Rosen v Bromfield, 2016 ONSC 4033

Court File and Parties

COURT FILE NO.: FS-11-17651 DATE: 20160617

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Harris Rosen Applicant – and – Kimberley Bromfield Respondent

Counsel: Lisa Baumal for the Applicant Self-Represented

HEARD: June 6, 7, 8, 9

REASONS FOR JUDGMENT

Madam Justice Chiappetta

Overview

1The court is tasked with rendering a decision on the custody and access of the parties’ five-year-old son. It must do so in the best interests of the son, carefully considering the evidentiary record before it. The evidence demonstrates the love between the mother and her son and the desire of the son to spend meaningful time with his mother. It is a relationship that is properly supported and encouraged in the son’s best interests. The evidence further demonstrates, however, that the mother suffers from a psychiatric illness for which she has refused recommended treatment. The court cannot ignore this fact when assessing the son’s best interests in the context of custody and access. Unless and until there is objective evidence sufficiently refuting the mother’s diagnosis or objective evidence establishing that the illness is being treated as recommended, the court has no choice, in the best interests of the son, but to award custody to the father, with supervised access to the mother.

Factual Background

2The parties began living together in January 2009. Their son, Louis Ashley Rosen (Louis), was born on March 9, 2011. The parties separated in September 2011.

3The Applicant commenced this proceeding by application issued October 13, 2011. Despite competing allegations about the other’s inability to parent, the parties consented to a temporary order for custody and access shortly thereafter, on November 10, 2011 (the temporary order). They agreed that joint custody would be in Louis’ best interests, and that parenting time should be shared equally through an alternating weekly schedule of 4 nights/3 nights. The parties negotiated some changes to the temporary order to accommodate the requirements to receive a subsidy for Louis’ daycare and signed statutory declarations to this effect on September 13, 2012 and March 28, 2013. Holiday time and special occasions were also negotiated outside of the temporary order and respective statutory declarations, without issue. The parties worked amicably together on custody and access in the best interests of Louis, without conflict, for over three years. In practice, Louis spent about 60% of his time with the Respondent.

4In March 2015, the Respondent began describing perceptions to the Applicant that caused the Applicant to be concerned about her mental well-being. By text message, the Respondent alleged that she was being stalked, that the Applicant’s associates arranged to have her apartment broken into and that someone was squatting in the flat above her and intercepting all of her online activity. Further the Respondent described a situation to the Applicant wherein someone was taking pictures of her and Louis in the park so she grabbed his camera and called the police. The Respondent also expressed her belief that ISIS was bugging her phone and someone at Louis’ daycare was poisoning him. I accept the testimony of the Applicant in this regard. He had no cause to fabricate such a story to gain a position on custody given the demonstrated cooperation between the parties in the previous years. In my view, the Applicant’s conduct as described in paras. 5-10 below was motivated by a genuine concern for the well-being of the Respondent and the safety of their son.

5The Respondent had access with Louis on Fridays. Commencing January 2015, she kept Louis out of daycare on Fridays. The Respondent kept Louis out of daycare from Friday May 22, 2015 through to Monday June 1, 2015, causing the Applicant to miss his access with Louis from Monday May 25, 2015 to Thursday May 28, 2015. The Respondent testified that Louis was sick from May 25 to May 28, but she did not take him to the doctor.

6The Applicant became increasingly concerned about the Respondent’s mental health and the safety of Louis. He sent her a text on May 27, 2015 at 5:43pm saying that at 5:25pm he showed up at daycare to pick Louis up and he was not there and has not attended since May 21, 2015. The Applicant advised the Respondent that the daycare told him that she had not called and notified them of his status. His text continued: “Louis is designated to be in my custody by a legal signed agreement. Bring him to my home now. If he does not arrive by 7:30pm I will file a report.” The Respondent did not respond to his text. The Applicant then called the Respondent’s mother to assist him with accessing Louis. The Respondent’s mother attended at the Respondent’s home but the Respondent would not permit her mother to take Louis to the Applicant.

7On May 28, 2015, the Applicant reported his concerns to the Children’s Aid Society (CAS). A caseworker attended at the Respondent’s home in the evening and was not permitted access to her home. The caseworker deemed Louis safe for the evening and returned the next morning with the police. When observed the next morning by the caseworker, Louis appeared healthy. The caseworker and the police left.

