COURT FILE NO.: FC-11-1816-1 DATE: 20160708 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

G.T.G.D Applicant – and – M.D. Respondent

Counsel: Susan E. Galarneau, for the Applicant Steve Duplain, for the Respondent

HEARD: May 19, 20, 26 and 27, 2016

reasons for decision on motion to change Toscano Roccamo J.

Nature of the Proceedings

[1] G.T.G.D. (hereinafter referred to as the Father) brought a Motion to Change the divorce order of McMunagle J. dated February 13, 2013 issued in accordance with Final Minutes Settlement following a last minute Settlement Conference averting a trial in late 2012. The settlement achieved between the Father and M.D. (hereinafter referred to as the Mother) established a shared parenting of the parties’ two children, G. Jr., born […], 2005 and L., born […], 2007. In addition, the Final Order provided for child support payable by the Father to the Mother using the “set-off” method with income imputed to the Mother as of December 1, 2013.

[2] The parties were able to reach an agreement on some of the issues as set out in “Terms of Final Order Both Parties Consent To” (Exhibit A). The remaining issues dividing the parties were set out in the “Prayers for Relief Outstanding” (Exhibit B).

[3] The Father seeks sole custody of both children and weekend access to the Mother. The Father seeks supervision of the Mother’s access only in the event of ongoing contempt of court orders by the Mother. The Father relies on the findings of contempt made by Beaudoin J. on November 16, 2015, regarding the Mother’s actions on November 27, 2014 when she took L. for a fifth sexual assault assessment on the basis of unfounded allegations of sexual abuse of the child by the Father, and on December 7, 2014 when the Mother failed to return the children to the Father.

[4] In the Motion to Change, the Father also seeks a variation of the support obligations in keeping with any change to the parenting arrangements made by this Court in the event the children are to be parented by the Mother less than forty percent of the time.

[5] The Mother’s Response to the motion seeks continuing joint custody, or alternatively sole custody of both children, with access to continue in accordance with the weekly rotation of access in place since 2013, or access on such terms as determined by this Court in accordance with the children’s best interests.

[6] In addition, the Mother claims child support payable by the Father in an amount to be determined plus any outstanding arrears.

[7] In submissions, the Mother sought a variation of the existing joint custody order to provide that the children reside with her during the week from Monday to Friday and with the Father after school Friday to Monday morning, with a final say to the Mother in the event of disagreement between the parties in relation to the children’s education, and in the event of the parents’ inability to abide by recommendations made by the school. In the alternative, if the Court is not inclined to have the children reside with the Mother during the week, she requested the children reside with her from Thursday after school to Sunday morning and, in the event of disagreement over education matters, that the parents defer to the school’s recommendations, or that she have the final say in matters of education.

[8] I note that the variation to the parenting arrangement sought by the Mother in submissions was not pleaded.

[9] The Motion to Change was set down for a half day hearing and initially came before Beaudoin J. on November 16, 2015. His Endorsement of the same date reasoned that findings of credibility in this high conflict case were best made on the basis of oral evidence received at an expedited trial in order to supplement the parties’ affidavits, the transcripts of questioning on the affidavits, and related productions including records from the Ottawa Police Service, the Children’s Aid Society of Ottawa-Carleton, the academic and attendance records from the children’s school, where both children have always attended, and the records of their family doctor.

[10] Beaudoin J.’s Endorsement also observed that the level of parental conflict appeared to be having a damaging effect on the children to such a degree that it raised protection concerns. He noted that a Children’s Aid Society (“CAS”) Case Record dated September 7, 2014 flagged the need for a Family Court Clinic Assessment if the conflict between the parties continued. The conflict was ongoing by the date the matter came before him in 2015, and he directed that his Endorsement be brought to the attention of the CAS.

[11] Regrettably, a Family Court Clinic Assessment of the parties, their children and collateral sources was not undertaken before the matter came before me for four days of trial on May 19, 20, 26 and 27, 2016.

The Issues

[12] In a Final Order dated September 17, 2015, Shelston J. addressed a number of matters in dispute which the parties have agreed will be incorporated into the Final Order of this Court upon conclusion of the trial. As reflected in the contents of Exhibit A, filed at the outset of trial, the parties agreed to the following:

1. The calculation of child support dependent on whether the children reside with the Father or the Mother at least sixty percent of the time;
2. The Father’s authority to apply for the children’s passports;
3. The requirement that the parties notify one another in the event of a change of address;
4. The entitlement to additional access, including in such circumstances as when one parent is unable to care for the children, on Halloween, Mother’s Day and Father’s Day;
5. The requirement that both parties provide written consent to the other’s travel with the children outside of a one hundred kilometer radius of Ottawa, Ontario and other terms related to access;
6. The children’s ability to call the other parent while in the care of the other, at specified times;
7. Police enforcement of parenting arrangements;
8. Additional findings of contempt against the Mother;
9. Additional provisions related to the communications between the parties and with others, including the children’s doctors, psychologist, Michelle Hogeterp and other health care providers.

[13] Before the end of the trial, they also agreed to two additional matters:

1. A new access exchange location, where the parties shall pick up and drop off the children at the Esso On the Run located at 450 Bank Street; and
2. Commencing in 2017, the entitlement of the parents to vacation with the children for up to two consecutive weeks for no more than 14 days.

[14] The agreement achieved between the parties as set out in Exhibit A, as modified by the additional agreements at trial, left the outstanding prayers for relief as set out in Exhibit B, with necessary modifications to paragraphs 8, 11 and 15.

[15] In essence, the questions left for this Court’s determination at trial were:

1. Whether the Father met the onus upon him per section 17(5) of the Divorce Act to establish on a balance of probabilities a material change in circumstances since the Order of McMunagle J. justifying a variation in the custody and access arrangements;
2. In the event that a material change in circumstances was established, what custody and access arrangements serve the children’s best interests, having regard to the factors dictated by the Supreme Court in Gordon v. Goertz, [1996] 2 S.C.R. 27, and specifically: a) The existing custody and access arrangements and the relationship between the children and their parents; b) The desirability of maximizing contact between the children and both parents; c) The views of children; and d) The disruption to the children of a change in custody.

The Parties’ Positions

The Father’s Position

[16] The Father submits that there has been a material change in circumstances in that the Mother has shown complete disregard for the children’s best interests by continuing to maintain that the children have been physically abused and, in L.’s case, sexually abused since the date of the Final Order. In particular, the Mother required L. to submit to a further sexual assault assessment on November 27, 2014. As in the case of similar allegations advanced by the Mother before the date of the Final Order, both police and the CAS investigations concluded that the Mother’s allegations were without foundation.

[17] The Father submits that these unfounded allegations amount to physical and emotional abuse.

[18] In addition, the Mother’s failure to respect the Father’s sole authority in all medical and health related decision making as required by the Final Order; her failure to ensure the children’s educational needs are met by their regular and on-time attendance at school, as well as timely completion of homework; and her failure to take any responsibility for the related distress generated for her children raises serious questions about her parenting capacity. As a result, the Father maintains that G. Jr. has suffered delays in learning and severe psychological distress manifested in psychosomatic symptoms. Moreover, L.’s distress as a result of being serially and needlessly assessed for sexual assault has been clearly voiced. She has also been found to have learning disabilities which are compounded by being late or absent from school while in her mother’s care.

[19] In short, the Father maintains that joint custody has failed to serve his children’s best interests in over two years.

The Mother’s Position

[20] The Mother’s position is that the high conflict between her and the children’s Father was apparent at the time of the Final Order as a result of a history of abusive conduct on the part of the Father. Because the high conflict existed at the time of the Final Order, she submits it would not justify a finding of a material change in circumstances: see Litman v. Sherman, 2008 ONCA 485, 52 R.F.L (6th) 239.

[21] The Mother’s position is that the Father has failed or refused to co-parent with her. As an example of the Father’s refusal to co-parent, she alleged that he has failed to consult her about the children’s health and education, as required by the Final Order. In particular, by exercising final decision making in the area of the children’s health without prior consultation, without informing her of decisions, and without sharing relevant information, she alleges that the Father has sought to effectively exclude her from playing a meaningful role in this aspect of the children’s lives.

[22] In resisting a change to a joint custodial regime, as well as the Father’s claim for sole custody, she has asserted what she perceives to be a child focused regime wherein she can continue to play an important role as a parent, although she is open to a schedule change so long as her parenting time with the children is relatively equal to the Father’s.

[23] The Mother anticipates that further damage to her relationship with the children and a risk of alienation would materialize if a sole custody order is granted in favour of the Father thereby giving him licence to effectively shut her out of the children’s lives.

[24] In closing submissions, the Mother acknowledged that the evidence related to the children’s emotional and academic struggles may give rise to a material change in circumstances supporting a variation of the Final Order. The Mother argues, however, that the court should order a parenting regime which observes the maximum contact principle in accordance with section 17(9) of the Divorce Act, as well as the other factors relevant to a fresh inquiry into the children’s best interests in accordance with Gordon v. Goertz. In her submission, any order made by the Court should preserve for her an effective voice as the children’s mother by giving her a final say in medical matters and/or educational matters if the parties cannot defer to the school’s recommendations.

The Background

[25] The background facts as enumerated by the Father were not seriously challenged by the Mother.

[26] The parties were married on January 2, 2005 and separated on July 14, 2011 when the Mother unilaterally left the matrimonial home with the children. The Father subsequently brought an emergency motion to re-establish contact with them. At the motion, the Mother made numerous allegations of physical, psychological and sexual abuse by the Father towards her and towards the children. The Court did not accept the Mother’s evidence and unsupervised access was ordered in favour of the Father.

