was an acknowledgment that the Minutes constituted a domestic contract within the meaning of the Family Law Act, R.S.O. 1990, c. F.3, and that the Minutes of Settlement would be incorporated into the final court order except for the paragraphs dealing with the releases.

[37] Other provisions dealt with the two issues to be decided by the court at the trial: first, the need for an effective transition of Ellie between her parents since the current daycare would not allow Mr. Wainwright to pick up or drop off Ellie at the daycare on his own; second, Mrs. Wainwright’s request to have an order that Ellie attend school based on where Mrs. Wainwright lives.

[38] The Minutes of Settlement also contained certain provisions under the subheading of “Decision-Making” which will be set out in Part Two. These raise a fundamental concern for the court.

The Evidence

[39] Mr. Wainwright testified both as the first witness and also in reply. His mother, Ruth Wainwright, testified on his behalf as well as Patricia Riddell-Lamers, the executive director of the non-profit daycare where Ellie attends and has attended since April 2009. Mrs. Riddell-Lamers was subpoenaed by counsel for Mr. Wainwright and presented as his witness. She was not cross-examined. Mrs. Wainwright testified on her own behalf.

[40] I am setting out the evidence of both Mr. and Mrs. Wainwright in some significant detail as it underlies my findings in both Parts One and Two of this judgment. Unlike those cases we see with increasing frequency in our courts which are labelled “high conflict”, for example, Fiorito v. Wiggins, 2011 ONSC 1868, that term could not be applied to this case. Based on the evidence that I heard from both parties, this case is characterized by an overwhelming lack of trust of the other on the part of both parties, significant level of fear on the part of Mrs. Wainwright in relation to Mr. Wainwright, and an inability to communicate with each other directly on any issue.

Evidence of Mr. Wainwright

[41] Mr. Wainwright provided details of the separation, the probation order to which he was subject as a result of pleading guilty to assault, the details of his work history and his current educational program along with his employment plans for the future. Much of Mr. Wainwright’s evidence on both direct and cross-examination made clear that he saw himself as an aggrieved father. As an example, he insisted, in spite of subsequent evidence to the contrary, which I accept, that he had not been advised about the name or location of Ellie’s daycare. Many of his answers began with “I wanted” and related to what he perceived to be lack of cooperation by various persons, including Ellie’s doctor, as well as the difficulties he had experienced with the pick up and drop off of Ellie. He criticized Mrs. Wainwright for not attending at Merrymount for intake so that pick up and drop off could take place there, even though those services were not provided at the times when it was required, and for the difficulties caused for his mother because of the decision of the daycare to not permit him on the property. He blamed Mrs. Wainwright for all of these difficulties.

[42] Mr. Wainwright also talked about the difficulties he perceived that Mrs. Wainwright had caused by allegedly not cooperating with Paula DeVeto, a social worker who was retained by both he and Mrs. Wainwright to negotiate with the daycare on his behalf, in accordance with the order of Haines J. of December 20, 2010. Although that order specifically provided that Paula DeVeto was authorized to negotiate with the preschool to permit Mr. Wainwright to attend there for the purposes of pick up and drop off of Ellie, Ms. DeVeto required written authorization from both Mr. and Mrs. Wainwright, one which Mrs. Wainwright refused to give in the form that it was presented to her by Paula DeVeto.

[43] When Mr. Wainwright was asked about his plan if the daycare continued to refuse to permit him on the property, he said that his plan was to switch Ellie’s daycare to somewhere in London, even possibly a French school, not a French Immersion school, that offered daycare. He listed a number of other schools including “Any of the Montessori schools would be nice, particularly if Ellie’s identified as gifted, which I believe she is. There’s a home daycare that’s run by a mutual friend that would be – which I would be very happy for her to attend. Again, this would have to be the subject of further discussion.”

[44] Mr. Wainwright then testified about his plans for Ellie’s education when she would go to school in either September 2012 or September 2013. He acknowledged that there had been no discussion between himself and Mrs. Wainwright about this issue or about any other issue. His position was that the selection of the school that Ellie would attend should not be limited to schools in St. Thomas. He was of the view that since St. Thomas had a number of plant closings, should Ellie be identified as a gifted child, those programs would not be available to her in St. Thomas. He said that since St. Thomas had the largest unemployment rate in Ontario, “They normally will cut, for instance, the frivolous programs which may include ones that are geared towards gifted children. So I don’t think that’s a very good idea to limit what she needs to go – I think that things need to be investigated such as class size, how this school is rated, the teachers. I worry quite a bit that – that we may be choosing the wrong school as a result of that.”

[45] Mr. Wainwright went on to say that the residence of a parent was not the way to choose a school and that “I certainly – I don’t think it’s uncommon for parents to move closer to the school that they believe is a good school to benefit their child.” He appeared to propose that, after jointly choosing a school for Ellie, both he and Mrs. Wainwright would move so that they would each be “a walking proximity of that school”.

[46] Mr. Wainwright went on to suggest that Ellie should probably be in a French school, not just a French Immersion program as she is now. There was no evidence, however, from either Mr. Wainwright or Mrs. Wainwright that either or both of them spoke French and he did not appear to have considered how either of them would be able to help Ellie with her school work if she went to a French school where all of the subjects are taught in French.

[47] On cross-examination, Mr. Wainwright’s efforts to portray himself as “the victim” did not stand up well. He was argumentative with Mrs. Wainwright’s counsel and had to be reminded several times that he needed to listen to the question and answer the question, not to make speeches or question counsel. He appeared unable to accept responsibility for any of the communication difficulties between himself and Mrs. Wainwright and seemed unable to appreciate how his admitted assault on Mrs. Wainwright could interfere with their ability to communicate. As an example, he blamed Mrs. Wainwright for not providing him with her e-mail address, while at the same time, it was not clear that he had ever given Mrs. Wainwright his e-mail address.

[48] Mr. Wainwright also believed that Mrs. Wainwright was the reason why he was not permitted to attend at Ellie’s daycare. He had very little insight into his own behavior and how calling around to different daycares asking for information about Ellie might have caused concern at the daycare. After being pressed he finally acknowledged that these calls “might have set off alarm bells in their mind”.

[49] With respect to the subsidy that Mrs. Wainwright received for Ellie’s daycare costs, Mr. Wainwright first said “I’ve never been informed of such.” When challenged on that position, he backtracked a bit but insisted that he did not know whether she currently had a subsidy. After further prodding he finally acknowledged, somewhat grudgingly it appeared, that when he was ordered to pay $23 per month for daycare for Ellie that he could not reasonably have considered that that was his share of the actual cost of daycare but for the subsidy.

[50] When challenged about changing Ellie’s daycare to convenience himself and that he was only looking at daycares in London, he said that he had inquired about the cost and that some of them may be $130 a week or some as high as $800 a month. He went on to say “I’ve never had a problem paying for my child’s education or daycare. That’s never come into question I hope.”

[51] When confronted with Mrs. Wainwright’s answer to his application which included information that Ellie was in the Early Childhood Learning Centre, he continued to deny that he knew for sure that Ellie was in daycare or where she was. During his cross-examination Mr. Wainwright took increasingly implausible positions and refused to acknowledge information that had been provided to him in writing early on in the proceedings.

[52] Mr. Wainwright was challenged again about his insistence that he did not know the name of the daycare in which Ellie was enrolled. It was pointed out to him that when he had commenced a motion in March 2010 for the production of records that were in the control of “the St. Thomas Early Learning Centre”, he swore an affidavit in which he said “Our daughter attends the St. Thomas Early Learning Centre, a daycare program.” When it was suggested to him that this indicated he knew that Ellie was attending daycare and where it was, he responded “I might as well – it might as well have been said to me that my daughter attends McDonalds.”

[53] When asked again to look at the wording of his affidavit, Mr. Wainwright’s response was “Well, I just – it’s not specific enough to be able to say that I knew where my daughter was attending daycare.” I am setting out the evidence as it appears in the transcript as it is illustrative of how much of Mr. Wainwright’s evidence was focused on blaming others and lacked insight into his own role in disputes. The dialogue went on as follows:

Q. So you’re saying, even though it says “Our daughter attends the St. Thomas Early Learning Centre, a daycare program” you’re saying that wasn’t clear?

A. “The” is a definite article and I think what we’re looking at is an indefinite article “A”.

Q. Well this says “the” doesn’t it?

A. That would suggest a definite article and, of course, if you were to contact the St. Thomas Early Learning Centre, you’d soon find out there are three.

[54] When challenged again on his views that Ellie would get a substandard education in St. Thomas because of its current economic situation, Mr. Wainwright was unsure whether schools in London and St. Thomas were all operated by the Thames Valley School District. When first questioned about his knowledge of the respective schools, he said that St. Thomas was not in the Thames Valley School District. When he was advised by counsel that the Thames Valley School District includes the counties of Middlesex, Elgin and Oxford, Mr. Wainwright said that he would take counsel’s word for it. When asked about the basis of his views that St. Thomas, due to its economic situation, would have less “benefits” than other areas under the jurisdiction of the Thames Valley School District, his answer was totally unresponsive and he made reference to some case that Mrs. Wainwright’s counsel had acted on in the past involving the Boy Scouts and a camp.

[55] When directed back to the basis for his views on the inferiority of the schools in St. Thomas and whether he knew for certain that St. Thomas schools are treated differently than other schools in the Thames Valley School District, he gave the following answer: “I believe that … if enrollment were down in St. Thomas, as a result of, for instance, people leaving St. Thomas are pulling their children out of St. Thomas or out of the school, simply because they were able to take [sic] of them now at home, then yes, I do believe that there would be certain programs that would suffer as a result of that.” When he was asked whether he knew that to be a fact, he acknowledged that “I’m speculating that. But I’m certain that, as I say, not every school offers programs for the gifted. Not every program in Middlesex- London School Board [sic] offers programs for the gifted.”

[56] Mr. Wainwright was then questioned about his view that Ellie was gifted when in his application in 2009 he raised concerns that Ellie may be developmentally delayed. Again, his answer was unresponsive and defensive. He finally acknowledged, after being pressed, that there was nothing about the daycare program that Ellie has always attended that appeared to have a negative impact on her. His jousting with counsel continued, however:

Q. And, in fact, from concerns that you thought were possible in 2009, if I understand your concerns today is that your concern is on a speculative basis that St. Thomas may not have opportunities for a gifted child?

A. That’s correct.

Q. Now you haven’t specifically looked into that?

A. Well, as I say, not all schools offer programs for the gifted.

Q. Now sir, if I take a look at what the situation is, Terrie has – Wainwright, your spouse, has basically had Ellie in daycare since, at this daycare since April 2009, do you agree with me?

A. I have no way of knowing at what date she was admitted into daycare.

Q. Would you agree it was probably in around that time, she was working at the time?

A. I’ll take your word for it.

[57] Another such exchange took place:

Q. Do you recall where she [Mrs. Wainwright] wanted the child to attend the French Immersion program in St. Thomas?

A. Okay. Based on her location.

Q. Okay. Do you know how many French Immersion programs are available in St. Thomas?

A. I suspect that not all of them are equal.

Q. I asked you, sir, do you know how many French Immersion programs are available in St. Thomas?

A. I would like to know. Could you tell me?

Q. Well, I’m afraid I can’t give evidence, but you may hear that from Ms. Wainwright or Mrs.

A. Okay.

[58] Counsel then went on to question Mr. Wainwright about the move to St. Thomas in 2005 and he acknowledged that he and Mrs. Wainwright had moved there to be closer to his employment in Aylmer, and that it had been their intention to continue to live there.

