Ganie v. Ganie, 2015 ONSC 6330

CITATION: Ganie v. Ganie, 2015 ONSC 6330

COURT FILE NO.: FS-14-80487-00

DATE: 2015-10-14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BIBI GANIE

Applicant

• and -

ROSHAN GANIE

Respondent

COUNSEL: Fola Adekusibe, for the Applicant Brian Ludmer and Natalie Kuyumcu for the Respondent

HEARD: September 18, 2015, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTIONS

[1] Bibi Ganie (“Ms. Ganie”) came to Canada from Guyana in 2004, sponsored by Roshan Ganie (“Mr. Ganie”), who had immigrated to Canada from Guyana several years earlier. The marriage was arranged by Mr. Ganie’s mother. Mr. Ganie was 30 years old; Ms. Ganie was 21.

[2] Ms. Ganie soon found herself trapped in a household where Mr. Ganie, his mother, his aunt, and his sister, regarded her as an incompetent wife and mother, unworthy of Mr. Ganie. On October 8, 2013, the teachers at the Ganies’ children’s school observed signs that Ms. Ganie had been the victim of domestic violence, and confronted Ms. Ganie, who confirmed that Mr. Ganie had assaulted her.

[3] Ms. Ganie, who was still dependent on her husband at the time, soon recanted her allegation, and in December 2013, after Mr. Ganie completed a PAR (Partner Assault Response) counselling program, the Crown withdrew the assault charge against him. In the meantime, however, Ms. Ganie’s family doctor referred her to community agencies which provided her with the support she needed to extricate herself from the control of Mr. Ganie and his family. On March 17, 2014, while six months pregnant with the parties youngest child, Ms. Ganie left the matrimonial home and moved to her sister’s house in Mississauga. On June 19, 2014, she gave birth to Arick Barakat (Ms. Ganie’s last name before she married).

[4] Since Ms. Ganie’s departure from the home, the Ganie children have been moved back and forth between their parents’ households, as the balance of power has shifted from one parent to the other, as follows:

a) On June 26, 2014, Justice André made a temporary order granting Mr. Ganie access to the three older children and granting him leave to obtain a section 30 custody and access assessment from a social worker, Eileen Spraggett. Mr. Ganie enlisted the help of family and friends, and members of the community in which he had taken leadership roles, such as chair of the parent council at his children’s school, to vouch for his good character to Ms. Spraggett.

b) Ms. Spraggett issued a report dated September 9, 2014, which cast doubt on Mr. Ganie’s credibility. Ms. Ganie, acting on what she understood to be an assurance by Ms. Spraggett that she and Mr. Ganie would be given joint custody of the children if she co-operated in the implementation of Ms. Spraggett’s recommendations, and on Mr. Ganie’s assurance that he would be taking a year of paternity leave to care for the children, agreed to the three older children being temporarily returned to Mr. Ganie’s care, and to their attending school in Markham, where he resided.

c) Two months later, Mr. Ganie announced that he was returning to work on November 1, 2014. Ms. Ganie removed the older children from his home, and from their schools in Markham, on the ground that Mr. Ganie was not remaining at home on paternity year for a year, as he had informed her he would.

d) Mr. Ganie then moved before Justice Seppi, who made a without prejudice order dated October 31, 2014, directing that the children be returned to Mr. Ganie’s care pending the hearing of Mr. Ganie’s motion on November 13, 2014. On November 10, 2014, Mr. Ganie’s motion, and a cross-motion by Ms. Ganie, were adjourned, on consent, to December 4, 2014. In the meantime, on November 18, 2014, Justice O’Connor made an Order, at Ms. Ganie’s request, for the release of the records of the Peel Region Children’s Aid Society.

e) The records of the C.A.S. were released to the parties on December 2, 2014. Those records, together with evidence from other collateral sources, supported Ms. Ganie’s allegations that Mr. Ganie had assaulted her, sometimes in the presence of the parties’ children. On December 31, 2014, I made a temporary order granting temporary custody of the children to Ms. Ganie, pending a clinical investigation by the Office of the Children’s Lawyer, and granting Mr. Ganie access to the older children during the week, so that they could complete their school year at schools in Markham, where they had been enrolled since September 2014.

[5] The Children’s Lawyer completed its clinical investigation on August 19, 2015, and recommended that the Ganies’ three older children be transferred to schools close to Ms. Ganie’s residence. The court is now asked to determine whether there has been a material change of circumstances since it made its temporary custody and access order on December 31, 2014, and whether it is in the children’s best interests to implement the Children’s Lawyer’s recommendations. The reasons that follow should be read in conjunction with my reasons dated December 31, 2014, which describe the events that preceded the making of that order.

BACKGROUND FACTS

[6] My order dated December 31, 2014, provided, in part:

23. The balance of the motions are adjourned, with leave to either party or to the Office of the Children’s Lawyer, to return it, following a report of the Children’s Lawyer (or a response by the O.C.L. indicating that they decline to become involved) and, in any event, before August 1, 2015.

[7] On March 3, 2015, the OCL assigned Dr. Pushpa Kanagaratnam, Ph.D., C. Psych., a registered psychologist in the Province of Ontario and a member of the College of Psychologists of Ontario, to conduct a clinical investigation. Dr. Kanagaratnam conducted her investigation from March 3 to July 27, 2015, when she held a disclosure meeting with the parents. On August 19, 2015, Dr. Kanagaratnam completed her investigation and issued her report. She recommended that the Ganies’ older children be transferred to a school near Ms. Ganie’s home and that the access schedule be varied accordingly. She additionally recommended delaying Mr. Ganie’s extended overnight summer access to Arick, who is now fifteen months old, until he is three years old.

[8] Ms. Ganie applied to vary my order of December 31, 2014, in accordance with Dr. Kanagaratnam’s recommendations. Mr. Ganie opposed Ms. Ganie’s motion. He argued that Ms. Ganie has not shown that there has been a material change of circumstances since the court made its order on December 31, 2014, and that, in any event, the court should not implement Dr. Kanagaratnam’s recommendations until the trial of the proceeding, sometime in 2016, when Mr. Ganie’s lawyer will have a full opportunity to test Dr. Kanagaratnam’s evidence by cross-examination, and call his own evidence to rebut her recommendations.

[9] Mr. Ganie made a cross-motion for the following:

a) The release of the files of the Children’s Aid Society (“CAS”);

b) A finding that Ms. Ganie breached my December 31, 2014, order, by failing to grant him two weeks of uninterrupted vacation access to Arick during the summer, and by failing to give him make-up access (although she did give him daytime access during the two-week period during the summer); and

c) Requiring Ms. Ganie “to have the children available, dressed, and ready to depart to school with whatever they need for school by no later than 8:00 a.m. on the school pick-up days.”

[10] Mr. Ganie tendered, and I carefully reviewed, affidavits from himself, his mother, Nesha Juman, his aunt, Bibi Leung, his sister, Bibi Hussain, and his friend, Mohamed Ashik Rahaman Haniff. In a “Statement of Dispute” to Dr. Kanagaratnam’s report, Mr. Ganie asserted that Dr. Kanagaratnam failed to conduct a fair and impartial investigation, was manipulated by Ms. Ganie, and became her advocate. He further stated that Dr. Kanagaratnam “failed to interview the major third parties whom [sic] have been involved with the children during the pertinaent [sic] periods of their lives who could have given information as to their care and their needs.” He complained that Dr. Kanagaratnam failed to contact Eileen Spraggett, who conducted the s. 30 assessment, Dr. Gunawardena, who had been the children’s family doctor since birth, and failed to interview the CAS and Police.

[11] Mr. Ganie’s lawyer, Brian Ludmer, said that he would need three hours to make his own argument of the motions, and asked that the hearing be adjourned to a date set by special appointment for the hearing of a long motion. The court advised counsel that it was unable to accommodate a hearing of the length that Mr. Ludmer requested until June 2016, and that it was not prepared to adjourn the motion for that period of time. It asked Mr. Ludmer if he would like the court to order the release of CAS and police records and to review these following the hearing without the benefit of further argument from counsel concerning them. Mr. Ludmer replied that he did not wish the court to do this.

[12] The court proceeded with the hearing, refusing Ms. Ganie’s request for leave to tender a further affidavit in reply to Mr. Ganie’s responding evidence. It granted each of the parties one hour to make their respective arguments, twice the period normally permitted at the hearing of a regular motion.

[13] For the reasons that follow, I find that there has been a material change of circumstances since I made my order in December, and that there exist exceptional circumstances that render it necessary, in the children’s best interests, to vary the order I made at that time. The older children are suffering from the influence Mr. Ganie is having on them, and from the frequent transfers of them between their parents’ households and their schools. They should be transferred to new schools now, at the beginning of the school year, in order to avoid the disruption that would result from changes later in the academic year. These reasons should be read in conjunction with those that I released on December 31, 2014, which set out the background facts.

ISSUES

[14] This motion requires the court to determine the following:

a) Should the court consider the OCL Clinical Investigator’s report in an interim motion, or should it defer its consideration of the report until trial, when the parties will have a full opportunity to test the evidence contained in it, and to rebut the investigator’s conclusions and recommendations?

b) What effect should the court give to the responding affidavits delivered by Mr. Ganie?

c) Has there been a material change in circumstances?

d) What changes, if any, in the custody and access order made on December 31, 2014, are in the best interests of the children?

ANALYSIS AND EVIDENCE

a) Should the court consider the OCL report at the stage of a motion to change its temporary order for custody and access?

[15] In Ceho v. Ceho, in 2015, I referred to the law applicable to the use of assessments at an interim stage of a proceeding.[^1] I adopt the observations that I made in that case, and add the following.

[16] In my December 2014 decision in the present proceeding, I noted that the 1992 decision of the Ontario Court (General Division) in Genovesi v. Genovesi, and the decisions that followed it, establish that an assessor’s recommendations should generally be restricted to use at trial, where they can be fully scrutinized, unless there are “exceptional circumstances where immediate action is mandated”.[^2] The present case involves exceptional circumstances, in that my order on December 31, 2014, transferred custody of the children from the father to the mother, but deferred a change of their schools until the OCL could investigate and issue its recommendations, which it has now done.

