Court File and Parties

COURT FILE NO.: 7474/13

DATE: 2014-12-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Plugers - Applicant

AND:

Mary Krasnay - Respondent

BEFORE: James W. Sloan

COUNSEL: Ashley Gibson - Counsel, for the Applicant

Peter M. Callahan & A. Valova - Counsel, for the Respondent

HEARD: October 23, 24, 27, 28, 29, 30 & December 4 & 5 of 2014

ENDORSEMENT

1This trial essentially involved a claim by the applicant father for unsupervised access and to a lesser extent for some form joint custody/decision making to the child of the parties, Brayden Michael Plugers who was born on January 10, 2013.

2Since the order of Justice Maddalena dated August 6, 2013 Mr. Plugers’ access has been supervised at a supervised access Centre known as Pathstones.

3From the face of the order, it appears that the applicant was not represented by a lawyer on August 6, 2013.

4After reading the trial record and having a discussion with counsel, prior to the calling of any evidence, the court with the assistance of counsel tried to define the issues.

5At that point, the court was informed that mediation services were available in the court house and it strongly recommended that the parties avail themselves of those services before proceeding with a six or seven day trial, with its resultant costs and probable allegations from each party which may very likely make their ability to communicate in the future more difficult.

6Although there appeared to be some reluctance to attend mediation, the parties did so late in the afternoon of October 23. Unfortunately, they were unable to resolve their differences through the mediation process.

7The court then advised both parties on several occasions that it could arrange a mid-trial settlement conference before Justice Maddalena if both parties agreed and thought it would be helpful. Unfortunately, the mid-trial settlement conference never took place.

8The parties started dating infrequently from March to August 2011 and more steadily commencing in August 2011.

9At some point in time, the applicant was residing in Kingston and the respondent was in Welland. In April 2012, the respondent moved to Kingston to live with the applicant and shortly thereafter the respondent discovered that she was pregnant.

10Around this period of time the applicant was studying for his Uniform Evaluation (UFE) chartered accountancy examination.

11This meant, that for purposes of studying, he would be away from Kingston from time to time and in particular was away for most of June 2012.

12It appears that there was certainly some friction between the parties almost from the beginning of their relationship, particularly when they would be socializing and drinking alcohol, which happened not infrequently.

13Notwithstanding these verbal and sometimes heated disagreements, in most, if not all cases the parties carried on the next day as if nothing had happened.

14The applicant accused the respondent of smoking for the first few weeks of her pregnancy and drinking alcohol on at least five occasions, however there is no indication, that if the respondent did these things, the fetus was harmed in any way.

15The applicant relayed several situations where he said the respondent got upset when he did not answer her text or phone calls immediately, these included when he was in Toronto studying for his UFE exam, and when he was out with KPMG the night before the UFE results were announced, however, again it appears that they never discussed the underlying reasons for these arguments and the next day they carried on for as if nothing had happened.

16The applicant testified that when he was out with KPMG the night before the UFE results the respondent was particularly upset and accused him of being out with other women. When he did return home the respondent started screaming at him and he spent the night on the couch.

17The next day however, they attended the respondent’s doctor’s appointment and everything was okay with the fetus. In addition, that day the applicant received word that he had passed his UFE exam and the respondent appeared very happy for him.

18After the birth of Brayden the applicant arranged for a two-week paternity leave and within a few days of the birth they travelled to Welland and stayed at the respondent’s parent’s home.

19In February 2013, there was a KPMG party for all the accountants who had passed their examinations. Brayden was looked after overnight by one of the respondent’s uncles. This appears to be the first time that the child was looked after overnight, by someone other than the parties or maternal grandparents. Brayden would have been about one month old.

20An argument erupted between the parties at Easter time in 2013 when the applicant received a phone call from a good friend in Montréal just before they were about to leave to go to the mall. The applicant testified that the respondent was extremely impatient while the applicant was on the phone & continued to chastise him and eventually went to the mall by herself.

21In April 2013 the parties arranged a Stag and Doe and during this evening Brayden was looked after by a babysitter who was approximately 17 years old.

22When the parties returned home the applicant went to sleep on the floor in the room were Brayden was sleeping. The applicant testified that shortly after that, the respondent came in, picked up the sleeping child, sat on the bed and started screaming and kicking the applicant in the back while demanding that he get out of her house.

23The applicant testified that the respondent’s father witnessed the respondent kicking him and that her mother came in, told her she was drunk and that she should go to sleep. The respondent’s mother took Brayden.

24The applicant stated that this behaviour by the respondent was also witnessed by Rob Primeriano. The applicant then went to try to sleep on the couch and testified that later the respondent came over to the couch saying “I’m sorry, I’m sorry”.

25Sometime after this event, the parties talked about moving back to Welland and the applicant was successful in getting a transfer to the KPMG office in Welland about two months later.

26They started living with the respondent’s parent’s home, however the applicant found this very invasive and indicated that he thought the respondent’s parents were in his words “all over us”. He stated that the respondent’s parents even complained when the applicant would play hockey for one hour a week.

27On or about May 5, 2012, the parties attended a wedding at Thorold. This would have been shortly after the respondent found out she was pregnant. The applicant alleges that the respondent was drinking shooters, which is denied by the respondent. The applicant testified that he was driving home and in the midst of another argument, when the respondent demanded that he pull the car over, at which time she exited from the car. The applicant testified that he could not persuade her to get back in the car so he drove on to the respondents parent’s home where they were staying at the time.

28While the respondent’s parents saw and looked after Brayden frequently, the applicant’s mother did not. This appeared to be a source of friction between them. When the parties were invited to a wedding, and the applicant wanted Brayden to stay with his mother, the respondent refused. The applicant could not understand her position, since Brayden had previously been looked after by one of her uncles and a 17-year-old babysitter.

29In May 2013, the parties went to movie and got into a fight over whether or not the applicant’s mother would be allowed to look after Brayden. At some point, the applicant left the theatre and it is his recollection that the respondent stayed. Later at the respondent’s parent’s home, when the applicant had finally had enough, he stated that he was going to stay at his sister’s for a while. At this point the respondent’s mother interjected that the applicant could not be like his father and just leave his family. This remark was in reference to the applicant’s own father who had left the applicant’s family when he was quite young and did not have much contact with them.

30The applicant’s sister was away at University and he stayed at her place for three or four weeks however he saw Brayden each evening.

31In May 2013, the parties were looking for their own accommodation and they moved in in June 2013. The parties, with the help of friends and family, moved in their furniture and gave some of the rooms a fresh coat of paint.

32In June 2013 while the respondent attended a bridal shower in Kitchener, the applicant looked after Brayden and invited his mother, sister and Hannah his 23 month old niece over for part of the day.

33On June 8, 2013 when the respondent returned home, she did not think the applicant was looking after Brayden properly because he was not feeding Brayden. As the applicant explained, the baby bottle was in the warmer and he was simply waiting for it to warm up. In any event, the respondent picked up the child to feed him and the frustrated applicant left the apartment.

34The respondent then texted him, indicating she could not believe that he left the apartment and allegedly she asked for a six pack of beer.

35The next day on June 9, there were a flurry of text messages between the parties. The respondent allegedly demanded that the applicant come over to where she was, because she and her father wanted to talk to him. The applicant refused to come home as long as the respondent’s father was at the residence, however he did come home around 5 PM.

36Upon his return, the applicant was greeted, with what he described as the house being cleaned out. The respondent had left a note indicating she was leaving, and that maybe they could work on this later.

37At this time, the respondent took the position that the applicant could not see Brayden until she got a custody order. In order to see Brayden, the applicant was forced to sign a temporary custody agreement dated June 14, 2013 set forth at Ex 1 Tab 14.

38This agreement allowed the applicant to attend at the respondent’s parent’s residence to pick up the child on Friday, June 14 and Sunday, June 16, 2013. No other dates or times for access were set out in the agreement.

39On June 14, the applicant took Brayden back to the apartment and his mother, sister and niece came over. When he returned the child, the respondent’s father rather than the respondent, came out to get the child, however the applicant wanted to make sure that the respondent was home before he left the child.

40This resulted in some heated exchanges between the applicant and the respondent’s father. After confirming that the respondent was home, he gave Brayden to the respondent’s father.

41On June 16, the pickup of Brayden was uneventful, however on the return the applicant testified that the respondent kept yelling at him. Eventually the respondent’s father came out and sent her and his son back into the house and the applicant thanked him.

42On June 19, 2013, the parties arranged through emails to have dinner with just themselves and Brayden. The respondent allegedly said that she was very sorry for leaving and that she wanted to get back together. The applicant however indicated it would not work and the respondent left the restaurant crying and went to her car.

43The applicant then made a statement for which he not only apologized in court but apparently also apologized by sending a text to the respondent, immediately afterwards. The applicant had told the respondent that he had never loved her.

44The applicant stated that, as a result of that statement, the respondent cut off access and there was no access between June 19 and July 17, 2013, when he retained a lawyer who brought an emergency motion.

45It was agreed that the respondent would now have supervised access, such access to be supervised by one Brian Schwartz. On the first access visit being July 17, 2013, the respondent’s mother parked outside the applicant’s house watching it during the access visit. This resulted, in the police being called and the visit being quite disrupted.

46On Friday, July 19, 2013 the respondent’s lawyer, Mr. Callahan, sent an email to Mr. Swartz indicating among other things that the access visits were to take place at the home of the applicant, that the child is to remain at the home of the applicant and may not leave the home for any reason other than a medical emergency. None of these conditions are set out in the order of Justice Maddalena dated July 17, 2013, as it appears at Tab 7 of the trial record.

47The applicant got all of the access set out in the July 17, 2013, order, save and except for the last date, because Mr. Swartz was unavailable. Although the applicant asked for a makeup date, he was refused.

48At this point in time, the applicant was unrepresented, and a lady by the name of Sue Barrett-Strong was put forward as an alternate supervisor. She is apparently a friend of the respondent’s mother. The respondent refused to allow Mr. Swartz to continue to be the supervisor because she was not satisfied with Mr. Swartz’s level of supervision.

49The applicant was very skeptical for a friend of the respondent’s mother to be a supervisor and refused to accept her as one. He stated that, that may not have been a smart thing to do because it impacted on how much she could see Brayden.

50It appears that the applicant at some point in time conceded to having Ms. Barrett-Strong supervise the visits because he began seeing the child again in September 2013 with her as supervisor. Apparently, only a couple of the visits took place before Ms. Barrett-Strong refused to continue as supervisor, at which time the respondent suggested that the supervisors be one of her parents. The applicant was concerned that they would make up the negative things about him and therefore refused to have them as the supervisors.

51Unfortunately, since the parties could not or would not agree on a supervisor the applicant had no choice but to go on the waiting list for supervised access at a centre known as Pathstone Mental Health (Pathstone). Unfortunately, because of the backlog it took between six and seven months to arrange for the first access visit which took place on March 9, 2014.

52When it became apparent that the wait for supervised access at Pathstones would be lengthy, the applicant’s lawyer wrote to the respondent’s lawyer on November 20, 2013, suggesting a paid supervisor and attached her resume (Ex 1 Tab 17).

53The response from the respondent’s lawyer dated December 3, 2013 (Ex 1 Tab 18) was that the respondent wanted to wait for Pathstone to supervise the access.

54The applicant testified that he tried to reach out to the respondent, both at Christmas time in 2013 and Brayden’s birthday in January 2014, however he was not successful in seeing the child on either of those occasions.

55When visits at Pathstone looked like they were imminent, the applicant emailed the respondent requesting information on Brayden such as what type of formula he takes, size of diapers types of food etc. so that he would be prepared on his first visit (Ex 1 Tab 3). The respondent’s reply came from her lawyer’s office which answered the applicant’s inquiries and requested that he not contact the respondent in any manner whatsoever (Ex 1 Tab 19).

56The applicant testified that the first several access visits at Pathstones were extremely difficult. Brayden looked visibly shaken and would cry a lot. He testified that it took at least two months to get much, if any response from Brayden. He indicated that in the visits there were three separate families and each of the other two families had two children, one family’s children were aged four and six and the other family’s children were aged 10 and 12. In addition to these people, there were also two or three supervisors in the same room. He also stated, that on occasion, some of the other parents would swear. It certainly was not the type of surroundings that he wanted to spend time with his son in.

57The applicant stated that he has spent some time alone with his 23 month old niece Hannah who has had a very rough start in life and is still on a feeding tube. Currently, she must be fed her milk, once it reaches a proper temperature, through an IV tube. This must be done several times a day for approximately 50 minutes per time, and the adult in charge, sometimes the applicant, has to do their best to entertain the child so she will sit still and receive the nourishment.