[59] As the questioning about what school Ellie would attend in the future continued, Mr. Wainwright remained firm in his position that the location of the residence of the parent with whom the child spent most of her time should not be the determining factor in choosing a school. He talked about the rankings of schools, and where one would go to find those rankings. Mr. Wainwright expressed concerns that if Mrs. Wainwright had the decision-making authority with respect to where Ellie would attend school, Mrs. Wainwright would use this authority to remove Ellie from the jurisdiction if she found a better job outside of the area. He asserted this belief even though the Minutes of Settlement contained a limitation on the distance either of them could move Ellie’s residence without the consent of the other or a court order.

[60] When asked about the choice of school for Ellie, the following exchange took place:

Q. School, let’s talk school.

A. So public school? I think certainly that sort of thing requires research and if we are able or she is able to find the care that’s in her proximity, that doesn’t necessarily suggest that the public school is within her proximity. It should be discussed between the both of us with the best of interest of Ellie as to which is the best school.

Q. But up until this point, you will agree with me, that it’s a parallel parenting model and at least to date, the ability for you and her to discuss matters hasn’t been achieved?

A. I agree with that, but I don’t think that, as I say, that’s something that should be occurring in the future.

Q. And in fact, notwithstanding the fact that the daycare she picked out appears to be doing an excellent job with regard to Ellie, you’re not comfortable with her picking a school for Ellie to attend even though she has identified the Pierre Elliott Trudeau as a school that she would like…

A. Well, she’s also for instance…

Q. …for Ellie to attend?

A. …it just seems that everybody I’ve come into contact with, whether it be Ellie’s daycare, Ellie’s doctor, I’ve always been stonewalled, there’s been a preconceived notion as to who I am. So if she is given this kind of decision-making I will be excluded from my daughter’s life.

[61] Again, Mr. Wainwright was evasive and appeared focused on his own as opposed to Ellie’s needs. Counsel then continued to question Mr. Wainwright about experiences that he had with Ellie’s doctor, Dr. Bertoldi and also Dr. Pezzutti, Ellie’s former doctor. When asked whether Dr. Bertoldi answered his questions, Mr. Wainwright answered “No, she didn’t. When I asked a direct question such as, ‘How much does Ellie weigh?’ I was told that ‘the file is not in the room.’” It is curious that Mr. Wainwright would schedule an appointment to inquire about Ellie’s weight when he has Ellie at his home on a regular basis, and can readily ascertain this information on his own.

[62] Mr. Wainwright said that when he spoke with Dr. Bertoldi, “she’s seemed more concerned on focusing on me. In other words, there is little information was given to me and my daughter, rather questions were asked of me.”

[63] Mr. Wainwright’s cross-examination ended with the following exchange:

Q. Do you have any information at all to indicate that Terrie Wainwright has not made good decisions for the care of Ellie?

A. No, I think Terrie is a good mother.

Evidence of Mrs. Wainwright

[64] Mrs. Wainwright testified on her own behalf. She confirmed that she has lived at 104 Confederation Dr. in St. Thomas since 2010 when the matrimonial home was sold. She also confirmed the date of separation.

[65] Mrs. Wainwright was asked a number of questions about her work as a pharmacy technician, the steps she had taken to become a Registered Pharmacy Technician and the job opportunities that would be available to her once she receives her certification. She also testified as to how she had selected the Early Learning Centre for Ellie. She said that the separation had caused “a financial hardship for Ellie and I, so I asked my employer, ‘I will work whatever shifts are available, please’ and they obliged me; I’ve been given about 40 hours a week.” Because the Early Learning Centre provided “24/7” care, she could be flexible with regard to the hours she could work.

[66] Mrs. Wainwright confirmed that she had a daycare subsidy from the city of St. Thomas, without which she would be paying $40 a day for child care. She described the difficulty she had experienced with receiving the subsidy because of the change in wording in the December 20, 2010 court order because there was a gap in the order with respect to the time that Ellie would be with her. The new wording contained in the Minutes of Settlement corrected that issue.

[67] Mrs. Wainwright also confirmed that she had checked into the transferability of her subsidy and was advised she would not be eligible for a subsidy if Ellie went to a child care facility in London, either from the city of St. Thomas or from the city of London.

[68] As to the issue of when Mr. Wainwright found out about the daycare that Ellie was attending, Mrs. Wainwright answered as follows:

A. His solicitor at the time, Leanna Simpson, was informed at the first court appearance in 2009 that Ellie was attending the Early Learning Centre at Aspen Avenue.

Q. And had these invoices or some of these invoices, the early ones in 2010, do you know if these were ever sent to Mr. Wainwright and his solicitor?

A. I gave them to my solicitor at the time, Karen King, and I hoped she forwarded them, but I can’t speak for Karen if she successfully sent them or not.

[69] Mrs. Wainwright confirmed that Ellie had been in that same daycare since April 2009. She described how well Ellie has done in the program and that she has been in the French Immersion program since she started.

[70] Mrs. Wainwright was also questioned about any role that she may have had in preventing Mr. Wainwright from being able to pick up Ellie at the Early Learning Centre. She said she received a phone call from the Centre that it had been put under “lock down” and she was asked to come and get Ellie. She said she was told that “John is – was no longer – well, not allowed to attend the property.” She said she was never told why that decision had been made and that the daycare officials had not asked for her input; she was only advised of the decision.

[71] When Mrs. Wainwright was asked whether she had any problems with Mr. Wainwright picking up Ellie at the daycare, she replied:

A. No, it would be very convenient if he were able to do that.

Q. And why do you say convenient?

A. There’s a – I am afraid of John and his conduct, I do not feel comfortable to do any direct exchanges myself, so it’s very helpful to have a third party do it.

[72] Mrs. Wainwright went on to describe how the exchanges had taken place until December, 2010 with the assistance of Ruth Wainwright. When asked whether there were problems with those exchanges she said:

A. I don’t think it was very pleasant for – for anyone, but I do appreciate Dr. Wainwright doing that.

[73] When Mrs. Wainwright was asked why she was requesting that the court order that her place of residence determine where Ellie goes to school, her response was as follows:

A. We are established here. Ellie is already at school here; she has many friends here, her doctor’s here. We are doing very well here. I am concerned about ongoing conflict with John and mediation and I am concerned everything will be brought to mediation and the expenses that will take away pretty precious resources for my daughter. So I would ask that most of the issues can be resolved so that it’s not any ongoing struggle. And I feel I can offer Ellie stability and not have to uproot her. I am committed to her 100 percent.

[74] Mrs. Wainwright was asked about the concern Mr. Wainwright had expressed that Ellie might be developmentally delayed. She said that in response to Mr. Wainwright’s concerns, she spoke to Ellie’s doctor at the time, Dr. Pezzutti, who referred Ellie to a pediatrician. She first saw Dr. Atkinson who was filling in for Dr. Bertoldi who is now Ellie’s pediatrician. Neither Dr. Atkinson nor Dr. Bertoldi had any concern that Ellie has developmental delays. Mrs. Wainwright confirmed that Mr. Wainwright has complete access to talk with any of Ellie’s doctors and that he has done so.

[75] With respect to communications between herself and Mr. Wainwright, Mrs. Wainwright testified as follows:

Q. Now, have you done anything yourself to have contact directly with Mr. Wainwright?

A. But there have been times when I have needed to confirm pick up times and I have sent e-mails to him.

Q. What e-mail address have you used?

A. His MSN account.

Q. Have you received any indication that the e-mail is not being received or that it’s blocked?

A. No, it had the status of sent.

Q. And did you ever receive a response to the e-mails?

A. No, I did not.

[76] Mrs. Wainwright was then asked about the communication books that Mr. Wainwright had initiated. She said that she had received a communication book in January 2011. The court order in December 2010 had provided that communication could be done through e-mail or through a third person. She sent it back with a request that Mr. Wainwright use her mother as a third party contact and she provided Mr. Wainwright with her mother’s phone number. She said, however, that that was not an acceptable means of communication for Mr. Wainwright.

[77] Mrs. Wainwright said she received another communication book but that it did not contain information related to Ellie’s care. Rather, “it was critical of me. It made a reference to me having a new lawyer and how my lawyer had to contact his lawyer immediately, and that he had several issues and questions that he needed addressed. I felt at that time that should not be the purpose of the communication book. It should be for Ellie, a child centered book.”

[78] Mrs. Wainwright then went on to talk about the medical sheets prepared by Mr. Wainwright that were to be filled in by both of them if Ellie was given medication and for exchange of other information regarding her health. "It sounds weird, but if she's had a bowel movement, how that bowel movement has been, if she's seen a doctor at all and those forms were being filled out by his mother and she ceased filling them out in July 2011."

[79] With respect to ongoing communication, she said she was hoping that e-mail will be a successful way of accomplishing that task. She said that her e-mail address has never changed from before their separation.

[80] Mrs. Wainwright also testified about situations in which she had been flexible in regard to extra time Ellie spent with Mr. Wainwright, for example, for his sister’s wedding but that he would not return Ellie early from a holiday so that she could leave early for a long weekend. She also testified about an incident that occurred when Mr. Wainwright was present during an exchange after she had asked that he not attend at exchanges. She said she had asked that if he was driving, that he be out of sight when she arrived "because of my feelings about John and my fear of him." She said that he got out of his truck and stood waving at her the whole time that his mother got Ellie and put her in the car. She said "I thought that was uncalled for and it felt like a hostile thing to do so I was worried about having to come back to pick Ellie up alone."

[81] As a result of her worry, she asked a male neighbour who lives in her complex and who she sees in the laundry room to come with her. She said that Mr. Wainwright’s pick up was at the Tim Hortons on Talbot Street and that she and the neighbour had backed into a parking spot near a variety store to wait. Ruth Wainwright brought Ellie over to Mrs. Wainwright’s car. She said that when she was ready to drive away, Mr. Wainwright pulled his car in front of hers, blocking her in. She said she felt panicked and "then the next thing I knew the window rolled down and they took a picture of my neighbour and I, and then they drove away."

[82] Mrs. Wainwright explained why she had not attended at Merrymount to complete intake. She said that because of the limited hours that supervision of exchanges is provided, it was not a feasible option.

[83] Mrs. Wainwright also testified about why she did not sign the document provided to her by Paula DeVeto to authorize the mediator to speak to the daycare about permitting Mr. Wainwright to pick up Ellie at the Centre. She said that she was not willing to give the mediator the authorization to speak with the Centre on her behalf but signed an authorization that she herself had prepared which gave her consent to the mediator speaking with the daycare on Mr. Wainwright’s behalf.

[84] Mrs. Wainwright was asked the following questions by her counsel:

Q. With regard – with involving the mediator, and I think there’s a reference to having an individual talk to the daycare, did you give permission for that?

A. Yes, I did. There was a problem with mediation and we were in the process when the closed mediation contract was broken and legal action was brought against me during the mediation process before it concluded. So given the fact that the contract had been broken and it had really negative implications on – on Ellie and I, I lost faith in the mediator, Paula DeVeto. I did not want her to represent me, (meaning with the daycare) but I did give her permission to speak to the daycare and to arrange pick up and drop off for John, just she would not be acting as my agent in that process.