[17] There is an inherent danger in relying on an assessment report which has not been tested by cross-examination, regardless of the stage of proceedings.[^3] This does not mean that no change can be made at an interim stage based, in part, on the OCL’s report, but only that such changes must be made sparingly, and be approached with caution.

[18] In Kirwan v. Kirwan, in 2014, Ricchetti J. reviewed the manner in which courts should consider custody/access arrangements in motions for temporary orders.[^4] He concludes, at para. 28, that “OCL recommendations may be a factor to be considered by this court on a motion to vary an interim order, [but] the court must proceed with caution and consider all circumstances, particularly where there are no exceptional circumstances for the change requested.”

[19] In Strobridge v. Strobridge, in 1994, the Court of Appeal held that a court should not delegate its decision-making authority on parenting arrangements to an assessor.[^5] The Court of Appeal re-stated this principle in Behrens v. Stoodley, in 1999.[^6] An assessor’s recommendations are only one fact that the court considers in making determinations as to custody and access.

[20] The weight that the court assigns to the clinical investigator’s recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based her recommendations. The court “should examine the assessment process, how many visits were involved, what tests were used, whether the standard assessment guidelines were met. If the process is suspect, the report may not have any significant value.”[^7] The Court of Appeal stated in Woodhouse v. Woodhouse, in 1996:

The trial judge correctly observed that the assessor's evidence was not determinative of the issue before him, but was merely one piece of evidence for his consideration. In addition, he noted that it was up to him, not the assessor, to determine the facts.

[21] An OCL report differs from a full CLRA s. 30 expert assessment. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point; not the last word.[^8]

[22] Dr. Kanagaratnam interviewed Ms. Ganie on April 2 and July 20, 2015. She interviewed Mr. Ganie on March 30, April 3, and April 21, and on July 18, 2015. She observed the children with Ms. Ganie at her home on April 15, 2015, and at Mr. Ganie’s home on May 14 and June 6, 2015. She interviewed the children, David and Aliza, on June 4, 2015, and Alisa on June 12, 2015. She spoke with Mr. Ganie’s mother, Ms. Juman, on April 21 and 30, 2015, with his aunt, Bibi Leung, on April 21, 2015, and with Ms. Ganie’s parents and aunts, Mr. and Ms. Barakat, on June 12, 2015.

[23] Dr. Kanagaratnam spoke with the staff of the children’s schools, including Beckett Farm Public School, which David and Aliza attend, and Town Centre Montessori, which Alisa attends, and Castlemore Public School. She spoke with Ms. Ganie’s doctor, Dr. Jeyashankar, and with Mr. Ganie’s doctor, Dr. Yeung, the family’s former doctor, Dr. Nguyen, the children’s paediatrician, Dr. Dorey, the children’s former paediatrician, Dr. Islur Jaya, Arick’s former doctor, Dr. Sethi, and Ms. Horn, from the Speech Therapy Centre that had given speech therapy to David and Aliza. She spoke with the children’s dentist, Dr. Basin, with staff at the Peel Children’s Aid Society, with social workers, Ms. Wonnell, Ms. Theaker, Mr. Syanbola, and Mr. Mossop, and with Ms. Ganie’s support worker, Rupi Kaur, her driving instructor, Mr. Sivachelvam, with Dr. Wroblewski at the Etobicoke General Hospital, and with Ms. Reilly-Murphy at the Scotia Bank. She reviewed Ms. Spraggett’s s. 30 report, reports from the Peel and York Region Children’s Aid Society, the Peel and York Region Police, and the children’s report cards from Beckett Farm Public School. She also reviewed the affidavits that the parties had filed with the court, and my reasons dated December 31, 2014.

[24] I have considered the observations that Dr. Kanagaratnam made during her investigation, and the facts related to her by collateral sources whose personal knowledge and impartiality give credence to their information. For the most part, these concern developments that have occurred since I made my order dated December 31, 2014. For the reasons that follow below, I find that the affidavits submitted by Mr. Ganie do not cast substantial doubt as to the accuracy of Dr. Kanagaratnam’s observations, or the information she received from collateral sources, or discredit the conclusions she reached.

[25] In all of the circumstances, I am prepared to receive the report of the Children’s Lawyer in support of a motion to change the temporary order I made on December 31, 2014, pending the completing of the Children’s Lawyer’s investigation.

b) What effect should the court give to the responding affidavits delivered by Mr. Ganie?

[26] I reviewed with care the supporting affidavits that Mr. Ganie introduced from his mother, his aunt, his sister, and his friend of 30 years, Mohamed Ashik Rahaman Haniff. I do not find this evidence to be persuasive. The witnesses are strongly aligned with Mr. Ganie. Their affidavits are unbalanced and lack impartiality. The affiants tend to overstate or exaggerate, use strongly emotional language, express opinions requiring expertise that the affiants do not possess, and express opinions without proper foundation — their dogmatic and negative pronouncements and predications about Ms. Ganie on several important issues lack credibility and do not accord with the evidence given by professionals, or with the court’s own observations of Ms. Ganie. Their assertions are those of advocates for Mr. Ganie without any appearance of neutrality or objectivity.

[27] Examples of the un-balanced nature of the evidence can be found in the following assertions:

Mr. Ganie’s mother stated, in her affidavit:

Roshan did everything for Bibi and the children. This did not surprise me as I raised Roshan to be a man of integrity with strong morals and family values.

[Roshan Ganie] took [David and Aliza] to all of their doctors’ appointments. The Applicant would not even make medical appointments for the children, let alone going to the children’s medical appointments with Roshan. She left everything to Roshan.

Roshan would manage the household (with assistance from me and my sister) and has always been the primary parent to tend to the children’s needs. He is the parent who ensures they are developing skills and self-esteem age appropriately by being the parent to sign them up for various recreational activities and for speech therapy. Roshan has been the parent teaching the children important life skills and how to take care of themselves such as bathing, dressing, etc. the Applicant was largely uninterested and mostly overwhelmed.

The moment Roshan would come home from work he would tend to the children. He would have to change the baby’s diaper and the Applicant would not do so. She would not cook or clean despite being home all day with the children. She preferred to leave these duties to Roshan or myself as she was overwhelmed.

After Aliza was born, Bibi stopped working outside the home. She worked at Dominion in 2005. I would observe that when Roshan went to work in the morning Bibi would spend her day on the computer instead of caring for the children. Bibi was never focused on the children.

Everyone is in complete shock about the false allegations made toward Roshan.

The Applicant coaches and rehearses the children and I strongly believe all of the assault allegations were staged. I believe she is coaching and rehearsing the children to make these statements against their father. The Applicant is traumatizing the children with her actions.

My sister and I were always at the house we would have seen something.

When the children were returned to him in June 2014, they were extremely thin and lost a great deal of weight. David had infected lymph nodes and mono. Ariella and Alessia had strep throat. The baby did not look to [sic] healthy.

After being withheld from their father, the children forgot all their schooling. We had to reteach them all over again basic simple things like reading, writing, please, thank you, speaking with everyone.

[28] Mr. Ganie’s aunt’s affidavit contains statements that are identical to those that appear in Mr. Ganie’s mother’s affidavit. The statements are so similar as to suggest collaboration. For example:

Nesha Jumon’s affidavit states:

49. The Applicant would not take the children outside, as she was paranoid about sun cancer and bugs. I would try and encourage the applicant to take the children to the park and when I was able to convince her on the rare occasion the Applicant would just sit on the bench with her iPhone and not pay attention to the children or interact with them in their activities.

Bibi Leung’s affidavit states:

37. The Applicant would not take the children outside, as she was paranoid about sun cancer and bugs. I would try and encourage the Applicant to take the children to the park and when I was able to convince her on the rare occasion the Applicant would just sit on the bench with her iPhone and not pay attention to the children or interact with them in their activities.

Bibi Leung’s affidavit states:

32. I had to teach the Applicant the basics when it came to managing a household such as what was appropriate, how to be organized, how to cook and how to make and have a regular routine for the home and children.

Nesha Jumon’s affidavit states:

47. My sister and I had to teach the Applicant the basics when it came to managing a household such as what was appropriate, how to be organized, how to cook, how to clean and how to make and have a regular routine for the home and children.

[29] Mr. Ganie’s younger sister, Bibi Hussain, provided an affidavit which is as strongly supportive of her older brother as are the affidavits of Mr. Ganie’s mother and aunt. She states that Roshan was the responsible big brother growing up, was a role model for her, and cared for her. Her affidavit is also extreme and one-sided to a degree that detracts from its credibility. For example, she states:

[Roshan Ganie] always put his family first…. He did everything for Bibi and the children.

From my interactions with the Applicant, I have found her to be very self-centred….

It seemed that the only time the Applicant would leave the house was with her own immediate family. She would rarely leave the house with Roshan, my mother or aunt to do social things.

I found the Applicant was always negative, she was never a very positive person. She did not want to do anything and expected Roshan to do everything.

From my direct observations and interactions with the applicant, I found that the Applicant wanted everything handed to her on a silver platter. If she did not get what she wanted it would become a big problem. I found the applicant to be very tyrannical, like a dictator. If she did not get her way she would flip like a switch and go from happy and engaged to angry and malicious/vindictive. She is unable to deal with strong emotions in a stable, healthy, mature and functional manner and resorted to childish methods such as the silent treatment until she got her way.

I have observed Roshan to be a devoted and proud father to his children. He seemed to be the sole provider for the children.

[30] As with the affidavits of Mr. Ganie’s mother and aunt, his sister’s affidavit is so similar, in some passages, with those of her mother and aunt as to suggest collaboration. She states, for example:

24. Roshan, my mother and aunt (and to a more limited extent, I) would help out by teaching the Applicant the basics when it came to managing a household such as what was appropriate, how to be organized, how to cook, how to clean and how to make and have a regular routine for the home (and the children).

25. My family had to teach the Applicant the basics when it came to managing a household such as what was appropriate, how to be organized, how to cook, how to clean and how to make and have a regular routine for the home and children.

[31] Mr. Haniff was a high school friend of Mr. Ganie, and has known him for 30 years. He attests to Mr. Ganie’s and the children’s affection for each other, and as to the strong bond between Mr. Ganie and his mother and aunt, neither of which is disputed. He acknowledges that he has only seen Ms. Ganie on religious occasions.