58The applicant filed a letter at Exhibit 1 Tab 7 dated August 8, 2013, from Dr. Rana who he had seen at the respondent’s request.

59The letter states: “The above-named patient was seen initially May 17, 2013 with his fiancé who was also at bedside. Mr. Plugers has no prior history of anger management issues, has no history of depression or anxiety. During the course of discussion on May 17, 2013, relationship issues were brought up and Mr. Plugers’ fiancé suggested that he be evaluated by a psychiatrist regarding “unstable moods and anger episodes”. Our evaluation did not reveal any symptoms of depression, anxiety, or anger management. Mr. Plugers was referred for further evaluation by psychiatry for a second opinion/evaluation, although there is no underlying pathology per our evaluation on May 17, 2013.”

60The respondent admitted on cross examination that he did not think he had to see a doctor and that the only reason he went to see Dr. Rana was to appease the respondent. Since the parties had split up and the applicant did not feel that he has any problems respect to either alcohol or anger, he did not follow through with the psychiatry consult.

61Although the respondent confirmed that he did not say anything to Dr. Rana or his medical student, to correct what the respondent might be saying in their meeting, it is difficult to see how he could deny what the respondent was saying if he was there, essentially to placate the respondent.

62On October 23, 2013, the applicant was seen by a psychiatrist Dr. Kumaran. Dr. Kumaran authored a letter dated October 23, 2013, which is set forth at Ex 1 Tab 5. The respondent raised the fact that this letter is addressed to a Dr. Goswami whom the applicant never saw and not to Dr. Rana. Although the applicant does not know why the letter is addressed the way it is, he indicated that Dr. Rana and Dr. Goswami share office space.

63In the last paragraph on page 2 of Dr. Kumaran’s letter, the doctor states: “I could not find any psycho pathology in this gentleman… At this time, I do not find any evidence of a psychiatric illness or any psycho pathology in him. I do not see any reason why he cannot have unsupervised access to his child… I feel that I do not have anything to offer him at this time”.

64The respondent suggested that little if any weight should be placed on Dr. Kumaran’s letter because his notes and records were not produced. The court notes however, that no request was made by the respondent for the notes or records and to the best of the court’s knowledge the first time this issue was raised was at this trial.

65In addition to Dr. Kumaran’s report, there is a lab report at Ex 1 Tab 4 dated October 29, 2013 from LifeLabs Medical Laboratories which tested negative for all drugs that were tested for.

66The applicant testified that he has no idea where the allegations about his anger and alcohol abuse come from, and in particular, since up until the separation, he had always had a good relationship with the respondent’s parents.

67The applicant absolutely denies that he has any anger or alcohol abuse problems.

68The applicant admitted to making mistakes since separation including sending texts and emails reproduced in Ex 2 and posting comments on Facebook reproduced as Ex 3. He said that all of the posts were done during the time when he did not have any access to his son and he felt this was the only forum he could use to express his frustration.

69With respect to Ex 2 at Tab 2 pages 20 through 38 there are texts between the parties that seem to indicate that the applicant may have an anger problem and may refer to the respondent in very unflattering terms. Unfortunately, to some extent, these texts are edited and therefore the applicant had difficulty in answering some of the pointed questions from the respondent’s lawyer because the full context was not available.

70Even giving the applicant the benefit of the doubt, given what appeared to be his extremely high level of frustration at not seeing his son, the texts in Ex 2 and the Facebook postings in Ex 3 are inappropriate and very poorly thought out in general. They are even more inappropriate if the applicant had stopped for a moment to consider that his displeasure was directed at the mother of his son, Brayden.

71A series of letters, entered as exhibits 4, 5, 6, 7, 9 and 10 written between September 13 and October 8, 2013, were introduced to shed some light on what discussions took place between the parties about supervisors. It is evident that Sue Barrett-Strong had resigned as a supervisor on September 29, 2013. From reading the series of letters, it is evident that the respondent was agreeable to several supervisors while the applicant was waiting to start is supervised access at Pathstone.

72The respondent proposed her father, mother, brother who the applicant had played hockey with and Brayden’s babysitter. Notwithstanding that, the applicant did not have a firm date or any indication from Pathstone as to when they could accommodate him for supervised access, he refused to accept any of the aforementioned potential supervisors. The applicant indicated that none of the aforementioned people were neutral and he was concerned that they might make things up to make him look bad.

73This appears to have been a very unfortunate decision on the applicant’s part, particularly when the supervisors were proposed as a short, stopgap measure.

74Despite the texts and posts at Ex 2 & 3, the applicant stated that he does not hate the respondent and that she is the mother of Brayden.

75In August 2014, there was a chance meeting of the parties at a bar called Handlebar Hanks. The applicant was there with four of his friends, one of whom was celebrating a birthday and he had had a few drinks. The applicant testified that the respondent grabbed his ears and pulled him close and said “I am so sorry for what I put you through”. The applicant admitted to being very shocked both to see the respondent there and at what she had said. After what he had been through, he admits to using some unfortunate vulgar language directed at her and he left the bar about 15 minutes later. He denies yelling any vulgarities aimed at the respondent, at the top of his voice.

76The applicant was cross-examined, with respect to three incidences involving the respondent or her family. These included a November 2013 incident where the respondents tires were slashed, an incident where the respondent’s brothers car window was broken and an incident where the applicant is alleged to have driven a blue BMW past the respondents parent’s house and to have driven off at a high rate of speed and also to have called or asked someone on his behalf to call the CAS and complain about the respondent’s drinking.

77The applicant denied any knowledge of or responsibility for any of the incidences.

78With respect to the respondent’s brothers broken window he told the police that he was in Hamilton at a work function and while initially stating that he would provide letters from three co-workers later on a reflection he did not wish to get his co-workers involved in his personal affairs.

79With respect to the blue BMW, he testified that he does not know anybody who owns such a vehicle and he denies driving by respondents parent’s home and then driving off at a high rate of speed.

80The applicant also denied calling or having anyone call the CAS with respect to an allegation that the respondent was out drinking in bars. The applicant did admit to hiring a private investigator because he became aware that the respondent was out it bars at 2 AM from a Facebook post. It was never made clear to the court, what difference it would make to the issues in this case, whether or not the respondent was out at a bar at 2 AM.

Christine Stark

81Ms. Stark is the manager of prevention services at Pathstone. She related to the court how people access Pathstone services and in general the rules that they must follow.

82Unfortunately for these parties, she was off work for a period of time prior to October 1, 2013 and during that time it appears that no new families were admitted to their programs. She stated to the court that each of the parties would have gone through an intake process separately and that there would have been a child orientation where the child is brought to their physical facilities no matter how young the child is. This is done in an effort to orient the child and make them feel comfortable prior to their first visit.

83From Ms. Stark’s evidence, it is evident that both parties followed the rules and other than Brayden’s initial difficulty separating from his mother or her parents, access visits have gone very well.

84From a review of her notes and those of her staff, she testified that there have been no problems with the interaction between the applicant and Brayden. Other than some separation problems initially between Brayden and his mom and Brayden and his maternal grandmother, she confirmed that there have now been eight months of visits and everything is going very well.

85She stated that although the applicant may become emotional on some occasions, he has never displayed any anger.

86She indicated that the applicant and Brayden interact appropriately, there are lots of smiles and laughter, the applicant often follows Brayden’s lead while at the same time directing Brayden when it is necessary to do so for purposes such as feeding him or changing his diaper. She stated they both watch videos and both get down and do a wiggles dance together, and that at the end of each visit Brayden exhibits affection for the applicant.

87Ms. Stark said the visits between Brayden and the applicant’s mother and aunt also go well.

Hannah Madden

88Ms. Madden is a Pathstone facilitator which means she supervises visits. She has supervised 26 visits between the applicant and Brayden.

89She stated that during the first couple of visits, Brayden was quite fussy however the applicant acted appropriately by cuddling him, rubbing him and talking to him in soothing tones.

90She stated, that now after 26 visits Brayden has aged and is more mobile and he loves to run around and explore and is quite interactive with the applicant. She relayed how the applicant plays on the floor with Brayden, reads to him, goes with him outside to the play area, plays peekaboo, counts with him and uses the animal alphabet chart on the wall as a learning/play centre. The applicant also feeds Brayden and they cuddle together. They watch wiggles and dance a lot together and there is lots of smiling and laughing going on.

91Ms. Madden relayed that the applicant’s mother and sister get along very well with Brayden and in particular the applicant’s mother is very encouraging, make lots of noises, claps, sings, dances & gets down on the ground with Brayden. She also reads to him and encourages him to count out cookies.

92Ms. Madden said that she has never had to intervene in the relationship between the applicant and Brayden because of the applicant’s behaviour. She stated that if something was going on, that she did not approve of, she try to deal with it and then document it.

Mark Gasperetti

93Mr. Gasperetti and the applicant have been the best of friends since grade 10. He stated Mark was one of the best people he knows, loves his family and friends and is a very caring and stand up kind of guy.

94He denied that the applicant has any type of an anger problem, has never seen him in a fight, not even on a hockey rink. He also stated that the applicant does not have a problem with drinking.

95He stated that at least twice a month on some Friday nights, the applicant will stay over at his house and they may have up to 4 to 6 beer during the evening.

96He said the applicant has become sad, upset and frustrated by his current situation vis-à-vis his son.

97His recollection of the August 2014 encounter at Handlebar Hanks was that after the respondent came in, she went up to the applicant put her hands on his face and said something, but Mr. Gasperetti did not hear what was said. He said he went outside for a smoke and took the applicant with him.

98He stated that when they returned from the outside, the respondent was talking to the applicant’s girlfriend Melissa and the applicant who seemed upset by this, went up and spoke to them but he did not hear what was being said.

99He testified that he did not hear the applicant yelling or screaming any obscenities in the respondent’s direction that night at Handlebar Hanks.

100Mr. Gasperetti acknowledged that on some occasions the applicant has said negative things about the respondent.

Melissa Daminano

101Ms. Daminano is the applicant’s girlfriend. She is a registered dental hygienist and the two of them have been dating for approximately 11 months.

102She stated that they have a great relationship and that the applicant is hard-working and dedicated. She indicated that they never fight.

103She indicated that the applicant is not an alcoholic, but does have several drinks approximately twice a month at his friend Marks and that he virtually never drinks during the week.

104Although she acknowledged that he is upset about the lack of time he is allowed to spend with Brayden she has never seen him angry, or in a fit of rage.

105She confirmed that in August 2014 at Handlebar Hanks, the respondent walked up to the applicant put her hands on his face and said something, the respondent removed her hands and shortly after the applicant left the bar area to go to the patio.

106At that time, Ms. Daminano walked over to the respondent and asked if they could talk. She introduced herself as the applicant’s girlfriend to which the respondent replied congratulations. Shortly after that, the applicant came back into the bar and up to the two of them and told the respondent to quit talking to his girlfriend. She testified that on this occasion the applicant did not raise his voice or swear at the respondent.

107She confirmed how well the applicant looked after his niece Hannah who she said adored him. She said he is more than comfortable in feeding her through her IV tube or changing her diaper.

108Ms. Daminano she would be more than happy to assist in exchanges for the purposes of the applicant getting access to Brayden.

Brian Swartz

109Mr. Swartz runs a home appliance repair service. He has been friends with the applicant since the applicant was in grade 9 and he was in grade 12.

110Mr. Swartz does not drink, smoke or do drugs and has not done so for 15 years. He described the applicant is a great guy and that the best memories of his life have been when he is with him.

111He stated that he has seen the applicant drink alcohol, but that in his opinion the applicant does not have a problem with alcohol and he stated that if he thought the applicant did have a problem with alcohol he would confront him.

112In addition to being a great guy, Mr. Swartz indicated that the applicant does not have an anger problem, he has never seen him in a fight and that he would do anything for you.

113As an access supervisor he indicated that he did not have any experience with children and had to be shown how to pick up the child and hold its head for the first supervised visit.

114He confirmed that the respondent’s mother had parked her car across the street during the first visit and it was at his suggestion that the police were called.

115He indicated that he took his job as access supervisor seriously and that he went with the applicant were ever he took the child including to watch him change a diaper.

116He said that when Brayden and the applicant see each other they both light up. He related to the court how well the applicant looks after Hannah.

117He stated the applicant wants to be the father he never had and in his opinion there was no reason that the applicant needed supervision to have access to his son.

118The respondent did not cross-examine Mr. Swartz on his evidence.

