SUPERIOR COURT OF JUSTICE

FAMILY COURT

Court File No. FC-14-3136

B E T W E E N:

BONNIE LEIGH WHIDDEN

Applicant

• and -

GARRY SCOTT ELLWOOD

Respondent

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE D. CHAPPEL

on May 29, 2015, at HAMILTON, Ontario

APPEARANCES:

B. Whidden

Applicant, In-Person

M. Fedsin

Counsel for the Respondent

FRIDAY, MAY 29, 2015

R E A S O N S F O R J U D G M E N T

CHAPPEL, J. (Orally):

Thank you for attending this morning to hear my oral reasons for judgment.

This was the hearing of a motion brought by the Respondent, Garry Scott Ellwood (hereinafter referred to as “the father” or “the Respondent”), originally returnable on March 27, 2015. The motion was subsequently amended by way of amended notice of motion, originally returnable May 1st, 2015. In this motion, the father seeks an order permitting him to have equal time with the daughter of the parties' relationship, namely Taylor Madeleine Ellwood, born September 29th, 2007 (“Taylor”). In addition, he requests an order requiring the Applicant to make financial disclosure of numerous items, and an order that a case management judge be assigned to the case. The Applicant, Bonnie Leigh Whidden (hereinafter referred to as “the Applicant” or “the mother”), opposes the Respondent's request for equal time sharing. It is her position that she should have temporary sole custody and primary residence of Taylor, and that access between the father and Taylor should be limited to daytime supervised visits only. With respect to the supervision requirement, her position is that supervision should be carried out by an objective third party, and not by any members of the father's family.

The existing time sharing arrangements are as set out in the temporary without prejudice order of Lafreniere J. dated March 27th, 2015, which was based on Minutes of Settlement which the parties executed on that date. Pursuant to that order, Taylor is in the primary care of the Applicant mother, and shares time with the Respondent every Monday and Wednesday from after school until 8:00 p.m. and every Sunday from 10:00 a.m. until 7:00 p.m. The order also provided that the Respondent would have the child on Easter Sunday from 10:00 a.m. until 10:00 p.m., as well as on April 25th and 26th, 2015, from 7:00 a.m. until 8:00 p.m. to allow the child to participate in go-kart training and practices. The order further stipulated that the child would complete the two remaining sessions of the LEAF counselling program that she had been participating in, but that she would not participate in any further counselling without the consent of the Respondent.

I have carefully considered the affidavit evidence and the oral evidence adduced at the lengthy hearing of this motion. I wish to emphasize at the outset that it is clear that both parties love their daughter Taylor very much and are committed to promoting her best interests. I am also satisfied that they have both played a role in her upbringing and that both parents offer unique positives to Taylor's life. Furthermore, it is clear that Taylor loves both of her parents. However, for the reasons that follow, I conclude that it is in Taylor's best interests to remain in the primary care of the mother and that a temporary order issue granting the Applicant sole custody of the child. I have also concluded that it is in Taylor's best interests that the current time sharing arrangements with her father continue pending a trial of this matter, and that a number of conditions be imposed with respect to the Respondent's access. With respect to the disclosure portion of the motion, I have allowed part of the disclosure requested, but dismissed some requests on the basis that they are overreaching.

As I have noted, the hearing of this motion was protracted. By way of procedural background, when this matter came before Gordon, J. on May 1st, 2015, Justice Gordon concluded that it should proceed as a long motion. He adjourned the matter to May 19th, 2015, and granted the parties leave to adduce oral evidence. Pursuant to that order, I heard oral evidence from the Applicant; the Respondent; the clinician who completed a Section 112 Office of the Children's Lawyer report respecting the family, Ms. Patricia Johnston; Taylor's paternal grandmother, Mary Ann Ellwood; a friend of the Respondent, John Dryden;

and Taylor's maternal aunt, Aimee Tilton.

The credibility and reliability of the parties and their witnesses were important issues in this case. With respect to Patricia Johnston, the Applicant objected to the admission of her report into evidence, and also to her testifying orally. Her objection was based on the fact that she had successfully disputed the report of Ms. Johnston, with the result that the Office of the Children's Lawyer had reassigned the case to a new clinician for the purposes of completing a new report. The objections that the Office of the Children's Lawyer accepted as being valid related primarily to inaccuracies in the report relating to information which the parties and collaterals had provided to Ms. Johnston. At the hearing of the motion I declined to accept the report of Ms. Johnston as evidence based on these concerns, but I allowed Ms. Johnston to testify about her direct observations of and conversations with the parties and Taylor during the course of her assessment. Ms. Johnston was resistant to being cross-examined by the Applicant, having regard for the history with respect to her Section 112 report. However, she presented as fair and even-handed in giving her evidence in this matter. Her comments respecting both parties' interactions with Taylor during her observation visits and meetings with them were positive.

I had no concerns regarding the credibility or

reliability of the other non-party witnesses. They all presented as organized, honest, and fair to both parties in their testimony. Their evidence was not, in my view, undermined in any significant way on cross-examination.

With respect to the Applicant and the Respondent, there were numerous inconsistencies between their evidence. Overall, I found the Applicant much more credible than the Respondent. I have reached this conclusion based on a number of significant inconsistencies between the Respondent's testimony and other evidence adduced at trial, examples of very misleading evidence which the Respondent adduced, and the fact that the Applicant's evidence on significant issues in this case was supported in certain respects by that of non-party witnesses. I will elaborate on these conclusions in my detailed discussion of the evidence below. However, some examples of the misleading evidence which the Respondent provided in his affidavit and oral evidence are as follows:

1. He stated in his affidavit sworn March 20th, 2015 that he had voluntarily provided child support to the Applicant since separation without fail and attached copies of monthly support cheques starting July 4th, 2014. In fact I find that he did not pay the Applicant child support until October 2014, when the parties were in the midst of these proceedings, at which time he provided backdated child support cheques to the

Applicant.

2. He stated that subsequent to the Applicant leaving the home on July 4th, 2014, he became aware that on several occasions that the Applicant had attended at the family home while he was at work, removed family chattels, and caused damage to the home. He relied on these alleged incidents in explaining why he had changed the locks on the jointly owned family home so as to preclude the Applicant from entering. In fact there had been no such incidents that had occurred after July 4th, 2014. Furthermore, the police incident report dated July 29, 2014, relating to the Applicant's attempt to access the home with police assistance indicates that the Respondent stated at that time that he had changed the locks because he did not know where the Applicant was living. There is no mention in that report of the explanation which the Respondent set out in his affidavit evidence about the mother allegedly removing chattels and damaging the home.

3. He alleged that the Applicant had discharged two lawyers, without adducing any evidence in support of this assertion. In fact the Applicant only had an initial consultation with the first lawyer who she met with, and never retained him. With respect to the second lawyer, I find based on the Applicant's evidence and correspondence from that lawyer dated March 11, 2015, that the lawyer decided not to continue representing the Applicant because of his unwillingness to dispute the OCL clinician's report, his concerns that he would not be compensated for his work, and the fact that he is an OCL agent. It is important to note that the Applicant later successfully disputed the OCL report, with the result that a new clinician was assigned to start the assessment process afresh.

4. He testified that the Applicant told him and his family not to attend Taylor's birthday party or else the police would be called. In fact, I find that the Applicant sent the Respondent an invitation to the birthday party, but that a dispute then arose because the Respondent wanted several of his family members to attend the children's party to drop off gifts. The Applicant felt that this would not be appropriate, since it was a children's party at a playground. She had not invited her family members, and she wanted the focus to be on Taylor and her friends having fun rather than having a family event.

5. He alleged in his affidavit sworn September 2nd, 2014 that the Applicant did not return any of his calls after she left the home on July 4th, 2014. However, he neglected to mention that the Applicant arranged for several telephone calls for him to speak to Taylor from the Halton women's shelter where she and Taylor were residing.

6. He indicated in his affidavit sworn March 20th, 2015 that he was primarily responsible for dropping off and picking up Taylor from school prior to separation. In fact the evidence indicated that the child took the bus to school and that the parties shared the responsibility of getting the child on the bus equally.

These and other problematic aspects of the Respondent's evidence, which I will discuss in further detail in the analysis portion of these reasons, cause me to approach the Respondent's evidence with considerable caution.