[27] Over the course of the litigation between the parties, the Mother has continued to allege that the Father sexually assaulted her and each of the parties’ two children. In relation to these allegations, the Mother has taken L. for five sexual assault examinations at the Children’s Hospital of Eastern Ontario (“CHEO”) between 2011 and 2014.

[28] Contrary to the advice of his lawyer, the Father underwent a polygraph test which found him to be credible in his assertions that he had never been abusive.

[29] A last minute Settlement Conference held before Blishen J. assisted the parties to reach an agreement which was incorporated into the terms of their Divorce Order signed by McMunagle J. on February 13, 2013.

[30] The Divorce Order provides for the parties to have joint custody of the children. However, the Father was given final decision making authority with respect to the children’s health and medical needs.

[31] The Divorce Order provides for the following time-sharing schedule:

I. In the first week • Sunday morning at 9:00 a.m. to Wednesday morning at 9:00 a.m. with the Father; • Wednesday morning at 9:00 a.m. to Sunday morning at 9:00 a.m. with the Mother;

II. In week two • Sunday morning at 9:00 a.m. to Thursday morning at 9:00 a.m. with the Father; • Thursday morning at 9:00 a.m. to Sunday morning at 9:00 a.m. with Mother

[32] The Mother took L. for the fifth and final sexual assault assessment at CHEO on November 27, 2014. She did so without prior consultation with the Father, and without his knowledge or consent. The sexual assault examination concluded, as did the prior assessments, that there was no evidence that L. had been sexually abused by her father or anyone else.

[33] The Mother has acknowledged seven instances of contempt of the Order of McMunagle J. as set out in the Order of Justice Beaudoin (the Applicant’s Compendium, Tab 10, and Part C of the terms of the Final Order both parties consent to in Exhibit A).

The Evidence

[34] Over the course of four days, I heard viva voce evidence from the Father and the Mother to supplement their respective affidavits dated July 10 and September 4, 2014, and the transcripts of their questioning on October 26, 2015.

[35] In addition, I heard from the children’s physician, Dr. D.K. and the children’s school principal, L.W.. The evidence of L.W. at trial supplements the transcript of evidence she voluntarily gave at questioning prior to trial.

[36] I also received the parties’ Compendia of Documents plus an additional four volumes of documents containing third party records filed on consent for the truth of their contents, including police records, CAS records, and the Psychological Assessment Report dated November 5, 2015 of Gaylene McCutcheon in respect of L. prepared for the Ottawa Carleton District School Board.

[37] The four volumes also contained other material with respect to which there were no Evidence Act notices served nor agreements between the parties as to their truth, including emails exchanged between the parties, school reports and attendance records, and the psychological assessment dated November 19, 2012 prepared by Dr. Alex Weinberger at the request of the Mother’s former counsel, Annemarie Roodal, prior to the date of the Final Order. Although the parties agree that this psychological assessment cannot be accorded the same weight as the other documents which were received for their truth, given the date of the report, as my reasons will subsequently find, it contains useful information as to the possible need for further assessment of the Mother in the event of continuing unfounded allegations of abuse of the children by the Father.

The Father’s Evidence

[38] The Father’s affidavit sworn July 10, 2015 addressed the background between the parties, and the history of unverified allegations made by the Mother that he both physically and sexually assaulted her and the children. He also detailed the fifth and latest sexual assault assessment that the Mother arranged for L. to undergo on November 27, 2014 without his knowledge and consent, despite his authority in the Final Order to make final decisions over the children’s health and medical care. His affidavit further detailed the Mother’s continued attendance at medical appointments not found to be urgent, including attendance with G. Jr. at a walk-in clinic on January 21, 2015 and at CHEO on January 25 and February 27, 2015. These appointments followed an incident at school where the school communicated with the Father on January 21, 2015 that G. Jr. had fallen, but was determined to be fine and returned to class.

[39] The affidavit also addressed problems with the Mother’s periodic retention of the children’s OHIP cards as well as a change of the children’s address to her address as a result of which the OHIP cards were rendered invalid for the Father’s use.

[40] The Father’s affidavit also detailed significant problems with the children’s absenteeism or tardiness for school and problems with the completion of homework as well as the Mother’s furnishing of emergency contact information for persons unknown to the Father.

[41] In his affidavit, the Father also attested to concerns related to allegations made by G. Jr. about the Mother’s temper and instances of inappropriate physical discipline of the children by the Mother.

[42] Most importantly, the affidavit detailed psychosomatic complaints of stomach and other pain reported by G. Jr.; the child’s fear in relation to being in the Mother’s care or being withheld from his father’s care; and the pressures brought to bear on the children by the Mother to make allegations against the Father of inappropriate discipline or other inappropriate behaviour.

[43] The Father attested to the problems communicating with the Mother over such simple matters as her changes in address; the application for the children’s passports, which took almost two years; and the problem arising most recently in determining summer vacation plans for 2016, a process which was delayed by the Mother’s email to an undisclosed recipient rather than to the Father.

[44] The transcripts of the Father’s questioning on October 26, 2015 revealed that he has had ongoing concerns about the Mother’s mental health. These concerns are not based on any diagnosis per se, but rather upon her mistreatment of the children, both physical and emotional, as reported to him by the children and their school principal, L.W.

[45] At questioning he also described his preference to have limited communications with the Mother, given problems experienced on access exchange and misunderstandings arising during email exchanges allegedly used by the Mother to depart from the terms of the Final Order on pick-up and drop-off of the children. The Mother’s emails were described by the Father as often incoherent. As examples, he produced the email exchange related to his failed attempts to have the Mother complete the children’s passport applications (Applicant’s Compendium, Tab 4), a matter which was ultimately disposed of by the order of Shelston J. dated September 17, 2015, granting him authority to apply without the Mother’s consent. Another example he produced of miscommunications with the Mother was the email exchange over Mothers’ Day after he communicated to the Mother that he took G. Jr. to see Dr. D.K. to treat a staple he got in his finger at school (Documents Book 1, Tab 9). Finally, he emphasised the Mother’s failure to email him with her choice of summer vacations on a timely basis, as seen in Exhibit 7. In re-examination at questioning the Father stated that if the quality of communications with the Mother could be improved, he would welcome more communication with her.

[46] In questioning, the Father candidly admitted telling the school not to tell the Mother about G. Jr.’s reports of stomach pain experienced since September or December 2014, in order to spare his son anticipated difficulties with the Mother, given that the reported source of the stomach pain was the child’s relationship with his mother. The child has reported the complaints of stomach pain to Dr. D.K. and to L.W. The Father noted that the stomach pains have intensified from initially being a “stab-like” sensation experienced when G. Jr. is reminded of his mother, to a “gunshot” and now a “nuclear bomb” type of pain. Dr. D.K. prescribed Zantac (Ranitidine), but it had no effect. The problem was determined to be psychosomatic. The Father also observed that L. has reported similar complaints on a few occasions in the recent past. He acknowledged, however, that it is possible that the children report these complaints in relation to their mother in order to please him. He nonetheless noted that it was impossible to manage the children’s distress, as verified by Dr. D.K., simply by telling the children that they were making it up.

[47] In questioning, the Father also admitted writing to the children’s teachers (Exhibit 6) repeating an instruction that he said originally came from L.W. in order to address G. Jr.’s failure to do his homework while at his mother’s. Accordingly, his letters direct the teachers to have the children’s homework sent during his parenting time, and to ensure that parent/teacher interviews were arranged with him and the mother separately.

[48] In questioning, the Father also admitted that he had not always been pleased with the CAS interventions with his family. In particular, he expressed a lack of confidence in one social worker, Krista Pulfer, who he learned had been seeing his children for approximately three months without his knowledge, and who he perceived had a bias in favour of the Mother over an unverified allegation that he had struck G. Jr. on one occasion. However, the Father maintained that he fully cooperated with the CAS and refuted the perception formed by some of the CAS workers that he behaved in a controlling manner or at times overstepped the boundaries of the custody order.

[49] In questioning, the Father agreed that he was taking the children to see Dr. D.K. every two months, with Dr. D.K.’s support, in order to rule out any complaints or false allegations by the Mother that could suggest the children are abused while in his care. While he did not express surprise that the CAS did not support the message that this would send to the children, and the view that unnecessary medical appointments could disrupt their schooling, he observed that the children and he were not dealing with normal circumstances.

[50] In questioning, the Father also admitted that he did not agree with the Mother taking the children to see Keri Tallack, a counsellor arranged by the Mother in 2015 and who saw the children several times without the Father’s knowledge or consent when the Final Order stipulated that the children were to see Michelle Hogeterp, a counsellor with whom the children had already established a therapeutic relationship. The Father researched the qualifications of Keri Tallack and discovered that she was associated with a support group for abuse victims, a matter of some concern as the Mother has branded him an abuser. He also conceded that he did not agree with the Mother’s attempt to arrange counselling of the children at the school, because the services offered at the school were very limited, as confirmed by the principal, L.W.

[51] At trial, the Father detailed the Mother’s failure to comply with the Final Order from the outset. This failure included: problems related to her attempts to change the access schedule; interference with the children’s counselling by withholding or delaying consent to the treatment with Michelle Hogeterp notwithstanding the terms of the Final Order; and the Mother’s ongoing allegations that he abused the children, including the allegations precipitating a fifth sexual assault assessment of L. on November 27, 2014. This latter event precipitated the Motion to Change. He noted the Mother’s failure to return OHIP cards and the birth certificate to him, and the steps she took to change the address for the children on the OHIP cards to her own which rendered the OHIP cards in his possession of no use. This also upset Dr. D.K.’s office staff.