Melissa Plugers

119Ms. Plugers is the younger sister of the applicant. She has two years of college, one in a course for drug and alcohol counselling and one for a law clerk.

120Currently she is a stay-at-home mom for her almost 2-year-old daughter Hannah who has been described previously in these reasons.

121She confirmed the problems Hannah has had since her birth three month premature. She confirmed that the applicant knows how to feed change and care for Hannah.

122She stated that she has no problem whatsoever leaving Hannah alone with the applicant and notwithstanding that Hannah vomits frequently when bring fed, by the time she gets home everything is cleaned up.

123She explained briefly about her abusive relationship and that the father of Hannah while initially having supervised visits, now sees Hannah without supervision, however the exchanges are supervised.

124She stated that Hannah lights up when the applicant comes into the room and her first words every morning are Scotty Scotty. She views the applicant as a very positive male role model and that he does fun things with her, both inside and outside of her apartment.

125She testified that prior to their breakup of the parties, she always had a good relationship with the respondent and was going to be in their wedding party.

126She apologized for her Facebook posts and explained that the applicant and her whole family were hurting and she was expressing what she felt at the time. She stated that she meant, and means no harm to the respondent whatsoever because she is the mother of her nephew.

127She testified that the applicant called her when she was at McMaster Hospital approximately 2 AM the night that his UFE results were released. The applicant explained that his phone had died and now the respondent was very upset with him. She could tell that the applicant had been drinking, however he remained calm but the respondent could be heard screaming in the background during the whole five minute telephone conversation.

128She testified about another incident on June 8 or 9 of 2013, after Hannah had just gotten out of the hospital. She indicated it was the first or second time that Brayden and Hannah were going to be together. They were at the applicant and respondent’s new home and the babies were laying on the floor. Brayden had started to cry and her mother had picked him up while the applicant was warming the baby bottle.

129At that point in time the respondent came into the home, took Brayden from her mother’s arms without even acknowledging her. The respondent then went into the kitchen to get the baby bottle for Brayden and a beer for herself. When she came out of the kitchen, she finally acknowledged the existence of herself, her mother and Hannah, however she did not acknowledge the other people in the room.

130She testified that there was so much tension in the room she decided to leave with Hannah.

131She testified to going to Pathstones with the applicant for a few visits. She said the applicant was great with Brayden, that he was loving and attentive, there were lots of laughs and Brayden gave lots of hugs and kisses.

132Ms. Plugers sees absolutely no reason why the applicant would need to be supervised when he spends time with his son. She reiterated that the applicant can look after Hannah who has special needs and that he was able to look after her when she was on oxygen in addition to requiring IV feeding. She stated that the first time that she left Hannah and the applicant alone, Hannah would have been seven months old.

133She said the whole situation is unfortunate, and that the past should be left in the past, and that it would be in Brayden’s best interests to be raised in a loving relationship by both families so that he can build a good bond with both parents and all grandparents, aunts, uncles and cousins.

134On cross examination she stated that she did not know a lot about the parties’ relationship and that when she saw them together they seemed happy.

135She admitting to sending an email to the respondent after Brayden showed up for an access visit with a cold. She was a little annoyed that the respondent had not informed her of this, because it would be dangerous for Hannah to get an infection.

Jennifer Frampton

136Ms. Frampton is the applicant’s mother. They share a one bedroom apartment in Niagara Falls. She stated he lives there rent-free so that he can afford the legal fees that he is incurring in an effort to get access to his son.

137She stated that the applicant sleeps on the couch and that two or three nights a week he stays at his girlfriend’s house.

138She testified that she did not have any problems that were out of the ordinary while the applicant was growing up. He was good in school and sports and had lots of friends. She testified that he did not and does not have a temper problem and in fact is quite easy-going, laid-back and calm.

139She has never been concerned about his alcohol consumption, either now, or when he was younger.

140She described the relationship the applicant has with Hannah as amazing. She stated that they both seem to adore each other.

141She stated that Hannah sleeps over at her house in a playpen in her bedroom every Friday night to give Melissa, her mother a night off.

142She stated that when the parties lived in Kingston she would receive calls from both of them when they started to argue, sometime at 3, 4 and 5 AM. She referred to the calls as sometimes uncontrollable and to the calls particularly from the respondent as dramatic. She recalls one occasion where it appeared that the respondent was drunk and intending to drive. Ms. Frampton indicated that she would call the Kingston police if they did not go back to their apartment. During this telephone conversation, she said the respondent sounded drunk and was screaming.

143During the UFE party at the Hilton Hotel in Toronto, the parties had an argument. While Ms. Frampton was not present, the respondent called her crying and saying that she was going to call off the wedding. Ms. Frampton stated she tried to calm her down and also indicated that she can be very dramatic.

144Ms. Frampton could not figure out why the respondent did not want to allow her to be with Brayden. Other than seeing Brayden at Pathstones, she saw him once in February 2013, where she stated she was allowed to hold him for maybe 5 or 10 minutes and for about 45 minutes in April 2013. She testified that the only reason she got to hold him for 45 minutes was because the parties were arguing about whether or not she could watch Brayden and they left her apartment for 45 minutes to continue arguing while Brayden stayed with her.

145Ex 1 Tab 13 contains many text messages between Ms. Frampton and the respondent between in November 2012 and the end of July 2014. They deal with difficult topics including the possibility of cancelling the wedding and Ms. Frampton and her son, the applicant, wanting to see Brayden. Despite the emotion that would surround the topics referred to in the texts, they are polite and in no way appear to demean either party. In fact, it appears obvious that the respondent and Ms. Frampton at one time had a very good relationship and likely still have at least a reasonable relationship.

146She confirmed the events of the first visit where Mr. Swartz was the supervisor. She indicated that the visit went well except for the interference of the respondent’s mother who for some reason saw fit to park outside to watch the applicant’s house during the time that the visitation was taking place. This resulted in two police cars arriving on the scene, one with officers who talked to the respondent’s mother and one with officers who spoke with the applicant.

147Ms. Frampton described the great interaction that took place between the applicant and Brayden. She relayed that the applicant did a phenomenal job and was able to console Brayden when he was crying at the start of the visitation.

148Ms. Frampton described the visit two days later when she, the applicant, her two daughters, one of their boyfriends, Hannah and Mr. Swartz were present.

149She confirmed that the respondent dropped the child off to Mr. Swartz but then for some unexplained reason the respondent drove up and down the street approximately three times.

150Ms. Frampton confirmed the family had a wonderful time at a place called Zoos.

151The next visit described by Mrs. Frampton was at Melissa’s place in early September 2013 and was at this time supervised by Ms. Barrett-Strong. She indicated that unlike Mr. Swartz who followed the applicant everywhere that he took Brayden, Ms. Barrett-Strong did not and simply sat at the kitchen table reading. It was her opinion that Ms. Barrett-Strong would occasionally give dirty looks to the applicant.

152Ms. Frampton also described the events that took place in the Welland Courthouse on Friday, October 24, 2014. Upon exiting from a meeting room with the applicant’s lawyer she saw the respondent and her lawyer, Mr. Callahan, sitting on the other side of some glass doors.

153She went through the glass doors and in a loud voice swore at Mr. Callahan calling him a bastard, and essentially telling both the respondent and her lawyer that they were tearing her family apart.

154In court on October 29, Ms. Frampton apologized for her behaviour. She said she was extremely frustrated and hurt as she has had watched her son, the applicant, suffer and cry over the last 15 months particularly when he did not see his son for seven months. She said the hurt has been horrible. In essence, she said it is just not fair that they have to fight so hard so that the applicant can see his son and she can see her grandson.

155She testified that she is 100% prepared to work with the applicant and the respondent for the benefit of Brayden. She stated that notwithstanding her work schedule which she said she can juggle, she is prepared to assist in pickups and drop offs of Brayden, she said she would be able to work with the respondent and the respondent’s mother, father and brother.

156On cross examination, she admitted to seeing the posts on pages 6, 7 and 25 of Ex 3. She also admitted that on Friday, October 24, 2014, she stormed back through the glass doors a second time and in a loud voice repeating to the respondent that she had torn her family apart and calling Mr. Callahan malicious.

157Ms. Frampton confirmed she was on a preapproved list for visits at Pathstones with Brayden. She indicated that she goes as often as she can, given her employment, and has been there between 5 and 10 times.

158She stated that the respondent never offered to allow her to see Brayden outside of Pathstones but that she did not directly request such access on her own. She indicated that she had asked to have Brayden for Hannah’s first birthday but got no response.

159Ms. Frampton stated that if supervised visits were required and if she was the supervisor and the applicant acted inappropriately, she would step in and stop it immediately.

Mary Krasnay

160The respondent is currently 31 years of age and lives in Welland with her parents and 26-year-old brother.

161She initially trained as a registered practical nurse at Sheridan College and then returned to further her education at McMaster and obtained a BSc in nursing two years ago. She currently works part-time, being 24 hours every two weeks, for the Niagara Health System and stated her hours are flexible.

162She confirmed that she met the applicant in March 2011 and that they started dating quite frequently by August of that year. She said she was drawn to the applicant because he was handsome, ambitious, successful, charming, romantic and exciting.

163She indicated that most of their dates involved going to restaurants together and having some drinks but that on occasions they would go out with other friends.

164She described the applicant she initially fell in love with, and the applicant now, as polar opposites. She now sees him as angry, intimidating, uncaring, uncompassionate and scary.

165She believes that between August 2011 and June 2013 she was in a monogamous relationship. She stated that it certainly was for her.

166She described some concerns of hers when she found the applicant texting and receiving phone calls from an ex-girlfriend at the end of 2011.

167She knew when she started dating the applicant that he was going to move to Kingston to work for KPMG. This occurred in October 2011.

168After that time, the parties discussed the respondent moving to Kingston, and with the with the assistance of contacts the respondent found at the Kingston hospital she secured a position there.

169Even when they were separated by geography, it appears that they would see each other each weekend.

170The respondent admitted that there were numerous arguments between August 2011 and April 2012 and that since she does not like conflict in most cases she would end up apologizing. She described an argument that took place around Halloween of 2011 when she was in St. Catherine’s with friends and the applicant was in Kingston. She testified that she did not take her cell phone with her that night and when she got back her phone was full of texts from the applicant asking where she was and also if she was cheating on him. When she could not get through to him by texting, she called him and she indicated he was enraged, that he was screaming and making her feel horrible, but she does not recall him calling her any names. She tried to call him back that evening on several occasions and sometimes he would answer and sometimes she would hear a female giggle in the background.

171As appears to have been the case after all of the arguments between the parties, there was no real discussion about why there was an argument the next day and it was just sloughed off and left to fester.

172The respondent relayed a second incident around Christmas time 2011 after the parties had driven from Kingston to the respondent’s parent’s home in Welland. She indicated that they were opening some presents, everyone was having a few drinks and that the applicant was getting texts from his friends. The respondent stated that for some reason unknown to her, the applicant became severely angry and after trying to have a discussion with him in the driveway, he simply drove off to be with his friends. Again, as usual, no discussion about these events was in the following days.

173Despite these problems in their relationship, the respondent testified that they both had wonderful times in between.

174Once they were in Kingston the applicant would leave early in the morning for work and usually return home between 7 and 8 PM. Although he did not usually work on weekends, sometimes he would bring his laptop home to do some work.

175The respondent said there were numerous breakups between August 2011 and April 2012. She described another event on the Easter weekend in 2012 at her parent’s house, similar to the Christmas 2011 argument. On this occasion, the applicant for some reason unknown to the respondent, got enraged and left her parent’s house to go drinking with his friends. The respondent testified that the applicant screamed and said he was leaving. Although they would normally stay at the respondent’s parent’s house when they were in Welland the applicant did not return to the respondent’s parent’s home that weekend.

176Since the applicant was not there, the respondent left to visit friends in Milton. When she finally contacted the applicant, she could hear both men and women in the background, at which time he accused her of cheating and called her a whore. In an effort to calm the applicant’s fears, she took a picture of her friend Mike with his child to prove that she was staying at a family home. In any event, it was around this time that it appeared to her the relationship was over and she decided to stop taking her birth control pills.

177The respondent called the applicant on the Easter Sunday while he was driving back to Kingston. She had previously booked a rental truck for her moved to Kingston on the Easter weekend. She indicated to the applicant that she had made a huge commitment for herself to move to Kingston. The applicant agreed, things were smoothed over, and the respondent got into her rented truck and drove to Kingston.

178The respondent found out she was pregnant on May 2, 2012. She was initially both scared and happy. She was also concerned about what the applicant’s reaction might be. She said when she told him, he did not seem to express happiness and that he definitely was not on the same page as she was. She testified that he would oscillate between being excited and furious about the pregnancy.