[32] Ms. Ganie sought to tender an affidavit in reply to Mr. Ganie’s responding evidence. I acceded to Mr. Ganie’s objection to such reply evidence on the basis that Mr. Ganie would not have an opportunity to cross-examine on Ms. Ganie’s affidavits before the motion was heard. This ruling involved a balancing of the objective of ending the duelling of affidavits to achieve a timely resolution of the motion to change the temporary custody and access order, and the objective of making a decision based on all relevant evidence.

[33] In Children’s Aid Society v. B.B., Justice Sherr admitted the moving party’s reply affidavit in spite of its failure to comply with the procedural requirements for introducing its evidence in a motion for summary judgment. He stated:

Notwithstanding the procedural irregularity, the court has the discretion to admit the affidavit and “to order otherwise” as described in subrule 14 (20). In paragraphs 7 and 8 of Fakhim, supra, I wrote as follows:

7 In Winton v. Lofranco 2004 7043 (ON SC), (2004), 7 R.F.L. (6th) 444, 2004 7043, [2004] O.J. No. 3418, 2004 CarswellOnt 3346 (Ont. S.C.), Justice Susan G. Himel allowed a party to file an additional affidavit at a motion and held, at paragraph [20], that the court should take an expansive rather than a technical approach to the admission of evidence when children are involved, provided the evidence is relevant, necessary and probative to the matters in issue.

8 In determining whether all or part of an affidavit should be admitted into evidence, despite the evidentiary restrictions in subrule 14(20), the court needs to strike a balance between the importance of ending the delivery of duelling affidavits on motions and the importance of receiving all relevant evidence.[^9] [Emphasis added.]

[34] Because Ms. Ganie tendered a reply affidavit and the affidavit was not filed only because of Mr. Ganie’s procedural objection to it, I do not give Mr. Ganie’s responding evidence the weight that would otherwise be accorded to undisputed evidence, or draw an adverse inference from Ms. Ganie’s failure to reply to it. Sopinka, Lederman, and Bryant, in Evidence in Canada’ (2^nd Edition), state that unfavorable inferences can be drawn in civil cases when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a material witness over whom he or she has exclusive control, who would have knowledge of the facts and would be assumed to be willing to assist that party.[^10] Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[35] In the present case, Ms. Ganie tendered reply evidence but was not permitted to file it. An adverse inference is drawn from the unexplained failure or refusal to tender reply evidence. Here, the explanation is that Mr. Ganie objected to the reply evidence and his objection resulted in the affidavit not being filed. In these circumstances, no adverse inference should be drawn from Ms. Ganie’s failure to tender a reply.[^11]

c) Has there been a material change in circumstances?

[36] For the reasons that follow, I find that there has been a material change of circumstances. My order dated December 31, 2014, provided that the children would continue to attend their schools in Markham because they were mid-way through their academic year and, pending the results of the OCL clinical investigation, it was desirable not to disrupt their lives by causing them to change schools at that point. Had I the benefit, at that time, of the observations that Dr. Kanagaratnam made during her investigation, or anticipated that Mr. Ganie would use the children’s continued residence with him during the week to undermine Ms. Ganie’s role as the children’s custodial parent, by calling the children by different names when they were under his care, by using David to intimidate his mother, thereby exacerbating David’s aggressive and sexualized behaviour, and by enrolling the children in activities at times when they were to be in their mother’s care, further attenuating their relationships with their mother, or added the stress of excessive travel to the challenges the children faced in the transition to a two-household family, with negative impacts on their behaviour and academic performance, I would have ordered that the children be transferred to a school near their mother’s residence at that time.

[37] The Supreme Court of Canada, in its 1994 decision in Willick v. Willick, defined a “material change” under the Divorce Act as a “change, such that, if known at the time [of the original order], would likely have resulted in different terms.”[^12] There is nothing in Willick that equates materiality with foreseeability.[^13] Although the OCL report was foreseen at the time of my original order, its contents, and the recent developments it describes, are a material change of circumstances in the present case.

[38] In Ceho v. Ceho, in 2015, I held, in the context of a temporary, “without prejudice”, order, that “the only change of circumstances that a party must show in order to have the order varied is that the cross-examinations or clinical assessment have been completed.”[^14] I noted that this is particularly true where the OCL recommends a change in the custody and access arrangement.

[39] In Marcy v. Belmore, in 2012, Justice Pazaratz held that the arrival of an OCL report, prepared pursuant to s. 112 of the Courts of Justice Act,[^15] did not in itself constitute a material change in circumstances. However, the “observations, situations, and worsening problems reported by the clinical investigator [constituted] new and troubling information.”[^16]

[40] In Newbury v. Newbury, in 2012, the Alberta Court of Appeal heard an appeal of an interim order suspending a parenting arrangement. In concluding that it was open to the chambers judge to find that a change in circumstances had occurred, the court stated:

While the chamber's judge did not expressly make [a finding of a material change in the circumstances], there was ample evidence before her to implicitly support it. That included the evidence that Carter was experiencing the difficulties that led to the parents consenting to the order for assessment just last February. While Mr. Newbury's access was not varied at that time, he was clearly aware of the possibility of variation because otherwise there would have been no point in the assessment being undertaken. The assessment was a response to the change in circumstances. The entire matter proceeded in the context of an overall change in circumstances having occurred.

Further, the court's refusal last January to vary access made so shortly before the consent order for assessment does not drive the conclusion that any change in circumstance must have arisen since that date. The court's refusal to vary access at that time must be regarded as having been temporary, anticipating a further return to court once the assessment had been completed.[^17] [Emphasis added.]

[41] In Persaud v. Hobbs, in 2014, Justice Ricchetti ordered that a custody and access order could be “varied without the need to demonstrate any material change in circumstances upon the delivery of an OCL report”.[^18] Justice Ricchetti’s decision was in relation to a prospective order, and he noted that a material change might have to be demonstrated in the absence of the order.

[42] In the present case, my order requested the involvement of the OCL, and explicitly gave either party, or the Children’s Lawyer, leave to return the motion, following the issuance of the OCL’s report and, in any event, before August 1, 2015. The reference to that date reflected my hope, at the time, that any change that might appear to be appropriate, based on all of the circumstances, including the contents of the OCL report and the recommendations of the clinical investigator, could be made in time to avoid the disruption of the children’s schooling that a later change might entail. It developed that the report was not released until August 19, 2015, but the return of the motion at this early point in the children’s new academic year still affords an opportunity to make a change in a timely manner that will minimize the disruption of the children’s education.

[43] I set out below the facts relevant to the factors the court must consider when making determinations as to custody and access. I also address the concerns that Mr. Ganie raised in the evidence he submitted. Based on all the evidence, I find that there has been a material change or circumstances, and that it is in the children’s interests that they be transferred without further delay to schools near their mother’s residence, and that the parents’ access schedule be varied accordingly.

d) What changes, if any, in the custody and access order made on December 31, 2014, are in the best interests of the children?

A. Legislative Framework

[44] I noted in my reasons of December 31, 2014, that the court’s determination of custody and access in the present case is governed by s. 16(1) of the Divorce Act.[^19] Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody and access order that it considers fit and just. Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.”

[45] The children’s best interests must be paramount to any other consideration when access is ordered. The convenience of the parents is not ignored, but is secondary to the welfare of the children.[^20]

[46] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. However, in an effort to apply the best interests test with greater precision and consistency, courts, when applying the “best interests” test in the Act, consider the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the Children’s Law Reform Act (“CLRA”).[^21]

[47] Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

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

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

B. Evidence and Analysis

[48] I will review the evidence that has emerged since my order dated December 31, 2014, in relation to each of the factors that pertains to the determinations to be made at this time.

a) Love, affection and emotional ties

[49] The observations that Dr. Kanagaratnam made in her clinical investigation, and the information she received from others, as set out in her report, do not affect the conclusion I reached at paragraphs 59 to 62 of my reasons dated December 31, 2014, to the effect that Mr. and Ms. Ganie both love their children and that there is a strong bond of affection between them and their children. The affidavits filed by Mr. Ganie, from his mother, his aunt, and his friend of 30 years, Mohamed Ashik Rahaman Haniff, assert that there is such a bond between Mr. Ganie and the children, and this fact is not disputed by Ms. Ganie or Dr. Kanagaratnam.

[50] In contrast to Ms. Ganie, who does not dispute Mr. Ganie’s attachment to the children, Mr. Ganie states, at paragraph 76 of his affidavit, “The Applicant has never wanted Arick and in fact made statements to Ms. Julie Freedman that she was going to have an abortion and terminate his life.” Mr. Ganie has not tendered evidence from Ms. Freedman to support his statement or to put any discussion that Ms. Ganie may have had of the subject of abortion in context. I am mindful of the fact that Ms. Ganie states that Mr. Ganie raped her repeatedly and was otherwise abusive to her during her pregnancy. While Mr. Ganie denies this, Dr. Kanagaratnam, at page 6 of her report, relates the following from her interview with Mr. Ganie:

He said “I have a bag of condoms. I do not rape her.” He said having many children is a blessing. He said Ms. Ganie had apparently tried an internal birth control procedure that did not work out. Mr. Ganie continued to say that it was not always convenient to use a condom when being spontaneous during sex. He said “Ms. Ganie could not ask me to put it on.” But he said he did not mind having a lot of children; he likes children and he “mediocre rich.”

[51] Ms. Ganie gives a different account, stating that Mr. Ganie urged her to abort her female children, but sought to impregnate her in order to have male offspring. Dr. Kanagaratnam states, at page 8 of her report:

When Ms. Ganie was working and had no children, Mr. Ganie was not very abusive compared to how he became after. She said, “when he started to pregnate me and I was not interacting with people anymore, his abuse increased.” She spoke about how Mr. Ganie was raping her, trying to get her pregnant. He would pull off the condom while having sex.

Ms. Ganie stated that when she became pregnant for the first time in 2005, Mr. Ganie and his mother did not want the child. Mr. Ganie’s sister could not conceive so they wanted Ms. Ganie to abort the child. She was taken to a clinic against her will and was crying, and the clinic staff asked if Mr. Ganie was forcing her to get the abortion. But she said she could not tell them the truth and got an abortion. Following this incident, Ms. Ganie started thinking about leaving Mr. Ganie….

Mr. Ganie was comparatively less abusive when she was pregnant with their eldest son David, but he said he was disappointed when she was pregnant with their eldest daughter Aliza. He did not like having daughters.