I turn to the relevant background in this case. The parties began dating in 1991, and began co-habiting in 2000. They were never married. Taylor is the only child of their relationship. The parties separated on July 4th, 2014, when the Applicant told the Respondent that she was taking the child for a few days to a friend's cottage. She never returned to the home. Since that time, Taylor has been in the primary care of the Applicant, with limited access to the Respondent. The Respondent has consistently pursued liberal and generous time with Taylor since the separation. The Respondent has remained in the family home. The Applicant and the child resided at the Halton Women's shelter until mid-August 2014 when they went to reside with the Applicant's sister for a period of time. They are now living in a two bedroom apartment in Waterdown.

The Applicant is a registered practical nurse and

worked in that capacity throughout the parties' relationship. She worked at Joseph Brant Hospital for several years prior to separation. She took a year off to stay at home with Taylor following the birth of the child and then returned to work. She worked shift work, which included both day and nighttime shifts. The Respondent works in the auto glass repair industry. He was employed in this capacity throughout most of the parties' relationship, and then opened his own auto glass repair business in 2010. He operates this business from the family home, and he manages his own work hours. Based on the evidence before me, I am satisfied that he has flexible work hours that are conducive to him having generous time with Taylor.

The relationship between the parties has been very conflicted for many years. The tension between the parties escalated significantly during the several weeks leading up to the parties' separation. On June 20th, 2014, there was a domestic incident at the family home which involved the police. As I will discuss in further detail below, the parties' versions of the events on that date differ significantly. The Applicant sustained a cut to her lip during this incident. No charges were laid and the parties both remained in the home at that time.

As I have already stated, on July 4th, 2014, the Applicant took Taylor to a friend's cottage stating that she would return in a few days. However, while she was away she decided to separate from the Respondent. The Applicant testified that she made the decision based on a history of emotionally and physically abusive treatment by the Respondent and the Respondent's history of alcoholism. The Applicant made arrangements to go to the Halton Women's Place shelter with Taylor, and they arrived at the shelter on July 9th, 2014. They remained at the shelter until August 11, 2014, when as I have indicated, they went to live with the Applicant's sister, Aimee Tilton. The Applicant did not advise the Respondent of her intention to leave the relationship, and the Respondent did not know where she and the child had gone. The Applicant initially made calls to the Respondent on a daily basis to allow the Respondent to speak with Taylor. As I will discuss in further detail below, she stopped these daily calls because she felt that the Respondent was intoxicated and angry during the calls, and that this was having a negative impact on Taylor.

The Children's Aid Society of Hamilton became involved with the family following the domestic incident on June 20th, 2014, and began an investigation. The Applicant assumed that the Society would advise the Respondent that she and Taylor were at a shelter. The Society worker advised the Applicant that she would be held accountable if she left Taylor with the Respondent while the Respondent was intoxicated. The Applicant testified that she met with a lawyer soon after she arrived at the shelter and was told that she should facilitate access between the Respondent and Taylor. She subsequently made arrangements for the Respondent to see Taylor with her and her brother-in-law present at a park on July 4th, 2014, and again at the family home on July 2nd, 2014, with her present. The Applicant testified that she felt comfortable going to the home for a visit because the Respondent's sister was also present in the home. The Respondent testified that he, the Applicant, and the child went to a local store during that visit. The Respondent saw Taylor again on July 27th and July 28th, 2014. He had the child overnight at the family trailer on both occasions. The Applicant testified that the Respondent had planned this trip many weeks earlier and that he badgered her and Taylor to allow him to take the child camping. She stated that she eventually gave in and allowed Taylor to go because she knew that some friends would be there and that the wife of one of the friends would make sure that Taylor was safe. The Applicant attended the campground on both days to spend time with Taylor.

The tension between the parties escalated further on July 28th, 2014. On that date the Applicant attempted to enter the family home in order to retrieve some belongings. The Respondent had changed the locks on the door without advising the Applicant, as I have already indicated. The Respondent, as I have indicated, stated in his affidavit sworn September 2nd, 2014, that he changed the locks because subsequent to the Applicant leaving the home he had become aware that on several occasions the Applicant had attended the home while he was at work and had removed many of the family chattels, leaving the home in disarray. In fact on cross-examination he acknowledged that no such incidents had occurred since the Applicant had left the home on July 4th, 2014. He did describe some incidents when the Applicant had caused damage to the home at earlier times during the parties' relationship. The Applicant was forced to seek police assistance on July 29, 2014 to retrieve some possessions from the home.

The parties had arranged for the Respondent to have Taylor overnight again on July 29th, 2014. The plan was that the Respondent would drop the child off to the mother's care again on July 30th, 2014. The Applicant testified that she asked the Respondent to drop Taylor off at her sister's home on July 30th, 2014, because she had an appointment with a new lawyer on that date. According to the Applicant, the Respondent refused to agree to this request on July 29th, 2014, and she therefore told the Respondent that she would not be sending Taylor overnight.

The Applicant met with her new lawyer on July 29, 2014. The Applicant testified that her lawyer advised her that given her concerns regarding emotional and physical abuse by the Respondent and his excessive alcohol use, she was not required to facilitate access with Taylor. The Applicant acted in a timely way after receiving this advice to commence this application. On August 7th, 2014, she issued her application in which she requested sole custody of Taylor. With respect to her access, her position was that any access between the Respondent and the child should be supervised based on her concerns. To this end she sought the assistance of the Society to arrange supervised access. The Society declined to provide its assistance.

When school started in September 2014, the Respondent attended at the school daily and saw Taylor in the morning before school started and at the end of the school day. This matter proceeded to a case conference before Pazaratz J. on October 16th, 2014. The parties were unable to resolve the issues in dispute at that time. On October 20th, 2014, the parties resolved some of the financial issues between them, and the Respondent withdrew his claim for spousal support. The parties arranged for the Respondent to have a daytime visit with Taylor on November 9, 2014, so that he could take the child to the Royal Winter Fair. They subsequently reached an agreement in late November 2014 for the Respondent to have visits with Taylor each Wednesday from after school until 8:00 p.m., and Sunday from 10:00 a.m. until 7:00 p.m. This access arrangement continued until March 27, 2015, when the parties consented to the temporary without prejudice access order that I have already referred to. This order expanded access to include Monday evening visits.

I turn now to the applicable law and my analysis based on the evidence in this case. The legislation that applies in regard to the custody, access, and time sharing arrangements in this case is the Children's Law Reform Act, R.S.O. 1990, C.C-12 as amended (“the Act”). Section 21 of the Act provides that a parent of a child or any person may apply to the court for an order respecting custody of or access to a child or determining any aspect of the incidents of custody of the child. By virtue of Section 24 of the Act, the merits of an application respecting custody or access must be determined on the basis of the best interests of the child. In making a determination relating to the child's best interests, the court is required to take into consideration all of the child's needs and circumstances, including those set out in Sections 24(2) to (4) of the Act. Section 24(4) specifically directs the court to consider whether there is any evidence that a person

has at any time committed violence or abuse against a child, the parent of the child

involved in the application, or a member of the person's household, other than acts of self-defence or acts intended to protect another person.

The Respondent relies on caselaw which has held that on interim motions for custody and access, absent a compelling reason, the status quo should be maintained pending trial. Specifically he relies on the cases of Kimpton v. Kimpton, 2001 CarswellOnt 1050 (S.C.J.), Button v. Konieczny, 2012 ONSC 5613 (S.C.J.), and Coe v. Tope, 2014 ONSC 4002 (S.C.J.). He submits that the relevant status quo for the purposes of this principle is the primary or legal status quo and a not a short-lived status quo created by unilateral action by one party to gain tactical advantage.

The status quo that existed during the period leading up to separation is certainly an important factor for the court to consider on temporary custody motions. However, I do not agree that there is any presumption in favour of maintaining the status quo on temporary custody and access hearings. The Court of Appeal commented on the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access in the case of Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 (C.A.). The court recognized that the existing arrangements and how well they are working for the child are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence then may be required to disrupt the status quo after trial. As the court stated at paragraph 34:

It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits.

Since this decision, many courts have interpreted this portion of the Court of Appeal's decision as creating a presumption in favour of maintaining the status quo. However, the court emphasized immediately after making these comments that as in the case of a trial, the best interests of the child remain the paramount consideration at the temporary motion stage, and any difference in the required weight of evidence is a matter of degree and not of kind. The Court of Appeal's comments in Papp did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence, and access, there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp, the applicable test is best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the de facto arrangements. As with any other factors relevant to the best interests determination, the extent to which the existing custody, residence, and access arrangements will factor into the court's decision on a motion for temporary relief will depend very much on the particular facts of each case. As the parties' situations and the family dynamics evolve post-separation, so too may the needs of the children. Each family situation is unique. It is therefore important for the court to maintain an open-minded perspective free of presumptive rules and principles in carrying out the best interest analysis at the stage of granting temporary relief pending trial.

