CITATION: Whidden v. Ellwood, 2016 ONSC 6938

COURT FILE NO.: F-3136/14

DATE: 2016-11-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bonnie Leigh Whidden

Applicant

– and –

Garry Scott Ellwood

Respondent

Self-Represented Applicant

Self-Represent Respondent

HEARD: October 12, 13, 14, 18, 19, 20, 21, 24, 25, 26, 2016

THE HONOURABLE MR. JUSTICE PAZARATZ

1. So who really writes those section 112 reports?

2. That unexpected question arose in this otherwise fairly straightforward 10 day custody trial.

BACKGROUND

Background

3. Some background information:

a. The Applicant mother and the Respondent father are each 47 years old.

b. They started dating in 1991.

c. They started living together in January 2000.

d. They separated on July 4, 2014, soon after an incident in their home on June 20, 2014 which resulted in the police attending.

e. The parties have a nine year old daughter Taylor who is the subject of this bitter custody dispute. Neither has any other children.

f. Taylor has been living with the Applicant since the date of separation, initially in a shelter and now in a rented apartment.

g. Since separation the Respondent has always had restricted access. Some of those restrictions have gradually been lifted. But he has not yet been allowed overnight visits, and there’s still a restriction that he not consume alcohol during or prior to his time with his daughter.

4. Although there was no shortage of allegations back and forth, in many ways this case entailed some very basic themes:

a. The Applicant says the Respondent is an aggressive bully with a serious alcohol problem.

b. The Respondent says the Applicant also drinks, but more importantly she has a serious problem with depression, and she is intent on alienating him from his daughter.

5. Some additional information about the Applicant:

a. She is a registered practical nurse and worked in that capacity throughout the parties’ relationship.

b. She worked at Joseph Brant Hospital for several years prior to separation.

c. She took a year of maternity leave after Taylor was born.

d. At the hospital she worked day and night shifts.

e. During the period leading up to separation, the Applicant’s work schedule entailed two 12 hour day shifts from 7:30 a.m. until 7:30 p.m. and then two 12 hour night shifts 7:30 p.m. to 7:30 a.m. She would then have five days off. She said she often didn’t work four days in a row because she interspersed vacation time throughout the year, so she would be more available to care for Taylor.

6. Some additional information about the Respondent:

a. During the relationship the Respondent was initially employed in the auto glass repair industry.

b. He opened his own auto glass repair business in 2010. He operates the business from home and manages his own work hours.

c. Following separation he remained in the home the parties owned jointly. His attempts to buy the property were unsuccessful. After its sale he went to live with his brother. More recently he has moved to a home purchased by his brother, located in Taylor’s school catchment area.

3 EVENTS

Three Notable Events

7. There have been many motions, affidavits and temporary orders on this actively litigated file. But as I will review below, there were three notable events leading up to this trial.

8. On March 11, 2015 the Office of the Children’s Lawyer (“OCL”) issued at 26 page report prepared pursuant to section 112 of the Courts of Justice Act, prepared by clinical investigator Patricia Johnston. The report basically recommended joint custody and equal time-sharing. Within weeks of the Applicant filing a Dispute in relation to this report, the OCL withdrew the report and assigned the file to another clinical investigator to start over again.

9. In May 2015 – around the same time the second s. 112 investigation was getting started – Justice Chappel heard cross-motions for temporary relief, including the Respondent’s request for equal time-sharing. As a result of the severity of the mutual allegations, the motions proceeded by oral evidence. The parties and other witnesses (including OCL investigator Johnston) testified and were subject to cross-examination. Following this five-day mini-hearing, Justice Chappel made a temporary order which included the following terms:

a. Custody and primary residence to Applicant mother.

b. Respondent father to have access every Monday and Wednesday from 3:30 p.m. until 8:00 p.m., and every Sunday from 10:00 a.m. until 7:00 p.m.

c. Respondent to refrain from consuming alcohol during or 24 hours prior to access.

d. Respondent not to transport the child in a vehicle during access. He would be responsible for arranging alternative transportation for the child, and for the cost of any such transportation.

e. Respondent to give Applicant at least 24 hours’ notice by text message if he is unable to exercise access because of transportation issues.

f. Access exchanges to occur at the McDonald’s restaurant in Waterdown, if the child is not in school. If the child is in school, the exchange is to occur at the school.

g. Applicant to make reasonable efforts to facilitate telephone contact between the Respondent and the child on days when the Respondent would not have access, for approximately 10 minutes.

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

i. He enrolls in counselling with a qualified professional to obtain education and guidance about the impact of domestic violence and conflict on spouses and children.

ii. He enrolls in a treatment program to deal with his alcoholism; and

iii. He files reports from the professionals referred to above confirming that the professionals have reviewed the court’s reasons for judgment and that the Respondent has made significant progress in his counselling and treatment.

i. Taylor to remain enrolled in Balaclava Public School pending further order of the court.

j. By June 19, 2015 the Applicant is to serve and file an affidavit which is to include as attachments:

i. Copies of her 2013 and 2014 income tax returns with all required attachments, notices of assessment and notices of reassessment.

ii. Documentary proof of her total year to date income for 2015.

iii. A copy of her application for disability benefits and all documents which she submitted in support of her claim for disability, and the response received from the disability insurance provider.

iv. Documentary proof of the total disability benefits which she has received to date.

v. Copies of any medical or other records within her power or control relating to the conditions that form the basis of her disability claim, and her mental health history and status.

vi. A report from her psychiatrist Dr. Devine, summarizing his involvement with the Applicant; any treatment recommended; the Applicant’s compliance with treatment; the Applicant’s mental health functioning since he has been involved with her; and the prognosis for the future respecting the Applicant’s mental health status.

k. The parties shall refrain from discussing the legal proceedings with or around the child, and they shall refrain from making derogatory comments about each other or their respective families around the child.

10. On January 14, 2016 the OCL issued its second (replacement) s.112 report prepared by clinical investigator Ian DeGeer. The 17 page report included the following recommendations:

a. The Applicant should have sole custody. The Respondent should have direct access to information about Taylor from third parties such as schools and doctors. The Applicant should inform the Respondent in writing of any major decisions and take his view into considerations. In non-emergency situations, the Applicant should not implement any changes for a period of 15 days.

b. The Respondent should attend and participate in anger management counselling, as offered by the John Howard Society in Milton.

c. The Respondent should attend and participate in the Caring Dads program.

d. Pick-ups and drop offs of Taylor should occur in a supervised visitation centre.

e. Neither party should video record the child during exchanges.

f. Neither party should speak to Taylor about court or court-related matters.

g. The Applicant should participate in trauma-focused counselling to address the symptoms related to her post traumatic stress disorder.

h. Until the Respondent is able to demonstrate that he has completed Caring Dads and is participating in counselling at the John Howard Society his time with Taylor should be as follows:

i. Alternate Saturdays from 9:00 a.m. to 4:00 p.m. and Sunday (9:00 a.m. to 4:00 p.m., or a time that can facilitate the use of a supervised visitation centre to facilitate pick-ups and drop offs.

ii. Telephone contact on Tuesdays and Thursdays at a mutually agreed upon time.

iii. Respondent not to consume alcohol 24 hours prior to spending time with Taylor.

i. Parties to share equally all major holidays.

EVIDENCE AT TRIAL

Evidence at Trial

11. The witnesses at trial testified in the following order:

a. Ian DeGeer (the second OCL clinical investigator)

b. Patricia Johnston (the first OCL clinical investigator)

c. The Applicant mother.

d. The Respondent father.

e. Leanne Lennox (spouse of the Respondent’s brother)

f. Susan Neville (Taylor’s previous school principal)

12. Early in the trial, the self-represented parties reached an important agreement with respect to a large number of facts:

a. They agreed that the five day oral motion heard by Justice Chappel in May 2015 was in fact a mini-trial in which multiple witnesses testified and were cross-examined.

b. They agreed that the 65 page transcript of Justice Chappel’s oral reasons for judgment dated May 29, 2015 set out numerous factual findings – many of them in relation to issues which had been bitterly contested.

c. They agreed that their current evidence in relation to those historical issues would be largely the same as the evidence already heard at the oral motion.

d. They agreed that neither of them wanted to try to re-argue those issues and factual determinations already made by Justice Chappel.

e. Accordingly, they agreed that Justice Chappel’s factual findings on May 29, 2015 would form part of the evidence on this trial, and that no evidence would be called in relation to those issues.

PREVIOUS FINDINGS

Previous Findings

13. I will briefly summarize some of Justice Chappel’s relevant findings.

14. In relation to the June 20, 2014 incident which led to separation, the court made the following findings:

a. The relationship between the parties had been very conflicted for many years. The tension escalated significantly during the weeks leading up to the June 20, 2014 incident:

b. The dispute began in the backyard of their home, where Taylor and the Applicant were swimming. Taylor asked the Respondent to hold a towel for her. A dispute arose about the way in which the Respondent was holding the towel.

c. A verbal argument developed. The Respondent went into the garage. The Applicant and Taylor went into the house, where the Applicant proceeded to prepare dinner for Taylor.

d. The Respondent entered the home later on and the verbal disagreement continued. The argument involved unpleasant words exchanged by both parties. Taylor was present at the time.

e. Justice Chappel found that the Applicant had given consistent descriptions of what happened next, whereas the Respondent had given inconsistent versions of events to the police, CAS, in his affidavit, and on the witness stand.

f. The Respondent claimed that during the dispute the Applicant called him a number of foul names, so he grabbed her hands to stop her from making demeaning statements. He claimed that as he tried to walk away the Applicant charged after him; he put up his hands to cover his face; and at that point his wristwatch may have accidentally nicked the Applicant’s lip. At times the Respondent acknowledged the he grabbed the Applicant’s face, covered her mouth with his hand, and told her to “shut the hell up”. He also acknowledged that the child Taylor came up behind him and started hitting him during this incident to try to stop the argument and to make him leave the Applicant alone.

g. Justice Chappel accepted the Applicant’s description of events. She found that words were exchanged and the Applicant asked the Respondent to leave the house because he was intoxicated. The Applicant then turned away and the Respondent came after her. The Respondent grabbed the Applicant roughly by the face from behind, putting his hand over her face and nose, and squeezing hard so that she could not breathe. The Respondent then held the Applicant in a headlock in a bent down position and continued to hold his hand over her mouth. The Respondent claimed he was the victim and that he called police first. However, Justice Chappel found that the Respondent deliberately took the Applicant’s cell phone away from her to prevent her from calling for police assistance.

h. The police attended but no charges were laid. The Children’s Aid Society of Hamilton (“CAS”) also later became involved.

i. The Applicant then took Taylor to a friend’s cottage stating she would return in a few days. After reflecting on the Respondent’s long history of physical and emotional abuse, and his ongoing problem with alcohol, the Applicant decided to separate from the Respondent. She and the child did not return home.

j. The Applicant and Taylor then resided at Halton Women’s Shelter until mid-August 2014 when they went to live with the Applicant’s sister for a period. They now live in a two bedroom apartment in Waterdown.

15. Justice Chappel accepted the Applicant’s evidence that the Respondent had been physically aggressive and controlling on many occasions throughout the parties’ lengthy relationship.

a. In approximately 2004 the parties had an argument at the family home which became physical. The Applicant said the dispute ended with the Respondent throwing the Applicant to the ground and kneeing her in the ribs several times. She went to Milton Hospital for x-rays which established that she had not suffered any broken ribs. The Respondent claimed the Applicant began yelling at him and calling him names, so he grabbed her arms to calm her. Justice Chappel noted that this version was somewhat similar to the Respondent’s explanation about the June 20, 2014 domestic incident. On both occasions he said he grabbed the Applicant’s arm ostensibly to calm her down. Justice Chappel did not accept his explanation with respect to either incident.

b. Early in 2014 there was an occasion when the Respondent couldn’t contact the Applicant by telephone, so he contacted her sister Aimee Tilton. Tilton said he was so angry and agitated during the phone call that Tilton managed to contact the Applicant to alert her that he was upset. When the Applicant arrived home, the Respondent lunged at her, shoved her, and began grabbing her purse in an extremely aggressive manner. The Respondent then forcefully removed the cell phone from her purse and refused to give it back, as punishment for not answering her phone. This incident occurred in the presence of Taylor.

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

d. In the past the Respondent has kicked the family dog; kicked holes in the wall in the family home; and on one occasion punched the windshield of a car while he was in the passenger seat and the Applicant was driving, resulting in the windshield having to be replaced.

e. On many occasions when the parties had disagreements, the Respondent would approach the Applicant with his chest stuck out, bump against her with his chest, and threaten her with his fists to intimidate her.

f. On one occasion the Respondent became so angry and frustrated with Taylor that he kicked something outside of the home so hard that he injured his foot and was limping the next day.

g. On another occasion the Respondent was angry at a neighbour and retaliated by loading excessive snow on the plow of the neighbour’s truck causing it to break.

h. At one point during the relationship the Respondent agreed to take care of his friend’s large dog. But he then became increasingly frustrated with the dog and finally told the Applicant that the dog better not be there when he returned home that night or “there would be trouble.” The Applicant arranged to take the dog to an animal shelter. The Respondent subsequently told his family and friends that the Applicant was responsible for this decision.

i. Following separation the Respondent remained in the jointly owned home. He threw all of the Applicant’s personal belongings into garbage bags and placed them in the wet, mouldy, smelly basement of the family home, causing mould to destroy the items. Justice Chappel accepted the Applicant’s testimony that after separation she had good reason to fear that the Respondent would damage her vehicle as a means of controlling her actions.

j. Tensions flared up again on July 28, 2014 when the Applicant attempted to enter the family home to retrieve some belongings. The Respondent had changed the locks. On July 29, 2014 the Applicant returned with police assistance.

16. Justice Chappel rejected the Respondent’s allegation that the Applicant is the parent who has a major temper; that the Applicant was the emotionally abusive partner; and that any physical disputes between the parties were attributable to the Applicant charging towards him or berating him in the presence of the child. Justice Chappel rejected the Respondent’s claim that the Applicant was the primary source of the problems.

17. She agreed, however, that there is no evidence the Respondent has engaged in physically abusive behaviour towards the child. (The Applicant has never made such an allegation.)

18. Justice Chappel heard a great deal of evidence about the Respondent’s use of alcohol during the May 2015 oral hearing, and she noted the following in her oral judgment:

a. The Respondent has admitted he used to consume large quantities of alcohol before Taylor was born. But he insists he has not abused alcohol since then.

b. He acknowledged, however, that since the date of separation, he has on occasion consumed excessive amounts of alcohol due to the stress of the family situation.

c. Justice Chappel did not accept the Respondent’s evidence regarding alcohol.

d. She found that the Respondent has a longstanding history of alcohol abuse; that he has not acknowledged his problem; and that he has shown no inclination to take the necessary steps to resolve this significant issue.

e. The Respondent was convicted of impaired driving in 1991. The Applicant explained the conviction related to an incident when the Respondent was snowmobiling while heavily intoxicated, had an accident, and almost lost his leg as a result of his injuries. The Applicant lamented the fact that the Respondent did not learn his lesson about excessive alcohol use.

f. The Applicant testified the Respondent has had problems with alcohol abuse for many years. She alleged that his pattern is to consume excessive amounts of alcohol to the point of passing out virtually every night.

g. She described the Respondent drinking beer in the car while driving with both the Applicant and the child in the vehicle.

h. She described incidents when the Respondent returned home in a vehicle reeking of alcohol, with Taylor in the back seat.

i. She told Justice Chappel when she placed calls to the Respondent from the shelter in July 2014, the Respondent sounded very intoxicated because he was aggressive in his tone and slurring his words.

j. Justice Chappel found the Applicant to be extremely credible and accepted her evidence regarding the Respondent’s alcohol abuse.

k. Justice Chappel found the Respondent’s substance abuse problem has impacted on his parenting of Taylor.

l. Justice Chappel accepted the Applicant’s evidence that when she would return home from work after a 12 hour day shift, the Respondent would hand over childcare responsibilities to her, despite the long day, so that he could go to the garage and drink.

m. Justice Chappel accepted the Applicant’s evidence about an incident when Taylor was only six months old. The Applicant went out with some friends for the night and returned home to find the Respondent passed out intoxicated in the garage, which she stated is approximately 30 feet away from the house. As a result, the Applicant refrained from going out in the evenings, except for work.

n. The Applicant stated Taylor has also told her about two other times when she woke up in the middle of the night and her father was not home. On one of those occasions Taylor telephoned the Respondent and determined he was in the garage. On a second occasion Taylor disclosed her father did not respond to her call, so she put on her snowsuit and boots to go outside in the middle of the night to look for him.

o. The Respondent testified he had no concerns about these incidents, since he had taught Taylor how to use the telephone and intercom to contact him in the garage. Justice Chappel noted he did not demonstrate any appreciation of how this type of situation could impact a very young child.

p. The Applicant described another situation when the Respondent was caring for the child in the morning because the Applicant was working. Taylor had great difficulty waking her father up to take her to the bus because he had been drinking all night the previous night. The Applicant recalled that the child was extremely upset on this occasion because she missed the bus as a result of the delay in waking her father up, and she loved taking the bus to school.

q. Justice Chappel accepted the Applicant’s evidence on these topics. She accepted the evidence that the Respondent had no qualms about drinking and driving with Taylor in the vehicle.

r. Justice Chappel found that just a few weeks before the May 2015 hearing, Taylor returned from a visit with the Respondent and told the Applicant the Respondent was drinking beer and then drove her home. The Respondent denied this. Justice Chappel accepted the child’s version of events, and noted that the Respondent’s pattern of regularly challenging the child’s observations has a negative effect on the child’s psyche and overall emotional well-being.

s. Justice Chappel found that the Applicant raised concerns about the Respondent’s alcoholism long before the parties separated. A report from the family physician Dr. Donaldson dated March 5, 2015 confirms the Applicant first began talking about her concerns regarding the Respondent’s alcoholism on January 21, 2011. The clinical notes of the Applicant’s counsellor indicate the Applicant first opened up to her counsellor about the Respondent’s alcoholism during a meeting on April 19, 2013. The Applicant was attending Al-Anon at that point to receive support in dealing with the Respondent’s alcoholism, and to seek guidance about how to convince the Respondent to address the problem.

t. Justice Chappel accepted the Applicant’s evidence that she pleaded with the Respondent to go for counselling with her, and for him to resolve his alcohol abuse and aggression problems. But the Respondent constantly denied that he had any issues, and laid the blame for any problems on the Applicant. The Respondent would berate the Applicant and call her crazy and tell her to go to the doctor for medication if she attempted to raise concerns with him.