[52] Ms. Ganie stated that after the incident at Castlemore Public School, she was prepared to leave the relationship, as she had become confident that others knew about the abuse. Mr. Ganie had become more violent with her at this point in time. Dr. Kanagaratnam states, at page 9 of her report:

When she was pregnant with Arick, she was driving with Mr. Ganie for her check-up to Mt. Sinai Hospital. Mr. Ganie apparently got upset for something, and got out of the car in the middle of the road, saying “you die”, and left her alone in the car with the engine running and with oncoming traffic. She was scared and put on the emergency lights and was scrambling to get the phone to call 911, when he returned.

[53] I would not venture, based on the untested affidavits before me, to hazard a determination as to the violence that Ms. Ganie says Mr. Ganie visited upon her. However, Ms. Ganie’s account of this incident is so unconventional in its nature as to have the ring of truth. If true, it would explain why Ms. Ganie considered a desperate measure to free herself from Mr. Ganie’s domination of her, notwithstanding her desire to carry her child to term.

[54] Whatever the truth concerning the discussions that Mr. and Ms. Ganie had concerning abortion, I do not accept Mr. Ganie’s assertion that Ms. Ganie “has never wanted Arick.” His evidence in this regard is contrary to Ms. Ganie’s accounts that she fled from the matrimonial home in order to protect herself and her unborn child from Mr. Ganie’s sexual assaults on her, which she said left her bleeding from her vagina and fearing for her child’s life. Although Mr. Ganie acknowledges that they continued to have intercourse up to the day she separated from him, and does not deny the authenticity of the photographs Ms. Ganie took of the blood-stained linens on their bed, he asserts, at paragraph 148 of his affidavit, that “[t]he Applicant always bleeds during her pregnancy. She bled with David and Ariel and in this insistence she seems to just bleed. Her claim that this is blood from the forceful sex is a false allegation.” I find Mr. Ganie’s explanation improbable.

b) The children’s views and preferences

[55] The children have expressed differing preferences as to the parent with whom they would prefer to reside. When Dr. Kanagaratnam asked seven year old David Ganie, if he were to go to an island in a small boat, whom he would choose to go with him, he replied that he would take his father. He said that his father takes him for rides on his scooter and bike, and he likes playing basketball with his dad and playing with toys.

[56] David’s preference reflects, to some degree, the preferential treatment that Mr. Ganie has apparently given David among the Ganie children. Dr. Kanagaratnam refers to this at page 27 of her report, based on information from Ms. Ganie’s family:

The family said that Mr. Ganie treats the children differently. For example, Mr. Ganie would tell David to go and get ice cream in the kitchen. The girls would be in the living room and he would say they were too young for ice cream. In the beginning, he only registered David for activities, and only now is he trying to do things for the girls.

[57] When Dr. Kanagaratnam interviewed six year old Aliza at her school, she told Dr. Kanagaratnam, “I want to live with mommy. I want my mommy.” When asked to tell about her “daddy”, she said “I don’t want to go.” She said, “you can come to my dad’s place.”

[58] Three year old Alisa, when asked to draw her parents’ houses, said that she likes mom’s house, and that dad’s house is good. However, when asked to draw the two houses, she said that she does not like the “other house” and that her dad and grandmother fight. When she reported that “David does bad things”, she was asked what bad things, and she replied that he teases her. When asked who else does bad things, she said “dad”. When asked what bad things he does, she replied that he hits her in the head, and added that he was going to end up in jail.

[59] Dr. Kanagaratnam, at page 32 of her report, relates the following information obtained regarding Alisa’s preference from Ms. Tasha Theaker of the Children’s Aid Society of Peel:

Alisa seems to have most difficulties with transition, though Ms. Ganie seems to be appropriate in encouraging the children when going to their father. Ms. Theaker has observed Alisa crying when going to her dad. She is first okay and then starts crying when getting ready. Ms. Theaker had a chance to ask Alisa, and Alisa had said that she was sad to leave mom, and would miss her. Ms. Theaker feels that the reason for Alisa’s crying is more due to her sadness to leave Ms. Ganie rather than being scared of Mr. Ganie. She said when Alisa sees her dad, she runs happily, is affectionate to him, and stops crying.

[60] Arick, at one year old, is too young to express a preference as to the parent with whom he would prefer to reside. Dr. Kanagaratnam reports that Arick appears to be happy in the care of each of his parents.

[61] Mr. Ganie’s mother, his aunt, and his sister, all state that the children are happy to see Mr. Ganie. Mr. Ganie’s mother makes a revealing statement, however, in support of her argument that Ms. Ganie does not exercise as effective “management” of the children’s behaviour as Mr. Ganie. She states:

When they come back from their visits with the Applicant, the children do not want to listen. It sometimes takes a day and a half for the children to return to their normal behaviours. Upon the children’s return from the Applicant they are not happy, would sit by themselves, refuse to eat or anything like that. They become very quiet and withdrawn until they get settled back into their routines. [Emphasis added.]

[62] I find that the children’s unhappiness when they return to their father’s home is more likely a reflection of the care of them that he has resumed and is then exercising, than a response to their mother’s care from which they have been removed. I find, on a balance of probabilities, that transferring the children to schools nearer their mother’s residence, and adjusting the parenting schedule accordingly, would not be contrary to the children’s preferences.

c) The length of time the children have lived in a stable home environment

[63] Mr. Ganie, in paragraph 63 of his affidavit, notes that the children attended school in Markham prior to the parties’ separation in March 2014 and since September 2014. He asserts, on this basis, that “[i]t is unreasonable to uproot them from their stable daily routine and move them to Malton part way through their school year, simply to potentially have them return to Markham upon the hearing of a trial in this matter.”

[64] I do not minimize the impact on the children of transferring them to other schools. Mr. Ganie and his family, in their affidavits, note that the children, or some of them, have made friends in their schools and in their community. On the other hand, Mr. Matt noted that David “has no solid friendships”, and that Aliza was aggressive and anti-social at the beginning of the school year and “needs to lengthen her time in interacting with peers”, and that she still shows a tendency to “zone out” with private imaginings. Moreover, Aliza is only in grade 1, and can be expected to adjust more readily to a change of school than if she were older, with more established friendships. Alisa is even younger, in pre-school.

d) Ability and willingness of each applicant to provide the children with guidance and education, the necessaries of life and any special needs of the children

(i) Guidance

[65] I find that Ms. Ganie is best equipped to provide guidance to the children. Dr. Kanagaratnam summarizes her observations of Mr. and Ms. Ganie’s interactions with the children in their respective homes in the following terms:

Both parents showed affection and were able to set limits for the children, and the children too appeared to be affectionate with both parents. However, Mr. Ganie seemed rushed and less attuned to the children’s cues and more concerned about time limits and the completion of his plans during his time with the children. His mother Ms. Juman and aunt Ms. Leung were always present and ready to take what seemed like Mr. Ganie’s orders, in assisting him during his time with the children. He was more relaxed and playful and seemed to enjoy his time with Arick. Though, his focus was partially on completing his own plan with Arick and in displaying his parenting abilities. Compared to Mr. Ganie, Ms. Ganie seemed to be more relaxed and independent in her role as a mother, and adjusted herself according to the different needs of all the four children, in terms of giving attention and affection, and setting limits as needed. The children were clearly at ease in both home environments, but were given an opportunity to be themselves at Ms. Ganie’s home. Mr. Ganie seems to bring structure to the children’s environment, teaches the children good manners and engages them in various activities. On the other hand, he has difficulties in being child focused and would benefit from getting education and training in being able to read and respond to children’s cues.

(ii) Education

[66] I find that the children are not thriving academically in Mr. Ganie’s care. Dr. Kanagaratnam interviewed Mr Matt, the principal of Beckett Farm Public School, which David and Aliza attend. She states, regarding David:

Academically, his reading is good but comprehension is not. He gives random responses and requires probing and reminders. He is also having challenges with writing. The school is not sure if he has attention problems. His math skills are average. He has difficulty expressing his thoughts. Mr. Matt said he was not sure of any cultural differences, because Mr. Ganie says he has a hard time maintaining eye contact with David. David … shares with teachers and friends; however, he has no solid friendships. He has more female friends and is not into typical boy games, but is attempting now. He has difficulty expressing his thinking and often misinterprets – if, for example, someone says “you cannot be here”, because of certain rules, he thinks it is mean. [Emphasis added.]

[67] Dr. Kanagaratnam relates Mr. Matt’s comments about Aliza as follows:

She enjoys reading but struggles with comprehension just like David. She is imaginative, creative, musical and tactile. In the beginning of school year, she was scratching and hitting children but not anymore. At one point, she was eating “non-food” but has stopped this habit now. There is improvement after using a visual schedule for Aliza to follow. She has become better at making eye contact. Her fine motor skills are good. Around February/March of this year, there were some changes in here; she was more emotional, clingy, and less aware of her surroundings. Aliza needs to be better with her focus and should be able to do work without prompts. She needs to lengthen her time in interacting with peers and has to express her needs to the teachers. She needs an academic assessment but it is still too early to do this. She will get an assessment done in grade 1. Ms. Ganie has given permission to do a speech language assessment. Aliza also needs a psychological assessment and Ms. Ganie has agreed to this. Aliza is improving but there is some regression as well. [Emphasis added.]

[68] Dr. Kanagaratnam appears to have confused Aliza with Alisa in referring to the concerns that Aliza’s school and the Peel CAS social worker have expressed concerning her. She states at page 33 of her report:

Alisa [sic] is very articulate for her age according to Ms. Theaker. She is the one who comes with statements about her dad hurting her. Ms. Theaker said she has no knowledge of Alisa being considered as having autistic characteristics. However, during a later conversations, she said that according to Alisa’s [sic] school, it has been discussed that Alisa’s [sic] behaviour might fall into an Autism Spectrum Disorder. Alisa [sic] does not make much eye contact, her concentration is bad, her speech is delayed, and she is distant and seems to zone out; but she also has an ability to connect. Mr. Ganie has not reported concerns about Alisa [sic] and says she is well. Ms. Theaker said she is concerned about Alisa [sic] and suggested that she see a psychologist. Ms. Ganie has agreed to this but not Mr. Ganie…. Alisa [sic] has language delay and it is difficult to keep her focused. She gave an example stating, when Alisa [sic] is asked “what did you do yesterday”, she will say something like, “I was playing with unicorns in the sky.”