The existence of domestic conflict within the home is a significant consideration in carrying out the best interest analysis. The case law recognizes the multitude of potential negative repercussions that exposure to domestic violence can have on children, including:

a) risk of direct physical harm if the child attempts to protect a parent or the child is being held by a parent at the time of the conflict;

b) fear of being harmed or a parent being

harmed;

c) feelings of guilt for failing to assist the parent who is being harmed;

d) feelings of insecurity and low self-esteem; and

e) a sense of emotional confusion due to their inability to understand why the conflict and violence have occurred (Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, [2005] O.J. No. 2154 (O.C.J.), and Children's Aid Society of Hamilton v. P.B. and K.O. Sr., (December 8, 2008), Hamilton C3-07, (S.C.J.)).

Evidence that a parent or a parental figure has engaged in emotionally or physically abusive behaviour towards a parent must be given considerable weight in carrying out the best interests analysis, even if the child has not been directly exposed to this type of behaviour. A finding that this type of conduct has occurred should cause the court to have great concern about the ability of the abusive parent to provide a safe and emotionally secure environment for the child, and to provide the type of parenting that will foster the child's emotional and social well-being and development. There is a tendency to assume that an individual who has engaged in physical and emotional bullying towards a parent is able to easily shut off the “bully switch” while interacting with other individuals, including their children. Courts must be careful not to make such simplistic assumptions in Family Law cases involving domestic violence.

I turn now to the analysis respecting the best interests of Taylor. As I stated at the outset of these reasons, I conclude that it is in Taylor's best interests to remain in the primary care of the Applicant, for the Applicant to be granted temporary custody, and for the existing time sharing arrangements with the Respondent to continue pending a trial.

In reaching my decision in this matter, I have considered the history of the parties' parenting roles in relation to Taylor. I conclude that both parties played a significant role in caring for Taylor, but that the Applicant carried the heavier load in terms of meeting the child's day to day needs, scheduling necessary appointments for the child and taking her to her appointments. The Respondent has not raised any concerns respecting the Applicant's ability to meet the child's day to day needs and ensure that the child receives appropriate medical and dental care. During the period leading up to the separation, the Applicant's work schedule was such that she worked two 12 hour day shifts from 7:30 a.m. until 7:30 p.m., then two 12 hour night shifts from 7:30 p.m. until 7:30 a.m., followed by five days off. The Applicant testified that she often did not work for four days in a row because she interspersed her vacation time throughout the year in such a way as to minimize her need to work four straight days. She was primarily responsible for the care of the child when she was not working. I accept the Applicant's testimony that when she worked the night shift from 7:30 p.m. until 7:30 a.m. she would typically prepare the dinner and make Taylor's lunch for school the next day. She would also assist the Respondent in getting Taylor ready for school in the morning when she returned home. When the Applicant worked the day shift from 7:30 a.m. until 7:30 p.m., the Respondent was responsible for caring for Taylor in the mornings and evenings when the Applicant worked, but I accept the Applicant's evidence that she would assume primary responsibility for Taylor once again when she returned home at the end of her day shift. In addition the evidence indicates that the Applicant was the parent who took Taylor to dental and medical appointments. The parties relied on various daycare services for Taylor, including in-home daycare by family friends, a daycare centre, and before and after school care. They shared the responsibility of getting Taylor to daycare when transportation was necessary, and in getting Taylor to the bus when she started taking the bus to school, depending on who was available based on their work schedules. The parties were also both involved in taking Taylor to her activities. However, the Applicant testified and I find that the Respondent would often not take Taylor to her activities if they conflicted with his own activities, or would arrange for friends to take Taylor.

I have given careful consideration to the evidence adduced during this hearing relating to domestic violence during the parties' relationship. The Applicant testified that the Respondent has been physically aggressive towards her on many occasions throughout the parties' lengthy relationship. The Respondent denies that he was ever physically aggressive towards the Applicant, but acknowledges that the parties have had altercations that have become physical. He stated that any such incidents were attributable to the Applicant making demeaning comments about him and becoming physical towards him. I found the Applicant to be very credible in giving her evidence in this area. She presented as genuinely distraught in giving her evidence, to the point of crying and shaking uncontrollably on a number of occasions. She was able to provide considerable detail regarding the incidents. I accept the Applicant's evidence over the Respondent's, and I make the following findings respecting the history of aggression by the Respondent towards the Applicant:

1. The Applicant testified and I accept that on many occasions during the relationship, when the parties had disagreements, the Respondent would approach her with his chest stuck out, bump against her with his chest, and threaten her with his fists so as to intimidate her. The Applicant described the Respondent as acting like a gorilla, and testified that the Respondent

would use threatening words when he engaged in this conduct, and tell her that she better stop doing what she was doing or saying what she was saying.

2. On one occasion in approximately 2004, the parties had an argument at the family home which became physical. The Applicant alleges that the dispute ended with the Respondent throwing the Applicant to the ground and kneeing her in the ribs several times. The Applicant attended the emergency department at Milton Hospital on that occasion for assessment and underwent x-rays, which established that she had not suffered any broken ribs. The Respondent's version of this event is that the Applicant began yelling at him and calling him names, and he grabbed her arms to calm her down. He states that the Applicant then tried to get away from his grasp, and both parties ended up falling onto the couch. The Respondent's version is somewhat similar to his explanation for the June 20th, 2014, domestic incident, in that he states that on both occasions he grabbed the Applicant's arms, ostensibly to calm her down. As discussed below, I do not accept his version of the June 20th, 2014 incident, nor do I accept his version of the 2004 incident. The explanation that the parties fell onto the couch simply does not correspond with an injury to the Applicant's ribs that was so serious that she had to attend the emergency room. The Applicant states that she still feels pain at times as a result of this incident. I find that the Applicant's version of this incident is the correct one.

3. On one occasion during the relationship, the Respondent was driving with Taylor and the Applicant in the vehicle and was drinking beer in the vehicle. When the Applicant confronted him about drinking and driving, the Respondent swore at her and threw the beer at her.

4. The Applicant and her sister, Aimee Tilton, testified about an incident that occurred in early 2014 when the Respondent attempted to call the Applicant on her cell phone and could not reach her. According to Ms. Tilton, the Respondent called her on the date in question and inquired about where the Applicant was because he had attempted to call her. Ms. Tilton stated that the Respondent presented as extremely angry and agitated during this call. She described the intensity of the conversation as "unreasonable and not normal," given that it was early in the evening for the Respondent to be worried about the Applicant's whereabouts. She attempted to reason with the Respondent, stating that the Applicant probably had her phone in her purse and did not hear it. Ms. Tilton was able to connect with the Applicant following this conversation and testified that the Applicant was concerned that the Respondent was upset and predicted that the Respondent would destroy something belonging to her or take something away to punish her. The Applicant testified, and I find, that when she arrived home, the Respondent lunged at her, shoved her, and began grabbing her purse in an extremely aggressive manner. The Applicant described the grabbing of the purse as "like a purse snatcher would grab it." The Respondent then forcefully removed the cell phone from her purse. The Respondent then kept the cell phone from the Applicant and refused to give it back as punishment for not answering her phone. This incident occurred in the presence of Taylor. The Applicant went to stay with Ms. Tilton for the weekend following this incident due to her fear of the Respondent.