8On June 1, 2015, the Respondent did not bring Louis to daycare where the Applicant was to pick him up for access. The Respondent testified that Louis was not sick on June 1, 2015 and that she just kept him home with her as Louis does not legally have to be in school at his age. When Louis was not returned to the Applicant, the Applicant went to a Justice of the Peace who authorized an involuntary placement of the Respondent in the custody of a psychiatric facility for up to 72 hours for the purposes of a psychiatric assessment, in accordance with section 16 of the Mental Health Act, R.S.O. 1990, c. M.7. The Respondent was admitted to the Sunnybrook Hospital Psychiatric Ward for three nights. Upon admission, the physician certified his/her reasonable cause to believe the Respondent is suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to herself and serious bodily harm to another person.

9The discharge report was authored by Nikola Grujich, M.D., PSY on June 4, 2015 and filed on consent as an exhibit as trial. Dr. Grujich wrote therein that he spoke “at length” with the Respondent’s mother “who described a multi-year history of persecutory and paranoid delusions.” The doctor further noted that the Respondent’s mother brought in documents the Respondent wrote “outlining her delusional beliefs including fears of being tracked and monitored by various agencies.” Dr. Grujich believed that “her provisional diagnosis is Delusional Disorder: however after a 2 day assessment the differential remains wide.” The doctor noted that the Respondent was unwilling to stay in the hospital as a voluntary patient and there were no grounds to hold her as an involuntary patient. The discharge diagnosis is recorded as Delusional Disorder. The discharge plan called for daily medication (abilify 2.5mg), short term follow up and longer term psychiatric care. The Respondent disagrees with the discharge diagnosis. She has not complied with the recommended medication or follow up treatment.

10The temporary order of November 10, 2011 was amended by ex parte motion of the Applicant brought on June 4, 2015. Primarily based on the evidence described at paras. 4-8 above, the Applicant was granted temporary sole custody and the Respondent was permitted supervised access at an access centre. A restraining order was also put in place, prohibiting the Respondent from coming within 200 meters the Applicant, his residence, and Louis’ daycare and school. The orders for temporary custody and the restraining order have remained in place since June 4, 2015, despite numerous court appearances by the parties thereafter. The Respondent’s access has remained supervised by court order, although the Applicant has since consented to supervision by the Respondent’s mother, Ms. Chisholm, the Respondent’s close family friend, Ms. Longmore (the Respondent’s “aunt”) or the Access for Parents and Children in Ontario.

11From June 2015 to August 2015, the Respondent’s access took place at her mother’s home and was supervised by her mother. In August 2015, the Respondent no longer wished to have access at her mother’s home. She believed that her mother had discredited her. Supervised access then took place at the Respondent’s aunt’s home from August 2015 until September 2015. The Respondent’s supervised access was then returned to her mother’s home in October 2015. Access to Louis is available to the Respondent at her mother’s home every weekend, for the entire weekend, as Louis spends every weekend at his maternal grandmother’s home. Since October 2015, however, the Respondent’s access attendance has been inconsistent and irregular. It is unclear how many hours she has spent with Louis since October 2015, but it has not been every weekend and it has not been for the entire weekend.

12Justice Horkins, in her endorsement dated July 21, 2015, ordered that pursuant to Rule 14(7) of the Family Law Rules, O. Reg. 114/99, the issues of custody and access shall proceed to trial. In her endorsement of March 22, 2016, Justice Stevenson scheduled the trial date for June 6, 2016, and ordered that the issues for trial are custody and access as ordered by Justice Horkins and the issue of the restraining order currently in place as it affects custody and access.

13The parties present today as the only two witnesses at trial.

14The Applicant states that he realizes that Louis loves and needs his mother. He would prefer that custody and access be restored to that as set out in the 2011 temporary order of Justice Kiteley. The Applicant’s concern however is that the Respondent continues to deny her diagnosis of delusional disorder and refuses the recommended treatment. He therefore remains concerned about the well-being of Louis in her care. He asks the court to grant him sole custody of Louis on a final basis, with supervised access to the Respondent. He further asks that the court review the final order when the Respondent provides a report or an affidavit by her treating psychiatrist that she is complying with recommended treatment and that her delusional disorder is being treated and under control. The Applicant asks the court to maintain the restraining order in place except for the purposes of exercising access to Louis. The Applicant is not seeking an order for prospective child support.

15The Respondent states that prior to June 2015 she had no history of a mental health diagnosis. She strongly disagrees with the diagnosis of delusional disorder. She feels that the Applicant’s efforts at trial are frivolous and vexatious and without evidentiary foundation. The Respondent asks the court to terminate the restraining order and restore joint custody and shared parenting in accordance with the 2011 temporary order, subject to Louis’ wishes to amend the access schedule therein, at his discretion.