[69] Alisa attends the Town Centre Montessori and Ms. Thadani, the vice- principal, did not want Dr. Kanagaratnam to visit the school to talk to Alisa. She called the class teacher, who reported no concerns with Alisa, academically or socially. She is developmentally meeting all the milestones. Dr. Kanagaratnam notes, at page 31 of her report:

She seems to be taken well care of by both parents most of the time, and they have not noticed any neglect or other concerns, either when coming from the mother’s home or father’s home. At times, she is tired when coming from mom, probably because of the long ride. Otherwise, she is not always on time for school. School starts at 9 a.m. She may be dropped off at about 9:20 a.m. or so, and is always in school before 10 a.m.

(iii) Necessaries of life and special needs

[70] Mr. Ganie is dismissive concerning the issues involving the children’s health, behaviour, and academic difficulties. More important, he has undermined the credence that professionals, whom Ms. Ganie has consulted, give to her concerns. Dr. Kanagaratnam notes, at page 32 of her report, based on her interview with Ms. Theaker, of the CAS of Peel:

According to Ms. Theaker, a walk-in-clinic note says not to take Ms. Ganie’s concerns on face value and that a thorough assessment is needed before treating the children. However, Ms. Theaker said there seem to be legitimate reasons for Ms. Ganie taking the children to the doctor, because the children get diagnosed from the doctors. Mr. Ganie says, though, that the children do not have these conditions. [Emphasis added.]

[71] Mr. Ganie, although giving his mother credit for identifying David’s speech difficulties, appears not to have followed through on the recommended therapy, and to have blamed Ms. Ganie for his failure to do so, notwithstanding that the children are in his care for most of the week and on alternate weekends. Dr. Kanagaratnam reports, at page 34 and 35 of her report, the information she received from Ms. Shorn, at Speech Therapy Centres of Canada:

Ms. Horn informed that the family has not had contact with their centre after January 9, 2014. There was regular attendance from November 2013 to January 2014. She said the family books sessions and then cancel; this is a major concern since the children will not progress if not seen continuously 8-12 times, once a week. If the children are in need of services at the present time, they would have to be re-assessed.

David and Aliza have had three sessions so far and Alisa had two sessions. Alisa was assessed as not needing sessions after her last appointment on July 12, 2014.

Since January 2014, there were many cancellations, at least three in January 2014 and also a few sessions in February 2014. Mr. Ganie called in January 2015, explained the separation, and said there was no consent from Ms. Ganie to bring the children for services. Mr. Ganie had said he did not have the children with him on Saturdays, to be able to bring them. In February 2015, Ms. Ganie called and spoke to the clinical director and said she did not want to give verbal consent, and in early June 2015, she gave written consent for services. Both parents have usually come with accusations against the other. Ms. Horn explained that they have flexible opening hours (long hours on Thursdays and also mostly on Tuesdays to 8 p.m.; open Saturdays as well to 5 p.m.) and it should not be very difficult to get appointments for the children, if needed.

She explained further that independent of the recent custody and access battle, there were cancellations even before separation, when both Mr. and Ms. Ganie were living together. Ms. Ganie and the paternal grandmother brought the kids then, and Mr. Ganie had called to cancel appointments during that period. [Emphasis added.]

[72] Dr. Kanagaratnam reported a similar pattern of cancellations by Mr. Ganie in relation to her own investigation. She stated, at page 18 of her report:

Initially during this investigation, Mr. Ganie communicated with a disciplinary attitude towards this clinician, directing me, at times in a commanding way, on how the investigation should proceed and how and when he should be contacted. Later in the process he was inconsiderate of my time. He came an hour late for his first appointment with this investigator and explained that he had a challenging morning picking up the children at Ms. Ganie’s place. Subsequent delays resulted in having to visit Mr. Ganie’s home twice, without being able to complete an observation. For the following appointment, again, he showed up an hour late, and the observation had to be commenced after an hour. [Emphasis added.]

[73] Mr. Ganie typically takes no responsibility for his delay and blames both Dr. Kanagaratnam and Ms. Ganie. He says, at paragraphs 71 and 72 of his affidavit, “Dr. Kanagaratnam fails to note in her report that she was also delayed due to a conference she was attending. On the three dates that I met with the OCL, she makes negative inferences about my being late yet does not acknowledge the reasons as to why which were as a result of the Applicant’s continued false allegations against me.” Mr. Ganie does not offer sufficient detail concerning his delays or that of the investigator to permit the court to assess his explanations. In the absence of such detail, what is most evident in Mr. Ganie’s response is his defensiveness.

[74] Dr. Kanagaratnam observed aggressive behaviour by David that is similar to that which I referred to at paragraphs 69 and 70 of my reasons dated December 31, 2014. During her home visit with Ms. Ganie, David was teasing his sisters, and said to Aliza that she could go and break her head. He also said, “go and die”. Even when reminded that he had promised Ms. Theaker that he would not use such language, he continued to do so. David continued to bother his sisters and one time tried to scratch Aliza and then tried to touch her and kiss her back. He then lifted Ms. Ganie’s skirt. Later, David asked Aliza to show her underwear. Smiling, she showed him, and Ms. Ganie told her to stop. Ms. Ganie reported to Dr. Kanagaratnam that David once showed his underwear at church. He has got into the habit of touching other people’s private parts and wanting to see what is under clothes.

[75] Ms. Ganie responded appropriately to David’s behaviour. Dr. Kanagaratnam reports:

The children were relaxed and happy with Ms. Ganie. She seemed capable of multi-tasking, engaging the girls in activities, breast feeding Arick, cuddling with Alisa and checking on David. Though her parents were present, Ms. Ganie acted as an energetic and independent parent in making sure that all four children were comfortable. Though David was acting out, she was able to set limits, gave clear directions, and took time to try to resolve the difficulties by sitting and talking to him and was also attentive to his need to take this investigator out to watch him play.

[76] David’s continued aggressive and sexual behaviour is consistent with the conduct that Ms. Ganie has attributed to Mr. Ganie in the past. Apart whether this is its source, it does not appear that Mr. Ganie regards it as a problem that needs to be addressed. Dr. Kanagaratnam states, at page 7 of her report, “[Mr. Ganie] said they were told David might fall under the Autism spectrum. Then Mr. Ganie had to follow up with David for five years, helping him to socialize, and David is now fine.” Similarly, Ms. Kanagaratnam notes, at page 33 of her report, the information she received from Ms. Theaker, the social worker with CAS of Peel: “Ms. Theaker said she is concerned about Alisa [sic] and suggested that she see a psychologist. Ms. Ganie has agreed to this but not Mr. Ganie.”

e) Plans proposed for the children’s care and upbringing

[77] Mr. Ganie proposes that the children continue to attend their schools in Markham and continue to reside with him during the week. Ms. Ganie requests that she be permitted to transfer the children to schools near her residence and that their access schedule be amended accordingly.

f) Permanence and stability of the family unit in which the children are to live

[78] There has been no substantial change in the permanence and stability of either party’s family unit. At paragraph 101 of my reasons dated December 31, 2014, I concluded that the parties’ family units have equal permanence and stability.

g) The ability of each person applying to act as a parent

[79] Dr. Kanagaratnam notes, at page 7 of her report, that Mr. Ganie informed her that he had enrolled the children in many activities in Markham such as basketball, soccer, floor hockey, swimming, karate, public speaking, and library attendance. He said that he now has difficulties taking the children for their activities, because he has not had sole custody since January 6, 2015. He says that he is not the typical dad: “I overdo things … cook, clean, take the kids to appointments.”

[80] Mr. Ganie has been unable to take the children to all of their activities. Additionally, the activities substantially interfere with Ms. Ganie’s access to the children, as they fall during times when the children are to be in her care. The order made on December 31, 2014, specifically prohibited this. It provided:

13. Neither party shall arrange new extra-curricular activities (that is, activities in which they are not registered at the date when this Order is issued) for the children, or attendance at special events, … at a time when the children are to be in the care of the other parent pursuant to this Order.

[81] Mr. Ganie has disregarded that term of the order and, in doing so, has impeded Ms. Ganie’s access to the children. Ms. Ganie stated,

Mr. Ganie is supposed to bring the children to her after school and after their activities, but he brings them to her home as late as 11 p.m. He has also signed up the children for activities during her time, though the court order states that he is not supposed to sign them up for new activities.

[82] Dr. Kanagaratnam, at page 33 of her report, describes the information she received from Ms. Theaker of the Peel Children’s Aid Society:

The number of extracurricular activities the children have been attending are a concern for the CAS. Ms. Theaker said that the children have to cancel an activity in order to meet with her. She said Mr. Ganie has very limited time with the children. He says he does not have time to read to them and she had told him that hockey is less important than having quality time with the children. She said further that it seems important for Mr. Ganie to have Alisa in Montessori and he does not seem to understand that it is more important for the child to have contact with the mother. [Emphasis added.]

[83] At paragraph 49 of his affidavit sworn September 17, 2015, Mr. Ganie states that Ms. Ganie “denied the children their existing extracurricular activities that they enjoyed for years prior to separation … Despite many emails and letters confirming the children’s attendance the Applicant deliberately kept the children from their activities in Markham out of spite. The children have attended these activities for over four years and as a result of the Applicant’s unilateral actions, are no longer permitted to attend. The Applicant does not have the children’s best interests at heart.” Mr. Ganie disregards the alternative explanations for Ms. Ganie’s objection to the number of activities in which Mr. Ganie registers the children, and to the extent to which the activities encroach on the time their parents might otherwise spend with them, even though both Dr. Kanagaratnam and Ms. Theaker both expressed their concerns in this regard.

[84] Quite apart from the issue of what degree of involvement in such activities is in the best interests of the children, Mr. Ganie’s response to this concern betrays a fundamental disrespect toward Ms. Ganie and for the role she performs as the children’s mother. He attributes spite to Ms. Ganie as her underlying motivation, he is unwilling to consider another point of view regarding what is in the children’s best interests, and he disregards the fact that my order of December 31, 2014, granted Ms. Ganie temporary sole custody of the children, including the responsibility for making such decisions, and specifically prohibited Mr. Ganie from registering the children in activities in which they were not registered at the time the order was made.