19. Justice Chappel found that the Applicant had recently been diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD) as a result of her experiences with the Respondent over the past several years, and as of May 2015 she was on sick leave from work. The Applicant is under the care of a psychiatrist, Dr. Devine.

20. Justice Chappel made the following findings about the evolution of the Respondent’s access to Taylor following separation:

a. The Applicant did not advise the Respondent of her intention to leave in July 2014, and she didn’t advise him that she and the child had gone to a shelter.

b. The Applicant initially made calls to the Respondent on a daily basis to allow the Respondent to speak with Taylor. She stopped these daily calls because she felt the Respondent was intoxicated and angry during the calls. She felt this was having a negative impact on Taylor.

c. When school started in September 2014 the Respondent attended at the school daily to see Taylor at the beginning and end of the school day.

d. The Applicant told Justice Chappel that when the Respondent attended at Taylor’s school in the afternoons starting in September 2014, she initially allowed him to walk Taylor to her car and strap her into the car seat. However, the Applicant stated that she stopped allowing him to do so after an incident when he became angry and shoved her roughly against her vehicle. Justice Chappel accepted the Applicant’s evidence in this respect.

e. By the fall of 2014 the parties agreed the Respondent would have access Wednesdays from after school until 8:00 p.m. and Sundays from 10:00 a.m. to 7:00 p.m.

f. This arrangement continued until March 27, 2015 when the parties consented to a temporary without prejudice order expanding the Respondent’s access to include Monday evenings (non-overnight).

21. Justice Chappel accepted the Applicant’s evidence that while the parties lived together she assumed primary responsibility for Taylor. The Respondent was, however, actively involved as a parent.

22. Justice Chappel expressed concerns about the Respondent’s ability to foster Taylor’s emotional needs and place her needs and wishes ahead of his own.

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

b. During the fall of 2014 when the Respondent was attending the school daily to see Taylor, the child told the Applicant that the Respondent was repeatedly asking her to go with him to the family home. Taylor kept telling him she did not want to go with him. The Applicant finally spoke to the Respondent about this and explained that Taylor did not wish to go. The Respondent then denied – in the presence of Taylor – that he had ever made such requests.

c. Justice Chappel accepted the Applicant’s evidence that there have been many occasions when Taylor has told her that she is upset about something her father did, but the Respondent has denied what the child said, often to the child’s face.

d. On one occasion, Taylor had been invited to a birthday party of her cousin, who she is very close to. The party was scheduled on one of the Respondent’s access days. The Respondent ignored requests that he change his visit or allow Taylor to attend. In the end the Respondent allowed Taylor to go. But his failure to cooperate in advance of the party caused Taylor to experience significant distress.

23. Justice Chappel considered and rejected the Respondent’s allegation that the Applicant attempted to alienate Taylor from the Respondent by severely limiting his access following separation. She found that:

a. It was reasonable for the Applicant to propose limited and supervised access because of the Respondent’s history of aggressive behaviour – and more significantly, because of the Respondent’s inappropriate behaviour and continuing alcohol abuse even after separation.

b. The Applicant had been warned by CAS that if she allowed the Respondent to have access when he was intoxicated, she would be accountable. She asked CAS to supervise access but they declined to do so.

c. The Applicant showed sensitivity to the child’s emotional response and vulnerability as a result of having been exposed to angry and aggressive behaviour by the Respondent.

d. The Applicant did not interfere with the Respondent’s daily access to Taylor before and after school between September and November 2014.

24. Justice Chappel made findings in relation to Taylor’s emotional health and her need for counselling.

a. The Applicant sought counselling for Taylor following separation, as a result of the child having been exposed to domestic conflict. She began experiencing problems with bladder control at the shelter.

b. The Applicant enrolled Taylor in a counselling program for children run by LEAF, a program geared for families who have experienced domestic violence. Justice Chappel found that Taylor greatly enjoyed this program and wished to continue.

c. However the Respondent strongly opposed this counselling because it was offered through LEAF. He agreed reluctantly to allow Taylor to complete the last two sessions of the program she was initially involved in. But he did not consent to any further counselling for Taylor, despite acknowledging that Taylor has witnessed conflict between the parties.

d. The Applicant advised the Respondent that Taylor was starting to experience panic attacks. But the Respondent continued to object to counseling unless he received a report from an expert stating that the child requires counselling. He refused to believe the Applicant about how Taylor is coping because he has not seen it himself during his visits with the child.

e. Justice Chappel accepted the Applicant’s evidence about Taylor’s need for counselling, and the benefit she was receiving.

25. Justice Chappel reviewed the numerous inconsistencies in the evidence during five days of testimony. She concluded: “Overall, I found the Applicant much more credible than the Respondent.” She cited numerous instances of misleading and inconsistent evidence presented by the Respondent.

26. As stated, both parties agreed that all of Justice Chappel’s above noted findings would apply as part of the evidence on this trial.

WITNESS #1 IAN DEGEER

Witness #1: Ian DeGeer

27. OCL clinical investigator Ian DeGeer – author of the second s.112 report – was the first witness. He was cross-examined by both parties. His evidence was consistent with the narrative and factual findings set out in Justice Chappel’s May 29, 2015 reasons for judgment.

28. DeGeer addressed the unusual dynamic of preparing a replacement s.112 report.

a. He described the Respondent as reluctant to become involved with him. DeGeer suggested that because a previous OCL report had been completed, the Respondent appeared reluctant to start the process over again.

b. DeGeer said his investigation and recommendations were not influenced by the earlier OCL report. He’s never read the earlier report. He has no information about its contents. He’s never spoken to the social worker who prepared the first report.

29. DeGeer provided a general summary of his analysis:

a. Both parents told him there were difficulties in their relationship. They blamed one another for those problems.

b. Things were so bad that on at least two occasions prior to June 2014 the Applicant left the relationship, claiming she had to seek safety elsewhere.

c. The relationship between the parties continues to be fraught with tension and dysfunction.

30. His report reviewed the events of June 20, 2014 which led to the parties’ separation. The Applicant’s version, reported to DeGeer:

a. The parties had been home. Taylor was swimming, and when she wanted out of the pool she wasn’t happy that the Respondent would not hold a towel the way she wanted.

b. The Applicant said the Respondent started screaming at Taylor, so she took the child inside, and the Respondent went into the garage.

c. The Applicant said the Respondent eventually came into the house and asked about dinner. She told him they had eaten and asked him to leave because he had been drinking.

d. The Applicant said the Respondent grabbed her from behind and put his hand over her mouth and nose. She said it was like a head-lock, and it occurred in front of Taylor.

e. The police were called but no charges were laid.

31. The Respondent’s version of the events of June 20, 2014, reported to DeGeer:

a. The Applicant had been home drinking on the front porch. She and Taylor went into the pool. When Taylor was ready to get out she got upset.

b. The Respondent said the Applicant blew up at him and was so angry that she jumped over the side of the pool, grabbed her bag of beer and threw it at him.

c. He said she kept screaming and yelling, so he went into the garage. She called him names in front of Taylor.

d. Eventually he went into the house to discuss dinner, and the Applicant called him immature and got right in his face.

e. The Respondent admitted putting his hand over the Applicant’s mouth and shouting at her.

f. He also admitted grabbing her hands because he was concerned that she was raising her arms.

g. He said as he turned to walk away he raised his left hand. The Applicant falsely accused him of punching her.

32. Under cross-examination by the Respondent, DeGeer agreed:

a. No charges were laid against either party.

b. No one needed medical care.

c. According to the police report, the Applicant declined an offer to take her to a shelter.

d. The police report also indicated neither parent was intoxicated.

33. Notably, the Applicant’s version of June 20, 2014 as reported to DeGeer was consistent with her previous descriptions. Her version was accepted by Justice Chappel who made the previously noted findings. In contrast, the Respondent’s description to DeGeer attempted to be exculpatory, repeating a narrative which had already been rejected by Justice Chappel when she made the May 2015 findings which were also applicable in this trial.

34. DeGeer’s report discussed more general allegations of domestic violence and aggression. He said:

a. The Applicant expressed concern about the Respondent’s temper and violent behaviour.

b. She said since Taylor was born there had been a lot more fighting between the parties, primarily when the Respondent was drinking.

c. The Applicant reported occasions when she would return home to find the Respondent arguing with Taylor. She said she saw the Respondent drag Taylor by the arm into her room, where she had to stay until she stopped crying.

35. DeGeer’s report noted the following about the Respondent:

a. Justice Chappel had ordered the Respondent to attend domestic violence counselling.

b. However the Respondent does not qualify for the Partner Assault Response (PAR) program as he has not been criminally charged and/or convicted of a domestic related assault.

c. The Respondent attended counselling at the John Howard Society in Milton. They reported that the Respondent was very difficult to engage, failed to be accountable for his behaviour, and was often volatile within the clinical setting.

d. Once his therapist left, the Respondent stopped going to counselling.

e. DeGeer noted that the Applicant continues to express fear of the Respondent’s unpredictability and his temper.

f. DeGeer stated “it may be that (the Respondent) lacks the ability to emotionally regulate himself or his temper.”

g. DeGeer also speculated that the Respondent may have used violence in his relationship with the Applicant in an effort to control her behaviour and keep her in fear.

h. The clinical investigator noted the Respondent’s anger control issue may extend beyond intimate relationships. DeGeer witnessed an interaction between the Respondent and his brother’s partner Lennox in which the Applicant raised his voice in an effort to get her to stop talking during an interview. DeGeer testified Lennox acknowledged the anger issue, but DeGeer felt she minimized that he is a hothead, not a bad guy.

i. DeGeer said concerns about the Respondent’s behaviour extend into some of his interactions with Taylor during phone conversations. There are concerns about the line of questions that he uses and his continual questioning of Taylor until she either hangs up the phone or gives him the answer he is looking for.

36. During cross-examination the Respondent challenged DeGeer about why he accepted the Applicant’s allegation that he was violent.

a. DeGeer recalled that the Respondent had actually admitted to him that during the June 2014 incident he had grabbed the Applicant by the face or around the neck.

b. DeGeer also repeated his own observations of the Respondent’s aggressive tone with Lennox. He was very clear in his recollection of this.

c. He said he had concerns about the Respondent’s potential to be violent. More precisely, he described it as “issues with respect to emotional regulation and anger.”

d. DeGeer qualified his answer: “Do I think you’re the most violent man out there? No.”

37. During cross-examination, the Respondent questioned whether the Applicant’s allegations of long-standing abusive behaviour were consistent with her behaviours.

a. When asked how many specific incidents the Applicant complained about, DeGeer said there was no specific number. But he said many women who experience domestic violence don’t perceive or characterize it as a series of individual incidents. They view it as a continuing pattern of behaviour.

b. The Respondent suggested the Applicant couldn’t have been that afraid of him if she offered to personally supervise visits. DeGeer countered that quite often women who are fearful of their partner will still be prepared to put themselves at risk by acting as access supervisors, out of extreme concern for the safety of the child.

c. DeGeer did not acknowledge that any of the Applicant’s behaviours were inconsistent with her descriptions of problems and her stated fears.

d. But he acknowledged it was possible that some of the arguing the parties engaged in may have been instigated by the Applicant.

38. DeGeer’s report discussed allegations of alcohol abuse:

a. The Applicant advised him the Respondent’s consumption of alcohol had always been problematic, and that it got worse after he started his own business.

b. She said the his drinking was so bad that there were times when the Respondent was caring for Taylor, and he would be passed out due to alcohol consumption in the garage.

c. The Applicant reported another occasion when the Respondent was caring for Taylor. The child went to bed but during the evening Taylor woke up and the Respondent was not in the house. Taylor called the Respondent on his cell phone and he did not answer. The Applicant reported that Taylor put on her snow pants and boots and went to the garage where she found the Respondent asleep.

d. This information reported by the Applicant was consistent with the evidence accepted by Justice Chappel at the May 2015 oral hearing.

39. The Respondent denied to DeGeer that he had a problem with substance abuse.

a. The Respondent said he had completed a substance use program through ADAPT in Milton in order to satisfy the court.

b. He also said he went to his physician and got a full toxicology report completed which indicated he didn’t have a substance abuse problem.

c. The Respondent alleged the Applicant was fabricating this allegation to deflect attention away from her own drinking issue. The Respondent said the Applicant would often drink with him or start drinking before he got home.

40. In his report DeGeer offered the following observations about the alcohol issue:

a. The Respondent attended for four alcohol counselling sessions with ADAPT in Milton. Due to the self-reporting nature of this treatment, ADAPT was unable to say with certainty if the Respondent has an issue with alcohol consumption.

b. DeGeer concluded it was most likely that the Respondent consumed alcohol with frequency during the relationship. Taylor reported that both of her parents drank beer. Her father drank more than her mother.

c. The Respondent’s current use of alcohol is unclear.

d. But the Respondent has agreed he will not consume alcohol while with Taylor. DeGeer felt this suggests an ability to demonstrate restraint.

41. During cross-examination, the Respondent suggested DeGeer focussed too much on the Respondent’s behavioural issues, and not enough on the Applicant’s equally destructive mental health issues.

a. The Respondent said the Applicant had been receiving treatment for depression for about 10 years. Medication helped, but she stopped taking it because of a side effect of weight gain.

b. He said the Applicant can lose her temper and get out of control. She will call him names and he feels she is being spiteful towards him.

c. The Respondent expressed concern about the Applicant’s behaviours since separation, including audio and video recording his interactions with Taylor in the parking lot of the school. He said in September 2014 the Applicant was observed peering into the window of the school regarding Taylor’s birthday present from the Respondent.

d. He said she has withheld Taylor from visits and was directed by the court to re-start visits.

42. DeGeer commented on the Respondent’s concerns about the Applicant.

a. He said none of the Applicant’s collaterals suggested she was violent or aggressive.

b. He acknowledged there were concerns about the erratic nature of the Applicant’s behaviour at pick-ups and drop-offs.

c. DeGeer suggested these behaviours may be accounted for by considering her diagnosis of PTSD, which she attributes to the violence and trauma she suffered in her relationship with the Respondent. She continues to receive treatment for this through a psychiatrist, primarily for medication.

d. DeGeer testified he accepted the diagnosis of PTSD given by the Applicant’s psychiatrist Dr. Devine. The clinical investigator was more inclined to characterize the Applicant’s PTSD as the result of the conflict between the parties, rather than the cause.

43. DeGeer’s report discussed the Respondent getting counselling.

a. Justice Chappel’s order of May 29, 2015 required the Respondent to attend counselling to address his emotional issues including his ability to manage his anger.

b. The Respondent advised DeGeer he attended counselling at the John Howard Society in Milton. He went to weekly sessions over a two month period. He said the focus was developing stress techniques and trying to find ways to cope with the current situation.

c. DeGeer said the Respondent did not provide specifics as to how he found this helpful or how he was using what he learned.

d. Under cross-examination by the Applicant, DeGeer suggested the Respondent should take the Caring Dads program, to give him insight into what it might be like for Taylor to be experiencing the types of situations which have been imposed on her.

44. DeGeer’s report reviewed allegations of problems during access exchanges. The Respondent made certain complaints:

a. He said the Applicant had been acting “erratically” during access exchanges.

b. He said one time she kept driving Taylor around a parking lot across from the McDonald’s access exchange location. While Taylor was in the car, the Applicant drove over a curb and through a park prior to dropping Taylor off.

c. He said on a second occasion the Applicant followed the Respondent’s brother’s partner’s car through the McDonald’s drive-thru, over a curb, and then drove around the wrong way through the drive-thru, blocking traffic. She then proceeded to get Taylor out of the vehicle while the car was in the drive-thru lane waiting for an order. He said Taylor was quite upset about this.

d. DeGeer noted that Leanne Lennox, spouse of the Respondent’s brother, corroborated these complaints about the Applicant’s confrontational behaviour.