16For reasons set out below, upon carefully considering the evidentiary record before me, I have concluded that it is in Louis’ best interests that his father be granted sole custody, with supervised access to his mother.

Law

17In determining custody and access, the only consideration is what is in the best interests of the child. Each case must be decided by considering the unique circumstances and needs of the individual child. In determining what parenting arrangement is in a child’s best interests, courts are guided by the list of factors set out in section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 [CLRA]. The relevant portions of section 24 read as follow:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). (2) The court shall consider all the child's needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who reside with the child, and (iii) persons involved in the child's care and upbringing; (b) the child's views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

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.

Analysis

18On September 30, 2015, Madam Justice Horkins requested the involvement of the Office of the Children’s Lawyer (OCL). On October 16, 2015, the OCL consented to provide services pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Deborah Connerty, M.S.W., R.S.W. is the clinician assigned to the file. Her resume reflects her depth of experience and qualifications to conduct the investigation as assigned. Ms. Connerty’s report is dated March 16, 2016 and was filed as an exhibit at trial. Ms. Connerty collected her information through interviews with the Applicant, the Respondent and the child; an observation visit between the Applicant and Louis; telephone interviews with a number of collateral contacts; and by reviewing written medical reports and court documents. Her report is summarized as follows:

• Applicant’s Position: Mr. Rosen wants Ms. Bromfield to comply with the treatment plan given to her at Sunnybrook Hospital, and then he would like to return to joint custody and the previous parenting schedule. His concerns are the Respondent’s mental health and inability to follow her treatment plan, her paranoid behaviour, her lack of consistency in attending access visits, and the content of her communications with Louis on the telephone.
• Respondent’s Position: Ms. Bromfield denies having a mental health issue, questioning the validity of the diagnosis from Sunnybrook, and her mother and the Applicant being the source of information to have her diagnosed. She is concerned about her mother supervising access, citing abuse by her mother, and would like to return to joint custody and the previous parenting schedule, given the amount of time she has cared for Louis over his lifetime. She is frustrated at not being heard within the legal system.
• Ms. Connerty described the familial, health, and employment history of both parties. From her interview with Mr. Rosen, she noted his concerns with regards to Ms. Bromfield’s strange behaviour, his concern about Louis having false hope about seeing his mother, and his statement that Louis misses his mother and would want to live with his mother if asked.
• From her interview with Ms. Bromfield, Ms. Connerty noted that her income is intermittent, that she uses marijuana, and that she is currently in a relationship with Alex Radovic, who she sees between two and four days a week. She reported occasionally seeing Louis. In describing the previous custody and access arrangements, Ms. Bromfield noted that she made everything convenient for Mr. Rosen. She knew he loved Louis and she recognized the importance for Louis to have a supportive father in his life. She described the events in late May and early June, and did not understand why the police came in and put her in handcuffs on June 1. She does not agree with the delusional disorder diagnosis, and had a private psychological assessment done by Dr. McDowall that did not identify any concerns. She reported that she went back to Sunnybrook two weeks after discharge and she informed them that her family lawyer and family doctor advised her to get an independent assessment, and they told her another psychiatrist would call her for an assessment, but they have not called her. She said that she did not want to have the access to Louis at her mother’s home, and she would rather exercise access at Ms. Longmore’s home. Ms. Bromfield described all of Louis’s positive traits, and informed that she had a close relationship with him. She noted how Louis’s demeanour had changed over the last year, and he has become more aggressive. She said that she is not able to discipline him because she is being supervised. She expressed concern over the long term impact all of this would have on Louis and expressed a desire to return to the previous parenting and custody arrangement.
• Ms. Connerty noted that Ms. Bromfield did not fully participate in her investigation. She described her attempts to schedule an observation visit with Ms. Bromfield, but each of the planned visits was cancelled by Ms. Bromfield or the access supervisor. Ms. Connerty commented that it is concerning that Ms. Bromfield chose to discontinue her participation in the investigation. It leaves more questions than answers and has made it more difficult to move towards her stated goal of returning to the previous access agreement.
• Ms. Connerty attended a home-visit with the Applicant and Louis, and noted that the Applicant lives in a spacious 1-bedroom apartment, there is a children’s bed in the Applicant’s room and age appropriate toys. She described the dinner, television, and bedtime routine she observed, noting that Louis appeared comfortable with his father and in his surroundings.
• Ms. Connerty noted that Louis is a friendly, highly communicative, playful child. He has voiced how much he misses spending time with his mother to many people. Mr. Rosen confirmed that this has been a difficult time for Louis. Ms. Connerty commented that Mr. Rosen provides a structured environment and a strong support network for Louis, which has been beneficial for Louis but has not filled the gap of having regular contact with his mother. Ms. Connerty concluded from the investigation that it is in Louis’s best interest to return to having regular contact with his mother and that everyone must find a way to engage Ms. Bromfield in this process. She noted that Ms. Bromfield wants to side-step any unnecessary participation with structure or authority, and she needs help to understand and accept what areas of this process she has control over and what parts she must accept.
• Ms. Connerty noted that Ms. Chisholm, Ms. Bromfield’s mother, did not want to be interviewed for the investigation. While Ms. Chisolm and Mr. Rosen provided the concerning information about Ms. Bromfield, other collaterals have not supplied the same concerning information. The Respondent’s current doctor, her psychologist Dr. McDowall, and Patricia Longmore all supplied information that was favourable to Ms. Bromfield, and none had concerns related to her mental health.
• Ms. Connerty commented that another deficit in the information gathered is about Ms. Bromfield’s current partner, Alex Radovic, who could have provided useful information.
• Ms. Connerty stated that “whatever is going on with Ms. Bromfield, her mental health, her difficulty trusting this process, her participation in the legal process, all signs show that she has had an extremely close relationship with Louis.” She noted that when Ms. Bromfield had a positive relationship with the supervisor, Ms. Bromfield was consistent in attending her access visits with Louis. Ms. Connerty emphasized the importance of a consistent access plan that is perceived as neutral. She suggested that if Ms. Bromfield follows through consistently for eight weeks, there should be a plan for what occurs next.
• Her recommendations are as follows: (1) Mr. Rosen should have temporary custody; (2) Louis should continue to reside with Mr. Rosen; (3) Louis should have supervised access with Ms. Bromfield on Saturdays or Sundays weekly for two hours, either supervised by Ms. Longmore or at the Access for Parents and Children in Ontario; (4) the case should be case managed by one judge that allows for an increase in access, at approximately two month intervals. The markers for increase should be based on behavioural requirements rather than compliance with a medication regime; and (5) Ms. Bromfield should seek support from a therapist she trusts, she should be able to seek services from Dr. McDowall to support her with coping with the demands of increased scrutiny she is currently experiencing.