[85] In this and other ways, Mr. Ganie shows an unwillingness to co-parent with Ms. Ganie. In my reasons dated December 31, 2014, I stated, in para. 216, “It remains to be seen whether Mr. Ganie’s respect for his wife can be elevated to the point where the parties can share custodial decision-making.” The observations made by Dr. Kanagaratnam disclose that he has not. Dr. Kanagaratnam notes, at page 19 of her report:

Though we cannot be certain of the extent of violence that occurred beyond the incident of the hand print, witnessed and reported, the power imbalance in the relationship between the parents remains. The down-grading attitude of Mr. Ganie towards Ms. Ganie is explicit as he sees her as a woman who cannot do basic chores such as cooking and cleaning and sees her as incapable of taking basic care of the children, such as clipping their nails. In addition, being himself a parent to David, Aliza, Alisa and Arick, Mr. Ganie takes no responsibility for their reported developmental/health challenges (such as, for example, David’s speech delay, the children’s dental issues, Arick’s weight loss, etc.) but instead places the full responsibility for such issues on Ms. Ganie’s incapability. Under these circumstances, Mr. and Ms. Ganie cannot make joint decisions and a joint custodial agreement is not favourable. [Emphasis added.]

[86] The health professionals who have treated the Ganie children do not support Mr. Ganie’s allegations that the children have suffered from declining weight and dental decay, which Mr. Ganie attributes to Ms. Ganie’s neglect. At page 34 of her report, Dr. Kanagaratnam relates information received from the children’s dentist, Dr. Bavana Bhasin, whom she interviewed at Mr. Ganie’s request:

According to Dr. Bhasin, there is nothing unusual about the children’s oral health. She said she cannot give an opinion on their dental issues being related to bad follow-up by the parents. She said even intact families have kids with a lot of dental issues. But she stated that travelling between two homes could be difficult for the children in terms of consistency in their dental care. [Emphasis added.]

[87] Dr. Kanagaratnam, at page 38 of her report, describes information she received from Mr. Kevin Mossop, a social worker at the Trillium Hospital Health Partners, who had brief contact with Ms. Ganie after Arick’s birth at the hospital.

He said he remembered her very well. Issues related to the domestic violence and family conflict was discussed. It was assured that the mother and the child were doing well. He stated that Ms. Ganie was pleasant, and seemed to be coping well with the situation and had good support. [Emphasis added.]

[88] Dr. Kanagaratnam, at page 36 of her report, describes information she received from Dr. Monica Sethi, who saw Arick when he was four days old and then a second time when he was two weeks old. Dr. Sethi stated that, based on her contact with Ms. Ganie, she had no concerns regarding her parenting abilities.

[89] Dr. Kanagaratnam, at page 37 of her report, describes information she received from Ms. Sandy Wonnell, R.N., with the Peel CAS:

Again in November 2014, she got an “odd phone call” from the father Mr. Ganie who was concerned about the baby Arick’s weight. He felt that Ms. Ganie was not taking proper care of the baby…. Ms. Wonnell was in touch with the mother and baby from November 27, 2014, to March 16, 2015. The baby looked healthy, was developing well and had no problems in terms of weight. Ms. Wonnell provided Ms. Ganie with education around care for the children, as Ms. Ganie was always running to the doctors for mild issues. She said Ms. Ganie wanted to make sure everything was okay. It seemed that she never wanted to be accused for not caring for the children properly and wanted everything documented. Ms. Wonnell reminded Ms. Ganie that this was not her first child. [Emphasis added.]

[90] A further example of Mr. Ganie’s unwillingness to co-parent with Ms. Ganie, and to recognize Ms. Ganie’s role as the custodial parent, can be found in the fact that he insists on addressing the children by different names when they are in his care. Dr. Kanagaratnam observed, at his home visit at Mr. Ganie’s home, that when she saw Aliza, she asked “…oh, is this Aliza?” to which David responded by saying, “no, it is Ariel.” When Mr. Ganie returned home, the girl from next door who was playing with the children, pointed to Aliza and asked Mr. Ganie, “is her name Ariel?” Mr. Ganie said “Yes”. Later, when Aliza tried to go up to David, Mr. Ganie said, “excuse me Ariel … excuse me Ariel … Ariel … finish all the white spots. Then you can go to David.” Additionally, Dr. Kanagaratnam observed that Mr. Ganie called Arick “Peter” during the observation visit.

[91] Dr. Kanagaratnam stated, at page 21 of her report:

There is some evidence of the children having witnessed violence and being continuously exposed to the animosity between the parents and their families. The school has concerns about David and Aliza’s behavioural and academic functioning, and based on observations during this investigation and CAS reports, David is showing behavioural difficulties also at home. Ms. Theaker described Aliza’s sexualized behaviour when she was visiting the home May 23, 2014. It should be reiterated here that this is one of the children who is called by different names in the two homes (given name is Aliza but referred to as “Ariel” during her time with father Mr. Ganie – which includes Mr. Ganie’s home, neighbourhood, school and health care professionals where the child is taken to during Mr. Ganie’s time), which is most likely contributing negatively to the concerns already identified in Aliza …The children and Ms. Ganie exhibit symptoms indicative of having lived in a maladaptive environment, and as a child protection agency, the CAS needs to continuously monitor the development and progress of the children, and making referrals for psychological assessments and treatments as needed.

[92] Mr. Matt, the principal at Beckett Farm Public School, remarked on the children being called by different names. Dr. Kanagaratnam states, at page 31 of her report:

Mr. Matt mentioned about Aliza being called by two different names. He said he asked the CAS worker about how he could solve this issue. The CAS worker said she was told by Aliza to call her Aliza and not Ariel, and that’s how she calls her. Mr. Matt said that he hoped that both parents could come up with a common name for the children and that stability and consistency is important for them. He said further that the children are having challenges because of the distance between the homes. [Emphasis added.]

[93] Mr. Ganie offers an explanation for addressing Aliza and Arick by different names than Ms. Ganie uses to address them. He states at paragraph 117 of his affidavit that Aliza’s full name is Aliza Arielle Ganie and that because the parties have two daughters, one being Alisa and one being Aliza, he uses the name Ariel when addressing Aliza in order to spare her and Alisa the confusion that could result from the similarity of their names.

[94] I do not find Mr. Ganie’s explanation for his re-naming of Aliza persuasive for the following reasons.

a) Mr. Ganie’s mother, in her affidavit, states, “Ariella and Alessia had strep throat.” I take from this that the youngest daughter’s name, Alisa, is a short form of Alessia, meaning Alice. This is a name that is not readily confused with Aliza, which apparently is a short form of Elizabeth. Mr. Ganie can therefore readily distinguish between the two children without having to substitute Aliza’s middle name when she is in his care.

b) Mr. Ganie also addresses Arick as “Patrick” when Arick is in his care. The name of the parties’ other son, David, would not be confused with Arick and Mr. Ganie does not offer any explanation for addressing him by a different name, although he provides what may be a motive for his doing so. He states, at paragraph 119, that Ms. Ganie “unilaterally named our son with her father’s last name to spite me.”

[95] I conclude that one reason for Mr. Ganie’s addressing the children differently, if not the only reason, is to prove that he can address them in any way he likes, and can seek to influence others, such as doctors, dentists, teachers, and counsellors, who have dealings with them, in the way they interact with the children.

[96] The naming of a child is an incident of custody[^22] and Mr. Ganie, in departing from the name Ms. Ganie has given to the children, is disregarding the fact that, as the parent to whom custody of the children has been granted, Ms. Ganie is entitled to determine the name by which the children are addressed. In insisting on using Aliza’s middle name, or on using the name Patrick for Arick, Mr. Ganie is creating antagonism between himself and Ms. Ganie, is undermining her role as the children’s custodial parent, and is creating confusion among professionals who provide services to the children.

[97] The Court of Appeal, in Bjornson v. Creighton, in 2002, reiterated, in the context of mobility issues, that achieving functional decision-making in the best interests of a child, requires an appropriate degree of respect to the burdens borne by the custodial parent and, accordingly, that parent’s decisions. Austin J.A., speaking for the court, stated:

Views of a Custodial Parent

… While the majority of the Supreme Court of Canada in Gordon rejected the idea of a legal presumption in favour of the custodial parent's views, it nonetheless stated that the views of the custodial parent are "entitled to [page 247] great respect and the most serious consideration". At para. 48, McLachlin J. said,

While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

At paragraph 36, she wrote,

The judge will normally place great weight on the views of the custodial parent, who may be expected to have the most intimate and perceptive knowledge of what is in the child's interest. The judge's ultimate task, however, is to determine where, in light of the material change [not the instant situation], the best interests of the child lie.

At para. 46, she said:

The child's best interest must be found within the practical context of the reality of the parents' lives and circumstances, one aspect of which may involve relocation.

At para. 32, McLachlin J. wrote that the common element in Carter v. Brooks (1990), 1990 2623 (ON CA), 2 O.R. (3d) 321, 30 R.F.L. (3d) 53 (C.A.), MacGyver v. Richards (1995), 1995 8886 (ON CA), 22 O.R. (3d) 481, 123 D.L.R. (4th) 562 (C.A.) and Gordon is the view that significant weight is to be accorded to the custodial parent's view. She wrote,

Although some have read MacGyver as a departure from Carter v. Brooks . . . the difference between the cases may not be as great as sometimes supposed. Both cases urge careful consideration of the views of the custodial parent: the court is directed to accord them a "reasonable measure of respect" in Carter, and an "overwhelming respect" or "presumptive deference" in MacGyver. Despite the stronger language of the majority in MacGyver, neither decision proposes a legal presumption in favor of the custodial parent.

At para. 37, McLachlin J. said:

Nor does the great burden borne by custodial parents justify a presumption in their favour. Custodial responsibilities curb the personal freedom of parents in many ways.

Having said that, the existence of the "great burden borne by custodial parents" must be recognized.

In concluding that part of her reasons which summarized the law on this subject (see para. 18 above), McLachlin J. said, at para. 50 of Gordon:

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed [page 248] against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interest of the child in all the circumstances, old as well as new?

The views of the custodial parent, despite the Supreme Court's rejection of a legal presumption in their favour, remain a very important consideration in any analysis of the best interests of the child. Moreover, the views of the custodial parent are a factor which the Supreme Court of Canada considered significant enough to single out as being worthy of "great respect" and "the most serious consideration".