45. The Applicant also made certain complaints to DeGeer:

a. She said the Respondent’s family is intimidating her and once blocked her car in with their cars.

b. She said Lennox shoved her on one occasion, and she has been subject to verbal harassment by his family.

c. She admitted driving over a curb and through a park, due to being fearful of the Respondent’s family and their intimidation. She said on that occasion they had blocked her car in and were banging on the window of the car in an effort to get Taylor out.

d. Regarding the McDonald’s drive-thru incident, the Applicant told DeGeer she felt she was set up by the Respondent. She said she arrived late and when she approached the Respondent’s sister-in-law’s car, they drove away and proceeded to the McDonald’s drive-thru. She tried to get in behind them but the Respondent cut her off, so she drove around the other way to get to Taylor.

e. DeGeer said she didn’t have a good explanation for getting Taylor out of the vehicle while it was in the drive-thru lane, stating she was just trying to get Taylor out to go home. She said she didn’t believe Taylor was upset.

46. DeGeer agreed with the Respondent that the incidents of erratic driving by the Applicant at exchange times were “very dangerous.”

a. The Applicant suggested to DeGeer that her erratic behaviour during exchanges was the result of deliberate provocation by the Respondent and his family.

b. DeGeer said he was unable to speculate about people’s motivations.

c. All he could say for sure was that Taylor had been exposed to inappropriate situations, and that the adults in her life needed to work harder to shield her from adult conflict.

47. DeGeer’s report discussed the Respondent’s allegations that the Applicant was attempting to limit his contact with the child:

a. The Respondent said the Applicant had denied some visits in contravention of an existing order. Visits were restored after he complained to the court.

b. He said the Applicant has not allowed him consistent telephone contact with Taylor. The Applicant has refused to answer his calls. He said if he asks Taylor a question, he perceives that the child has to check with the Applicant about how to answer.

c. The Applicant denied interfering with access, but said Taylor has at times persisted in saying she didn’t want to go for visits. She said sometimes Taylor does not want to speak to him on the phone.

d. She told DeGeer that telephone access has not been going well because of the Respondent’s tone and questions. She said she can hear him asking probing questions or using a tone which might induce fear in Taylor. She said sometimes Taylor hangs up in response to the Respondent’s behaviour.

48. DeGeer described observation visits between each parent and the child favourably. He said he obtained the following information from Taylor:

a. She recalled a lot of arguing in the home when her parents lived together. They would both yell at each other.

b. When the arguing happened she would go and hide in her room or under the dining room table.

c. Her parents argued about a lot of different things. Sometimes it “made no sense at all.”

d. She was aware of what alcohol was and what beer was and both of her parents would drink beer – her father more than her mother.

e. She recalled her father used to drink on a daily basis. She wasn’t sure whether this was still the case.

f. She said during access exchanges there were incidents where her aunt came over to their car and shoved her mother. She could not recall a time when her mother drove over a curb.

g. She recalled an incident at McDonalds where her mom got her out of the car while she was in the drive-through waiting for her McFlurry. She stated that she did not like this although she did want to leave with her mother.

h. When asked about the current arrangement, Taylor was able to say when she visits with her father and the kinds of things that they do.

i. Taylor said her phone calls with her father are difficult because he continuously asks her questions until she gives him the answer she thinks he wants to hear. She couldn’t give an example.

j. When asked about overnights, she said she does not want to spend the night with her father, but could not specifically identify why. Merely that sometimes she was scared when with her father.

49. During the Respondent’s cross-examination of DeGeer, he suggested it was strange that Taylor’s reported reluctance to go for overnight visits only arose about a year after separation, and the child couldn’t really identify why she didn’t want to sleep over.

But during cross-examination by the Applicant, DeGeer admitted some of Taylor’s reported experiences may explain her resistance to access:

a. Taylor recalled times when she woke up at night and couldn’t find the Respondent, who was supposed to be caring for her while the Applicant was at work. She would find him in the garage. She said this often made her nervous.

b. One morning when the Applicant was at work, Taylor woke up but couldn’t awaken the Respondent. She ended up missing her school bus.

c. She witnessed the Respondent physically assaulting the Applicant on the date of separation. She witnessed the Applicant bleeding from injuries. The child was so upset she was hitting the Respondent to make him stop.

d. The child then observed police officers being told that the Applicant had been the aggressor, and warning that both parents might be jailed.

e. Taylor told DeGeer the Respondent sometimes makes her very uncomfortable during telephone access, repeatedly badgering her with questions until she tells him what he wants to hear – or until she simply hangs up on him. Taylor said the Respondent blames the Applicant for telephone calls ending, but really it’s Taylor herself who decides she doesn’t want to talk to her father. Taylor made statements such as “He can ask me questions over and over on the telephone”; “He keeps asking me and asking me until I tell him what he wants”; “Sometimes this can be annoying.”

f. The Respondent took Taylor for a ride on an ATV several times, without giving her a helmet, even though the child asked for a helmet because there was a big notice on the ATV warning that helmets should be worn. The Applicant said Taylor became concerned about her safety while in the care of the Respondent. The Respondent said this only happened once, and he drove the ATV very slowly.

g. The Respondent used to take Taylor Go-Karting until she refused to go after witnessing a 7 year old friend badly injured. The Applicant said this compounded the child’s concern about the Respondent’s ability to keep her safe.

h. DeGeer concluded that Taylor has been put in the middle of a lot of inappropriate experiences, and cumulatively these exposures might explain her resistance to telephone access, and refusal to go for overnight visits.

50. In the report’s concluding comments, DeGeer said the most concerning aspect of this case is that Taylor is so often in the middle of a number of problematic adult interactions.

a. DeGeer expressed concern that so many of the adults related to Taylor see fit to video record what happens at exchanges.

b. He said from observing these recordings, often the behaviour that has been shown has not been child-centred in nature.

c. He questioned whether the adults related to Taylor understand the implications of their actions for the child.

d. DeGeer expressed concern that Taylor may now associate certain aspects of her life, such as pick-ups and drop-offs, with a relative lack of safety and a sense of uncertainty. She is unsure what will happen when her parents are in proximity to one another.

e. He said it was regrettable that Taylor continues to experience on almost a weekly basis the same sort of adult conflict which caused her to hide under stables and in her bedroom, before her parents separated.

51. DeGeer’s report included the following information relating to the Respondent’s physician Dr. Ivan Hunter.

a. Hunter would not speak to DeGeer on the phone but responded in writing to a letter with specific questions.

b. Hunter has been the Respondent’s family physician since 1969 but he sees the Respondent infrequently.

c. He assessed the Respondent on two occasions in 2015.

d. He discussed alcohol consumption with the Respondent. Hunter determined it was non-pathological and the Respondent self-reported not using drugs.

e. Hunter said he hadn’t seen the Respondent in several years so he was basing his assessment on self-reporting.

f. The doctor has no evidence of the Respondent’s emotional control or substance abuse.

52. DeGeer’s report included the following information relating to Dr. Cindy Donaldson, the Applicant and Taylor’s physician.

a. She sees Taylor on a regular basis and has no issues regarding the care the child receives.

b. Donaldson diagnosed the Applicant with depression in 2004 and prescribed medication to manage the symptoms. There was a period when the Applicant went off medication. She then returned in 2011/12 with another bout of depression-like symptoms, resulting in further medication being prescribed.

c. Donaldson said the Applicant experienced a situational crisis related to the parties’ separation in 2014. The family physician referred her to Dr. Devine.

d. Donaldson said since then the Applicant appears to be functioning better and is receiving counselling and support.

53. DeGeer’s report included the following information relating to the Applicant’s psychiatrist Dr. John Devine.

a. He only saw the Applicant once as a result of a referral from her family physician Dr. Donaldson. The referral was to address issues related to depression and ongoing issues related to self-esteem.

b. Devine said the Applicant suffers from PTSD as a result of experiencing abuse from her former partner.

c. He prescribed medications and recommended the Applicant seek counselling through the social worker in his clinic.

54. DeGeer’s report included the following information relating to the Applicant’s psychologist Dr. Sonia Singh.

a. She saw the Applicant for 10 sessions between April and August 2015.

b. Singh’s work focussed on helping the Applicant return to work, by addressing issues related to anxiety and depression.

c. The Applicant struggled making progress because of stressors relating to the custody/access dispute and the Respondent.

55. DeGeer’s report included the following information relating to Kara Hart, a client support worker at the John Howard Society in Milton.

a. The Respondent sought counselling from the agency. Hart saw him after the Respondent’s counsellor left the agency.

b. The John Howard Society was given a copy of the reasons for judgment of Justice Chappel who made a temporary order requiring the Respondent to get counselling. But Hart said the Respondent identified himself as a victim in the process, which resulted in him taking very little responsibility for his actions.

c. In a self-administered questionnaire the Respondent identified himself as under-reactive. He denied anger issues.

d. The Respondent’s previous counsellor noted that he was reluctant to explore stress management techniques and was fixated on his ex-partner. He had difficulty focusing and identifying his own issues.

e. Hart said the Respondent was likely a “bottle and blower” meaning that he holds in his emotions until he can no longer do so and then he blows.

f. The Respondent missed his last session in September and had not followed up with the agency.

56. DeGeer’s report included the following information relating to Nancy Cook, a substance use counsellor at ADAPT in Milton.

a. The Respondent completed a four week program at ADAPT.

b. He never attended with any sign of alcohol consumption.

c. Assessing his progress is difficult because they are completely reliant on self-reporting.

d. He did not meet the criteria for the Partner Assault Program (PAR).

57. DeGeer’s report included the following information relating to the Respondent’s sister-in-law Leanne Lennox.

a. Lennox has been assisting with driving during the Respondent’s visits. She has been present during some exchanges.

b. Lennox told DeGeer about many negative behaviours by the Applicant during access exchanges: Late arrivals. Confrontations. Erratic driving. Unfounded accusations of pushing.

c. She said these negative interactions occur in front of Taylor. She said Taylor “shuts down” when her parents are together.

d. Lennox admitted to DeGeer that she herself has also spoken harshly to the Applicant during these unpleasant exchanges

e. Lennox said she doesn’t believe the Respondent has a drinking problem. She described him as a “guy’s guy” who likes a drink after playing hockey.

f. Asked about the Respondent’s temper, DeGeer quoted Lennox saying he can be a “hothead.” He said she acknowledged an incident in which the Respondent had an angry outburst which was observed by DeGeer.

58. DeGeer was cross-examined about the outburst, by the Applicant:

a. DeGeer was at Lennox’ house to interview the Respondent.

b. He had a private discussion with the Respondent, but as their conversation was winding down, Lennox approached and had something she wanted to say.

c. The Respondent asked her to be quiet and not interfere.

59. Under cross-examination by the Respondent, DeGeer acknowledged he couldn’t find the reference to “hothead” in his notes.

60. The Respondent cross-examined DeGeer about why he didn’t attend Taylor’s school.

a. DeGeer explained that he spoke to the school principal, but he was unequivocally advised that he was not welcome to attend at the school.

b. There had apparently been some issue arising from the previous OCL investigation, and lawyers were now involved trying to resolve some dispute between agencies.

61. Under cross-examination by the Respondent, DeGeer acknowledged that even though he delayed issuing his report partly because he wanted to wait to check out the Respondent’s new residence, ultimately his report included no mention of the Respondent’s residence – even though he found it to be appropriate. He acknowledged this was an oversight.

62. DeGeer testified about his recommendation that the Applicant be granted sole custody. He explained:

a. The ongoing and intense conflict between the parents eliminates joint custody as an option.

b. Taylor has been residing with the Applicant since separation.

c. While some of the Applicant’s behaviours have been regrettable – notably her erratic behaviour at exchanges, and a handful of episodes of access denial – the Applicant has still been able to provide a loving, stable and emotionally secure environment for Taylor.

d. In contrast, some of the Respondent’s behaviours have caused Taylor stress and anxiety.

e. DeGeer believes it is in the best interests of the child to remain in the care of the Applicant.

f. Both parents need to address certain issues. But the Respondent needs to do more to deal with emotional regulation and awareness of the child’s emotional needs and comfort level.

g. Taylor would also benefit from spending meaningful time with the Respondent, provided that he is actively attending and participating in counselling designed to address his issues related to anger; and group-based counselling designed to provide him with the opportunity to understand the implications of his behaviour on his relationship with Taylor.

h. DeGeer suggested that even after the Respondent’s counselling is completed, Taylor may benefit from reconciliation counselling.

i. He cautioned that until the Respondent has demonstrated completion of additional counselling, his time with Taylor should be structured in an effort to maintain her safety; provide an opportunity to reduce potential for her to be exposed to adult conflict; and maintain a relationship with her father.

63. DeGeer was a strong and helpful witness.

a. His report was thorough and balanced.

b. His recommendations were child-focussed and logical.

c. Under prolonged cross-examination by both parents, he answered questions in a fair and responsive manner.

d. None of his evidence was undermined or contradicted, despite persistent questioning by both parents.

WITNESS #2 PATRICIA JOHNSTON

Witness #2: Patricia Johnston

64. Patricia Johnston was called as a witness by the Respondent. Johnston was the first social worker assigned by the OCL to conduct a s.112 investigation.

a. Johnston issued a 26 page section 112 report dated March 11, 2015.

b. The Applicant filed a complaint, and also a formal Dispute with respect to the report.

c. About a month later, the OCL issued a letter dated April 22, 2015 which included an itemized acknowledgement that the clinical investigator had made numerous errors.

d. The OCL letter concluded with: “We have determined that there are sufficient errors in the report that may impact the recommendations made, and we would like the opportunity to reassign the section 112 to another clinician.”

e. As a result the OCL withdrew Johnston’s report, and assigned DeGeer to start all over again.

f. After DeGeer issued his January 14, 2016 report, the Respondent filed a Dispute. But the OCL rejected the Respondent’s criticisms and stuck by DeGeer’s recommendations.

65. Johnston’s testimony raised concerns on a number of levels.

a. She said this was the last of four section 112 reports she had prepared for the OCL. The first three proceeded without complication. But she said from the outset she had multiple problems with her supervisor concerning this file.

b. She perceived that the Applicant mother was regularly complaining about her, and that as a result Johnston’s supervisor was micro-managing and second-guessing her work.

c. Johnston said even though she was consistently of the view that joint custody would be best for Taylor, her supervisor kept pressuring her to recommend sole custody in favour of the mother.

d. The supervisor accused her of being biased in favour of the father.

e. The supervisor told her that because of the domestic violence in this case, the result had to be sole custody. Several times during her testimony Johnston quoted her supervisor as saying the OCL was getting “blowback” from the courts concerning the OCL’s handling of domestic violence cases.

f. She said in some instances her supervisor directed her to change recommendations. For example, at a disclosure meeting with the parents she had intended to recommend that the child withdraw from a LEAF counselling program for children who have been exposed to domestic violence. But at her supervisor’s insistence, Johnston deleted this recommendation.

g. Similarly, with respect to her final report, even though she alone signed it, she reluctantly testified that she didn’t author all of its contents. She said the “Discussion” section (leading up to “Recommendations”) was written by her supervisor, to replace the “Discussion” section written by Johnston.

h. She testified that ultimately she was able to convince her supervisor to stick with a “joint custody” recommendation.

i. But she said her supervisor didn’t back her up. As soon as the Applicant filed a Dispute, the OCL “admitted to seven errors, even though they weren’t errors.”

j. She felt the OCL threw her under the bus. After she resigned, they refused three requests for an exit interview.

k. Johnston said in her many years as a social worker – including 13 years previously with the Brantford Children’s Aid Society – she has never had anyone make a complaint like this.

66. As a result of her work on this file, Johnston was subject of a formal complaint to the College which regulates social workers.

a. She testified the College investigation took 13 months.

b. Upon completion there were no sanctions or disciplinary action against her.

c. She is still employed as a social worker, but not currently involved with children or custody reports.