[52] In his trial testimony, the Father confirmed that the police and the CAS have never verified any of the Mother’s allegations about abuse and that he has never been the subject of a protection application, although the CAS workers have expressed concerns over the level of parental conflict and the impact on L. of the repeated sexual assault assessments. He confirmed only one problem with CAS workers, namely with Krista Pulfer, who had given the Mother erroneous advice that their counsellor required the Mother’s permission to counsel the children when the Final Order had specifically protected the therapeutic relationship with Michelle Hogeterp. Of the nine CAS workers involved with his family, the Father noted that none had provided tangible assistance or ongoing services to his family.

[53] The Father testified that, even after the Mother’s latest and unverified allegations of sexual abuse made in November 2014, the Mother placed the business card of Marcus Davies, a helpline counsellor in G. Jr.’s bag, along with the instruction that her son telephone Mr. Davies if he was being abused by the Father (Document Book 1, Tab 2).

[54] In reference to the children’s school records of attendance (Document Book 1, Tab 13), the Father noted that in 2014/2015, while in the Mother’s care, the children were late 57% of the time and in 2015/2016, 42% of the time. He expressed that his children are already disadvantaged because of learning problems, which were then compounded by the embarrassment of being late. He described G. Jr.’s problems as largely related to his inability to concentrate due to the parental conflict, whereas L.’s difficulties are learning disabilities which would be compounded by the stress of the parental conflict. Although L. has had the benefit of an Individual Education Plan (I.E.P) as a result of psychological assessment by Gaylene McCutcheon on November 5th, 2015 (Applicant’s Compendium, Tab 7), L. continues to have major challenges at school.

[55] The Father testified that while the children are at his home, which is located a mere 100 feet from the school, the children are able to sleep in until 8:00 a.m. on a school day. Their homework is completed, lunches packed and clothes organized the night before. They also make time to practice piano. The Father he has taught piano for over 23 years and is a stay-at-home father, with flexible hours as a teacher. When there is time, they relax or play together before the children go to bed.

[56] By contrast, the Father expressed the view that the children did not have a structured routine in their mother’s care; their homework is not done or is lost; and their mother fails to commit to G. Jr.’s need for ten minutes a day of supplementary reading, a fact suggested by the absence of the Mother’s initials in a reading log the Father diligently completed for the school’s assistance (Document Book 1, Tab 8).

[57] The Father testified as to the children’s distress including G. Jr.’s psychosomatic complaints over the months of March and April, 2015, when the Motion to Change was first to proceed to court, including G. Jr.’s psychosomatic complaints. At this time the children informed him that their mother was talking to them about the court proceedings and wrote things down about L.’s alleged wish to live with her. The Father testified that he refrained from discussing the proceedings with his children and only ever reassured them that the truth would eventually come out.

[58] The Father disclosed that in or about September 2014, he began to keep detailed notes as an aide-memoire to his testimony at trial. The notes document the difficulties experienced with the Mother and the related distress experienced by the children (Exhibit C).

[59] He described his own relationship with the children as positive and loving and referred to the picture and card L. prepared for him, describing his as “the best daddy”, and “a safe person” (Document Book 1, Tab 1). He also referred to a series of texts exchanged with G. Jr. in the summer of 2015 and in April 2016 when his son proclaimed that the world was “cruel” and that he hated his life when he had to go to his mother’s (Document Book 1, Tab 11).

[60] The Father testified that, notwithstanding his children’s distress, he has never discouraged them from having a positive relationship with their mother, even though it is sometimes “a difficult task”. He denied encouraging the children to make negative remarks about their mother, although he agreed in cross-examination that the contents of Exhibit C contained no positive remarks about her, but simply record the troubling things that have happened.

[61] In cross-examination, the Father confirmed that G. Jr. was seen at CHEO for dizziness and shortness of breath on the Father’s access day on May 18, 2016 (Exhibit 5). By letter to Dr. D.K. the physicians at CHEO encouraged the Doctor to consider further examination of the child’s symptoms.

[62] In being cross-examined as to his efforts to consult and co-parent with the Mother, the Father admitted that, at times he does not respond to the Mother’s emails because the majority make no sense to him. He acknowledged that over the past four years he has met separately from the Mother with the children’s teachers and others at the school. He testified that it was the principal, L.W. who felt this arrangement was essential. He agreed that there were occasions that both he and the Mother met together at the school, and that this would not be a problem for him if the school required this.

[63] The Father readily acknowledged that G. Jr. called him from school reporting psychosomatic complaints or complaining about lunches prepared by the Mother. He did not resist the suggestion put to him that these were instances of “triangulation” in which G. Jr. was calling for his father’s attention. As a result, he and L.W. have decided more recently that G. Jr. would be kept in her office to “ride it out” and then be returned to the classroom as soon as possible after his complaints are settled.

[64] The Father admitted that he had not had G. Jr. tested for lactose intolerance despite the child’s report that milk products make his stomach worse. The complaints have been reported to Dr. D.K., and he has relied on the doctor to direct investigation and treatment of any concerns.

[65] The Father readily acknowledged taking the children to see Dr. D.K. every two months since 2014, but noted that this was with the doctor’s agreement in order to rule out allegations of abuse, and he has left it to Dr. D.K. to decide whether the meetings should continue.

[66] The Father agreed that, while the children are happy to have meetings with their counsellor, Michelle Hogeterp, the counselling has failed to reduce G. Jr.’s complaints of stomach pains, which have now progressed to body pain and more recently breathing problems of the kind investigated by CHEO in May of 2016.

[67] The Father does not believe G. Jr. amplifies his pain complaints. While he agreed the pain was psychosomatic, he noted the pain was genuine and concerning.

[68] The Father acknowledged sharing his concerns about his son’s psychosomatic complaints with Constable Adam Collins, the School Resource Officer, on September 18, 2015, when the school telephoned to report G. Jr. had refused to go to his mother’s and complained of stomach and body pain and the fact that his mother only gave him fruit for lunch. Constable Collins was fully aware of the history of parental conflict. The Father agreed that, in the presence of the principal, and in the absence of G. Jr., the police officer suggested that he obtain a Form 2 Mental Health Assessment of the Mother, advice which the Father did not pursue. Despite his belief that treatment and rehabilitation would enhance the Mother’s relationship with the children, the Father does not believe the Mother has any interest in a diagnosis or treatment.

[69] Referred to the records of email exchanged with the Mother (Document Book 4, Tab 2), the Father could not be sure he had replied to the Mother’s emails reporting that G. Jr. had suffered a concussion on January 21, 2015, but was confident that he had done so, despite the fact the emails did not include his reply. Referred to G. Jr.’s reading logs from September 11, 2015 to May 2016 (Document Book 1, Tab A), followed by G. Jr.’s report card dated February 1, 2016, (Document Book 1, Tab 14) the Father agreed G. Jr. achieved a B in reading. He nonetheless concluded, based on his own observations of his son in class at an open house, that his son’s grade in reading was not indicative of his abilities. He noted how G. Jr.’s reading was generally stronger in French than in English, and that his son achieved a C grade in French.

[70] The Father denied that his children have missed a lot of school while in his care, other than for counselling sessions with Michelle Hogeterp in Stittsville, who only keeps regular business hours during the week, as well as bi-monthly appointments to see Dr. D.K.

[71] The Father agreed that the children, particularly G. Jr., demonstrate a conflict of loyalties, but denied that he played a role in encouraging a parental conflict.

[72] The Father denied directing the counsellor, Michelle Hogeterp as to how to therapeutically address the children’s distress, although as his notes in Exhibit C reflect, he emailed her to advise about L.’s distress on November 19, 2015, when her mother required her to choose one of her own toys to gift at a birthday party. He could not recall having done so on other occasions.

[73] He specifically denied the suggestion that he had deleted parts of his text message communications with G. Jr. (Document Book 1, Tab 12) and I received no evidence to support this allegation.

[74] The Father agreed that he had generally held fast to the strict terms of the Final Order, and that until trial had not agreed to alter the court ordered pick-up and drop-off location for access exchange, which was two and half to five kilometres from the Mother’s home and within 100 feet of his own home. He had not agreed to change because of the history of the Mother’s departures from the terms of the court order.

[75] The Father agreed that it would confuse the children to be taken to see Dr. D.K. every second month and confirmed that the CAS case notes for October 2015 (Supplementary Compendium, Tab 14) reflect that he refused to see how abnormal this was. However, he noted how L. has expressed extreme anger about the sexual assault assessments and said that she told him she wanted to kill the examining doctor after she had a nightmare in which her mother smiled as the assessment took place. The Father documented L.’s distress in his notes of October 7, 2015 (Exhibit C).

[76] In response to his children’s unhappiness or anger in relation to their mother, he has told the children he does not want to hear bad stories about their time with their mother and wants them to enjoy being with her. He has never withheld the children from her, even after an incident reported to him by the school vice-principal who said G. Jr. told her he wanted to run to the police station from his mother’s and had running shoes to do so. However, this evidence was not verified by the records or other testimony.

[77] In reference to evidence of bruises documented by the CAS workers in case notes dated November 27, 2014 (Supplementary Compendium, Tab 14), the Father agreed that he was asked about these bruises at the police station and told police that L. is active as a figure skater and often falls, and that the bruises could have been caused by any number of reasons. While the police did tell him not to “rough house” with the children, he noted that none of the allegations of abuse made by the Mother were verified and the CAS closed its files.