19The Respondent testified to her belief that Ms. Connerty was an expert advocating on the Applicant’s behalf. Ms. Connerty presented at trial and was cross-examined by both parties. I found her evidence, investigation and her conclusions to be both informed and objective. I accept her evidence as credible and impartial.

20I accept Ms. Connerty’s conclusion that the Respondent failed to participate in the OCL investigation. The Respondent blames the failure for her to attend an observation visit on the Applicant and his counsel. I do not accept this explanation. The Respondent did not attend the observation visit scheduled at her mother’s home on November 29, 2015. On December 1, 2015 she informed Ms. Connerty that her mother told her she was not welcome there anymore. The Respondent further informed Ms. Connerty that the last time she was at her mother’s home her mother told her she was going to cancel the visit. The observation visit was then scheduled at the Respondent’s aunt’s home for January 17, 2016. This visit was cancelled by her aunt who informed Ms. Connerty that the cancellation was a result of a disagreement between her husband and the Respondent. On January 25, 2016, Ms. Connerty attempted to schedule another observation visit with the Respondent. When Ms. Connerty phoned the Respondent, the Respondent informed Ms. Connerty that she did not feel comfortable communicating with Ms. Connerty over the telephone. The Respondent requested that all communications take place via email. The Respondent provided Ms. Connerty with an incomplete email address and did not respond to her emails but for a text message saying “thanks, I got it”. An observation visit did not take place. The Respondent must bear the blame for this. She asked that the OCL be assigned to this matter. She testified that she understood the importance of the observation visit to the process. She should have taken all steps within her control to ensure that an observation visit took place.

21I disagree with Ms. Connerty’s recommendation to defer a final decision on custody. By order dated July 21, 2015, Justice Horkins ordered that the issues of custody and access shall proceed to trial. The parties have been embroiled in consistent litigation for over a year. The issues have not changed and the conflict has not dissipated. Louis is getting older. He will be commencing Grade One in the fall. Decisions with respect to his education will need to be made. The evidence demonstrates that Louis loves his mother and wants to spend time with her. It is the court’s role to render a decision in his best interests. I cannot see how it is in his best interest to continue the conflict in the hope that the Respondent shows consistency in her access attendances without any concerning behaviours. The court is tasked with assessing the evidence as it presents today in light of the factors set out at s. 24(2) of the CLRA. 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 Louis, I have considered each factor in reaching my decision.