67. Johnston was not a particularly strong witness. During lengthy questioning by each of the parents, her evidence wavered. At times she was vague and evasive. Perhaps most notably, she appeared quite resistant to acknowledging mistakes or inconsistencies in her evidence.

a. She agreed with the Respondent that it was inappropriate that he was only allowed two visits during approximately a six month period. She was resistant to evidence from the Applicant that the Respondent had in fact been allowed (or offered) more access.

b. She appeared to accept the Respondent’s allegation that the Applicant was not facilitating telephone access, despite evidence that the Applicant sought help from staff at a women’s shelter, to try to deal with Taylor’s reluctance to speak to her father.

c. She said it was important for Taylor to have frequent and meaningful contact with both parents, and that any safety risks could be controlled.

d. She concluded that while both parents used alcohol, neither of them had a problem with alcohol. She appeared to be unaware that the Applicant had complained to her doctor about the Respondent’s drinking as far back as 2011. She accepted the Respondent’s explanation that even during periods when he might have been intoxicated, Taylor always had a sober caregiver. But under cross-examination by the Applicant she admitted that she didn’t actually ask who that sober caregiver might have been.

e. She said during observation visits, Taylor appeared equally comfortable, engaged, spontaneous and loving with each parent. “She was the same child no matter which parent she was with.”

f. She said Taylor didn’t express any concerns about either parent during two private interviews at school.

g. School staff described Taylor as a well-adjusted, happy child. The school had no concerns about either parent.

h. She saw no sign of either parent coaching or trying to influence Taylor.

i. She described the Respondent as very child-focussed, and sensitive to the impact of the assessment process on the child.

j. She checked with CAS who advised her that allegations of emotional harm, domestic violence, and alcohol abuse were not verified – so CAS closed its file in July 2014.

k. Johnston said she spoke to the Applicant’s family doctor who contradicted the Applicant’s claim that she had been diagnosed with PTSD. But under cross-examination by the Applicant, she said she wasn’t sure if family doctors were capable of diagnosing PTSD. She appeared unaware that it was the Applicant’s psychiatrist who made the PTSD diagnosis.

l. She initially testified she never heard the Respondent say anything negative about the Applicant. But under cross-examination by the Applicant, she admitted the Respondent had referred to her as the “Energizer of Bitches”.

m. She said she was told by the Respondent that his family physician was Dr. Watada, and she noted in her report the Respondent hadn’t seen Watada since 2004. Johnston appeared unaware that the Respondent’s current physician is Dr. Hunter.

n. She testified that both parents needed to have “custody” because “access” wouldn’t allow either parent sufficient involvement in Taylor’s life. She said “aunts and uncles have access” but parents should have custody.

o. She admitted she only reviewed a handful of court documents, and didn’t familiarize herself with all of the detailed materials filed in these proceedings.

p. Johnston insisted the Applicant had never reported concerns about the Respondent leaving Taylor alone at home at night. The Applicant said she reported this concern several times, and the same allegation was set out in court documents Johnston never read.

q. The Applicant cross-examined Johnston about the June 2014 incident which led to separation. The Applicant pointed out inconsistencies in the Respondent’s version of events, as set out in a police report, a CAS report, and the Respondent’s affidavit. Even though there were clear differences in the narrative, Johnston said she didn’t perceive any inconsistencies.

r. Throughout her report and testimony Johnston characterized Taylor’s relationship with the Respondent in overwhelmingly favourable terms. During cross-examination she was unable to explain why she failed to address (or even mention) in her report that Taylor had become upset during the June 2014 incident, came out of a room and slapped the Respondent from behind, to get him to stop being aggressive toward the Applicant.

s. Johnston concluded the Applicant received no significant injuries in the June 2014 incident. When asked by the Applicant: “Do you remember me showing you a picture of my bloody lip?” Johnston said she was never shown such a picture. The Applicant then questioned Johnston about her February 4, 2015 case note in which Johnston wrote: “Picture of bleeding lip. Showed me a picture. Friend told her to.” Johnston recalled writing the words. But she insisted the Applicant had not actually shown her a picture.

t. Johnston said she couldn’t recall the Applicant ever complaining that the Respondent has destroyed all of her belongings. She did not challenge the Applicant’s recollection that when she came to the Applicant’s apartment for an interview, they had to sit on lawn chairs. But Johnston denied the Applicant had ever explained that they were sitting on lawn chairs because the Respondent had destroyed her furniture.

u. Under cross-examination by the Applicant Johnston acknowledged the Respondent had a criminal record for impaired driving and he had been jailed for assault. Johnston said the charges were old and the Respondent explained the context. But Johnston appeared unable to elaborate about what explanation she received from the Respondent.

68. It comes as no surprise that Johnston’s supervisors at the OCL were so quick to question her work and ultimately disavow the clinical investigator’s recommendations.

a. Her investigation was superficial and incomplete.

b. She failed to follow up on important sources of information.

c. She gave inadequate consideration to important information which she received.

d. She seemed confused – or selective – in summarizing the facts.

e. She glossed over serious issues of domestic violence and substance abuse.

f. Her analysis may have been portrayed as “child-focussed” but it was not “Taylor focussed”. Johnston testified with conviction about what children need generally. But she showed little insight with respect to Taylor’s particular experiences and needs.

g. Her recommendation of joint custody and equal time sharing appeared to be based almost entirely on her own philosophical views. She appears to have ignored the extreme level of conflict between these parents; the total inability to communicate or make decisions together; and the child’s heightened level of anxiety based upon her personal experiences.

69. For all of these reasons I find Johnston’s report and testimony to be of little assistance in determining the best interests of Taylor.

70. But her candid description of her dealings with the OCL – if accurate – raises broader issues.

a. There’s nothing wrong with an OCL investigator reviewing a case with a supervisor. Many decision makers – including judges – sometimes discuss tough fact situations with colleagues, as they struggle to reach their own conclusions.

b. But there’s a world of difference between exchanging ideas, and delegating (or usurping) decision making authority.

c. Johnston’s OCL supervisor had every right to review her work. It may even have been appropriate to make suggestions, or identify areas requiring further consideration.

d. But a supervisor instructing or pressuring a clinical investigator to adopt or exclude certain recommendations -- let alone, a supervisor writing portions of a report -- raises fundamental issues about methodology, transparency and the integrity of the process.

71. Section 112 of the Courts of Justice Act sets out very specific requirements in relation to these often influential reports:

(1) In a proceeding under the Divorce Act (Canada) or the Children's Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children's Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child's sup-port and education.

(2) The Children's Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person.

(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person's knowledge and setting out the source of the person's information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding.

(4) Where a party to the proceeding disputes the facts set out in the report, the Children's Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness.

72. In Children’s Aid Society of London & Middlesex v. C.B.D., 2013 ONSC 2858 an assessment was rejected because even though a single assessor had been appointed, the ultimate report was co-authored using a team approach. Justice Harper noted the following concerns about parenting reports with multiple authors:

a. In any assessment of parenting skills or a child’s best interests, a specific assessor – usually an individual – is tasked with the responsibility and authority to conduct an investigation and prepare a report.

b. The person who signs the report should be careful to ensure that they are responsible for all of its contents. That’s what the reader is entitled to assume.

c. Where other persons – such as assistants -- are involved in the process, their role and the extent of their participation in the formulation of conclusions and recommendations should be clearly identified in the report. This is particularly important where the people conducting the investigation have differing levels of expertise or authority.

d. Where conclusions and recommendations are generated by multiple authors, that collaborative process hampers scrutiny and testing at trial. Where a recommendation comes from a team, it makes it difficult for counsel to evaluate how the opinion was generated; how it evolved; how it was expressed; the impact of the discussions that took place among team members; and why it ended up to be in the report in the manner that it was.

73. And that’s when the “team” gets along. Imagine how much harder it is to scrutinize the merits of a report where – as here – the author says she was constantly fighting with her boss.

74. Clearly, if s.112 reports are going to presumptively form part of the evidence at custody/access trials, a parent’s opportunity to scrutinize methodology and the decision making process is crucially important. These reports cannot be properly weighed or tested if unknown supervisors influenced the narrative or recommendations.

75. As a result of the Johnston’s evidence about an OCL supervisor interfering with the first s.112 report, both parties requested that Ian DeGeer be re-called to answer whether the second s.112 report was also subject to any inappropriate influence.

76. DeGeer testified again briefly on the fifth day of trial. He stated:

a. His involvement on this file was very unusual. He had never previously known of the OCL withdrawing a first report and arranging a second investigation.

b. He had never been told anything about the first report. He didn’t read it. He didn’t know the recommendations. He didn’t know the author. He didn’t know why a second report was being requested. His supervisor wasn’t the same person who supervised the first clinical investigator.

c. He started with an absolutely clean slate.

d. DeGeer provided very clear reassurance that he alone was responsible for all of the contents and recommendations set out in his report. He wrote every word. He formulated every recommendation. No one influenced – and certainly no one interfered with – his work and professional judgment.

e. He explained that on this file as on all s.112 investigations, he worked in consultation with a clinical supervisor. He said he explained to his supervisor the work he had done and the recommendations he made. But his supervisor made no effort to change or influence any of his report and recommendations.

f. I accept DeGeer’s reassurance as to the independence and integrity of his investigation.

77. The Office of the Children’s Lawyer has a well-deserved reputation for excellence. Judges rely on and appreciate the effort that goes into safeguarding our most precious subject matter: Children.

78. To maintain that standard of excellence – and public confidence -- the OCL would be well advised to provide reassurance in two very distinct ways:

a. Ensure that administrative supervision of clinical investigators does not cross the line into editorial control or behind the scenes manipulation of reports.

b. Demonstrate the courage to intervene – and reassign a file if necessary -- as soon as investigative deficiencies become apparent. Bad investigations cannot and should not be “re-written” by anonymous supervisors. And dubious reports shouldn’t be released in the hope that maybe no one will file a Dispute.

79. In this case the OCL should have pulled the plug on the first s.112 investigation as soon as it realized there were major problems.

a. By allowing time to be wasted while a faulty investigation was completed – and then starting over again – the litigation became protracted and the resolution of Taylor’s situation was needlessly delayed.

b. And distributing a report with obviously assailable recommendations in a high conflict file virtually doomed any possibility of avoiding trial. The father heard exactly what he wanted to hear in the first report – even though the first report made no sense. By then issuing a second and completely contradictory report, the OCL emboldened both parties to perceive they would have expert evidence supporting their position at trial.

c. In Deacon v. Haggith, 2016 ONSC 6360 (SCJ), Aston J. recently dealt with the problems which arise when a weak s.112 report gives a parent false hope to proceed to trial.

WITNESS #3 THE APPLICANT MOTHER

Witness #3: The Applicant Mother

80. The Applicant testified and was cross-examined by the Respondent.

81. She repeated and confirmed much of the narrative set out in Justice Chappel’s reasons for judgment and in DeGeer’s s.112 report. She accepted DeGeer’s recommendations.

82. The Applicant was quite critical of Johnston’s investigation and report. She testified that from her very first meeting with the original clinical investigator she knew something was wrong, and that Johnston was already predisposed to side with the father’s position. She noted, for example, that Johnston’s report said nothing about several occasions when the Respondent attended Taylor’s school shouting and creating a disturbance.

83. She repeated and expanded upon much of the evidence already heard in relation to the Respondent’s use of alcohol.

a. She said the Respondent’s alcohol problem has been long-standing and he refuses to acknowledge or deal with it.

b. She has repeatedly tried to get professional help for the Respondent but he has refused.

c. She said the Respondent has not fully complied with Justice Chappel’s May 29, 2016 order which required that he enroll in a treatment program to deal with his alcoholism.

d. She noted that Justice McLaren’s March 21, 2016 order included a similar requirement: “The Respondent shall continue to attend for periodic drug and alcohol testing and he shall continue to participate with ADAPT services for ongoing counselling.” She said since March 21, 2016 the Respondent has done nothing to comply with any of those requirements.

e. The Applicant cited other examples of alcohol related problems. She said one time the Respondent fell asleep after drinking, with a pizza cooking in the oven. The pizza caught fire. The Respondent was ultimately awakened by the smoke detector.

f. She seeks continuation of an order that the Respondent abstain from the consumption of alcohol during or 24 hours prior to visits.

g. She also opposes any overnight access until the Respondent admits to his alcohol problem and gets real help. She said much of the Respondent’s drinking – and many of Taylor’s negative experiences – have occurred at night.

h. She said the Respondent relies on self-reporting. He tells professionals he doesn’t have a drinking problem. When they report back what he told them, he tries to use that as “proof” that he doesn’t have a problem.

84. The Applicant gave additional evidence about the Respondent’s aggressive behaviour:

a. She described the Respondent as persistent and relentless in trying to get his way.

b. “He keeps pushing until he gets what he wants. Until the other person can’t take it anymore and gives up.”

c. She said throughout the relationship she acquiesced to his bullying. She decided to separate when she could no longer stand it, and when she saw that Taylor was being drawn into the conflict and negatively affected.

d. She seeks a restraining order because she continues to be afraid of the Respondent.

e. But she also believes the Respondent needs to address his problems with anger and aggression so that Taylor will not be subject to bullying during access.

f. She noted that Taylor has already expressed resistance to telephone access because the Respondent keeps badgering her to talk about things the child doesn’t want to discuss.

85. The Applicant testified the Respondent continued to behave in a spiteful and uncooperative manner even after separation.

a. He destroyed all of her belongings by placing them in a plastic bag in the wet and mouldy basement of a 100 year old house.

b. He changed the locks of their home to keep her out. He originally swore in an affidavit that he did this because the Applicant had been removing contents. He later changed his version and retracted this allegation.

c. He remained in possession of their jointly owned home, tying up her equity that she needed. He insisted he wanted to buy her out based on a fair market value of $300,000.00. She had to get a court order to force him to list the property for sale. She had to get another court order to get him to accept an offer which came in at $360,000.00.

d. He refused to sign documents for Taylor to obtain a passport, so she could go on a vacation with the Applicant.

86. The Applicant described the Respondent as very manipulative:

a. She said he exploits the fact that her nerves are shot because of his mistreatment of her. He portrays her as crazy to the rest of the world.

b. She said he was able to convince a female police officer who attended at the home on June 20, 2014 that the Applicant was the aggressor – even though the Applicant had a facial injury, and the child had to intervene to try to stop the Respondent from being aggressive.

c. She said he was able to win over the first OCL investigator and convince her that he was a victim.

d. She said he was similarly able to win over Taylor’s school principal Susan Neville. The Applicant ended up complaining about Neville’s bias to the principal’s regulatory body.

e. The Applicant said the Respondent continues to manipulate Taylor, by trying to convince her that she didn’t actually see his negative behaviours, even though the child clearly remembers them. For example, he has never apologized to Taylor for the incident on June 20, 2014 when the child witnessed the Respondent attacking the Applicant. Instead, the Respondent has consistently told Taylor that she remembers events incorrectly. The Applicant expressed fear about the long term emotional consequences for the child.

f. Under cross-examination she was asked to acknowledge that the Respondent hasn’t been charged with any criminal offences since about 1992. She answered, “You’re very good at talking yourself out of things, so probably not.”

87. The Applicant testified she has no doubt the Respondent loves Taylor. But she has serious concerns that he does not protect her.

a. She testified she was worried the Respondent took Taylor for rides on their ATV without giving her a helmet.

b. She said Taylor actually asked him for a helmet. The child reminded him of the big red sticker on the ATV which said “HELMET TO BE WORN”.

c. The Respondent told the Applicant he only allowed Taylor to ride on the ATV without a helmet on one occasion. He tried to reassure the Applicant that he drove slowly.

d. But Taylor reported that he took her on the ATV without a helmet more than once, and the child said she was afraid.

e. The Applicant likened this to anxiety the child experienced because the Respondent pressured Taylor to participate in Go-Kart racing, even though the child was afraid after witnessing another child severely injured.

88. The Applicant denied the Respondent’s allegation that she has interfered with access or attempted to alienate their daughter from the father.

a. The Applicant testified that while she and Taylor were at the shelter soon after separation, she initiated telephone access for the Respondent but he made the calls unbearable for Taylor. His speech was slurred. Taylor ultimately refused to speak to him. The Applicant said she sought out help from shelter staff to encourage Taylor’s telephone access to the Respondent, but nothing worked.

b. She testified that during the first few months of the 2014-2015 school year she allowed Taylor to stay after school 20 minutes each day so the Respondent could visit with the child while the Applicant waited in the car. But she said Taylor was often upset by the Respondent’s behaviour, especially since he acted up in front of people at school.

c. She said at the beginning of the 2015-2016 school year Taylor asked if she had to visit the Respondent after school and the Applicant explained that she didn’t have to if she didn’t want to. On the very first day of school in September 2015 the Respondent approached Taylor at the end of the school day. The child ran from him, and the Respondent ended up calling her names. After that the Respondent never came back to see her at school.

d. The Applicant admitted at one point she withheld visits for the child’s safety. She said during a telephone call with Taylor the Respondent was slurring his words. He was argumentative and became belligerent. The child handed the phone to the Applicant and the Respondent then started shouting at her. She testified that for a period thereafter she would drive Taylor to the access exchange location but the child wouldn’t get out of the car. The Applicant said she didn’t have the heart to force the child to go for access if she refused.

e. The Applicant said Taylor asked her to remain on the school playground in the morning until the bell rang, because the child was worried the Respondent would come to the school to get her.

f. She said the Respondent would record his telephone calls with Taylor, and then play them back to the child while he pumped her for information. She said the Respondent was so persistent that a couple of times Taylor left the phone and hid under a bed to escape the questioning.

g. The Applicant said she will continue to promote access. But she hopes the Respondent will change his behaviour so Taylor won’t be so worried and resistant to access.

h. She said the Respondent keeps promising to be more sensitive to Taylor’s reactions and apprehensions, but he still lacks insight and refuses to take responsibility for past problems he created.

89. The Applicant disputed the Respondent’s suggestion that she has failed to share information with him, or that she has failed to list him as a contact person with schools and daycare providers.

a. She said she always gave school and daycare providers full information about the Respondent.

b. She said the only exception was that she didn’t give her current in-home daycare provider any contact information. She said she felt it was inappropriate for her current sitter to have any direct contact with the Respondent. As a result of the Respondent’s past behaviour, she expressed concern about problems the Respondent might create for her babysitter. She said the sitter would always be able to reach the Applicant at work in the event of an emergency, so there would be no need to contact the Respondent.

c. The Applicant denied the Respondent’s suggestion that she had listed her own telephone number on the child’s journal, but not the Respondent’s. She produced a copy of the front page of the journal and explained that it was Taylor who decided to write her telephone number on the cover. The Applicant had nothing to do with it.