[78] The Father criticized other reporting in the CAS notes and, in particular, the distress expressed by G. Jr. about his mother pulling his ears as a form of discipline. It is noteworthy that the Father himself told the Society’s worker Mr. Teneycke that G. Jr. lied when advising his school principal about inappropriate methods of discipline by the Mother. However, he observed that Mr. Teneycke failed to address the real cause of the child’s distress after the child overheard a telephone conversation between his mother and friend in which the Mother told her friend that she would get custody after the trial. The Father noted that the CAS worker did not even attend the school when the school principal called the Society and Constable Collins to report the child’s distress. The CAS did not interview anyone about the incident before closing the file.

[79] In re-examination the Father said he would be prepared to take the children to counselling outside of school hours if their counsellor, Michelle Hogeterp, offered him the option.

[80] I observed the Father’s demeanor in the course of cross-examination and noted that, at times, he strained to maintain composure at repeated suggestions that he dedicated a high degree of attention and energy to documenting the parental conflict and the alleged distress expressed by his children, as exemplified by the drawing G. Jr. gave to him depicting the Mother as a demon, or by the disclosure of the children of nightmares about their mother. It was put to him at various times that he was at no time really committed to co-parenting the children, given his expressed preference to not engage in any more communication with the Mother than necessary, and given his alleged overstepping of the boundaries of the Final Order by, for example, taking the children to appointments with Dr. D.K. every two months.

[81] After considering the evidence of the Father as appears from his affidavit, his questioning and testimony at trial, I have concluded that overall his testimony was not seriously impeached. I add that there is little doubt that the children’s repeated attendance at Dr. D.K.’s would be potentially confusing and unnecessary in an environment of collaborative parenting. However, it appears that the Father had limited resources to protect the children from their mother’s ongoing allegations of abuse, other than reliance on the school principal, L.W., Dr. D.K., and counsellor, Michelle Hogeterp. As the Father observed, the CAS failed to initiate a protection application despite repeated concerns about the emotional risk of harm associated with the parental conflict. As such, the Father could not fall back on the various tools and resources at the CAS’s disposal such as the Family Court Clinic Assessment, the Parenting Capacity Assessment or family counselling to explore more effective means to contain the situation.

Evidence of Dr. D.K.

[82] Dr. D.K. has provided medical care to the children since birth. He previously provided care to both the Mother and Father, but now only sees the children and the Father. I concluded both from his demeanor and the evidence he offered that his testimony was furnished without any apparent bias to either party and I was impressed that his evidence was both reliable and credible.

[83] He confirmed that his interactions with the Father are very positive. He has had no trouble seeing the children every two months and described their visits as very positive. He denied that the visits caused any problems for the children. Some of these visits related to appointments for immunizations and annual physicals.

[84] The Father has not been present for all of his interactions with the children. While the Father was with the children initially, he now leaves both L. and G. Jr. alone with the doctor.

[85] The doctor described the children’s interactions with the Father as excellent and entirely normal. He has never seen any indicia that the children have been sexually abused by the Father.

[86] The doctor described L.’s general health as fine, but noted that she behaved younger than her chronological age. Although she was sometimes hard to get direct answers from, this is getting better as L. matures.

[87] The Doctor also described G. Jr.’s general health as very good. However, over the past five to six years, he has noted a lot of psychosomatic symptoms, which recently involve pronounced abdominal pain without fever, vomiting or other concerning symptoms. As G. Jr. has matured, the child has come to appreciate that his complaints do not always have a physical cause and the child understands that his symptoms can be caused by the situation between the Mother and Father. G. Jr. relates the stress to the visits with his mother.

[88] Before their separation in 2011, the Mother raised no allegations of abuse by the Father in respect of herself or the children. In 2011, before the date of separation, she brought the children to Dr. D.K.’s office and raised concerns the Father physically abused the children. He has had no concerns that this was or is the case.

[89] The doctor has had no difficulty working with the Father. By contrast, he noted that the Mother disagreed with his perception and interpretation of circumstances, but otherwise they had no problems.

[90] In cross-examination he confirmed that he sees the children every two months at the Father’s request to ensure he is up to date on the separation and to rule out any accusations that may be made against the Father that he is physically or sexually abusing the children. If the appointments do not relate to illness or check-ups, the children share with him their activities at school and with the Mother and Father and just talk. They speak well of their father. L. especially is unwilling to speak ill of her mother, but in the past year G. Jr. has been more verbal about his upset at visits with his mother.

[91] In following G. Jr.’s abdominal complaints, the Doctor does not at present prescribe any medications. He has not given advice about general nutrition when G. Jr. is doing well; rather, he advises the child on how to relax and to avoid certain foods when he experiences stomach pain. The doctor does not believe lactose intolerance is a concern. He believes G. Jr. is being adequately followed for his stress complaints by his counsellor.

[92] The doctor has had no concerns about the children’s safety per se, but acknowledges that the Father has complained that the Mother has mistreated the children because the children were more agitated and hyper when they returned to him from the Mother’s care. However, the Father has not said the Mother was physically abusive of the children.

Evidence of School Principal L.W.

[93] L.W. is the acting principal at the children’s school and has known the children for the past four years, during which time she has had ongoing dealings and communications with both the Mother and Father. While I was initially concerned from her demeanor that L.W. was averse to appearing in court to give evidence, when she returned after a weekend’s pause I was satisfied that she presented without concerns. She gave her evidence in a forthright, careful and considered manner and I had every confidence in her sincerity, reliability and credibility as a witness.

[94] L.W. confirmed that she voluntarily attended questioning on October 23, 2015 and that her testimony at trial was offered to simply update the court on the status of matters since questioning. She in no way resiled from or modified the evidence she gave under oath in 2015.

[95] At questioning, L.W. described communications with the Mother as courteous and business like, but less productive than those with the Father, in that the Mother had more difficulty grasping the issues. These difficulties have been particularly present since G. Jr. has begun to confide certain things and present with both academic and emotional challenges (Questions 20-26).

[96] L.W. gave evidence that over the past year she has seen many notes addressed to G. Jr.’s parents, particularly to the Mother about homework and assignments not coming back. Both of the children’s teachers advised her very clearly that homework sent to the Mother does not come back, so they have stopped writing notes to her (Questions 49-51).

[97] In October of 2015, L.W. testified that concerns had been raised since L. was in grade one. By the date of questioning, while L. was in grade three, L. displayed a two-year delay in reading, a very high level of distractibility and tended to avoid problems in class while at the same time seeking approval and attention from her teachers (Questions 37-44).

[98] L.W. described the challenges encountered by her in her attempts to secure the Mother’s permission to have L. psychologically assessed for learning problems (Questions 37-41).

[99] L.W. described the unusual intensity of her involvement with the family, not just due to the complexity of the issues faced by the family, but also because the Mother always made matters more difficult (Question 54). This has not been simplified by the unverified allegations made by the Mother that a teacher used inappropriate language in the presence of G. Jr. (Question 74-78).

[100] L.W. confirmed that L. has never disclosed, nor has she received any indication, that L. has ever been sexually abused. The only allegation of physical abuse she had heard is that the Mother pulls the children’s ears and hits them, and that there is a lot of fighting at the Mother’s home (Question 98-106).

[101] L.W. expressed the opinion at questioning that the children are in trouble, both emotionally and academically. She offered the belief that the parental conflict was in large part the reason that the children were not in optimal circumstances academically, and that until the parental conflict is addressed, it would be difficult to make progress (Question 117, 118 and 159-160).

[102] At trial, L.W. softened the evidence she gave at questioning in suggesting that her communications with the Mother, although usually positive, were not always fruitful. In addition, L.W. noted that the family has continued to require a high level of communication, in particular in relation to G. Jr., who has in the past withheld his homework and assignments from his mother. With increased involvement and communications with both Mother and Father, the child is now more “on task”. However, L.W. is not sure that the patterns with G. Jr. have changed much in that he shows no major improvement. She has, therefore, chosen to personally distance herself from interacting with the family.

[103] In relation to L. she has noted an improvement in L.’s ability to “decode” or pronounce words as a result of an intensive reading program. She observed that the decoding skill is acquired by most children after kindergarten. However, L. requires more assistance with her reading comprehension.

[104] L.W. strongly disagreed with the Mother’s perception that the children are doing better at school. In G. Jr.’s case, L.W. has observed progression in his psychosomatic complaints from stomach to breathing problems in the last month, and his ongoing trouble remaining in class and completing homework assignments.

[105] As regards L., although they “celebrate” her improvements, L. continues to need “one on one” in reading, science and in mathematics and is about two years behind her peers. L. has an I.E.P., and her report card accordingly reflects modified grades or a performance well below the average of her peers.

[106] In reference to the children’s progress reports of February 1, 2016 (Document Book 1, Tab 14), L.W. made plain that G. Jr.’s grades below a B are not an indication that he is doing well or is an average student. She observed that any subject graded below B is below the provincial standard. She added that the school had put in place an informal I.E.P. to accommodate G. Jr.’s ongoing difficulties completing homework and losing assignments.

[107] In reference to the Father’s letters to the children’s teachers (Exhibit 6) directing them to send homework assignments while the children are in the Father’s care, L.W. clarified that she had not instructed the Father to provide these recommendations to her staff. After conversations with both Mother and Father, she herself provided recommendations to the staff.

[108] Following the psychological assessment of L. by Gaylene McCutcheon (Applicant’s Compendium, Tab 7) L.W. has had positive communications with both Mother and Father “for the most part”. However, she prefers to meet them separately in order to assure efficiency in communicating information. She remains highly suspicious that homework assignments that go home to one parent do not go home to the other because of G. Jr. She confirmed that G. Jr. generally does not communicate well with his mother.

