REASONS FOR JUDGMENT

Madam Justice Chiappetta

Overview

[1] The parties were married on March 21, 2008. They have one child, M.N., born […], 2012. The parties differ on the date of separation, although they both agree that M.N. was two years old at the time of separation. On June 1, 2015, Justice Kiteley accepted counsels’ joint submission and set a trial date on the parenting and mobility issues only. The issues before the court at trial were therefore so limited.

[2] The parties decided together to have a child. They now come before the court as parents, only a few years later, and ask the court to decide what is in the best interests of their daughter. The task is not without its challenges. It is infinitely more natural for the parents of the child to make such an assessment, having had the benefit of creating and sharing in the child’s life. In a case such as this, however, where the parents cannot seem to separate their best interests from those of their daughter’s, it is the court that is left to make the difficult assessment of M.N.’s best interests without having met M.N. or observed her with her parents. Rather, the decision which will so significantly affect the lives of so many people is to be made upon careful consideration of the evidence before the court.

[3] The Applicant seeks sole custody of M.N., that she may be permitted to move with M.N. to San Francisco, and that the Respondent exercise generous access. The Respondent requests that there be no order for custody, that they have shared decision making in the parallel parenting mode, that they share parenting time equally, and that the court dismiss the Applicant’s claim to move to California.

[4] What is consistent throughout the evidentiary record is that M.N. is a smart, sweet and happy child who has a special loving bond with both her mother and her father. I have carefully considered the evidentiary record in the context of her best interests. The following decision is designed to insulate M.N., as best is possible, from the conflict between her parents and give her the freedom to continue to enjoy the special bond she shares with both of her parents while she grows into a functional young adult.

Procedural Background

[5] The Applicant initiated these proceedings in May 2014. The procedural history is relevant to the issues before the court and is therefore set out in chronological order below:

By notice of motion dated May 5, 2014, the Applicant, on an ex parte motion, and represented by counsel, asked the court for the following relief: leave to bring the motion on an urgent basis before a case conference, temporary sole custody, temporary access for the Respondent, that the Respondent deposit his passports and not be entitled to apply for a passport for the child, the non-removal of the child, a communication bar to prevent the Respondent from speaking negatively about the Applicant to the child and to restrict all communication to email only, that the Respondent maintain a life insurance policy to secure support, that a restraining order be put in place, that the Respondent maintain the Applicant and child on extended health care benefits, and other relief relating to the matrimonial home and the non-depletion and preservation of assets. On May 6, 2014, Justice Paisley ordered that the motion proceed on an urgent basis without notice to the Respondent and before a case conference, that the Applicant have temporary sole custody of the child, that on a temporary basis the Respondent may not remove the child from York or Toronto, that the parties only communicate via email, and that the Respondent must preserve all assets. Justice Paisley also imposed a restraining order on the Respondent, preventing him from communicating with the Applicant, except through email, and from coming within 100 metres of the Applicant and child, other than for access, and adjourned the motion to May 8, 2014, to speak to the terms of the order.
By notice of motion dated May 8, 2014, the Respondent, with notice, and represented by counsel, asked the court to hear his motion on an emergency basis prior to a case conference, that the matter be transferred to the Newmarket Court, that the court dismiss the Applicant’s motion returnable that same day, that the child be returned to the Respondent, that the restraining order of Justice Paisley be set aside, and that the child not be removed from York Region. On May 8, 2014, Justice Paisley directed that in light of the conflicting allegations relating to the safety and security of the child, the Registrar should contact the Children’s Aid Societies (CAS’s) of Toronto and Newmarket, that the issue of jurisdiction may depend on which CAS decides to intervene, that the child remain in the temporary custody of the mother, and Justice Paisley adjourned the motion to May 13 to permit the parties to file additional materials.
By notice of motion dated May 12, 2014, both parties brought motions, represented by counsel. The Applicant requested the same relief as her original without notice motion, and further that the Respondent not be granted an audience on the financial issues, and that the Respondent have a specified access schedule in the nanny’s presence. The Respondent requested that the child be returned to him or alternatively that they have a 50/50 shared residency arrangement, that they have joint custody or alternatively that he have sole custody, that the restraining order be replaced with a mutual non-harassment order, that the Applicant return money to him, that neither party remove the child from York Region or the GTA, that the child’s passports be deposited with counsel, that he have temporary exclusive possession of the matrimonial home, that neither party remove items from the matrimonial home, and that the Applicant return his Canadian passport. The motion was heard on May 13, 2014. On May 20, 2014, Justice Backhouse released her reasons declining to transfer the proceedings to Newmarket. She observed that the case was “already out of control with multiple conflicting affidavits” and that “before an informed decision can be reached on custody and access,” the case required a report from an experienced assessor. She ordered that the parties agree on a custody and access assessor within a week. Justice Backhouse observed that the Respondent consented to an order that the doberman dogs be removed from the matrimonial home and she ordered that the Respondent have access for four hours twice a week and one overnight every weekend, with the child’s nanny accompanying the child during the access visits. Further, Justice Backhouse declined to restrict the Applicant’s travel to the U.S. with the child to visit her family, but restricted the Respondent’s travel to the U.S. with the child, required that all bank accounts require the signature of both parties, and ordered the parties to agree on an equal division of household contents.
By notice of motion dated June 18, 2014, the Applicant, with notice, asked the court for the following relief: an order striking the pleadings of the Respondent due to his failure to comply with previous orders, that the court appoint a custody and access assessor from a list of four suggested assessors, relief relating to the sale of the matrimonial home and the distribution of its contents, and that all communication be limited to “Our Family Wizard.” The motion date was set for June 26, 2014.
By notice of motion dated June 23, 2014, the Respondent, with notice and represented by counsel, asked the court for the following relief: that the motion be heard urgently before a case conference, that the Respondent be allowed late filing, that the Applicant provide financial disclosure, that the matrimonial home be listed for sale, that the Applicant return the Respondent’s Canadian passport, that a custody assessor be appointed, that the child be enrolled at Montessori, and that the Applicant retrieve her personal belongings from the home.
The Respondent then brought a without notice motion on June 25, 2014, requesting a change in custody to temporary sole custody with the Respondent or alternatively temporary joint custody, that the child have her primary residence with the Respondent and access to the Applicant, that the child not be removed from Toronto or York and that her passports be deposited with counsel, which non-removal should be enforceable by the police. By order dated June 25, 2014, Justice Paisley dismissed the Respondent’s without notice motion and found that the fact that the Applicant was charged with assault was not a material change in circumstances, as the alleged facts relating to the assault were known to the court on the May 6th motion, and were not a sufficient reason to vary the decisions of Justice Backhouse or previous order of Justice Paisley. The motion on June 26, 2014 was adjourned on consent to July 10, 2014.
On July 10, 2014, the parties, represented by counsel, entered into Minutes of Settlement which were incorporated into a court order by Justice Stevenson on consent. The court ordered that the parties attend a case conference in August and address financial disclosure then, that Dr. Rachel Birnbaum conduct a parenting assessment, that the Applicant attend the matrimonial home to pick up her personal belongings, that the matrimonial home be listed for sale immediately on certain terms, that the Respondent may file his pleadings late, that the Respondent not communicate with the Applicant’s father, that the parties use “Our Family Wizard” to communicate about the child, that the Respondent begin paying child support, and other orders relating to the parties’ business and financial affairs.
By notice of motion on September 30, 2014, the Applicant requested that the court incorporate into an order the Minutes of Settlement agreed to by the parties, which varied the terms of the restraining order of Justice Paisley of May 6th by allowing the parties to be together for the purposes of attending jointly at mediation meetings. Justice Kiteley made such an order on the consent of the parties.
By notice of emergency motion dated November 5, 2014, the Respondent requested an order for the non-removal of the child from the GTA enforceable by the police, that the child’s passports be held by Respondent’s counsel, that access be unsupervised, that the restraining order be vacated, that the Respondent be allowed to question the Applicant about her travel intentions, that Dr. Morris be appointed as a custody assessor, and that solicitor-client privilege be lifted for the correspondence between the Applicant and her counsel on May 29, 2014.
By notice of motion dated November 6, 2014, the Applicant requested the following relief: that the Respondent not be granted an audience for failure to comply with past orders, that the restraining order be expanded to include the Applicant’s parents, that the Respondent have make-up access, that the Applicant be allowed to travel with the child, that someone else other than the nanny supervise access, that the Respondent cooperate in the custody and access assessment, that the consent of the Respondent on the sale of the matrimonial home be dispensed with, and that the Respondent and his counsel not use the Applicant’s documents and communication.
By order dated November 6, 2014, Justice Moore found that none of the relief sought by the Respondent should be considered on an emergency basis, and that further and better evidence of emergency circumstances are required before the court will re-visit the issue of limiting the Applicant’s travel rights. He directed the parties to obtain a date from the court office for a long motion.
By notice of emergency motion dated November 12, 2014, the Respondent, represented by counsel, requested that the supervisor for access be varied, that the child’s passports be held by counsel, and that an order specify that Ontario has sole jurisdiction. By notice of motion dated November 13, 2014, the Applicant requested that the Respondent not be granted an audience, and that the Respondent shall not be entitled to bring any further motions without leave.
By notice of motion of the Applicant on November 18, 2014, the Applicant requested case management, a long motion date, an order for questioning before a long motion, and a temporary order that Ontario has exclusive jurisdiction over custody and access of the child. The motion was heard by Justice Kiteley on November 27, 2014, and both parties were represented. Justice Kiteley adjourned the motion to December 9, 2014, and ordered that no other motions be served in the meantime. On December 9, 2014, a one-hour motion was heard. Counsel agreed that Ontario has exclusive jurisdiction, and agreed to schedule a long motion in March. Justice Kiteley ordered that she would case manage the file for motions, that she would hear a motion on temporary access and on a trip to California two days later, that other outstanding motions would be heard in March, in advance of which questioning would occur, and that Ontario has exclusive jurisdiction.
Justice Kiteley heard the motion on December 11, 2014. Both parties were represented by counsel. In her judgment released December 15, 2014, Justice Kiteley ordered that the Respondent shall have temporary access without supervision, that transitions will be supervised by the Respondent’s brother, and that the Applicant may take the child to California for a single visit. After providing oral reasons, counsel for both parties negotiated an access timetable consistent with her order.
The Respondent then brought another motion on December 18, 2014, asking for the Applicant to provide an updated itinerary with travel dates that comply with Justice Kiteley’s previous order, and orders relating to the return of documents and money. On December 19, 2014, Justice Kiteley adjourned the motion to December 23, 2014. On December 23, 2014, the parties arrived at a comprehensive resolution on some financial issues, agreed that the Respondent would sign the consent allowing the Applicant to travel with the child to California, and they to make up access time missed by the Respondent.
On April 6, 2015, the Respondent served a 14B motion requesting that his motion seeking a change in custody and access of the child be timetabled, and that the court rescind the restraining order. On April 10, 2015, the Applicant swore an affidavit in opposition to the motion. On April 28, 2015, Justice Kiteley noted that conflict had not dissipated, and that the assessment with Dr. Birnbaum had not happened but that the parties agreed that Ms. Vanbetlehem would be the assessor. Justice Kiteley declined to make the order for a timetable, and rather ordered a telephone case conference to include a status report on the section 30 assessment, and other procedural matters.
Subsequently, no further motions on the parenting matters were heard, but rather a number of case conferences were held, dealing mostly with establishing timetables and procedures relating to the section 30 assessment and the upcoming trial.

[6] There is no question that the Respondent ignored parts of the court orders of May 6, 2014, May 8, 2014, May 20, 2014 and July 10, 2014. He hired a private investigator to observe the Applicant and her home, sold most of the horses, changed the Applicant’s company password, denied her access to bank privileges, failed to maintain the payments on the matrimonial home and immediately list it for sale, failed to register for “Our Family Wizard” until December 2014, continued to communicate with the Applicant’s father, failed to execute the retainer presented by Dr. Birnbaum and announced the Applicant’s departure from the company with a corporate notice she did not approve. The question is whether there are consequences to such conduct in the context of considering M.N.’s best interests. In other words, is the Respondent’s conduct in failing to abide by previous court orders otherwise relevant to his ability to act as a parent? See s. 16(9) of the Divorce Act, R.S.C., 1985, c. 3; and s. 24(3)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the CLRA).

[7] The Applicant argues that the Respondent’s conduct is relevant to his ability to parent. She submits that the Respondent’s failure to comply with the terms of the orders speaks to a larger issue that affects his parenting, which is that he always needs to be in control and does not submit to anyone else’s authority. I do not agree that the Respondent’s non-compliance sufficiently demonstrates such a conclusion.

[8] This is not to suggest that the conduct is properly excused. As has been said many times, court orders are not suggestions. They are mandatory. Court orders must be obeyed. The Respondent testified to what he felt were reasonable explanations for not complying with the court orders, as noted. I do not accept his explanations. The Respondent must have either appealed the respective order or moved to vary it. It was not an option for him to simply disregard orders: see Taylor v. Taylor, 2005 CanLII 63820 (ON SC), 2005 CarswellOnt 5264, at para. 3. His non-compliance is disrespectful to the court and unacceptable. The Family Law Rules, O.R. 114/99 (the Rules) provide for consequences for such non-compliance. The Applicant exercised her right under at Rule 1(8) of the Rules by her Motion commenced by Notice of Motion dated November 6, 2014 wherein she asked the court for an order that the Respondent not be granted an audience for his failure to comply with past court orders. The Respondent’s non-compliance may also be relevant to the costs of this proceeding, considering Rule 24 of the Rules. It is not relevant in my view, however, to the Respondent’s ability to act as a parent. Nor is it in M.N.’s best interests to deprive her of a meaningful relationship with her father because of his failure to abide by past court orders.

[9] The issues for trial are as follows. All related issues will be addressed under Disposition.

i. Custody of M.N.. The Applicant is seeking an order for sole custody of M.N.. The Respondent asks that there be no order for custody.

ii. Decision Making. The Applicant is seeking an order that with the exception of any emergency medical or educational decisions, the Applicant shall decide all major medical and educational decisions with respect to M.N.. She is also seeking an order that M.N. be raised in the Jewish faith to the exclusion of all other faiths. The Respondent seeks an order for shared decision making authority in the parallel parenting mode such that the Respondent shall have final decision making authority related to M.N.’s education and activities and the Applicant shall have final decision making authority related to M.N.’s religious upbringing and major medical decisions.

iii. Mobility: Primary and Habitual Residence of M.N.. The Applicant is seeking an order that M.N. have her primary and habitual residence with her in California. The Respondent asks that this claim be dismissed.

iv. Parenting Time. If the Applicant is not permitted to move with M.N. to San Francisco, the Applicant accepts the parenting schedule as proposed by the assessor and asks only that her travel time to San Francisco be less frequent for longer durations. The Respondent is proposing equal parenting time.

v. Psychiatric Assessment. The Applicant is seeking an order that the Respondent be psychiatrically assessed. She agrees to continue to attend for individual therapy.

vi. Communication. The Applicant is seeking an order to communicate with the Respondent in writing limited to twice a week via email, “Our Family Wizard” or text. She is also seeking that Facetime be used to maintain daily contact with both parties when M.N. is not with either of them.

vii. Legal Documents. The Applicant is seeking an order that she be the holder of all of M.N.’s legal documents and shall be given the right to apply or re-apply for same without the Respondent’s consent.

viii. Iranian Passport. The Applicant is seeking an order that the Respondent not be permitted to apply for an Iranian passport for himself and/or M.N..

ix. Non-Removal. The Respondent is seeking an order for the non-removal of the child from Ontario except for the purpose of travel with prior written consent of the Respondent.

x. Delegation. The Respondent is seeking an order preventing the Applicant from delegation of parenting to another individual unless the parents agree or by further order of this court.

xi. Publish information. The Applicant is seeking an order that the Respondent be enjoined from creating and/or publishing or releasing a story or book or information or documentation in any medium related to the parties’ separation.

xii. Divorce.

The Applicant

[10] The Applicant’s narrative is that she fell madly in love with the Respondent shortly after meeting him. She chose to move to Toronto to be with him, instead of accepting a professional opportunity with a company based out of New York City. She believed she was marrying a well-established businessman. She soon learned that the Respondent was a controlling, abusive man with financial problems, who isolated her from her family and friends and demanded full compliance from her to his marital directives. When not obeyed he would threaten and intimidate her.

[11] Unless otherwise stated, the following represents the testimony of the Applicant.

[12] The Applicant was born in the Ukraine on […], 1981. She immigrated to San Francisco with her parents and grandparents when she was eight years old. She was raised in the Jewish faith and has no siblings. She is both an American and Canadian citizen.

[13] The Applicant remained in San Francisco living at her parents’ home through to the end of her undergraduate degree in 2002. She has not lived in San Francisco since 2002. At twenty-one years old she moved to New York City to work in private equity with Morgan Stanley, where she remained for three-and-a-half years. She left Morgan Stanley to attend Harvard University in Boston, where she completed a two-year MBA program at the age of twenty-six.

[14] The Applicant met the Respondent during her second year of the MBA program. The Respondent saw her photo at the home of a mutual friend in Toronto and asked that he be permitted to call her. Permission was granted. The Respondent called the Applicant and after talking on the phone the parties met for the first time in March 2007. Less than three months later, after an unofficial marriage proposal, the Applicant moved to Toronto to be with the Respondent, foregoing a job offer with a real estate firm based out of New York, but working on a two-year development project in San Francisco.

[15] The Respondent represented himself as having a home and a stable business in Toronto. He represented himself as having a base in Toronto from which he and the Applicant could start their life from. The Applicant had only one acquaintance in Toronto but she was not permitted by the Respondent to see her acquaintance as she had had a prior intimate relationship with him. She had no close friends in Toronto and she was instructed by the Respondent not to share anything about their family with anyone.

[16] In Toronto the parties lived in a home in Richmond Hill. The Applicant soon learned that the Respondent had financial difficulties and that his company was not performing well.

[17] In November 2007, the Applicant secured employment as an associate performing private equity functions with the Canada Pension Plan Investment Fund. Her office was located in downtown Toronto. She found the commute from Richmond Hill difficult.

[18] In March 2008, the parties were married in Miami. They had spent a great deal of time in Miami where her parents have a vacation home and Miami represented a good option for the location of the wedding as many family members lived in the United States and travelled to attend the wedding.

[19] In 2009, the parties moved to a home outside of Toronto in a rural area called King City. The King City home was on an isolated 10-acre property far from the Applicant’s place of employment. The Applicant would have preferred the parties to rent an apartment in downtown Toronto but the Respondent refused, saying that renting was beneath him. The Applicant felt isolated in King City as there were no close neighbours and no sense of community.

[20] The Applicant’s mother, G.K., testified on her behalf. She stated that after the move to King City the Applicant became much less open with her. Their conversations became superficial whereas previously the Applicant would share details of her life with her mother.

[21] The Applicant’s friend, N.M., also testified on her behalf. She stated that she has been the Applicant’s friend for approximately 17 years. Ms. N.M. and her husband visited the parties at their King City home. Ms. N.M. testified that she was struck by how far the home was from the city of Toronto, how isolated it was and how large and intimidating the parties’ dobermans were. Her evidence is that she asked the Respondent to put the dogs in the basement during the course of their two-day visit and the Respondent accommodated this request.

[22] Ms. N.M. testified that her relationship with the Applicant changed after her marriage to the Respondent. She stated that the Applicant stopped confiding in her as she had done in the past and instead their conversations were more superficial.

[23] In May 2010, the Applicant was laid off from her employment. The commute from King City contributed to this. The parties had established the W.R.N. Family Trust, through which an umbrella company owned the mortgage lending company the Respondent operated, F[…] Work (the company). After her lay off, the Applicant worked full time with the company until the parties’ separation. Her main role was business development: to market the business and recruit investors.

[24] The parties intended to move to the United States. The Applicant is a US citizen. She wanted to return to work with her family. The Respondent applied to both law school and business school in the US. In February 2010, the Respondent made an application for an immigrant visa and alien registration in the US advising therein that Miami was the intended permanent residency. The process led to an interview at the US Consulate General in Montreal in November 2013. At the interview the parties advised that their plans had changed and San Francisco was now the intended permanent residency. The Consulate required further information. The Respondent thought it best in January 2014 to get an immigration lawyer involved on the parties’ behalf. However the parties never retained an immigration lawyer and the application is no longer pending.