Q. And did you have any problems with John picking up and dropping off Ellie at the daycare?

A. No.

Q. Am I correct in assuming that you feel safer with that arrangement?

A. Yes.

Q. Have you gone to the daycare and spoken to the daycare to try and see if they would agree to it?

A. Yes, I have. This has recently become an issue for the court so there wasn’t a lot of notice or time. I approached them this past Friday and I – Patricia was in a meeting in London so I spoke with someone else at the daycare. I said “Can we find out the possibility of John being able to perhaps not come inside the property, but wait outside the door right on the steps to pick up Ellie?” I was thinking perhaps a contract could be drawn up that John would agree to stay in that spot and be respectful to the staff, parents, and students.

Q. And did you indicate to them whether or not you had any problems with John picking up Ellie at the daycare?

A. No.

Q. No, you didn’t indicate that to them or yes I did tell them that John could pick up at the daycare?

A. I asked them to consider that as that would be very helpful.

Q. So you wanted them to allow John to pick up Ellie at the daycare?

A. Yes.

Q. I gather that you would prefer not to be involved?

A. Yes.

[85] On cross-examination, Mrs. Wainwright’s view of mediation was explored in some detail. When asked about her knowledge of the mediator’s qualifications and whether she knew that she had a Masters of Social Work, Mrs. Wainwright said that she was not aware of all her credentials “but she’s a nice woman.” The testimony went on as follows:

Q. And she helped you and John out with mediating your parenting schedule?

A. Unfortunately the mediation process was cut short as Paula had an appointment the same day we met and my lawyer at the time, Karen King, and I sat in your office waiting for the mediation process to resume. We were there until 4:30 that day and it had not – it had not resumed, so, you know, there was no resolution in that.

Q. I suggest actually there was a resolution in the parenting schedule and a motion had to be brought to force you into agreeing to that parenting schedule as it was agreed to in mediation?

A. In principle I did agree. There was the issue of John being able to pick up and drop off Ellie at the daycare and the daycare subsidy that was such an issue so consequently you were never provided with a signed copy of that agreement. It was Karen King’s intention to mediate those issues with you before you got that copy.

[86] Mrs. Wainwright continued to insist that she had no difficulty with the mediator going to negotiate with the daycare centre so that Mr. Wainwright could attend there for Ellie’s transitions: “I have no difficulty with anyone going to speak to the daycare on John’s behalf. I, it’s not my issue though.” Mrs. Wainwright acknowledged that there was a court order directing the mediator to do that negotiation. She agreed that she had consented to the court order which directed the mediator to do the negotiation but “I feel my hand was forced in that but that is what happened, yes.”

[87] Mrs. Wainwright explained that while she did provide an authorization to the mediator, it was a document that she had drawn up herself and that she did not sign the one that she had been asked to sign by the mediator. She went on to say that while she really liked the mediator and has no issues with her, it was what happened as a result of the mediation that she has issues with. She gave the following explanation:

I gave Paula authorization to speak to the daycare on John’s behalf not mine, that she was not acting on my behalf and because the mediation contract had been broken I no longer wanted to be a part of that. She informed me that mediation was a voluntary process and because it was such that she wouldn’t be able to speak to the daycare unless I signed her a direction to act on my behalf. I was not willing to get involved in that again.

[88] There was a further exchange between counsel and Mrs. Wainwright:

Q. And in actual fact the issue of Paula DeVeto and daycare wasn’t mediation it was a court order directing that that’s what she was to do, correct?

A. That was a bit of a conundrum because ethically with mediation it is a voluntary process. She was aware she had this court order to act in that way and I was informed that she could not do it unless I voluntarily entered into mediation. After the way I was treated I wanted no part of that.

Q. Paragraph 22 of the order of December 20, 2010 it says, “Paula DeVeto, social worker, is hereby appointed and authorized to deal with the daycare in order to facilitate using the child’s daycare for the purposes of transitioning the child between the applicant and the respondent.” That was the court order, correct?

A. Then Paula should have been able to act on that if it was a court order.

[89] The questions and answers continued about why Mrs. Wainwright was not prepared to sign the authorization form given to her by Ms. DeVeto. She remained firm in her position that she had no difficulty with Ms. DeVeto doing the negotiation, “I just didn’t want her to be representing me at all in that process.”

Q. Alright and today you come and say, I’m all for that (meaning Mr. Wainwright picking up Ellie at the daycare) it’s not a problem with me. Was it a problem for you back in January 2011 when Paula DeVeto asked you to sign the document to help her to do that? Is there something that’s changed between January 2011 and today?

A. My trust level in the mediation process was greatly diminished after the contract had been broken by you in your December 2010 court motion. I have very little faith now in mediation and the validity of contracts that you sign. You’d hope that they would protect you from that and it failed. My faith in Paula, I think she’s a wonderful woman, but I really sincerely feel that my trust was violated not by Paula’s actions, rather yours [meaning Mr. Wainwright’s counsel who brought the motion to enforce the Minutes of Settlement that had been allegedly arrived at at mediation].

[90] Mrs. Wainwright was further challenged about what role she might have had in the decision of the daycare making the decision not to permit Mr. Wainwright to come on the property. She agreed that she had told them that Mr. Wainwright had criminal charges and that he was under a court order to have no contact with her. She said that she also told them that the schedule that had been set out in the original court order was when Mr. Wainwright was to have access with Ellie and that if he tried to take her at any other time that she was to be contacted immediately.

Q. Did you give them any impression that you were afraid of him?

A. Um, probably yes.

Q. Did you tell them that as well he was facing some weapons charges for some relic guns that were in the house?

A. Not that I’m aware of.

Q. Did you tell them anything else about John?

A. Not that I’m really aware of, no.

[91] Mrs. Wainwright acknowledged that when she went to the daycare the previous Friday to talk to them about Mr. Wainwright being able to pick up Ellie, she had not been able to speak with the Director nor did she leave any message for her to phone. She acknowledged that from December 2010 until September 2011 she had not told the daycare that she had no problem with Mr. Wainwright picking up Ellie there.

[92] Mrs. Wainwright also said that she did not complete the intake at Merrymount although she had agreed to do so in the court order because she had not been aware at the time of the court order of their hours of operation.

[93] Mrs. Wainwright was also challenged about the inconvenience that was caused to Ruth Wainwright on account of the exchanges. Mrs. Wainwright acknowledged that Ruth Wainwright had been very generous with her time in assisting at the transitions for Ellie and also providing funds to her and Mr. Wainwright to purchase their house.

[94] Mrs. Wainwright was challenged about her apparent lack of cooperation with the communication books. She said that she did not engage in that process because the documents provided to her by Mr. Wainwright were not “Ellie-centred”. She also said that she sent all the books back to Mr. Wainwright after he initiated communication in that manner.

[95] Mrs. Wainwright was also challenged on the alleged difficulty Mr. Wainwright experienced in getting information from Ellie’s doctors. She said that one of the reasons for changing doctors from Dr. Lucy Pezzutto to Dr. Bertoldi was because Ruth Wainwright, a physician, worked with Dr. Pezzutto and it was Mrs. Wainwright’s view that Ruth Wainwright put pressure on Dr. Pezzutto to make referrals to specialists for Ellie. At one point Mr. Wainwright and his mother, “provided a letter to Dr. Pezzutto stating they could expedite this referral. I think Dr. Pezzutto felt put in a pretty tight position, and working with Ruth as her colleague felt it would be best that Ellie see a pediatrician outside of their mutual office.”

[96] In spite of what Mrs. Wainwright thought of as inappropriate involvement by Ruth Wainwright in Ellie’s medical care, Mrs. Wainwright acknowledged that she had permitted Ruth Wainwright to prescribe medication for Ellie. She took Ellie to the AIM walk-in clinic in London because there was a long line up for the clinic in St. Thomas. Ruth Wainwright was working there that night and while, “I did have some qualms, but in the end of the day Ellie needed to be seen and needed treatment and needed to go to bed a reasonable time so regardless of who was working the walk-in clinic that night that’s where I took her.”

[97] Mrs. Wainwright was then questioned about the opportunities that will be available to her if she becomes a Registered Pharmacy Technician. When questions were asked about whether Mrs. Wainwright would seek employment outside of the London-St. Thomas area, she then became somewhat unresponsive:

Q. Will you start looking for work – have you started looking for other jobs now?

A. I love my job. I love my company. I love my coworkers. I’m very, very happy where I am. If something comes up that offers me more I will consider it but I’m honestly not in a rush to leave the place where I’m very happy. It would have to be a pretty good offer to do that.

[98] Mrs. Wainwright was then directed to answer the question about whether she was looking for work now. She then answered, “No. No I’m not.”

Q. Is it your intention to look for other opportunities shortly or once you get your results?

A. No, I’ll wait and see.

Q. Wait and see for what, somebody to approach you?

A. Well it’s such a new profession in our company really nobody knows how to handle it and how it’s all going to look. If I hear there’s openings at the hospital and it’s worth checking out I will check it out. But I right now, at this moment in time I’m grateful of where I am but that may change.

Q. What also would change, you’ve heard from John, is the fact that he’ll be graduating from school and he’ll be looking for a new job as well?

A. Yes.

Q. So there could be a change in your life, there could be a change in his life?

A. Yes.

Q. And because you work these days and some days you’re working late I take it you’d prefer a job that might be more eight to four or nine to five?

A. That would be nice.

Q. And that’s the kind of opportunity that might open itself up with your new qualifications?

A. And it may open itself right where I am as well.

[99] Mrs. Wainwright was questioned as to what her plan was for transitions if the daycare would not permit Mr. Wainwright to pick up and drop off Ellie on their property. She did not have a plan and said, “I don’t have the answer right now.”

[100] Mrs. Wainwright was also asked about the program at Pierre Elliott Trudeau School and her plans to send Ellie there in September 2013. She said that because Ellie does very well in the daycare program, she may be moved into the junior kindergarten class earlier than she might otherwise be. She acknowledged that she did not know how many senior kindergarten classes there were at the school, how many students there were at the school, how many kindergarten teachers there were, whether there were any educational assistants, who the principal is, how Ellie would be transported to the school, and whether she had considered the reputation of the school as indicated in the Fraser Institute rankings.

[101] She admitted that while she had not taken any of those steps, that she wanted to choose the best option for Ellie and that she would want her to go to a school that would allow her to excel and that that would mean looking at the programs and who was offering the programs. She said that while she had researched some other schools in St. Thomas, she did not have details to provide at this time.

Q. Would it be fair to say that it’s something that you’re going to want to do a lot more research before you decide what school she should go to?

A. Yes.

Q. Would you agree with me that it would be best if you and John could reach that decision together?

A. That would be nice, yes.

Q. And do you believe that’s important that obviously you will do some research about a school, correct?

A. Yes.

Q. And presumably John will as well?

A. Yes.

Q. And by sharing that information you’ll probably have the best evidence – research you can get to make the right choice, hopefully for Ellie, correct?

A. Correct.

Q. John indicated that at this young age, I know she’s only three but she’s a smart little girl?

A. Yes, very.

Q. He thinks that she might even be gifted. You find that she learns well?

A. Yes.

Q. Do you feel that she may well do very well at school?

A. I think so, yes.

Q. So you’ll certainly when considering what school she goes to you’ll take that into account that you feel she’s a very intelligent girl so you’ll want to make sure that it’s a school that can meet her needs?