5. As already noted, there was a domestic incident between the parties, at the family home on June 20th, 2014. The police were involved, but no charges were laid. The parties' versions of the events that occurred on that date differ greatly. The police report relating to this incident was admitted as evidence. I have concerns respecting the report since it only appears to refer to the Respondent's version of events. The parties agree that the dispute began in the backyard, where Taylor and the Applicant were swimming at the time. Taylor asked her father to hold a towel for her and a dispute arose because of the way in which the Respondent was holding the towel. The parties had a verbal argument at that point. The Respondent went to the garage and Taylor and the Applicant went into the house, where the Applicant proceeded to prepare dinner for Taylor. The Respondent entered the home later on and the verbal disagreement continued. The Respondent alleges that during this dispute, the Applicant called him a number of foul names and made many demeaning comments about him. It appears that the argument involved unpleasant words exchanged by both parties. The child Taylor was present at the time. The Applicant's version of the events that ensued has been fairly consistent, whereas the Respondent has given very different versions. The Respondent reported to police that when he entered the home after being in the garage, he grabbed the Applicant's hands to stop her from calling him names. He alleged that he walked away, that the Applicant charged after him, and that he put up his hands to cover his face. The Respondent's version of events as reported to the police is not in my view credible. There are discrepancies between the report and his description of the events in his affidavit sworn September 2nd, 2014. In that affidavit he stated with confidence that the Applicant received a nick to her lip from his watch when he tried to block her alleged assault. In both the police report and the Respondent's affidavit sworn September 2nd, 2014, the Respondent stated that he first called the police and the Applicant then called the police once she learned that he had called. During an interview with the Children's Aid Society worker Madison Aimers on July 2nd, 2014, the Respondent admitted that during the dispute, he grabbed the mother's face, and told her to “shut the hell up”. He stated that he turned to walk away after doing this and that he raised his arm to get away from the Applicant at that point because she was following him. He stated that it was at that point that he believes his watch nicked the Applicant on the lip. During the hearing the Respondent acknowledged that he grabbed the Applicant's hands to get her to stop yelling, and also that he grabbed her face, covered her mouth with his hand, and told her to “shut the hell up”. The Respondent also acknowledged that the child Taylor came up behind him and started hitting him during this incident to try to stop the argument. The Respondent indicated during the hearing that he actually took the Applicant's cell phone away from her and called the police using that phone because he was afraid that the Applicant would call the police. He admitted that the Applicant followed him and yelled at him to give her her phone back. This differed from the statement which the Respondent made in his Answer and Claim at paragraph 28 that the Applicant only called the police after he had called police. In his Answer and Claim there was a glaring omission. He neglected to state that he had taken the Applicant's phone away to preclude her from calling the police.

The Applicant's evidence respecting the incident

on June 20th, 2014, has been much more consistent than the Respondent's. I accept her version of events over the Respondent's. Based on her evidence, I find that when the Respondent entered the home again after going to the garage, he became very angry because the Applicant had already prepared dinner for Taylor, and he had bought food for dinner. The Applicant acknowledges that she told him to leave the house because he was intoxicated. In all likelihood, there were words exchanged at that point. The Respondent then came after the Applicant and she turned to get away. The Respondent then grabbed the Applicant roughly by the face from behind her, putting his hand over her face and nose, and squeezing hard so that she could not breathe. The Respondent then held the Applicant in a headlock in a bent down position and continued to hold his hand over her mouth. The Applicant stated that she had no idea what made the Respondent let go. She described this incident with a genuine sense of fear in her voice and demeanour. The Applicant was not aware that Taylor began hitting the Respondent to protect her mother. She learned this later while she was at the shelter, when Taylor relayed this information to her. The Respondent then grabbed his own phone as well as the Applicant's so the Applicant could not call the police. He called the police himself, and the Applicant then called as well when she was able to retrieve her phone.

6. The Applicant testified that when the

Respondent attended at Taylor's school in the afternoons starting in September 2014, she initially allowed him to walk Taylor to her car and strap her into her car seat. However, she stated that she stopped allowing him to do so after an incident when he became angry and shoved her roughly against her vehicle. I accept the Applicant's evidence regarding this incident.

There is no evidence the Respondent has engaged in physically abusive behaviour towards the child. However, his problem with physical aggression has manifested itself in other ways. I accept the evidence of the Applicant that the Respondent has in the past kicked the family dog, kicked holes in the wall in the family home, and on one occasion punched the windshield of a car while he was in the passenger seat and the Applicant was driving, resulting in the windshield having to be replaced.

I also make the following findings based on the Applicant's evidence:

a) on one occasion, the Respondent became so angry and frustrated with Taylor that he kicked something outside of the home so hard that he injured his foot and was limping the next day;

b) on another occasion, the Respondent was angry at a neighbour and retaliated by loading excessive snow on the plow of the neighbour's truck causing it to break;

c) the Respondent threw all of the

Applicant's personal belongings into bags following the separation and placed them in the wet, mouldy, smelly basement of the family home, causing mould to destroy the items.

The Applicant testified that because of the Respondent's history of this type of destructive behaviour, she feared after the separation that he would damage her vehicle as a means of controlling her actions. She explained that she left with Taylor for her friend's cottage late in the evening on July 4th, 2014, rather than waiting until the next day because the Respondent was giving her a hard time about leaving, and she feared that he would do something to make her car inoperative so that she could not leave. I find that this fear was well founded. In August 2014 the Applicant took Taylor on a vacation with her sister, and she was extremely concerned about leaving her vehicle in her sister's driveway while they were away for fear that the Respondent would vandalize the vehicle. Her sister Aimee Tilton confirmed that the Applicant was extremely agitated about leaving her car in the driveway and wished to leave it down the road, hidden from the Respondent's potential view. When the Applicant and her sister returned from this vacation, one of the tires on the vehicle was actually flat and required repair. The fact that the Applicant had such an intense fear about leaving her vehicle where the Respondent could find it is telling in terms of the debilitating effects which her relationship with the Respondent has had on her overall well-being.

I have very serious concerns based on the evidence regarding the Respondent's controlling and manipulative character. The Applicant testified at length about how these aspects of the Respondent's personality are the ones which she fears most. The Respondent's physical aggression towards the Applicant was but one way in which he exerted control over the Applicant. Other examples of how he did so include his removal of her cell phone to punish her for not answering his call quickly enough; taking her phone away so that she could not call the police for assistance on June 20th, 2014; destroying all of her clothing following the separation, as I have already described; and locking her out of her own home without telling her in late July 2014. The misleading reasons which the Respondent gave for this latter action, as set out in his affidavit sworn September 2nd, 2014, and the misleading information which he gave to police regarding the incident on June 20th, 2014, exemplify his manipulative tendencies and the facility with which the Respondent bends the truth. I find that the Respondent also used deflection of blame and emotional put-downs as means of controlling and manipulating the Applicant. The Applicant testified that she pleaded with the Respondent to go for counselling with her and for him to resolve his alcohol abuse and aggression problems, but that the Respondent constantly denied that he had any issues, and laid the blame for any problems on the Applicant. I accept the Applicant's evidence that the Respondent would berate her and call her “crazy” and tell her to go to the doctor for medication if she attempted to raise concerns with him. The Applicant provided many examples of how the Respondent blamed her for issues, but one example stands out in particular. She testified that at one point during the relationship, the Respondent agreed to take care of his friend's large dog. He then became increasingly frustrated with the dog and finally told the Applicant that the dog better not be there when he returned home that night or “there would be trouble”. The Applicant arranged to take the dog to an animal shelter, and the Respondent subsequently told his family and friends that the Applicant was responsible for this decision.

The Respondent suggested that the Applicant is a parent who has a major temper, that the Applicant was the emotionally abusive partner in the relationship, and that any physical disputes between the parties were attributable to the Applicant charging towards him or berating him in the presence of the child. He alleged there were occasions when the Applicant destroyed property in the home in anger. Given the level of conflict between the parties, I accept that there were likely many occasions during their relationship when they engaged in heated verbal altercations which included demeaning comments to each other and name calling. However, I reject the Respondent's suggestion that the Applicant was the primary source of the problems in the relationship. The picture which the Respondent attempted to paint was completely unbelievable having regard for the evidence which I heard and having regard for the Applicant which I saw over the course of several days during the hearing. The Applicant presented during the hearing as an emotionally fragile and depleted woman. She shook uncontrollably throughout much of her testimony and looked down into her lap most of the time as she gave her evidence. This appeared to be means by which she maintained sufficient composure to withstand cross-examination. Despite this presentation, she spontaneously stated many times during her evidence that she had come a long way in terms of her emotional strength since the date of separation, and that she would never have been able to stand up for herself and Taylor in this manner a year ago. The Applicant has recently been diagnosed as suffering from post-traumatic stress disorder as a result of her experiences over the past several years, and she is on sick leave from work. She is currently under the care of a psychiatrist, Doctor Devine. Her counsellor described her in her clinical notes as a trauma victim as a result of her experiences in her relationship with the Respondent. The evidence adduced at the hearing paints a picture of a mother who is attempting very hard to recover from years of emotional manipulation, control, and aggression, and not of a woman who is physically and emotionally abusive towards her spouse.