[25] In […] 2012, M.N. was born. Mrs. J.K. stated that she was in Toronto for the birth of M.N. along with her husband. Within a few days after the Applicant and M.N. returned to the King City home from the hospital, she had a conversation with the Respondent she understood to mean that she was not welcome there as the Applicant did not need anyone, in the Respondent’s view, to control his family’s lives. For the sake of peace in her daughter’s home, Mrs. J.K. testified, she left the King City home and did not stay to assist her daughter with M.N. as planned.

[26] In December 2012, the Respondent sent the Applicant an email stating that his most important responsibility is to run their family. He advised her that unless she was prepared to fix the issues he listed he was going to dissolve the marriage immediately. He listed twelve issues, instructing the Applicant of her obligations and restrictions solely based on his wants and needs. The emails reads:

Any travel from now on involving you or M.N. has to be consulted with me prior to making any arrangement and if I said no, that means no and no drama.
Anything involving M.N. has to be consulted with me, in advance of making any decision or purchase, big or small no matter what.
We do not accept any items from your parents (your mom) other than normal one item annual gift for ourselves or particularly M.N. as well.
I have no issue with you having your relationship with your mother but if I see any influence of her in our family (I know the difference) then I will cut her off forever and if you do not honor that cut off I will end this marriage.
You will bring M.N. back home by latest this week-end so we can have New Year all together. I won’t miss my daughter’s first New Year.
You will right away to start a serious fitness and exercise routine on everyday basis to lose weight and stay fit and keep proper diet.
If you ever again yell, scream or talk to me even one word rude or in inappropriate language, and I don’t care what is your excuse then it is over.
Our vacation plans would not have anything to do with either going to your parents or being mixed with them whatsoever. (indeed this is the reason I don’t vacation anymore).
You will arrange one night a week for us at home to have dinner and family night and one night a week to go out every week. You will also arrange for us to go for a vacation even if it is for 2 days every quarter starting 2013.

[27] The Respondent concluded the email by writing, “J.K. I am not writing this email to discuss anything or negotiate and have any 2 hours conversation. Indeed I think not much expectations but nonnegotiable any way. Simply just tell me if you are in agreement with this and will follow, yes or no.”

[28] The Applicant’s parents assisted the parties financially. Mrs. J.K. testified that they invested in the company although she was not able to advise of the extent of the investment as her husband handles all of the finances. She stated however that her husband bailed out the Respondent on one occasion wherein he asked for financial assistance stating that he was in tremendous danger and that he owed people a tremendous amount of money.

[29] The Respondent is an animal lover. During the marriage he purchased almost 40 horses. The Respondent first housed them in a rented barn with hired staff. For financial reasons however, he moved them to the King City home and cared for them himself. After separation most of the horses were sold at an auction. A lot of money from the company was diverted to care for the horses.

[30] The Respondent also purchased a doberman pinscher about a year into the marriage and a second one a year later. The two dogs fought aggressively and consistently. They would need to be separated or they would continue to bite each other, tearing one another’s skin causing bleeding.

[31] The fighting by the dogs stopped between February 2012 and October 2013. In October 2013, the Applicant was alone with M.N. and the dogs. The dogs fought. The Applicant had to call the Respondent to come home to separate the dogs. She was scared for M.N.’s safety.

[32] Emily Roorda testified on behalf of the Applicant. Ms. Roorda stated that she is a horse riding instructor and that she met the parties in 2008 when she boarded some of their horses on a farm she owned with her ex-husband in King City. She attended at the parties’ King City home on a few occasions after the parties purchased the dobermans and before M.N. was born. Ms. Roorda testified that she knew the Respondent as a client and that she considers the Applicant a friend. She described the Respondent as a controlling and arrogant person whom she does not like, while she described the Applicant as a sweet, intelligent women, stating that she never understood how they were together as a couple.

[33] Ms. Roorda testified that she was with the Respondent when he received a call from the Applicant in October 2013 to come home because the dogs were fighting. She stated that upon receiving the call the Respondent returned home quickly, ran into the house for 10 minutes and returned to the car covered in blood. Ms. Roorda described the dogs as intimidating and untrained and that she was leery of them around her daughter when her daughter was younger. She described her counsel to the Applicant to leave the house with M.N. when the dogs fought and to let the dogs kill each other.

[34] In January 2014, the Applicant experienced another incident of the dogs fighting, with M.N.’s safety at risk. She left the King City home with M.N. to stay with the Respondent’s brother A.N. (A.N.). Mrs. J.K. testified that the Applicant called her on her way to Ali’s home to say that she did not feel safe in the King City home because of the fighting dogs. Mrs. J.K. stated that she called A.N. and requested that he allow M.N. and the Applicant to stay with him given the circumstances. The Applicant and M.N. were permitted to stay with A.N..

[35] The Respondent attended his brother’s home at 5:30am the next morning, barged into the room wherein the Applicant was sleeping, grabbed her blackberry and started to run away with it. The police were called. They were interviewing the parties when the Respondent suffered an anxiety attack and was taken to the hospital.

[36] The Respondent’s anxiety attacks began around the end of 2012. He collapsed in the waiting room of a hospital. Both his father and his brother A.N. were present. The Respondent was hospitalized at that time but the doctors were unable to find a physical reason for his symptoms. Rather the doctors recommended a psychiatric consultation. The Respondent did not undergo such a consultation.

[37] In terms of her blackberry, the Applicant believes that the Respondent took it that early morning in January 2014 and used it to access her emails as he knew information that he could only have ascertained by accessing her emails. By correspondence dated November 3, 2014, the Respondent’s previous counsel, Reesa Heft, advised the Applicant’s counsel that:

my client has informed me that he inadvertently came into possession of the cell phone that your client has alleged to the police that my client had stolen from her after she threw it at him at my client’s brother’s home in January 2014….my client powered up the phone and it was at this time that he ascertained that this was your client’s “stolen” phone which she had obviously hidden in the house. In addition, my client gained access to the emails contained therein as the cell phone had no password.

[38] The police alerted the CAS in January 2014, upon the incident described above. The CAS interviewed the parties in early February 2014 and the file was closed shortly thereafter.

[39] The Applicant returned to the King City home with M.N. after the January 2014 incident at Ali’s house because by email dated January 22, 2014, the Respondent agreed to leave the dogs in the basement during regular daily activities of M.N.. In early April 2014, however, as stated in an email from the Applicant to the Respondent on April 7, 2014, the Applicant returned home around 8pm to find M.N. at home with the dogs in her presence. The next day the house was filled with blood from their fighting and M.N. was terrified by the horrible noises.

[40] Shortly thereafter, the Applicant approached the Respondent about selling the King City home due to their financial pressures. He began yelling at her. She recorded the conversation on her phone. He noticed she was recording it and lunged at her to grab the phone. She left the home, rented a car and began searching for an apartment. She returned later that night. In June 2014, the Applicant was charged as a result of the incident in April 2014. The charges were dropped in October 2014.

[41] The Applicant left the matrimonial home on May 6, 2014 with M.N.. On that day, she sold a mortgage the company owned, valued at $250K. She withdrew $84K from the proceeds of sale. The Applicant stated that she did so to repay her parents the $60K they lent the company. The documentary evidence is such that the Applicant’s parents lent the company USD $60K on December 2, 2013, maturing February 1, 2014. The Applicant further felt it appropriate to pay herself $14K for her services to the company as at no time was she ever paid by the company for her work.

[42] On May 20, 2014, the Applicant confirmed that the Respondent would not send a draft communication on behalf of the company regarding her departure without the Applicant’s consent to its form and content. On August 20, 2014, the Applicant advised the Respondent that she objected to the draft as presented. On October 31, 2014, however, the communication went out to a mass distribution list including current and prospective clients of the company as well as her personal friends (the corporate notice). It read it part:

In May of this year J.K. absconded with our daughter for the second time without notice to me and on the same day she removed a significant amount of money from our corporate trust account without the required signatures or authorizations and has diverted the funds to an unknown account. As you would expect there are civil and criminal legal processes underway as a result.

We have become aware that J.K. could be approaching clients, investors and other third parties, possibly in association with an individual named D.Z.. You should be aware that these individuals are not licensed or registered to conduct financial transactions and appear not to be associated with any firm based on our communications with regulators. We would advise you to take caution on any potential offers or transactions.

[43] The corporate notice was clearly not approved by the Applicant. She was not copied on it. She learned about it from many of its recipients. The following is a summary of the evidence from some of those recipients.

[44] In her affidavit sworn February 26, 2016, Ms. Corrine Howling deposed that she and the Applicant attended Harvard Business School together and connected when the Applicant reached out to her through the Harvard Business School Club of Toronto forum, when Ms. Howling had made an inquiry. She deposed that she does not know the Respondent, or anyone associated with the company, that she is not a current or past customer of the company, and she never had any contact with the company until she received the corporate notice on October 31, 2014. She had only communicated with the Applicant though the Applicant’s personal email. Ms. Howling deposed that she deleted the email because there was no reason for her to receive it as she was not a client of the company, had no connection to the company, and believed it was in bad taste.

[45] In her affidavit sworn February 24, 2016, Ms. Sara Louise Curen deposed that she attended Harvard Business School in the same program that the Applicant did some years earlier. She stated that she and the Applicant communicated initially on October 23, 2014, in regard to the Harvard Business School Toronto Forum Group in which Ms. Curen had expressed an interest, that she had never communicated nor met the Applicant prior to this, and that she does not know the Respondent. She deposed that she never heard of (nor been a customer of) the company until she received the corporate notice on October 31, 2014, and that she had only communicated with the Applicant through her personal email. She deposed that after she received that corporate notice from the company she sent it to the Applicant to make her aware of it, and she has not had any further communication with the Applicant since.

[46] Ms. Roorda testified to receiving a copy of the corporate notice as well, and forwarding it to the Applicant.

[47] In her affidavit sworn February 27, 2016, Ms. Thorek deposed that she is a corporate recruiter specializing in the financial services industry, and that she first connected with the Applicant in or about 2007, when the Applicant moved to Toronto and became a candidate for employment through Thorek Scott & Partners. Ms. Thorek deposed that the Applicant looked to hire people through Thorek Scott & Partners while she was working at the company, and thus communicated with her via her corporate email. Ms. Thorek stated that she received the corporate notice via email from the company on October 31, 2014 at 10:31am. Upon receiving this email, she called the Applicant immediately, as she was very upset about receiving this email, and is aware that this notice was sent to many people in the financial services industry, including companies in which she is currently trying to place the Applicant for employment. She stated that the financial services industry values integrity and ethics, both of which were questioned in the corporate notice about the Applicant. Further, employers in the financial services industry typically do an internet search and run a credit, criminal and educational check on potential employees, and bad credit or any police records would likely result in a person not being hired.

[48] In terms of the effect of the corporate notice, the Applicant states, “he killed me with this.” In her view, the Respondent told people not to trust the Applicant. She works in financial services where trust by your clients is everything. It also referred to her boyfriend at the time and his supposed efforts to work with the Applicant and approach clients of the company.

[49] The Financial Services Commission of Ontario (FSCO) licenses mortgage brokers, agents, brokerages and administrators in Ontario. In December 2014, the Applicant confirmed with FSCO that there was no current investigation concerning her. She believes however that there was an investigation in May 2014 as a result of a complaint that was closed.

[50] In August 2014, the Applicant began dating D.Z.. They dated for almost a year. Mr. D.Z. testified on behalf of the Applicant. He stated that he had a relationship with the Applicant from August 2014 through to June 2015. He stated that M.N. called him Uncle D.Z. and that steps were taken to ensure that M.N. did not notice him sleeping over at the Applicant’s home. His evidence was that he is presently employed in the securities industry, was unemployed between September and November 2014 and that at no time has he ever been suspended from practicing in the industry with regulatory action.

[51] The Respondent learned about the relationship between the Applicant and Mr. D.Z. before the Applicant could tell him as he accessed her emails on her blackberry. He hired a private investigator to follow them and sent her an email documenting actions he could only have learned from the investigator, including that Mr. D.Z. smoked, drove her car and played guitar in her home. The Applicant and Mr. D.Z. caught the private investigator at her home one evening and confirmed the efforts of the Respondent to have them followed from the cameras installed by the Applicant at her home.

[52] In December 2014, the Applicant also took a personal hard drive from the company that had her personal photos and information on it. She found one company file on the hard drive, which she emailed to the Respondent immediately.

[53] Prior to her marriage, the Applicant was an outgoing gregarious person. She confided in her parents and her many friends. As a result of the Respondent’s efforts to control her and isolate her, she withdrew from her previous support system. Mrs. J.K. and Ms. N.M. testified to observing such a change in the Applicant. In October 2014, the Applicant called the intake department of the Jewish Family and Child agency (the agency) to book an abused woman assessment. She felt that she underwent verbal abuse during her relationship with the Respondent. The Applicant was assigned a counsellor and began attending regularly for counselling sessions. Her counsellor, Pam Calderone, testified on behalf of the Applicant.

[54] Ms. Calderone informed the court that she was without independent recollection of the specific sessions she had with the Applicant. She reviewed her notes from the respective sessions to refresh her memory. Ms. Calderone never met the Respondent and never met or observed M.N.. She testified that she began meeting with the Applicant on October 6, 2014. They met one-on-one and worked on establishing boundaries, maintaining self-worth and encouraging empowerment.

[55] Ms. Calderone responded to a number of questions posed to her by Ms. Jacqueline Vanbetlehem (the assessor), who conducted an assessment pursuant to section 30 of the CLRA, as ordered by Justice Backhouse on May 13, 2014 to determine the ability of each of the parents to meet M.N.’s needs. She indicated that the mother attended for counselling bi-weekly and at times monthly, that the goals were support and education around abuse and helping the mother deal with her feelings in a positive way. She reported that they also worked to help the mother build a sense of empowerment, support to make healthy choices, and to learn about healthy and unhealthy relationships. Ms. Calderone commented that the greatest concern is the Applicant’s continued involvement in the legal dispute. She also reiterated the Applicant’s desire to relocate to California with M.N. for familial support, to reduce her isolation, and to obtain financial stability.

[56] Both Mrs. J.K. and Ms. N.M. testified that since the separation the Applicant has gradually returned to her old self, gaining her confidence back and once again sharing substantive parts of her life with them. As of May 2015, the Applicant expressed to Ms. Calderone that fear is not something that she had felt in a long time as her current life felt safe.

[57] In terms of her overall credibility, in my view, the Applicant made fulsome attempts to be honest with the court. There were inconsistencies in her testimony but nothing so significant to render her testimony incredulous. For example, she testified that she has no friends in Toronto yet she had a friend testify who sleeps over at her house every weekend. She testified that her home in Toronto is furnished minimally while her mother testified that it is beautifully furnished. Further, and most significantly, the Applicant submitted false documents to the Unites States Consulate as part of her application for the Respondent’s green card prior to separation. While such conduct is not excused and recognized as deceptive, it does not warrant a complete denial of the Applicant’s credibility at trial. Finally, there is some concern that three of the Applicant’s witnesses stayed at the Applicant’s home at points throughout the trial, despite an order excluding witnesses from the courtroom. In my view, however, the issue is one more of perception as there was no indication of collusion or rehearsing of evidence.

The Respondent

[58] The Respondent’s narrative is that he too fell madly in love with the Applicant upon meeting her. The relationship changed however when the parties began experiencing financial stressors and the Applicant began working for the company, as she challenged his leadership. The relationship further deteriorated after the birth of M.N. when the Applicant withdrew from him as a wife and a friend and her parents became more and more intrusive in the life of his family. The Applicant left him twice without notice, taking M.N. with her. He was completely blind-sided, shocked and heartbroken.

[59] Unless otherwise stated, the following represents the testimony of the Respondent.

[60] The Respondent was born in Iran on […], 1975. He is the oldest of three brothers. His mother is a retired civil engineer and his father is a retired architect. His parents have been married for over 45 years.

[61] The Respondent came to Toronto for a visit in 1997 and decided to stay. He originally attempted to continue his medical school studies in Canada but his cousin introduced him to work in financial services. He enjoyed it and in 2003 he and two partners started the company now known as First Swiss.

[62] The Respondent describes meeting the Applicant in the same way as described above by the Applicant. He states that they were married in Miami because that is where the Applicant wanted to get married.

[63] In 2009 the parties moved to the King City home. It was a beautiful fully renovated 10-acre property. The parties had a housekeeper and hired assistance to care for the property.

[64] In 2010 the Applicant began working for the company. Her employment with CPP had terminated and she was feeling quite down. The Respondent wanted to do something for her, and so he offered her employment with the company. This was against the company’s nepotism policy but the Respondent was concerned about the Applicant’s spirits and wanted to assist in lifting them. The Applicant was excellent at her work and was an asset to the company. But her working with the company essentially cost the parties their marriage. They are both ambitious, strong characters, and they challenged each other’s leadership. The parties did not bring their issues at work home however, until after M.N. was born.

[65] The Respondent had a good relationship with the Applicant’s parents, particularly her father whom he assisted with serious business issues on two occasions. Over the years, however, her parents became more and more intrusive into their lives. For example, the Applicant’s mother purchased furniture for the King City home without consulting them. The Respondent told the Applicant that they had to manage this so they didn’t feel like her parents were controlling their family. At first, the Applicant agreed with him. After M.N. was born the dynamic changed; the Applicant was on her parents’ side and the conflict grew between the parties.

[66] M.N. was born on […], 2012. It was a dream come true for the Respondent. He always wanted to have a daughter. The Respondent chose the name M.N. upon the Applicant’s direction that she wanted to have a name that started with the letter M like that of her grandfather’s and she wanted something unique.

[67] Everyone was waiting for M.N.. The Applicant’s father came for her birth and left one to two days later. The Applicant’s mother came for the birth and stayed for two to three weeks afterwards. The Respondent’s brothers Y.N. and A.N. visited shortly after the birth, as well as Ali’s wife. The Respondent’s parents were both in Toronto for the birth. They live in Toronto, although they travel to Iran where they also own property. The Respondent’s mother has not left Toronto since the parties separated. His father has been in Iran since summer/fall 2015.

[68] The Respondent took a few weeks off of work after M.N.’s birth. The Applicant took a few months off. The parties then both worked long hours, with a nanny assisting the parties to permit their hours at work.

[69] The parties’ relationship changed completely after M.N. was born. The Applicant was no longer interested in being intimate with or close to the Respondent. The communication between the parties deteriorated. The text and email exchanges turned nasty. The Respondent did not properly express his feelings to the Applicant. It felt like the Applicant was no longer attracted to the Respondent and that she would intentionally try to cause disagreements between them. For example she complained that she could see the highway from the King City house and asked the Respondent to plant trees along the property line. The Respondent started to do so and the Applicant asked why he would spend money on such a project.

[70] In the summer of 2013 the parties began seeing a marriage counsellor, Susanne Dennison. The Respondent did not find her particularly useful and the counselling was terminated by the fall.

[71] In November 2013, the Applicant told the Respondent one evening that her father was coming to see them in the morning. Her father arrived to have a conversation about the Respondent’s relationship with the Applicant and M.N.. It seemed like her dad was there to express the Applicant’s feelings and that she had had many conversations about their relationship with her parents.

[72] The Respondent is an animal lover. The dobermans were purchased as described by the Applicant. He loves horses. He started riding them at four or five years old. Both he and the Applicant decided to set up a breeding program. The Respondent underestimated the effort, time and capital required to achieve the desired results. The parties started the horse breeding business at the wrong time. It was a failure. It caused them great financial stress and contributed to the separation. The Respondent’s brother Y.N. testified on his behalf. He believes it was the financial stressors that caused the parties to separate.

[73] M.N. is an animal lover as well. There were three dogs in her family at the time she was born: the two dobermans and a small dog named Poopie that the Respondent bought for the Applicant prior to marriage. The Respondent created a petting zoo for M.N. in the backyard of the King City home and she loved the horses.