[109] Although the Mother has appeared receptive in their meetings, L.W. reported difficulties in one interview with the Mother when the Mother discovered she had not received a parent/teacher interview for G. Jr. in respect of his performance in the first six weeks of 2015. Because the child had appeared to be doing well, and the school was facing “work to rule”, not all students required parent/teacher interviews. Shortly after that incident, G. Jr. began to have problems with losing or failing to complete his assignments.

[110] After considering the evidence of L.W. furnished at questioning and at trial, I concluded that, despite the school’s laborious efforts to work cooperatively with both the Mother and Father in order to meet the children’s special needs, the school has worked best with the Father for several reasons. The Mother continues to have diminished perceptions of the children’s weaknesses in academic performance; there is a greater difficulty communicating effectively and productively with Mother; and more importantly, G. Jr. continues to have difficulty communicating with his mother, continues to withhold his homework assignments from the Mother and has recently demonstrated a progression of his psychosomatic complaints in relation to time spent with his mother, or in relation to his relationship with the Mother. I anticipate that, without a reduction in the parental “tug of war” over the children’s educational needs, the children will continue to remain well behind their peers, or lose further ground scholastically to their detriment, compounding the stress they experience as a result of the parental conflict.

The Mother’s Evidence

[111] In her affidavit of September 14, 2015, the Mother opposes the Father’s claim to vary the joint custody order to grant him sole custody, in the absence of any independent assessment of custody and access. In challenging the Motion to Change, the Mother laid out the marital history leading to the parties’ separation in July 2011, and made allegations of physical and sexual abuse towards her and towards the children by the Father. She referred to the presence of others during or after these occurrences, including but not limited to: her own mother, her sister, her aunt and others; however, none of these witnesses provided supporting affidavits or testified at trial.

[112] In her affidavit, the Mother refers to the now outdated psychological assessment dated November 19, 2012, which she underwent with Dr. Alex Weinberger in preparation for the trial that was ultimately resolved on the terms set out in the Final Order providing for a joint custody and shared parenting arrangement. Despite having been represented by counsel throughout that proceeding, she attested to having no understanding as to how the agreement underpinning the Final Order was reached. However, at para. 50 of her affidavit, she suggested that any concerns expressed by the Father as to her mental health were addressed by Dr. Weinberger’s assessment.

[113] What is more noteworthy is Dr. Weinberger’s conclusion at p. 8 of his report where he states:

Were the abuse allegations against her ex to be determined to have no credibility it would seem to me that an anxiety disorder would still be an apt diagnosis in that chronic domestic conflict, financial pressures and a history of pregnancies that reportedly never proceeded to term, would themselves create a cumulated stress and a heightened sensitivity even before one considers the added tensions often associated with a litigation process itself. And, if the allegations against her husband were determined to be entirely without foundations, then the possibility of fabrication and the presence of a more significant disorder beyond that of anxiety would need to be considered. (Emphasis added)

[114] As subsequently observed by Beaudoin J., the need for a Family Court Clinic Assessment was referred to the CAS in November 2015; however, neither a custody and access assessment nor a parenting capacity assessment appear to have been further considered.

[115] The Mother’s affidavit further details the circumstances which prompted her to refer her complaint of suspected sexual abuse of L. by the Father for investigation by CHEO, the police and the CAS on November 27, 2014 and why, despite the failure of authorities to verify her concerns, she did not return the children to their father on December 7, 2014.

[116] The Mother’s affidavit examines the instances of poor communication between her and the Father, and the parties’ mutual allegations of failure to consult and co-parent when it comes to the children’s health and education.

[117] The Mother attested to the fact that the children had occasionally been late for school while in her care and agreed to address this in 2015 and 2016.

[118] Her affidavit denies any intentional wrongdoing which invalidated the children’s OHIP cards. She further questioned the Father’s attendance with the children to see Dr. D.K. every two months to “debunk allegations” and she denied knowing what exactly the Father’s concern was in this regard. She further admitted to taking the children to see Keri Tallack on the basis of advice she claimed to have received from Krista Pulfer at the CAS and in the belief that G. Jr. wanted to see someone other than his usual counsellor, Ms. Hogeterp, as required by the terms of the Final Order.

[119] The Mother vehemently denied the Father’s allegations that the children did not complete their homework while in her care; that she delivered the children to school late at least half of the days while in her care; that she added the names of persons unknown to the Father for emergency contacts; that G. Jr. suffered from stomach pains due to stress on returning from her care; and that the children made claims of mistreatment while in her care.

[120] At questioning of the Mother carried out on October 26, 2015, she maintained her unverified allegations that the Father was abusive to her and to the children (see Questions 143, 144, and 182).

[121] With respect to her decision to take L. for several sexual assault assessments, despite any concerns verified by the police or by the CAS, the Mother repeatedly confirmed at questioning that she would do so again in breach of the court order (see Questions 175 to 177, 451, 452, 456 and 457).

[122] At questioning, the Mother did not acknowledge any difficulties with her communication with the children’s school (see Question 255). Indeed, she went on to lay in question the school’s reports that her children were not doing well at school (see Question 472). However, her unwillingness to accept this reality could not be sustained after the clear findings of the psychological assessment of Gaylene McCutcheon. The test results determined that L.’s visual reasoning skills assessed at the 32nd percentile, or “average” range, were defined as a “strength” by comparison to her rapid copying skills, which were ranked at the 1st percentile, or “exceptional weakness” range. As a result of L.’s “exceptionally weak reading comprehension and mathematics scores, L. [was] provisionally diagnosed with a Learning Disorder in the area of Reading, Comprehension and Mathematics” (Applicant’s Compendium, Tab 7). As a result of these findings, L. was found entitled to an I. E. P.

[123] The Mother did not deny the facts alleged in the Father’s affidavit that, in the 2014/2015 school year up to April 17, 2015, out of 42 occasions that she took children to school, she was late 50% of the time and the children were absent 14% of the time. In the year from 2015 to 2016, the records reflect only a marginal improvement in that the Mother was late delivering the children on at least 42% of the occasions that the children were in her care, a far from acceptable statistic for children experiencing academic difficulties (Document Book 1, Tab 13).

[124] The Mother’s evidence at trial was problematic. She had a tendency to give rambling responses to simple questions, on occasion requiring interruption and a firm direction to answer the question put to her. I observed that this tendency was not limited to difficult questions put to her in cross-examination, but also occurred in direct examination.

[125] In her examination in-chief, the Mother confirmed that she would make no additions, deletions or corrections to her affidavit of September 14, 2015, a fact I found concerning, given its disturbing portrayal of the Father as an abuser of both spouse and children, and given her preparedness to support a joint custody arrangement under the circumstances.

[126] She then proceeded to detail the events of November 27 and November 28, 2014, when L. is alleged to have made disclosure of an instance of abuse caused by the Father when he grabbed her on a red couch and allegedly caused bruising on L.’s hip. The Mother testified that G. Jr. confirmed L.’s statement that this occurred during the night and that L. told the Father to stop but he did not. This motivated the Mother to take L. to see Dr. Max at the Bank Street Medical Clinic and later to the CHEO. She called a friend for support. The Mother recalled that, at the hospital, doctors discovered another bruise above L.’s vagina. Police and CAS were notified, and the next day she was directed by Katia Parent of the CAS to attend at the police station in connection with the related investigation. She called another friend for support. After several hours during which the children were interviewed by Ms. Parent and Ottawa Police Force Detective “Bob” Woods, the Mother was advised that the bruising was in connection with an instance of play that got out-of-hand. The children were released to her care. The Mother expressed disappointment that she was not given an opportunity to talk about her concerns and pointed to inconsistencies in the CAS Referral Notes in relation to this incident (Supplementary Compendium, Tab 14 p. 6). A number of these inconsistencies, such as the time L. was taken in for interview by CAS and police, are of no moment. However, the Mother took greater exception to the suggestion that the disclosure was not L.’s but the Mother’s, noting that while she may have said something, L. and G. Jr. were capable of speaking for themselves.

[127] The Mother then described instances since November 2014 when she took G. Jr. for medical attention for a sprained ankle, and had not disclosed this to the Father. She excused her own failure to inform him by reason of the fact that her cellphone did not work. However, she volunteered that she did not have a complete recall of events. She added that she was unaware of whether the Father had acted on the advice given to her, which she shared with the Father, that G. Jr. had flat feet and needed ankle support.

[128] The Mother admitted that she had signed permission slips for the school naming contacts in the event of an emergency that she failed to discuss with the Father. Although it is difficult to understand her failure to appreciate the terms of the Final Order in this regard, she claimed only to have understood afterwards that this omission potentially excluded the Father from being informed of any medical concerns, although he was specifically ascribed decision-making in relation to the children’s medical needs and health. She pledged to ensure that on a “go forward” basis, she would put the Father’s name in addition to hers as the contacts on permission slips.

[129] The Mother acknowledged problems with the pick-up and drop-off location for access exchanges, noting that because she has no car, her return of the children to the Father on Sundays was sometimes problematic, particularly in the winter, whereupon she proposed to him that they exchange access in the lobby of the YMCA, a location which was always open and a warm place to wait with the children. However, despite her understanding that the Final Order provided for child-focused changes to the parenting arrangements on consent, the Father was not receptive to this change.

[130] The Mother excused the delay in collaborating with the Father over the children’s passport applications by blaming the Father for failing to respond to her questions about whether he intended to travel with the children and about whether the wording in the passport application implied that he had full custody. In reviewing the email exchange over the passports (Document Book 1, Tab 4), however, I discovered that the Father clearly told the Mother he had no present plans to travel. Moreover, I was unable to find any reference to concerns expressed by the Mother about the wording of the passport application. There was only a string of exchanges wherein the Mother delayed by over three weeks the return of the passport applications and made her agreement to complete the paperwork contingent on the Father’s confirmation of a “mutual understanding” that he would not withhold the passports from her in the event of future travel. I observed that the information she subsequently offered about mis-describing L.’s eye color on the application was perplexing and self-serving.