179When the parties told the respondent’s father, he was ecstatic, while at the same time stating that the applicant had to do the right thing and be fully committed to his new family. On their drive back to Kingston, the parties talked about baby things, which made the respondent excited and left her with a very good feeling.

180When they arrived at Kingston, the applicant dropped off the respondent and returned shortly thereafter at which time the respondent testified he threw a receipt at her. The receipt was apparently for an engagement ring which he had ordered. From my notes of the applicant’s testimony, he indicated that he purchased an engagement ring. At no time was he cross-examined on whether he returned that evening with a ring or simply threw a paper receipt at the respondent. The respondent stated she felt very let down.

181At a wedding in Thorold, that the parties attended and where the applicant testified that the respondent was drinking shooters, the respondent told a very different story. She said she may have had a small sip or two of wine and some virgin drinks but stated she certainly did not drink any shooters. In any event, they were not at the wedding a long and upon leaving she testified the applicant yelled at her, stormed through the door and went to the car. She followed him out and because he had been drinking and notwithstanding his testimony, she said she drove the car.

182When she first got in the car, the applicant was still angry. The respondent testified her mother came over to the car and asked if everything was okay before the drove away. En route, the applicant was yelling at the respondent to the point that she stopped the car and got out. At this point, she testified the applicant went from the passenger seat to the driver seat and peeled away.

183She described the area where she got out of the car, as essentially being in the middle of nowhere. It was cold out and she did not have a coat, purse, cell phone or even shoes. She estimated that she had to walk for 30 or 60 minutes to find a house from where she called her parents. The respondent’s mother came to pick her up and drove her back to their place.

184When the respondent arrived back at her parent’s home, she went downstairs where she saw her uncle, his friend and the applicant drinking. When she was asked by her uncle what had happened, she indicated that she had done something stupid. At that point, the respondent walked over to the applicant took the drink out of his hand and poured the contents into a sink. She then went to sleep.

185As was usual in this relationship, no discussion about these events took place the next day.

186When the parties decided to move back to Welland the respondent left Kingston the second week of April 2013 and the applicant followed on the last weekend of April.

187The respondent testified that several times while they were living in Kingston before the birth of the child, the applicant inferred that the child was not his. He would do this essentially every time they had an argument. The respondent would do her best to reassure him that the child was his and now upon reflection feels this was just another technique used by the applicant to control her.

188With respect to the allegation of whether or not she smoked or drank during her pregnancy, she admitted to a few sips of wine and the odd cigarette when she was stressed but indicates she stop smoking entirely after the Thorold wedding.

189After they decided to move to Welland, the applicant initially voiced his dissatisfaction of moving into the respondent’s parent’s home, but, for financial considerations he eventually agreed to do so. The applicant however, only lived there for approximately two days before moving into his sister’s apartment.

190While they resided in the basement of her parent’s house the respondent testified that on one occasion she went to get a bottle to feed Brayden and on her return the child was screaming and the applicant was simply lying there not trying to console the child in any way. When the respondent whispered to the child that she guessed his father could not hear him, the applicant got angry.

191With respect to the events that happened at the movie theatre, the respondent’s recollection is very different from that of the applicant. There was a discussion about where Brayden would stay while they were at the wedding in Thorold. The respondent suggested dropping off the child before the wedding with the applicant’s mother and picking the child up on their way home. This was because the respondent did not want the child staying in a strange place overnight.

192This upset the applicant who got angry and accused her of being controlling. In a rage, he shoved the popcorn container in her face and stormed out of the theatre. This left the respondent crying. The applicant came back a few minutes later and sat three seats away from her and ignored her. Shortly after the applicant’s re-arrival in the theatre, the respondent said she could not do this anymore and left. The applicant followed her out to the car but kept saying to her “you’re controlling”. They did not speak much on the way back to the respondent’s parent’s house.

193Once back at the respondent’s parent’s house, the respondent asked the applicant to reposition of Brayden. The applicant took offense to this suggestion and took the child upstairs. When the respondent came upstairs the child was on its stomach crying and when the respondent asked the applicant to make the child more comfortable he replied fuck you and stop questioning my fucking fathering skills.

194Shortly after, both the respondent’s mother and father came into the room, however no real conversation took place as the applicant kept swearing and eventually packed a duffel bag and left the home.

195The respondent stated this was the first time that she realized it was not her fault and that the arguments had never been her fault.

196She stated the applicant always blamed her, always yelled at her and this was probably the reason she never wanted to talk about an argument the day after it occurred.

197The respondent stated she realized that she was afraid of the applicant in about November 2012. On that occasion, the applicant was going out with some of his friends to celebrate passing his UFE exams. At this point in time, the respondent was very pregnant and she just needed to be able to rely on the applicant. When he left, the applicant said he would not drink much and would not stay out too late.

198When the respondent texted him later, she was met with a WTF text response which she said meant “what the fuck”. The respondent said it was her experience, that when the applicant swore in his texts, he was drinking too much. Although the applicant had initially told her his phone had died, he sent to her a text at 1 AM to say he was coming home and the respondent questioned whether or not his phone had really died earlier in the evening.

199The applicant arrived home at approximately 3:30 AM and when the respondent asked why it had taken him two and a half hours to get home, he told her to quit trying to control him and that he does not have to report to her because she’s not his mother. While the respondent was crying, the applicant went to plug his phone into the bedroom and when he came out on his way to the balcony to have a cigarette he put both of his hands on the respondent’s shoulders and pushed her backwards onto the couch. She was 7 months pregnant at this time.

200The respondent said the applicant was so angry that he was scary. She initially locked the balcony door but reopened it when the applicant began pounding on it.

201At that point she said the applicant tried to call his mom, so that his mom would hear her crying. When he could not get in contact with his mother, he called his sister, shoved his phone in the respondent’s face and told Melissa to listen to her saying “she’s crazy, she’s like Amanda”. No explanation was ever given for who Amanda was or what she was like and the respondent does not know. In cross-examination, the applicant was not asked who Amanda was.

202The respondent stated that she tried to calm down to talk to Melissa. She also indicated that she could not sleep that night, and she could not understand what was going on. She stated she did not report the assault to the police.

203The next morning, the respondent had a doctor’s checkup for her pregnancy and had to beg the applicant to come along. As was his custom after an argument, he was giving the respondent the silent treatment. At the doctor’s office the respondent was asked if there was anything wrong because her blood pressure was through the roof and she replied everything was okay.

204Although it was in part a great day because the applicant had passed his UFE exam, the applicant could not understand how he could act as if nothing was wrong and wondered how he could essentially be two different people.

205The respondent’s version of what took place on Halloween in 2012 is different from the applicant’s. They had had such a good time on Halloween in 2011 in Niagara Falls that they decided to try to re-create those good times in 2012 in Kingston. Although they both enjoyed a hypnotist’s performance, the respondent indicated she could feel her blood pressure and did not want to go into the maze. The applicant then spoke to her in demeaning tones and words in front of other people, embarrassing her. Thereafter, because she would not go into the maze, he simply started to ignore her. At this point in time the respondent was crying, but kept quiet.

206After some of these arguments, the applicant would later apologize repeatedly. Also, he would bring her flowers and they would go out to the Keg for a nice dinner.

207Although the applicant promised to get help for his anger many times, he never did. She now feels he never had any remorse and that she was quite naïve in believing him when he said he was sorry.

208Many, if not most of the discussions about the applicant getting help for his anger were done through texting, rather than by talking. One of the first such discussions took place after Brayden was born. On this occasion, the applicant texted that he did not want to be the guy who looks like he treats his girlfriend like shit.

209The applicant acknowledged his anger problem through texting and would talk about “anger sharks” a phrase that may have been coined by the respondent. She used this phrase to soften the discussion about his anger because he scared her.

210Reproduced at Ex 2 Tab 2 are numerous texts sent back and forth between the parties.

211Sometime in November 2012, because of pain in his back, at the applicant was prescribed Nortriptyline. Although this drug may be good for chronic nerve pain, it is also used as an antidepressant. The applicant took this drug for approximately two months before abruptly ceasing to take it, because he does not like to take medication in general.

212The respondent described the behaviour of the applicant both at Christmas time 2012 and during the birth of their child in January 2013 as nothing short of wonderful. He was kind, courteous, attentive, caring and encouraging.

213The respondent stated this wonderful behaviour ceased around the early part of February 2012 and that he was back to his old angry self. He was essentially acting the same way he was acting before he started taking Nortriptyline.

214From a plain reading of the text messages, there is little doubt that the applicant was acknowledging that he was an angry person and that he was not treating the respondent appropriately. In the texts of the applicant, he states he no longer wants to be seen as a guy who treats his girl like shit and he hopes that whatever the pills are will help, that he is excited to take these pills again if the respondent really noticed a difference in him and states in April 2013 at page 24 of Ex 2 Tab 2 “it sucks to see us like this and it’s my fault”.

215At page 25 the applicant texts “I will work on my anger sharks, I don’t want to see you cry sometimes when we are in this rut it gets worse because of. Me”

216Because the applicant agreed to try the medication and see a psychiatrist, the respondent agreed to look for an apartment so they would not have to live at her parent’s house. They eventually found a semi-detached home to rent which was close to the respondent’s parents and she felt that the applicant was trying to please her by agreeing to this location.

217They moved in on June 3 and an argument ensued when the respondent tried to ask the applicant about a steam cleaner they had rented and he told her to stop calling him.

218On Wednesday of the first week in their new abode, the respondent asked the applicant to pick up Brayden after his hockey game because she would be out later than him. Since the applicant was having some beers outside the arena with his buddies, the pick-up did not happen and that led to some angry texts. The respondent could not understand why the applicant simply could not talk to his fiancée.

219On June 6, 2013, the parties were out for dinner and had a good time, they talked a little bit about the applicant getting assistance with his anger. They agreed to meet on Friday, June 7 when the applicant was going to get some blood work done.

220On the evening of June 7, they were at the apartment of the applicant’s sister Melissa and her daughter Hannah. Brayden was there also, so the two little children had a chance to interact. At some time in the evening the respondent wanted to go to her parent’s house because they were having close friends over for the evening and she wanted to see them.

221The applicant, in a somewhat contemptuous tone, asked the respondent why she always wanted to hang out with her parents.

222On Saturday June 8, 2013, the respondent went to a bridal shower in Kitchener. Although she admits forgetting to leave the key to their new place, she could not understand what made the applicant so angry. She also could not understand why he was refusing to go to her parents place to pick up Brayden. When she got to Kitchener, she called the applicant who was swearing about not being able to buy groceries and take them into the new home.

223When she got back to Welland from Kitchener, she could hear Brayden crying from outside the home. She was put out, that the applicant had not even let her know that he had been able to get into the home. When she got inside, the applicant, his mother and sister, and other people were there all drinking beer. She said Brayden was crying and no one was paying attention to the child. She went into the kitchen where the baby bottle was in a warmer, she then came back, attended to the child and changed his diaper in the bedroom.

224When she got back to the living room the applicant’s mother and sister were getting ready to leave, and the applicant offered her a beer.

225Later, the evening was not going well and the respondent simply wanted to leave. When she suggested to the applicant that he go out with his friends, he accused her of wanting him out of the house so she could bring some guy in.

226Later that evening the applicant continued to text WTF. Eventually, the respondent fell asleep, but was awakened by Brayden at approximately 3 o’clock in the morning. Her phone rang and it was the applicant. She did not answer, and then started receiving text messages calling her a whore and that he did not want to marry her. The applicant did not come home that night

227The respondent called the applicant the next morning between 10 and 11 and asked if he was coming home. The applicant screamed that she was a whore and that she should get the fuck out of the house and he did not want to marry her.

228At this point, the respondent called the applicant’s mother and said, “it’s happening again”. The applicant’s mother tried to smooth things over and stated, “you know how he is”.

229It was at this juncture of her relationship with the applicant that she knew she had to tell her parents who she had not confided in before, about her abusive relationship. After their discussion, the respondent’s father tried to call the applicant but he did not answer the phone.

230On June 9, with the assistance of her family, she moved her furniture back to her parents place. The respondent left a note for the applicant stating that if he wanted to go to counselling to try to make this work that he should contact her.

231On June 10, the applicant texted the respondent, demanding to see Brayden. The respondent found it almost impossible to talk to the applicant as he kept yelling and accusing her of withholding his son and denying him access.

232The respondent decided that texting was too difficult a format through which to discuss access and she emailed the applicant a proposal on June 12, 2013. The emails are contained in Ex 2 Tab 1.