A. Yes.

Q. And challenge her?

A. Yes.

Q. Do you think that Montessori might be an option?

A. Depending on costs, that’s a factor.

Q. And other than costs is that something that you would like to consider as well as she’s an intelligent little girl?

A. I know Montessori is also run out of the Early Learning Centre.

Q. So that’s something that you might want to look into?

A. Yes.

Q. I take it that you don’t have any issue that John tries to do things in Ellie’s best interests as you do?

A. Can you ask that again please?

Q. Do you consider yourself a child-focused parent?

A. Yes.

Q. Do you consider that he’s child-focused?

A. I think he tries; I think he wants to be. I think there are some elements missing though.

Evidence of Mr. Wainwright – Reply

[102] Mr. Wainwright testified in reply. Mr. Wainwright was asked about a series of daycare invoices that had been made an exhibit at trial.

Q. When did you first see those?

A. I’ve only seen them recently. I think one – the last time was certainly within the last few times that Mr. Shields has sent along a letter that was forwarded to me.

[103] When directed to answer the question he said, “I’ve only seen them recently.”

Q. What’s recent?

A. Within the last two weeks.

[104] Mr. Wainwright was also asked about the incidents that Mrs. Wainwright had complained about that she had interpreted as being hostile. He said that, “Ellie was in my arms at the time and I had asked Ellie to wave to Mommy. We both waved to Mommy. This was not a hostile movement or any kind of aggression. This was simply me trying to initiate some kind of civilized contact.” It was his recollection that that event occurred at a different time than the time Mrs. Wainwright had complained that he had blocked her car. With respect to that occasion, he said he did not believe that he had blocked her car but he had “stopped in front of her car, very briefly”. He also acknowledged that he took a picture of her “because there was a gentleman in the passenger seat of her car that would have been privy to witness that particular event. I thought that was a very significant event.” He went on to say that he recalled Mrs. Wainwright yelling at Ruth Wainwright and he thought that it would be good to have a witness to that event and that was why he took the picture.

[105] As for attending at the transitions when Mrs. Wainwright had asked him not to, he said:

A. Well, I believe as I say, there’s been many times expressed that I was not welcome at the transition point. Consequently, I don’t understand why, for instance, I’m to consider other feelings on the matter when it’s clearly what is in the best interests of my daughter, this for me to be at the exchange point.

Q. Do you recall being specifically asked by Mrs. Wainwright that you not be present?

A. Yes I do recall that many times.

Q. And you still showed up?

A. I remained in the car yes. I was not under any probation at the time.

[106] Mr. Wainwright was asked about the alleged misunderstanding over vacation time in 2011. Specifically, Mr. Wainwright was asked if he had kept Ellie longer than he was supposed to and whether, as a result, Ellie missed time at daycare, and incurred further cost as a result. When he was asked about whether he would be willing to pay for any time that Ellie missed at the daycare centre, Mr. Wainwright said that he had agreed that he would be responsible for any daycare costs occasioned by time Ellie missed because she was with him. When confronted with his e-mail, however, that said the following in addition to the statement that he would pay any costs associated with Ellie missing time:

However, I would like to know why this is a rationale. If it is because the daycare has been given insufficient notice then I do not feel that this is my problem since there has been ample notice given if there are costs associated because that is still a subsidy, I would like to know that I was misinformed and I would like a copy of any records logged regarding time Ellie spends at daycare. Again in any case I appreciate and want this time with my daughter at any cost but I do object to the recurring problem that I always seem to be the last to know anything.

He had no cogent response.

Issue One – Place for transitions for Ellie

[107] With the agreement between the parties and the subsequent court orders providing that the transitions for Ellie could be at the daycare, a problem had arisen with that arrangement because the daycare had refused permission to Mr. Wainwright to come on their property. As a result, his mother, Ruth Wainwright, would attend at the daycare with him and be the one to leave the car with Ellie to bring her into the facility or to pick her up inside the daycare. At all times Mr. Wainwright would remain in the car which was parked on public property.

[108] The court order of Haines J. had provided that if the pick up and drop off of Ellie could not be at the daycare, Merrymount or some other location was to be used. Mrs. Wainwright was clear in her evidence that she had no objection to Mr. Wainwright attending at the daycare to pick Ellie up. She agreed that this was the most comfortable place for Ellie for the transitions to occur and she accepted that it was difficult for Ruth Wainwright to be required to be present. She asserted that it was not because of any request by her that the daycare had made that decision. Mrs. Wainwright agreed, however, that she had not made this position clear to the daycare until close to the trial.

[109] Mr. Wainwright gave evidence to which I have referred earlier about his interactions with the daycare and his seeming bewilderment as to why the daycare had made the decision to restrict his access to the property. He asserted that he had not been threatening in any way and did not give the daycare any reason to be fearful of him coming on the property.

[110] Mr. Wainwright had also complained that Mrs. Wainwright had not gone to Merrymount to complete the necessary intake for Ellie to be picked up and dropped off there. I accept Mrs. Wainwright’s evidence that she had looked into the Merrymount facility in St. Thomas but, because of the restricted hours, which did not coincide with her hours at work or the times that Ellie made the transitions, she had not gone to Merrymount to complete the intake. I accept this as a reasonable decision on her part and that it was not designed to ignore any court order or to create inconvenience for Mr. Wainwright and his mother.

[111] When Patricia Riddell-Lamers testified, she said that it was the Board of Directors that ran the Early Learning Centre that made the decision that Mr. Wainwright could not attend at the centre. She confirmed that it was not because of any complaint made to them by Mrs. Wainwright. The Board had been given information that Mr. Wainwright was the subject of a domestic violence charge because Ellie had come to the Centre as a referral from the women’s shelter. They were also aware that Mr. Wainwright was subject to a probation order that contained restrictions regarding any contact with Mrs. Wainwright. Ms. Riddell-Lamers also testified that, in addition to this information, further concern was raised about Mr. Wainwright because he phoned each of the Centres operated by the same Board attempting to get information about Ellie. These phone calls resulted in the location that Ellie was attending to “lock down” the facility one day and to call Mrs. Wainwright to pick up Ellie. In addition to initially causing some alarm, the calls also raised privacy concerns. Ms. Riddell-Lamers agreed, however, that there was nothing in Mr. Wainwright’s manner during the phone call that gave rise to them having any safety concerns for Ellie or the other children.

[112] Ms. Riddell-Lamers acknowledged that, having made the decision in the first place, the Board had never reconsidered its decision. She agreed that the Board could change its decision and would be meeting on October 12, 2011. Counsel for Mr. Wainwright said he would write a formal request to the Board to revoke its earlier decision and Ms. Riddell-Lamers said she would support such a change. The law requires a parent to come in to the Centre to pick up his or her child and a child cannot be permitted to walk out to a car on his or her own. Ms. Riddell-Lamers testified that she was prepared to let one of the workers deliver Ellie to Mr. Wainwright in the car until the Board reconsidered its decision, thus relieving Ruth Wainwright of the need to attend with her son to pick up Ellie. It was agreed that counsel for Mrs. Wainwright would advise me of the outcome of that Board meeting. On November 3, 2011, I received correspondence from Mr. Wainwright’s counsel, copied to Mrs. Wainwright’s counsel, that at its meeting held on October 12, 2011, the Board rescinded the prohibition, thereby allowing Mr. Wainwright to attend at the daycare for the purpose of picking up and dropping off Ellie.

[113] It is clearly in Ellie’s best interests that the transition between her mother’s home and her father’s home take place at a location where Ellie is comfortable. All the evidence established that Ellie is comfortable and relaxed at the Centre where she has been receiving care since April 2009. Accordingly, there will be an order that the transition for Ellie will be at the daycare centre until she begins to attend public school. Hopefully, the same arrangement for the transition for Ellie can be at the school that she attends. While it became unnecessary, as a result of the Board’s decision, for me to make a determination with respect to the transition place, I included considerable evidence about the issue because the evidence of the parties on that issue is also applicable to the other issue to be determined at trial and to my conclusions in Part Two.

Issue Two – Decision-making for Ellie

[114] It was Mr. Wainwright’s position that he and Mrs. Wainwright should share the decision- making responsibilities for any issue affecting the health, education or welfare of Ellie including what school Ellie will attend. Indeed, the Minutes of Settlement which were filed at the trial indicated that if the parties were unable to resolve any of those issues they agreed to mediate/arbitrate the issue. They agreed to appoint a mediator to deal “effectively and in a timely way with any such issue relating to the child.” The Minutes of Settlement went on to provide that if Mr. and Mrs. Wainwright were unable to resolve the matter with the mediator, the issue would then be submitted to an arbitrator to be agreed upon by them or appointed by the court. In an apparent contradiction to that clause, the Minutes of Settlement also provide that if the parties cannot resolve the issue through mediation that the mediator, not a different arbitrator, could arbitrate the issue.

[115] It was Mrs. Wainwright’s position that the decision about where Ellie would attend grade school should be made by her. Her plan is that Ellie should go to Pierre Elliott Trudeau School which is a French Immersion school in St. Thomas where Ellie resides the majority of the time. It was her position that this was in Ellie’s best interests because the preschool in which she has been enrolled is a French Immersion school and Ellie has done well in that environment. In fact, the junior kindergarten program for Pierre Elliott Trudeau School is located at the preschool where Ellie now attends. It is thus her view that it is in Ellie’s best interests that she go to school in St. Thomas, most likely at Pierre Elliott Trudeau School.

[116] Mr. Wainwright, on the other hand, was of the view that the options for Ellie to attend school should be wider than what may be available in St. Thomas and should include Montessori and other programs in London. In addition, it had been his position that Ellie’s preschool should be changed to one in London, if the current preschool would not permit him to pick up Ellie or drop her off. It was his view that this change would not present any disadvantage or inconvenience to Mrs. Wainwright because she was employed in London and that she could easily pick up and drop off Ellie at a London preschool. He did not testify to any effect he thought the change might have on Ellie.

[117] Mr. Wainwright also testified that he had looked into schools recommended by the Fraser Institute. In spite of the fact that he had earlier thought that Ellie had cognitive difficulties, he has now formed the opinion that she is, in fact, a “gifted child” and, as a result, other schools that offer “gifted programs” should be considered for her.

[118] I find that Mr. Wainwright’s position in regard to where Ellie should attend school was based primarily on what would be best for him and was not focused on what was best for Ellie. I find that it is his goal to have Ellie attend school, and even preschool, in London where he lives, not in St. Thomas where Mrs. Wainwright lives. In spite of proposing Montessori schooling, he was vague about how the required tuition could be paid in light of his current financial circumstances. He was also not aware that a Montessori program was offered at Ellie’s current preschool.

[119] Mr. Wainwright was unaware that both St. Thomas and London public schools are operated by the same Board of Education and would have similar programs. His lack of investigation and knowledge of that fundamental fact supports my finding that Mr. Wainwright’s primary goal with respect to Ellie’s schooling is to have her registered in a London school. Many of his reasons for making proposals or criticizing decisions that had been made by Mrs. Wainwright for Ellie were based on his best interests, not Ellie’s. As an example, he proposed to change Ellie’s daycare to one in London because of his inability to pick her up at her current daycare in St. Thomas. The plan favoured his own convenience. I find that Mr. Wainwright had little appreciation for the impact on Ellie of being removed from the preschool she has always attended, where she clearly is comfortable and has done well. He had also not considered or made any inquiries as to whether the current subsidy Mrs. Wainwright was receiving from the city of St. Thomas was transferrable, whether either of them were eligible for a subsidy in the city of London or how daycare in London would be funded in the likely event that the current subsidy would end.