[74] In January 2014, the Applicant advised the Respondent that she was going to pick up some take-out and asked the Respondent what he would like to eat. It was about 4:30pm and the Respondent advised her to pick him up whatever she was getting for herself. The Applicant left with M.N.. By 8:00pm they had yet to return. The Respondent called and texted the Applicant but there was no response. At around 9:00pm he received a call from his brother A.N.. He was shocked to learn that they were at Ali’s house. He felt embarrassed. He did not know why the Applicant would leave their home and take his child from him. He insisted they come back home. The Applicant informed the Respondent that he could see M.N. at Ali’s home.

[75] On his way to work two days later, around 8:00am, he stopped by Ali’s home. Both A.N. and his wife were awake and on the first floor of the house. He headed upstairs to find M.N.. At the top of the stairs was a room in which the Applicant was sitting on the bed. He asked the Applicant where M.N. was. The Applicant got upset, started screaming and throwing things at him. He was already embarrassed that this was all happening at his brother’s house so he turned to leave, to walk down the stairs. The Applicant grabbed him and asked him where her phone was. He continued down the stairs and was about to exit when A.N. informed him that the Applicant called the police. He waited for the police to arrive and spoke with them.

[76] He began to feel congested and short of breath. An ambulance was called and he was taken to the hospital and examined. The doctors found nothing physically wrong with him. He advised the doctors that he was under tremendous stress. He was referred to a psychiatric consultation and discharged. The release he signed at discharge indicates that a registered nurse explained to him that he should remain in hospital. The Respondent nonetheless chose to leave. A.N. drove him back to the house so he could retrieve his car. He went to work and noticed his bag was missing from his car. It was subsequently returned. The Respondent testified that he followed up with his family doctor. The assessor noted, however, that the Respondent made no follow-up with his family doctor. In her opinion, the Respondent was resistant to exploring the subject of his anxiety attacks with her although there were several episodes of anxiety recorded in his medical records. She perceived this as “another demonstration of his tendency toward active intentional deceit.”

[77] A.N. testified on behalf of the Applicant. He tells a different story concerning the night at his home in January 2014. His testimony is as follows. The Applicant arrived at around 6 to 7pm and asked if she and M.N. could stay as the dogs attacked M.N.. The Respondent called him to inquire if the Applicant and M.N. were there. When he confirmed they were, the Respondent asked that he have them come home. The Applicant refused. A.N. invited him over to talk with the Applicant. The Respondent refused. He wanted them to return home. The Respondent attended Ali’s home at 4/4:30am the next morning. He asked where M.N. was and wanted to see her as he feared the Applicant wanted to take her to San Francisco. He went upstairs to see her. The parties then descended the staircase with the Applicant asking the Respondent to return her phone to her. The Respondent said he did not have it. The Applicant called the police who arrived 30 minutes later and began to interview the parties separately. The Respondent started to feel badly. The police called an ambulance but the Respondent felt better so the ambulance and the police left.

[78] On January 9, 2015, A.N. wrote an email to the Applicant stating that “regarding W.R.N. I was I am and I will be on your side always.” In cross examination he admitted that he was incorrect about the time the Respondent arrived at his home, as it was not as early as 4/4:30am and was rather closer to 6/6:30am; he was incorrect in that the Respondent did not attend the day after the Applicant left with M.N. but two days after; and he was incorrect in that the Respondent did attend at the hospital by ambulance. Finally he was wrong when he informed the court that the Applicant told him that the dogs attacked M.N.; she actually said that they almost attacked M.N..

[79] After much discussion over approximately two weeks, it was agreed that the Applicant would come home with M.N.. The Respondent did not agree with the Applicant’s concerns about the dobermans. M.N. had always happily played with the dogs, hugged and kissed them without issue or threat. But the Respondent agreed in any event to keep them in the basement during M.N.’s activities. The agreement was enforced as much as it was enforceable, understanding that the dogs also needed to go outside.

[80] The marital relationship was now “upside down.” The parties re-attended at their marriage counsellor, Ms. Dennison. They had to cease their sessions however as their nanny was leaving the country for six weeks and they had no one else to stay with M.N. while they attended counselling.

[81] On April 26, 2014, the Applicant and the Respondent were upstairs with M.N. in the matrimonial home. The Respondent felt that the Applicant was trying to pick a fight with him. The Respondent noticed that she was recording their conversation with her phone. The Respondent stopped the recording. The Applicant exploded. She jumped on him and started scratching him. He held M.N. in his arms and she continued to scratch him from behind. M.N.’s hand was scratched in the conflict as well. The Applicant called a cab and left with M.N.’s car seat. When she returned she acted like nothing happened.

[82] The Respondent took pictures of his injuries and those of M.N.. The pictures demonstrate the scratches as described. He reported the incident and the pictures to police in June 2014 shortly before he moved ex-parte to vary the order that granted the Applicant temporary custody.

[83] On May 6, 2014, the Respondent left for work. Prior to doing so he asked the Applicant about a business transaction and she said she was still working on it. When he arrived at work he learned that the transaction was actually completed at a discount and the monies paid in trust to the company. He further learned that $84K of those monies was transferred out of the company’s trust account by the Applicant. He raced back to the King City home, knowing something was not right and remembering that the Applicant left with his daughter only four months earlier. No one was there when he arrived and he knew M.N. was gone again. He called and texted the Applicant multiple times and she did not respond.

[84] The Respondent finally received an email from the Applicant at 1:50pm saying “W.R.N. please calm down. You need to breathe and relax please. We are safe. You have received a note from my lawyer. Please contact them.”

[85] He was in shock. Y.N. described him as “damaged” as he never expected the Applicant to leave him. He received a large volume of legal documents from the Applicant including a restraining order. He never tried to hurt the Applicant in his life and there was never a basis for restraining his access to M.N.. He called a lawyer’s office, Ms. Heft. He worked with her through the night to prepare for the court attendance on May 8, 2014. He did not see his daughter until May 13, 2014 when he was granted access accompanied by the nanny, four hours total on Tuesdays and Thursdays and Friday overnights.

[86] As of May 2014, the Respondent’s daughter had been taken from him twice, without warning. The thought of a restraining order against him with respect to his daughter was crushing. Further, the Applicant leaving the company caused it great financial stress on top of the $84K she took from its trust account. It was an incredibly difficult time.

[87] The Respondent has never believed that the dobermans were a threat to M.N.’s safety. He removed them from the King City house nonetheless as his daughter is always the priority and the Applicant was using the dogs to create a reason for him not to see his daughter. He therefore boarded the dogs. Within eight to ten days one of them had a heart attack and eventually died. This was not a surprise to the Respondent as the dogs were family dogs for approximately six years and would have been shocked by the separation. The other doberman has since returned to the King City property.

[88] In her affidavit sworn February 26, 2016, F.Y., the Respondent’s mother, deposed that at the time the Applicant left the marriage, she was in Iran, and the Respondent seemed distraught, as he was concerned that the Applicant would take M.N. to San Francisco. Ms. F.Y. deposed that she doesn’t believe the Applicant left the marriage because of the dogs, and that she doesn’t recall the Applicant ever complaining about the dogs. She stated that following their separation, she and her husband reached out to the Applicant’s parents, asking them to come to Toronto to “find a solution to resolve this problem for everyone”; however, the Applicant sent a response saying that her father was having surgery. Following this, her husband sent a further email to the Applicant’s father, and the Applicant responded to him, saying that she has a lot of respect for them, asking that her wishes that they don’t communicate with her father be honoured, and that the decisions regarding her life be made by her.

[89] The Respondent testified that he found the Applicant’s blackberry in September 2014 as he was preparing the guestroom in the matrimonial home for his mother. It was between the mattress and the headboard. His mother testified that she witnessed the Respondent locating the phone when preparing the guest room for her.

[90] The Respondent admits to sending the corporate notice out in October 2014 without consent by the Applicant as to its form and content. He directed two of his employees to send it to existing and potential clients as compiled in a database previously prepared by the Applicant. He stated however that the Applicant wanted content that exonerated her conduct and this was not advisable because of regulatory concerns. A communication was required to calm the clients; the company was in desperate trouble as the Applicant left and was spreading rumours that she could no longer guarantee the value of the clients’ investments. The Respondent agrees that it could have been done a better way and he apologizes for it. An email from A.N. to the Applicant stated that he and his parents were disappointed in the Respondent after they saw the corporate notice.

[91] The Respondent never missed an access visit with M.N.. He felt homeless during these visits however, as he only had four hours with M.N. during the week and was not able to take her to his home, which was an hour away from the access point. They went to the mall and the next day the Applicant would complain that he took M.N. to the mall to eat but he could not make her dinner as he only had four hours with her.

[92] On November 4, 2014, the Respondent attended to pick up M.N. in accordance with the access order. M.N. did not come down as in the normal course. The Respondent emailed the Applicant to inquire what was happening. The Applicant responded by email advising the Respondent to leave her property immediately and contact his lawyer. The Respondent eventually learned that 35 minutes prior to his scheduled access the Applicant’s counsel advised his counsel that the nanny was no longer comfortable being present for the access and the Applicant was proposing that someone from Borders or Brayden supervise the Respondent’s access visits. The Respondent attempted to explain that the nanny was to accompany M.N. and there was no order for supervised access but the Applicant insisted that the visits be supervised. The Respondent therefore was not permitted to see his daughter until after December 15, 2014 when Justice Kiteley confirmed that the access is without supervision.

[93] Y.N. describes the Respondent today as “back on track.” He testified that the Respondent now has a clear vision of how he can live without the Applicant and how he should care for himself and M.N.. He has developed his own routines, Y.N. states, to stay healthy.

[94] In terms of credibility, the assessor testified that at times during her assessment she felt the Respondent was being intentionally deceitful. My observation of the Respondent’s testimony at trial is not consistent with the assessor’s experience.

[95] There were some inconsistencies with his evidence prior to trial. For example, the Respondent admits that the affidavit he swore on May 8, 2014 includes some inaccuracies and that some of the inaccuracies carried over into subsequent affidavits and have never been corrected. For example, he does not have a weak heart as set out in his affidavit of May 8 and 12, 2014. Similarly, although the Respondent testified that the Applicant grabbed him during the January 2014 incident at Ali’s house, in his affidavits of May 28, 2014, October 17, 2014 and November 5, 2014 he described the same incident as “the first assault” wherein “the Applicant attacked me.” He states that this was an error. It should not have been described in this way in May 2014 and the same language should not have been carried over in subsequent affidavits. The Respondent should have withdrawn these statements or corrected them in a further affidavit. He did not. This does not however sufficiently demonstrate a conclusion that his evidence at trial was not credible.

[96] Further, there were some inconsistencies in the Respondent’s evidence considering his finances. He testified that he filed his income tax returns every year, yet his 2008 income tax return was dated 2014 and there was some confusion, in my view, with respect to his evidence on income and revenue. The significance of these inconsistencies are best assessed in the context of the trial on the financial issues between the parties. I am loathe to render a finding on credibility with only two small pieces of what I expect, having reviewed the Respondent’s sworn financial statement, will be a large and complex financial puzzle.

[97] At times the Respondent’s testimony was inconsistent with that of the witnesses who testified on his behalf. The inconsistencies however did not relate to issues of significance to this trial and it is difficult for me, as the trier of fact, to conclude whether there was an intention to deceive and if so, whether the intention was borne by the Respondent or by his witnesses. For example, the Respondent’s testimony with respect to the ownership of the Richmond Hill home was inconsistent with that of his brother Y.N.. The Respondent said that he was the beneficial owner of the home and Y.N. was the legal owner until he transferred his beneficial interest to Y.N. for consideration. Y.N. testified that at all times he was and remains the legal and beneficial owner of the Richmond Hill home. Someone is deceiving the court, either intentionally or not. In my view, identifying the truth on this issue is best determined in the context of the trial of the financial issues between the parties.

Post-Separation Conduct

[98] The evidence demonstrates that both parties engaged in egregious behaviour around the time of and after the separation. In my view, each party shares the blame in this regard. Neither the Applicant nor the Respondent should feel proud of the manner in which they conducted themselves on the eve of or after separation. Caught in the middle of such unnecessary impulsiveness and bitterness was an innocent little girl they chose to bring into this world. I make this conclusion for the following reasons taken together:

The Applicant testified that she accepts the blame for her conduct, that it takes two people and that both parties were to blame for a lot of things.
The Applicant contacted the police on several separate occasions to report conduct of the Respondent. The Applicant states that she did so because she felt unsafe. The Respondent was never charged. One of the police officers involved, Detective Cruz, provided his opinion to the assessor that the Applicant was looking for something to find the Respondent culpable for.
In April 2014, the Applicant recorded an argument between her and the Respondent, the conflict escalated and the result was such that the Applicant scratched the Respondent and M.N. who he was holding at the time of the conflict.
In May 2014, on the same day the Applicant left the matrimonial home with M.N. for a second time, the Applicant sold a mortgage owned by the company at a discount without discussing it with the Respondent and withdrew $84K of the sale proceeds from one of the company’s trust accounts without advising the Respondent.
In November 2014, the Applicant took a position on supervised access, the results of which eliminated the Respondent’s access to M.N. from November 4, 2014 to approximately December 15, 2014. During this time, the Applicant did not facilitate phone calls, Facetime or Skype between M.N. and the Respondent.
Approximately three months after separation the Applicant began dating Mr. D.Z. and introduced M.N. to him, who called him Uncle D.Z..
On November 6, 2014, Mr. D.Z. made an application for a peace bond against the Respondent in accordance with section 810 of the Criminal Code R.S.C. 1985 c. C-46. The Applicant assisted Mr. D.Z. by bringing to the courthouse emails from the Respondent to her to use in support of Mr. D.Z.’s application. The prosecutor ultimately decided not to proceed with the case.
In December 2014, after the order of Justice Kiteley, the Applicant attended at the company on her own accord, without notice to the Respondent, counsel or company staff, and removed a hard drive. The Applicant was sure that the Respondent was going to call the police to report her, so she called the police to give them a “heads up.”
On Feb 6, 2015, the Applicant took M.N. to a psychotherapist without consulting or advising the Respondent.
On Feb 9, 2015, the Applicant took M.N. to her pediatrician because she was having difficulty urinating, was complaining of a sore and red vagina and had some discharge from her vagina. The pediatrician, Dr. Inch, examined her and concluded that he had no concerns of sexual abuse. The Applicant returned M.N. home and left her with the nanny when she went to a therapy session with Ms. Calderone. During the session M.N. called her (through the nanny) and told her that “daddy tickled my vagina up and down.” The Applicant first testified that Ms. Calderone overheard the conversation. She then testified that this was a mistake and she told this to Ms. Calderone. Ms. Calderone confirmed in her testimony that the Applicant told her what the nanny and M.N. said to her on the phone. Ms. Calderone advised the Applicant that this was a reportable incident. The Applicant did not tell Ms. Calderone that Dr. Inch, only hours earlier upon examination of M.N., had no concerns of sexual abuse. The police were called. The Respondent was investigated for sexually abusing M.N.. Marina had to attend the police station and be interviewed. The investigation was closed without incident.
The Respondent was angry and resentful towards the Applicant in 2014 generally and particularly during the two occasions she left the matrimonial home with M.N. without notice (January and May 2014) and the periods of supervised or no access to M.N. (May to December 2014). He expressed these emotions with strong, inappropriate, threatening and at often times offensive emails and texts. The Respondent testified that he is not proud of his such communications. He is ashamed, holds himself accountable and apologizes. His apology, however, does not excuse his conduct.
In April 2014, the Respondent communicated with the Applicant by text messages using offensive, threatening and vulgar language.
In May 2014, the Respondent threatened the Applicant with fraud charges and compliance issues with FSCO. He reported the incident to FSCO to satisfy regulatory requirements but advised of no financial effect to the company, which was untrue, but which caused FSCO not to follow up with the Applicant or the company.
In May 2014, he retained a private investigator to observe and follow the Applicant. He testified that his purpose was to find out what was happening with M.N. but he admitted that he also had the Applicant followed on nights that she did not have M.N. but rather was on a date with Mr. D.Z..
In June 2014, the Respondent threatened that he would have the police investigate the nanny when she went to the King City home to retrieve the Applicant’s belongings at her request.
In June 2014, the Respondent took steps the results of which were that the Applicant was charged under the Criminal Code for the April 2014 incident. The charges were withdrawn.
In August 2014, the Respondent threatened that he would have the Applicant’s lawyers face criminal and other consequences with the Law Society of Upper Canada.
From May to October 2014, at times contrary to a court order, the Respondent threatened the Applicant’s parents. He used offensive language, for example, “[y]ou guys take my child hostage, see what happens… I make sure everyone sits on ashes, legally I do it… How you guys don’t get it that you don’t take someone’s child hostage.” He also left messages about the Applicant’s relationship with Mr. D.Z. saying “they have sex in front of my daughter.” He testified that he trusted the Applicant’s father. He had assisted him on two occasions and felt abandoned when he reached out in his time of need and received no response. He spoke with the Applicant’s father on May 6, 2014. He was expecting a return call. When he continued to call and the Applicant’s father did not answer his phone, he felt betrayed. He made threats. His phone records reflect and I accept that he attempted to report the Applicant’s mother to her regulatory body on May 7, 2014.
In October 2014, the Respondent threatened to report Mr. D.Z. to his employer and his employment regulatory body (Mr. D.Z. also threatened to report the Respondent to FSCO and “any other regulator related to your industry” in response to the mass communication).
In October 2014, the Respondent threatened to sue Ms. Roorda if she failed to apologise and refrain from what he referred to as defamatory and illegal statements she made against him.
In October 2014, the Respondent sent out the corporate notice referred to above. He admitted to the assessor that the contents of the communication could damage M.N. emotionally if it ever came to her attention. He concedes that it was not written properly and he does not reflect on it positively.
On December 1, 2014, the Respondent emailed the Applicant and her father from his mother’s gmail account, including threats of consequences for alleged wrongdoings and allegations of infidelity.

[99] The respective conduct of the parties as described above indicates impulsiveness, unhealthy choices and a desire to hurt, embarrass and punish the other. As blameworthy as the conduct was, in my view, it is not relevant to the ability of the parties to act as parents to M.N. on a go-forward basis. The parties engaged in destructive behaviour against each other upon the eve of and post separation while litigating custody and access. The conduct should not have occurred. The parties should have exercised mutual respect and self-control in the best interest of their daughter. Evidence is such that in the middle of all of this conflict, however, both parents parented M.N. responsibly and M.N. thrived, maintaining a strong loving bond with both of her parents. M.N. could have been negatively impacted by such conduct, nonetheless. There is no direct evidence to date, however, that she has been. Further, while the situation remains one of high conflict, since February 2015, neither party has engaged in conduct similar to the incidents described above.

Dr. Holloway

[100] Dr. Gregory Holloway is a psychologist employed with the Willow Centre. Dr. Holloway conducted the psychological testing on the parties for their custody and access assessment. He presented as a witness at trial for the purposes of cross examination by both parties. On consent, he was qualified to give opinion evidence in the area of psychological testing and psychological issues.

[101] The doctor advised the court that the results of the psychological testing he performed do not prove anything. Rather, the testing results provide suggestions of the personality functions of the parties as parents for use by the assessor as part of her considerations. He cautioned that psychological testing results do not stand alone; they must always be integrated with other information gleaned by the assessor. He stated that psychological tests provide general results, such that it would be unwise to link them to specific events.

[102] Dr. Holloway conducted three psychological tests: MMPI – 2, Rorschack and Achenbacj (adult self-report and adult behavioural check list).

[103] Dr. Holloway’s report of the Applicant was completed on October 22, 2015. A summary of his findings are as follows:

• Ms. K…K. has situational suspiciousness about Mr. W.R.N. and his motives, which contributes to an exaggeratedly negative view about him.

• She is currently experiencing high levels of stress, emotional distress, and irritating or upsetting stimuli which exceed her available coping resources; this stress may contribute to anxiety, depression, and feelings of apprehension.

• Her emotional struggles have a disruptive impact on her capacity for logical thinking, which deteriorates in response to situational stress; it also substantially impairs her capacity for self-control, creates a potential for impulsiveness and impairs her ordinary functioning.

• In the face of stress, she experiences anxiety and helplessness, and possibly is using intellectualization as a defence to subdue these kinds of feelings.