233The respondent wanted the applicant to sign something so that she would be assured that he would return the child to her and after some back and forth, they agreed to access on June 14 and June 16, pursuant to an agreement which is attached at Ex 8 Tab 1.

234Although exchanges proved to be difficult, the access took place and the child was returned on time with no ill effects. The main problem on the return of the child after access was that the applicant did not want to leave the child if the respondent was not in the home.

235Because of the problems with the access exchanges, the respondent was worried about the safety of Brayden. She suggested that the two of them should meet at a restaurant known as M.T. Belli’s to discuss the situation. The respondent said that rather than discussing the situation, the applicant intimidated the respondent by telling her he had found the best lawyer in St. Catherine’s, and that no judge would deny him shared custody, that no judge would deny him overnight access, that she had not been the primary caregiver and that he would not have to pay as much child support if he had shared custody.

236This upset and terrified the respondent who got up to leave and although the applicant persuaded her to stay, she eventually left and was told by the applicant that he had never loved her and never cared for her.

237Believing that the applicant had had retained a top-notch lawyer, she knew she had to find a good senior family law lawyer.

238Although the respondent and the applicant’s mother had a good relationship even to the point where the applicant’s mother sent some emails after the separation to ask how she was, the applicant’s mother deleted her from her Facebook over the incidents that occurred on Father’s Day June 19. The respondent found her deletion offensive. Although she got some texts from the applicant’s mother indicating things were unfair she tried to respond politely.

239The respondent texted both of the applicant’s sisters to assure them that they could come and see Brayden any time.

240The applicant testified, that in addition to yelling at her, the applicant also yelled at his mother and his sister Lindsay. She alleged that the applicant has called his mother a whore and the bitch, however neither the applicant or Ms. Frampton were asked about this when they testified.

241The respondent testified that the respondent’s mother could not control him, that the respondent would mock her when he told her, “you can’t control me,” and when his mother did try to intervene, she was ineffective.

242She described the events of last Friday in the Welland Courthouse and her version of events were not dissimilar to those of Ms. Frampton. She testified that on the two occasions Ms. Frampton came through the glass doors and stated numerous times to the respondent, that she had ruined her family.

243The court notes, that these events took place after an unsuccessful attempt at mediation on the Thursday evening before, where emotions were running high and each side had the whole evening to allow the matter to fester.

244With respect to the court orders that preceded this trial, both parties had difficulty agreeing to a supervisor. In one of the orders, on July 17, 2013 the respondent said she agreed to Mr. Swartz as a supervisor because he seemed to have enough common sense to call 911 in an emergency. This order was made by Justice Maddalena on a without prejudice and temporary basis.

245The next court order dealing with access was dated August 6, 2013, and again made by Justice Maddalena. This order does not indicate that it was on consent, however it is apparent that the applicant was not represented on that occasion. It is also a temporary order and states that the supervisor is to be Ms. Barrett-Strong and then Pathstone Mental Health.

246The respondent indicated that it was the applicant’s position that access was unnecessary. The applicant did not exercise access pursuant to the August 6, 2013 order until he hired Ms. Gibson and access commenced in mid-September 2013. The respondent said the first visit went great, however both she and the child were sick for the second visit and when they arrived a little bit late, the applicant came out of the building pointing at his watch and yelling “your late, your late”. This upset the child who began crying. Ms. Barrett-Strong had to intervene to tell the applicant not to yell. Throughout all this the applicant’s mother stood by and did not intervene

247Ms. Barrett-Strong resigned as the paid supervisor by letter dated September 29, 2013 which is set out at Ex 8 Tab 3. Part of her reason for resigning was because of the anger and yelling displayed by the applicant on the second visit.

248The respondent described the applicant as a control freak. As early as the summer of 2012, when he was away at school studying, he would change his relationship from engaged to single on his Facebook page on numerous occasions. She testified to being humiliated and devastated because other friends and family would see this. She testified that the applicant knew she would do practically anything to get him to change the status back to engaged.

249She described another incident when they had returned from a wedding in California and landed in Syracuse, NY. It was approximately 3:30 AM in the morning and she had to be at work early in Kingston. While she was trying to sleep in the car, the applicant said he needed loud music to keep him awake. When they got home and she was taking a shower the applicant checked her cell phone and noticed there was a message from a male friend called Matt. In a rage, he threw the cell phone and shattered the front and back of it and she had to purchase a new cell phone.

250The respondent described a lovely evening at home when their engagement ring finally came in, however she then described that the applicant would use the return policy date for the ring, to threaten on multiple occasions that he was going to return it and in fact, he physically took the ring away from her on several occasions. Although she did not think about it at the time, she now sees this as another one of his methods to try to control her.

251The respondent also tells a very different story of what happened during the UFE celebrations in Toronto in February 2013. She said the initial plan was to have the applicant’s mother come and stay at the same hotel and look after Brayden while they were at the dinner and dance. As time got closer for the event, the applicant decided that it was too expensive to get two rooms.

252The respondent suggested that her aunt and uncle in Oakville could look after Brayden and the applicant agreed, however, it was up to him to tell his mother and he delayed doing this. Since the applicant had not told his mother in advance, the respondent said she essentially had to sneak downstairs in the hotel to meet her aunt and uncle. This testimony is quite different than that of the applicant where he blames the respondent for not allowing his mother to look after Brayden.

253The start of the evening went well as the applicant told the respondent she looked wonderful, however close to when the dancing started and likely because the applicant had been drinking heavily his mood changed. As a result, the respondent left for the room about 11 PM and the applicant stayed on.

254At this time the respondent called the applicant’s mother who was reassuring and tried to get her to calm down and indicated she would try to find out where the applicant was.

255Because of these events, not the least of which was having a new infant who woke up during each night, the respondent was exhausted. The next day the applicant was quite silent as they drove towards her aunt and uncle’s, however, he was great once they got there.

256In March 2013, the parties had another argument ending with the applicant telling the respondent if she did not like it, to get out. The applicant obliged but had to essentially beg the respondent to help her load the car. She then called her parents telling them that she had been kicked out of their apartment. She then drove to Welland with phone support along the way from her parents. At 8 PM that evening, she texted the applicant to the effect that they were home and thanks for asking, since she had not heard from him.

257The next day the applicant texted and said that if she wanted to end everything that was okay with him. The respondent was having difficulty with his behaviour and she did not think she had done anything wrong.

258The respondent also tells a very different story about the trip to the mall at Easter time in 2013. Her version of events is that Brayden was dressed in his winter clothes and in the car seat and she had her winter coat on. They were waiting to go to the mall for a nice family outing however, the applicant continued to talk to a friend of his who was in Welland and it was not a long lost friend from Montréal. Since the applicant was getting warm and Brayden is fussing, she said she would wait downstairs. At that point, the applicant yelled at her “stop giving me that look, you bitch.” He started coming towards her while still talking on the phone screaming and eventually went to the washroom but not before referring to the respondent as a cunt.

259The respondent then left for the mall where she texted the applicant to try to persuade him to come to the mall, however he blamed her over and over again for ruining the day.

260The respondent’s tax returns and notices of assessment are attached at Ex 11 tabs 9-16. Her notice of assessment for 2013 shows that she earned $35,207.

261The respondent went through the offers that she had made to assist Brayden and the applicant and see each other. On October 8, 2013, she suggested using the child’s babysitter Megan Graziani, until arrangements could be made at Pathstones but this was refused by the applicant.

262In addition to Megan Graziani, the respondent offered any one of her family members. This offer was also refused by the applicant.

263She testified that she did everything that she could do to try to get the access set up at Pathstones. Once it was set up, she stated Brayden had a hard time settling in, but everything was going very well by April or May 2013 about two months later.

264The respondent stated that for socialization purposes, she takes Brayden to an early years Centre and they socialize with other young moms and their children.

265She described Brayden as very intelligent, very loving, very active, very healthy and always smiling. She currently has no problems and has no concerns when he is with her. In September 2017, he will start junior kindergarten.

Life since the separation June 9, 2013

266She testified she was horrified by the posts on Facebook. She knew that co-workers saw the posts and did not know if some of her patients would also have seen them. She called the police about it, but that did not seem to have any effect.

267She indicated that on November 2, 2013, she went out to her car in the morning to find that the two tires on the right-hand side had been slashed. While she did not initially think it was Scott and told the police she had no suspects, she now thinks it was him and was likely in retaliation for Justice Matheson’s order of October 21, 2013.

268She further indicated that on November 13, 2013, the back window and back lights of her brother’s car were smashed. Her brother called off the police and the respondent stated she was 100% sure the applicant had something to do with it. She said this occurred after the Case Conference on November 7, where no change was made to the supervised access. The applicant testified that he was in Hamilton that evening at a firm function for that year’s crop of CA’s who had passed the UFE.

269Also in November 2013, she was interviewed by the Niagara Family and Children’s Services because they received an anonymous complaint about her abusing drugs and alcohol and trafficking in drugs.

270As a result of allthese goings on, the respondent’s parents installed some safety apparatuses around their home but she did not want to relate to the court what those were.

271The respondent also related incident where a car was parked near her parents place and she called the police. She was later notified it was a private investigator who had been hired by the applicant and the police told her that her life was not in danger, however the respondent was concerned the applicant was about to kill her.

272She tried to relay incidences about the applicant’s nightmares when they were together where he had dreams of killing people. At this point in time, I ruled that it was getting into the realm of hearsay and I refused to allow the respondent to elaborate further because questions about the applicant’s dreams were not put to him in cross examination.

273The respondent also indicated that she was concerned for her life, because the applicant’s favourite shows were about murder investigations. During one episode the applicant turned to her and said “if you ever cheat on me I’ll kill you.” At the time the respondent took this as a joke, but because of all the things that is happened she is now concerned.

274The respondent’s recollection of events at Handlebar Hanks, which she said took place on July 25, 2014, differs from that of the applicant. She testified that she walked in with a male and female friend and she was shocked when she saw the applicant. She stated the applicant also looked shocked, but stared at her with an intimidating expression.

275She said she decided to approach the applicant, held out her hand in a peaceful fashion, and said “I’m sorry, I just want peace.” The applicant then began yelling at the top of his lungs “how can you say that, you are denying me my fucking son”.

276The applicant continued screaming at the respondent using words such as bitch, cunt and whore. Respondent then decided to walk towards her friends who were further into the bar and spoke to the applicant’s friend Mark, trying to get him to calm the applicant down.

277A few minutes later after the parties were no longer in the same vicinity, a girl came up and asked if she was Mary and this person was Ms. Daminano the applicant’s girlfriend. During their conversation, the applicant returned to where they were and started screaming the same profanities as he had before and continued for several minutes. As soon as he began, the respondent left for the safety of her friends. She estimated that the applicant and her were in the same bar for approximately 10 or 15 minutes before the applicant left for good and she remained and enjoyed the rest of the evening.

278She said she was concerned for her safety because she had received 6 to 8 emails or texts from the applicant where it seemed he knew where she had been the night before. She found this very unnerving. An example of one such email can be found at Ex 2 Tab 1 pages 18 and 19.

279In addition, she indicated she read the emails from the applicant’s mother blaming her for the applicant not seeing his son.

280As a result of everything that had had gone on, and was going on, she received counselling from at least two people. Their discussions centred around power, control, healthy and unhealthy relationships and coping and safety strategies.

281In addition, she went to see a psychiatrist Dr. Pallen, who did an assessment on April 3, 2014, and whose report is filed at Ex 8 Tab 6. The report is based on the history given by the respondent and under diagnostic impression states: “the patient presents with symptoms of post traumatic stress disorder, because of the emotional and physical abuse and possibly physical abuse that she suffered in her relationship”

282In support of her position not to allow overnight access or even lengthy periods of access the respondent filed a letter from Dr. Kristi Cook who was her family physician in Kingston. In her letter, Dr. Cook states that she is the mother and a general practitioner with a special interest in prenatal care delivery, infants and young children and women’s health. She offers a very strong view on what access should be afforded, someone who is not the primary caregiver.

283For toddlers less three years of age she recommends 2 to 3 visits per week for one to three hours each visit to be held in the same location.

284As of the end of October 2014, the respondent stated, notwithstanding all of the things that have gone on, she still respects the applicant as a person and the father of their son. She went on to say however that she is terrified of the applicant and fears for her safety.

285She further stated that she fears reprisals from the applicant against her, her family and Brayden.

286In answer to her lawyer’s questions, she indicated she found the applicant selfish, untruthful and manipulative. She said he has lied in the past and lied here in court. She said that the applicant fooled her because he has the ability to show emotion, but in reality, he has no emotion, no caring and no compassion.