[120] Mrs. Wainwright, on the other hand, had as her first concern about any change in Ellie’s daycare the impact it would have on Ellie. As well, she had made inquiries about the transferability of the St. Thomas daycare subsidy and was advised that it was not available for a daycare in London. She also had determined by making inquiries that daycare subsidies in London were only available to working families who live in London. She lives in St. Thomas, not London and Mr. Wainwright does not work. Mr. Wainwright presented no evidence to the contrary, even though he testified again in reply.

[121] It is Mrs. Wainwright’s plan that Ellie will continue at her current daycare in the French Immersion program until she enters senior kindergarten when she will then attend Pierre Elliott Trudeau Public School which is the French Immersion school in St. Thomas. junior kindergarten for Pierre Elliott Trudeau School is held at Ellie’s current daycare. Unlike my assessment of Mr. Wainwright’s plans, I find Mrs. Wainwright’s to be “Ellie-focused” and in Ellie’s best interests. I am not concerned that she had not yet made contact with Pierre Elliott Trudeau School to get information about the principal, teachers and class sizes; all that information could be out of date by the time Ellie attends senior kindergarten. I find that to not give decision-making in regard to Ellie’s education to Mrs. Wainwright would not be in Ellie’s best interests for several reasons.

[122] I have already found that Mr. Wainwright’s goal is to have Ellie go to school in London. Mrs. Wainwright has testified, and I accept as true that she has no current intention to move from St. Thomas and the neighbourhood where Ellie spends the majority of her time, where she has friends and is settled. While there should be input from Mr. Wainwright, if there is a disagreement between them as to where Ellie will go to school in St. Thomas, it is in Ellie’s best interests that Mrs. Wainwright make the final decision. Ellie’s life cannot be placed “on hold” while her parents mediate and/or arbitrate every difference of opinion where Ellie should attend school. Ellie’s education plans cannot be subject to such a time-consuming and expensive process about which I will have more to say in Part Two of this judgment.

[123] After considering the evidence of both Mr. and Mrs. Wainwright as well as Ms. Riddell-Lamers with respect to Ellie’s performance and adjustment in the preschool program, and Mrs. Wainwright’s understanding of how consistency is important for Ellie at this stage of her life, I find that it is in Ellie’s best interests that Mrs. Wainwright make the decision about where Ellie will attend school in St. Thomas. Ellie lives primarily in St. Thomas. Ellie has always lived primarily in St. Thomas since the majority of her time is spent in the care of her mother. This decision-making authority to Mrs. Wainwright is only in respect to schools in St. Thomas or London or any other location within 40 kilometers of London. If Mrs. Wainwright makes plans to relocate, paragraph 14 of Minutes of Settlement which is included in my final order is engaged.

[124] Mr. and Mrs. Wainwright have not spoken with each other since the events of March 23, 2009 which gave rise to the assault charges against Mr. Wainwright. The attempts to use a communication book were not successful. I find that it is in Ellie’s best interests that Mr. and Mrs. Wainwright communicate with each other by e-mail. Mrs. Wainwright said that she has the same e-mail she had before they separated. Mr. Wainwright provided his e-mail during his evidence.

[125] It is also in Ellie’s best interests that Mrs. Wainwright communicate by e-mail in a timely way about any significant decision about Ellie’s education and where she is proposing to enrol her in school in St. Thomas and to give Mr. Wainwright an opportunity to provide some input. If there is disagreement, however, Mrs. Wainwright has the authority to be the decision maker. To make any other kind of order will continue to put Ellie in the middle of the ongoing conflict between her parents.

Minutes Of Settlement

[126] In the first part of this decision, I made reference to the provisions of the Minutes of Settlement related to dispute resolution which raised concern for the court. These paragraphs are:

13. If the Applicant and Respondent are unable to resolve any matter relating to custody, the parenting schedule, child support, any decision affecting the health, education or welfare of the child, they will mediate/arbitrate the issue. They will agree to appoint a mediator to deal effectively and in a timely way with any such issue relating to the child. If they are unable to resolve the matter with the mediator they will submit it to an arbitrator to be agreed upon by them or appointed by the court. The parties will pay equally the costs of mediation. If the parties cannot resolve the issue through mediation, the mediator will arbitrate the issue. If there is arbitration, the arbitrator will have the right to reapportion costs.

14. The arbitration shall be conducted in accordance with the Arbitration Act, S.O. 1991, c. 17, and shall be binding on the parties.

[127] I also determined that it was in Ellie’s best interests to give Mrs. Wainwright the decision-making authority regarding where Ellie will go to school. I did so for several reasons. One was to avoid unnecessary disagreements between the parties which will, as time goes by, create uncomfortable circumstances for Ellie and, thus, not be in her best interests. It was primarily, however, because of the inability of the parties to communicate effectively. Mrs. Wainwright is fearful of Mr. Wainwright and her evidence supports this finding. In addition, Mr. Wainwright has little insight into how the assault has affected Mrs. Wainwright and how this impacts on their ability to communicate. This lack of communication has continued even though they have engaged in mediation and arrived at a “parenting plan” together, in spite of Mrs. Wainwright’s lack of confidence in the process as described in her testimony.

[128] Based on the evidence that I heard from the parties, much of which I have made reference to in Part One, I am troubled by paragraphs 13 and 15 of the Minutes of Settlement and question whether they are in Ellie’s best interests and therefore, whether they should be included in the final order.

[129] Alternative dispute resolution is appropriate in many family law cases. Parties are encouraged to explore alternatives to litigation to resolve their differences. The process of litigation can sometimes create animosity between parties, even when there was none before. If that happens, the victims are their children. Many separating parents do not come to court except to obtain a divorce on an uncontested basis after arriving at a resolution of all the issues between them by way of a separation agreement. Parties are free to contract with each other to settle issues including custody and access, child support, and all other issues arising from their separation. Such cooperation is to be encouraged. Changes to the Family Law Rules, O.Reg. 114/99, introduced as a result of the new Family Law Initiatives announced by the Ministry of the Attorney General in December 2010, were implemented on September 1, 2011. They provide a mechanism for parties who are separating to learn more about litigation, the alternatives to litigation and how and where to obtain the services of a mediator.

[130] Mandatory Information Programs are in place in almost every court location in the province. In addition to providing general information about separation and divorce as well as property and support issues, separating parents who have children are required to attend a second part of the mandatory program which deals specifically with the effect of separation on children and how conflict between the parents impacts on their children. As well, free on-site mediation services are available at most court locations to assist parties in arriving at their own solutions which may then be incorporated into a consent order. Off-site mediation on a sliding fee scale is also made available to separating parties to deal with all issues arising from their separation.

[131] At the same time, mediation is not appropriate in every circumstance involving family breakdown. Even before mediation was made a mandatory step in most civil cases, much discussion and debate had taken place as to whether mediation should be mandatory in family law matters. As an example, the Ontario Association for Family Mediation (“OAFM”), an organization which describes itself as “fostering a community in which family mediation is the first choice for resolving family conflict” approved a “Policy on Abuse” at its Annual General Meeting on June 11, 1994. It was titled “Mediation of Disputes Involving Domestic Violence” which it acknowledged was based on many of the concepts and recommendations from the “Report from the Toronto Forum on Woman Abuse and Mediation, June 1993”. This policy can be found at Ontario Association for Family Mediation, OAFM Policy on Abuse, online: Ontario Association for Family Mediation www.oafm.on.ca/mediators/abusepolicy.html. It contains an instructive history of the issues related to mediation involving parties who have been either the perpetrator or victim of a domestic assault. I have included much of the document because it provides both a history and context to the development of the procedural guidelines.

In June of 1991, the Ontario Association for Family Mediation launched an effort to involve North American professional dispute resolution associations in the development of joint policy statements regarding women abuse and mediation. This effort was a direct response to the concerns raised by women’s and children’s advocates. In May of 1992, 14 mediators representing officially and unofficially the Academy of Family Mediators, Family Mediation Canada, the Ontario Association for Family Mediation and the Society of Professionals in Dispute Resolution met with approximately 50 women’s and children’s advocates for the purpose of hearing their serious concerns about mediation in cases of abuse. Representatives of the black, native, immigrant and handicapped women’s communities were invited to address the additional concerns of these groups. In March of 1993, representatives of most major family mediation associations met with several leaders and front line workers who assist abused women and children, including women of colour, immigrant women and men who batter. Together they prepared joint recommendations for presentation at the 1993 meetings of the mediation associations.

It was agreed that these recommendations would address primarily:

• the education and training of mediators,

• the skilful screening of candidates for mediation,

• safety issues in mediation,

• alternatives to mediation for abused women.

The concern behind these recommendations was the alarming police statistics that show that more than 95% of complaints to police about abuse are made by women against male perpetrators. A recent survey by Statistics Canada revealed that approximately half of all women have experienced at least one incident of violence since the age of sixteen and 25% of all women have experienced violence at the hands of a current or past marital partner. This incidence is higher in separated or divorced women. The Toronto Forum concluded that “violence against women and its impact on children continue to pose serious questions for dispute resolution professionals and the practice of mediation. Women’s advocates, mediators, mental health workers, lawyers and the judiciary are increasingly working together to understand the complex consequences of women abuse. In recent years, efforts at dialogue and collaboration have increased among mediators and women’s advocates. They are starting, albeit cautiously, to address co-operatively and constructively the benefits and risks associated with mediation and the unique needs of abused women”.

A Word about Language:

The Toronto Forum chose to use the phrase “Women Abuse” to highlight the fact that complaints about physical abuse, stalking and endangerment in intimate relationships are made primarily by women against men. Where abuse is directed at men by women or where abuse occurs in same sex relationships, the same principles and safeguards should apply. Throughout the rest of this document the term domestic violence or abuse will refer to any woman, man or child who experiences the use or threat of physical, psychological, emotional or economic intimidation, coercion or force in an intimate relationship. The concern in mediation is the impact that abuse has on its victim. Abuse functions to secure power and control for the abuser and to undermine the safety, security, self esteem and autonomy of the abused person.

Abuse is defined broadly to include, but not be limited to:

• physical violence, including assault (pushing, shoving, slapping, choking, hitting, biting, kicking, etc);

• sexual assault;

• kidnapping, confining;

• use of or threat with a weapon;

• threats against children;

• unlawful entry;

• destruction or theft of personal property;

• violence against pets;

• stalking, harassment;

• psychological and verbal abuse including sarcastic; degrading and humiliating comments and name calling;

• controlling and/or manipulative behaviour;

• withholding of economic and other resources;

• penalizing the abused person for asserting his/her independence or autonomy, etc.

The following standards of practice acknowledge that “parties to mediation must be able to negotiate safely, voluntarily, and competently in order to reach a fair agreement. Mediation cannot be fair if one of the parties is unable to mediate effectively and competently. “Abuse in intimate relationships poses serious safety risks and may significantly diminish a person’s ability to mediate”. For this reason, mediators need to identify “which cases are inappropriate for mediation, which are appropriate for specialized mediation and which may proceed in the usual way”.