90. The Respondent cross-examined the Applicant about affidavit materials she filed at an earlier motion in which she was successful in requesting that she be allowed to transfer Taylor from Balaclava School to a school in her catchment area.

a. The Applicant acknowledged that she advised the court that one of the reasons she wanted to change schools was that there was no after school daycare program at Balaclava.

b. She acknowledged that Balaclava did indeed have a daycare program. But she said she couldn’t arrange a daycare spot because there was a waiting list.

c. She admitted it would have been more accurate to say Balaclava had a daycare program, but Taylor couldn’t get into the program.

d. The Applicant said when she returned to work and was desperate for daycare, she was able to beg the Balaclava program to allow Taylor into the daycare program, but only for the last week of June.

e. I agree with the Respondent that the Applicant did not provide entirely accurate information in the materials she filed on that temporary motion. However, I recall that the availability of daycare was only one of the issues raised, and the outcome of the motion wouldn’t have been different even if the Applicant had been more accurate in her description of the daycare situation.

91. The Respondent cross-examined the Applicant, alleging she has breached the existing order which requires that access exchanges take place at McDonald’s in Waterdown, on those days when exchanges cannot take place at school.

a. The Applicant explained that she has returned to work as a nurse. Her work hours are irregular. She couldn’t find institutional daycare on weekends when she has to work. As a result she found a daycare provider in her apartment building. She proposed that the Respondent pick up the child from her apartment building, which is 800 meters from the McDonalds.

b. She said the Respondent has twice refused to pick Taylor up at the apartment building, complaining it is not a formal daycare facility as contemplated in the order.

c. She said it made no sense for the Respondent to insist that her babysitter should walk Taylor to the McDonalds to facilitate the access exchange. It would be needlessly disruptive for the sitter and the child.

d. Nonetheless, the Respondent ended up calling the police to complain that the Applicant was not complying with the access order.

e. She noted that on other occasions, the Respondent has agreed to pick up Taylor at a location not specified in the order – such as daycare following summer camp.

f. She felt the Applicant was more interested in making her look bad, than in seeing his daughter.

92. Perhaps the most persistent – and troubling – issue described by both parties (and the Respondent’s sister-in-law Leanne Lennox) was the extreme and perpetual conflict and misadventure arising during access pick-ups and drop-offs. All of it occurring directly in front of the child.

93. In support of her contention that she was the victim rather than the aggressor during these confrontations, the Applicant played in court four video clips taken on her own cell phone and five video clips taken on either the Respondent’s or Lennox’s cell phone.

a. The quality of the videos was universally poor. Often jerky, like a roller-coaster ride at night.

b. To compound the chaos, car radios were blaring music in the background. At times, door chimes would continually remind us that someone left a key in the car ignition. It couldn’t have been more hectic and confusing.

c. In some scenes, one person would start videoing. So then another person would start videoing right back at them. As if watching two people point cell phones at one another is somehow going to help a judge decide who was being more foolish.

d. In virtually every video Taylor was exposed to palpable tension – and smugly provocative taunting -- between the adults.

e. If the intention of the videographer was to make the other person look bad, in reality all of the adults should have been ashamed of themselves for repeatedly and deliberately exposing Taylor to such nonsense.

94. The Applicant also presented nine audio recordings – recorded by the Respondent – of telephone access he had with Taylor.

a. The Applicant tried to interpret the calls as indicating that the Respondent was badgering Taylor and that sometimes his words were slurred.

b. The Respondent tried to interpret the calls as indicating the Applicant was interfering in the background.

c. I didn’t detect any of that.

d. I am unable to draw any favourable inference in relation to the Respondent’s participation in the calls, because only he knew he was recording the conversations. Since he went to the trouble of creating these recordings, I have to presume he was very careful about what he said and how he sounded.

e. From Taylor’s perspective, she sounded like a loving little girl. At times she was affectionate and sounded happy to be talking to her father. At times she sounded distracted and somewhat hurried to say goodbye. Really, she sounded like a normal little girl.

f. Parents shouldn’t surreptitiously audio record their children. It’s a breach of trust; an abuse of access; and a cheap manipulation of an innocent child. Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (OCJ); Hameed v. Hameed, 2006 ONCJ 274 (OCJ); Jackson v. Mayerle, 2016 ONSC 72 (SCJ).

95. The Applicant also presented six colour photographs taken by the Respondent, showing the relative position of vehicles stopped in a McDonald’s parking lot during an access exchange.

a. I was asked to infer that vehicles were parked in an aggressive or confrontational manner.

b. But actually, all I was able to conclude is that these people should never meet in parking lots – or anyplace else.

96. Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.

a. They should stop pretending they’re assisting the court by assembling important evidence.

b. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.

c. Access exchanges in high conflict files are already tough enough for children. Pointing a camera – or multiple cameras – at the interaction merely heightens the child’s unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.

d. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.

e. Talk about spoiling a happy moment. (Again, perhaps that’s the intention.)

97. How do we stop this epidemic of smartphone nonsense in Family Court?

a. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.

b. We need to make it clear to parents that taking videos is not likely to help you win your case. It’s more likely to backfire. To cause the judge to worry about your parental judgment.

c. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.

d. What message is the videographer conveying to the child? “Look how bad your father is!” “I’m going to record this so everyone will see what a horrible mother you have!” “Be careful, the parent you love can’t be trusted!”

e. Perhaps the more cynical and prophetical message: “Showtime!”

f. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?

g. When parents routinely pull out their cameras, ready to “click” at the slightest false move -- like gunslingers squaring off at the O.K. Corral – are they doing it out of love for a child? Or hate?

h. No matter what image they hope to record, it can’t be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.

98. Perhaps we can borrow from social media to coin a term which suitably describes judicial disdain for this type of behaviour:

a. We’ve all heard of the “SELFIE”: A self-portrait, usually intended to make the subject look good.

b. How about a “SELFISHIE”: A parent taking a disturbing video to try win in court, oblivious to the emotional trauma they are inflicting on their child.

99. For clarity, I will not be relying on the videos presented in this case. And my final order will include a prohibition against either parent taking videos of the other in the future.

100. The Applicant summarized her position on custody and access.

a. She seeks sole custody. She has always been the primary caregiver. Taylor has been doing well in here care since separation. She is best able to meet the child’s needs and provide stability and safety.

b. She acknowledged that soon after separation she exchanged e-mails with the Respondent in which she discussed joint custody and equal time sharing. She said she didn’t have legal advice at the time, and she was more hopeful the parties might be able to separate amicably.

c. She said there is currently no communication between the parties. They don’t trust or respect one another. They cannot co-parent.

d. She does not believe the Respondent has demonstrated good judgment in relation to the child.

e. She agrees he should have regular access, but there should be restrictions until he deals with alcohol and anger issues.

f. She is prepared to share information and keep the Respondent involved in Taylor’s life.

101. Both of the parties presented as difficult personalities and difficult witnesses. It didn’t help that while they both started out with lawyers, by the time they reached trial they were representing themselves.

a. The Applicant was very teary and emotional both on and off the witness stand.

b. She was high strung, nervous, and easily flustered.

c. Her evidence in chief was disorganized. But her narrative was consistent and believable.

d. Under restrained cross-examination by the Respondent, the Applicant was nonetheless extremely subdued and nervous. She bowed her head and refused to look at him while he asked questions. She appeared genuinely afraid to be near him or talking to him.

e. The Applicant’s evidence at this trial was consistent with the evidence she gave to Justice Chappel in May 2015.

f. There were a few areas where her credibility and perspective raised some doubt. For example, she previously swore in an affidavit that there was no daycare at Balaclava School, whereas she admitted at trial that Balaclava does have a daycare program – but it was full.

g. Her concern about the Respondent’s alcohol abuse and aggression seemed sincere and well-founded. But she gave the distinct impression that there is nothing he could possibly do to satisfy her that Taylor will be safe in his care.

h. Similarly, she seemed quick to complain that others weren’t doing their jobs properly. But in light of her experience with the first OCL investigator, her skepticism is perhaps understandable.

i. I found the Applicant to be believable and for the most part child-focussed.

j. But her equal contribution to the animosity between these parties remains a concern.

WITNESS #4 THE RESPONDENT FATHER

Witness #4: The Respondent Father

102. The Respondent testified and was cross-examined by the Applicant.

103. Much of his testimony dealt with allegations of historical and ongoing conflict between himself and the Applicant.

a. He denied any history of inappropriate behaviour toward the Applicant.

b. He denied having any problem with anger or aggressive behaviour.

c. He denied having a problem with alcohol or drugs.

104. When he was reminded that in May 2015 Justice Chappel made numerous factual findings – including that he was violent, abusive, and had alcohol issues – the Respondent backed off somewhat.

a. But he still denied allegations of aggressive behaviour since the date of separation.

b. He insisted the Applicant is the one promoting conflict.

c. He said she has threatened to harm him.

d. She sent him an e-mail stating she intends to prove he’s a psychopath.

e. She has threatened to make allegations to Canada Revenue Agency, to get him in trouble financially.

f. She made unwarranted complaints to bylaw officials about him running a business from his home.

g. He feels she has been trying to create major financial problems for him, to undermine his ability to afford legal fees to pursue his rights as a parent.

h. He believes she is doing everything possible to alienate him from his daughter and ruin his life.

105. The Respondent said he believes the Applicant has behaved in a very deceptive and calculating manner.

a. He said she left their home with the child under the false pretense of going to a cottage for a few days.

b. He said she specifically agreed that she and the child would be returning home, but then she changed her mind for no reason.

c. He said after failing to return home she e-mailed him advising she would agree to joint custody and equal time-sharing because Taylor needed both parents. But he said her actions did not match her words.

d. He said she went to a women’s shelter because that would promote her false narrative of being an abused spouse. She did this for strategic reasons.

e. He said she made false allegations in court to obtain favourable court orders – and then proceeded to ignore those court orders whenever it suited her.

f. He complained the status quo had been orchestrated through deception, and it should be undone.

106. The Respondent testified at length about the Applicant’s efforts to alienate him from Taylor.

a. He said at the outset the Applicant spoke of promoting a father-daughter relationship. But she denied him access for extended periods of time. At first, she wouldn’t even tell him where Taylor was.

b. When she finally allowed access, she insisted it had to be supervised, even though there was no reason he had to be watched. The Applicant was just being spiteful and controlling.

c. He said she made false allegations in court to obtain severe and unnecessary restrictions on his access. He couldn’t drive with the child. He couldn’t drink. He couldn’t have overnights. He insisted there has never been any need for such restrictions, and they shouldn’t continue in the future.

d. He said even with such a restricted access regime, at times the Applicant still denied what little access he was allowed.

107. The Respondent testified about ongoing problems during access exchanges.

a. He said sometimes the Applicant wouldn’t deliver the child. Usually she arrives late. Sometimes she wouldn’t let Taylor out of the car.

b. He said even though the Applicant pretends she is afraid of him, during access exchanges she is verbally abusive and confrontational. Sometimes she approaches in a menacing manner. That’s why he started videoing exchanges on his cell phone. He was equally anxious for me to watch those videos. He was convinced they made the Applicant look bad.

c. He said for a while he wasn’t allowed to drive with Taylor in the car, so his brother’s partner Leanne Lennox provided the transportation. He said the Applicant was equally abusive to Lennox. That’s why Lennox also started videoing the exchanges.

d. He said the Applicant has behaved in bizarre and dangerous ways during exchanges, driving her car recklessly and pulling Taylor from Lennox’ car.

e. He admitted there were a couple of occasions when he refused to pick Taylor up at the Applicant’s residence. The Applicant had informed him she would be at work, and Taylor was with a sitter. But he said the order specified access exchanges were to take place at McDonalds. He worried that if he went to the Applicant’s residence, he would face more false allegations. So he missed visits and instead called the police to complain about the violation of the access order.

108. The Respondent testified the Applicant has also interfered with his telephone access.

a. He said sometimes she denies telephone access.

b. During his phone calls with his daughter he can hear the Applicant in the background telling her what to say or distracting her.

c. He said sometimes Taylor gets so distracted by the Applicant she hangs up.

d. He said if he calls (because he didn’t get telephone access or the call was cut short) the Applicant won’t pick up the phone. If he leaves messages she won’t return his calls.

e. He said he taped some calls simply to refute repeated accusations that he was drunk or slurring his words. He denied playing the audio recordings back to the child or badgering the child with inappropriate questions.

109. The Respondent expressed sadness that the Applicant had not only turned against him, but also against his family members who had done so much for the Applicant and Taylor.

110. The Respondent testified that in retrospect he and the Applicant should have put more thought into trying to make their relationship breakdown easier for Taylor.

a. He admitted they have had fights and arguments.

b. He expressed regret that some of their conflict has occurred in front of Taylor.

c. But he said his poor judgment was no worse than the Applicant’s poor judgment. They both should have worked harder to shield Taylor from the conflict. He feels it is unfair for all of the blame to be laid on him, and to suggest that he is 100% responsible for the problems.

d. He said he would like to “re-establish normalcy” so that they can simply get on with their lives.

111. The Respondent testified he has always promoted Taylor having a positive relationship with the Applicant.

a. He has encouraged Taylor to remember the Applicant’s special occasions.

b. He has helped the child arrange gifts for the Applicant.

c. He said he has only spoken positively to the child about her mother. He has never said anything bad about the Applicant or her family.

112. The Respondent testified passionately about his relationship with Taylor, stating:

d. Since she was born he’s never felt any greater fulfillment.

e. He’s always been involved in every aspect of her life.

f. He disputed the Applicant’s suggestion that she was Taylor’s primary caregiver, or that she was more familiar with the child’s needs.

g. He listed numerous aspects of Taylor’s life he has been involved with; that he has shared with her.

h. He denied the Applicant’s allegation that Taylor is ever afraid of him.

i. He said there’s nothing that brings him more joy than Taylor.

j. He said “The days that I am actually with her are the days that I feel I have no worries in the world.”

113. Understandably, the Respondent felt Patricia Johnston conducted a competent OCL investigation and he agreed with her recommendations. Although his first choice was sole custody in his favour, he was prepared to accept Johnston’s recommendation of joint custody and equal time-sharing.

114. The Respondent was critical of DeGeer’s s.112 report, which the OCL ultimately presented.

a. He said DeGeer was too quick to accept allegations that he was violent.

b. The Respondent said DeGeer recommended sole custody to the Applicant because of the high level of conflict--- without realizing that it was the Applicant who was creating the conflict.

c. He noted at one point DeGeer said he had to delay his report to await the Respondent moving into his new residence. But even after DeGeer saw the new residence, his report made no mention of the significant work the Respondent had done to ensure he could provide a safe environment for Taylor. DeGeer testified this was an oversight.

d. He said DeGeer also claimed his report would be delayed because he was waiting for a letter from the Respondent’s physician Dr. Hunter, even though Dr. Hunter had already sent him a letter.

e. The Respondent said DeGeer didn’t give him credit for arranging a home in Taylor’s school catchment area.

f. DeGeer quoted Lennox as calling the Respondent a hothead but Lennox denied this and DeGeer couldn’t find it in his case notes.

g. The Respondent said DeGeer wrote about things that didn’t happen, and the things DeGeer wrote didn’t logically relate to his recommendations.

115. The Respondent testified the Applicant made unfounded complaints about Johnston because she has a long-standing pattern of complaining about people whenever she doesn’t get her own way.

a. He said the Applicant also made unwarranted complaints against the police, CAS workers, and a school principal – all because they didn’t say what she wanted to hear.

b. He said the Applicant’s unfounded allegations created needless disruption for Taylor because the child had to go through two OCL investigations and two CAS investigations.

116. The Respondent said the Applicant keeps strategically complaining that he’s got problems with alcohol and anger, even though he feels he’s proven that no such problems exist.

a. The Respondent testified he was ineligible to participate in the PAR program (counselling for domestic violence) because he had not been charged or convicted in relation to domestic assault.

b. He testified he has filed toxicology reports – he called it “scientific evidence” – to establish that he doesn’t have a problem with alcohol.

c. He also filed a letter from his family physician Dr. Hunter, suggesting there was no sign of an alcohol problem. The Respondent admitted he hadn’t seen Dr. Hunter very often, and the physician’s comments were based entirely on the Respondent’s self-reporting.

d. He testified he completed a four week program at ADAPT. He filed a letter dated September 2, 2015.

117. Under cross-examination the Respondent acknowledged he has not continued with the programs despite Justice McLaren’s order of March 21, 2016 which specifically required that he continue drug & alcohol testing and also ADAPT counselling.

a. Asked why he didn’t follow Justice McLaren’s order, the Respondent stated: “I really have no explanation. It may have been poor judgment on my part.”

b. He said he thought he’d already provided sufficient proof that he doesn’t have any problems.

c. He said he’d been very busy with this litigation and trying to keep his business going.

d. He said he went in to speak to counsellors a couple of times, and thought he might have a letter explaining why he discontinued programs. But he didn’t produce such a letter.

e. He said there was never any allegation that he had drug problems.

f. And he didn’t participate in any more alcohol programs “because I finalized them”.

g. Nonetheless, he admitted that it was poor judgment to simply ignore court orders in relation to counselling and alcohol monitoring. He said he would obey any future court orders which included such requirements.

118. Under cross-examination the Respondent stated:

a. He would do anything for Taylor.

b. He would discontinue the use of alcohol completely if it was required.

c. He would not, however, agree to random alcohol tests.

d. He doesn’t believe he requires ongoing counselling or substance abuse treatment.