• Ms. J.K.’s ego strength tests as being above average; she has an adequate and average level of psychological resources to cope with ordinary demands.

• Her capacity for personal intimacy and connection is in the average range, including an intact capacity to establish close personal relationships, although currently she is not pursuing relationships.

• Her parent-to-child bonding is adequate to reasonably good; stable bonding should protect the interests of her child and her love and caring should be dependable.

• However, when Ms. J.K. is feeling threatened, she may focus on her own interests and there may be some lapses in her attention to the interests of others.

• Ms. J.K. shows less interest in other people than most people do; this may lead to infrequent or superficial relationships with others; one possibility is that the stresses in her current situation have resulted in her “shutting down” in interpersonal relationships.

• She has persistent difficulties in being able to forgive and forget.

• She externalizes blame and tends to see her problems as being external to herself and resulting from the actions of others.

[104] Dr. Holloway’s report of the Respondent was completed on September 9, 2015. A summary of his findings are as follows:

• Mr. W.R.N. has an exaggeratedly positive view of himself. He has a hysterical personality style, and a likelihood of being self-absorbed and somewhat self-aggrandizing. As a result of his tendency to self-absorption, when stressed or threatened he could pursue his own self-interest in urgent ways.

• He has a high level of social effectiveness and positive belief in himself, and may be quite sensitive to the possibility of disapproval or rejection.

• Mr. W.R.N. may experience a significant level of internal conflict between needs for closeness and connection with other people, and opposing needs for maintaining protective distance from others.

• He tests as being repressed and overcontrolled, exerting extremely stringent control over his feelings in a way that amounts to overcontrol, specifically regarding feelings of anger. This may be accompanied with occasional outbursts of resentment. He may alternate between emotional overcontrol and sporadic and intense emotional outbursts, which may place him at risk of having difficulties establishing and maintaining comfortable and rewarding relationships with others.

• Mr. W.R.N. externalizes blame, seeing his problems as external to himself and resulting from the actions of others.

• He has a good level of ego strength, and adequate to relatively good level of personal organization and efficiency, leading to competent effectiveness in a variety of situations.

• Despite his self-absorption, he is interested in other people, and more likely than most people to demonstrate adaptive interpersonal behaviour most of the time. He expects that people will ordinarily interact in a spirit of cooperation and collaboration.

• His ability to forgive and forget is at an average level for the normative sample, which means he is more forgiving than the average child custody litigant.

• Mr. W.R.N.’s capacity for bonding with M.N. is mostly adequate and at an average level, though sometimes a bit uneven. This means a roughly average level of bonding, but the ‘uneven’ aspect could derive from his self-absorption, which might mean times when his own issues are at the forefront and as a result, issues around his child are not so salient.

• He has low average psychological resources at his disposal to cope with stress, and may have some vulnerability to disturbing stimuli because he may not be able to “filter them out.” Thus relatively minor irritations may have a relatively major impact on his emotional and psychological functioning, and he may focus on small details.

• Mr. W.R.N. has good reality testing, which is the basis for accurate judgment, and an adaptive capacity to think logically and coherently. He is as capable as most people of using logical reasoning, and capable of thinking in a flexible manner.

Ms. Jacqueline Vanbetlehem

[105] Ms. Vanbetlehem completed a clinical assessment of a parenting plan for M.N., pursuant to Section 30 of the CLRA. The sources of information included: individual and joint clinical interviews with the parents; office and home observations; information from collateral sources including teachers, family, the child’s and parents’ physicians, police and relatives; psychological testing of both parents and M.N.; court-related documentation; and the child and parent intake questionnaires completed by the parents. The assessor released her recommendations on December 2, 2015. She released her full report together with the final drafts of the psychological reports on February 11, 2016. She gave oral evidence at the trial and both parties had the opportunity to cross examine her. On consent, Ms. Vanbetlehem was qualified to give opinion evidence in the area of custody and access.

[106] The court is tasked to decide the best interests of M.N. upon careful consideration of the evidentiary record. The court must not delegate that decision to the assessor: see Strobridge v. Strobridge, 1994 CanLII 875 (ON CA), 1994 CarswellOnt 400 (C.A.), at para. 39. The assessor’s report, however, forms a part of the evidentiary record and remains an important consideration when determining the best interest of M.N.. For this reason, it is summarized below.

Relationship of the Parents to M.N. and Impact of the Parental Conflict on M.N.

[107] The assessor states at p. 5 of her report that “M.N. is cherished and adored by both parents.” In attending home visits, the assessor observed that M.N. was activated by each parent, both parents were equally interactive with her and demonstrated that she complies with their direction, such as during clean up time. Ms. Vanbetlehem notes at p. 31 that “M.N. demonstrates an appropriate connection with both of her parents and is appropriately affectionate with each.”

[108] However, the assessor also emphasizes that M.N. has been exposed to parental conflict: both “direct exposure to parental conflict initially while the parents resided together and then indirect exposure through the litigation, ill-will and distrust that has dominated the parental relationship since separation” (p. 31). While there has been some improvement in the parents’ management of the conflict and a greater level of cooperation in recent months, the parental conflict has not abated. Ms. Vanbetlehem indicates at p. 32 that as M.N. matures, “she is more likely to be cognizant of the feelings of each of her parents toward the other parent, gain a greater awareness of the conflict, and will likely be impacted by the loyalty binds and lack of cooperation as a result of being triangulated into the parental disputes.” Although her young age has been a protective factor thus far, without abatement of the parental conflict, the assessor predicts that M.N. will likely be impacted negatively.

Clinical Impressions and Observations of the Parties

The Mother

[109] The assessor notes at p. 38 that, “there is a sense that the mother has designated herself as the gatekeeper of M.N.’s schedule.” She observes that at times the mother does not appreciate how M.N. has experienced the suspension of parenting time with her father, and does not believe that the absence of her father impacted M.N.. The mother is unable to appreciate that the limited value she attributes to the father’s role may impact the quality of the relationship between the father and M.N., and could result in the father becoming peripheral in M.N.’s life. At times the mother does not understand M.N.’s need for her father to be involved in the day-to-day tasks of daily living, and rather, she implied that M.N.’s relationship with her extended family is more important than M.N.’s relationship with her father. The mother also expressed the belief that the father is a poor role model to M.N., confirmed by other collaterals that were interviewed. The assessor notes that the mother has not been discrete about her negative feelings about the father. For example, “it was Dr. Inch’s view that the mother maintains a sense of anger and disdain towards the father and as M.N. matures this will be evident to her.” The assessor describes how this will likely impact M.N., noting at p. 39 that, “as M.N. matures, she will pick up on her mother’s views and beliefs and this may contribute to an erosion of the quality of the relationship she enjoys with her father and a likely tendency to choose one parent over the other.” Regarding her psychological assessment and how that may impact parenting, the assessor notes that Dr. Holloway commented that Ms. K… does not thrive well in emotional and stressful situations, and if M.N. became difficult it is possible that Ms. K… may not have the capacity to respond as an effective parent.

The Father

[110] The assessor notes that the father’s pursuit of success has come at the cost of distrust by his own extended family and the mother’s extended family and cites Dr. Holloway’s comment that there may be occasions when the father’s personal interests and need to present himself in a positive light might override the interests of others or those of his child. The assessor notes that it is concerning that in his pursuit of social approval, M.N.’s needs may not have taken precedence. The father is, at times, unable to separate the issues between the parents from M.N. and projects his own experiences and perceptions of events onto M.N.. For example, the mother made a number of offers of increased access to the father, but he rejected them. The assessor notes at p. 37 that:

[I]t is difficult to understand the father not accepting the time offered to be with M.N. given his very limited time with her, describing their relationship as closer than most father/daughter relationships, and insistent that he wants increased time… At times Mr. W.R.N. seemed to be more invested in advancing an equally shared arrangement than understanding the importance of establishing a strong attachment to M.N. given their limited time. In this respect he confirms the mother’s belief that he does not always put M.N.’s needs ahead of his own.

[111] The assessor considers Dr. Holloway’s observation that the father’s vulnerable self-esteem could possibly impact his relationship with his daughter in the future, as he may have some degree of sensitivity as she starts to evaluate him as a father. If their relationship became negative, it would be difficult for him to tolerate. The father suffers from anxiety, which likely exacerbates his agitation and hysteria, which are not well managed. However, the assessor notes that the immediate risk to M.N. appears minimal.

Issues between the Parents

Allegations of Emotional and Financial Abuse

[112] Ms. Vanbetlehem observes that the father’s communication patterns did not seem to be abusive throughout the marriage, but they have been emotionally abusive since the breakdown of the relationship. Since separation, there has been a pattern of harassment against the mother by the father.

[113] Despite Ms. J.K.’s view that she was financially abused during the relationship, the assessor notes Dr. Holloway’s observation that the mother accepted the financial arrangement in the marriage until her distrust of the father escalated. Both parents seemed to make informed decisions about finances, though they were living beyond their means and having difficulties paying creditors. There was little evidence that either parent sought to change their lifestyle. Regarding the impact of the financial arrangement on M.N., Ms. Vanbetlehem states at p. 34 that “there is no evidence to corroborate that the financial practices of the parents ever compromised their ability to meet M.N.’s basic needs or put her at risk.” The correspondence between the parties shows that the father attempted to pressure the mother to seek additional funds from her parents and alluded to catastrophic consequences if she didn’t get the funds, but she ignored such threats over time and told him overtly that she could not go to her parents for further funds.

The Father’s Impulsivity and Lack of Understanding of the Impact of his Behaviours

[114] Mr. W.R.N. admitted that he had private detectives follow Ms. K… and Mr. D.Z., and that he left many derogatory and threatening phone messages for Ms. K…’s father. The assessor notes at p. 40 that the father “has minimal understanding of how such impulsive behaviours contribute to the mother’s fears that he may not exercise proper judgment or restraint with M.N., how his behaviours perpetuate the conflict between them, and how his behaviours contribute to her distrust.” The assessor notes that the father’s perspective about Mr. D.Z. is unreasonable and distorted. The father is suspicious of anyone who supports the mother. The father represses his anger which results in intense emotional outbursts, and coupled with the stresses of litigation and the lack of psychological resources at his disposal, his coping abilities are compromised, leading to unreasonable behaviours. The concern is how M.N. could be impacted by such behaviours.

[115] The corporate notice sent by the father was supposed to be vetted by Ms. K… but it was sent out without her consent. The assessor observes at p. 41 that:

It is difficult to understand the father’s lack of appreciation for how such correspondence might impact the mother or M.N. as she matures… Under such conditions collateral damage occurs as the child becomes triangulated into the conflict, is at risk of exposure to the conflict, and is denied a community and environment in which a positive view of each parent is prevalent. The father’s deceit around the issue also confirms the mother’s belief that the father is not always truthful.

[116] The assessor notes that the father’s frequent threats that he will tell M.N. about his perspectives of the parental dispute when she is older is concerning, and will compromise M.N.’s adjustments as she matures, including the development of critical thinking.

Transitions

[117] Transitions have been an ongoing issue. The father’s preparation of M.N. for the transition is insufficient and he is challenged to impart enthusiasm to M.N. about returning to her mother to create a sense of joyful anticipation. The assessor notes at p. 44 that, “it is concerning that the father’s entrenched belief that something is happening at the mother’s home that contributes to M.N.’s angst does not allow him to redirect M.N. as most parents would when their child is acting out.” Further, the father’s behaviour during transitions also exacerbates M.N.’s behaviour. In Detective White’s view, the father is not focused on the child’s needs and does not manage the situation maturely, whereas the mother does. However, the assessor notes at p. 43 that “while it is understandable that the mother may feel suspicious regarding the father’s behaviour there is no evidence that he presents a physical safety risk to the mother or M.N. that would curtail direct transitions.” The assessor questions why, given that the father’s impulsivity has been better contained, the mother has continued to resist accommodating direct transitions. This creates a concern that the mother will not accommodate the greater level of cooperation that would be required to facilitate the father’s presence in M.N.’s life if she was granted permission to move.

The Assessor’s Recommendations

The Mother’s Proposal to Relocate to California

[118] The assessor recommends that the decision to allow the mother to move be deferred at the current time and be reconsidered prior to M.N.’s entry into grade one. It is the assessor’s view that greater time with her father to develop a meaningful relationship will be a protective factor for M.N. if she moves in the future. Also postponing the move will allow the parents time to seek treatment on the issues identified as risk factors for M.N.. The assessor recommends a parenting coordinator (PC) to mitigate the risk that each parent continues the conflict. The PC will also ensure that each parent receives the treatment prescribed, will report on each of the parent’s ability to cooperate and will help inform the court of the suitability of a future move. The assessor notes at p. 53 that “the ability of each parent to support a robust relationship with the other parent into the future would be a determinative factor with respect to a future move.”

[119] Further, as M.N. matures, her attachment to each parent will develop, which will be a protective factor and make a separation from either parent in the future less stressful; she will also likely prefer longer periods of time with each parent, which a relocation will afford. The assessor notes that the fact that M.N. has managed the travel and separation from each parent with little difficulty, and that the parents have been able to cooperate to ensure that she has Facetime or Skype contact when away from the other parent bodes well for a future move. The assessor recommends that an updated assessment be completed six months prior to M.N.’s entry into grade one, so that if a move is considered in her best interests, it would allow for her to begin school in California in grade one, a typical transition time for many children of that age.

Recommended Parenting Plan

[120] The assessor finds that it is in M.N.’s best interests to create a schedule that limits the interactions between her parents, while at the same time allowing her to integrate into their homes in a meaningful way, and experience both parents’ involvement in her life on a day-to-day basis. The assessor states that she fully analysed many different schedules, and gave significant consideration to achieving a balance between allowing the father an adequate amount of time to strengthen his bond with his daughter and expose her to the benefits he brings to her life, while curtailing some of his behaviours that may impact her negatively, including his impulsivity, his harassing behaviours towards the mother, and his untreated anxiety. The assessor also considered the need for a schedule that will accommodate travel for the mother and ensure seamless transitions between the parents. Thus the assessor recommends a “book-end” shared parenting plan regime.[^1] In this way, M.N. will not experience a long period of time away from either parent while at the same time eliminating the need for direct transitions. It also enables the father to be involved in the day-to-day activities of M.N.. The resident parent shall facilitate phone, Skype, or Facetime contact with the other parent daily at a mutually agreeable time. The assessor recommends that each family home not be more than 10KM away from M.N.’s school.

[121] The parenting plan also sets out in detail summer, holiday and travel schedules and procedures, all of which should be monitored by the PC who will have the authority to adjust the schedule as necessary. It also recommends that the parents minimize communication, and that all communication by the parents should be limited to email no more than twice a week, other than in an emergency situation or with regards to a time-sensitive issue. The assessor recommends consistency between the two homes in terms of routines, and suggests that the parents may attend special events together or separately if desired.

[122] The assessor recommends that all transitions should be from school or camp; if this cannot happen, M.N. shall be transferred in a public location in a way that is not prolonged, and if she is crying, the receiving parent is responsible for calming her. The recommendations also specify that the parents continue using the services of the current pediatrician, and that they provide each other with the contact information of all health care professionals providing care to the child.

[123] The assessor recommends that each parent seek the supports they need to assist in caring for M.N., but that the current nanny’s employment with the mother should be terminated as her contribution to the conflict outweighs the importance of the continuity of the relationship. Additionally, the parents should not introduce new partners to M.N. for one full year from the date of the recommendations.

Recommended Decision Making

[124] The parents have had significant difficulties regarding major decisions. The mother has made many of these decisions unilaterally without involving the father. The assessor considered joint decision making, but notes that this would require the ability of the parents to communicate and cooperate, which is beyond their current abilities. Parallel parenting was also not considered a viable option given their limited communication skills.

[125] The assessor recommends that but for one exception, sole decisional authority should rest with the mother, citing two important factors- the mother’s managed emotions, and the need for decisions to be made in a timely manner. The father’s impulsive behaviours and decisions influenced by anxiety and impulsivity were deterrents in considering the father’s role in decision making. The PC will ensure that the father is given the opportunity to provide input on decisions, and will mitigate the risk of the mother making unilateral decisions. Decision making may be reviewed with the updated assessment.

[126] A breakdown of decision making recommended by the assessor is as follows: the mother will make routine dental and medical appointments, the resident parent will make day-to-day medical decisions and keep the other informed, the mother will keep the child’s documents and the father shall have photocopies. Both parents will be involved in major and emergency medical decisions, with the assistance of expert third parties. In the event there is no consensus, after seeking a professional opinion, the mother shall make the final decision. Regarding religion, the child shall continue to be raised Jewish, and in the event of an impasse, the mother shall make the final decision with respect to religious matters. Regarding education, the assessor confirmed in cross examination that her recommendation is that the child shall continue to attend her current school, and any change in school shall be mutually agreed upon, resolved through the parenting coordination process. Regarding extracurricular activities, the child’s preferences about the activities shall be taken into account, and the mutual consent of both parents is required for enrolment in any activity that overlaps with both parents’ time.

[127] The successor recommended that future dispute resolution should be addressed by a PC for a term of at least three years, who will have three functions: (i) to assist the parents in fostering and facilitating the child’s relationship with the other parent and extended family; (ii) to ensure the implementation, maintenance, and compliance of the parenting plan and mediate any dispute (failing which, the PC will make a final and binding decision); and (iii) to mediate a full year travel schedule to be confirmed by October 1st the year prior. The assessor also recommends an updated assessment six months prior to M.N.’s eligibility for grade one to determine the extent to which each parent has resolved the parenting challenges, consider the extent to which each parent has undertaken the counselling recommendations, and review the parenting regime and the location of the mother’s residence, considering the needs of the child and abilities of each parent to meet those needs. Should the mother elect not to move, the updated assessment may be dispensed with.

[128] Lastly, the assessor recommends a number of therapeutic services for both parties, including both parents attending a workshop on the effects of high conflict divorce on children, the father participating in a full psychiatric assessment with Dr. Peter Sutton, and the mother initiating long term psychotherapy with Dr. Yvonne Parnell.

The Law

[129] Parenting orders under the Divorce Act are governed by s. 16. The relevant provisions are as follows:

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

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

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[130] Custody and access cases under the Divorce Act often refer to and are guided by the list of factors set out in section 24(2) of the CLRA, even though that Act is not directly applicable. The best interest considerations in the section are a helpful checklist of factors to take into account. The section reads:

(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).

(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;

(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.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the

person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider

whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to

protect another person shall not be considered violence or abuse.

Evidence on Parenting and Mobility Issues

The Applicant

[131] Unless otherwise stated, the following represents the testimony of the Applicant on the parenting and mobility issues.

[132] While the Applicant believes that the Respondent brings a lot of great qualities to M.N.’s life she stops short of saying that he is a good parent. Rather, she states that he has things to work on. During her questioning however, when asked about whether she felt the Respondent was a good father, she answered no.

[133] The Applicant and the Respondent have different parenting styles. While the Applicant strives to be M.N.’s friend, she also imposes discipline, schedules and boundaries in her life. The Respondent’s approach lacks discipline and consistent scheduling. He fails to set clear expectations for her.

[134] The Applicant insists on healthy eating for her and M.N.. She has asked the Respondent not to give M.N. pop. M.N. stays up late with the Respondent while the Applicant has a firm and scheduled bed time by 8:00pm but for special events.

[135] During the marriage, the Respondent spent little time with M.N. despite the requests from the Applicant to do so. Post separation, the Respondent has spent a lot more time with M.N. and they have a good, loving and nurturing relationship. The Respondent refused the Applicant’s offer of further access in March 2015 as although it was more time it meant that he would not see M.N. for six consecutive days. Further, he has done nothing to improve himself as a parent or address the Applicant’s stated concerns, including those related to his need for therapy.

[136] The Applicant has taken steps to improve herself as a parent. She took three courses through the Family Service Toronto in 2015 to help her cope with conflict post separation and the needs of a child upon separation. She attended three women’s abuse programs through the agency in an attempt to better understand and manage her relationship with the Respondent and she attended individual counselling with Ms. Calderone. The individual counselling with Ms. Calderone was recently terminated. The Applicant has continued individual therapy however. On the recommendation of the assessor, she is now seeing Dr. Yvonne Parnell for individual therapy.