Physical and emotional abuse of a parent affects children in a very significant way. It undermines the overall physical and emotional well-being of the parent who is being subjected to this treatment, which in turn impacts on that parent's ability to focus on the children's needs and make appropriate judgment calls respecting the children. Moreover, it teaches children negative patterns of interaction, which can have long-term implications for their own relationships and families. Such abusive treatment also raises serious concerns regarding the ability of the parent in question to meet the emotional needs of their children if they are placed in a primary caregiving role.

I have concerns in this case regarding the Respondent's ability to foster Taylor's emotional needs and place her needs and wishes ahead of his own. This conclusion is based not only on the Respondent's history of aggression, but also on the following evidence:

a) while the Applicant and the children were at the Women's Place shelter, the Applicant initially facilitated daily telephone conversations between the Respondent and the child. The Respondent was understandably angry that the Applicant had left the home without advising him of her whereabouts. However, despite this anger he was unable to make these calls a positive and reassuring experience for Taylor. Instead, I find that he presented as angry and bitter. Taylor began to experience anxiety around the calls and requested that she not be forced to talk to her father. She began urinating in her pants around the same time that she made this request. The Applicant sought out the assistance of shelter staff to encourage Taylor to speak with her father, to no avail. Instead of giving Taylor time to settle and work out her feelings, the Respondent became angry and aggressive, accusing the Applicant of alienating the child;

b) during the fall of 2014, when the Respondent was attending the school daily to see Taylor, the child told her mother that the Respondent was repeatedly asking her to go with him to the family home and that she was telling him she did not want to do so. The Applicant finally spoke to the Respondent about this and explained that Taylor did not wish to go, and the father responded by denying that he had made these requests of Taylor in the presence of the child;

c) the Respondent is involved in go-karting in Flamborough. Prior to the parties' separation he purchased a go-kart for Taylor without discussing his wish to involve the child in go-karting with the Applicant. Nonetheless, the Applicant obliged and was involved in taking Taylor go-karting and getting her to go-kart practices. The Applicant testified that Taylor loves to go-kart and wishes to continue, but that she is very uncomfortable about racing at this point and does not want to be part of the race program. I found the Applicant credible in this regard. After she heard the Respondent's evidence about his impressions of Taylor while she is go-karting, she asked Taylor once again about whether she wished to race. She testified that she actually questioned again whether to believe her daughter after hearing the Respondent's testimony. She indicated however that Taylor confirmed once again that she is adamant about her wish not to race. She stated that Taylor specifically chose not to request that her Sunday visit with her father over Mother's Day weekend be changed to Saturday, because she did not want to race on the Saturday. The Respondent has continued to press for Taylor to remain in the race program, despite the clear indications from the Applicant that the child is not interested in racing. He has insisted that the Applicant is putting negative ideas in the child's head about go-kart racing. This does not make sense given that the Applicant allowed Taylor to start go-karting in the first place, and actually assisted at the track prior to separation. I heard evidence that the child has recently seen a car that had crashed off the track, and the young male driver of the car being taken away by ambulance. The Respondent does not acknowledge that this incident may have had an impact on Taylor's mindset respecting go-kart racing;

d) the Applicant sought counselling services for Taylor following the separation, given that the child had been exposed to domestic conflict and that she began experiencing problems with bladder control at the shelter. She was able to enroll Taylor in a counselling program for children run by LEAF, which is a program geared for families who have experienced domestic violence. I find that Taylor greatly enjoyed this program and wished to continue, however the Respondent strongly opposed this counselling because it was offered through LEAF. He agreed reluctantly to allow Taylor to complete the last two sessions of the program that she was initially involved in, but has not consented to any further counselling for Taylor, despite acknowledging that Taylor has witnessed conflict between the parties, and in fact hit the Respondent on June 20th, 2014, in an effort to intervene in the parties' altercation on that date. The Applicant has advised the Respondent that the child is beginning to suffer from panic attacks, but the Respondent has continued to object to counselling unless he receives a report from an expert stating that the child requires counselling. He refuses to believe the Applicant about how Taylor is coping because he has not

seen it himself during his visits with the child;

e) Taylor was invited to the birthday party

of her cousin, who she is very close to, which Ms. Tilton scheduled on a day when the father was to have access to Taylor. I find that efforts on the part of the family to ask the Respondent to either change his access visit or allow Taylor to attend remained unanswered. The Respondent did in the end allow Taylor to attend, but neither the family nor Taylor had any advance knowledge that he would be bringing her. This failure on the part of the Respondent to respond promptly and advise Taylor in advance that she could attend the party caused Taylor significant distress;

f) I accept the Applicant's evidence that there have been many occasions when Taylor has told her that she is upset about something that her father did, but the Respondent has denied what the child has said, often to the child's face. For example, as I have already noted, Taylor advised the Applicant that when the Respondent visited her at the end of the day at school, he repeatedly asked her if she wanted to go to the family home with him. When the Applicant addressed this issue with the Respondent and explained that Taylor did not want to go to the home, the Respondent denied in Taylor's presence that he had made any such requests.

In determining the ability of the Respondent to

meet Taylor's emotional needs, I have considered the evidence of the Applicant's sister, Aimee Tilton. Ms. Tilton had the opportunity to observe the Respondent at numerous family functions over the years. She described the Respondent as generally sullen, quiet, and unsociable. She stated that the Respondent

would very often present as extremely argumentative and uncompromising about inconsequential issues, and that he would often describe events in such a fantastical way that they would be unbelievable.

In reaching my decision on the custody and access issues in this case, I have also carefully considered the evidence respecting the Respondent's use of alcohol. The Respondent has admitted that he used to consume large quantities of alcohol before Taylor was born, but he insists that he has not abused alcohol since that time. He acknowledged, however, that since the separation, he has on occasion consumed excessive amounts of alcohol due to the stress of the family situation. I do not accept his evidence regarding his alcohol use. I find that the Respondent has a longstanding history of alcohol abuse, that he has not acknowledged his problem, and that he has shown no inclination to take the necessary steps to resolve this significant issue. The Respondent was convicted of driving while impaired in 1991. The Applicant explained that this conviction related to an incident when the Respondent was snowmobiling while heavily intoxicated, had an accident, and almost lost his leg as a result of his injuries. She was very emotional and genuinely upset in commenting that despite this serious incident and criminal charge, the Respondent did not learn his lesson about excessive alcohol use. The Applicant testified that the Respondent has had problems with alcohol abuse for many years. She alleged that his pattern is to consume excessive amounts of alcohol to the point of passing out virtually every night. She spontaneously talked about the Respondent drinking beer in the car while driving with both the child and the Applicant in the vehicle. She described incidents when the Respondent returned home in a vehicle reeking of alcohol with Taylor in the backseat. She recalled one occasion when Taylor was only two years old and the Respondent came to the dinner table without holding a can of beer, and Taylor asked him what was wrong and where his beer was. She stated that the Respondent was extremely intoxicated on the occasion when he took her cell phone away from her to punish her for not responding to his calls quickly enough. In addition, she testified that when she placed calls to the Respondent from the shelter in July 2014, the Respondent sounded very intoxicated because he was aggressive in his tone and slurring his words.

The Applicant was extremely credible in her

evidence regarding the Respondent's alcohol abuse. She presented as genuinely upset that the Respondent did not take steps to resolve this problem. She talked about wanting Taylor to have a relationship with her father, but stated tearfully that she wanted the Respondent to seek help for his drinking and aggression so that Taylor's relationship with her father would be positive and meaningful. In short, I accept the Applicant's evidence respecting the Respondent's alcohol abuse. The Applicant's sister Aimee Tilton also testified about the Respondent's alcohol abuse. She stated that the Respondent was intoxicated every time she saw him, and that he would become even more belligerent and uncompromising when he drank.