[131] The Mother went on to detail the difficulties she had convincing the Father to permit her to travel with the children to Vancouver for two consecutive weeks, although the Final Order did not provide for a “stacking” of the two separate weeks of summer vacation. The Mother noted that all of her family members live in Vancouver; that her own Mother has health concerns at present which preclude from coming to Ottawa; and that it is costly to travel to Vancouver for one week at a time.

[132] While the problems over the pick-up and drop-off location for access exchange and the summer vacation weeks were noted to be instances of the Father’s ridged adherence to the Final Order and failure to consider child focused variation on consent in the children’s best interest, I note that with very gentle suggestions put to the parties in the course of trial, both of these issues were resolved by the Father agreeing to a new location for access exchange at the Esso On the Run which is located only 415 meters from the Mother’s home. He also agreed to the parties having no more than 14 days consecutive of summer vacation beginning in 2017.

[133] The Mother excused the problems that occurred with the children’s OHIP cards, noting that she did not mean to “step where she shouldn’t” by updating them when she moved, thereby rendering the cards in the Father’s possession of no use, she said this was just a “human error”, but failed to explain why she took it upon herself to do so in the first place without consultation with the Father who had authority over the children’s health and medical needs. I also note that the issue was one which had the potential to interfere with the Father’s ready access to medical services given that the Mother has moved no less than four times since October 2012.

[134] The Mother described that the biggest area of contention between her and the Father was related to the breakdown in their communications over the last one and a half years in relation to the children’s school and medical appointments. She blamed the Father for not keeping her informed “90% of the time”, although she acknowledged the Father has done better recently due to recent changes put in place at the school.

[135] She blamed the poor or inadequate communications between her and the Father on his past failure to reply to her phone calls related to emergency situations, which she did not detail. She blamed the Father for failing to provide a “point of reference” in their emails resulting in the “loss of the thread.” She observed that neither the Father nor the teachers made her aware of the Father’s letters to the teachers requesting that homework assignments be sent with the children during his parenting time to ensure completion, and requesting that meetings with school personnel be held separately with him and the Mother.

[136] She denied knowledge of any difficulties identified with G. Jr.’s completion of homework and “in school” assignments until recently, but noted that both she and the Father have taken steps to help their son “catch up” at home. She was unaware of any similar problems with L.’s homework.

[137] The Mother explained the noted absence of her initials on G. Jr.’s reading log by suggesting that, while the reading log came home regularly with her son, she learned from her son’s friends in a study group that it was no longer in general use after January 2016. Quite apart from offering this unsubstantiated hearsay, it was clear from the Mother’s notations in the reading log that, on at least five occasions in January 2016, the reading log continued to be used to monitor G. Jr.’s daily reading practice (Document Book 1, Tab 8).

[138] The Mother blamed her son for not doing his homework while with her, by sabotaging its completion, hiding it or mislaying his books. She blamed the Father for not telling her about G. Jr.’s problems with homework. However, she said this was no longer an issue and that there is presently a “better flow” of communications with the school, acknowledging that perhaps some teachers did not feel she was as invested in G. Jr.’s academic performance.

[139] In describing a typical day with her children, I observed her evidence very nearly parroted the Father’s evidence with respect to a typical day at school or weekend activities, and that the Mother admitted only to the rare occasion when she allowed the children to stay up late.

[140] The Mother acknowledged that G. Jr. complained about the food she cooks, but shared her belief, for example, that her son’s unwillingness to have milk or cheese might related to a lactose intolerance she herself suffers from.

[141] The Mother denied discussing court proceedings with the children other than by mistakenly “slipping up” one morning during the trial when she told the children to hurry because she had to get to court. She blamed the Father for telling the children the name of his legal counsel, judges involved in the case and CAS workers. She expressed the view that the children “have been exposed to too much” by their father. She took no responsibility for the five occasions in which she took L. for sexual assault assessments, and the reported involvement of police and CAS in relation to alleged disclosures made by the children. She only blamed the Father for questioning the children at length on these occasions. She claimed that she only listened to the children, and tried not to question them, “unless it related to a concerning situation like November 27, 2014.” In relation to this disclosure, she accused the Father of putting four police reports in front of the children to question them.

[142] The Mother acknowledged that on December 3 or 4, 2014, before the children were returned to her, she learned from L. W. that G. Jr. was acting in an unusual way by not wanting to come back to her. She acknowledged that on December 7, 2014, she subsequently withheld the children from the Father. She noted that this has not happened again. She strangely could not recall telling school personnel whether the children have made disclosures of abuse against their father.

[143] The Mother denied using any form of physical discipline with the children, and specifically denied the Father’s reports that G. Jr. was struck with a plastic sword and that his ears were pulled by the Mother. She only admitted to taking the sword away from her son because he used it to strike L.

[144] I found it astonishing that, despite being able to access both school and medical information directly, the Mother learned of G. Jr.’s complaints of extreme stomach pain and more recently his problems with shortness of breath, in the course of these proceedings, and has never personally witnessed any instance of pain or shortness of breath reported by her son. It is also surprising that the Mother has not spoken with Dr. D.K. about her son’s psychosomatic complaints. She suggested her failure to do so was as a result of the fact that the Father has medical authority and has not informed her of these matters. As before, she offered the reasoning that perhaps their son suffers from lactose intolerance.

[145] The Mother denied the children and the Father’s reports of lack of cleanliness and hygiene in her home. She denied smoking in the children’s presence or under the vent in her kitchen, noting that she smoked outdoors on city property.

[146] The Mother denied influencing or counselling the children to make disclosures to police or CAS against their father. In re-examination, she advised that she was told to go to the police on a few occasions by a friend, B.V.; however, I did not receive testimony or affidavit evidence from anyone on the Mother’s behalf, other than her own.

[147] The Mother denied interfering in the children’s ability to contact their father during her access time “other than because of human error or one weekend they had a wedding to attend.”

[148] She denied making disparaging comments about the Father and believed she promoted respect for him. I found this evidence hard to reconcile with her ongoing belief that the Father is an abuser and a pedophile.

[149] The Mother agreed that her son had a big anger management issue two years ago due to sadness and distress related to the problems between her and the Father, but felt that at this point in time, he was “doing really well.” She divulged taking a session on parenting through the children’s school in 2014 or 2015 and using pet therapy to help address her son’s anger.

[150] The Mother seemed unaware that the delay in proceeding with a psychological assessment of L. until November 2015 stemmed from her failure to provide her written consent on a timely basis. In re-examination, she added that she gave consent after Dr. McCutcheon called her to request her consent. She believed that after the assessment, and after an IEP was put in place for L. to address her problems with comprehension, math and sciences that L. has progressed with these resources and has now achieved a grade 3 reading level.

[151] She denied any issue with the children’s attendance at school until the court proceedings began, and excused any tardiness of more than 5 to 10 minutes as being due to the fact that she is at the “beck-and-call of OC Transpo or taxi” or that G. Jr. “lollygagged” or tried to be deliberately late for school. She herself has witnessed how her son walks past the school office and waits there after she delivers him to school. She denied keeping the children home from school more than one to two times when the school has had her pick up her son or when one child is unwell. She admitted that L.W. brought the issue of the children’s attendance to her attention, but until then, she had not been made aware of how much school the children had missed.

[152] In giving this evidence, I took note of the fact that at no time did the Mother take any responsibility for the concerns regarding the children’s attendance while in her care.

[153] When referred to the children’s report cards (Document Book 1, Tab 14), she acknowledged concerns about L.’s academic standing despite having achieved a grade three reading level in February 2016. She was, however, concerned and saddened by the academic decline evidenced in G. Jr.’s February 2016 report card. She only admitted to being aware in the last one and a half months that her son was missing school projects. On the other hand, she seemed to praise her son for completing two projects instead of one for the same class, rather than inform her that he already completed one while in his father’s care.

[154] She acknowledged having a miscommunication with the school during a meeting on December 8, 2015 which was cut short by L.W. after receiving the Mother’s complaints that she felt excluded and uninformed after she had not received a notice of parent/teacher interviews as she had annually in the past. The Mother claimed that L.W. told her that not all children needed a meeting at this time. In any event, she met with L.W. at a later date to be informed about her son’s difficulties with homework and how much school he was missing, and their communications appeared to be cordial and effective.

[155] Other than for a few weeks after the disclosure L. allegedly made on November 27, 2014, the Mother denied any difficulty at access exchanges in 2015 and 2016. She admitted to being concerned about L.’s stress levels and how stress would affect her daughter, but otherwise had no concerns about L.’s general health.

[156] The Mother denied interfering with the children’s counselling with Michelle Hogeterp, other than when she was directed by the CAS social worker, Krista Pulfer, to arrange counselling for G. Jr. She expressed concern about the Father’s delay in arranging counselling and turned to the school’s social worker for help; however, she confirmed the Father’s evidence that, at one point, the children wanted a break from counselling. The Mother acknowledged that later the Father declined to have anyone other than the children’s usual counsellor, Michelle Hogeterp, become involved and preferred to follow the terms of the court order. The Mother admitted that she took the children once to see Keri Tallack, but only because she was advised to arrange counselling by Krista Pulfer. She also noted that G. Jr. saw Ms. Tallack before he and L. became involved with Michelle Hogeterp. The Mother added that she had intended to inform the Father about taking the children to Ms. Tallack, but appears not to have done so before the Father became aware of it.