119. The Respondent testified that with all her accusations against him, the Applicant has deflected attention away from her mental health, which he feels has been the real source of the family’s problems.

a. He said the Applicant has been battling depression for years.

b. He’s tried to be understanding.

c. He said many times during their relationship the Applicant’s mental health problems created so much conflict that he had to sleep on a couch, or he would go to the garage just to get away from the Applicant.

d. He said at times he would simply walk away from arguments. He tried to busy himself with other things, and not dwell on the unhappiness and stress caused by the Applicant’s mental health issues.

e. He said he’s still concerned about the Applicant’s mental health – and its impact on Taylor – based on the Applicant’s erratic and malicious behaviour since separation.

120. The Respondent testified that just like the Applicant, he also seeks a restraining order against her.

a. He said he’s afraid of the Applicant, based on her confrontational behaviour during access exchanges, and also because he has seen her drive by his house.

b. Under cross-examination the Respondent acknowledged that he lived on one of only two main roads in the village of Carlisle, and that the Applicant had many legitimate reasons to drive along that road, including taking Taylor to school and attending professional appointments.

121. The Respondent was cross-examined about residential arrangements after the Applicant moved out of their home with Taylor.

a. He testified he was very concerned that he didn’t know where the Applicant had taken Taylor. It wasn’t sufficient that he was told that she was “safe”.

a. When he found out the Applicant and Taylor were in a shelter, he disapproved. He didn’t think that was an appropriate environment for his daughter.

b. Nonetheless, he testified that he wasn’t prepared to move out of the home, to allow the Applicant and Taylor to move back in. He said he was concerned that if the Applicant took possession of the premises, she wouldn’t look after the house or pay expenses.

122. The Respondent testified about the sale of their home:

a. He admitted that he proposed to buy out the Applicant’s interest based on a value of $300,000.00. He said the figure came from both an appraiser and his real estate agent.

b. He admitted the Applicant had to get a court order for the sale of the property, and even then he didn’t agree to list it immediately.

c. He admitted that even after he listed the property, he refused to sign acceptance of an offer which came in at $360,000.00. He acknowledged that offer came in at full asking price less than 48 hours after the property was finally listed.

d. He admitted the Applicant had to return to court a several times to get the property sold. But he said all along he understood he had the option of making his own offers to buy her out. He said he was acting in good faith. He was heartbroken to lose that home because he hoped to keep it for Taylor’s future.

e. He admitted that even when he proposed to match the $360,000.00 offer which came in, he still hadn’t arranged financing, even though he’d had six months to do so. He said he’d made some inquiries and that tentatively the financing arrangements were in place.

f. He agreed that in retrospect the Applicant was correct to reject his $300,000.00 valuation. But he still felt it was unfair that she wouldn’t let him match the eventual offer that came in.

g. He testified that despite his representations that his income was limited, he still felt he would have no problem qualifying for a mortgage because he could arrange a family member to sign as a guarantor.

123. The Respondent testified about his current residence.

a. He said after moving from their home he went to live with his family for a while.

b. The then found his current accommodation which he selected so Taylor would be near her school and friends. His brother bought the home for him. He pays rent.

c. He said Taylor is very comfortable in his home, where she has set up her own playroom and decorated her bedroom.

124. The Respondent testified he shares important information about Taylor, such as explaining if he has given any medication to their daughter if she wasn’t feeling well during a visit. But he feels he gets very little recognition for his efforts to be conciliatory and cooperative. He cited an example:

a. Last Christmas Taylor gave him a very detailed wish list for Santa, including a request that Santa wake her so she could meet him.

b. He said he sent the Applicant an e-mail suggesting that she leave a note for Taylor on Christmas morning, explaining Santa was busy and couldn’t stay to talk.

c. The Respondent felt he was trying to work with the Applicant to make sure Taylor had a nice Christmas morning.

d. But he said the Applicant didn’t reply to his suggestion.

125. The Respondent testified about household contents and personal property.

a. He denied the Applicant’s allegation that he had caused her clothing to be ruined in a mouldy basement.

b. He also denied her allegation that he had disposed of her other personal property.

c. He revealed – in court, for the first time – that he had placed some of her belongings, including jewellery, in storage.

d. He offered no proof or particulars as to what he says he still has in storage.

e. He offered no explanation as to why he didn’t tell the Applicant he had placed her possessions in storage, since she has repeatedly complained about their disappearance.

f. The Applicant appeared visibly shaken to learn during cross-examination that her personal effects still existed, when she had been under the impression for more than two years that they had been lost.

126. The Respondent testified the Applicant has not produced all of the disclosure required by Justice Chappel, in relation to her employment status and disability claims. Under cross-examination the Respondent acknowledged the Applicant had not actually been ordered to produce a record of employment.

127. During the Respondent’s cross-examination it became clear that the parties were settled on support issues:

a. Although there was some initial confusion about this, the Respondent correctly noted that the parties had already agreed that his income for support purposes would be deemed to be $60,000.00.

b. As well, the Respondent consented to the Applicant’s request that he be required to pay spousal support in the sum of $1.00 per year, to signify entitlement, subject to quantum being reviewed if their respective financial circumstances change.

128. Under cross-examination the Respondent testified that he has purchased life insurance on Taylor’s life.

a. He believes he is the beneficiary.

b. He disagreed the money could be better spent on Taylor’s education or things that benefit her.

c. He said the life insurance policy is redeemable and the money can be used for her education.

d. He was not very precise about the amount of the policy, or the amount that could be redeemed.

129. Under cross-examination the Respondent said he refused to contribute to the $800 per year the Applicant was paying to obtain health care coverage for Taylor, because he was paying for some of her health expenses directly.

a. He offered that he could go and buy her medication as required.

b. He said his insurance policy could be used for ongoing expenses if necessary, but he didn’t provide particulars as to how much money could be utilized.

130. The Respondent was not a strong witness.

a. He spent most of his time on the stand on the verge of tears – or crying.

b. He bemoaned how much he wished this court case could have been avoided – without acknowledging his role in causing this litigation to proceed all the way to a bitter trial.

c. His evidence in chief was vague, superficial, and dwelled on the unfairness of everything that has happened to him.

d. Under cross-examination he was combative but also evasive when questioned about specific details or communications with others.

e. He was particularly evasive and unresponsive in relation to his alcohol abuse, anger management, and his lack of compliance with court-ordered counselling and testing.

f. Indeed, even though early in the trial the parties acknowledged that Justice Chappel’s many factual findings in her May 2015, during his evidence he tried to gloss over, minimize – and almost deny – the various examples of inappropriate and aggressive behaviour which Justice Chappel found to have occurred.

131. Notably, as witnesses, the Applicant and the Respondent were perfectly matched in one area: Anger.

a. These parents despise one another. They make no bones about it.

b. While they both claim they didn’t want this trial, they used every minute of these 10 days of court time to bad-mouth and vilify Taylor’s “other parent.”

c. Each of them even went so far as to urge me to order a psychiatric evaluation of the other.

d. The reality is that both of these parties have problems. And based on the Respondent’s own evidence, I agree with Justice Chappel’s well-documented findings that the Respondent’s problems are particularly concerning.

e. But the unintended consequence of such unbridled mutual hostility is that the level of conflict between the parents – in itself – is likely more of a threat to Taylor’s well-being than any individual failing by either parent.

WITNESS #5 LEANNE LENNOX

Witness #5: Leanne Lennox

132. Leanne Lennox testified on behalf of the Respondent. She is the spouse of the Respondent’s brother.

a. She helped facilitate many access exchanges.

b. As well, for a period after the parties’ home was sold, the Respondent resided with his brother and Lennox, so she observed Taylor’s interaction with her father during access.

133. Lennox gave the following evidence about the Applicant:

a. The Applicant would frequently arrive late when delivering Taylor for access. At a minimum she would be 10 minutes late. Sometimes it would be as much as 30 minutes.

b. Lennox witnessed the Applicant driving erratically during exchanges.

c. At times the Applicant approached their vehicle on foot and Lennox asked her to stay away.

d. At times the Applicant brought Taylor for access but then refused to let the child out of the car.

e. She saw the Applicant drive by her home several times.

134. Lennox gave the following evidence about the Respondent:

a. He is a loving father toward Taylor. “You can really tell he misses her.”

b. The Respondent has a good relationship with Taylor.

c. She has never seen the child express any sign of being afraid or resistant to access.

135. Lennox denied telling OCL clinical investigator DeGeer that the Respondent is a hothead. She denied that the Respondent behaved aggressively toward her on the day that DeGeer came to her home.

136. Lennox’ evidence was of marginal benefit for the court.

a. She appeared to be unconditionally supportive of the Respondent, and unrelenting in her hostility and negativity toward the Applicant. I finally had to bring her cross-examination to a conclusion, because the Applicant and Lennox were simply arguing and trading barbs.

b. I accept her evidence that the Respondent is a loving father and that Taylor enjoys her time with him.

c. Beyond that, it is difficult to accept Lennox’ evidence as to who was to blame for the tension during the exchanges. From what I saw of the videos everybody – including Lennox – was behaving in a provocative and immature manner.

WITNESS #6 SUSAN NEVILLE

Witness #6: Susan Neville

137. Susan Neville testified on behalf of the Respondent. She was the school principal when Taylor attended Balaclava school.

138. Neville testified in a visibly cautious and restrained manner, largely because the Applicant had filed a complaint about her to the Ontario College of Teachers. That complaint was investigated and dismissed.

139. Neville gave the following evidence:

a. She recalled being drawn into the ongoing dispute between the Applicant and the Respondent, even though she made consistent efforts to remain neutral and stay out of the fray. Her only concern was the well-being of Taylor, and other students.

b. She recalled receiving an expression of concern from someone she refused to identify, that the Applicant was videotaping on school grounds. She said she was unaware that someone had been videotaping on school grounds on behalf of the Respondent.

c. She recalled advising the Applicant there was a school policy against her removing Taylor from the school using a back door. She acknowledged that other parents also sometimes used the back door. She had no idea whether the Applicant might have been using the back door to avoid having contact with the Respondent at the front door.

d. She recalled receiving an expression of concern from Taylor’s teacher about the Applicant peering into Taylor’s classroom window, on an occasion when Taylor was opening a birthday present provided by the Respondent. Neville acknowledged that she didn’t have any first-hand information about the situation, and she had no reason to challenge the Applicant’s description that she frequently waved through the classroom window as she walked to her car after dropping Taylor off in the morning.

e. She recalled that she also personally observed and also received reports that on several occasions the Respondent was seen creating a disturbance, shouting and swearing at the main office, possibly in front of children. Neville said she understood this happened when he attended at the school expecting to see Taylor, only to discover that she had already left with the Applicant.

f. Neville seemed to go out of her way to describe both parents in equal terms. She said both parents were generally quite co-operative with her, with the exception of the one conversation she had with the Applicant concerning her peering in the classroom window.

g. She rejected the Applicant’s suggestion that she expressed too much concern to the OCL investigator about the Applicant peering in her daughter’s class window, and not enough concern about the Respondent’s aggressive behaviour in the school.

h. Neville testified that despite the extreme conflict between the parents, Taylor always presented as a lovely, bright, kind child who was functioning at an appropriate level.

THE LAW

The Law

140. The factual determinations on this file are not difficult. What to do with those facts is enormously challenging.

141. These parties were never married. Their parenting issues must be determined pursuant to the Children's Law Reform Act.

142. Section 21 of the Act provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child.

143. Section 24(1) directs that the merits of an application dealing with these issues must be determined based on the best interests of the child. All of the case law confirms that "best interests of the child" is the determining factor with respect to all parenting issues.

144. My “best interests” analysis has considered all of the factors set out in section 24(2):

24(2) Best interests of child

The court shall consider all the child's needs and circumstances, including,

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

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

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

(iii) persons involved in the child's care and up-bringing;

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

145. Custody has been described as a "bundle of rights and obligations" including the right to physical care and control of the child; to determine the child's residence; to discipline the child; and to make decisions about the child's education, religion, medical care and general health and activities. Young v. Young, 1993 CanLII 34, (1993), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 CanLII 11195, [2005] O.J. No. 1374 (Ont. S.C.J.); Harsant v. Portnoi, 1990 CanLII 6703, [1990] O.J. No. 1144, 74 O.R. (2d) 33(Ont. H.C.); Izyuk v. Langley, 2015 ONSC 2409 (Ont. S.C.J.); Jackson v. Mayerle (supra).

146. An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent's ability to interfere or impose their own preferences. Kruger v. Kruger, (1979) 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.).

147. The Court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the child’s best interests are meet. Young v Young (supra); Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R.27 (SCC); Wilson v Wilson, 2015 ONSC 479 (SCJ).

148. Even though these parties were not married, I must take into account the maximum contact principle as articulated in section 16(10) of the Divorce Act:

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

149. The maximum contact principle is a mandatory consideration. Berry v. Berry, 2011 ONCA 705 (Ont. C.A.); V. (B.) v. V. (P.), 2012 CarswellOnt 4738 (Ont. C.A.). It is appropriately applied to matters brought under the Children’s Law Reform Act. Zaidi v. Qizilbash, 2014 ONSC 201 (SCJ); Cavannah v Johne, [2008] O.J. No 5027; Griffiths v Leonard, 2010 ONSC 4824; Duthrie v Junker, 2011 ONCJ 298; Borsfai v. Hyde, 2015 ONCJ 117 (OCJ);

150. The presumption that children should have regular and comprehensive involvement in the non-custodial parent’s life is not just measured in terms of time allotted. The quality of the parent-child relationship should be the same for both parents, irrespective of custodial designations. While the amount of time spent with each parent need not necessarily be equal, the nature of the child’s experiences with each parent should be equivalent This entails sharing of all aspects of life including overnights, extended time, celebration of all special events, participation in school and recreational activities, etc.

151. Any reduction or restriction with respect to generous time and generous involvement by a non-custodial parent requires persuasive evidence and justification. The greater the restriction sought, the heavier the burden of proof on the parent seeking to limit the other parent’s involvement. M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946; Smith v. Ainsworth, 2016 ONSC 3575 (SCJ).

152. Where restrictions on liberal access are necessary, they should reflect the minimum amount of intrusion required to safeguard against a specific concern. Restrictions (such as supervision or exclusion of overnight visits) should generally be temporary. The nature of the concerns should be clearly articulated. The restrictions should be modified or removed as soon as the concerns have been reasonably addressed.

153. Restrictions which impact on the child’s experience – such as access denial, supervision, or limitation on hours of contact – require the most urgent and delicate resolution. Restrictions which primarily impact the parent’s experience – such as a prohibition against alcohol consumption – may be less offensive on a temporary basis, out of an abundance of caution.

ANALYSIS

Analysis

154. This is a difficult case, not because of the legal issues, but because of the difficult personalities. The facts themselves are not nearly so complicated as to justify the enormous community and judicial resources the parties have consumed.

155. In May 2015 Justice Chappel made numerous findings following a five day oral temporary hearing. After a further 10 days of trial my own findings are almost identical:

156. Prior to separation the parties had a turbulent relationship. Since separation tensions appear to have worsened, with no abatement in sight.

157. Parental love is not the issue. The Applicant and the Respondent both love Taylor. She loves them back. Equally I’m sure.

158. Parenting skills and behaviours are the issues.

159. The Applicant assumed more responsibility for the child prior to separation.

a. But the Respondent had a lot of involvement.

b. If there weren’t other concerns, the exact percentages as to which parent did what historically really wouldn’t matter.

c. If there weren’t other concerns, we’d be looking at a liberal time-sharing regime, and the “custody” designation would largely be symbolic.

160. The Applicant has had some mental health issues.

a. While the Respondent claims they were the cause of their problems, I find that the Applicant’s mental health issues – including her PTSD – are more likely the result of the conflict.

b. I am satisfied that the Applicant is adequately addressing those mental health issues. There is no indication they have jeopardized her ability to appropriately care for Taylor.

c. But at the same time, the Applicant’s fragile emotional health is still an important dynamic.

d. Faced with legitimate concerns about the Respondent, the Applicant is now prone to overreact and convey a sense that nothing will ever satisfy her that Taylor will be safe in his care. The combination of “father in denial” and “over-protective mother” makes it difficult to find a reasonable balance in this delicate situation.

e. As well, the Applicant’s frayed nerves cause her to easily become flustered, panicky and confrontational.

f. Notably, during closing submissions the Applicant stated the stress of the lengthy trial has set her back in terms of dealing with her mental health. She will still be seeing her psychiatrist.

g. Between the Respondent’s bottled up aggression and the Applicant’s emotional instability, any interaction between them can lead to trouble.

161. I disallowed the Applicant’s oral motion – after the completion of her closing submissions – to amend her pleadings to claim monetary damages for “intentional infliction of mental distress.” There had never before been any mention of any such claim being pursued.

162. Quite apart from Justice Chappel’s previous findings, based on the evidence I heard I find that the Respondent has had longstanding problems with alcohol and anger control.

a. Those problems have virtually demolished any current ability for these parties to communicate or co-parent.

b. More importantly those problems have impacted on Taylor, jeopardizing both her physical and emotional security.

163. I accept the Respondent’s evidence that there are fewer signs of current issues relating to alcohol and anger. But I am not prepared to rely solely on his word on these topics.

a. On May 29, 2015 the Respondent was ordered to get counselling in relation to domestic violence. His compliance was half-hearted. He was described by the counsellor as “difficult to engage”, not accountable for his behaviour, and “volatile within the clinical setting.”

b. That same order required the Respondent to enroll in a treatment program to deal with his alcoholism. Again, his response was minimal, and the documentation he provided was based almost entirely on self-reporting.

c. On March 21, 2016 the Respondent was again ordered to attend periodic alcohol testing and to continue to participate in ADAPT services. By his own admission he completely ignored the March 21, 2016 order.