Assumption: Mediation in cases of Domestic Violence is probably inappropriate.

Family mediation cases in which there is or has been domestic violence are complicated and can be dangerous to the participants and the mediator. Therefore, beginning mediators and mediators not trained or experienced in domestic violence should not accept referrals of these cases, but rather should refer them for screening to a more appropriate resource (such as a lawyer or woman’s advocate) or to an experienced mediator who has considerable professional experience in dealing with cases involving domestic violence. Another choice would be for an inexperienced mediator to co-mediate with someone who has considerable professional experience dealing with domestic violence in order to screen for appropriateness.

• Parties to mediation must be able to negotiate safely, voluntarily, and competently in order to reach a fair agreement. If the level of domestic violence is sufficient to jeopardize a party’s ability to negotiate without fear of duress, the case should not be mediated. The criterion should be the victim’s ability to participate effectively.

• There should be no mediation concerning the violence, itself. For instance, an offer to stop the abuse in exchange for something else should not be allowed in the mediation process.

• When safety is an issue, the mediator’s obligation is to provide a safe environment for cooperative problem-solving or, when this does not seem workable, to help the clients consider more appropriate alternatives.

• Above all, the mediator must promote the safety of all participants in the mediation process and its outcome.

OAFM Standards for Assessing whether Mediation

may be Appropriate

A. Prior to commencing mediation, all clients should be screened for any occurrences of abuse to determine which cases are inappropriate for mediation, which require additional safeguards, in addition to, or instead of mediation, and which should be referred to other resources.

1. Conduct initial screening separately with the parties. This could be done a variety of ways. For example, preliminary screening could take place within a brief telephone contact. This should be supplemented by a face-to-face interview or a written questionnaire. Using a structured questionnaire, basic information can be gathered which includes details about any history of abuse. If screening is not done separately, a victim may be unwilling to reveal the presence of abuse and/or may be placed at risk for revealing the abuse.

2. Screening should continue throughout the mediation process.

B. The issue of voluntariness is critical when it comes to creating a safe place for couples to meet and negotiate.

1. OAFM recommends that mediation be voluntary on the part of the participants. It would be acceptable to mandate couples to orientation sessions at separate times during which information could be given about available options for resolving family law disputes (litigation, mediation, arbitration, custody assessments, lawyer assisted negotiation, etc. and about the impact of separation and divorce on parents and children). Inquiries about abuse should be made during the separate orientation sessions, before mediation is offered as an option.

C. Clients should be strongly encouraged to consult with attorneys prior to mediation and certainly before an agreement is finalized.

D. Mediators must be knowledgeable about abuse. Training for mediators should include the following:

1. Issues related to physical and psychological abuse and its effect on family members;

2. The impact that abuse (including witnessing abuse) has on children;

3. Effective techniques for screening, implementing safety measures, and safe termination;

4. Referral to appropriate resources, in addition to, or instead of mediation;

5. Sensitivity to cultural, racial and ethnic differences that can impact the mediation process that may be relevant to domestic violence.

E. Where a decision is made that mediation may proceed, mediators need to meet standards of safety, voluntariness, and fairness. When mediators have concerns, they should inform their clients that they are not neutral about violence or safety. Mediators should inform clients that they have a positive obligation to report past or present child abuse and threats of future abuse to any of the participants.

Procedural Guidelines

1. Obtain training about abuse and become familiar with the literature.

2. Never mediate the fact of the abuse.

3. Never support a couple’s trading non-violent behaviour for obedience.

4. Set ground rules to optimize the protection of all parties.

5. When appropriate and possible, arrange separate waiting areas and separate arrival and leaving times, permitting the victim to arrive last and leave first with a reasonable lag in time for safety purposes.

6. Use separate meetings throughout the mediation process when appropriate, necessary, and/or helpful.

7. Consider co-mediation with a male/female mediation team, as an option.

8. Allow a support person to be present in the waiting room during screening, and/or during the mediation session.

9. Maintain a balance of power between the couple, and, if this is not possible, terminate the mediation process and refer the couple to an appropriate alternative. Such alternatives might include shelters, therapists, abuse prevention groups, and attorneys.

10. Where fairness of outcome may be an issue, the mediator should refer the clients to their counsel, financial advisor, support person, or other relevant resource for information and advice.

11. Terminate the mediation if either of the participants is unable to mediate safely, competently, and without fear or coercion. Precautions should be taken in terminating to assure the safety of the parties. For example, the mediator should not reveal information to one party or to the court that could create a risk for the other party.

12. Consider offering a follow up session to assess the need for a modification of the agreement.

[132] A Toronto mediation service provider, Riverdale Mediation, published the following information entitled “Screening for Power Imbalances” at Riverdale Mediation, Screening for Power Imbalances, online: Riverdale Mediation www.riverdalemediation.com/arbitration/screening-for-power-imbalances/.

Under Ontario law, family arbitrators and parenting coordinator have a duty to ensure that the parties are first “screened” to ensure that they are suitable candidates.

Screening is a long-established first step in mediation; Ontario’s accredited family mediators are required to do it by their Standards of Practice. Screening, however, is new to arbitration.

Screening is a simple concept. It’s purpose is to ensure that parties choose the process that is best suited to their personalities, circumstances and needs. The assumption is that the professional— the mediator or arbitrator– has a responsibility to make reasonable enquiries because he or she is in the best position to make this assessment. What constitutes a ‘reasonable’ enquiry is different in mediation than in arbitration.

Screeners are looking for anything that might make one or both parties feel particularly vulnerable. This includes mental illness; drug or alcohol dependencies; physical illness; challenging personalities; intense anger or blame; a history of domestic violence; depression, and so on. The screener is not going to judge or blame a party, nor is the screener going to conduct a clinical investigation. They are only going to find out what each person is worried about, and assess whether the process can be designed to address those concerns.

For instance, two lawyers and their clients may all wish to retain a certain mediator. It is the mediator’s responsibility to screen the parties to ensure that his or her mediation process is in fact a good choice for them. If not, it is the mediator’s responsibility to help the lawyers and their clients choose a better process.

In mediation, the mediator typically meets with each party separately, before mediation starts, to screen the parties and, assuming they are good candidates, to assess how to structure the mediation so that it will work best for them.

In arbitration, screening serves the same purpose. The screener’s function is to ensure, as best he or she can, that both parties will be able to fully, freely and safely participate in the arbitration process. If the process is a mediation-arbitration, the regulation under the Arbitration Act permits the mediator to do the screening as he or she usually would. If the process is an arbitration only, the regulation requires that a third party conduct the screening, and that this person provide the arbitrator with a “report” about the screening.

At Riverdale Mediation, we take our responsibility for screening seriously. We believe that screening is an important first step in arbitration. Arbitration clients are screened in a manner we feel best accomplishes the purposes of screening. If the process is mediation-arbitration, we will meet each party separately before the mediation to do the screening, as we do in all mediations. If the process is an arbitration alone, we ask both parties to meet individually with a third party screener who will provide us with a prescribed report.

The regulation under the Arbitration Act that deals with the screening requirement is quite vague and the issue is not without some controversy. There are several accepted screening processes in use; each arbitrator will choose the screening process that he or she feels best suits the intention of the regulation.

Because the mediator was not called as a witness at trial, I am unaware whether this screening process was followed and successfully completed.

[133] The Ontario Ministry of the Attorney General provides the following information on arbitration and adopts the OAFM Policy on Abuse. This policy is found at Ontario Ministry of the Attorney General, Training Required to be a Family Arbitrator, online: Ontario Ministry of the Attorney General www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/training.asp.

There is no prescribed method of screening for family arbitration and no prescribed screening report. There is, however, an obligation on family arbitrators to ensure that parties have been screened for power imbalances and domestic violence as these relate to the arbitration process.

Accordingly, all family arbitrators must have received at least a training program of 14 hours (all taught in a week or less) in screening parties for domestic violence and power imbalance. The training should be provided by a reputable provider and include attention to most or all of the following elements:

• the nature and extent of domestic violence

• the nature of the arbitration process and how it differs from mediation or direct negotiations

• the roles and responsibilities of the screener

• how to screen for abuse and power imbalance

• the use of one or more tools for screening, including in an arbitration context

• the form and content of screening reports

• limitations of screening techniques

• the effects on children of exposure to domestic violence

• how the best interests of the child are affected by domestic violence

• how to identify concerns of people from diverse cultures

• how to determine when arbitration is or is not appropriate, and how to develop options for proceeding with arbitration when arbitration would be appropriate with safeguards in place

• how to adapt parenting plans when domestic violence is present

• knowledge of community resources to deal with domestic violence.

This training should follow the principles set out in the Ontario Association for Family Mediation's Policy on Abuse, adjusted for use in arbitration. The training is expected to include a detailed review one or more of the following "tools" or related or equivalent tools for screening, together with a discussion of their relevance and application to the arbitration process:

• Ellis and Stuckless, Domestic Violence Evaluation (DOVE)(2006)

• Michigan Supreme Court, Domestic Violence and Child Abuse/Neglect - Screening for Domestic Relations Mediation (2006)

• Linda Girdner, Conflict Assessment Protocol (CAP): Screening for spouse abuse in divorce mediation (1990)

• Paul Charbonneau, Maine Court Dispute Resolution Service: Screening for Domestic Violence and Abuse in Domestic Relations Mediation: Screening and Assessment Guidelines (1997)

• Peter Jaffe, Children of Domestic Violence: Special Challenges in Custody and Visitation Dispute Resolution (1996)

• Erickson and McKnight, Mediating spousal abuse divorces

The law does not currently require particular training or background for people who are called on to screen for domestic violence and power imbalances for parties contemplating family arbitration. Nor does it prescribe the form and content of the screening report to be delivered.

However, the screeners should ideally have taken similar training and should use similar tools to those taken and used by arbitrators. They should understand the application of screening tools to the arbitration process. This will ensure that they can be helpful to the parties that need screening and to arbitrators who must consider their reports.

[134] All of these authorities make clear that the “majority opinion” was and continues to be that mediation should not be mandatory in family law cases because of what is often seen to be a power imbalance between the parties, sometimes the result of the historic nature of the relationship, cultural reasons or domestic violence in the relationship. Chief Justice Warren Winkler made certain observations in a recent article entitled “Advocacy in Mediation: Tips” The Advocates’ Journal 30:4 (March 2012) 3, which was also presented to the Law Society of Upper Canada on November 17, 2011. In that article Chief Justice Winkler sets out as his first tip “Is the case appropriate for mediation?” He acknowledges that not all cases are appropriate for mediation, and although he characterizes family law cases as those in which mediation is a “must”, he also recognizes at p. 3 that “mediation is not a panacea” and that “there is an obvious downside if it is unsuccessful” including “the risk of the client being subjected to intimidation or abuse.” Even the regulations which were passed to support the new Family Law Initiatives did not give the court the authority to order parties to mediate their disputes. Rule 17(8)(iii) provides that the court can only order intake for mediation.