I find that the Respondent's substance abuse problem has impacted on his parenting of Taylor. I accept the Applicant's evidence that when she would return home from work after a 12 hour day shift, the Respondent would hand over childcare responsibilities to her, despite the long work day, so that he could go to the garage and drink. The Applicant described an incident that occurred when Taylor was only six months old when she went out with some friends for the night and returned home to find the Respondent passed out intoxicated in the garage, which she stated is approximately 30 feet away from the house. I accept the Applicant's evidence that as a result of this event, she refrained from going out in the evenings on her own, apart from her work commitments. The Applicant stated that Taylor has also told her about two other times when she woke up in the middle of the night and her father was not in the home. On one of those occasions, Taylor called the Respondent and determined that he was in the garage. On a second occasion Taylor disclosed that her father did not respond to her call, so she put on her snowsuit and boots to go outside in the middle of the night to look for him. The Respondent was in the garage on the second occasion as well. The Respondent testified that he had no concerns about these incidents, since he had taught Taylor how to use the telephone and intercom to contact him in the garage. He did not demonstrate any appreciation of how this type of situation could impact a very young child. The Applicant described another incident when the Respondent was caring for the child in the morning because the Applicant was working, and the child had great difficulty waking her father up to take her to the bus because he had been drinking all night the previous night. The Applicant recalled that the child was extremely upset on this occasion because she missed the bus as a result of the delay in waking her father up, and she loved taking the bus to school. I accept the Applicant's evidence on these issues. Furthermore, I accept the Applicant's evidence that the Respondent had no qualms about drinking and driving with Taylor in the vehicle. The Applicant testified that as recently as this May long weekend, Taylor returned from her visit with the father and told her mother that she was upset because the Respondent was drinking beer and then drove her home. The Respondent denied that he drank beer during that visit and insisted that he was drinking pop. In essence, he insists that the child was either lying or misunderstood the truth. The Applicant testified that this is a longstanding pattern of behaviour with the father in relation to Taylor. The child will say that something happened and the Respondent will deny it, often in the presence of the child. Having regard for all of the evidence adduced in this hearing, I choose to believe Taylor's version of events regarding the Respondent's drinking over the May long weekend visit. I also agree based on the evidence which I have heard that the father has on many occasions denied events that Taylor has accurately disclosed, even to the child's face. The impact of such behaviour on a child's psyche and overall emotional well-being is profound, and this is another factor that I have considered in making my decision in this matter.

In reaching my conclusions respecting the Respondent's alcohol abuse, I have carefully considered the evidence respecting the Applicant's attempts to deal with this concern prior to the period leading up to the parties' separation. I find that the Applicant raised concerns about the Respondent's alcoholism long before the parties separated. This is clearly not a concern that the Applicant conveniently conjured up at the time of separation to bolster her case for custody. A report from the family physician, Dr. Donaldson, dated March 5th, 2015, confirms that the Applicant first began talking to her about her concerns regarding the Respondent's alcoholism during an appointment on January 21st, 2011. The clinical notes of the Applicant's counsellor indicate that the Applicant first opened up to her counsellor about the Respondent's alcoholism during a meeting on April 19th, 2013. During that appointment, the Applicant advised that the Respondent's excessive drinking had been a major problem for a long time, that he drinks and sleeps in his garage, that he begins drinking as soon as she returns home, and passes out intoxicated most nights. I find that the Applicant was attending Al-Anon as of the time of this appointment with her counsellor to receive support in dealing with the Respondent's alcoholism, and to seek guidance about how to convince the Respondent to address the problem. The Applicant testified and I find that the counsellor suggested that she put a piece of paper with the contact information for Alcoholics Anonymous on the Respondent's desk in the garage so that he would know how to contact this service. However, the Respondent did not do so. The Respondent's own stepmother, Mary Ann Ellwood, acknowledged in her testimony that the Applicant called her in approximately August 2013 to tell her about the Respondent's alcohol abuse problem and to seek support from her and the Respondent's father. The Applicant wanted Mrs. Ellwood and her husband to encourage the Respondent to seek help for this problem. Mrs. Ellwood stated that the Applicant was upset and crying during this conversation, and told her that she had begun attending Al-Anon to obtain support in relation to the father's alcoholism. Mrs. Ellwood indicated that she and her husband did not take any action because they did not want to interfere in the parties' relationship.

The Respondent attempted to undermine the Applicant's credibility with respect to her allegations of emotional, physical, and alcohol abuse by emphasizing that the Applicant allowed him to care for Taylor when she worked, allowed him to have two overnight visits with Taylor at the trailer following the separation, and was present with him for visits with Taylor on July 14th and July 21st, 2014. In some cases, this type of evidence would be compelling in determining whether allegations of emotional abuse and physical aggression and alcohol abuse are credible. However, in domestic violence and emotional abuse situations, the courts must exercise considerable caution in considering and evaluating an abused spouse's conduct during the course of the relationship and during the post-separation period. Abused spouses often do not make good judgment calls respecting their children or themselves because they feel powerless, afraid, and broken. They lack confidence and self-esteem and may be attempting to salvage the relationship because of their inability to extricate themselves from an unhealthy situation. I find that these were the dynamics in this case. The Applicant made errors in judgment. She should have not, in my view, left Taylor in the overnight care of the Respondent. However, she testified that her concerns regarding the overnight camping trip were alleviated by the fact that family friends would be there as well, and she was confident that they would assist in caring for and monitoring Taylor. She explained that she proceeded with the two visits for Taylor and the father on July 4th and 21st, 2014, because there were other family members present. Moreover, she eventually took action to address the problems. She consulted with counsel, commenced these proceedings, and has sought out services to assist her in gaining the confidence to pursue the relief that she honestly believes to be in the best interests of Taylor.

The Respondent raised concerns that the Applicant has attempted to alienate Taylor from him. He argues that she has accomplished this goal primarily by severely restricting his contact with the child. I do have concerns about the limited access which occurred between the Respondent and Taylor from July 4th, 2014 until late November 2014. The limited contact during the period when the Applicant and Taylor resided at the shelter was understandable given the domestic incident on June 20th, 2014. The Applicant required time to settle into the shelter and consult with legal counsel about her rights and the child's best interests. While at the shelter, she completed the danger assessment tool used by the shelter, the results of which placed her in the Severe Danger category for domestic violence. The Applicant did make reasonable efforts to maintain telephone communication between the Respondent and the child, as I have stated, but I find that those efforts were foiled by the Respondent's intoxication and aggressive tone during calls. During the telephone call on July 10th, 2014, staff noted that Taylor hid behind her mother. I accept the Applicant's evidence that the telephone calls between the Respondent and the child were so upsetting to the child because of the Respondent's angry tone and shouting that Taylor suffered stomach aches, nausea, and headaches following the calls. I find that it was reasonable for the Applicant to want a third party present during visits initially in the wake of the domestic incident on June 20th, 2014 and the telephone calls that occurred at the shelter, and that she made reasonable efforts in July 2014 to arrange such visits. In my view, she had cause for concern about allowing extended unsupervised visits in July 2014 based on the concerns which I have discussed and the indicators that the Respondent had been very

intoxicated during the telephone calls.

The Respondent alleges that the Applicant cut off all access after July 29, 2014, and he states that this occurred in retaliation for his decision to change the locks on the family home. In fact, I find that the Applicant was following the advice of her new counsel at that time that she was not required to facilitate access if she felt that access was not in Taylor's best interests. In addition, she had been told by the Society that she would be accountable if she allowed the Respondent access when he was intoxicated. She was also guided by the views of her counsellor and the shelter staff that any contact between the child and the father should be carefully supervised at that point. In response to these opinions, the Applicant commenced these proceedings forthwith after meeting with her new counsel. She also asked the Children's Aid Society worker on July 18th, 2014, whether the Society could facilitate supervised access. Unfortunately the Society declined to do so.

The Applicant's decisions respecting contact between the Respondent and Taylor during the period from August until November 2014 must be carefully assessed within the context of her very legitimate concerns about the Respondent, his interactions with his family, and Taylor's reaction to the events that had transpired. Taylor had witnessed an assault against her mother and had been placed in the position of having to protect her. She had been exposed to her father's anger during several telephone calls from the shelter. She began to urinate her pants while at the shelter because of the anxiety that she was experiencing. She urinated in her pants immediately before seeing her father for the first time after the separation. She had adamantly told her mother and shelter staff that she did not feel comfortable talking to her father.

With respect to the period from September until late November 2014, the Respondent saw the child every day before and after school. The Applicant did not interfere with that contact, and in fact allowed the Respondent to accompany Taylor to her vehicle. However, any progress that was made in terms of facilitating contact and moving the issues towards resolution was undone in my view when the Respondent shoved the Applicant near her vehicle in September 2014. This event, coupled with the Respondent's decision to lock the Applicant out of her own home on July 28th, 2014, intensified the Applicant's concerns about the Respondent and her anxiety about the well-being of Taylor in his care. The decision to lock the Applicant out of the house and throw all of her belongings in a wet and mouldy basement represented more than a mere annoyance. It was yet another example of the Respondent's controlling and manipulative conduct. The irony is that it occurred at the same time as the Applicant was allowing the Respondent overnight visits with Taylor. As part of the alienation argument, the Respondent argued that the Applicant did not even allow him to attend the child's 7th birthday party. In fact, as already noted, I find that the Applicant invited the Respondent to the party, and that problems only arose when it became apparent that the Respondent wished to bring a number of his family members. The Applicant did not support having extended family present because it was a children’s party and she felt that it would be converted into a family reunion if all of the family members

came.