[137] As discussed with Ms. Calderone, the Applicant states that the parties have had difficulty with transitioning M.N. between them. M.N. would often cry and say she did not want to return to the Applicant’s home after time with the Respondent. The Applicant wondered whether the Respondent was saying something to M.N. to make the transitions back to her more difficult for M.N.. The Applicant was worried about the negative effect of the transitions on M.N..

[138] Initially the transitions were supervised by the Respondent’s brother A.N., but when he refused to continue to do so they took place, until recently, at a police station. On one occasion, in January 2015, the Respondent was late to drop off M.N. and overreacted to her simply falling asleep on her way to a transition at the police station advising the police officer that she had passed out. Now that M.N. is in school, the transitions take place at the school and have been uneventful.

[139] In May 2015, the Applicant expressed her concern to Ms. Calderone that the Respondent was parenting to control rather than parenting with a view to their daughter’s best interests.

[140] The Applicant’s family lives in the Richmond district of San Francisco. They have been there for 18-19 years. Her mom runs a home for seniors with Alzheimer’s and her dad operates a construction and real estate development business. Her mom’s health is stable but her dad’s is not good. He was diagnosed with cancer last year. He went through chemotherapy and reduced his working hours to one half. The Applicant’s three grandparents also live in the area, although her grandfather has recently been placed into palliative care.

[141] The Applicant has many friends in San Francisco. Her long time girlfriends live there and they all have daughters M.N.’s age. Most of her friends from Harvard and all of her friends from college also live there.

[142] If the Applicant were to move to San Francisco with M.N. she would rent an apartment from her parents who own an apartment building in Pacific Heights. It is by a park, in the neighbourhood of good schools and only 15 minutes from her parents’ home. Her father’s office is also located in the apartment building.

[143] The Applicant has been attempting to find employment in Toronto since separation. She has used her own efforts and those of Ms. Thorek. Except for part-time employment assisting persons with their applications for an MBA program, she has been unable to obtain employment. If the Applicant were to move to San Francisco with M.N. she would take over her father’s business.

[144] The Applicant believes that moving to San Francisco is in M.N.’s best interests because of the immense support system in the city. The Applicant has no friends or family in Toronto. The weather is beautiful in San Francisco and there are many activities available to M.N.. There, the Applicant would have a job and a support system right away and she would have all the flexibility to travel for M.N. to see the Respondent. Remaining in Toronto, it would take years to be so established. The Applicant needs to establish a life and support for herself and M.N..

[145] The Applicant understands that it is important to continue to foster the relationship between M.N. and her father. She wants M.N. to have a relationship with her father. She proposes a liberal parenting time schedule for the Respondent both in Toronto and San Francisco including daily Facetime calls, six weeks in the summer in Toronto, parenting time during the school year in San Francisco for seven to ten nights each month and two additional periods of nine days during the school year in Toronto. The Applicant travelled to either San Francisco or Miami with M.N. to see her family approximately six times from the time M.N. was born through to the date of separation. M.N. travels extremely well, without issue.

[146] The Applicant agrees that the two most important people in M.N.’s life are her mom and dad. She states that M.N. is a happy child who is thriving. She acknowledges that M.N. loves her father and that they have a very close and strong bond.

The Respondent

[147] Unless otherwise stated the following represents the testimony of the Respondent on the parenting and mobility issues.

[148] M.N. is a princess and the love of his life. She is a smart and lovely child who changed his life from the time he held her in his arms.

[149] The parties’ parenting styles complement one another. The Respondent’s parenting philosophy is such to ensure that M.N. always feels connected to him, that she could talk to him about anything and that he is the first person she would go to with trouble or concern. He wants to be her best friend while at the same time be a parent and instill discipline. The Applicant is stricter. She is attentive, resourceful and she loves M.N.. She is the one who locates activities for M.N., is very particular about her diet and values education.

[150] The Respondent believes he did his best to encourage M.N. during her transitions from him to the Applicant. He tried telling M.N. that she was going somewhere different and then when there, he told her she was going to the Applicant. He refers to this as indirect transfers. He also tried a technique wherein the Applicant would see M.N. for a fixed period of time during his extended access and this seemed to assist M.N. with her anxiety and stress. He truly believed that something was very wrong with M.N. when he reported she “passed out” during a transition at the police station in January 2015. As of January 2016, the transitions are no longer a problem as M.N. is transitioned through school.

[151] The Respondent refused to sign the retainer for Dr. Birnbaum as, in part, it raised the possibility of him undergoing a psychiatric assessment. He has not undergone a psychiatric assessment despite the recommendations of the assessor. Nor did he pursue a psychiatric consultation as recommended at his discharge in January 2014, as he states he followed up with his family doctor and did not pursue it any further. The assessor reviewed the clinical notes and records of the family doctor and found no evidence of such a follow-up.

[152] In January 2016, the Respondent completed a course with Family Service Toronto to learn how to reduce post separation conflict and sought counselling with Dr. Holloway and someone he recommended (Dr. Holloway did not testify to this). He did not pursue counselling with Dr. Sutton as recommended by the assessor as Dr. Sutton works out of the same office as the assessor and the Respondent felt there was a conflict.

[153] The Respondent has taken M.N. to many of her activities, events at her school, Wonderland, the aquarium, play dates and parks.

[154] In August 2014, the Respondent advised the Applicant that one day M.N. will read all of the communications between them post separation and “make her own comments to you.” He further wrote “what she is going through will cause irreparable damage to her for the rest of her life.” In February 2016 he advised the Applicant that he has written a biography of “all events for the past year with all details involving [him], [the Applicant] and M.N.” and that he “will send out a copy soon to everyone and have it on line as well as google life (it is called ‘My Angel’).”

[155] The Respondent’s family loves M.N.. A.N. and his wife adore her and she adores them. The Respondent’s father is completely in love with M.N. and his mother and M.N. have a special bond. M.N. sees Y.N. and his mother every weekend. An email from A.N. to the Applicant in December 2014 reflects that even during the most difficult periods of conflict, the Respondent’s extended family, including Ali’s wife’s family, wanted to see M.N. and bring her gifts.

[156] The Respondent is currently handling a couple of litigations with contractors who worked on the matrimonial home. The matrimonial home is presently in power of sale. The Respondent’s Line 150 income has been 0 in each of the last five years. His financial statement sworn May 29, 2015 lists his monthly income at 0 and his monthly expenses as $13,443.61. The Respondent’s income for support purposes is an issue for the financial portion of this proceeding. The evidentiary record before the court is wholly deficient to permit such a financial assessment, as it should be, given the court is considering only the parenting issues. Suffice to say that as a self-employed person, his income will not be a straightforward reflection of his Line 150. What is relevant for the purposes of the issues before the court is the observation by the assessor that during the marriage both parents made decisions about finances and lived beyond their means and her conclusion that there is no evidence to corroborate that the financial practices of the parents ever compromised their ability to meet M.N.’s needs or put her at risk.

[157] The Respondent acknowledges that M.N. has Facetimed him regularly when she travelled for any extended periods with the Applicant in the past. The calls can last anywhere from 30 seconds to an hour, depending how long M.N. would like to talk. He also acknowledges that as she grows older her ability to text will increase. She will have her own phone one day.

[158] The Respondent will be downgraded from a participant to a visitor in M.N.’s life if she is permitted to move with the Applicant to San Francisco. His work schedule is flexible but it does not permit him to be away for such extended periods of times. Using the phone is not his preferred method of communicating with his clients.

[159] On cross examination, the Respondent said that if M.N. were permitted to move, he would have no choice but to follow her to San Francisco. He would be in the city, however, without a green card, without a home, without a job and unable to provide for her.

G.K.

[160] G.K. is the Applicant’s mother. Unless otherwise stated, the following is her evidence relevant to the issues of parenting and mobility before the court.

[161] Mrs. J.K. is the administrator and executive director of a community for seniors in San Francisco where she has lived with her husband for about 20 years. They are very much involved in the community, attending fundraisers, the Jewish Community Centre, operas and ballets.

[162] Mrs. J.K. testified that she has observed many living incidents between her daughter and M.N.. Recently, when the Applicant was ill and lying on the couch, M.N. announced that she was going to doctor the Applicant. She proceeded to sit beside her mother and sing to her.

[163] The Applicant does not permit anyone to disparage the Respondent in the company of M.N.. She has counselled them to be mindful of their body language and to encourage the Respondent’s relationship with M.N..

[164] Mrs. J.K. visited Toronto in the summer of 2015 and truly enjoyed the city. She stayed with the Applicant and M.N. at the Applicant’s apartment. She describes the apartment as located in a beautiful building. It is very welcoming and beautifully furnished. It is located in a triplex. The other two families in the building are great. The landlord has three daughters who all have children, so there is a beautiful playground in the backyard for M.N.. The neighbour is a charming older gentleman.

[165] Mrs. J.K. and her husband both visited the Applicant and M.N. recently and stayed at the Applicant’s apartment. While the Applicant’s father stayed only one week, at the time of her testimony at trial Mrs. J.K. had been in Toronto for almost three weeks.

[166] Mrs. J.K. and her husband fully support the Applicant. They take care of all of her needs. She is aware of the $800/month the Respondent pays to the Applicant for M.N..

[167] If the Applicant moved back to San Francisco, the Applicant would live in an apartment in one of the family’s investment buildings. It has three bedrooms and views of both the Bay Bridge and the Golden Gate Bridge. It is located in Pacific Heights, with good schools and a park within walking distance.

[168] Due to the severe illness of her husband, if the Applicant were to return to San Francisco she would take over her husband’s business and they would pay her a salary of $250-300K so she would have a stable income to support herself and M.N.. Mrs. J.K. believes that this rate is a standard earning in the area given her efforts to hire someone for the business since her husband’s illness.

[169] Mrs. J.K. confirmed that all of the Applicant’s childhood friends live in San Francisco. He friends all have children of their own around M.N.’s age.

N.M.

[170] N.M. is the Applicant’s friend. Unless otherwise stated, the following is her evidence relevant to the issues of parenting and mobility before the court.

[171] Ms. N.M. has observed the Applicant with M.N. both in Toronto and San Francisco. She described the bond between mother and daughter as special. She recognizes that the Applicant sets boundaries and Ms. N.M. appreciates this kind of parenting, having two small children of her own.

[172] Ms. N.M. has never observed the Respondent and M.N. together in Toronto.

[173] Ms. N.M. believes that the main reason the Applicant wants to move to San Francisco is because of her family. Her childhood home is there and her parents are welcoming. The Applicant has an immense support system in San Francisco. All of her childhood friends are there and they have children of similar ages to M.N.. The Applicant would be transplanted into an immediate community, with a welcoming social support system.

[174] Ms. N.M. believes that the Applicant is suffering as she wants the best for M.N.. She wants her to feel like she has a family but she wants the Respondent to be in M.N.’s life. She is struggling to reconcile the two.

N.C.

[175] Unless otherwise stated, the following represents the testimony of N.C., the Applicant’s friend, on the issue of parenting.

[176] Ms. N.C. is a conflict management specialist working with clients at her father’s family law firm going through high conflict access or child protection issues. She met the Applicant at a birthday party in June 2014. She now spends a great deal of time with the Applicant and M.N., sharing Friday night Shabbat dinners with the Applicant and sleeping over at the Applicant’s home regularly on the weekends. Ms. N.C. also travelled with the Applicant, both with and without M.N..

[177] Ms. N.C. testified that she has observed the Applicant and M.N. together many times. She describes the Applicant as a caring loving parent who involves M.N. with many activities. M.N. is a bright and active smart child with intuition and creativity. The Applicant purchased a separation book to read to M.N. to help her understand and adapt to having two homes.

[178] The Applicant prepares M.N. for her transitions to her father, setting out the schedule for the day and encouraging her time with her father. Ms. N.C. has observed M.N. transition from the Applicant to the Respondent. The Applicant allows M.N. to walk to her father, encouraging her to go.

[179] Ms. N.C. accompanied the Applicant on four transitions of M.N. from the Respondent to the Applicant that took place at a police station (January 25, January 31, February 7 and March 28, 2015). On each occasion the Respondent arrived late, carried M.N. in and held her tight and only permitted M.N. to go to the Applicant after many requests. On each occasion, M.N. cried when she had to leave her dad but was fine once she returned to the Applicant’s home from the police station, about a five-minute drive. The Applicant is always able to calm M.N. down. Ms. N.C. took notes of her observations once she returned to the Applicant’s home after the transition. She attended to support the Applicant who is “fearful with cause.” The Applicant has installed cameras outside her home and was able to confirm that private investigators were observing her. She is afraid of the Respondent.

[180] On January 25, 2015, the Respondent overreacted to M.N. who had fallen asleep on the ride to the police station. The Respondent insisted that she was unconscious and was frantic. Eventually he allowed Ms. N.C. and the Applicant to take M.N. into the washroom where the Applicant woke M.N. up and was able to take her home.

[181] On January 31, 2015, the Respondent failed to dress M.N. properly for the weather. It was a cold night and she arrived at the police station without a coat or boots. Rather, she was wrapped up in his jacket.

[182] Similarly on February 7, 2015, it was a bitterly cold day and M.N. did not have any gloves and her coat was unzipped when she arrived at the police station. The Respondent approached Ms. N.C. on this transition while M.N. was in his hands saying to her and the police officers that she should leave considering the court order in place.

[183] After the transition on February 7, 2015, Ms. N.C. accompanied the Applicant and M.N. home. Once home, M.N. said “pee pee hot hot pee hurt” and she would not go to the washroom. Ms. N.C. relayed this event to the assessor during her telephone interview on July 7, 2015. She then advised the assessor that M.N. had previously had discharge and painful urination and the Applicant asked her what she should do. Ms. N.C. told her that she “had to follow up and do what is best.”

[184] Ms. N.C. then advised the assessor that the Applicant had shared with her “disturbing facts” that motivated her to tell the Applicant to take M.N. to the doctor. Ms. N.C. did not want to comment further to the assessor however “as she didn’t observe directly.” When asked to explain this comment, Ms. N.C. testified that the “disturbing facts” was an email that the Respondent sent the Applicant in September 2014 stating that he wanted to buy a pair of boots for her and M.N. and attaching a picture of the boots that she described as “sexy.” Ms. N.C. had yet to see the actual email at the time of her interview with the assessor and that is why she did not want to comment further.

[185] On March 28, 2015, Ms. N.C. attended again at the transition of M.N. from the Respondent to the Applicant which took place at a police station. The Respondent approached Ms. N.C., again advising her of a court order and asking her if she wanted him to enforce it. It was scary. He told Ms. N.C. to stop looking at M.N., who was in his arms. He was pacing and again approached the police officers with M.N. in his arms.

[186] Ms. N.C. is aware that extended access has been granted to the Respondent. She has noticed no change in M.N. upon her return to the Applicant after extended access with the Respondent.

Y.N.Y.N.

[187] Mr. W.R.N. works as a dentist in Elliot Lake and returns to Toronto every weekend. He testified that he has opportunity to observe the Respondent with M.N. every weekend when they visit him at his home. His mother is there as well. He describes the Respondent as a loving and caring father who spends all of his time with M.N.. M.N. loves her father; they are very attached.

A.N.

[188] A.N. testified on behalf of the Applicant. Email communications between A.N. and the parties in January 2016 reflect Ali’s support for the Applicant and his frustration that the Respondent was not open to having him involved as a mediator for the parties matrimonial issues. Even A.N., however, when questioned about the Respondent’s relationship with M.N. testified that “M.N. loves her daddy so much.” She misses the Respondent when she is not with him. She is very attached to him and their strong relationship is a good thing for M.N..

D.Z.

[189] In his affidavit sworn February 24, 2016, Mr. D.Z. deposed that after meeting on JDate in the summer of 2014, he and J.K. dated from August 2014 to June 2015. During this time, his two children, ages 9 and 11, were living with him full time and he was working for Desjardins Securities, as a branch manager. He stated that he first met M.N. on Thanksgiving 2014, after which M.N. and his children would see one another once or twice per month. He deposed that the Applicant is a wonderful and caring mother who is attentive to M.N.’s physical and emotional needs. He never heard the Applicant speak negatively about the Respondent when M.N. was with her, and she always managed her personal emotions regarding and in front of M.N..

M.B.D.S.

[190] In her affidavit sworn February 25, 2016, Ms. M.B.D.S. deposed that she was employed by the parties from June 2010 until February 2013, and then continued to assist the Respondent on a part-time basis with cleaning his house following separation. She left for another job opportunity several days before M.N.’s first birthday. She stated that the Respondent was a very “hands on” father, that he assisted with changing diapers and feeding M.N., that he helped soothe M.N. when she was crying, and he frequently put her on his chest for a nap. She stated that the parties both worked long hours, and that the Respondent was more often the parent who took his time with M.N. in the morning, playing and cuddling with her before work, and that he was home for M.N.’s bed-time routine more often than the Applicant. Ms. M.B.D.S. deposed that if the Respondent was around, Ms. M.B.D.S. would help with pajamas and the bath, but that he was the one to put M.N. to bed, and if the Applicant was the one putting her to bed, the Applicant sought her assistance from beginning to end, including putting M.N. to bed. She stated that that while there was yelling in the house from time to time, she did not know that the parties were having problems and was surprised by their separation. She also swore that M.N. and the Respondent appear to share a strong bond, that M.N. is happy in her father’s care, and that the Respondent is an engaging father. She stated that she has watched the Respondent and M.N. build towers, read stories, and watch Frozen over and over again. Further, M.N. is very bonded to the Respondent’s parents.

[191] Ms. M.B.D.S. testified that she is an animal lover and she never saw the dogs fighting in her presence. She was presented with a photo from her Facebook page in April 2014, of one of the dogs taped up around his neck. She believes she took the photo.

[192] Lastly, Ms. M.B.D.S. stated that she has been in the house when the Respondent has had to take M.N. back to her mother, and that he tells her gently but firmly that she has to go back to “mommy” but that soon she will be with “daddy” again. She witnessed M.N. crying, and continuously saying that she doesn’t want to go back to “mommy”. She deposed that she believes this is not unusual and she believes M.N. is close to both her parents.

F.Y.

[193] In her affidavit sworn February 26, 2016, Ms. F.Y., the Respondent’s mother, deposed that when the parties were married, they welcomed the Applicant to their family. As both the Applicant and the Respondent worked long hours, she frequently dropped by their home to ensure M.N. wasn’t left alone in the care of her nanny the whole day, and that sometimes she would care for M.N. in the evenings. Ms. F.Y. deposed that although she was willing to facilitate the access exchanges, the Applicant did not agree to this. She related a few incidents in which she facilitated the exchanges when someone else was busy, and the Applicant involved the police. She stated that the Respondent is an engaged father, and his level of engagement, affection, and attentiveness to M.N. have broken any gender stereotypes she may have held. She deposed that the Respondent was this way both before and after the separation. Ms. F.Y. stated that until recently, M.N. started crying when she knew it was time to go back to the Applicant’s care, but over the last several months, she noticed that M.N. is calmer when it is time to return to her mother. She believes that M.N. is attached to both parents. She also addressed the issue of the anxiety disorder, stating that the Respondent does not suffer from an anxiety disorder, and even if he did, there are many people who suffer from an anxiety disorder and are great parents.

[194] Ms. F.Y. deposed that while her and her husband travel between Iran and Canada, they consider Canada their primary home and all their children reside in Ontario. She testified that she does not presently own real estate in Toronto. She lives with Y.N. in a rented dwelling. Her husband has not been in Toronto since the summer of 2015. She also deposed that she and M.N. share a strong bond, as they share a love for animals, M.N. loves playing with their cat, they frequently play hide and seek, play with dolls, and play doctor. Ms. F.Y. deposed that the Applicant does not foster their relationship with M.N., and does not like M.N. to speak her native tongue, Farsi, but she believes that children can benefit from as many languages as they can learn. Ms. F.Y. testified at trial with the assistance of a Farsi translator.

Y.P.