287Although the applicant indicated he would do whatever it would take to change, he never did. He never accepted blame for anything and gave no indication that he cared about how the respondent ever felt.

288She said the applicant always blames others and even had her blaming herself. She said the applicant would tell her it was her fault and do things to try to show to her that it was her fault. She described him as a cold methodical person who is good at planning and at work, but that he is irrational and unpredictable in his life outside of work.

289She said that he can be charming and while he is self-confident in his profession, he is not self-confident outside of his profession. She described him as authoritarian, domineering, and secretive and that he never showed remorse.

290With respect to the applicant’s request for joint custody, the respondent said they cannot communicate, she cannot be in the same room as the applicant, she does notthink based on her past experiences that the applicant would be reasonable and that the playing field would be anything but level between the applicant and herself.

291She indicated, the applicant has absolutely no respect for her or her role as Brayden’s mother, and while she hoped that he would, she now believes he never will.

292The respondent said what she wants from the court is for Brayden and her to be safe at all times.

293She indicated the applicant should have access to all of Brayden’s medical and educational records.

294Based at least in part, on input she received from Dr. Cooke, she wants access time to be age appropriate as per her professional opinions. She indicated that overnight access should not take place until the child is comfortable in the applicant’s environment and he can communicate well with the respondent.

295The respondent wants supervised access to remain because it is 100% safe, and the exchanges are not problematic. She stated that when access is no longer supervised, she would like supervised exchanges to continue.

296If she gets a full custody, she indicated she would always respect the applicant’s input into Brayden’s care. She says now with the applicant’s desire for control and her feeling of being inferior, joint custody is not in the best interest of Brayden.

297She also requests a restraining order to protect her and her family, although she states that she does not think the applicant will necessarily follow the court orders because he has not followed the police’s recommendations about his posts on Facebook.

298She would also like an order that brings this matter back in the future to be reviewed to make sure it is working, so that the parties will not have to start over in a new trial.

299When asked on cross-examination, whether or not she thought it was stressful for the applicant when he returned to an empty house with his child gone on June 9, 2013, the respondent indicated that that would be unlikely.

300When asked why she would allow the applicant to have unsupervised access to Brayden on June 14th and 16th of 2013, she replied she felt threatened by the applicant’s threat of calling the police and taking the matter to court. She also said she had no choice because she did not want the applicant to get more enraged than he already was.

301Notwithstanding what the respondent described as the applicant’s unpredictable moods, she still allowed Brayden to go with him on those two occasions.

302When it was suggested to her that she started insisting unsupervised access after the applicant indicated to her that he had never loved her, she denied that was the case. She acknowledged the applicant sent an email (Ex 2 page 8) very shortly after the incident apologizing, but stated that was just a ploy to try to get her back.

303She indicated as she had earlier, that she did not want the applicant to become angrier and also stated on this occasion that she did not know there was such a thing is supervised access.

304She did confirm however, that after this incident, she would only agree to supervised access or she would meet the applicant in a public place.

305The applicant stated the concern that she had with members of the applicant’s family as a supervisor is that they, in particular referring to the applicant’s mother and sisters, cannot de-escalate the applicant’s anger.

306She said when it became evident on the motion, that the presiding Justice was going to appoint someone, she agreed to Brian Swartz who is a friend of the applicant. On the first access visit supervised by Mr. Swartz, the applicant asked her mother to watch the house where the access was taking place.

307Notwithstanding the respondent was concerned about the applicant drinking and did not want the applicant to leave his residence during access, the court order does not specify either of those things.

308She stated she did not want the applicant leaving his residence during access because she wanted Brayden to become familiar with the environment of the applicant’s surroundings.

309She did confirm that when the child was 10 days old, they left the child with her parents while the parties attended a Sabres hockey game and when the child was one a half months old he spent the night with the applicant’s aunt and uncle.

310Notwithstanding that Sue Barrett-Strong is an acquaintance and co-worker with her mother, the applicant still submits she was independent as a supervisor.

311Prior to and immediately following the parties breakup, the respondent indicated that she had a good relationship with the applicant’s mother and sister, Melissa.

312On November 20, 2013, (Ex1 Tab17), when the applicant put forward an educational assistant for the role of supervisor, the respondent refused to even consider it, did not look into it, did not call to interview her, because as she stated, she was waiting for Pathstones.

313At this point in time, the applicant had not seen his son for approximately two months and given the young age of Brayden this would likely mean there would be unfortunate transitioning that would have to be done all over again, given the length of time that had elapsed between the access.

314Notwithstanding the respondent’s position, that the only safe place for access to take place is at either a commercial establishment such as Pathstones or in the presence of a supervisor approved by her, she stated that she has always wanted and continues to want the applicant to be involved in Brayden’s life.

315Essentially, however it is the respondent’s position that until Brayden can communicate with her to her satisfaction, which would probably be somewhere between age three and four years, that she wants access to continue at Pathstones.

316This is the only way, from the respondent’s perspective that she can be sure that Brayden a safe during access.

Kevin Krasnay

317Mr. Krasnay is the father of the respondent. He described from his limited interaction with the parties some events up to June 2013.

318He described welcoming the applicant into their family and how much in love the respondent was with the applicant.

319He also described some events that gave him concern.

320During the Easter weekend of 2012, he could hear the applicant in the background yelling at the respondent after the incident of the applicant talking on the phone to a friend and not going to the mall to see the Easter Bunny. It was on this occasion that the respondent drove back to Welland with the child on her own.

321During Thanksgiving of 2012, when the applicant’s mother cancelled coming to their home for dinner, he overheard about a minute of conversation between the applicant and his mother in which he described the applicant’s voice as being raised and overhearing a phrase something to the effect, “you fucking bitch you always do this, I can’t rely on you.” He stated he would have rated the applicant’s anger at 7 on a scale of 10.

322He also described an incident after the Stag and Doe when the parties and two of their friends stayed over at his place in the evening. Mr. Krasnay and his wife were woken up at approximately four in the morning when they heard the applicant yelling and swearing at the respondent and demanding his one-half of the money that had been raised at the Stag and Doe.

323He described the applicant’s anger at an 8 or 9 out of 10 on this occasion and he tried to defuse the situation. He said the incident lasted about 15 minutes and that the applicant’s friend Rob finally escorted the applicant downstairs and he escorted the respondent to her bedroom along with a friend of hers. He acknowledged that both of the parties had been drinking.

324The next incident he described took place in May 2013. The parties had just moved back to Welland and into the Krasnay’s home. Mr. Krasnay was in the garage but could hear the applicant yelling in the basement. When he went to investigate, he found the applicant sitting, crying and holding Brayden.

325The applicant was yelling and swearing about being attacked for his parenting skills. He rated the applicant’s anger on this occasion at a 8 or 9 out of 10.

326Mr. Krasnay stated that even if the applicant’s perception was true, his reaction to the situation was out of all proportion to the situation.

327The next incident described by Mr. Krasnay was in June 2013, when the applicant returned Brayden from his second access visit.

328He said he saw texts from the applicant to the respondent, which he described as harassing, with the applicant continually texting wanting to make further access arrangements.

329During the Father’s Day access visit, he stated the respondent kept getting texts to settle future visits and said that the respondent was afraid of being assaulted.

330He described being afraid for Brayden when the applicant was returning him on Father’s Day. The applicant kept demanding that the respondent come outside, Brayden was crying and Mr. Krasnay was fearful given the applicant’s demeanour and the way he was holding the child that the child may fall onto the cement below.

331He described the applicant as being in a rage, while swearing and calling the respondent uncomplimentary names and he threatened to leave with Brayden if the respondent did not come outside.

332It was on this occasion that Mr. Krasnay formed the opinion that this was not about Brayden but that it was about the applicant having control over the respondent.

333Mr. Krasnay described the two incidences of cars being damaged in his driveway after which they call the police and he installed some security devices.

334He also testified that in January 2014, a black BMW like the one owned by Mr. Swartz drove on to their court and because of some snow, spun around aimed at headlights at his house and later took off. The court notes that Mr. Swartz testified to driving a white Mercedes.

335Mr. Krasnay also described his concern over a car containing two people being parked outside near his house. These two people were later identified by the police as private investigators, after which Mr. Krasnay was relieved.

336Mr. Krasnay described that at the start of the access at Pathstones, Brayden was reluctant to go. He agreed it had been 5 to 7 months since the child had seen his father and that over time leaving Brayden for access became much easier. He acknowledged that after such a long absence there would have to be a transition for the child to become comfortable to stay with his father.

337He acknowledged that he reviewed some of the Pathstones records and that from his review there is nothing in the record that is negative about the applicant’s parenting of Brayden and that there have been no incidents with respect to safety for the nine months that access has been at Pathstones.

338Mr. Krasnay was unaware that the applicant looks after his niece Hannah, but said it was a positive thing if the applicant looks after Hannah well.

339Although Mr. Krasnay appeared to well versed about the allegations against the applicant, he was not aware that the respondent had told Brayden’s doctor or posted on a dating website that the applicant was not involved in Brayden’s life.

340When it was suggested to him that the respondent wants supervised access by a supervisor of her choosing because she wants to control the applicant, Mr. Krasnay replied that that was not the case.

341He stated that his concern was for the safety of Brayden. The Court finds that Mr. Krasnay safety concern was almost exclusively based on the incident on Father’s Day of 2013. This was almost 18 months ago when Brayden was about 6 months old.

342Mr. Krasnay acknowledged that because of the current situation, Brayden is unable to interact with his cousin and Hannah, cannot attend family functions, did not spend any time with his father at his first Christmas, nor has his father been able to partake in Halloween with him.

343Mr. Krasnay indicated he would be prepared to assist with the access exchanges between the applicant and Brayden if they were ordered to take place at a location other than Pathstones.

Susan Barrett-Strong/Strong

344Ms. Strong supervised approximately five access visits.

345She said there was nothing remarkable about any of the visits, with the exception of one where they arrived late to start the visit. On this occasion, she said that the respondent and her were about 10 minutes late because they had to wait for a lift bridge to return to its neutral position before they could proceed.

346She stated that when they arrived late, the applicant was angry and that he spoke to the respondent in a raised voice but that he was not shouting and she does not recall any foul language being used.

347She stated that the exchange took approximately one to two minutes and that although she felt uncomfortable because of the applicant’s demeanor, she went into the apartment with the applicant who was carrying the child.

348In her opinion the applicant’s reaction was disproportionate to them being 10 minutes late particularly when they could not possibly cross the bridge while it was lifted up.

349She stated that during the exchange, the applicant’s mother was sitting in a car and did not intervene. It is unclear to the court how far Ms. Frampton was from the incident or whether she was in a car with her windows rolled up and did not hear what was being said.

350However, other than this one incident, Ms. Strong never saw the applicant angry on any other occasion and she saw no parenting issues and had no concerns with how the applicant interacted with the child, fed the child, bathed the child, changed his diaper or tried to rock him to sleep.

351After the approximately five visits she resigned by a letter dated September 29, 2013. In the letter she gives five reasons for resigning one of which is the previously referred to exchange which in her letter was apparently on September 17, 2013. Although Ms. strong said this was the main reason for resigning it would be very difficult for the court to believe this testimony, because she gives five reasons in her letter, any one of which would be sufficient for her to resign.

352Her reasons seem to be cumulative and since she did at least a couple of the visits after September 17, 2013, I find it unlikely that the incident on September 17, 2013 carried any more weight in her reason to resign than the other reasons set out at Ex 8 Tab 3.

Diane Garrett

353Ms. Garrett is a recently retired registered nurse and charge nurse. She has known the respondent for 7 to 8 years. She views the respondent as a wonderful mother and her child Brayden as a very happy little boy.

354She is aware that the parties’ relationship is an unhappy one, that the respondent is frightened of the applicant. Because of this fear, people at work try to accompany her to her car when she leaves.

355Ms. Garrett has never met the applicant.

Jennifer Kish

356Ms. Kish is employed as a registered practical nurse and has been so employed for the last 17 years.

357She is a friend of the respondent’s and was asked to accompany her to drop off Brayden for access in July 2013.

358On the way to the applicant’s house she was told by the respondent that someone named Brian was to come out and get the child. When they arrived, the applicant came out and the respondent told him if he did not go back in the house that she would leave. The respondent then returned to the home and Brian came out and got the child.

359From a review of Justice Maddalena’s July 17, 2013 Order (Trial Record Tab 7) there is no mention one way or the other about how exchanges are to take place and there is certainly no specific prohibition that the applicant could not come out to receive the child from whoever was delivering the child.