It is highly unfortunate that more access did not occur between Taylor and her father from July until November 2014. However, the Respondent should have been more open to negotiating arrangements which addressed the Applicant's concerns and that were sensitive to Taylor's needs. The position which the Respondent took respecting a 50/50 time-share was not a reasonable one having regard for the serious concerns in this case. Moreover, the Respondent should have acknowledged the concerns that I have reviewed in these Reasons for Judgment, and taken immediate steps to engage in services aimed at alleviating the concerns. If he had done so, I am confident that this case would have taken an extremely different course. The Applicant is not in my view a mother who wants to undermine the relationship between the Respondent and the child. She recognizes the importance of that relationship to both the Respondent and Taylor, but wants it to be a healthy relationship that will foster Taylor's overall well-being.

The Respondent has raised concerns about the Applicant involving the child in the litigation and the issues between the parties. I find that both parties have involved the child in the proceedings and their disputes with each other. They both allowed Taylor to be exposed to the conflict between them. They have continued to do so since the separation. The Applicant has videotaped the Respondent at the school in the presence of the child and has recorded the child and the Respondent. The Respondent shoved the Applicant again in the presence of the child in September 2014. He has spoken directly to the child about going to the family home for visits. The child has been caught in the middle of the parties' dispute about whether she should be involved in go-kart racing. She has been forced to participate in an intrusive OCL report process because of her parents' inability to resolve

this case. She now has to repeat that entire process.

I have considered the evidence respecting the Respondent's involvement in Taylor's life, the attachment between Taylor and her father, and the quality of their interactions with each other. I accept that the Respondent has been an involved parent. He participated actively in the care of Taylor when the Applicant was working. He shared the responsibilities of driving Taylor to daycare and back, and later on getting the child to and from the bus. He took the child to many of her activities, although at times he did not do so because he wished to participate in his own activities. It is clear from the evidence that the Respondent loves Taylor very much. I find that when both parents were together with Taylor, the Applicant was the main caregiver. However, when the Respondent is alone with Taylor and is not under the influence of alcohol, he is a loving and appropriate caregiver. I find that Taylor did have legitimate fear of her father during the period following the separation as a result of the incident that occurred on June 20th, 2014, and the angry telephone calls which occurred while the Applicant and the child were at the shelter. However, she appears to have become more comfortable with her father since that time. As I have already noted, there are concerns about the Respondent being unable on a consistent basis to make Taylor's needs a priority. However, the Respondent and Taylor do have many good times and very appropriate interactions with each other. I have considered the positive evidence of Ms. Johnston regarding the observation visit which she had with the Respondent and Taylor. She testified that Taylor presented as the same little girl in the care of both parents. She did not seem anxious or concerned while in either parent's care. Ms. Johnston described the father and Taylor as playing well with each other, easily engaging each other, and the father being responsive to Taylor's wishes. Ms. Johnston also indicated that Taylor did not express any concerns about spending time with either parent during her interviews with her. I have also considered the positive evidence of the Respondent's other witnesses regarding the quality of his relationship with Taylor and the nature of his interactions with her. The evidence regarding the Respondent's love for Taylor and his interactions with her was overall very positive. I reviewed many text messages which the Respondent sent to Taylor since the separation, and they are appropriate and loving. All of this positive evidence bodes extremely well in terms of the prospect for increased access over time, provided that the Respondent addresses the concerns that I have reviewed in these reasons for judgment.

It is necessary to comment on the conclusions which the Children's Aid Society of Hamilton reached following its investigation into the family situation in July 2014. The Society assessed there to be moderate risk to the child due to parental conflict in the past year, and the mother's history of mental health challenges. The Society worker involved, Ms. Madison Aimers, did not appears to have concerns about domestic violence by the Respondent towards the Applicant, the child Taylor being emotionally harmed by domestic conflict, or about the Respondent being intoxicated while in a caregiving role. In this regard, I emphasize that the Society worker did not have the benefit of hearing several days of oral evidence and cross-examination on these issues. I have difficulty with the conclusion respecting alcohol abuse, given that the worker was aware that the Applicant had been reporting concerns about the Respondent's alcoholism to her family doctor since 2011, and that she began participating in Al-Anon in 2013. The other conclusions which the Society reached are simply not consistent with the evidence which I heard during the course of this hearing. In this regard, I note that the Hamilton Police Service has recently decided to reopen its investigation regarding the June 20th, 2014 incident. The Society closed its file on the basis that any risks had been alleviated by the fact that the parties have separated. The file was closed with a clear direction to the mother on July 4th, 2014, that she would be held accountable if she left Taylor with the father while he was intoxicated. By closing the file, the Society left the entire burden of managing the very serious concerns respecting the father in this case entirely on the Applicant. The burden was a heavy one and has taken a major toll on the Applicant.

The Applicant has requested an order granting her temporary custody. The Respondent's position is that the issue of custody does not need to be addressed at this point. I disagree. There are important decisions to be made at this time, including whether the child should participate in counselling, and whether she should continue with go-kart racing. I conclude that a temporary custody order is necessary at this stage, and that it is in Taylor's best interests that the Applicant be granted custody. I am satisfied based on the evidence before me that the Applicant is able to meet all of Taylor's needs, that she has been a strong advocate for Taylor, that she has consistently made Taylor's needs a priority and continues to do so, and that she has done an excellent job of parenting Taylor. The Respondent raised issues about the Applicant's drinking, but he did acknowledge that he did not feel that her drinking had impacted on her care of the child in any way. With respect to the Applicant's mental health, her family physician Dr. Donaldson confirmed in a report dated September 15, 2014, that the Applicant had been diagnosed with depression and has been treated intermittently for this condition from 2004 to 2005, from 2011 to 2012, and most recently commencing in the summer of 2014. However, Dr. Donaldson indicated that the Applicant has been prompt and responsible in seeking support and treatment when her symptoms have recurred, and that she had no concerns that the Applicant's mental health challenges have impacted her parenting of Taylor in any way. The significant history of conflict between the parties, and the ongoing difficulties which they have experienced in communicating with each other and working cooperatively to promote the child's best interests are such that an order for temporary joint custody is not feasible or in Taylor's best interests at this time. With respect to access, for the reasons which I have just outlined, it is not in Taylor's best interests for the Respondent's access to be expanded at this time. Furthermore, given the serious concerns regarding his alcohol abuse, his access must be conditional on him refraining from using alcohol during access visits and for a period of at least 24 hours prior to access occurring. The order will also include restrictions on his ability to move towards an expansion of access that are geared to addressing the current concerns regarding the Respondent's aggression and alcoholism. In addition, I am making an order that the Respondent may not drive with the child for the purposes of access visits.

The Applicant requested supervised access. With

the inclusion of the additional terms that I have incorporated into my order, I am not satisfied that supervision is necessary at this time. I am satisfied that the Respondent is able to meet all of the child's basic physical and emotional needs during daytime visits without supervision. My concern at this time relates to his ability to do so for more extended periods without exposing the child to conflict or alcohol abuse. My sincere hope is that the terms of this order will provide the Respondent with the push that he needs to get the help that he requires, that he will benefit from any assistance that he seeks, and that access can progress to overnights when this matter returns to court.

The Respondent has in the past requested that he have telephone contact with the child. While he did not specifically request this relief at this hearing, daily telephone contact between the child and the Respondent would be in Taylor's best interests, and the order which I am making addresses this issue.

Taylor has been attending Balaclava School in Carlisle. This is the school in the area where former family home is located. Taylor has experienced many changes and considerable upset in her life since last summer. It is in her

best interests to remain in this school until

the issues in this case are determined on a

final basis. My order addresses this issue as

well.

The Respondent has requested that this file be assigned to a case management judge who would be seized with the matter until trial. I agree that this file has had a difficult start. Our court follows a case management system as a matter of course, and I am going to schedule this matter for a settlement conference before me in three months time. In doing so, I will effectively become the case management justice. While this will not result in me being seized of the case, it will ensure that the case is managed primarily by a judge who has had the benefit of acquiring in-depth knowledge of the issues.