[157] The Mother testified that the children have spoken to her about being pressured or given treats by the Father to induce them to say unkind things about her to Michelle Hogeterp, a matter which was vigorously denied by the Father. She has responded by telling the children this is not their fault and, like their father has done, she has instructed them to tell the truth. While she has agreed to the ongoing counselling with Michelle Hogeterp, the Mother remains concerned that the treatment requires the children be taken out of school to attend counselling, when they are already taken out of school to be seen by Dr. D. K. every two months.

[158] Vigorous cross-examination further exposed the Mother’s lack of insight into her children’s distress and academic difficulties, and further highlighted her failure to take any responsibility for their decline since the date of the Final Order.

[159] The Mother denied suffering from any diagnosed physical ailments or any condition which affected her short or long-term memory. On the other hand, she admitted to having counselling for the past four years, although not regularly, with Bonnie Stefanson, for Post-Traumatic Stress Disorder. She herself has observed, however, that when she is stressed, her memory can be affected.

[160] The Mother admitted to taking the children to see Ms. Tallack, an abuse counsellor, in 2011 when the children were in her interim care, believing she did not require the Father’s consent to do so. She admitted that she knew she did not have his consent when she took them back to Ms. Tallack after the Final Order. She lacked credibility in stating that she thought the CAS worker, Krista Pulfer’s, direction would supersede the court order.

[161] The Mother admitted that she did not initially consent to the resumption of the children’s counselling with Michelle Hogeterp, and in so doing failed to comply with the Final Order, as she felt her children were not comfortable with Michelle Hogeterp. After communicating with Michelle Hogeterp, however, she provided her consent and has since agreed that her consent is not required in order for the children to attend their counselling.

[162] The Mother denied that in November 2014 she assumed L.’s bruises were due to sexual abuse by the Father. She denied that she accused the Father of sexual impropriety. When asked if she had reviewed her transcript on questioning, she claimed that she did not have the transcript. Her counsel undertook to provide it to her again and she was offered the chance to review it overnight before continuing the cross-examination.

[163] The Mother admitted that she took L. to CHEO where a sexual assault assessment was undertaken for the fifth occasion on Thursday, November 27, 2014. She failed to advise the Father of this assessment on November 27, 28, 29 or between November 30 and December 4 when the children were with the Father after the CAS concluded the children were safe without intervention. The Mother only remarked that she believed full medical details had not been shared by CHEO with the CAS and police, and had called CAS herself to express her concerns. The Mother could not explain why the CAS case notes for November 27, 2014 indicate that she informed them the children would be staying with her for the next seven days, given the history of allegations of abuse. She also could not explain why she failed to follow up with the CAS between November 30 and December 7, if they came to her in distress as she alleged. She further admitted she did not tell the Father between December 4 and December 7, 2014, while the children were back in her care, about allegations of abuse disclosed to CHEO, the CAS and the police. She, therefore, lacked all credibility in testifying that L. informed her that she no longer had the same sleeping arrangements at her father’s, but that her father was angry about the allegations, at a time he had not been informed about them. She also admitted that she merely texted the Father on December 7, 2014 to inform him that she was not returning the children to his care that day, without informing him why.

[164] The Mother admitted, when referred to the police records (Applicant’s Compendium, Tab 6, p. 7) that police informed her that the allegations of sexual abuse had not been verified, and that she was in breach of the court order in choosing to withhold the children from their father on December 7, 2014. The police record indicated that she commented to police in L.’s presence that L. was afraid of her father. The Mother did not appear at all credible in testifying that the police officer was mistaken in concluding that she pressed L. to make disclosures. The Mother blamed legal counsel for the decision she made to refuse to return the children to their father on December 7, 2014. She denied telling police that she wanted to re-open the previous allegations of sexual abuse she made against the Father, and again suggested the police officer was mistaken.

[165] The Mother admitted that the Father did not prevent her from obtaining information about the children’s health directly from Dr. D.K. or from the school, but added L.W. told her she had shared information with the Father which he should have shared with her. The Mother agreed, when pressed, that neither L.W. nor any of the children’s teachers refused to meet with her to share information.

[166] She was referred to the transcript of her questioning at question 473 where she refused to acknowledge G. Jr.’s struggles at school, and asked how she stood by that evidence when she acknowledged in her examination-in-chief that the children experienced distress and a decline in their academic performance. In response, the Mother noted that the children were doing well at the end of 2015 and that matters had changed by the date of trial. When it was put to her that this would not explain the need to have L. psychologically assessed by November 5, 2015 at the request of the school, the Mother then tailored her evidence to say that she mixed up L.’s circumstances as of 2015 with her situation in 2014 and knew she had problems in 2015.

[167] The Mother was then asked to explain why she withheld consent to L.’s psychological assessment at the request of the school until November 2015. Her evidence made no sense whatsoever when she explained that she wanted to make sure she gave written consent at the same time as the Father did.

[168] The Mother denied making unfounded allegations that a teacher had used inappropriate language in the presence of G. Jr., and resisted the thrust of the evidence offered by L.W. at questioning (Questions 66 to 74) wherein the subsequent investigation of the incident with other parents did not verify the Mother’s complaints.

[169] The Mother admitted that she involved police to retrieve the children’s OHIP cards from the Father in July or August of 2013 when she claimed that L. needed an ointment, which she had inadvertently melted, and she had been unable to reach the Father by text or phone. Once again, she excused her behaviour on this occasion by blaming the advice to involve police on her friend, B.V., whom she believed had legal training.

[170] The most revealing aspect of the Mother’s evidence at the end of her cross-examination was her maintained belief that the Father raped her and had been sexually inappropriate with their children.

[171] When she was asked why she was prepared to co-parent with a rapist and pedophile, she briefly fell silent and then simply replied that she had done her best to bring the truth to light and, by so doing, had acted in the best interests of all.

[172] I find the Mother’s maintained beliefs preclude any likelihood of meaningful co-parenting with the Father.

[173] I find that the Mother’s lack of insight and failure to inform herself of the root causes of her children’s distress, and her limited awareness of her son’s psychosomatic illness indicates a lack of meaningful collaboration with the children’s doctor of many years. By contrast, the doctor has testified that the children have been comfortable with the Father throughout, and that regular visits with the children have not shown any indication of having been abused by their father.

[174] I find the Mother has failed to take any responsibility for the children’s educational delays which she failed to initially acknowledge. She seemed unaware as to how these delays might be compounded by her failure to deliver the children to school on a timely basis, and by her periodic difficulties communicating with L.W. and the children’s teachers.

[175] None of these concerns bode well for any joint parenting, or any arrangement whereby the Mother would retain ultimate decision making authority in the event of disagreement in respect of the children’s health or education.

Other Evidence of Particular Note

Police Records

[176] The records of the Ottawa Police Service (Applicant’s Compendium, Tab 6) reflect that between 2011 and 2014, the police had nine file openings to investigate the Mother’s complaints that the Father had physically or sexually assaulted the children. None of the Mother’s complaints were verified. The Investigative Action of Constable De Los Santos dated December 7, 2014 is particularly instructive in its characterization of his discussions with the Mother after she refused to return the children to the Father on December 7, 2014 contrary to the court order. He observed that the Mother told him L. was having issues with being sexually assaulted by her father and made these statements in the child’s presence. His attempt to interview the child, who failed to make any concerning statements in regards to her father, had to be discontinued. It is plain that this was because the Mother repeatedly pressed L. to make disclosures against her father. Afterwards, the police officer told the Mother that his report would reflect his observations. He explained to her the consequences of contravening the custody order. Although the Mother would not elaborate on who gave her the advice, she remained firm in stating that she would withhold the children on the basis of advice she had received. She maintained that she would not let the children return to their father because they were afraid of him, yet the police officers who interviewed the children failed to substantiate her concern. The police officer subsequently spoke with a CAS worker, Ms. Hiltz-Laforge about the damage and long-term impact that continuous allegations of sexual assault would have on the children. The police officer shared his belief that the Mother only wished to re-open the investigation of her complaint of sexual assault against the Father from November 28, 2014, after police had closed their file.

[177] This evidence, coupled with the Mother’s express belief articulated at trial that she and the children have been victims of the Father’s abuse, makes it less than probable that she will ever be able to effect a change in the parental conflict so long as she fails to recognize the damage the children incur while she remains firm in her beliefs, and while she takes no responsibility for her own actions in perpetuating the theory of abuse.

The CAS Records

[178] The body of evidence generated by the CAS (Document Book 1, Tab 7, and Document Book 3, Tab 14) does not substantiate any complaint of physical, emotional or psychological abuse of the children by the Father, aside from an isolated incident of discipline or rough housing disclosed by G. Jr. in the Case Notes of November 27, 2014, which the Father vehemently denied.

[179] In addition, the CAS expressed concerns with the Father’s bi-monthly attendance with the children at Dr. D.K.’s office, and the potentially confusing message this could send the children. I note that Dr. D.K.’s evidence does not support this concern at present, but it is plain that bi-monthly visits to the doctor to rule out any evidence of the children’s abuse by the Father could not be considered normal.

[180] As of the date of the last Case Note prepared by Dean Teneycke on September 22, 2015, the only clearly expressed concern documented by the CAS relates to the emotional impact on the children of the ongoing parental conflict as evidenced in the reports of their school principal and police.