360One or two hours later they returned to pick up the child and again Ms. Kish was informed that Brian was to bring the child out to her car. When they arrived it was the applicant who brought the child out to the car and when Ms. Kish was asked to get the child from the applicant she testified the applicant said: “I am only going to give this fucking child to his mother”. The applicant seemed angry and his voice was somewhat elevated.

361At this time the respondent who appeared very nervous, got out of her car, took the child and got back in the car and they left without further incident.

362She stated that the respondent is afraid of the applicant and has declined to go out on several occasion stating her fear of the applicant as the reason.

363Ms. Kish is one of the people at the respondent’s place of employment who tries to make sure that someone walks her to her car at the end of the shift.

364She acknowledged that she has never seen the applicant with Brayden.

Derek Comazzolo

365Mr. Comazzolo works security at the Handlebar Hanks bar, and was on duty on Friday, July 25, 2014.

366He said he was near the rear of the bar when he heard yelling between the parties. He said he could hear the applicant screaming and he also heard a female voice but he could not identify it as coming from the respondent. He said the incident lasted about five minutes and the screaming continued for about two minutes, while two of his coworkers and the parties’ friends were trying to split them up.

367Mr. Comazzolo confirmed he heard the word whore, but was unable to recall any other unsavoury words, however does recall the applicant saying as he was leaving “I hope she gets hers”. When Mr. Comazzolo suggested to the applicant that he leave the bar, he did. Mr. Comazzolo confirmed the applicant was upset when he first saw him but that he calmed down quickly left on his own and there was no contact that he saw between the parties

368On cross examination, Mr. Comazzolo confirmed that both parties appeared upset during the incident.

Dennis Andree

369Mr. Andree is Constable with the Niagara Regional police Force. On July 30, 2014, he was dispatched to the respondent’s home with respect to the interaction that took place between the parties at Handlebar Hanks on July 25, 2014.

370He interviewed the respondent in person and later interviewed the applicant by phone. In essence he parroted what the parties had already told the court, which is their version of the events that evening.

371One difference that did come out from his testimony was it was his recollection that the applicant admitted to him that he had used the words cunt, whore and bitch when referring to the respondent during the incident.

372He stated that in his opinion that the applicant was venting his frustration with respect to the situation.

373He was shown the Facebook and texts which are already in evidence. This led him to offer the applicant some sage advice, that this was not a smart thing to do when there was a court case pending with respect to his child because all of the things that he put on Facebook or turned in the texts could be used as evidence against him.

374He acknowledged reviewing an email that the applicant sent to the respondent on July 26, 2014, the day after the incident which read: “how can you say you’re sorry to me, and still do this. Can you call me to explain.”

375Mr. Andre did not lay any criminal charges because in his opinion, they were simply not warranted.

Paul Murphy

376Ms. Murphy has worked for the Niagara Region Family and Children Services (F&CS) since 1999. She is currently an intake and assessment child protection worker.

377She has dealt with the parties because of calls that came into their offices. The first incident involved a complaint about the respondent’s mother parking outside the applicant’s home during access. The concern of the Society was whether or not there may be emotional harm to a child because of adult conflict.

378After attending at the Krasnay’s residence and interviewing the respondent and her parents, viewing the residence and seeing the child and essentially being assured that the situation would not happen again and that they would do whatever they could to avoid adult conflict she was satisfied that the child is not in need of protection and closed the file. She had also interviewed the applicant.

379She was later told that the respondent had moved forward and obtained a temporary court custody/access order and that supervision was provided by someone other than her family members.

380The second incident arose as a result of two anonymous phone calls to F&CS on November 8 and 11th of 2013.

381The first caller identified himself as a friend of the applicant the second caller was a female. The allegations were similar and boiled down to allegations that the respondent was out in the community intoxicated two or three times a week and associating with people known to use cocaine and actually purchasing cocaine.

382Ms. Murphy again interviewed the respondent, her parents and this time also her brother. They all denied the allegations and appeared shocked and upset that the allegations for even made.

383In her interview with the applicant at the F&CS office, he said he was not aware that anyone had called the F&CS. He stated that he had been receiving information from individuals that he knew in the community about the respondent being out in the town drunk. He said he worried to some extent about what care the respondent would be able to give Brayden the next day but he also knew Brayden was not in jeopardy because the maternal grandparents were there.

384She suggested to the applicant that if people kept giving him this information that he should advise them to call the police during the event so they could investigate. She told the applicant that she had investigated and that she did not have any concerns about the care Brayden was receiving.

385She stated that the applicant was appropriately concerned and acted appropriately during the interview.

386Since she determined that there were no child protection concerns at this time the file was closed.

387Ms. Murphy was then asked about an organization known as “Caring Dads”. She stated that she often refers men there to get further insight into healthy relationships with their former partners. She said there is no cost, it is a 16 week group format and sessions are held in St. Catharines, Niagara Falls and Welland. She was unsure about the waiting period but indicated it may be anywhere from 1 to 8 months.

388The applicant was called in reply and asked questions with respect to “Caring Dads”. He referred to a brochure which had been printed from the Internet and suggested most of the issues that caring dads deal with did not pertain to his situation. While that may be the case, it certainly refers to two issues such as having angry thoughts about Brayden’s mother and criticizing the mother in front of the child.

389On a balance of probabilities, I find that this has taken place. Although the applicant has arguments about provocation, since he was not allowed to see his child, this child needs a more balanced response from his dad when dealing with his mother.

390I acknowledge that the child is young but the voice level used on at least a couple of access exchanges while the child was present and in fact being held by the applicant was inappropriate.

Applicant as a Person

391In court, the applicant was very calm and controlled despite some very rigorous cross examination by the respondent’s lawyer.

392In addition to his work as an accountant and playing recreational hockey twice a week, the applicant donates his time and is on the board of directors as treasurer for a community group that assists homeless and educationally challenged youth.

393He also works with the Paul Martin Foundation, which mentors aboriginal youth in Brantford. In particular, each year he mentors one child with the view to having that child proceed on with post-secondary education.

394He is currently in the process of becoming a big brother for the local Big Brothers and Sisters organization.

395Two people from KPMG testified on behalf of the applicant. Both Ruth Todd and Janet Allan are partners in the KPMG Welland office.

396They both spoke very highly of the applicant, both for his work and his out of office community service with youth at risk and the aboriginal mentoring program.

397They both confirmed that he was polite, hard-working, thoughtful and a very positive person in the office. They said he would likely be in the top 5% of the group known as Senior Accountants within KPMG. They also stated that clients who work with him love him. They described him as very positive, the first one in the office to lend a hand and a good mentor.

398Ms. Allan described one occasion when the applicant was faced with a very frustrating co-worker, and he calmly spoke to him to address and resolve the issue.

399Neither of them had seen him angry or drink to excess at any of the social events that they had been at with him. Both confirmed that they did not know how he behaved outside of the office or office social events.

Overview

400It is certainly unfortunate that from the start of this relationship the parties did not see fit to deal with the obvious problems that existed. They both testified to knowing that there were problems with their relationship. No matter whose version of events is more correct, the underlying reasons for their arguments, which usually took place in the evenings were simply left to fester and were not acknowledged or talked through the next day.

401Notwithstanding the problems that existed in their relationship while they were together and the problems that exist now that they are separated, I am sure both parties agree, that one absolutely wonderful event occurred during their relationship and that was the birth of Brayden.

402Together they created a human being and they are now responsible for that human being’s development. One of, if not their most important, job in life is to raise Brayden from infancy through his many phases of adolescents so he will end up as a healthy, happy, well-adjusted, educated and independent adult.

403I am sure the parties know that this is not an easy task, even when parents are living in the same home. It is obviously more difficult when they live in separate homes. They are, and will remain the most important people in Brayden’s life. As such, they will have the greatest influence on him as he develops through the various stages of human development. Everything they do with respect to Brayden and with respect to each other will influence Brayden in either a positive, or a negative way.

404They are the male and female role models from whom Brayden will learn a great deal. In particular, how they treat each other, will no doubt affect how Brayden learns that significant others should treat each other.

405Both parties deserve the utmost respect from each other, for the simple and very important reason that they are the mother and the father of Brayden. I hope in the future, when rough patches in their relationship develop, that for the sake of Brayden, neither of the parties will denigrate the other in any way shape or form, while they are counting to 10.

406There will, of course, be times in the future when they do not agree. I hope that they can resolve these differences through means other than having to resort to the courts.

407Grandparents, of course, also have a special and influential role to play in the development of a grandchild. In this case, Brayden resides in the home of the mother’s parents, therefore the maternal grandparents are going to have significant influence on Brayden’s development as long as he is residing there.

408It is my hope that all of the family members, and in particular the grandparents review the preceding paragraphs, so they will be reminded that what they say and do particularly as it relates to Brayden’s mother or father will have some influence on Brayden’s development.

409Finally, this child is young and neither parent nor this court, have a crystal ball. As Brayden ages, of course things will change. The parties may wish to or have to modify what is set out in this judgment in the future. T hey can of course, do this easily if the both consent.

410Some things that will obviously change, since Brayden not yet two years old, he will in the future enroll in school and extracurricular activities.

411If the parties look into the future, they should quickly realize that their paths will cross frequently. There will be school and extracurricular events that they will both want to attend. There will be graduations, perhaps a wedding and perhaps grandchildren that they will share.

412Given the fact, that the parties have created a child, it is very unsettling how they currently treat each other. They are the only ones who can change that. While it is not unusual for people in close relationships to sometimes be very short with each other, the parties are no longer in that type of relationship. It is simply time to move on for Brayden’s sake.

Findings

413Although the applicant may have some problems controlling his emotions/anger where the respondent is concerned, the evidence from the applicant’s friends and in particular his bosses at KPMG paint the picture of a wonderful, caring and giving person.

414Is there any evidence, anywhere, that shows that the applicant would be a danger to his son?

415Mr. Krasnay points to the one occasion on Father’s day in June of 2013. That occurred about 18 months ago when Brayden was approximately 6 months old.

416Ms. Strong points to one occasion in September 2013.

417On both these occasions the applicant was overreacting and behaving inappropriately and yelling in the presence of Brayden.

418Other than on a couple of occasions, where the respondent says that the applicant was ignoring a crying baby, no other evidence has been produced to show that the applicant is a danger to his son.

419How afraid of the applicant is the Respondent?

420In August 2014, if the respondent was as afraid of the applicant as she says she was, why would she not have left Handlebar Hanks immediately upon seeing that he was there?

421Why would the respondent meet alone with the applicant at a restaurant to discuss the access issues?

422Although the respondent, from her perception of the applicant’s anger may be somewhat afraid of him, the above two events significantly reduce, in the Court’s eyes, the level of fear that the respondent says she has of the Applicant.

423Supervised access is very intrusive and usually used in an interim type of order. It is usually made for a short period of time and in many cases is made so that the child can be reintroduced to one of its parents. Supervised access, in a commercial setting like Pathstones, is even more intrusive and is usually made where the access parent possess a significant risk to the child such as being addicted to alcohol or drugs or having a serious psychological issues. None of those factors are at play in this case.

424What happened to move the original unsupervised access to supervised?

425Was it because of the very foolish and hurtful remark by the applicant after their meeting at M.T. Belli’s restaurant, when he said that he had never loved the respondent?

426It certainly appears that this comment, made by the applicant, after the parties meeting at M.T. Belli’s, precipitated the respondent’s resolve that he could only have supervised access with the supervisor to be approved by her.

427In addition, the respondent appears to rely extremely heavily on the opinion of Dr. Kristi Cook who postulates that children less than 3 years of age should only see the other parent 2-3 times a week for 1-3 hours per time.

428The applicant had unsupervised access on June 14 and 16th of 2013. Although there was some friction at the time when the child was returned, the access seems to have gone well and the child was returned in good shape.

429In addition to the above unsupervised access, access was supervised on numerous occasions by Mr. Swartz and Ms. Barrett-Strong. All of these access visits were uneventful except on one or two occasions when the applicant got upset because the respondent was late in delivering the child. On all occasions, the child was returned on time and in good shape.

430Both these supervisors testified that the applicant did very well interacting with and caring for Brayden.

431Although there were some initial problems at supervised access at Pathstones, access and the interaction between the applicant and Brayden have gone exceptionally well for many months. All of the initial problems appeared to have been related to those of the child separating from either the respondent or her parents at Pathstones along with the fact of a long absence between access visits.

432Both Ms. Stark and Ms. Madden from Pathstones, stated that the visits all go extremely well. In addition, they have not witnessed any display of anger from the applicant.