The Respondent has requested an order for disclosure of various items. I am ordering the Applicant to produce her 2013 and 2014 Income Tax Returns, Notices of Assessment, and Notices of Reassessment, as well as proof of total year to date income for 2015. I am also ordering that she disclose details regarding the disability benefits which she has been receiving.

The Respondent has requested that the Applicant produce a copy of her entire employment file with Joseph Brant Hospital. The basis for this request is so that he may obtain information regarding the Applicant's disability status and benefits. The order that I am making relating to those specific items will address those issues, and therefore a broad order for disclosure of the entire employment file is unnecessary, and in my view over-reaching.

The Respondent has also requested an order

requiring the Applicant to produce credit card and bank account statements for the past three years. I decline to make this order. There are no property issues in this case other than how the parties should deal with the matrimonial home. There is no evidence to suggest that the Applicant is earning income that she is not declaring. In these circumstances I cannot see any purpose to a broad order requiring production of the statements in question.

With respect to the Respondent's claim for disclosure of information pertaining to the Applicant's involvement in the organization Asperger’s 911, I am satisfied based on the evidence adduced at the hearing that the Applicant has not had any involvement with that organization.

Finally, the Respondent has requested that the Applicant produce copies of all of the Applicant's medical and health files. He has requested this information due to the Applicant's evidence that she is currently receiving disability benefits, and that she has been diagnosed as suffering from depression and post-traumatic stress disorder. I agree that information about these issues is relevant

to the custody and access issues in this case. However the relief requested is in my view too broad. The disclosure order respecting the Applicant's health issues will focus on the issues that are of concern to the Respondent.

Madam Registrar, could we get a settlement conference date in three months time, please?

CLERK REGISTRAR: September 1st at 2:30.

THE COURT: Is that agreeable?

MS. FEDSIN: I have a trial commencing, Your Honour, I believe on August 30th for 20 days, so I may need to bump that or if I can have that matter held down. I also know that there's another settlement conference scheduled for

June 10th, so we'll have to vacate that date as well.

THE COURT: Are you available September 1st - is the trial in the jurisdiction?

MS. FEDSIN: The, the trial is here, Your Honour. It's in Hamilton.

THE COURT: Can we do a settlement conference at 9:00 a.m.?

MS. FEDSIN: I can try, Your Honour, I'm not sure. I'm assuming it's ten to - ten to five each day for trial.

CLERK REGISTRAR: What date?

THE COURT: 9:00 a.m., September 1st.

CLERK REGISTRAR: It's 2:30.

THE COURT: Do we have - can we do nine? Is it

agreeable?

CLERK REGISTRAR: It's available, yes.

THE COURT: Is it agreeable?

MS. FEDSIN: Sorry, September 1st?

THE COURT: Yes.

MS. FEDSIN: Thank you.

THE COURT: My endorsement reads as follows: For

oral reasons given today, a temporary order shall

issue as follows:

1. The Applicant, Bonnie Leigh Whidden (“the Applicant”), shall have sole custody of the child, Taylor Madeleine Whidden, born September 29, 2007 (“the child”).

2. The child shall reside primarily with the Applicant.

3. The Respondent, Garry Scott Ellwood (“the Respondent”), shall have access to the child as follows: every Monday from 3:30 p.m. until 8:00 p.m., every Wednesday from 3:30 p.m. until 8:00 p.m., and every Sunday from 10:00 a.m. until 7:00 p.m.

4. The Respondent's access shall be subject to the following terms and conditions:

a) the Respondent shall refrain absolutely from consuming alcohol during access visits and for a period of at least 24 hours prior to access commencing;

b) the Respondent shall not transport the child in a vehicle during access visits. He shall be responsible for arranging alternative transportation for the child and for the cost, if any, of such transportation;

c) the Respondent shall give the Applicant at

least 24 hours notice by text message if he is unable to exercise access because of transportation issues or for any other reason;

d) access exchanges shall occur at the McDonald's restaurant located in Waterdown.

5. The Applicant shall use all reasonable efforts to facilitate telephone contact between the child and the Respondent on days when the Respondent does not have access, once per day for a period of approximately 10 minutes. Unless otherwise agreed upon in writing between the parties, this contact shall occur at eight o'clock p.m. at night, and the Applicant shall be responsible for placing the call. The Respondent shall ensure that the Applicant has a current telephone number for him at all times so as to enable her to comply with this term. The parties shall maintain notes as to whether these calls have occurred or not, and if a call does not occur, the notes shall include an explanation for the lack of telephone contact.

6. The Respondent may not bring a motion for an expansion of his access pending the outcome of trial unless:

a) he enrolls in counselling with a qualified professional to obtain education and guidance about the impact of domestic violence and conflict on spouses and children;

b) he enrolls in a treatment program to deal with his alcoholism; and

c) he files reports from the professionals

referred to in (a) and (b) confirming that

the professionals have reviewed my Reasons

for Judgment and the Respondent has made significant progress in his counselling and treatment.

7. The Respondent may not bring a motion to terminate paragraph 4(b) of this order unless he complies with paragraph 6(b) of this order and files the report referred to in subparagraph 6(b) from the professional involved in his alcohol abuse treatment.

8. The child shall remain enrolled in Balaclava Public School pending further order of the court.

9. The Applicant shall by June 19th, 2015, serve and file an affidavit to which she shall attach the following:

a) copies of her 2013 and 2014 Income Tax Returns with all required attachments, Notices of Assessment and Notices of Reassessment;

b) documentary proof of her total year to date income for 2015;

c) a copy of her application for disability benefits and all documents which she submitted in support of her claim for disability, and the response received from the disability insurance provider;

d) documentary proof of the total disability benefits which she has received to date;

e) copies of any medical or other records within her power or control relating to the conditions that form the basis of her disability

claim and her mental health history and status;

f) a report from her psychiatrist, Dr.

Devine, summarizing his involvement with the Applicant, any treatment recommended, the Applicant's compliance with treatment, and the Applicant's mental health functioning since he has been involved with her, and the prognosis for the future respecting the Applicant's mental health status.

10. The Applicant and the Respondent shall refrain absolutely from discussing the legal proceedings with the child or within earshot of her, and shall refrain absolutely from making derogatory comments about each other or their respective family members within earshot of the child.

11. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant caselaw, a detailed bill of costs, and copies of any offers to settle by June 9th,

12. Any responding submissions shall be

served and filed by June 16, 2015. Reply submissions shall be served and filed by June 19th, 2015. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party.

12. This matter is adjourned to a settlement conference before me on September 1st, 2015, at 9:00 a.m. The settlement conference on June 10, 2015 is vacated.

MS. FEDSIN: If I may, Your Honour...

THE COURT: Just...

MS. FEDSIN: ...just....

THE COURT: ...one moment. I'm ordering - I'm requesting that four copies of the transcript be prepared and that each party be given a copy of the transcript.

MS. FEDSIN: Thank you, Your Honour.

THE COURT: And also that one of the copies be forwarded to the clinical investigator who is conducting the investigation in this matter, Mr. Degeer (ph).

MS. FEDSIN: Thank you, Your Honour.

THE COURT: Can I place that responsibility on you?

MS. FEDSIN: Yes, that's fine, Your Honour.

THE COURT: All right. Yes?

MS. FEDSIN: My only question was you mentioned that all access exchanges will occur at the McDonald's, but I do note that the weekday access is at 3:30 which is at the school, so it may make more sense that that happen at the school as the school ends at 3:30.

THE COURT: Just one moment. Paragraph 4(d) therefore reads now: Access exchanges shall occur at the McDonald's restaurant located in Waterdown if the child is not in school. If the child is in school, the exchange shall occur at the school.

MS. FEDSIN: Thank you, Your...

THE COURT: Thank...

MS. FEDSIN: ...Honour.

THE COURT: ...you. Can we please get copies of

the endorsement to the parties?

MS. FEDSIN: Thank you.

...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, A. Poremba, certify that this document is a true and accurate

transcript of the recording of Whidden v. Ellwood, in the Superior Court of Justice, held at 55 Main Street West, Hamilton, Ontario, on May 29, 2015, taken from Recording No. 4721_6_20150529_091827__10_CHAPPEDE.dcr, which has been certified in Form 1.

17/07/15_________ Alyna Poremba____

(Date) A. Poremba

(Signature of authorized person)

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR JUDGMENT

1

Legend

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) – Indicates preceding word has been spelled phonetically.

Transcript Ordered:

May 29, 2015

Transcript Completed:

July 12, 2015

Ordering Party Notified:

July 13, 2015