22In considering the best interests of Louis, the court cannot ignore the Respondent’s June 2015 provisional diagnosis of delusional disorder and her failure to follow the recommended treatment plan. The author of the discharge report, Dr. Grujich, psychiatrist, did not prepare a report in accordance with Rule 20.1(10) of the Family Law Rules. Dr. Grujich did not testify at trial and his opinion evidence was not tested by cross-examination. His medical conclusions were based in part by information received by him from the Respondent’s mother. The Respondent’s mother did not testify at trial and her statements as set out in the doctor’s discharge report are therefore hearsay. The Respondent testified that her mother would not respond to a subpoena and she is unwilling to participate in the litigation. I accept the medical opinion as set out in the discharge report, however, despite its noted evidentiary deficiencies, for the following reasons taken together:

1. It is the only objective evidence of the Respondent’s mental well-being upon a psychiatric assessment. The court was provided with no objective psychiatric opinion to refute the diagnosis or to demonstrate that the Respondent is receiving the medical care she requires.
2. The Respondent testified that she is presently not under the care of a psychiatrist. She is not taking any prescribed medication. The last time she saw a psychiatrist for a psychiatric assessment was Dr. Grujich in June 2015.
3. The Respondent testified that she is presently not under the care of a psychologist. The last time she saw a psychologist for a psychological assessment was Dr. McDowall, in July 2015. Ms. Connerty’s notes reflect the details of her collateral interview with Dr. McDowall. It is noted therein that Dr. McDowall originally saw both the Respondent and Applicant in August to September 2011, and then continued seeing only the Respondent after September 2011, for nine sessions between then and March 2012. In her original sessions with the two parties, they both reported physical, emotional and psychological issues, and their sessions were difficult with a lot of shouting. Dr. McDowall then saw the Respondent in July 2015 for a psychological assessment, which she conducted using the Personality Assessment Inventory. She reported that she did not find the Respondent to be delusional, that she had no unusual thoughts and that everything came out normal. One unusual thing Dr. McDowall noticed was that the Respondent had said that someone had done something shady with her accounting results and she won some type of complaint about it. Dr. McDowall assumed this was true. She informed that the Respondent’s behaviour was more consistent with someone who had been in an abusive relationship and not consistent with someone with a delusional disorder.
4. On July 21, 2015, Justice Horkins ordered the Respondent to provide the Applicant with the clinical notes and records of Dr. McDowall within 30 days. But for a questionnaire, the records were not provided as ordered. The clinical notes and records of Dr. McDowall were not filed as evidence at trial and do not form part of the evidentiary record. Dr. McDowall did not testify at trial. Ms. Connerty’s interview notes of Dr. McDowall represent hearsay opinion evidence. Dr. McDowall is a psychologist and not a psychiatrist. She did not conduct a psychiatric assessment. The Respondent testified she believes that Dr. McDowall provided a reassessment of her discharge diagnosis. Her understanding is that the reassessment was not accepted as such by Justice Horkins as Her Honour felt the conclusions therein to be partial to the Respondent given the long standing client-patient relationship between the doctor and the Respondent and the care by Dr. McDowall of the Applicant as well as the Respondent. For these reasons, taken together, the interview notes of Dr. McDowall do not sufficiently refute the conclusions of Dr. Grujich.
5. On March 22, 2016, Justice Stevenson ordered the Respondent to provide the Applicant with the clinical notes and records of Dr. Simms by April 28, 2016. The records were not provided. At an attendance before Justice Kiteley on April 28, 2016, the Respondent advised Her Honour that, despite the order of Justice Stevenson, she did not consent to producing the records of Dr. Simms. Justice Kiteley’s endorsement of the same day reflects that she told the Respondent that as Dr. Simms was on her witness list it was implicit that her clinical notes and records would be produced. Dr. Simms was on the Respondent’s witness list described to testify on behalf of the Respondent about “current future psychological impacts.” The Respondent testified at trial that Dr. Simms is a psychiatrist and a long-time friend she spoke to and sought direction from in terms of how to address Dr. Grujich’s diagnosis. She stated that she did not ask Dr. Simms to conduct a psychiatric assessment nor did she ask Dr. Simms to refer her to a psychiatric colleague for that purpose. She advised the court that while Dr. Simms was on her witness list, she decided not to call her as a witness at trial.