164. The Respondent’s wilful disobedience of court orders raises fundamental issues he should have seriously considered before embarking on this 10 day trial.

a. He seeks custody or at the very least unrestricted liberal timesharing with respect to a young child already traumatized by his behaviour.

b. He wants the court to rely on his promise that he won’t misbehave.

c. But he has deliberately failed to participate in court-ordered programs which would likely have provided independent evidence the court specifically requested.

d. Ironically, if he had overcome his stubborn resistance and fully participated in the required alcohol and anger management programs, based on the evidence I heard, there’s a very good chance remaining access restrictions would have been lifted.

e. But the Respondent made the conscious decision to do things differently. To ignore two court orders. To be his own worst enemy.

165. During his testimony he sheepishly acknowledged it was “bad judgment”. But it was more than bad judgment.

a. The Respondent perceived the orders that he get counselling were punitive.

b. He failed to comprehend that really he was being given a roadmap to success. He was being told exactly what the court would require.

c. All he had to do was comply with the orders. And if he really didn’t have any alcohol or anger problems, inevitably restrictions on his time with his daughter would be lifted.

d. Court-ordered counselling wasn’t intended to get him in trouble.

e. It was intended to get him out of trouble.

f. Most importantly, it was intended to protect his daughter.

166. The bottom line for the Respondent (and for all litigants):

a. When a court makes orders in custody/access cases, those orders have to be obeyed.

b. If you don’t like the order, appeal it.

c. Beyond that, there is no residual option of ignoring the court order just because you think it’s wrong or unnecessary.

d. And if you ignore temporary orders, don’t expect the trial judge to sanction your contempt and give you what you want anyway.

e. The Respondent appears to think it was no big deal that he ignored court orders. But it is a big deal.

f. Allowing parties to pick and choose which orders they are going to obey would make a mockery of our judicial system.

g. Particularly where children are involved, ignoring court orders will likely lead to an adverse inference.

h. In the Respondent’s case, it means he’s back to square one: He’ll still have to do what he was ordered to do long ago, before access restrictions can be lifted.

167. There is no basis, however, for the Applicant’s request that the Respondent’s access should again be supervised.

168. In many ways the Respondent’s individual failings have come to be eclipsed by a more ominous and pervasive threat to Taylor’s well-being: the extreme and unbridled conflict between the Applicant and the Respondent. As OCL clinical investigator Ian DeGeer stated: “The most concerning aspect of this matter is that Taylor is often in the middle of a number of problematic adult interactions.”

a. The Applicant and the Respondent are each absolutely convinced that they are right and the other party is wrong.

b. It’s not a problem for a parent to think they are right.

c. But it becomes a major problem when that parent becomes obsessed with demonstrating to the world that the other parent is wrong.

d. It’s a problem because parents delude themselves into thinking they’re doing this “for the sake of their daughter.”

e. In reality Taylor doesn’t care who’s right or wrong. She doesn’t want to think of either of her parents as bad. She just wants them to stop fighting.

169. As with most separations, these parties started out with a small but manageable list of legitimate complaints and concerns.

a. They could have worked together, followed some professional recommendations, obeyed some court orders, and tried to make this as painless as possible for their daughter.

b. But instead they took a scorched earth approach.

c. They became consumed not just with winning, but with making sure the other party lost.

d. That’s why more than two years after separation; after a five day temporary hearing; after many more motions; and after a 10 day trial – they were each still asking that I force the other party to take a psychiatric exam.

170. It is both easy and appropriate to say that this has become a “high conflict” file. But we need to do more than just label relentless litigants. We need to understand that parents like this are completely different – so as a court system we need to treat them differently.

a. Like most high conflict couples, the Applicant and the Respondent have come to perceive our court system as an endless forum to advance complaints and criticisms of one another.

b. To a certain extent, that’s understandable. Even momentarily appropriate.

c. The Applicant’s concerns about the Respondent’s alcohol, aggression, and parental judgment are all very relevant to the determination of Taylor’s best interests.

d. The Respondent’s concerns about the Applicant’s mental health, her erratic and confrontational behaviour during access exchanges, and factual misrepresentations (like the availability of daycare at Balaclava school) are also relevant.

e. In the early stages of a family court file, it is quite legitimate for parties to fully outline the problems and concerns, even at the risk of hurting one another’s feelings.

171. But eventually these high conflict disputes reach a tipping point where new complaints and accusations keep surfacing, not at the risk of hurting one another’s feelings – but for the express purpose of hurting one another’s feelings.

a. Court proceedings become an excuse – an institutionalized opportunity – to vent. To attack. To get in one more jab.

b. Individual court dates become perceived as pre-arranged skirmishes in an endless war. No matter the result, somebody will always make sure there’s another day in court.

c. And in the process, the judge becomes relegated to irrelevant bystander. As if watching a car crash constantly reoccur.

172. High conflict parents have their own agenda, and it rarely has anything to do with the law.

a. They seek personal vindication. Not resolution.

b. They’ve got scores to settle. Grudges, pain, and retribution – legitimized under the banner of “best interests of the child”.

c. Their mission is blame – or at the very least, deflecting more blame onto their ex.

d. Fundamentally, they view litigation completely differently than we view litigation.

e. And that’s why we delude ourselves when we think it’s possible to force high conflict couples to behave reasonably.

173. Perhaps high conflict couples keep coming back to court because – unwittingly – we provide them with a socially acceptable outlet for their maladjusted and destructive behaviour.

a. Perhaps as a court system we are too nice. Too obliging. Too tolerant.

b. We give embittered parents a forum. Affidavits. Long trials. Motions to change. Contempt proceedings. An arsenal much more sophisticated – and lethal -- than just shouting at one another over the kitchen table.

c. In the courtroom we treat them nicely. Give them water. Listen patiently. Let them get things off their chest.

d. And once they drop their lawyers and represent themselves – as these parties did – days and even weeks of court time cost them less than a trip through a Horton’s drive-thru. It’s a pretty good deal.

e. Perhaps we are so intent on protecting parents’ rights, that we lose sight of children’s rights: the right of children to have somebody step in and make their parents stop fighting -- once and for all.

174. At the end of this trial, both parties gave me a pretty strong clue they are using this court system for their own purposes.

175. On each of the 10 days of this trial, I heard repeated allegations about how much conflict arose during access exchanges – and how badly Taylor was traumatized by the other parent’s behaviour.

a. Late arrivals.

b. Access denials.

c. Physical confrontations.

d. Name calling.

e. Threats.

f. Dangerous driving.

g. Pulling the child out of a car in the middle of a McDonald’s drive-thru.

h. Multiple parties’ videoing the chaos.

i. Third party interference.

j. Taylor being so upset she would sometimes refuse to get out of a car.

k. Refusals to attend at certain locations.

l. Police calls.

m. In a nutshell, I was told repeatedly that access exchanges were completely out of control.

n. They each asked me to impose stern restrictions on the other parent’s behaviour during future exchanges.

176. So at the end of the trial, during closing submissions, I commented that perhaps the only solution was to require that both parties would permanently have to use an institutional access exchange center, whenever Taylor’s school couldn’t be used at the beginning or end of visits. Along the lines recommended by Ian DeGeer. I suggested this might be a simple way to avoid opportunities for conflict.

177. The parties’ reaction to my suggestion was really quite telling:

a. They asked for time to talk among themselves. (Earlier in the trial they claimed they couldn’t even find one another in the court building, but suddenly they both wanted to talk.)

b. After a short break they both advised they had quickly settled this previously insurmountable issue.

c. They would still use a McDonald’s restaurant. One parent would remain inside. One parent would remain outside. Taylor would enter or exit the building on her own.

d. They both expressed confidence this simple plan would prevent any more conflict during exchanges.

e. Why did they prefer their McDonalds’ plan to my institutional exchanges?

f. Because my suggestion of using an institutional access center wasn’t convenient. They didn’t want to have to do all the extra driving to go to an access center. And they didn’t want to have to pay any access center fees.

178. Finally, we had a brief moment of candor.

a. It wasn’t really about Taylor.

b. It was about convenience.

c. Their convenience.

d. The Applicant and Respondent had no qualms about taxpayers footing the bill for days of expensive court time on this issue, when they each perceived they might win and the other party might lose.

e. But as soon as it became apparent that I was contemplating a neutral solution without any attribution of blame – suddenly neither of them needed the judge to decide any longer.

179. If convenience is such a motivating factor -- maybe we need to make fighting in court less convenient.

180. If personal vindication and judicial attribution of blame is such a motivating factor – maybe we need to make it clear to perpetual litigants that we’re no longer going to play the blame game. Once they become regulars in the courthouse, there’s a pretty good chance they’re both to blame.

181. If making life unpleasant for your ex is such a motivating factor – maybe we need to make the court experience equally unpleasant for both combatants.

182. Make no mistake: This isn’t just about judicial convenience or public nuisance.

a. High conflict parents exude negativity and tension.

b. If we in the courtroom can’t stand listening to these people act up – presumably while they’re on their best behaviour – can you imagine what it’s like for a child trapped living with that sort of hostility and resentment, 24 hours a day?

c. Angry parents always pretend they hide their feelings from their children. But I don’t believe it for a second. Judges regularly receive reports from professionals about how severely children are impacted by ongoing parental strife. And in this case, the cell phone videos flaunted by both parties clearly demonstrated that no effort is being made to shield Taylor from the hatefulness.

d. Family breakdown is tough on everyone. The pain is real. It takes time to recover.

e. But healing can’t occur while you’re still waging war in court.

f. That’s why – for the sake of the children – we need to find ways to reduce family tension, rather than fuel it.

183. When parents come to court genuinely seeking solutions, we should work tirelessly to help them. As long and as often as it takes.

184. But we have a concurrent obligation -- to taxpayers, and more importantly to the children of relentless litigators – to prevent embittered parents from abusing scarce judicial resources:

a. We need to identify those parents who just come here to fight.

b. And then do everything we can think of to deprive them of future opportunities to fight.

c. We need to anticipate – perhaps even presume – misconduct and non-compliance.

d. And then craft orders which leave parents with as few opportunities to misbehave as possible.

185. In short, sometimes we need to treat parents like children.

186. Both parties in this case seek custody. As an alternative the Respondent seeks joint custody, with equal time sharing.

a. On these issues I accept Ian DeGeer’s recommendations, and I reject those of Patricia Johnston.

b. The level of animosity and the complete inability to communicate and co-parent eliminate joint custody as an option.

c. While I find that the Applicant shares responsibility for the high level of conflict on this file, I do not agree with the Respondent that she has engaged in parental alienation. The Respondent has to accept responsibility for the fact that Taylor has reacted negatively to some of his behaviours.

d. The Applicant assumed primary responsibility of Taylor prior to separation. The child has resided with the Applicant since the date of separation. Apart from the conflict between the parents, the child is doing well. The Applicant is meeting all of Taylor’s needs. She has demonstrated appropriate judgment in pursuing counselling for Taylor. The child is happy and well cared for. The Respondent’s custody proposal would entail significant disruption for the child. And there are still issues which need to be resolved with respect to the amount of time the child should be in the Respondent’s care.

e. I find that it is in the best interests of Taylor that she remains in the sole custody of the Applicant.

187. The Respondent’s access remains the biggest challenge:

a. The Respondent currently has non-overnight visits, with a no-alcohol restriction. He seeks significantly expanded time including overnights.

b. Justice Chappel’s May 29, 2015 order specified that there was to be no expansion of access until the Respondent satisfied certain requirements in relation to alcohol and anger management. He didn’t fully satisfy those requirements, and he ignored a March 21, 2016 order which reaffirmed those same requirements.

c. Based on the Respondent’s non-compliance with previous orders – and based on my own findings that the Respondent has alcohol and anger management issues he still needs to address – I am not prepared to expand access or implement overnight visits at this time.

d. I wish to emphasize, however, that from Taylor’s perspective this is a most unfortunate and undesirable result. Taylor loves both parents and needs a normal relationship with both the Applicant and the Respondent. While Taylor’s resistance to overnights may be attributable to her experiences with the Respondent prior to separation, the father-daughter bond is strong and I am confident the child’s reluctance is transitory. The father needs to demonstrate he has cleaned up his act. The mother needs to show encouragement. Both parents have a responsibility to do all things necessary to provide reassurance to Taylor that everything will be fine. That generous access will be fun and worry-free.

e. OCL worker Ian DeGeer recommended Taylor may benefit from reconciliation counselling after the Respondent has completed his personal counselling. I am very concerned about the amount of time which has been wasted while these parties focussed on fighting rather than healing. For Taylor’s sake, I believe the Respondent’s personal counselling and the father-daughter reconciliation counselling should proceed immediately.

f. For clarity: It is my hope and expectation that overnight visits will commence as soon as we get some reassuring professional input. I will seize myself of this file to ensure timely follow-up.

188. Expanded and overnight access isn’t just the Respondent’s problem. It’s Taylor’s problem. And that makes it the Applicant’s problem as well.

a. Now that these parties fall into the special “high conflict” category, they need to understand that as a community and as a judicial system we are no longer going to give them unlimited opportunities to fight.

b. Their daughter’s life is a mess. They are both to blame. The exact proportions of blame no longer matter. We don’t want to hear any more versions of who did what.

c. We just need to move on and focus on solutions, and not criticisms.

d. Most importantly, the Applicant and the Respondent are going to have to wake up to the fact that Taylor is their child.

e. Not my child.

f. Not any other judge’s child.

g. The Applicant and the Respondent have a parental obligation to grow up; put aside their personal animosities; stop embarrassing themselves; stop wasting community resources; and focus on the simple task of making their daughter’s life better.

h. My order will hopefully make it clear to the parties that they both have a lot of work ahead of them.

FINAL ORDER:

Final Order

189. The Applicant shall have sole custody of the child Taylor Madeleine Whidden born September 29, 2007.

190. The Respondent’s access to Taylor shall entail a short term regime (PHASE 1) following but an indefinite final regime (PHASE 2).

PHASE 1

191. Pending satisfaction of the list of “Objectives & Expectations” set out herein, the Respondent shall have access to Taylor:

a. Every Monday from 3:30 p.m. until 8:00 p.m.

b. Every Wednesday from 3:30 p.m. until 8:00 p.m.

c. Every Sunday from 7:30 a.m. until 7:30 p.m.

d. 50 per cent of Saturdays from 7:30 a.m. until 7:30 p.m. The Applicant may select which Saturdays, so long as she provides the Respondent with written notice by the 20th day of the previous month. The intention is that the Respondent would have access on the two out of four Saturdays that the Applicant has to work in each 28 day period.

e. A 15 minute telephone call before the child’s bedtime, on the evening (just before bedtime) of any day when the Respondent will not have personal contact. The Applicant shall advise the Respondent of the time for the telephone call, in writing, at least 48 hours in advance. The Applicant is to initiate the call on even numbered days of the month. The Respondent is to initiate the call on odd numbered days of the month.

PHASE 2

192. Subject specific provisions for vacations or special occasions, the Respondent shall have access to Taylor on the following core schedule.

a. Alternate weekends from Friday at the end of the school day (or 4:00 p.m. if school is not in session) until Monday before school starts (or 8:30 a.m. if school is not in session).

b. The Respondent’s alternate weekends shall be extended by 24 hours to incorporate any statutory holiday or professional development day which falls on a Monday or Friday (unless the statutory holiday is otherwise specifically dealt with herein).

c. Wednesdays from the end of the school day (or 4:00 p.m. if school is not in session) until Thursday before school starts (or 8:30 a.m. if school is not in session).

d. The Christmas school break shall be divided equally between the parties. As part of this division, in odd numbered years the Respondent shall have Taylor with him from December 24 at 9:00 a.m. until December 25 at 2:00 p.m. and the Applicant shall have the child from December 25 at 2:00 p.m. until December 26 at 7:00 p.m. In even numbered years this shall be reversed. Apart from those specific times, the balance of the Christmas school break (including wrap-around weekends) shall be divided equally between the parties. If the parties are unable to agree in writing by November 30 as to how these remaining Christmas school holidays are to be divided, in even numbered years the Applicant shall decide the division and in odd numbered years the Respondent shall decide the division (with the decision to be communicated in writing by December 7). In any event, the Applicant shall always have Taylor with her on January 1 (the Applicant’s birthday) from at least 10:00 a.m. until 7:00 p.m., with this counting as part of the Applicant’s time with the child. (Similarly, the child shall always be with the Respondent on his birthday February 19 from 10:00 a.m. (or after school if it is a school day) until 7:00 p.m.

e. At Easter, in odd numbered years the Respondent shall have Taylor from the Thursday after school until Saturday 7:00 p.m. and the Applicant shall have the child from Saturday 7:00 p.m. until Tuesday before school. In even numbered years this shall be reversed.

f. In even numbered years the Respondent shall have Taylor for the entire March school break from Friday after school until the Monday morning when school resumes. In odd numbered years this shall be reversed.

g. Taylor shall always be with the Applicant on Mother's Day, and with the Respondent on Father's Day, from 9:00 a.m. until 7:00 p.m.

h. On Taylor’s birthday, the party who would not normally have Taylor with them overnight shall be allowed at least one hour with the child (if it is a school day) and at least four hours with the child (if it is not a school day).

i. During the summer each party shall be entitled to two non-consecutive weeks of vacation with the child. Unless otherwise agreed by the parties, these weeks shall be for 7 days from Friday 4:00 p.m. until the following Friday at 4:00 p.m. In even numbered years the Respondent shall select his weeks by April 1st and the Applicant shall select her weeks by May 1st, with notifications to be made in writing. In odd numbered years the reverse shall apply.

j. Taylor may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party. However, the parents shall notify one another in advance, in writing, whenever Taylor will be sleeping away from that party's ordinary residence for more than two nights in a row.

k. Either party proposing international travel involving the child shall provide the other party with full particulars at least 45 days prior to the intended travel, including the exact itinerary, destinations, accommodations, and methods of communication.

l. The parent travelling with the child shall ensure that Taylor initiates a telephone call (or Skype call) to the non-travelling parent at a pre-arranged time, at least once every three days of the trip.

m. If either parent plans a vacation without Taylor, that parent will give the other parent a telephone number where he or she can be reached in case of emergency or if Taylor wishes to contact the travelling parent.