433What psychological evidence there is that tends to show that the applicant does not have a psychological or anger problem. There is some evidence (denied by the applicant) that he overacts to situations. All the examples involve the respondent. They also almost always involve the applicant’s desire to see his son which he sees as being totally controlled by the respondent.

434Even if the applicant has an undiagnosed anger problem, there is no evidence to suggest that he is a danger to Brayden. The testimony of his bosses from KPMG certainly paint the exact opposite picture.

435While not the best of evidence, Dr. Kumaran states in his letter of October 23, 2013: “At this time I do not find any evidence of a psychiatric illness or any pscyo pathology in him. I do not see any reason why he cannot have unsupervised access to his child.”

436While the events of November 2013, involving damage to the respondent and her brother’s car are unfortunate, it has certainly not been proven on a balance of probabilities that the applicant had anything to do with them.

437Even if the applicant was somehow involved in the events, would that alone be a sufficient reason to confine his access to his son to very brief periods of time at Pathstones?

438In the courts opinion, based on all of the evidence it has heard, it would not.

439If there ever was a reason for supervised access, it has long since passed. Almost 18 months have passed since the first unsupervised access took place in June 2013.

440It is now time to move forward to normalize the custody and access arrangements for the sake of Brayden.

441The court does however retain a concern about how the applicant has interacted with the respondent in the past notwithstanding his perception that she is standing in the way of him having reasonable access to his son. This concern comes from the irrefutable evidence of the Facebook postings, texts and the very degrading words he yelled at the respondent at Handlebar Hanks.

JUDGMENT

Custody and Access

Our Family Wizard

442The parties shall communicate regarding all aspects of Brayden’s life by using the Family Wizard software at www.ourfamilywizard.com. The parties are ordered to visit the website and each enroll in the program for at least a one-year subscription not later than 10 calendar days from today. The parties shall thereafter conduct all communication regarding parenting matters using the websites features until further court order.

443Neither party shall fail to renew the annual subscription to the website without a written consent signed by both parties or a court order.

444The parties shall thereafter not e-mail, text or telephone each other, but shall post all communication exclusively on the website. They shall communicate by telephone or text only in matters of emergency regarding the child that must be acted upon in less than 24 hours.

445Subject to any changes in the software itself, the parties shall use the Calendar, Info Bank and Expense features and reserve the Message feature for information the others do not accommodate. If an entry requires a response, the receiving party shall respond within 48 hours unless the entry itself indicates a longer time frame is acceptable.

446The parties shall elect to receive text or email alerts about new activity using the Daily Digest or On Action option or other enhancement, programmed into the software from time to time.

447Although no issues regarding health, or other reimbursements are presently before the court, the court orders the parties to take advantage of whatever expense tools exist within the software from time to time so that there is a future record of all potentially reimbursable expenses in order to mitigate the necessity to litigate in the future over such matters.

448Each party shall be responsible for their own cost to sign up and maintain use of the program.

Caring Dads

449Out of an abundance of caution, and because of the applicant’s overreaction to events during exchanges, the applicant shall forthwith enroll in and complete the program known as “Caring Dads” and forward proof of completion to the respondent. This program shall be completed before any overnight access takes place.

Custody and Access

450The parties shall have joint custody of the child of Brayden Michael Plugers, born January 10, 2013.

451The principal residence of the child shall be with the respondent mother.

452Both parties shall confer and discuss politely, issues concerning their son and in particular issues involving his medical and educational needs and his religious and extracurricular activities.

453In the event that no agreement is reached on issues concerning the medical needs of the child, the respondent mother shall make the final decision.

454In the event that no agreement is reached on issues concerning the educational needs of the child, the applicant father shall make the final decision, however the child shall attend school in the respondent mother’s catchment area.

455Religious issues shall be discussed between the parties before being planned. The respondent shall have the final say in when and where these important events such as Baptism and First Holy Communion etc. take place, however all members of both families shall be allowed to attend.

456The parties shall discuss who they would like to use as Godparents and sponsors for Sacraments within the Roman Catholic religion. If they are unable to agree, the respondent shall have the final say in who the Godparents are for Baptism and the applicant shall have the final say in who the sponsors are for Confirmation.

457I am not prepared at this point in time to give either of the parties the final say in what extracurricular activities the child will partake in. It is clear from the evidence that the applicant loves to play hockey and it is therefore likely that the parties will enroll him in that activity. In the event that no agreement is reached on issues concerning the child’s extracurricular activities, the parties may seek the assistance of a mediator or if absolutely necessary return to court.

458Both parties may make inquiries and be given information by Brayden’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, coaches or others involved with Brayden.

459Both parties shall be listed as emergency contacts with the child schools and other organizations involved with the child.

460The parties shall notify each other immediately if the child experiences a medical emergency.

461Both parties shall have the right to make emergency medical decisions respecting the child while he is in their care.

462In the event of an emergency, both parties shall attempt to reach the other party before making emergency medical decisions for the child. The child’s health card shall travel with him between the parties’ residences unless a copy of the health card is satisfactory for the child to access health care, in which case the applicant shall forthwith be given a copy of the child’s health card.

463Between now and February 28, 2015 the applicant father shall have access to the child:

A. Each Wednesday except December 24, 2014, from 4 PM to 7 PM.; and

B. Tuesday December 23, 2014, from 4 PM until 7 PM.; and

C. Each Sunday from noon until 4 PM.; and

D. December 25, 2014, from 2 PM until 7 PM.

464Commencing on March 1, 2015, the applicant father shall have access to the child each Wednesday from 4 PM to 7 PM and each Sunday from 10 AM to 6 PM.

465Commencing on May 1, 2015 the applicant father shall have access to the child:

A. Each Wednesday from 4 PM to 7 PM; and

B. Alternate Fridays (when he does not have an access weekend) from 5 PM to 7:30 PM.; and

C. Each alternate weekend on Friday from 5:30 PM to 7:30 PM, on Saturday from 10 AM until 6 PM and on Sunday from 10 AM until 6 PM.

466Commencing on January 6, 2016, the applicant father shall have access to the child:

A. Each Wednesday from 4 PM to 7 PM and

B. Alternate Fridays (when he does not have an access weekend) from 5 PM to 7:30 PM.

C. Each alternate weekend from Friday at 5:30 PM until Sunday at 7 PM.

467The applicant father shall have access to the child at all other times as agreed upon by the parties.

468Weekend visits shall be extended by one day if children in general, or this child in particular, are not required to attend school on the Friday before or the Monday after the weekend.

469Regardless of the weekend access schedule, the child shall spend Mother’s Day with the respondent mother from 9 AM for the remainder of the day.

470Regardless of the weekend access schedule, the child shall spend Father’s Day with the respondent father from 9 AM until 7 PM.

471Notwithstanding that the child is not yet in school, the respondent mother shall have the child for the March school break in each odd year and the applicant father shall have the child for the March school break in each even year. March break is in addition to the three other weeks of vacation referred to in this order.

472Each party shall be entitled to three non-consecutive weeks during the months of July and August.

473The respondent mother shall have the right to choose the weeks which she wants to vacation with the child in the odd years, providing she notifies the applicant father in writing by May 1 of each odd year. In the event that the respondent mother does not notify the applicant father by May 1 of each odd year, then the first parent to notify the other of their request in writing for the three non-consecutive weeks of vacation during the summer after May 1 shall prevail.

474The applicant father shall have the right to choose the weeks which he wants to vacation with the child in the even years, providing he notifies the respondent mother in writing by May 1 of each even year. In the event that the applicant father does not notify the respondent mother by May 1 of each even year, then the first parent to notify the other of their request in writing for the three non-consecutive weeks of vacation during the summer after May 1 shall prevail.

475During vacation times of one week or greater, that the respondent mother arranges for herself and the child, the applicant father’s midweek access shall be suspended.

476When either party plans a vacation with the child away from their normal residence, that party shall give the other party a detailed itinerary at least 20 days before the vacation begins, or, as soon as practical if plans are made less than 20 days before the vacation begins, including the name of any airline carrier and flight times, accommodation, including address and telephone numbers and details of how to contact the child during the trip.

477The travelling parent shall advise the other parent immediately of any changes to the above information.

478The respondent shall forthwith apply for a passport for the child. The cost of the passport shall be considered at Section 7 expense. The respondent shall forward the passport to the applicant when requested to facilitate travel outside of Canada and the applicant shall forthwith return the passport to the respondent upon his return to Canada.

479Each party may travel with the child outside Canada without the consent of the other party.

480If either party intends to take the child out of Canada for short trip to the USA, even if it is for a few hours or the weekend, the party taking the child out of Canada shall inform the other party in writing before doing so and shall inform the other party where they are going, how they can be contacted in case of an emergency and when they expect to return to Canada.

481In 2015, the applicant father shall have access to the child from the start of the normal school Christmas vacation until December 25. This access shall take place each day from 9 AM until 7 PM and on December 25 from 9 AM until 2 PM when the child shall be returned to the respondent mother’s care for the remainder of the normal school Christmas vacation.

482Commencing in 2016 and in each even year thereafter, the respondent mother shall be responsible for the child from the start of the normal school Christmas vacation until 2 PM on December 25 when the applicant father shall have access to the child for the remainder of the normal school Christmas vacation.

483Commencing in 2017 and in each odd year thereafter, the applicant father shall have access to the child from the start of the normal school Christmas vacation until 2 PM on December 25 when the child shall be returned to the respondent mother’s care for the remainder of the normal school Christmas vacation.

484During the normal school Christmas vacation, midweek and alternate weekend access shall be suspended.

485In the event that either party is not able to care for the child for one or more days of their time with the child they shall give the other party the option of caring for the child before arranging for babysitting or childcare.

486The parties shall keep each other informed about their residential address, and main contact telephone numbers and email addresses and shall notify the other party within 24 hours whenever that information changes.

487In the event that any professional involved with the child requires the consent of the other party, before providing information to him or her, the other party shall execute all necessary consents immediately upon request.

488Neither party shall speak negatively about the other party particularly in the child’s presence. Neither party shall text or post negative information or innuendos about the other party using any electronic or Internet forum, including posts on Facebook, Twitter and Our Family Wizard. Both parties shall also make their best efforts to prevent any other person from speaking negatively about or texting or posting negative information or innuendos about the other party.

Child Support

489Commencing on the first day of June 2014 and on the first day of each month thereafter, the applicant father shall pay to the respondent mother for the support of the child $426.00/month based on his 2013 annual income of $47,251.00.

490Both of the parties shall contribute to appropriate section 7 expenses in the ratio of their incomes for the preceding year. For 2013, the applicant father earned $47,251.00 annual income and the respondent mother earned $35,207.19 annual income. Therefore, commencing June 1, 2014 until the end of May 2015, the applicant father shall pay 57.3% of all eligible section 7 expenses and the respondent mother shall pay 42.7%.

491For so long as child support is to be paid, the applicant and the respondent shall provide updated income disclosure to the other each year for their previous year’s income on or before June 1 of each year in accordance with section 24.1 of the Child Support Guidelines.

492Based on the financial disclosure of each party, the monthly child support in accordance with the Child Support Guidelines and the new ratio for the parties contribution to section 7 expenses shall commence on July 1 of each year and shall continue until the end of June of the following year based on their previous year’s income.

493A support deduction order shall issue.

Benefits

494Both parties shall maintain whatever extended medical and dental and other benefit plans they have available to them through their employment for the child as long as the child remains eligible for child support and eligible for such benefits in accordance with the benefit plan.

495Both parties shall provide the other with details of whatever benefits they have available for the child through their work within 30 days.

Life Insurance

496Both parties shall apply for and maintain a life insurance policy with a minimum face value of $250,000 and shall irrevocably designate the other party as beneficiary of his or her life insurance policy in trust for the child, so long as the child is eligible for child support.

497Each party shall send the other party proof that the designation has been submitted to the insurance provider within 30 days of this order.

498Each party, if requested, shall furnish proof on an annual basis that such insurance is still in effect and that the other party is still the irrevocable beneficiary.

499If at the time of the death of either party they have not complied with the obligation with respect to his or her insurance policy, this clause shall constitute a first charge against the deceased party’s estate in an amount equivalent to the face value of the policy being $250,000.

Costs

500If the parties are unable to agree on costs, Ms. Gibson shall forward her brief submissions on costs to me by December 15, 2014. Mr. Callahan shall forward his brief response to me by December 22, 2014. Ms. Gibson shall then forward her reply, if any, to me by December 29, 2014. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca.

501The parties may contact me at the above e-mail address if they have any difficulty drafting the Judgment.

James w. Sloan