[195] In her affidavit sworn February 26, 2016, Ms. Y.P. deposed that she has worked at First Swiss since 2006. She observed that the Applicant was very hard-working and worked late frequently prior to leaving First Swiss. Whenever she stayed until 6 or 7pm, the Applicant was still there, and she overheard the Applicant telling others in the office that she had worked late or was in early that day or the day before. She recalled that the Applicant took a couple of months off after M.N.’s birth, but that she continued to work late after the birth of M.N.. She also deposed that the Respondent started bringing M.N. with him to the office more frequently following his separation, and brings her several times a month. She stated that he is extremely hands on with M.N., and that he is engaged and attentive. Ms. Y.P. stated that M.N. is very attached to her father. She attended M.N.’s birthday party in February 2015. In her opinion, M.N. was very happy to be there with the Respondent and his family, and M.N. feels at home with the Respondent and his family.

Adverse Inference

[196] In the text, Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Second Edition (Butterworths: Toronto, 1999), the authors write at p. 297:

In civil cases, an unfavourable inference can be drawn 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 witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. 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.

[197] The Applicant asks the court to draw an adverse inference against the Respondent for not calling Suzanne Denison as his therapist, the nanny J.C., his father, Dr. Yaroshevsky, E.T., an employee from the company, his spiritual counsellor, his previous counsel, and Dr. Stahl, the American licensed psychologist to critique the assessment report.

[198] I draw no adverse inference as against Suzanne Denison. She also acted as the couples’ marriage counsellor during their efforts of reconciliation. Her testimony had the potential in my view to create confusion given that anything said in the course of assisting the spouses achieve a reconciliation is not admissible in any legal proceedings (s. 10(5) of the Divorce Act). I appreciate the Applicant’s submissions that her evidence could have been restricted to her sessions with the Respondent only. I believe the lines are too blurred however and that there was a potential risk of violating the statute.

[199] The nanny’s evidence would have been helpful to the court in determining the best interests of M.N.. The nanny remains within the employment of the Applicant, despite the assessor’s recommendation to end the relationship. It is reasonably assumed, therefore, that she would be willing to assist the Applicant. In my view, therefore, the adverse inference properly lies with the Applicant. Further, the nanny’s observations of M.N. with her mother, the day to day routine and the circumstances of their life in Toronto, are material to the issues before the court as is her evidence with respect to the sexual assault allegations as against the Respondent.

[200] I draw no adverse inference from the Respondent’s failure to call his father. He is in Iran. Although the evidence was confused, it would seem he has been there for an extended time taking care of the family property. I accept this explanation as reasonable.

[201] Dr. Yaroshevsky, the psychotherapist the Applicant took M.N. to for a consultation in February 2015, could have been called as a witness by either party. There is no ownership of this witness by the Respondent and no adverse inference is therefore drawn against the Respondent for not calling Dr. Yaroshevsky as a witness.

[202] E.T. is an employee of the company. It is reasonably assumed he would be willing to assist the Respondent. I do not find him to be a material witness however and therefore draw no adverse inference against the Respondent for Mr. E.T.’s failure to testify. Whether the Respondent instructed Mr. E.T. to disseminate the corporate notice is not material to the determination of M.N.’s best interests. What is material and found as a fact by the court is that, as a result of the Respondent’s efforts, whether by his own hand or those of his employees, a corporate notice, contrary to a court order, with disparaging comments about the Applicant, was received by clients of the company and her personal friends who had never done business with the company.

[203] I draw an adverse inference against the Respondent for his failure to call the spiritual counsellor with whom he meets. This person could have offered the court testimony on the efforts or improvement that the Respondent has made, if any, in terms of controlling his emotions and impulsiveness, as well as his overall mental well-being.

[204] I do not draw an adverse inference for the failure of the Respondent to produce a critique report as previously advised by counsel. This would appear to be more of a litigation strategy and not an attempt to silence a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.

[205] Similarly, I do not draw an adverse inference for the failure of the Respondent to call his previous counsel. The Respondent’s evidence in terms of the incidents experienced by his previous counsel from May to December 2014 is part of his narrative but it is not material to my determination of the best interests of M.N..

Analysis

[206] Though I may not explicitly address each factor from s. 24(2) of the CLRA in determining the parenting arrangements that are in the best interests of M.N., I have considered each factor in my determination of M.N.’s best interests.

i. Custody of M.N.

[207] The Applicant is asking the court to award her final sole custody of M.N.. She presently has temporary sole custody as awarded to her in May 2014. The Respondent is asking the court not to make an award of custody.

[208] The Court of Appeal recently addressed the issue of not making a custody order in M. v. F., 2015 ONCA 277. This was an appeal by the mother from a decision in which the trial judge concluded it would be in the best interests of the parties’ six-year-old son to have overnight visits with the father and did not make an order for custody. The relationship of the parties before and after the child’s birth was extremely acrimonious.

[209] At paras. 38-40, Benotto J.A. stated:

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1) (a) of the CLRA is permissive, not mandatory: The court ... by order may grant the custody of or access to the child to one or more persons (emphasis added).

For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of "custody" and "access." These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this "winner/loser syndrome" in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the "parenting plan" proposed by the assessor without awarding "custody." It was also in keeping with the well-recognized view that the word "custody" denotes "winner" so consequently the other parent is the "loser" and this syndrome is not in the best interests of the child.

[210] I note that like section 28(1)(a) of the CLRA, section 16(1) of the Divorce Act is also permissive: “the court may on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage” (emphasis added).

[211] I agree with the submission of counsel for the Applicant that the recent pronouncement in M. v. F., while important, is not meant to suggest that in every case there should be no custody order. In my view, however, the reasoning of M. v. F. applies equally to the facts of this case. I accept the Applicant’s testimony with respect to the Respondent’s controlling behaviour. This is indicated as well by his email to her in December 2012 set out above at para. 26. I also accept the Respondent’s testimony that the Applicant’s controlling behaviour was demonstrated when she joined the company and summoned the leadership position. I find that M.N.’s parents are both strong-willed, ambitious, well-educated people who have treated each other carelessly with intent to hurt. This is a high conflict case wherein, as observed by the assessor, the conflict has yet to dissipate.

[212] The conduct outlined above at para. 98 reflects two people fighting for control over an uncontrollable situation. Granting custody to one parent over the other will be viewed as a win by one and a loss by the other. Such feelings will only fuel the conflict so inherent in the parents’ relationship. A disposition on custody will therefore be in the best interests of the winner of that perceived battle and not in the best interests of M.N..

[213] The Applicant further submits that the mobility issue before the court distinguishes this case from the reasoning in M. v. F.. She argues that the question of custody must be decided before the question of mobility: see Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), at paras. 19, 39-45. To this end, a disposition on custody is required in this case.

[214] As will be set out below, in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, the Supreme Court of Canada laid out the principles a court must apply when a parent seeks to move with a child. The language incorporates the term “custodial parent.” In Bjornson, a para. 19, the Ontario Court of Appeal described deciding the question of mobility first and the question of custody second as putting “the cart before the horse”. In my view, however, this is not a direction to render a finding of custody in all mobility cases. McLachlin J. (as she then was) stated at para. 48 of Gordon, that it is the views of the parent “who lives with the child and is charged with making decisions in its interest on a day-to-day basis,” that are entitled to great respect and the most serious consideration. McLachlin J. refers to this parent as the custodial parent but if the facts of the case mitigate against such a finding for the reasons expressed in M. v. F., in my view, the court should properly deny making a decision on custody and proceed to decide the issue of decision making prior to deciding the issue of mobility. In other words, it is the structure of the parenting relationship that is significant when considering the test in Gordon and not necessarily which parent wears the “C” badge upon the assessment.

[215] Before leaving the issue of custody, I recognize the Applicant’s argument that she has suffered domestic violence perpetrated by the Respondent such that this conduct should properly impact an award of custody and access, pursuant to s. 24(4) of the CLRA. She relies on the cases considering domestic violence in the context of exclusive possession of the matrimonial home: see Family Law Act, R.S.O. 1990, c. F.3, s. 23(3)(f); Hill v. Hill (1987), 1987 CanLII 8348 (ON SC), 10 R.F.L. (3d) 225 (Ont. Dist. Ct); Kutlesa v. Kutlesa (2008), 2008 CanLII 13187 (ON SC), 52 R.F.L. (6th) 164 (Ont. S.C.); and Menchella v. Menchella, 2012 ONSC 6304. I agree with the Applicant’s submission that domestic violence can be demonstrated on social media and by use of electronic communications. I also agree that the Respondent’s electronic communications to the Applicant were at times vulgar, offensive and threatening. The worst of the text messages came in April 2014, after the first time the Applicant left the matrimonial home without notice, taking M.N. to Ali’s home and after she had consulted with a lawyer. This was the same month that the parties had a terrible fight leaving the Respondent and M.N. with scratches. The Respondent’s electronic communications cannot be assessed in isolation. They are part of a broader picture of two parents bitterly fighting to control the process of separation and the custody of their daughter. This is not to excuse the Respondent’s communications. His response to the Applicant and her supporters was not acceptable. In this context, however, in my view, it would be a mistake to characterize such communications as domestic violence or abuse.

ii. Decision Making

[216] The Applicant is seeking an order that with the exception of any emergency medical or educational decisions, the Applicant shall decide all major medical and educational decisions with respect to M.N.. She is also seeking an order that M.N. be raised in the Jewish faith to the exclusion of all other faiths. The Respondent seeks an order for shared decision making authority in the parallel parenting mode such that the Respondent shall have final decision making authority related to M.N.’s education and extra-curricular activities and the Applicant shall have final decision making authority related to M.N.’s religious upbringing and major medical decisions. The Respondent underscores his agreement for M.N. to be raised in the Jewish faith as he understands that this is important to the Applicant.

[217] The Applicant testified that decision making with respect to M.N. was the one area the Respondent permitted her to control during the marriage. She chose M.N.’s doctors, nannies and activities. Post separation, while she attempted to involve the Respondent in the decision making, his responses were delayed and therefore ineffective. Her evidence is that she worked hard to inform him however of all important decisions including the choice of nursery school, Sunday school, doctors and the activities in which she enrolled M.N..

[218] In terms of schooling, the Applicant would like M.N. to attend a parochial school of the Jewish faith. Prior to the marriage the parties agreed that their children would be raised Jewish. The Respondent is proposing expensive private schools for M.N. but this option, in her opinion, is not financially feasible.

[219] The Applicant admits that the parties have difficulty cooperating in the best interests of M.N.. While the Applicant sends the Respondent weekly updates of M.N.’s time with her, the Respondent rarely reciprocates. The Applicant is concerned about the Respondent’s delay in timely responding to her proposals for M.N.’s education and activities.

[220] The Respondent testified that he has been involved in decision making for M.N. as much as the Applicant permitted him to do so post separation. Despite the restraining order, he has been able to attend at her pediatrician, psychotherapist and school with the Applicant. The parties have been able to cooperate to attend some important events in M.N.’s life like her ballet classes, her school events, her music class and events at her Jewish Sunday school.

[221] In terms of M.N.’s education, the Respondent’s desire is for M.N. to attend the best school available to her in Toronto, and not to be restricted in her choices by religion. It would be nice for her to attend a private school, if it were financially feasible. He tried for two to three months in 2014 to convince the Applicant to send M.N. to school rather than staying home with a nanny. She finally agreed.

[222] The Respondent acknowledges the weekly reports received by him from the Applicant. He does not do weekly reports for the Applicant as he states he does not have the pleasure of M.N.’s company for a week. While the weekly reports can be informative, he also notes that they are troubling in that they include capital letter subheadings such as “failure to respond” or “breach of order.” He believes that the updates have not been a constructive form of communication and have contained less about M.N.’s activities and well-being and more about the Applicant’s perception of his failures.

[223] As noted above, the assessor’s recommendation, once clarified in re-examination by the court, is that the Applicant should have decision making authority over major medical and religious decisions while any disagreements with respect to educational decisions should be resolved by a parenting coordinator.

[224] I do not agree with the assessor that it is in M.N.’s best interests that decisions about her education be resolved by a parenting coordinator if her parents are unable to reach consensus. In my view, given the demonstrated inability of the parties to cooperate on even the simplest of issues, the use of a parenting coordinator would serve to delay the decision and expose M.N. to the conflict inherent in the process. The assessor recommended three parenting coordinators to the parties. The Applicant was amenable to proceeding with either of them. The Respondent wanted to choose a parenting coordinator other than those recommended by the assessor. Given the historical lack of cooperation by the parties, I expect that they will disagree on the identity of the parenting coordinator, how he or she will be paid, the timetable and the process. Lawyers will be involved to review the parenting coordinator agreement. The assessment was delayed, as noted above, given the Respondent’s reluctance to execute Dr. Birnbaum’s retainer agreement as drafted. I expect either party to appeal any decision made by the parenting coordinator perceived by them as a respective loss. I also have concern as to whether the Respondent would abide by direction of a parenting coordinator, given his failure to comply with numerous court orders made in this proceeding as referenced above at para. 6. For these reasons and considering the historical lack of cooperation and distrust between the parties, there is a strong probability that M.N.’s interests will be lost in the process of a parenting coordinator and the important decision of her education delayed to her detriment.

[225] The assessor considered and rejected the notion of parallel parenting given the lack of effective communication between the parents and therefore their inability to elicit the other’s opinion. She concluded, “given the limited communication skills this was not considered as a viable option.”

[226] In K.(V.) v. S.(T.), 2011 ONSC 4305, Chappel J., after reviewing the jurisprudence, concluded that trial courts are not precluded from making orders for “divided parallel parenting” in high conflict cases that would not meet the criteria for a joint custody order. She noted that the purpose of parallel parenting is to disengage the parents by allowing them to operate in independent spheres of decision making. She noted that the Court of Appeal's views on parallel parenting appear to be evolving, consistent with the Supreme Court of Canada's message in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, respecting the importance of flexibility, rather than rigidity, in custody and access cases.

[227] The assessor deferred decision making to the Applicant on medical and religious decisions. I agree with her reasons in this regard, namely the Applicant’s managed emotions and the need for decisions to be made in a timely manner. Further, at this time, no major medical decisions are anticipated and the Respondent has agreed with the Applicant’s wishes to raise M.N. in the Jewish faith.

[228] The assessor noted that the Respondent’s impulsive behaviours and decisions influenced by anxiety and impulsivity were deterrents in considering the father’s role in decision making. I accept the Respondent’s testimony that he wants M.N. to attend the best schools available to her, regardless of religion. In my view, there is nothing impulsive or emotional about that decision, particularly considering his agreement that M.N. be raised in the Jewish faith. Rather, it is a position focussed on M.N.’s best interests to ensure that she receives an education by a highly rated and reputable school. The parties may not be able to afford expensive private schools, as those presently suggested by the Respondent. The Respondent will then need to research the highest rated public schools. The Respondent is a significant feature in M.N.’s life. Denying him all decision making authority will render him a meaningless figure in M.N.’s life. I cannot see how that is in her best interests.

[229] The assessor testified to her opinion that the decisions on education, in this case, cannot be separated into an independent sphere as they are related to the decisions on religion. I disagree. The Applicant testified that if the court permitted her to move to San Francisco, M.N. would attend a non-parochial school and pursue her religious studies on Sundays as she does not have access to a parochial school in San Francisco. In Toronto, however, she is requesting that M.N. attend a parochial school. The decisions are interrelated only because the Applicant is requesting that they be interrelated. They need not be so. I have ruled that the Respondent shall have decision making authority over education, specifically which school to send M.N. to regardless of religion and the Applicant shall have decision making authority over religion, excluding private parochial school as part of that authority. The areas of decision making are clearly delineated, thereby disengaging the parties and reducing any conflict or delay that would arise from the need to cooperate on the decision.

[230] In terms of extra-curricular activities, I agree with the assessor’s recommendation that M.N.’s preferences shall be given substantial weight and the mutual consent of both parents should be required for enrolment in any activities that overlap both parents’ time with M.N.. And if both parents do not consent, the other parent is not obliged to take the child to that activity during their parenting time. This recommendation recognizes the value of M.N.’s input into the decision and shields her from any conflict that may occur should one parent not consent.

[231] For these reasons, I have concluded that the Applicant shall have final decision making on medical and religious issues concerning M.N. and the Respondent shall have final decision making on educational issues. I have therefore accepted Part K of the assessor’s parenting plan dated December 2, 2015, amended as follows: item 2 “through the Parenting Coordinator process” shall be deleted and replaced with “by the father who will make the final decision.” I have also accepted Part L of the assessor’s parenting plan dated December 2, 2015.

iii. Mobility: Primary and Habitual Residence of M.N.

[232] The Applicant seeks an order permitting her to move with M.N. to San Francisco. The Respondent opposes this relief. The assessor recommended that the mobility issue be deferred at the current time and be reconsidered prior to M.N.’s entry into grade one. I do not agree that deferring the issue is in the best interests of M.N.. Considering the history of the parties, it is more likely than not that in less than two years the parties will find themselves once again embroiled in a protracted trial of the issue. M.N. will be older and therefore more aware of the litigation and the negativity between her parents. The Applicant seeks to relocate today. In my view, the assessment as to whether or not such a move is in the best interests of M.N. is properly conducted considering today’s circumstances.

[233] The status quo is such that M.N. spends 5 nights out of 14 with the Respondent. I have determined that the Applicant will have final decision making on issues of religion and major medical while the Respondent will have final decision making on issues of her education. It is within this factual context that the issue of mobility is considered, guided by the direction of the Supreme Court in Gordon v. Goertz.

[234] In Gordon, the parties resided in Saskatoon until their separation in 1990. The mother petitioned for divorce and at trial was granted permanent custody of the young child while the father received generous access. When the father learned that the mother intended to move to Australia to study orthodontics, he applied for custody of the child, or alternatively, an order restraining the mother from moving the child from Saskatoon. The mother cross‑applied to vary the access provisions of the custody order to permit her to move the child’s residence to Australia. Relying heavily on the divorce judgment and the first judge’s finding of fact that the mother was the proper person to have custody of this child, the judge dismissed the father's application and varied the access provisions in the custody order to allow the mother to move to Australia with the child while granting the father liberal and generous access on one month’s notice to be exercised in Australia only. The Court of Appeal and the Supreme Court upheld that order. In doing so, the Supreme Court, at paras. 49-50, laid out the principles that a court must apply when a custodial parent wants to move with a child:

The judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[235] The ultimate question is what is in the best interests of M.N. considering her present circumstances in Toronto and those as expected in San Francisco. The importance of M.N. relocating with her mother and extended family in San Francisco, with generous access to her father, must be weighed against the continuance of regular and consistent contact with her father and her mother in Toronto.

[236] In this case, the parents’ relationship is such that it is far too simplistic to categorize them as a “custodial parent” and “access parent.” They both have time and input into their daughter’s life, although the Applicant has more time and greater decision making authority. It is the Applicant who wishes to move with M.N. to San Francisco.

[237] The applicant has not lived in San Francisco since 2002. Her parents and life-long friends are there, however, and she has visited frequently since moving away in 2002. If she relocated to San Francisco, the Applicant would be given a place to live, a job with a good salary and, as she testified, she would be able to smoothly transition into a ready-made familiar and comfortable lifestyle.

[238] It cannot be said however that a move to San Francisco is required to improve her ability to parent. I do not accept the Applicant’s submission that the Respondent has created an environment in Toronto wherein the Applicant cannot thrive. This is not a case like Bjornson v. Creighton, where relocation freed the custodial parent of her dependence on the access parent. I agree with the assessor’s observations that the Respondent’s communication patterns did not seem abusive during the marriage and that the Applicant accepted the financial arrangement in the marriage until her distrust of the Respondent escalated. Further, the Applicant was employed during the marriage and contributed to the parties both living beyond their means.

[239] The Applicant has close friends in Toronto, at least one who stays over every weekend. While the evidence is such that she was unhappy in Toronto for some time prior to her separation from the Respondent, her friends testified consistently that she is back to her old-self now, confident and outgoing. The Applicant’s parents, particularly her mom, visit Toronto often and for long durations. The Applicant is involved in activities like the Harvard Business Club and lives in what has been described as a beautifully furnished apartment in Toronto, with good neighbours and a play area for M.N..