[135] The evidence that was given by both parties at trial leaves me with serious concerns about whether this is an appropriate case to include a requirement to mediate/arbitrate as part of a final court order and, thus, to make it mandatory especially in light of Mrs. Wainwright’s obvious ambivalence about the mediation process. This concern is based on the principle that the best interests of the child remain paramount in any decision involving a child. This principle is enshrined in s. 24 of Children’s Law Reform Act, R.S.O. 1990, c. C.12 and ss. 16(8), 17(5) of the Divorce Act, R.S.C. 1985 (2d Supp.), c. 3:

[136] The Children’s Law Reform Act provides the following:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

25. Where a domestic contract as defined in the Family Law Act makes provision in respect of a matter that is provided for in this Part, the contract prevails except as otherwise provided in Part IV of the Family Law Act.

26. This Part does not deprive the Superior Court of Justice of its parens patriae jurisdiction.

[137] The Divorce Act provides:

16. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

17. (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[138] The Family Law Act, R.S.O. 1990, c. F.3, contains the following directions:

54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs. [Emphasis added.]

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[139] The inclusion of a provision in a final order of the court that makes mediation and arbitration “mandatory” could be interpreted as a prohibition against the parties going to court to deal with disputes involving Ellie. In the Minutes of Settlement at para. 10, there is a provision that issues involving the mobility of either party who seeks to change Ellie’s residence beyond a 40 km point could be determined by court order. Otherwise, para. 13 specifically requires Mr. Wainwright and Mrs. Wainwright to mediate/arbitrate “any matter relating to custody, the parenting schedule, child support, any decision affecting the health, education or welfare of the child.”

[140] I could find no case law that dealt specifically with a refusal by a court to include in a final order a requirement to mediate/arbitrate child-related issues where such a provision had been agreed to by the parties.. The following cases, however, are worth noting since they address some of the courts’ general responsibilities with regards to the custody of, and access to, children and how a court cannot ignore that most fundamental of obligations.

[141] In Strobridge v. Strobridge (1994), 1994 CanLII 875 (ON CA), 18 O.R. (3d) 753 (C.A.), the Ontario Court of Appeal concluded that a motions judge had erred when he delegated the determination of a father’s access to a third party, namely, the London Custody and Access Project. Writing for the court, Osborne J.A. held that the motions judge should not have “brought a third party into the picture”, nor left to it the important decision of “whether and under what circumstances access would be exercised” (Strobridge, at para. 39). According to the court, there was no authority, either statutory or otherwise, that would permit this sort of delegation (Strobridge, at para. 39).

[142] Although the parties in Strobridge had originally set out their custody and access in a final order arrangement in a separation agreement, that document did not contain a provision requiring mediation or arbitration in the event that a dispute arose between the parties. Consequently, it might be said that the weight to be assigned to the Strobridge principle in a case where the parties did have a mediation/arbitration clause should be minimal; indeed, while the Court of Appeal was not enthused about leaving a custody and access decision to an entity that had not been selected by the parties, a court’s attitude might be different where the parties have stated in their written agreement that a custody matter will be referred to a third party mediator or arbitrator. A response to this kind of a criticism is set out in the court’s ruling in McGrath v. Hawketts, 2009 NBQB 216, 347 N.B.R. (2d) 261 below. Nevertheless, the court’s view in Strobridge may be indicative of a concern on the part of the courts to maintain some control over custody and access disputes in circumstances where there is evidence to support a finding that the agreement between the parties was not in the best interests of a child.

[143] The parties in Stonier v. Stonier, 2004 BCCA 307, 4 R.F.L. (6th) 220, had incorporated a comprehensive settlement into an interim court order which provided that they were to have joint custody of their child, though she was to live primarily with the mother. At the outset of its analysis of the merits of the appeal, the British Columbia Court of Appeal noted that “an agreement between the parents concerning the custody of their children cannot oust the jurisdiction of the court to determine the issue of custody” (Stonier, at para. 21). Further, it held that when courts do make decisions with respect to custody and access, such decisions must be premised on a consideration of the best interests of the child, though an agreement that had been made between the parties would constitute a factor to be taken into account (Stonier, at para. 21). This idea that courts can ignore a provision with respect to custody or access that is contained in a domestic agreement has been enshrined in Ontario in s. 56(1) of the Family Law Act, set out earlier in this decision. The Minutes of Settlement in the case before me provide at para. 34 that “These Minutes of Settlement constitute a domestic contract within the meaning of the Family Law Act.”

[144] The parties in Lenney v. Lenney (1996), 1996 CanLII 10601 (AB KB), 194 A.R. 50 (Q.B.) were divorced in 1995. At that time, it was agreed by them in their judgment of divorce that they would have joint custody of their two children. In the event that any conflict arose between them, the judgment included a provision whereby the parties agreed to engage in mediation, and further, that this would be “followed to its conclusion prior to either party seeking relief from the Court” (Lenney, at para. 1). Sometime thereafter, the mother decided that she should have sole custody of the two children and therefore, brought a motion requesting such an order. In its dismissal of the mother’s motion as “premature”, the court pointed out that she had not first endeavoured to resolve the matter through mediation as she had promised to do in the agreement she had entered into with her former husband (Lenney, at para. 36). I find the court’s analysis in Lenney helpful in considering the issue before me.

[145] At para. 17, the court stated that while ordinarily an agreement made in the commercial or business context to mediate or arbitrate will be enforced by the court, the same will not always be true in the case of a domestic contract:

The reason for the difference between the family law situation and the commercial one is that the best interests of children – where the children are urgently in need of intervention by the court – constitute an even more important priority than the need to re-enforce [sic] the importance of keeping promises set out in a contract.

[146] Thus, the court held that where it is in the best interests of the child or children to do so, courts will intervene before the mediation process has concluded and issue its own decision with respect to custody and access. However, Veit J. noted that such interference must be tempered by the requirement that there be some urgent or exigent circumstance warranting intervention. In other words, “unless special circumstances exist, the court should enforce the agreement between the parties to mediate” (Lenney, at para. 18). Looking to the facts of the case before her, Veit J. found that there was no urgency or threat to the best interests of the children, and so concluded that it would be improper for her to interfere with the parties’ agreement at point.

[147] Veit J. made two other observations in her judgment that, while not the decisive factors, remain important. First, she noted in her conclusion that requiring parties to adhere to a contractual term that calls for mediation of custody and access issues is “very much in the best interests of children” (Lenney, at para. 37). The rationale said to underlie this conclusion was rooted in the fact that mediation often enables parents to come to “healthy, reasonable” solutions to their conflicts, as opposed to the adversarial process where “children are often drawn into the fray” (Lenney, at para. 37). Veit J.’s second observation related to courts’ parens patriae jurisdiction: “where children are concerned, the state might still have a role even though the parents have not asked for intervention” (Lenney, at para. 30).

[148] The suggestion that the best interests of the child may enable a court to override or disregard a provision in a separation agreement governing custody or access was also recognized in the decision of the Ontario Superior Court of Justice in Duguay v. Thompson-Duguay (2000), 2000 CanLII 22515 (ON SC), 7 R.F.L. (5th) 301 (Ont. S.C.). At para. 31, Perkins J. noted that where an agreement deals with custody or access, even if it is in proper form, “the court is free to disregard those terms – though on other matters it still prevails over the statute – if the best interests of a child are, in the court’s opinion, not served by the contractual terms” (Duguay, at para. 32). The court also discussed at para. 31 the fact that arbitration and arbitration clauses, albeit well-suited to commercial contracts, were not as appropriate in the context of family law disputes:

The legislature has given the courts clear instructions to exercise the highest deference to arbitration awards and arbitration clauses generally. However, the Arbitration Act, 1991 governs all kinds of disputes, typically but not exclusively commercial. Its term about enforcing arbitration clauses and awards are not framed particularly for family law, and still less are they drawn for custody and access matters.

[149] The parties in Duguay had signed minutes of settlement whereby they had agreed to arbitrate any access disputes. When the father sought to change the weekend access arrangements that had been in place, the mother refused to attend mediation or arbitration, citing, among other reasons, the fact that she could no longer afford the proceedings and that she had lost confidence in the parties’ arbitrator. The father’s application to enforce the arbitration award that had been made without the mother’s participation was dismissed. Perkins J. ultimately made a court order on the issue of access, and justified the court’s intervention by stating that “the imposition of mediation would provide another source of strife, the effects of which would be felt by the children” (Duguay, at para. 36). Also, as in Lenney, he invoked the court’s parens patriae power, which he asserted gave him jurisdiction to intervene where it was necessary in the best interests of the children (Duguay, at para. 41).

[150] In M.K. v. M.C., 2007 ONCJ 456, the Ontario Court of Justice was asked to rule on whether an applicant father should be granted interim access to his child in advance of a final resolution of the parties’ dispute by mediation or arbitration. The respondents in this case were same-sex co-partners and the custodial caregivers of the child. Although the decision did not specify the father’s relationship to the respondents, the facts imply that he had probably acted as a known sperm donor for the respondents.

[151] On October 4, 2002, the parties had signed a “paternity, support, custody and access” agreement that specified that all matters or conflicts relating to the child were to be dealt with by means of mediation/arbitration (M.K., at para. 3). Five years later, the child’s mother sought to unilaterally and abruptly terminate the father’s agreed-upon access. In her response to the father’s application for interim relief, the mother argued that the Ontario Court of Justice had no jurisdiction to award temporary access to the father, as the parties’ agreement made clear that all such disputes were to be resolved by means of mediation/arbitration.

[152] The court awarded the father temporary access to the child, though at the same time, ordered the parties to attend mediation/arbitration “forthwith” in order to affect a final resolution to their dispute (M.K., at para. 33). In order to bolster his assertion that the court was entitled to intervene in this case despite the existence of the mediation/arbitration clause, Spence J. pointed to one of the exceptions to the statutory prohibition on court intervention contained in s. 6.3 of the Arbitration Act, that is, to “prevent unequal or unfair treatment of parties to arbitration agreements”. The mother’s “high-handed” conduct (M.K., at para. 17), which had caused the father’s access rights to be effectively extinguished, constituted “unequal or unfair treatment” warranting the intervention of the court. Spence J. also grounded his decision in the principle expounded in Lenney and Duguay (that courts can intervene and assume jurisdiction where this is in the best interests of the children) and made reference to the doctrine of parens patriae, although not suggesting that the Ontario Court of Justice had that inherent jurisdiction.

[153] In McGrath v. Hawketts, 2009 NBQB 216, 347 N.B.R. (2d) 261, the parties had incorporated the terms of a separation agreement, which contained the terms of a Joint Parenting Agreement into a corollary order for relief at the time of their divorce in May 2004. According to the terms of the order, the parties were to have joint custody of the sole child of the marriage. The Parenting Agreement also incorporated a provision that would require the parties to attend mediation and, thereafter, arbitration, to resolve any disputes. When the mother relocated with the child to an area that made it difficult for the father to exercise his access rights, the father brought a motion to vary access. The mother responded by bringing a motion to stay the court proceedings pursuant to s. 7(1) of the Arbitration Act, S.N.B. 1992, c. A-10.1, arguing that the terms of the original order made mediation/arbitration a “precondition to any legal proceedings” (McGrath, at para. 4).