6. Ms. Connerty reports that the Respondent stated that she wanted to be reassessed for the delusional disorder diagnosis. The clinical notes and records of Dr. Chow, the Respondent’s family doctor since February 2015, were not filed as evidence in this trial. Ms. Connerty reviewed the records of Dr. Chow. She noted that he informed therein that the Centre for Addiction and Mental Health (CAMH) had misunderstood the doctor’s referral for a psychiatric reassessment and thought that the Respondent wanted a parenting capacity assessment. Ms. Connerty spoke to Dr. Chow about this and reports that Dr. Chow agreed to request the psychiatric reassessment for the delusional disorder. CAMH agreed to conduct the reassessment but when CAMH contacted the Respondent she said no to the reassessment. The CAMH documentation informed that the Respondent could contact them again for the reassessment. She has not. The Respondent testified that while she would be open to participate in a psychiatric reassessment with a psychiatrist, the Applicant would have to pay for it or it would have to be conducted by one of the 12 psychiatrists recommended by her family doctor in 2015. She testified that she would not attend at CAMH for a psychiatric reassessment as CAMH was referred to in the OCL report and by the Applicant in his testimony.
7. The Respondent described the termination of her employment from Canadian Tire in 2012. She testified that she was employed as a support manager for five years when she was laid off for a conflict of interest. She refused to provide details of what she referred to as a conflict of interest. She testified that at the time of her termination she was earning approximately $50K a year and that she received a severance package upon commencing a wrongful dismissal action against the company.
8. The Respondent could not recall the name of her direct supervisor at Canadian Tire but testified that her direct supervisor and her supervisor’s two daughters and executive assistant followed her after she was terminated. She stated that on three occasions she saw her former boss driving down the street upon which she lives in an aggressive manner to intimidate her. Her former boss’s executive assistant lived in the Respondent’s neighbourhood. The Respondent stated that the executive assistant befriended a person in the Respondent’s apartment building and walked by her home all the time. She testified that her former boss’s daughters followed her on three occasions. They would walk by her and discuss details of the wrongful dismissal action, referring to the Respondent as “he” instead of “she”. The Respondent testified to her belief that this was not a coincidence but rather that she was intentionally followed by her former boss, her boss’s two daughters and her boss’s executive assistant.
9. The Respondent testified that she changed her cell phone numbers on three occasions in the last five years. She changed her number the first time as she was receiving crank calls that lasted all day and prevented her from using her phone. She changed it a second time because someone kept calling her and breathing heavy into the phone.
10. The Respondent testified that in January 2015 the Applicant’s “associates” had people break into her home. She did not report the break-in to the police as the only items disturbed were those in her fridge. She stated that subsequent to the break-in she drank juice from one of the bottles in her fridge that was disturbed and she contracted malaria. She did not attend her family doctor. She attended a walk-in clinic but could not wait for medical attention because her fever was too high. She then attended an acupuncturist/naturopath who diagnosed her with malaria and gave her “malaria pills”. She testified that the acupuncturist told her that her liver was five days away from shutting down. She stated that she recovered in two weeks. No medical records were submitted to the court to evidence this testimony.
11. The Respondent testified that the Applicant’s associates and strangers were following her and Louis to the community centre and the park and taking pictures of them.
12. During her testimony, the Respondent was presented with a number of text messages she agreed she sent to the Applicant in March and April 2015. The text messages reflect the Respondent’s belief of the following: i) that she was being physically stalked by the Applicant’s associates; ii) that someone in the flat above her was intercepting all of her online activity and feeding it to the Applicant’s associates; iii) that the Applicant’s phone is tapped; and iv) that it was time for the Applicant to move. I accept the Applicant’s testimony that he has had no contact with the people referred to by the Respondent as his associates in many years. The Respondent testified that she knew the Applicant’s phone was tapped as their connection kept getting intercepted and the subject of their conversations were “floating on line”. The Respondent testified that the Applicant had to move as on her way to pick Louis up from his house a well-dressed man approached her and called her “a cunt”, a city tv van drove past her and then a large crowd of people walked by her.