[240] Ms. Thorek deposed that in her opinion the Applicant has been unable to get a job because she is too senior for the junior jobs and out of the private equity workforce too long for the senior jobs. She also testified that if companies were denying the Applicant opportunities because of the corporate notice she would not expect them to tell her. More significantly, however, the Applicant, who is working with Ms. Thorek to find employment, told the assessor that if she has to stay in Toronto she could obtain a job in Toronto with an annual income in the low six figures, which she testified to mean approximately $125K. The Applicant herself therefore believes that she is well positioned to find employment in Toronto.

[241] Considering the totality of the evidence, then, the only significant difference to the Applicant between Toronto and San Francisco is that her extended family lives in San Francisco, as she has close friends, a nice place to live, employment opportunities and interests in both Toronto and San Francisco. In my view, the Applicant’s reason for moving is to satisfy a preference on her part to have her extended family involved and engaged in her day-to-day life, as well as M.N.’s. I do not believe that such a reason is relevant to her ability to meet M.N.’s needs. Rather, M.N.’s needs would continue to be met if the Applicant did not relocate. Presently, the Applicant’s family is supplementing the Respondent’s child support payments and funding her lifestyle, including paying for a nanny. There is no indication that such an arrangement will cease, although Mrs. J.K. testified that money may become tighter as her husband reduces his workload. The Applicant may have to obtain the employment she testified to being available to her in Toronto, earning an annual income of $125K. In my view, this is not an unreasonable expectation. I have concluded that this is not an exceptional case, therefore, wherein the Applicant’s reasons for moving are relevant to her ability to meet the needs of M.N..

[242] Extended family is important. It is in M.N.’s best interests to have a close relationship with the Applicant’s family. If she were to relocate to San Francisco her maternal grandparents would surely adorn upon her and she would grow up in a community with the children of the Applicant’s life-long friends. But at what costs to her?

[243] I agree with the assessor in her observation that at times the Applicant does not understand M.N.’s need for her father to be involved in the day-to-day tasks of daily living. I am concerned about the assessor’s finding that the Applicant implied that M.N.’s relationship with her extended family is more important than her relationship with her father.

[244] If the court were to grant the Applicant’s request, M.N. would necessarily lose the benefit of her father’s presence during those regular occasions that a child ought properly to expect her parent to attend. While technology has advanced to such an extent that Facetime or Skype may assist to connect a parent with a child outside of scheduled parenting time, it cannot replace the physical presence of that parent during the irreplaceable and fleeting moments of a child’s life: events such as school plays or concerts, parent teacher interviews, lessons, or sporting games. The Respondent will not be there to consistently take M.N. to the doctor or the dentist or take her to the hospital upon an unexpected but inevitable accident or fever. Rather, he will be five hours away by plane, victim to the schedule of the airlines and the demands of his employment. I appreciate that the Applicant has offered generous access to the Respondent and to finance some of the costs of access. But there will be large gaps between the father/daughter time that, even with today’s technology, cannot replace the consistency and the frequency that M.N. currently enjoys with her father, considering the existing parenting time arrangement.

[245] There are Reform synagogues, parks, activities and good schools in Toronto. There are many young children that M.N. calls friends in Toronto including those of the Applicant’s landlord. The Applicant acknowledges that there are good camps in Toronto for M.N. and good schools and states that there are several activities for M.N. in her area including a neighbouring park.

[246] The parenting time schedule recommended by the assessor permits for regular travel by the Applicant with M.N. to San Francisco. M.N. can maintain her friendships with the Applicant’s friends’ children during these visits and she can maintain her close relationship with the Applicant’s extended family. Mrs. J.K. testified that she loves Toronto. Her employment is such that she has the freedom to be here as she was for the trial for over a month. She too can visit M.N. regularly in Toronto to maintain the relationship.

[247] The Respondent’s mother and brother Y.N. spend time with M.N. regularly. While A.N. may be on the Applicant’s “side” as he wrote in an email, he and his wife clearly love M.N. and are good to her. The Respondent does not appear to have any close friends but he makes an effort to ensure that M.N. is surrounded by friends of her age group at times of special celebration.

[248] The evidence is such that M.N. is benefitting from the regular and consistent contact she has with her father today. I am concerned about the immediate disruption to the relationship should her father’s role evolve from one of consistent contact in her life (8 days out of 14) to one of someone who visits her in San Francisco or someone she visits in Toronto.

[249] I am also concerned about the assessor’s observation that the Applicant may not accommodate the greater level of cooperation that would be required to facilitate the Respondent’s presence in M.N.’s life if she was granted permission to move. The environment in Toronto and maintaining the status quo, in my view, would serve to better support maximum contact between M.N. and both parents (s. 16 (10) of the Divorce Act).

[250] Finally, while the family began with the Respondent knowing that the Applicant’s family lived in San Francisco with a winter home in Florida, I do not accept the Applicant’s evidence that the parties intended to move to San Francisco to live permanently. The original immigration application contemplated the parties living in the Applicant’s parents’ vacation home in Florida and not San Francisco. More significantly, the documents submitted with the immigration application are not all credible. The package includes a letter from her father’s business saying that the Applicant is employed there as of 2014 earning $85K a year. The Applicant admits that she was not paid for any services rendered for her family company and she did not claim any income in this regard on her 2014 or 2015 tax returns. The representation therein was false and knowingly misleading. For this reason, I accept the evidence of the Respondent in this regard that as the Respondent sponsored the Applicant’s immigration into Canada, the parties felt that it would be equally beneficial to them if the Applicant sponsored the Respondent’s US citizenship. Their intention was to have a vacation home in Florida. There was never an intention of the parties to permanently move to the US.

[251] The Applicant has not lived in San Francisco since 2002. She testified to her belief that “home is where your family is.” M.N.’s family is in Toronto where the two most important people in her life live and where she has lived from the time of her birth. In my view, it is in M.N.’s best interests that she continue her regular and consistent relationship with her father in Toronto and support her relationship with her maternal extended family with technology and extended visits to San Francisco. For reasons set out, I have concluded that it is not in M.N.’s best interests to relocate with her mother to San Francisco.

iv. Parenting Time

[252] The present weekly parenting time schedule is the one proposed by the assessor: the Respondent’s parenting time is from Friday following school to Monday morning every other weekend; Thursdays from after school until drop off at school on Friday morning following his own weekend, and Tuesdays from after school until drop off at school on Wednesday morning following the Applicant’s weekend.

[253] The Applicant, as an alternative to moving with M.N. to San Francisco, accepts the parenting plan as proposed by the assessor and asks only that her travel time to San Francisco be less frequent for longer durations. The Respondent is proposing equal shared parenting time.

[254] As set out above, the evidence is consistent that both parents love M.N. and have a special bond with her. However, both parents have made decisions governed by impulse and emotion as opposed to M.N.’s best interests (see para. 98 above). The evidence demonstrates that the parties are equally capable parents, however, and that M.N. is a happy well-adjusted little girl. Why then is it not in M.N.’s best interests to share equal time with her mother and her father?

[255] In her endorsement of May 20, 2014, Justice Backhouse concluded that “based on all of the evidence on the record before me, the presence of the dobermans was a safety risk which has only now been eliminated.” The evidence before her with respect to the dobermans was substantially the same evidence at trial. The Respondent made a serious error in judgment in not eliminating the safety risk prior to May 4, 2014. The risk, however, has been eliminated for some time.

[256] The Applicant asks the court to consider the issue of the Respondent’s anxiety as a factor in awarding parenting time. The assessor felt that the Respondent’s anxiety was a minimal risk to M.N. and confirmed that there was no evidence that M.N. suffered from anxiety despite their being, in her opinion, a higher likelihood for her to develop anxiety due to her father’s anxiety. From the time of Justice Kiteley’s order in December 2014 permitting unsupervised access, the Respondent has spent extended periods of time with M.N. without issue. In 2015, M.N. and her father spent 10 consecutive days together in March, 10 consecutive days together in May and 19 consecutive days together in August; all without issue. In my view, therefore, the Respondent’s past experiences with anxiety is not an issue relevant to his current ability to parent.

[257] In 2012, upon hospitalization, a psychiatric consultation was recommended to the Respondent. He testified that he followed up with his family doctor. I do not accept this explanation as the assessor reviewed the records of the family doctor which were silent on any such follow-up. Upon completion of her assessment, the assessor recommended that the respondent undergo a full psychiatric assessment with Dr. Peter Sutton. The Respondent testified that he did not want to follow up with Dr. Sutton as he felt the doctor was in conflict given the perceived relationship with the assessor. He testified he followed up with Dr. Holloway. I do not accept this explanation as Dr. Holloway attended for cross examination and made no mention of this, nor was he asked a question about it. Further, the email provided to the court in an effort to demonstrate that the Respondent followed up with Dr. Holloway did not address the issue of a psychiatric assessment. Finally, the Respondent refused to sign the retainer agreement of Dr. Birnbaum as it required psychiatric assessments, as deemed appropriate. The Respondent testified that his refusal was meant to protect M.N.. I do not accept this explanation in light of his refusal to follow up on similar recommendations by other professionals.

[258] The Respondent seeks equal parenting time with M.N.. The results of the psychiatric assessment would have been relevant to the relief requested and would have assisted the court in deciding the issue. The Respondent had the opportunity to strengthen his position by complying with the assessor’s recommendation. The fact that the Respondent simply ignored the recommendation causes the court concern, particularly in light of the Respondent’s failure to attend for a psychiatric consultation as recommended or sign Dr. Birnbaum’s retainer wherein a psychiatric assessment was a possibility. In my view, it is not in M.N.’s best interest to change the status quo of parenting time without the benefit of the results of the psychiatric assessment as recommended by the assessor.

[259] I agree with the assessor that the parenting time she proposes works to shield M.N. from the inherent conflict by limiting interactions between her parents and permitting her to spend meaningful time with both of her parents on a day-to-day basis. I also agree with her efforts to permit M.N. to travel with the Applicant to San Francisco regularly as she has done since birth. I do not agree with the Applicant, however, that the travel periods should exceed seven days. Anything longer on such a consistent basis represents too long a period from time with her father, school, homework and extra-curricular activities.

[260] I also agree that the parenting time is better supported if the family homes do not exceed 10 kilometers from M.N.’s school such that I accept and adopt Part P of the assessor’s parenting plan recommendation dated December 2, 2015.

v. Communication

[261] Communication has been a problem for the parties. I agree with the recommendations of the assessor that it is wise to minimize communication to the extent that this is possible. I also agree, however, that both parents should be kept informed about M.N.’s day-to-day experiences. The Applicant attempted this in the form of weekly updates. At times, however, the updates focused less on M.N. and more on the Respondent. I agree with the assessor that the communications should be limited to M.N.’s routines and activities and not be used as a forum to criticize or challenge the other parent. For this reason, I adopt and order Parts B and C of the assessor’s parenting plan dated December 2, 2015.

vi. Legal Documents

[262] The assessor recommended that the Applicant be the librarian of M.N.’s health card, passports, and birth certificates and the father shall have photocopies. The health cards and birth certificates shall travel with M.N. when she travels out of town overnight. In my view, this is a sound recommendation. The Applicant shall have final decision making on all major medical decisions such that it is appropriate for her to carry M.N.’s health card. As M.N. will be travelling to San Francisco regularly with her mother, it is similarly appropriate that the Applicant should hold M.N.’s birth certificate and Canadian passport. I also agree with the assessor’s recommendation that the Applicant is responsible for renewing M.N.’s Canadian passport and does not require the signature of the Respondent. The parties have no history of cooperation. If they were both required to sign such a renewal, this would cause delay and potentially prevent M.N. from travel as scheduled.

vii. Iranian Passport

[263] The Applicant is seeking an order that the Respondent not be entitled to apply for an Iranian passport for himself and/or M.N.. There is no basis on the evidentiary record before me to grant this request. The evidence does not demonstrate the Respondent as a flight risk. The Respondent was born in Iran. He should not be denied a right to obtain a passport should he so choose. M.N.’s father was born in Iran. She should not be denied a right to obtain an Iranian passport unless the court was satisfied that her safety was at risk as a result. As noted, no such evidence was tendered before the court.

[264] The Respondent seeks an order for the non-removal of M.N. from Ontario except for the purpose of travel with prior written consent of the Respondent. I fail to see how such an order would be in M.N.’s best interests. She has been travelling to San Francisco regularly since birth. She has extended family and friends there. I see no benefit to her in permitting her father to control or delay the scheduling of her travel. Rather, I accept the travel protocols as set out by the assessor at Parts G and N of her parenting schedule dated December 2, 2015 as they respect both M.N.’s ability to travel and the non- travelling parent’s ability to be fully informed, without risking a delay or cancellation of travel if a consent for same is not forthcoming.

ix. Delegation

[265] The Respondent seeks an order preventing the Applicant from the delegation of parenting to another individual unless the parents agree or otherwise by further order of this court. Again, it bears repeating that history indicates that the parties have great difficult agreeing on anything. The result has been that the decision is delayed to the detriment of M.N..

[266] I am not entirely clear about what the Respondent means by “delegation.” I accept Part I of the assessor’s parenting plan of December 2, 2015, however, such that if one parent cannot be available to care for the child during scheduled time the other party shall be given the option of “right of first refusal” to care for the child, prior to the resident parent calling a third party for child care assistance. Any other choices in terms of assistance with day-to-day childcare needs are properly left with the resident parent, in his or her consideration of M.N.’s best interests.

x. Publish information

[267] The Applicant is asking the court for an order that the Respondent shall not now or in the future show M.N. anything related to the parties’ separation and that he shall not create or disseminate information in any medium whatsoever related to the parties’ separation. The Respondent has threatened in the past that he will one day tell M.N. specific details about this process. More recently, he testified that he is writing a book about it called My Angel. The publication of any details related to the parties’ separation is clearly not in M.N.’s best interests. It may serve as a form of perceived revenge for the Respondent but for M.N., it would serve to hurt, embarrass and scar her. It is without hesitation that I grant the Applicant’s request in this regard.

xi. Psychiatric Assessment

[268] The Applicant seeks an order that the Respondent be psychiatrically assessed. As noted above at paras. 257-258, I am concerned that the Respondent refused to sign the retainer agreement with Dr. Birnbaum because such an assessment was a possibility. I am further concerned about the Respondent’s refusal to follow the advice of two professionals and pursue a psychiatric consultation/assessment. I do not accept that he followed up with either of his family doctor or Dr. Holloway in this regard. I am puzzled as to why the Respondent would not seek out the course of action as recommended, particularly given the relief he seeks from this court. This, however, was his choice. I do not intend to order him to comply with the recommendation. His failure to do so to date has met with its own consequence.

xii. Divorce

[269] The Applicant asks for an order for Divorce. The parties failed to provide the evidence on this trial sufficient to make an order. While the evidence is such that the parties have been separated for one year and that there is no possibility of reconciliation, neither the marriage or clearance certificate were tendered as exhibits before the court. If the parties agree, they may submit their affidavits in support of a divorce order in writing to me.

Order

Order to go as follows:

The Applicant and the Respondent shall share in the responsibility for care, child rearing and decision making of M.N., born […], 2012 in accordance with Parts B,C,D,E,F,G,H,I,J,K,L,M and N of the December 2, 2015 parenting plan recommended by Ms. Jacqueline Vanbetlehem as amended by this court and more particularly set out below:

DECISION MAKING

Daily/Routine Medical

The parents shall continue to use the services of pediatrician Dr. Inch.
The parents shall provide each other with the names, addresses and phone numbers of all physicians and health care professionals (e.g., psychologists, speech therapists, social workers, counsellors, occupational therapists, orthodontists, etc.) providing care to the child.
If required by the child’s health care professionals, the parents shall provide written permission to these professionals to release information regarding the child’s medical care to the other parent.
The parents shall provide an email summary of the outcome of the appointment to the other parent within 24 hours of any appointment. The parents may obtain additional information directly from the physician.
The mother shall be responsible for making the child’s routine dental and medical appointments. She shall make every effort to make these appointments on her usually scheduled time with the child. The mother shall email the father in advance of any appointments and within 48 hours of the time she makes the appointment. Both parents may attend together.
The resident parent is responsible for making day-to-day medical decisions (when to give over-the-counter medicines, staying home from school due to illness, attendance at a physician for minor illness, etc.). The resident parent shall keep the other parent informed by email and in a timely manner.
If the child becomes ill at school, the school shall call the resident parent (i.e., the one who would normally be responsible for the child that day after school). If that parent is unavailable to pick up and care for the child, the other parent shall be given the first option to do so. When M.N. is kept home from school by the resident parent due to illness, the other parent will be notified via text prior to the start of the school day.
Either parent may care for M.N. in the event of a minor illness and will follow the regular schedule unless a doctor’s note indicates otherwise.

Major Medical (long-term medication/treatments, surgery, orthodontia work, therapy/counselling by a mental health professional, etc.)

The parents shall notify each other as soon as feasible of an emergency visit to a physician, specialist, and/or hospital. Both parents may attend.
The parents shall supply each other with copies of all medical and/or professional reports they have pertaining to the child. The parents may also request any relevant records/information from the child’s physicians directly.
Major and emergency medical decisions are usually infrequent. Since they are serious, it is in the child’s best interests for both parents to be involved in major medical decisions, with the assistance of expert third parties, who are typically relied upon (e.g., medical specialists, dentist etc.). The parents shall notify each other of any potential major medical decisions, as well as provide the other with the name and number of the attending physician(s). The parents shall consult with the relevant physicians together, gaining second opinions as necessary. The parents will attempt to arrive at major medical decisions mutually in accordance with consensus professional opinion. In the event there is no consensus with a professional opinion the mother shall make the final decision.

Religion:

The child shall continue be raised in the Jewish faith and shall make the usual sacraments of these faiths.
In the event of an impasse the mother shall make the final decision with respect to religious matters.

Education (school selection, psycho educational testing, remedial assistance, report cards, parent/teacher meetings, daycare, etc.)

The child shall continue to attend J[…]School.
Any changes in schools shall be mutually agreed to by the parents and in the event of an impasse resolved through the father who will make the final decision.
The parents shall attend the routine parent-teacher meetings together or separately making the necessary arrangements directly with the school. Additional individual meetings with the school and/or teacher may be arranged if desired.
The parents shall advise each other by email if the school calls regarding a significant child-related matter. In the event that a teacher has an informal meeting with a parent the other parent will be advised of the discussion forthwith.
The school shall have both parents’ names to call in case of an emergency or child absence.
A school calendar is available from the school. It is each parent’s responsibility to stay up to date on any relevant educational matters (e.g., professional activity days, special events, field trips, concerts, parent-teacher meetings, etc.). Each parent shall request from the school that he/she be provided with all the notices, report cards, etc.
Notwithstanding the above, upon receipt of information or notices, the resident parent shall advise the other parent by email of any special events or meetings at the school, with special attention paid to those notices that are time-sensitive (i.e., for events that same week or the beginning of the following week).
For additional cross-checking, notices brought from school by the child shall be initialled by the resident parent and returned to the child’s knapsack. Once a parent sees that the other parent has initialled the notice, it may be discarded.
Both parents and their families may attend school functions, including: open houses, award ceremonies, school council meetings, curriculum night, plays, concerts, assemblies, fundraisers, etc., regardless of the residential schedule. The parents shall remain cordial during these occasions and not discuss child-related arrangements and issues.
The parents shall notify each other of any potential major educational decisions and provide each other with the name(s) and number(s) of the attending educational professionals. The parents are entitled to contact these professionals. In consultation with the professionals the parents together will seek to reach a consensus on major educational decisions. If the parents are unable to reach a mutually agreeable decision the father shall make the final decision.

Extra-curricular Activities & Lessons

The child’s preferences regarding activities and lessons shall be taken into account and given substantial weight.
Mutual consent of both parents is required for enrolment in any activities that overlap both parents’ time with the child. Such consent should not be unreasonably withheld and shall be confirmed in writing. Should the child be enrolled in an activity that impacts both parents’ time, and that both parents did not consent to, the other parent is not obligated to take the child to that activity during their parenting time.
The parents shall provide one another with all necessary information regarding the child’s activities and lessons regardless of whose time the activity/lesson falls on.
The parents and extended family may attend special events, recitals, parent-teacher interviews, and school activities.