[154] In refusing the mother’s request for a stay of proceedings, Morrison J. reaffirmed the principle that was expressed in both Lenney and Duguay; that is, that the terms of any separation agreement forged by the parents must yield to the best interests of the child in matters relating to custody and access (McGrath, at para. 13). However, at the same time, the court rejected the assertion in Lenney that intervention made in defence of the best interests of the child will only be justified where there are shown to be exigent circumstances. Morrison J. reasoned that the court’s power of parens patriae, which in New Brunswick is set out in s. 11(9) of the Judicature Act, R.S.N.B. 1973, c. J-2, empowered the court to override an agreement where this was in the best interests of the child to do so. A lack of urgency or immediate jeopardy did not work to undermine the court’s ability to exercise this power (McGrath, at para. 15).

[155] Morrison J. also made reference to what he regarded as an unsettling corollary of the mother’s argument that the court’s jurisdiction could be ousted under s. 7 of the New Brunswick Arbitration Act: “the practical effect is to place the determination of custody and access in the hands of an arbitrator chosen by the parties” (McGrath, at para. 18). Since it was the courts who had been entrusted by Parliament and the provincial legislatures to make the “crucial decision[s]” with respect to custody and access, it would be wholly inappropriate to reallocate this task to a third party (McGrath, at para. 18). Morrison J. cited Strobridge in support of this latter proposition, and ultimately concluded that for that reason, courts could and should not defer to an arbitration clause when dealing with a dispute regarding custody and access.

[156] Taken together, the cases referred to above make clear that courts will be justified in ignoring a mediation/arbitration clause contained in a domestic contract where it can be shown that the enforcement of the same would be contrary to the best interests of a child caught at the centre of a custody or access dispute. In the case before me, I must decide whether to include such a clause in a final order in accordance with para. 35 of the Minutes of Settlement.

[157] Lenney, Duguay, M.K. and McGrath involved agreements that had already received prior judicial approval in that they had been incorporated into a court order on consent before trial. In the case before me, I heard evidence from the parties and as a result, made findings of fact based on that evidence. As a result of my findings I have concern about the ability of Mr. and Mrs. Wainwright to mediate/arbitrate their dispute pursuant to the principles set out in the OAFM and the Ministry of the Attorney General documents contained in this judgment. In my view, my findings require me to act pre-emptively in modifying the agreement regarding “Dispute Resolution” in order to ensure what I have determined to be in Ellie’s best interests. To include in a court order a requirement that the parties must first mediate and then arbitrate any and all disputes involving Ellie and then be faced with having to argue in court at another time about whether either of them can ask for the assistance of the court runs afoul of common sense and is not in Ellie’s best interests.

[158] The interventionist position that has been adopted by courts in some of the mediation/arbitration clause decisions to which I have referred earlier has not gone unnoticed by the family law bar, nor has it escaped criticism by some of them. Indeed, the rulings in Lenney, Duguay and McGrath have been the subject of some disagreement by practitioners, some of whom themselves serve as mediators and arbitrators. For example, in their brief review of the court’s decision in McGrath, prominent family law lawyer Philip Epstein and mediator Lene Madsen state the following (Philip Epstein & Lene Madsen, “Alternative Dispute Resolution: McGrath v. Hawketts, 2009 CarswellNB 341 (N.B. Q.B.)” Epstein and Madsen’s This Week in Family Law (17 November 2009) (available on WLeC)):

The Court commented that “in my view, parens patriae jurisdiction enables the court to intervene to override private agreements where it is in the best interests of the child to do so.” This ignores the fact that parens patriae jurisdiction is reserved for situations where there are legislative gaps.

Further, said the Court, if the court’s jurisdiction were ousted by section 7 of the Arbitration Act, the practical effect would be to place the determination of custody and access in the hands of the arbitrator chosen by the parties. Exactly. That is what an arbitration clause is supposed to do! Where parties make an agreement to use an alternative dispute resolution process, the prevailing case law holds that parties are to be kept to their bargain.

[159] Perhaps in anticipation of this concern about holding parties to their agreements, Veit J. noted in Lenney that the best interest of children “constitute an even more important priority than the need to re-enforce [sic] the importance of keeping promises as set out in a contract” (Lenney, at para. 17).

[160] In addition to their apparent disagreement with the prevailing substantive law, critics have also charged that the mediation/arbitration clause decisions, as well as the interventionist attitudes they promote, will have the effect of eroding certainty and finality in parties’ legal relations, which is usually heralded as one of the great advantages of alternative dispute resolution. In this respect, Andrea Himel has asked: “[H]ow can one expect finality through arbitration, if the Court will always re-open the issue under its parens patriae jurisdiction?” (Andrea Himel, “Mediation/Arbitration Agreements: The Binding Comes Undone” (2002-2003) 20 Can. Fam. L.Q. 55, at p. 63).

[161] With respect to whether a court may or should vary an agreement reached by parties which resolves the issues arising from their separation on a final basis, the Supreme Court of Canada in two recent decisions, L.M.P. v. L.S., 2011 SCC 64 and R.P. v. R.C., 2011 SCC 65, set out some principles to be considered when the weight to be given to those agreements is in issue. Although much of what was said by the Supreme Court of Canada in these decisions is only applicable to issues relating to spousal support, there are a number of statements in both decisions that apply to final agreements between parties.

[162] For example, in L.M.P. v. L.S., at paras. 14-15, Abella and Rothstein JJ. said this:

For sound policy reasons, family law permits and encourages separating spouses to work out their own arrangements through the use of separation agreements... Agreements are desirable because individuals should largely be free to order their lives as they wish; because “the parties themselves are in the best position to evaluate the comparative advantages of alternative arrangements ... At the same time, contract law principles are not rigidly applied in the family law context. Because a separation may result in dramatic life changes and emotional stress, Parliament has decided through the Divorce Act that these circumstances give rise to the possibility that the ability of separating spouses to realistically and objectively assess their current and future needs and preferences can be impaired. ... For these reasons, the Divorce Act authorizes courts to vary the spousal support terms...”

[163] Although the principles enunciated here are made specifically with respect to spousal support terms incorporated into an agreement, they nevertheless make clear the fact that parties’ agreements are always subject to variation by, and the scrutiny of, reviewing courts. This is done in order to protect those spouses whose ability to negotiate effectively might be compromised by the tumultuous emotional environment in which separation agreements are typically crafted.

[164] At para. 71, Cromwell J. said: “...Miglin affirmed that unimpeachably negotiated agreements should receive considerable weight provided that they represent the intentions and expectations of the parties and substantially comply with the objectives of the Divorce Act as a whole.”

[165] Courts should defer to the terms set out in parties’ separation agreements where it is clear that those agreements properly mirror their intentions and expectations, and where they also comply with the objectives and directions set out in the Divorce Act. The corollary to this would seem to be that where an agreement is not made in accordance with the parties’ intentions and expectations, or where it contravenes any of the objectives set out in the Divorce Act, it may be open to a reviewing court to make an order that is inconsistent with the parties’ agreement. Although it is important for the courts to emphasize certainty in legal relations, this should not be done at the expense of ensuring that agreements are “fairly negotiated and comply substantially with statutory objectives” (L.M.P., at para. 74).

[166] Based on the authorities outlined above, it is clear that the Superior Court of Justice can refuse to give judicial approval to the mediation/arbitration clause contained in the parties’ minutes of settlement, provided it is determined that to do otherwise would risk the best interests of the child. The Superior Court’s jurisdiction to do so is grounded in both its parens patriae jurisdiction (s. 69 of the Children’s Law Reform Act), the statutory requirement to disregard domestic agreements where they do not accord with the best interests of the child (s. 56(1) of the Family Law Act), and its general duty not to abdicate responsibility for custody and access issues to third parties.

[167] In the case before me, both parties were represented by experienced counsel during the referral to mediation to an experienced mediator, at the drafting of the Minutes of Settlement, and at trial. In questioning the appropriateness of including paras. 13 and15 of those Minutes in the final order, I am by no means suggesting that any of them acted inappropriately or took any steps that were not in accordance with the instructions of their respective clients. At the same time, there was no one in the negotiations who represented Ellie. It may not have been until the parties testified in the presence of each other at the trial that the extent of Mrs. Wainwright’s fear was quite so obvious and that Mr. Wainwright’s difficulty in focusing on Ellie’s needs when they conflicted with his own was demonstrated. In any event, I am satisfied that even though the parties both executed the Minutes of Settlement with the assistance of counsel, I am not bound to include paras. 13 and 15 of those Minutes in the final order which I find are not in compliance with either the Divorce Act and the Children’s Law Reform Act or the relevant case law that when making an order in regard to a child that the best interests of the child is the paramount consideration.

[168] Accordingly, a final order shall issue as follows:

1. In accordance with paragraphs 1, 3, 4, 5, 8 and 10 of the order of Haines J. of December 20, 2010;

2. The applicant and respondent shall consult with each other promptly on any major decision affecting the health, education or welfare of the child, Elizabeth Ruth Christine Wainwright, born […], 2008;

3. With respect to the child Ellie’s education, the respondent mother shall consult by e-mail with the applicant father no later than May 31, in the year in which Ellie will be attending a different school in St. Thomas in September of that year;

4. In the event that they are unable to agree, the respondent mother shall have the final decision-making authority and shall promptly advise the applicant father of that decision and provide him with the name, address and phone number of the school in which Ellie is enrolled in St. Thomas;

5. All communication between the parties shall be by e-mail or text at the addresses which were referred to at trial and to be confirmed in writing by counsel representing each party to the other party within 5 days of the release of this decision;

6. Within 24 hours of either party terminating his or her current e-mail address or it being terminated by the current service provider, both parties are required to notify the other and provide the other with a new e-mail address;

7. In accordance with paragraph 9 of the order of Haines J. of December 20, 2010, except that the words “or through a third party” shall be removed;

8. In accordance with paragraphs 1, 2, 3, 4, 5, 6 (a), 7, 8, 9, 10, 11, 12, 14, 17, 18, 20, 21, 22, 23, 24, 25, 29 and 27 of the Minutes of Settlement signed on September 26, 2011;

9. Paragraphs 13 and 15 of the Minutes of Settlement are replaced with the following four provisions:

i. If the applicant and the respondent are unable to resolve any matter relating to custody, the parenting schedule, child support, any decision affecting the health, education or welfare of the child, they shall appoint a mediator who shall proceed to conduct intake for mediation in accordance with rule 17(8)(b)(iii) of the Family Law Rules which includes screening in accordance with the procedures approved by the Ontario Association of Family Mediators and the Ontario Ministry of the Attorney General;

ii. If mediation does not proceed for any reason or if mediation is unsuccessful, the applicant and respondent may proceed to arbitration with either the mediator who conducted the intake for mediation and the mediation, if mediation was attempted or with a different arbitrator agreed to by the parties;

iii. If the issue(s) does not proceed to arbitration, or mediation does not take place or is unsuccessful, either party may commence a motion to change pursuant to the Divorce Act to have the issue determined by the Superior Court of Justice;

iv. If the issue(s) proceeds to arbitration, the arbitration shall be conducted in accordance with the Arbitration Act, 1991, S.O. 1991, c. 17, and shall be binding on the parties.

10. If the parties are unable to agree on costs, they shall, within 30 days, exchange cost submissions no longer than 5 pages, exclusive of any case law along with their respective bills of costs and forward them to me through the trial coordinator at St. Thomas.

Original signed “Justice Nolan”

Mary Jo M. Nolan

Justice

Released: May 3, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

John Wainwright

Applicant

– and –

Terrie Wainwright

Respondent

REASONS FOR JUDGMENT

Nolan J.

Released: May 3, 2012