[98] In Nloga v Ndjouga, in 2015, Gilmore J. dealt with a case in which the parties called their daughters by different names.[^23] When the parties were living together, they called one of the children “Imma”. After separation, the non-custodial father called her by her first name, “Auriel”.[^24] Similarly, the mother called the other daughter “Gertrude”, the father called her “Divine”. Justice Gilmore ordered that the children be known by one name. With respect to the first child, Gilmore J. ordered that she be called Immaculate or “Imma” in both parents’ homes and at school:

It is undeniable that calling the children by different names in each home is disconcerting. In my view, this must create a certain amount of confusion for the children and, no doubt, for their friends when they hear them called a different name by the applicant than the respondent.

For consistency and to avoid confusion, it is reasonable that AGI shall be called Immaculate or “Imma” in both parents’ homes and in school.[^25]

[99] In Parkes v. Zayachkowski, in 2005, Dunn J. ordered the father to “call the child in question “Lukus Zayachkowski”, or other pet names in casual conversation, such as “Little Buddy”, but not “Daniel”, unless there is a court order changing Lukus’ name.”[^26]

[100] Mr. Ganie’s continued disrespect for Ms. Ganie and her role as a mother is evident from his own statements to Dr. Kanagaratnam. Dr. Kanagaratnam notes, at page 4 of her report, based on his interview with Mr. Ganie:

He explained that [Ms. Ganie]’s mother was a house body, so Ms. Ganie would not come out and was anxious and fragile. He stated that he had to teach her how to do things, like a 5 year old child. He gave her a cell phone. He said she was not up to date with her computer skills, but wanted an office job. He said she that she felt he never helped her and developed resentment toward him. She then became depressed without a job. He said further that Ms. Ganie has scoliosis and said her teeth were big, and these issues affected her self-confidence. When this investigator asked what he meant by anxiety, he said Ms. Ganie was afraid of bugs and bees and would be waving her hands, screaming.

[101] Dr. Kanagaratnam notes, at page 7 of her report:

He said he did everything for her, but never put her down in public. But due to her incompetency as a mother, the children suffered. He said Ms. Ganie struggled with basic stuff and needed constant oversight which his mother and aunt provided. He said Ms. Ganie is good when interacting with babies, but has no knowledge about child development and milestones; she is challenged and thinks her opinion is the best. Now, after separation, when the children have a runny nose, she goes to get antibiotics for them because she is overly anxious. She claims that Alisa [sic] has autism. She is afraid to pierce the children’s ears and does not want to circumcise their son. He said due to her fear of feeding solid food to the children, she rushes up and pushes his hand and stops him when he feeds the children. He claimed she was afraid that David would choke and die. He stated David had to wait three years to get solid food and Arick was losing weight tremendously.” She gave David a pacifier at one month of age and delayed his speech. She did not even notice the delay, only Mr. Ganie’s mother noticed the delay. He said they were told David might fall under the Autism spectrum. Then Mr. Ganie had to follow up with David for five years, helping him to socialize, and David is now fine. [Emphasis added.]

[102] Dr. Kanagaratnam notes, at page 7 of her report:

Mr. Ganie said Ms. Ganie, as the mother, should be involved with the children. He said, she is “huggy and kissy” and it is all okay, but she does not even cut the children’s nails properly. They get sick at her home and she cannot co-parent. [Emphasis added.]

[103] Dr. Kanagaratnam additionally notes, at page 5 of her report, that overall, Mr. Ganie was consistent in expression of his aversion towards Ms. Ganie’s family.

[104] Dr. Kanagaratnam notes, at page 19 of her report, that “Mr. Ganie and his family seem to have played a clearly dominant role over Ms. Ganie’s life and even at present, there is no evidence to prove that such behaviour has come to an end.” David Ganie, in particular, has been adversely affected by his father’s behaviour toward Ms. Ganie, and reflects this in his aggressive and sexual behaviour.

[105] In my reasons dated December 31, 2014, I reviewed the evidence that supports a conclusion that the children had witnessed their father inflict violence on their mother, and the collateral confirmation of intimidating conduct by Mr. Ganie toward Ms. Ganie both in their presence and otherwise. In an e-mail that Ms. Ganie sent to Dr. Kanagaratnam, she recounted a telephone call that she had made to David on October 24, 2014, when Mr. Ganie was in the background. Mr. Ganie told his son to ask Ms. Ganie what is a slap. Ms. Ganie continued:

It was a very awkward situation since my son have seen him do this to me many times during the abusive relationship. I told my son that his daddy should not be talking about that word around him and let’s continue to have our conversation. Then the father proceed to spell the word out and got my son to spell it out. My recollection of his abuse towards me came back and there was silence from my side and my son side and I feel for my son since he is a big child and I can tell he felt uneasy too.

[106] As noted above, at paragraph 52, Dr. Kanagaratnam observed, during her home visit with Ms. Ganie, that David was “teasing” his sisters, and said to Aliza that she could go and break her head. He also said, “go and die”. Even when reminded that he had promised to Ms. Theaker that he would not use such language, he continued to do so. He continued to bother his sisters and one time tried to scratch Aliza and then tried to touch her and kiss her back. These observations support the view that it is in the children’s interest that they attend a school nearer to their mother’s residence and that the access schedule be adjusted accordingly, to allow Ms. Ganie the opportunity of counteracting the effect on the children of the behaviour they have observed in the past by Mr. Ganie toward their mother.

h) The status quo

[107] I noted in my reasons dated December 31, 2014, that a child’s best interests often dictate that the status quo be maintained, particularly if an order or arrangement between the parties has been in place for a significant period of time. The court should generally not disturb the status quo, unless there is urgency that this be done in the children’s best interests,[^27] especially if there will soon be an opportunity to consider the matter more fully at trial.[^28]

[108] The status quo that ordinarily is to be maintained is the status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child dictates otherwise.[^29]

[109] In rare cases, an assessment may reveal or confirm an urgent problem requiring immediate attention or correction. Even in those cases, courts should act with caution, implementing only such changes as may be required to rectify the situation that cannot be allowed to continue until trial.[^30]

[110] The status quo in the present case shifted as the children’s primary residence alternated between their mother from the time the parties separated in March 2013, until the children were returned to the matrimonial home in August 2013, where they resided primarily with their father, and since December 31, 2014, when their mother was granted temporary custody but they were left in the care of their father on weekdays in order to maintain the continuity of their schooling.

[111] While the court endeavoured, in its order dated December 31, 2014, to maintain the status quo, as much as possible, by avoiding a precipitous change in the children’s schools, Dr. Kanagaratnam’s clinical investigation has disclosed that the children’s best interests require that the children now be relocated in their schools in order to be closer to their mother’s residence. The dominant influence that the status quo has enabled Mr. Ganie to exercise over them has prolonged the adverse effects that I described in my earlier reasons, and that Dr. Kanagaratnam has confirmed by her own observations and by the information she received from collateral sources.

[112] While the transfer of the older children to schools nearer their mother’s home, and the adjusting of the parenting schedule accordingly, will entail some disruption to the children’s lives, there is evidence to support the conclusion that these changes will not be altogether unwelcome to the children. I reiterate, in this context, the evidence of Mr. Ganie’s mother regarding the children’s demeanour when they return from their mother’s home to their father’s home:

When they come back from their visits with the Applicant, the children do not want to listen. It sometimes takes a day and a half for the children to return to their normal behaviours. Upon the children’s return from the Applicant they are not happy, would sit by themselves, refuse to eat or anything like that. They become very quiet and withdrawn until they get settled back into their routines. [Emphasis added.]

CONCLUSION AND ORDER

[113] Based on the foregoing, it is ordered that:

1. Ms. Ganie shall continue to have temporary sole custody of the children (David Ganie, born February 21, 2008, Aliza Ganie, born May 28, 2009, Alisa Ganie, born August 30, 2011, and Arick Barakat, born June 19, 2014, collectively “the children”), subject to the provisions that follow.

2. With effect immediately, the children shall, pending the trial of this proceeding, be in the care of the parties in accordance with the following schedule:

(a) Mr. Ganie shall exercise access to the three older children each Wednesday, from the end of school, or from 4:30 p.m. if it is not a school day, until 8 p.m., when he shall drop-off the children at Ms. Ganie’s residence.

(b) Mr. Ganie shall exercise access to the three older children on alternate weekends beginning October 16, 2015, from Friday (or, if Friday is a holiday, then Thursday), until Sunday evening at 7 p.m., when he shall drop-off the children at Ms. Ganie’s residence.

(c) Mr. Ganie shall exercise access to Arick on Tuesdays and Thursdays, beginning Thursday, October 15, 2015, from 4:30 p.m. to 7:30 p.m.

(d) Mr. Ganie shall, additionally, exercise access to Arick on the same alternate weekends that he spends with the three older children, on Saturday from 10 a.m. to 3:00 p.m., when he shall drop-off Arick at Ms. Ganie’s residence.

(e) When Arick is three years of age, and according to his development needs at the time, his access shall be expanded to each Tuesday at 4:30 p.m. to Wednesday at 8:30 a.m., and on alternate weekends from Saturday at 10 a.m. to Sunday at 3:00 p.m. on those days when he would otherwise be exercising access to Arick pursuant to paragraphs 2 (c) and (d) above.

3. The current arrangement with Ms. Leung dropping off and picking up the children shall be discontinued. Transfers shall instead be made through a neutral third party that both parents agree upon. If no neutral third party is agreed upon, Mr. Ganie may make the pick-ups and drop-offs, provided that the exchanges shall take place at the children’s schools or, when there is no school, at a public location to be agreed upon by the parties. If they are unable to agree, they may apply to me for directions. The parties shall not communicate at the time of exchange, other than as necessary to effect the exchange, and in a respectful manner.

4. The children shall be registered in a school close to their primary residence, which shall be with Ms. Ganie. Mr. Ganie shall have access to all important school-related information and progress regarding the children, which he can obtain directly from the school.

5. Aliza Ariel Ganie shall be called exclusively “Aliza” and Arick shall be called exclusively “Arick” in both of the parents’ homes, and in their respective neighbourhoods, at the children’s schools, and by professionals who have dealings with them.

6. Neither party shall involve the children in adult issues that are between the applicant and the respondent. Neither shall disparage the other in the presence of the children.