PARENTING GUIDELINES AND PRINCIPLES

In relation to any dispute, conflict or concern pertaining to the child, the needs of the child shall be paramount.
The parents shall recognize the child’s need for good and ongoing relationships with each of her parents. The parents shall make every effort to actively foster and facilitate the child’s positive relationships with the other parent, and with members of the other parent’s extended family.
The parents shall exert their best efforts to work cooperatively and to make parenting arrangements with the child’s best interests at heart.
The parents shall openly and/or subtly support the Parenting Plan as outlined herein and ensure that the child spends the required time with the other parent.
The parents shall refrain from any subtle or open denigration of the other parent and/or members of the extended family in any communication with the child and/or in the presence of the child. In addition, the parents shall not speak to or in front of the child in a critical or disparaging way about the other parent. Further, the parents shall make every effort to protect the child from the parent’s anger and/or frustration regarding the other parent, with the understanding that the child may find this stressful, and that parental conflict compromises her adjustment and her self-esteem in particular. The parents shall advise others to maintain the same standard and to refrain from criticizing the other parent in front of the child.
The parents shall not speak with the child, directly or indirectly about specific parental differences and disagreements, including those related to financial issues, specific concerns about the other parent and parenting arrangements.
When the child asks questions the parents shall reassure her that the parents are working on the problems taking into account the child’s feelings and thoughts.
The parents shall refrain from any manner of conflict, subtle or open, in the presence of the child and, accordingly, shall relate to one another in a reasonable and cordial manner in all instances in which the child is present or nearby.
The parents shall not ask the child to relay information from parent to parent and the child shall not be a letter carrier for the parents.
The parents shall respect each other’s privacy, and as such refrain from engaging the child in any discussion or questioning about the other parent’s personal life or activities.
The parents shall refrain from any form of interference, direct or indirect, open or subtle, into the life, activities, or routines of the other parent. In this regard, neither parent shall schedule activities for the child requiring her active involvement or involvement by the other parent during periods in which the child is in the care of the other parent, without the consultation and consent from the other parent.
The parents shall make all practical efforts to ensure the child’s attendance at any or all structured activities or special occasions involving peers, and/or extended family. While it is understood that this may not be feasible, when possible the parent will schedule these events when they know the child will be with them. In facilitating this and to ensure continuity of the child’s schedule of residence and routines, “make-up time” is discouraged unless specifically referenced in the parenting plan.
In the event the child complains to the resident parent about the other parent, the child will be encouraged to talk directly to the other parent about the concern. If the child expresses difficulty with this the other parent shall assist the child and or discuss the concern with the other parent on the child’s behalf. The parents recognize that children frequently express to parents what they believe they wish to hear about the other parent. The parents will take this into full consideration before coming to any conclusion regarding the other parent.
To assist in M.N.’s adjustment the parents shall not introduce new partners to her for one full year from the date of this order.

PARENTAL COMMUNICATION

Unless agreed otherwise between the parents, all communication shall be in writing by email. In the event of a true emergency or time sensitive issue, the parents may contact each other by text or phone.
The parents shall use reasonable discretion in minimizing the extent of such communication. To this end, the principle of forwarding only that information which is necessary to ensure that the child’s needs are being met shall be adhered to. Emails shall be accumulated and sent no more than twice a week on Wednesdays and Sundays. Emails shall be checked and responded to within 24 hours. If a reply to a request cannot follow by then, an email shall be sent advising that the requested information cannot reasonably be ascertained, and as to when a response can be expected.
Given the child’s age and adjustment, and in an effort to foster consistency and stability for her, the parents shall make every effort to communicate about M.N.’s routines, activities and experiences. This shall be done through the use of specific headings (i.e., Schedule, Travel, Medical, Homework, Major Accomplishments, Significant Challenges) and any other headings the parents deem applicable.
While it is understood that each parent is likely to have different routines and activities, they shall make good efforts to ensure consistency between the two homes, for some of the basic routines (i.e., bedtime, homework etc.). The parents shall support each other’s routines with the child, even if they do not rely on the exact same approach. If the child comments that the other parent does it differently, the parent shall respond by saying that sometimes moms and dads do things differently.
The parents may attend special events, recitals, parent-teacher interviews, school activities and the like together. Attendance at these activities may be arranged separately if desired (i.e. parent-teacher interviews).

REGULAR PARENTING SCHEDULE

	MON	TUES	WED	THURS	FRI	SAT	SUN
Week 1	Mother	Mother / Father	Father / Mother	Mother	Mother / Father	Father	Father
Week 2	Father / Mother	Mother	Mother	Mother / Father	Father / Mother	Mother	Mother

The child shall be with her Mother in Week 1 until Tuesday morning when she is dropped off at school.
The child will then be with her Father from Tuesday following school until Wednesday morning when she is dropped off at school.
The child will then be with her Mother from after school on Wednesday until Friday morning when she is dropped off at school.
The child will then be with her Father from Friday after school until Monday morning of Week 2 when she is dropped off at school.

5.The child will then be with her Mother from after school on Monday until Thursday morning when she is dropped off at school.

6.The child will then be with her Father from after school on Thursday until Friday morning when she is dropped off at school.

7.The child will then be with her Mother from after school on Friday until Tuesday morning of Week 1 when she is dropped off at school.

TRANSITIONS

It is hoped that over time the parents will strive toward direct transitions of M.N.. Until they are able to do so they shall adhere to the following protocols:

The pickups and drop offs shall be from school/daycare/camp by the resident parent or a person of the resident parent’s choosing.
In the event that transitions cannot take place at school/daycare/camp the child shall be transferred in a public location agreed upon between the parents, such as a supermarket or coffee shop.
The transferring parent shall park within 4 parking spaces of the receiving parent. The transferring parent shall remove M.N. from her car seat and accompany her to the receiving parent.
M.N. shall be ambulatory and the transferring parenting shall depart immediately upon the receiving parent’s proximity to M.N. so that she may be picked up or taken by the hand by the receiving parent.
Should M.N. be crying the receiving parent shall be responsible for calming/soothing her.
The transfers shall not be prolonged; there shall be no use of electronic devices during transfers.
The parents shall not communicate during transitions save and except pleasantries.
Transitions may take place at airports to accommodate travel following the same protocols where applicable.
Either parent shall elect to have someone in attendance with them during transitions. This individual shall remain in the car at all times.

SUMMER SCHOOL BREAK AND VACATION[^2]

The summer schedule shall be as per the usual schedule with pickups and drop-offs from daycare or camp (if applicable) or following the transition protocols above.
Each parent may vacation with the child for two full non-consecutive weeks during July and August. The vacation period consists of seven consecutive overnights and shall incorporate the parent’s usual weekend.
In even-numbered years the father, and in odd-numbered years the mother, shall have the first option to choose vacation dates for the months of July and August. These dates shall be provided to the other parent in writing no later than January 30^th of the same year. If dates are not provided by that date, the first option to choose dates is forfeited and goes automatically to the other parent, who shall then provide notice in writing to the other parent no later than February 15^thof the same year.
The parents shall exercise reasonable discretion to ensure their vacation weeks minimize the amount of missed time for the other parent.

ADDITIONAL TRAVEL TIME

The mother shall be permitted to travel with M.N. for Passover, Rosh Hashanah, American Thanksgiving, and five additional periods of travel to be divided between the remaining months of the year so as not to involve travel twice per month.
Unless agreed upon otherwise between the parents, each period of travel shall consist of seven consecutive overnights.
To accommodate travel 30 days’ notice shall be provided. The father’s regular Tuesday overnight will not take place. This provides the mother the opportunity to travel within that period from Friday morning until the following Friday, ensuring M.N. is home at a reasonable time that accommodates the father’s scheduled overnight (unless she is transitioned earlier in the day at school or the airport, flight times permitting). Unless specifically stated, there shall be no make-up time to accommodate the mother’s travel.
To the extent possible the mother shall incorporate travel into her regular weekend rotation.
Permission to travel shall not unreasonably be withheld.

HOLIDAY SCHEDULE[^3]^,[^4]^,[^5]

Birthdays

The parent with whom the child is not resident that morning shall spend time with the child on her birthday from after school until drop off at school/daycare the following morning. If the child’s birthday falls on a Saturday or Sunday, the parent with whom the child is not resident that weekend shall spend time with the child on her birthday from 2:00 pm until 7:00 pm. (Unless otherwise mutually agreed upon between the parents, M.N. shall not travel with her mother over her birthday unless it accommodates an alternative overnight with the father the evening before M.N.’s birthday or the evening following M.N.’s birthday).
Each parent will plan the child’s family parties during their own time.
The mother shall organize M.N.’s peer party each year. Both parents may attend the child’s peer parties. The mother shall consult the father regarding peers within his social group that M.N. would likely want in attendance.
The parents’ birthdays shall fall as per the usual schedule. If M.N. is not resident with them on their birthday they shall plan an alternate time to celebrate the event with her.

Family Day, Victoria Day, Canada Day, August Civic Holiday and Labour Day

These weekends/holidays shall be as per the usual schedule, extending the weekend to include the statutory holiday, until the regular schedule resumes. Canada Day will be as per the usual schedule unless it falls on a Friday or Monday in which case the above will apply. (Unless otherwise mutually agreed upon between the parents, M.N. shall not travel over long weekends that fall during the other parents’ parenting time)

March School Break

The March Break will be defined as the five days of the school holiday, maintaining the regular weekend rotation. The parents will follow the regular weekend rotation, so that the order of the weekends is not disturbed.
In even years the father and in odd years the mother shall have parenting time with M.N. during the March Break. If the resident parent’s weekend falls prior to the Break the weekend shall begin after school on Friday until the following Friday evening at 7:00 pm. If the resident parent’s weekends falls at the end of the March Break it shall begin on Monday morning at 9:00 am until drop off at school following the Break.
Either parent may travel with M.N. if it is their year to be with her over the March Break. Notice shall be given to the other parent no less than 30 days in advance.

Easter Weekend

The weekend begins Thursday from after school and ends on Tuesday morning. The child shall spend each Easter weekend with her father.

Passover

The mother may incorporate Passover into one of her week’s travel consisting of seven overnights as per the protocols for Additional Travel Time. In the event that the Easter Weekend and Passover conflict (as in 2017) the mother may travel either before or after the Easter Weekend.

Mother’s Day/Father’s Day

The child shall spend time with the honoured parent from the Sunday morning at 10:00 am for the remainder of the weekend with drop off to school on Monday morning. Transition protocols shall be followed.

Rosh Hashanah

The mother may travel with M.N. during the period of Rosh Hashanah as per the protocols for Additional Travel Time. There will be an exception to the one week travel recommended under Additional Travel Time to allow the mother 12 days plus travel time in September 2016 to accommodate both Rosh Hashanah and Yom Kippur. The father will receive make-up time as agreed upon between the parents.

Canadian Thanksgiving Long Weekend

Each year M.N. shall be resident with the father from Friday after school until the she is dropped off at school on Tuesday morning or the usual schedule resumes.

American Thanksgiving Long Weekend

Each year M.N. shall be resident with her mother over the American Thanksgiving weekend. She may incorporate this travel into seven overnights which constitutes one of her weeks travel under Additional Travel Time.

Halloween

In even-numbered years the child shall be resident with her father from after school until drop off to school the next morning or until the regular schedule resumes. In odd-numbered years the child shall be resident with her mother for the same duration. If Halloween falls on a Friday or Saturday, it shall begin at 4:00 pm until drop off to the resident parent at 9:00 am the following morning.
The parent who has responsibility for the child that Halloween will be responsible for the organization and purchasing of the child’s costumes. These costumes will be made available to the child for other Halloween related events (such as school Halloween Parties) if need be.

Christmas Eve, Christmas Day & Christmas School Break

The Break shall be shared equally and defined as per the dates of J[…]School or the school board within the district M.N. attends.
The Break will be defined as beginning on the last day of school (inclusive of PD days and early dismissals) and ending on the first day of school. The transition shall take place at noon of the midway point. Every attempt shall be made to incorporate the regular rotation of weekends into the schedule.
Each year the father shall spend time with the child during the first half of the break and his regular weekend incorporating Christmas Eve and Christmas Day into this period. The mother shall spend time with the child during the second half of the break and her regular weekend incorporating New Year’s Eve and New Year’s Day. The break shall be attached to each parents’ regularly scheduled weekend, in order for the parents’ regular rotation of weekends to remain undisturbed.
Either parent may elect to travel during this period over their own scheduled time with M.N.. Should the mother elect not to travel during this period she shall not incorporate another week in December into her Additional Travel Time. The Thanksgiving and Christmas School Break may fall so as Thanksgiving encroaches on the mother’s travel allotment for December).

Professional Activity Days and Other Non-Specified School Holidays

If a PA day or other school holiday that has not been identified in the parenting plan falls on a Friday the child shall be resident with the parent who would normally have them that weekend from Thursday after school until the regular schedule resumes with drop off to school on Monday morning. If the PA day is a Monday the child shall be resident with the parent who would normally have her that weekend from Friday after school until Tuesday morning with a drop off to school. This pattern will also be applied in the event that a PA day precedes a holiday.
In the event that a PA day or other school holiday that has not been identified in the parenting plan falls on a weekday it shall be as per the usual schedule. (Each parent shall make every effort to schedule travel over PA days that fall during their own parenting time).

RIGHT OF FIRST REFUSAL

If one parent cannot be available to care for the child during his/her usual and/or holiday scheduled time for one overnight or more, the other parent shall be given the option of “right of first refusal” to care for the child in his or her own home, prior to the resident parent calling a third party for childcare assistance. It is the responsibility of the parent seeking childcare assistance to transport the child as per transition protocols. If the other parent cannot accommodate the request to care for the child, the resident parent is responsible for arranging alternate childcare. The parents will not seek make up time for the missed parenting time.
The above clause does not preclude either parent from calling on each other for childcare assistance whenever they wish for shorter periods of time.

CHANGES TO SCHEDULE

This change applies to when the non-resident parent would like to have the child for a special occasion and when the scheduling of these occasions is out of the control of the non-resident parent. Examples are: family weddings, work Christmas party, family birthdays, special anniversaries, etc. Should the need arise, the parents shall communicate by email about a request for a change or modification to the usual and/or holiday schedule with as much notice as possible. A response shall be provided within 48 hours of receiving the email. If an answer cannot be given within this time, the parents shall advise when he or she expects to be able to notify whether or not the change is agreeable. Agreed-to changes shall be finalized in writing.

2.The parents shall canvas proposed and/or potential changes to the schedule first with the other parent prior to mentioning anything to the child about a change and/or a special activity.

3.The parent who first receives an invitation for the child to attend a friend’s birthday party shall advise the other parent in writing, forthwith, if the child is scheduled to be with that parent during the time of the party. The resident parent shall make every effort to allow the child to attend these parties, taking into account previous plans as well as the child’s preferences. It may be necessary for the resident parent to change plans they may have made that may not be as important to the child as the party is (e.g., going out for dinner with friends). The resident parent is responsible for organization and payment of the birthday gift.

It is understood that traffic and inclement weather may cause delays. Notwithstanding, it is recommended that every effort (including allowing for more time when necessary) shall be made to be punctual in the transfer and pick up of the child for parenting time and for activities. If one parent cannot transfer the child within 15 minutes of the scheduled time, he or she shall notify the other parent by text message when the need for the delay arises.
Significant changes in the drop-off and return times shall be communicated to the other parent as soon as these changes become known to the parent having to make them.

TELEPHONE AND EMAIL COMMUNICATION

The resident parent shall facilitate phone, Skype or Facetime contact with the non-resident parent daily. The length of the contact shall span the duration of M.N.’s age.
The parents shall seek to determine a mutually agreeable time for the daily call. Schedules and routines of children cannot always be predicted. Therefore the obligation is to facilitate one call per day at a time that fits into M.N.’s schedule. In an effort to reduce the conflict around telephone calls, in the event that the non-resident parent is not available to take the call, the parent has no further obligation to further facilitate contact on that day.
The parents shall encourage the child to feel comfortable while communicating with the other parent and shall afford the child the privacy to do so.

TRAVEL

When a parent travels alone or with the child, the parent will provide a contact number/Skype or Facetime contact to the resident parent in case of a child-related emergency and/or if the child wants to contact the traveling parent.
The location(s) and phone number(s) of the child’s whereabouts when traveling with the resident parent out of town shall be provided prior to departure to the non-resident parent in case of an emergency.
The child may travel with either parent outside of Canada as per the usual and holiday schedules, and as per the Additional Travel Time protocols, with written notice to the other parent as soon as knowledge of travel is available but with no less than 30 days notice. A full itinerary (i.e., location, airline name and number, times of travel, hotel name and number, etc.) shall be supplied at the time written notice is provided.
The written notarized consent required by customs/immigration and the necessary documentation required for travel (i.e., birth certificate, passport) shall be provided to the traveling parent no less than 72 hours prior to departure. The traveling parent shall be responsible for the securing and the costs of the notarized consent.

RESIDENTIAL & JURISDICTIONAL MOVES

Maintaining two residences within a reasonably close proximity is preferable as it enables a smoother implementation of the Parenting Plan and allows frequent access to both parents. It is recommended that the distance of each of the family homes does not exceed 10 KMs from M.N.’s school. No less than sixty days notice shall be given to the other parent(s) regarding a residential move.

LEGAL DOCUMENTS

The mother should be the librarian of M.N.’s health card, Canadian passport, and birth certificates and the father shall have photocopies. The health cards and birth certificates shall travel with M.N. when she travels out of town overnight. The respective cards shall be returned to the mother when the child is returned. The mother is responsible for renewing M.’s Canadian passport, and does not require the consent of the father.

PUBLIC INFORMATION

The Respondent shall not now or in the future show M.N. anything in any medium whatsoever related to the parties’ separation including but not limited to: (a) emails; (b) letters; (c) texts; (d) documents; (e) court documents; (f) court orders. The Respondent shall not now or in the future create and/or post and/or disseminate and/or publish and/or release any information or documentation or story or book in any medium whatsoever related to the parties’ separation.

All other relief claimed by the parties as set out in their draft orders as submitted with their closing submissions is dismissed.
The parties may submit written costs submission to me, first by the Respondent within 60 days, followed by the Applicant within 30 days thereafter.

Chiappetta J.

Released: May 13, 2016

[^1]: The schedule is as follows: the father’s parenting time is from Friday following school to Monday morning every other weekend; Thursdays from after school until drop off at school on Friday morning following his own weekend, and Tuesdays from after school until drop off at school on Wednesday morning following the mother’s weekend. [^2]: This clause overrides the particulars of Additional Travel Time. [^3]: The holiday schedule shall take precedence over the usual schedule as detailed below unless otherwise indicated. Make up time is not applicable unless indicated specifically. [^4]: Examination of the schedule once per year (e.g., in April) with respect to changes for various special days as outlined in the Parenting Plan, may indicate that a switch of one weekend allows the rest of the schedule as below to fall into place and thus minimize the number of changes required. [^5]: If the schedule requires changes to the usual rotation of weekends, the usual rotation will resume as soon as possible. This may involve the child spending two consecutive weekends with each parent.

REASONS FOR JUDGMENT

Overview

Procedural Background

The Applicant

The Respondent

Post-Separation Conduct

Dr. Holloway

Ms. Jacqueline Vanbetlehem

Relationship of the Parents to M.N. and Impact of the Parental Conflict on M.N.

Clinical Impressions and Observations of the Parties

The Mother

The Father

Issues between the Parents

Allegations of Emotional and Financial Abuse

The Father’s Impulsivity and Lack of Understanding of the Impact of his Behaviours

Transitions

The Assessor’s Recommendations

The Mother’s Proposal to Relocate to California

Recommended Parenting Plan

Recommended Decision Making

The Law

Evidence on Parenting and Mobility Issues

The Applicant

The Respondent

G.K.

N.M.

N.C.

Y.N.Y.N.

A.N.

D.Z.

M.B.D.S.

F.Y.

Y.P.

Adverse Inference

Analysis

i. Custody of M.N.

ii. Decision Making

iii. Mobility: Primary and Habitual Residence of M.N.

iv. Parenting Time

v. Communication

vi. Legal Documents

vii. Iranian Passport

viii. Non-Removal from Ontario without Consent

ix. Delegation

x. Publish information

xi. Psychiatric Assessment

xii. Divorce

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 4