193. In relation to any period of access (whether Phase 1 or Phase 2) the Respondent shall not consume alcohol during or within 12 hours prior to having personal contact with Taylor, nor shall he allow Taylor to be exposed to other persons who are under the influence of alcohol.

194. The transition from Phase 1 of access to Phase 2 shall be subject to the following “Objectives & Expectations” being satisfied.

a. The Respondent shall participate in counselling in relation to anger management and the impact of domestic violence on spouses and children.

b. The Respondent shall participate in a formal treatment program to deal with alcohol abuse.

c. The Respondent shall provide any counsellors with copies of this order and the court judgment resulting from the trial.

d. The Respondent shall obtain a written report from all counsellors or programs, confirming not just that he attended but also a description of the issues discussed and observations as to the Respondent’s progress.

e. The Respondent shall participate in the Caring Dads program.

f. Both parties shall participate in counselling with a qualified therapist or counsellor in “parent and child reunification treatment”, with a view to addressing any issues relating to the father-daughter relationship, and in particular with a view to implementing overnight and extended access for the Respondent in a manner which is safe and responsive to the child’s needs and comfort level. The reconciliation counsellor shall be provided with a copy of this order and the court judgment resulting from the trial. Selection of the therapist/counsellor shall be with the approval of the OCL. If there is any difficulty selecting the appropriate professional, the issue should immediately be returned to court for determination by me. Sessions shall occur at least once a month, or with such frequency that the counsellor may determine, for a period of one year.

g. The Respondent shall be fully responsible for the cost of anger management and alcohol programs.

h. The Applicant and the Respondent shall be equally responsible for the cost of reconciliation counselling. They shall cooperate in expediting the implementation of such counselling.

i. The parties shall confer in writing with respect to the selection of all counsellors or programs, and they shall keep one another informed in writing as to the scheduling of all sessions or appointments, and progress being achieved.

j. The Respondent shall be free to select whatever programs he deems appropriate in relation to anger management, domestic violence and alcohol abuse. He shall notify the Applicant in writing as soon as he selects each program. Upon receiving that information, the Applicant shall respond in writing advising whether she agrees that the program/counselling is appropriate. If she does not agree it is appropriate, she shall explain her reasons and suggest a specific alternative. The Applicant may also make specific suggestions about counselling (and her rationale) at any time. The Respondent need not participate in the specific programs/counselling recommended by the Applicant. But on an ongoing basis the Respondent should keep the Applicant informed as to steps he is taking, and the Applicant should keep the Respondent informed as to specific steps she feels he should be taking.

k. Both parties shall have an obligation to facilitate all of the aforementioned counselling as quickly as possible, as it is in Taylor’s best interests that all of these issues be addressed effectively and quickly.

l. Each parent shall have an affirmative obligation to promote Taylor having a positive relationship with the other parent.

m. The parties shall maintain a daily diary briefly recording all efforts they have made to comply with and encourage these Objectives & Expectations.

n. The trial co-ordinator of this court shall arrange a time for both parties to attend before me during the first week of December 2016 for a brief “to be spoken to” attendance (maximum 15 minutes), at which time each party shall submit to me a written summary of everything they have done to facilitate and promote these Objectives & Expectations. The written summary is not to include any negative comment about the other party. Each party is simply to provide me with a summary of everything they have done to help address the situation.

o. The parties will be required to attend before me monthly for a similar “to be spoken to” attendance. On each occasion they will be required to provide me with a daily summary of everything they have done since the previous summary, to promote these Objectives & Expectations. Again, for clarity: These won’t be occasions for either party to convey any criticism of the other party. These attendances will be solely for the purpose of each party reporting the positive steps that they have taken.

p. If on any of these monthly reporting dates I am of the view that insufficient effort has been made to promote these Objectives & Expectations, I will impose such additional requirements as may be appropriate – including, quite possibly, more frequent court attendances to report on their progress. The mutual focus must shift from complaining to problem-solving.

q. For clarity: It is my expectation that both parties will apply themselves diligently to allow us to address and expansion of the Respondent’s access beyond the terms set out in Phase 1, within four months.

195. Since it is not anticipated that the transition from Phase 1 to Phase 2 will have occurred by the end of 2016, for the 2016 Christmas school holiday, the access provisions of Phase 2 shall apply, excluding overnights.

196. The following provisions apply more generally, irrespective of which Phase is applicable.

197. Access exchanges shall occur as follows:

a. When school is in session, and when exchange times coincide with the start or finish of the school day, access exchanges shall occur at school. Only the party dropping off Taylor in the morning or picking Taylor up at the end of the school day shall be in attendance.

b. Similarly, if Taylor is at an institutional before-school/after-school/daycare facility, access exchanges shall occur at that neutral facility.

c. Otherwise, on a temporary basis and at the request of the parties, access exchanges shall occur at the McDonalds restaurant in Waterdown. The party who is receiving the child shall arrive at least five minutes ahead of the exchange time, and wait inside the McDonalds. The party delivering the child shall drive close enough to the door of the McDonalds to allow Taylor to walk unaccompanied into the restaurant to join the other parent. The party delivering the child shall remain outside the restaurant and shall not communicate with the receiving parent. The party delivering the child shall be on time and ensure that the transition is done quickly and with encouragement. The party delivering the child shall leave the vicinity of McDonalds immediately upon confirming that the receiving parent has assumed care of the child.

d. However, if there are any problems with respect to the aforementioned “exchanges at McDonalds” – irrespective of any attribution of blame for those problems – exchanges shall thereafter (on a final basis) be at an institutional access exchange center. Exchange times (and days) may have to be adjusted to coincide with the availability of the facility. Any cost associated with the access exchange facility shall be paid equally by the parties.

e. To facilitate the availability of a neutral access exchange facility, in case it comes to be needed, both parties shall immediately register at the YWCA supervised access program in Hamilton. In addition, each party shall register at another access exchange facility of their choosing. If the parties cannot agree on this alternate access exchange facility, they will each register at both the facility they chose and also the facility chosen by the other party. These registration requirements are to provide contingencies only. It is hoped that such facilities will never be required for access exchanges.

198. The Applicant shall have the authority to select the child’s school and educational program.

199. Subject to any provisions herein specifically requiring counselling or professional assistance for the child, the Applicant shall have the authority to select any professionals or service providers involved in the child’s life.

200. If counselling is arranged for Taylor, both parents shall be equally involved in the process (although not necessarily together), subject to any determination by the counsellor.

201. The Applicant shall keep the Respondent informed in writing as to the particulars of any professionals, educational institutions, or recreational associations involved in the child's life.

202. The Applicant shall notify the Respondent in writing prior to any medical or professional appointment for Taylor (as soon as the appointment is booked) and provide full particulars immediately after the child has attended for the appointment.

203. Both parties shall be entitled to receive copies of all medical, dental, school and other reports related to the child. Both parties shall be entitled to communicate directly with the child's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the child. Both parties shall be listed on all documents pertaining to the child and shall be entitled to attend any of the child's scheduled appointments. Both parties shall execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the child to speak fully and openly with both parties.

204. The Applicant shall consult with the Respondent prior to implementing any non-emergency decisions in the child's life. The consultation shall occur as soon as the Applicant becomes aware of the issue and if possible at least 30 days prior to the date on which a decision has to be made. The Respondent shall be entitled to make inquiries and provide feedback and suggestions. However, after consultation has occurred, the Applicant shall have the final decision making authority.

205. Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with Taylor.

206. In the event of a serious illness, accident or other misfortune involving the child, the party then having the child in their care shall immediately and promptly notify the other party.

207. The Applicant and the Respondent shall each have authority to arrange emergency medical treatment for the child. If such an emergency situation arises, the party with care of Taylor shall make all reasonable efforts to contact the other party immediately, to allow that party to attend the emergency medical treatment facility.

208. During any period of illness by Taylor or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.

209. If the child is sick, the transition from one parent's care to the other parent's care is to proceed unless the child is too sick to travel as per the determination of the child's doctor.

210. The parties shall keep one another informed of their residential telephone numbers, their residential address, and their e-mail address.

211. The Applicant shall provide the Respondent with 90 days advance notice of any intention to relocate the ordinary residence of the child outside of the City of Hamilton.

212. The parties shall communicate primarily by way of e-mail. For anything of a time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication. Each party shall check their e-mail account at least once a day. Each party shall respond to e-mailed inquiries within 24 hours of receipt (except during vacations). E-mail communications shall be brief, civil and relate only to parenting or financial issues. Neither party shall allow the child to see any e-mails exchanged between the parties.

213. Insofar as Taylor has been negatively impacted by the high level of conflict between the parties, both parties shall have an ongoing obligation to ensure that Taylor is shielded from any negativity or conflict.

214. Neither party shall allow any person to make negative or disparaging comments to Taylor about the other parent or members of their family or household. They shall at all times encourage the child to have a positive and respectful relationship with the other parent.

215. The parents shall not communicate about issues or non-emergency arrangements when Taylor is present or nearby. They shall not convey messages or documents using Taylor as an intermediary. They shall not encourage the child to make requests or proposals on their behalf.

216. The parties shall not question Taylor (or comment to the child) about the other parent's personal life and activities.

217. Neither party shall video or audio record the child for the purpose of recording statements or discussions about the other parent, or parenting issues. Neither party shall video or audio record any parental interactions (at access exchange times or otherwise) nor shall they permit any person to do so on their behalf.

218. Each party shall encourage and facilitate the child to initiate regular contact with the other parent, by telephone or electronically. Once expanded access is implemented, as a minimum (and not including vacations spent away from home) if one of the parties will have Taylor in their care for two or more overnights in a row, that parent shall ensure that Taylor initiates a telephone call to the other parent on the evening of every second overnight at 7:00 p.m.

219. The parent who had care of Taylor prior to the commencement of a school day shall continue to have authority over the child until the end of the school day. This shall determine which parent should first be contacted by the school, in the event of an issue arising at school on that day.

220. Except for purposes of morning drop-off or afternoon pick-up, neither party shall attend at the school without checking in at the school office. Neither party shall attend at the school at a time when the other parent is known to be dropping-off or picking-up the child. Both parties may attend school events open to the public. But the parent who would otherwise have care of the child at the time, shall continue to have responsibility for the child during the school event.

221. The parties shall share selection of extra-curricular activities for Taylor in the following manner.

a. Each year they will take turns selecting activities.

b. In even numbered years the Applicant shall select first, and make a selection by January 30th. The Respondent shall select second by March 31. The Applicant third by May 31. And the Respondent fourth by July 31. If a party misses a deadline for selection of an activity, the other party may proceed with their selection (but unless the parties agree otherwise, neither party shall be entitled to select more than two activities per year).

c. In odd numbered years the pattern shall be reversed.

d. Selections may be for an activity which takes place during any portion of the year. A selection may not overlap or conflict with the schedule for a previously selected activity.

e. The party selecting the activity shall pay two-thirds of the cost; the other party shall pay one-third.

f. The selected activities shall be within the City of Hamilton, unless the parties agree in advance otherwise.

g. Only the parent who has physical care of the child during the extracurricular activity shall attend the event. However, for school or religious events, playoffs or final competitions and presentations, both parents may attend. The parent who has Taylor in their physical care shall be responsible for preparation of the child for the activity.

h. Both parents shall make their best efforts to ensure that the child attends most activity commitments during the time the child is in their care. If the parent has difficulty arranging transportation in relation to the event, but does not otherwise have plans involving the child, that parent shall offer the other parent the opportunity to transport the child to the activity.

i. These terms set out a basic framework for extracurricular activities. The parties may agree to make other arrangements.

j. Apart from these provisions, neither party shall make any scheduling commitments for the child which encroach on the other party's time with the child.

222. Both parties shall cooperate in obtaining a passport and any other documents required by Taylor. In even numbered years the original copies of all of Taylor’s documents shall remain in the Applicant’s possession; copies shall be provided; and the originals shall be made available to the Respondent as required. In odd numbered years the reverse shall apply.

223. Neither parent shall make any permanent or long-lasting change to the child's physical appearance (such as piercings; tattoos; hair dying) without the prior written consent of the other parent. If the parties cannot agree in advance with respect to ordinary cosmetic and grooming issues such as haircuts, in even numbered years these issues shall be determined by the Applicant, and in odd numbered years these shall be determined by the Respondent.

224. To minimize what Taylor must travel with, both parents shall have sufficient clothing for her and these items shall not travel back and forth. However, outer wear such as winter coats and boots shall travel back and forth between households.

225. Taylor shall be allowed to take her preferred belongings between households.

226. Any home videos or photographs of Taylor up to the date of separation shall be divided equally between the parties, such that each party shall be entitled to one complete set of all videos and photographs. Each party shall be entitled to an equal number of originals and copies. The cost of making a second set shall be divided equally between the parties. These arrangements are to be completed by March 1, 2017.

227. The Respondent shall release to the Applicant, forthwith, all of the items of her property which he has stated he placed in storage. He shall be responsible for all storage charges incurred.

228. For purposes of determining child support and spousal support, the Applicant’s income shall be determined to be $48,000.00 and the Respondent’s income shall be determined to be $60,000.00. The Applicant’s income is an approximation as she has recently returned to work.

229. On consent, the Respondent shall pay to the Applicant support for the child in the sum of $557.00 per month commencing November 1, 2016.

230. On consent, the Respondent shall pay to the Applicant spousal support in the sum of $1.00 per year.

231. Subject to any other specific provisions herein, the parties shall share s.7 expenses in proportion to their incomes.

232. The parties shall exchange by June 30 annually copies of their personal and any business income tax returns and notices of assessment.

233. Support deduction order to issue.

234. The parties shall maintain for the child such health care coverage as may be available through their respective employment. They shall provide annual confirmation of such coverage by June 30. If the Respondent does not have any coverage, he shall pay half the cost of any private or extra coverage the Applicant obtains for the child.

235. The parties shall each designate the child as the sole beneficiary of the first $200,000.00 of insurance on their lives respectively. If they currently have any insurance coverage on their own lives, they shall maintain such policies in the future. By June 30 annually they shall confirm to one another in writing the status of any life insurance.

236. Each party’s request for a restraining order is dismissed, without prejudice to claims being returned if future problems arise. At the moment there is insufficient evidence of any specific harassment or threat by the other party. At the same time there is overwhelming evidence of mutual conflict and animosity between the parties. Given their propensity to take advantage of community resources and try to find ways to get one another in trouble, I fear granting one or both of them a restraining order would simply promote further strategic complaints.

237. As stated, I will seize myself of any future issues on this file, for a period of three years. It is important that there be continuity in terms of judicial findings and expectations. In the immediate future I anticipate seeing the parties monthly – briefly – for updates as to their respective efforts in relation to the “Objectives & Expectations” in relation to the evolution of access.

238. Apart from that, if any residual issues other than costs need to be addressed, they can be raised at the December 2016 “to be spoken to” appearance.

239. If either party is seeking costs, written submissions should be filed on the following timelines (which may not be extended by the parties):

a. Applicant’s submissions to be served and filed within 21 days of the date of this judgment.

b. Respondent’s submissions to be served and filed within 15 days of receipt of Applicant’s submissions.

c. Any reply submissions by Applicant to be served and filed within 10 days of receipt of Respondent’s submissions.

240. However, before the parties spend a lot of time on costs submissions, they should both familiarize themselves with the law in relation to:

a. Costs payable by or on behalf of self-represented litigants.

b. Rule 24(1) – Success.

c. Rule 24(4) – Successful party who has behaved unreasonably.

d. Rule 24(5) – Decision on Reasonableness. Particularly Rule 24(5)(a) – Party’s behaviour.

e. Rule 24(6) – Divided success.

f. Rule 24(7) – Absent or unprepared party. (Particularly the reference to “unprepared”)

g. Rule 24(10) – Costs to be decided at each step.

h. Rule 24(11) – Factors in Costs. Particularly subparagraphs (b) “reasonableness” and (d) “time properly spent on the case”

Pazaratz, J.

Released: November 14, 2016

CITATION: Whidden v. Ellwood, 2016 ONSC 6938

COURT FILE NO.: F-3136/14

DATE: 2016-11-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bonnie Leigh Whidden

Applicant

– and –

Garry Scott Ellwood

Respondent

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: November 14, 2016