23For these reasons, I accept the discharge diagnosis of Dr. Grujich and find that the Respondent is suffering from an untreated psychiatric illness. I accept the Applicant’s testimony that the Respondent kept Louis out of daycare in May 2015 as she believed the daycare was poisoning him. The evidentiary record before me does not lend itself, however, to definitively conclude how this illness affects the Respondent’s ability to parent. The Respondent failed to communicate with the CAS caseworker in a manner sufficient for the agency to render a conclusion on this issue. Similarly, the Respondent failed to participate in the OCL investigation to the extent that Ms. Connerty was left with more questions than answers about this issue. It is unclear whether the Respondent tells Louis that strangers are following them and taking pictures of them or whether she has shared her views with him about people monitoring her internet or phone calls. In my view, the court cannot restore joint custody and shared parenting time to the Respondent, in the best interests of Louis, given the unanswered questions of how her untreated psychiatric illness may affect his well-being.

24Further, there are reasons beyond the Respondent’s untreated psychiatric illness that indicate that it would not be in Louis’ best interests to return to a regime of joint custody and shared parenting time. These reasons include the following:

1. The Respondent testified that her present intimate partner is Alex Radovic. Mr. Radovic did not testify at the trial. I am concerned that the Respondent did not provide Ms. Connerty with Mr. Radovic’s contact information when she was interviewed during the OCL process. The court has no information about Mr. Radovic or his relationship, if any, with Louis.
2. I also have significant concern with the Respondent’s present living arrangements. She testified that as of a week ago she is living with a friend, Carl Denny. She stated that Mr. Denny is just a friend. The Respondent refused to provide the address of her present residence during cross-examination. She has no reasonable basis for refusing to disclose the address, particularly given her stated intention to exercise access at this place of residence. Her evidence was that she is involved with legal proceedings with her landlord from her previous residence although she refused to offer details of the proceedings. The Respondent testified of her intention to rent a three-bedroom home for her and Louis so Louis could have his own room. She refused to answer whether anyone would be living in the home she intended to rent. The Respondent was unable to advise how she would afford to rent such a home having previously advised the court that her total monthly income was $300, received from Ontario Works.
3. The Respondent testified that she failed to attend the trial management conference of May 13, 2016, despite having received notice of the conference date on March 22, 2016. Her evidence was that she was double booked that day and could not attend. She advised the court that she was working from home on a volunteer basis. In terms of her employment, she stated that since May 2014 she has been trying to build up a clientele for contracted tax and accounting work but to date she does not have any clients. She failed to provide her 2012, 2013 and 2014 income tax returns, notices of assessment and proof of income, despite being ordered to do so by Justice Horkins on July 21, 2015.
4. The Respondent’s access has been supervised for over a year and her attendance has been sporadic and inconsistent for over eight months. When it does occur it is for a few hours on one day over the weekend. The Applicant has been providing Louis with the stability of day-to-day living supported by his mother and the Respondent’s mother. Stability of this sort and consistency of his routine will only serve to benefit Louis.

25The Applicant was diagnosed with Attention Deficit Hyperactive Disorder in 2011. His treatment includes daily medication. The evidence indicates that his illness is under control and that his diagnosis as treated does not affect his ability to parent. The Applicant lives in a large one-bedroom apartment. He has a child’s bed along with his own bed in the bedroom. The apartment was observed by Ms. Connerty to be clean with sufficient furniture for two and neatly organized age-appropriate toys. During her visit with Louis at the Applicant’s home, Louis presented as comfortable in his surroundings and familiar with his typical routine. The Applicant facilitates access to the Respondent by having Louis available to her at her mother’s house every weekend. He is supported in his care for Louis by both his mother and the Respondent’s mother.

26It is for these reasons that I have concluded that sole custody and principal residence of Louis should remain with the Applicant on a final basis.

27The relationship between Louis and the Respondent is an important one. The Respondent should continue to be granted access. For reasons noted above at paras. 22-24, in my view, it is in Louis’ best interests that the access remain supervised. Louis expressed to Ms. Connerty that sometimes his mother comes to his access visits and sometimes she does not. He informed that she says she will come but that she doesn’t and that she is always late. It is in Louis’ best interests that the Respondent attend each access session as scheduled. Louis should be able to depend on such consistency.

28The Respondent does not seem to want to consistently attend access supervised by her mother. While she testified that presently her relationship with her mother is amicable, there has been significant conflict in the past that was in part a stated cause for the Respondent’s failure to attend access as scheduled at her mother’s home. The Applicant confirmed the tumultuous relationship between the Respondent and her mother. In my view, having the Respondent’s mother supervise the access visits is not in Louis’ best interests given the demonstrated history of the breakdown of the mother-daughter relationship and the effect of that breakdown on the Respondent’s consistent attendance at her scheduled access visits.