7. Neither party shall employ, or permit to be employed, any physical discipline on any of the children.

8. The children shall sleep separate from Mr. Ganie while residing with him. The children shall not reside in Mr. Ganie’s home except when Mr. Ganie’s aunt is present, and unless she first provides a written acknowledgment that she has read these reasons in their entirety, and a written undertaking to advise Ms. Ganie in writing if the need arises for her to be absent from the home overnight, or if she observes any inappropriate behavior on the part of Mr. Ganie, including nudity in the presence of the children.

9. The parties shall continue to observe the special access days with regard to the children as set out in my order dated December 31, 2014, during which the regular access schedule set out elsewhere in this Order shall be temporarily suspended:

a. Father’s Day - If the children are not otherwise with the father on this weekend, they shall reside with him on Father’s Day, from Sunday at 9:30 a.m. until their return to school on Monday.

b. Mother’s Day - If the children are not otherwise with the mother on this weekend, they shall reside with her on Mother’s Day from 9:30 a.m. until their return to school on Monday.

c. Valentine’s Day – the children shall spend Valentine’s Day with the parent with whom they normally spend that day of the week based on the terms of this order dealing with regular (non-vacation) access.

d. March break – Beginning in 2016, and in even-numbered years thereafter, from the close of school to the resumption of school, the children shall spend with the father. Beginning in 2017, and in odd-numbered years thereafter, from the close of school to the resumption of school, the children shall spend with the mother.

e. Easter –

i. In even-numbered years beginning in 2016, the children shall reside with the mother from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with the father from Saturday at 10:00 a.m. to the resumption of school.

ii. In odd-numbered years beginning in 2017, the children shall reside with the father from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with mother from Saturday at 10:00 a.m. to the resumption of school.

f. Summer Vacation – Each of the father and the mother shall have an uninterrupted vacation time of two weeks’ duration with the children, during which the other parent’s mid-week access shall be suspended, resuming upon the end of the two week vacation period. The parent having first choice of the vacation period shall advise the other parent by May 15^th of the chosen vacation weeks with the children. The other parent shall advise the first by May 31^st of the chosen weeks. The mother shall have first choice in even-numbered years, beginning in 2016. The father shall have first choice in odd-numbered years, beginning in 2017.

g. Canada Day – The children shall spend Canada day with the parent with whom they normally spend that day of the week based on the above-mentioned provisions of this order, unless the day falls on the vacation access of a parent, in which case they shall spend Canada day with the parent with whom they are scheduled to spend vacation at that time based on the provisions of this order.

h. Thanksgiving weekend – In even-numbered years, beginning in 2016, the children shall spend it with the father. In odd-numbered years, beginning in 2017, the children shall spend this holiday with the mother.

i. Christmas – Beginning in 2015, and in odd-numbered years thereafter, the children shall reside with the mother from the beginning of the school holiday until December 25^th at 12:00 noon and with the father from December 25^th at 12:00 noon until the December 29^th at noon and from the mother from December 29^th at noon until the resumption of school. Beginning in 2016, and in even-numbered years thereafter, the schedule shall be reversed, and the children shall reside with the father from the beginning of the school holiday until December 25^th at 12:00 noon, etc.

j. Parties’ birthdays – The children shall spend at least two hours with each parent on their parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.

10. When the children are in the care of one of their parents, and that parent is unable to care for them directly, it shall be the responsibility of that parent to make arrangements for the children’s care. That parent may ask the other parent to assume care, but shall be under no obligation to do so before engaging other family members, unpaid volunteers, or commercial care-givers to care for the children.

11. Either parent shall be entitled to travel with the children outside of Canada during periods when they are in that parent’s care, provided that parent shall provide an itinerary, with flight numbers and the places of lodging and telephone numbers where he/she and the children may be contacted during any absence from Canada at least 30 days in advance. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.

12. The mother shall hold the children’s birth certificate, Social Insurance card, and travel documents but shall release them to the father when he requires them for travel in accordance with this Order. She shall also release these documents, upon the father’s request, for occasional periods not to exceed 72 hours.

13. The children’s OHIP card shall travel with them when the children’s residence changes from the home of one parent to that of the other.

14. Each of the parties shall have the right to communicate with the children at any reasonable time by telephone and e-mail, and each parent shall keep the other informed of the children’s e-mail address and telephone number, as well as their residential address, whenever any one of these change.

15. Neither party shall arrange new extra-curricular activities (that is, activities in which they are not registered at the date when this Order is issued) for the children, or attendance at special events, such as the birthday party of a class-mate, at a time when the children are to be in the care of the other parent pursuant to this Order. The father shall be responsible for transporting the children to and from activities until the mother has secured her driver’s licence, whereupon each parent shall be responsible for transporting the children to and from the activities that fall on days when the children are in that parent’s care.

16. When special opportunities for the children arise, such as a school trip or athletic tournament scheduled by a third party service provider, or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, each party shall co-operate in making reasonable alternative arrangements so that the interests of the children prevail, and each party shall give his/her own needs and convenience only secondary importance.

17. Both the father and the mother shall have the right to information regarding the children’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding the children’s health and general well-being. Each of the parties may prepare a direction and a consent to Disclose Personal Health Information, pursuant to the PHIPA, authorizing him/herself to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten days of receipt.

18. Beginning on the children’s tenth birthdays, each of the parents shall have the right to communicate with the children and the children shall have the right to communicate with either parent in private by e-mail or Skype at any reasonable time when they are residing with the other parent, and each parent shall, by the children’s tenth birthday, equip his/her home with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of the children’s e-mail address and telephone number whenever they change.

19. All police forces in the Province of Ontario and Canada shall, pursuant to s. 36 of the Children’s Law Reform Act,

a. Enforce the provisions of this order;

b. Locate and apprehend the children, or any of them, and deliver them into the care of the person whom this order authorize to have responsibility for them at the time;

c. Enter and search any place, at any time of day or night, where the said police have reasonable grounds to believe the children may be, with such assistance and such force as are reasonable in the circumstances.

This paragraph shall continue in force until the oldest child’s sixteenth birthday, that is, until February 21, 2024.

20. There shall be no change in the children’s school without the advance written consent of both parents or order of the court.

21. Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications and it shall be the responsibility of that parent to check his/her e-mail on a daily basis.

22. Ms. Ganie has leave to move for child support and a contribution to any special and extraordinary expenses that she incurs in connection with the care of the children.

23. The balance of the motions, with regard to a proposed change in special access, are adjourned, with leave to either party or to the Office of the Children’s Lawyer, to return it on a long motion day.

24. If the parties are unable to agree on the costs of this motion, they may deliver written submissions, not exceeding four pages in length, plus a Costs Outline. Ms. Ganie shall deliver her submissions by October 25, 2015, and Mr. Ganie shall deliver his submissions by October 31, 2015.

Price J.

Released: October 14, 2015

[^1]: Ceho v. Ceho, 2015 ONSC 5285, at para. 43.

[^2]: Genovesi v. Genovesi (1992), 1992 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Gen. Div.).

[^3]: Mayer v. Mayer (2002), 2002 2753 (ON SC), 34 R.F.L. (5th) 69 (Ont. S.C.), at para. 26.

[^4]: Kirwan v. Kirwan, 2014 ONSC 3308.

[^5]: Strobridge v. Strobridge (1994), 1994 875 (ON CA), 18 O.R. (3d) 753 (C.A.).

[^6]: Behrens v. Stoodley (1999), 1999 1626 (ON CA), 3 R.F.L. (5th) 8 (C.A.), at para. 40.

[^7]: Tacit v. Drost (1998), 43 R.F.L. (4th) 242 (Ont. Gen. Div.), at para. 30; Woodhouse v. Woodhouse, 1996 902 (ON CA), 29 O.R. (3d) 417 (C.A.), at p. 435 .

[^8]: Van Bilsen v. Van Bilsen (2003), 2003 2012 (ON SC), 48 R.F.L. (5th) 448 (Ont. S.C.), at para. 15.

[^9]: Children’s Aid Society of Toronto v. B.B., 2012 646 (ONCJ), per Sherr J. , para. 56

[^10]: Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999), at p. 297.

[^11]: Labourers’ International Union of North America v. Gata General Contractors Ltd., 2010 30962 (ON LRB).

[^12]: Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670.

[^13]: Kerwood v. Kerwood (1999), 1999 6254 (BC SC), 48 R.F.L. (4th) 127 (B.C.C.A); Stones v. Stones, 2004 BCCA 99.

[^14]: Ceho v. Ceho, 2015 ONSC 5285.

[^15]: Courts of Justice Act, R.S.O. 1990, c. C.43.

[^16]: Marcy v. Belmore, 2012 ONSC 4696.

[^17]: Newbury v. Newbury, 2012 ABCA 335, at paras. 10-11

[^18]: Persaud v. Hobbs, 2014 ONSC 4286

[^19]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.

[^20]: S.(B.L.S.) v. S. (T.M.), 2003 ABQB 91.

[^21]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, s. 24.

[^22]: Templeman v. Templeman (1990), 1990 12246 (ON SC), 29 R.F.L. (3d) 71 (Ont. Distr. Ct.); Parkes v. Zayachkowski, 2005 ONCJ 106; F. v. K., 2004 ONCJ 138, at para. 20; R. v. R., 2003 BCCA 135, at para. 6; Felix v. Fratpietro (2001), 2001 37828 (ON SC), 13 R.F.L. (5th) 54 (Ont. S.C.), at paras. 19-22. This principle established in the common law is confirmed by the statutory regime codified in the Change of Name Act, R.S.O. 1990, c. C.7.

[^23]: Nloga v Ndjouga, 2015 ONSC 5925.

[^24]: Ibid, at para. 13.

[^25]: Ibid, at paras. 169-171.

[^26]: Parkes v. Zayachkowski, 2005 ONCJ 106.

[^27]: F.I. v. S.P.P., 2010 ONCJ 473, at para. 13.

[^28]: Grant v. Turgeon (2000),2000 22565 (ON SC), 5 R.F.L. (5th) 326; Dyment v. Dyment, 1969 438 (ON CA), [1969] 2 O.R. 748 (C.A.).

[^29]: Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.), at para. 1.

[^30]: Genovesi v. Genovesi (1992), 1992 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Gen. Div.).