[181] Although the CAS’s concerns, as expressed in the letter from Krista Pulfer dated September 18, 2014, that the children, particularly G. Jr., should continue to receive individual counselling, have apparently been addressed by the children’s continued involvement with Michelle Hogeterp, I infer that, without some variation of the parenting arrangements currently in place to reduce the parental conflict, the children’s counselling will not have optimal effects.

Conclusions

1. I accept the Respondent’s submission and infer that the high conflict which ran between her and the children’s father before the Final Order was made persisted with little to no interruption afterwards.

2. I find, nonetheless, that the effects of the parental conflict have, since the Final Order, come to have a deleterious effect upon the children, not reasonably and actually foreseen at the time of the Final Order. In short, there has been “… a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child… which materially affects the child… and … which was either not foreseen or would not have been reasonably contemplated by the judge who made the initial order”; see Gordon v. Goertz at para. 13. This material change justifies a variation of the Order pursuant to section 17(5) of the Divorce Act.

3. No manner of joint parenting could have a reasonable chance of surviving the fundamental lack of trust between the parties while the Mother continues to maintain that the Father is an abuser and a pedophile.

4. The Mother’s allegations have been repeatedly and thoroughly investigated by police and the CAS and found to be unsubstantiated.

5. The Mother’s lack of insight into the impact of repeated sexual assault assessments on L. and repeated involvement of police and CAS in her children’s lives and her stated belief that she thus behaves in a manner which is child-focused and in her children’s best interests lays in question her psychological well-being and parenting capacity. While I can attach little weight to the substantially out-dated report of Dr. Alex Weinberger, which the Mother’s affidavit suggests ruled out any issue with respect to her psychological health, I do not share that view. Dr. Weinberger’s report foreshadowed the need for more extensive assessment and evaluation of the parenting capacity of the Mother, were the Mother to maintain her allegations against the Father without foundation.

6. Both children have been described as special needs. L. is learning disabled. G. Jr. is learning delayed and suffers from psychosomatic illnesses due to the parental conflict. His distress has resulted in withdrawal from the usual recreational and sportive activities of his peers.

7. A number of CAS workers predicted the children were at risk of emotional harm before and since the Final Order. I find that emotional harm has now occurred, and will persist and potentially result in the further psycho-educational and social decline of the children if there is no variation in the parenting arrangement to minimize the parental conflict.

8. I find that the children’s principal and teachers have been hampered in their ability to address the children’s special needs, scholastic and otherwise, due to the degree of attention required by the family. They are at times precluded from working cooperatively and productively with the Mother and timely attendance at school and completion of homework remains an issue while the children are in their mother’s care. The Mother has had difficulty accepting responsibility for her actions and her part in the children’s struggles at school. Her promises to deliver her children to school on time have had only marginal effect.

9. While the findings of a Family Court Clinic Assessment and Parent Capacity Assessment of the Mother would have been helpful, I conclude that the further delay inherent in the assessment process will not be in the children’s best interests. I am satisfied that until the Mother addresses her fear and distrust of the Father, which may benefit from more effective and regular counselling, and acquires new insight and acceptance of the part she plays in her children’s distress and special needs, there can be no effective joint custodial arrangement.

10. Having determined that the Father has met his onus to establish a material change in circumstances, I have undertaken a “fresh inquiry” into a parenting regime that serves the children’s best interests per Gordon v. Goertz. I have specifically considered the factors relevant to this inquiry, as enumerated in the Mother’s submissions as follows:

    a) The existing shared parenting arrangement perpetuates an environment of unmitigated parental conflict and does not serve the children’s special needs in education. It also fails to facilitate timely and coordinated communications and decision making in respect of the children’s medical and psychological needs. While the children are well bonded with both of their parents and their physical safety has not been found to be in jeopardy, the emotional damage experienced by the children in the current environment does not promote their special needs and best interests.

    b) While it is desirable to have maximum contact between the children and both parents, this should not be at the expense of their apparent need for uniform and timely decision making and care as relates to their health and education. In my opinion, the Father is better placed at present to meet these needs.

    c) The views of the children may only be inferred from their behavior and statements they have made over time. I have placed greater weight on the evidence of impartial third parties, including Dr. D.K. and L.W., as to the children’s views, rather than the parties’ competing accounts of the children’s statements over time. I am mindful of Dr. D.K.’s evidence that neither child, particularly L., wished to share hurtful things about their mother. He has observed that both children are well bonded and share a loving relationship with the Father. This would appear to be evidenced by text communications between the Father and the son, and the postcard L. prepared for her Father (Document Book 1, Tab 11, and Document Book 2, Tab 1). On the other hand, Dr. D.K. has confirmed the fractured relationship between G. Jr. and the Mother, and the rise of the child’s psychosomatic complaints in the current climate of parental conflict.

    L.W. has also made the same observations, and has borne witness to G. Jr.’s psychosomatic illnesses and G. Jr.’s reports of hitting and fighting at his mother’s home, and the child’s refusal as in September 2015 to return to his mother’s care, requiring the intervention of police and the CAS.

    While L. has yet to express the vehement preference to be with the Father that her brother has, she is considerably younger in age and, by all accounts, looks and behaves much younger than her years. Her views would, therefore, be accorded less weight.

    d) I am mindful that a change from joint to sole custody will amount to a significant change in the current regime. I am satisfied that it is the parenting arrangement that will best provide a structured and predictable environment within which the children’s needs, particularly in health and education, will best be met. Sole decision making to the Father will ensure a reduction in the conflict associated with these and other issues. It should also obviate the need to attend bi-monthly on Dr. D.K.

11. I, therefore, conclude that at this time the Father is the parent better equipped to meet the onerous responsibilities and challenges of being sole custodian of his children’s best interests given their special needs. He should have sole decision making power in relation to the children’s medical, dental, educational, and recreational needs after communicating with the Mother. However, the requirement to communicate with the Mother should not be seen as licence or opportunity to delay or preclude decision making until the moment a disagreement is clearly expressed. Rather, the obligation upon the Father to communicate with the Mother should be seen as an obligation on his part to inform her of the children’s needs and a decision to be made.

12. I do not neglect to observe that the Father would also benefit from individual counselling to channel his energies away from doggedly documenting all problems in his dealings with the Mother and attending bi-monthly with the children at Dr. D.K.’s office to document or rule out the evidence of abuse of the children. His energies are better spent focused on his children’s needs, and subsequently opening the channels to improved communications with the Mother in the future, if feasible and in the children’s best interests.

13. In time, and after the parties have made some gains with individual therapy, I would strongly urge them to consider engaging in family counselling with a view to healing the wounds of the past and better supporting each other in the important role each plays in their children’s lives.

The Final Order

[182] The Final Order shall therefore incorporate the following terms:

1. Option number 1 pertaining to child support to take effect August 1, 2016, and all of the terms of Shelston J.’s Final Order made on consent on September 18, 2015, as set out in Exhibit A.

2. From the Prayers for Relief Outstanding in Exhibit B, paras. 1, 2, 6, 7, 9, 10, and 12.

3. Paragraph 3 of Exhibit B shall also be incorporated, with necessary modifications, as follows:

   a) The Mother shall have unsupervised access until and unless a further act of contempt is committed by her in which case the Father shall have leave to move for supervised access to the Mother, on such terms as are just;

4. Paragraph 4 of Exhibit B shall also be incorporated, with necessary modifications as follows:

   a) The Mother shall have weekly access from Friday at 3:30 p.m. until Sunday at 5:00 p.m.

In my opinion, this access best promotes the maximum contact principle; is less disruptive of the children’s relationship with the Mother; and recognizes that the Father, who is a stay-at-home dad, will have the children in his care throughout the week, which during the school year will facilitate attention to their timely attendance and completion of homework assignments, and which otherwise will, given the flexibility of the Father’s said schedule, allow him to spend additional time with the children during the school week as permitted by their schedules, and in activities during the summer promoting parental involvement. He will also receive the children at 5:00 p.m. Sunday and will enjoy a “weekend” day when the children do not have school on the Monday, assuming that is not part of the Mother’s vacation week or otherwise falls on a holiday for which the parties have agreed to other access arrangements.

5. The order providing for sole custody and primary residence to the Father and the new access regime to the Mother shall not be disclosed to the children immediately, but shall take effect as soon after July 1, 2016 as will fall within the Father’s summer holidays with the children or during his weekly access if that should occur before. At that time, the Father shall inform the children of the change in parenting. No further cooling off period will be required.

6. Paragraphs 11, 15 and 16 of Exhibit B shall be amended to reflect the parties’ agreement achieved in the course of trial to permit them to take up to 14 days of vacation time with the children commencing in 2017; and the new pick-up and drop- off location for access exchanges at the Esso On the Run at 450 Bank Street in Ottawa.

7. A copy of these Reasons shall be provided to the CAS of Ottawa Carleton.

Costs

[183] Finally, as pertains to costs, I encourage the parties to consider a compromise which will reflect the resolution of issues achieved prior to and during the trial, as well as the further changes made by this Order to the Outstanding Prayers for Relief. I would also ask the parties to give consideration to how any order for costs may affect the ability to pay child support.

[184] If the parties are unable to arrive at agreement within 30 days hereof, the Father shall deliver written submissions of no more than five pages in length attaching his Costs Outline per the Rules and a Bill of Costs and any Offers to Settle. The Mother shall thereafter deliver written submissions of no more than five pages in length within 15 days thereafter, along with her Costs Outline, Bill of Costs and any Offers to Settle. The Father shall be at liberty to deliver reply submissions of no more than two pages in length within 7 days thereafter.

[185] I thank counsel for the handling of this case, with the utmost civility and cooperation, and in keeping with the finest traditions of the bar.

Madam Justice Toscano Roccamo

Released: July 8, 2016