29The Respondent’s aunt did not testify at trial. The evidence is that she is in Jamaica at present and that, since January 2016, her husband has refused to permit the Respondent to attend supervised access at their home. Ms. Connerty opines that access could be supervised by the aunt in the community and informs that the aunt is willing to facilitate this. The Respondent testified, however, that since January 2016, she no longer has a relationship with her aunt such that supervised access with her aunt is no longer a possibility. She would not be open to attend access supervised by her aunt in the community.

30As noted, consistent access with his mother is in Louis’ best interests. To ensure consistency, the access should occur at Access for Parents and Children in Ontario. The parties have already completed their intake interviews so access should be able to be implemented without delay. Further, the observations will present an objective assessment of the Respondent’s attendance and behaviours which will assist the trier of fact in any future assessment of custody and access. This is of particular relevance as the court was without the direct evidence at this trial of either of the parties who have supervised the Respondent’s access in the past.

31I do not agree with Ms. Connerty, however, that the markers for the Respondent’s increase in access should be based on specifically outlined behavioural requirements. Louis requires the structure and stability provided to him by his father. It is not in his best interests to hope that his mother’s behaviours will change and improve in the future and there remain many unanswered questions with respect to the Respondent’s living arrangements, her partner and her ability to parent, given her untreated mental disorder.

32In my view, a final order should be made today in Louis’ best interests, even as it pertains to supervised access. The goal for this family, however, should be to return to a shared custody and access schedule like the one in place from November 2011 until June 2015. Louis would benefit greatly from having both parents engaged equally in his life. The Respondent is open and indeed encouraged to initiate a Motion to Change should she be in a position to address the unanswered questions as noted at para. 23, particularly as they relate to her June 2015 diagnosis of delusional disorder.

33Finally, I see no reason to continue the restraining order against the Respondent, as ordered on June 4, 2015 and extended to the present day. The evidence fails to demonstrate a reasonable risk of harm to the Applicant or Louis by the Respondent. The Applicant testified that the restraining order was required as he was afraid that the Respondent would attend Louis’ school or daycare and take the child without his consent. This fear can be mitigated with an order far less imposing than a restraining order. Further, the Applicant now has a final custody order and is therefore able to advise Louis’ daycare or school of this fact and provide the institution with a copy of the court order.

Final Order to go:

1. The Applicant shall have sole custody of the child, Louis Ashley Rosen, born March 9, 2011.
2. The child’s principal residence shall be with the Applicant.
3. The Respondent shall have supervised access with the child for up to three hours every Saturday and Sunday. Supervised access should occur at Access for Parents and Children in Ontario. Physical access between the Respondent and the child shall otherwise not take place without written consent of the Applicant.
4. The Respondent shall not remove the child from his school or his daycare without written consent of the Applicant.
5. The parties’ communications shall be limited to email and text message for the purposes of facilitating access.
6. The Applicant shall use best efforts to facilitate a daily phone call between the Respondent and the child prior to the child’s bedtime. By 5:00pm every day the Respondent shall advise the Applicant by text message of her intention to speak with the child on the telephone that evening. By 6:00pm, by text message to the Respondent, the Applicant shall confirm his availability to facilitate the call and the time of the call.
7. The Respondent may initiate a Motion to Change the final order for custody and access in accordance with Rule 15 of the Family Law Rules upon serving and filing an expert report or sworn affidavit from a board-certified psychiatrist either refuting the Respondent’s June 2015 diagnosis of delusional disorder or concurring with the diagnosis of delusion disorder and informing that the Respondent is receiving the medical care she requires such that the disorder is under control and does not affect her ability to parent. The certified psychiatrist shall prepare the content of his or her report or affidavit in accordance with Rule 20.1(10) of the Family Law Rules. For greater clarity, the Respondent shall not initiate a Motion to Change prior to serving and filing an expert report from a board-certified psychiatrist, without leave of the court.
8. Should the Respondent initiate a Motion to Change as contemplated at para. 7, a case management judge shall be assigned. Subject to the discretion of the case management judge, a request shall be made to the Office of the Children’s Lawyer to update its report of March 16, 2016 and a request shall be made for production of the access observation notes from Access for Parents and Children in Ontario.
9. I will receive written costs submissions from the parties of not more than two pages, costs outlines and relevant offers to settle, first from the Applicant within 30 days and then from the Respondent within 30 days thereafter.
10. The Respondent’s consent to the form and content of this order for the purposes of issuing and entering is dispensed with.