Lambert v. Peachman, 2016 ONSC 7443

CITATION: Lambert v. Peachman, 2016 ONSC 7443

PETERBOROUGH COURT FILE NO.: 59/14

DATE: 20161201

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Elizabeth Heather Lena Lambert Applicant

– and –

Eric Norman Peachman Respondent

Russell Alexander, for the Applicant

Michael Tweyman, for the Respondent

HEARD: November 24, 25, 26, 2015, December 1, 2, 2015, May 16,17,18,19,20,23,24, 25, 26, 27, 31, June 1, 2016

CORRECTED REASONS FOR DECISION REGARDING PARENTING ARRANGEMENT

(The text of the original decision was corrected to note the following: On page 5, para [32], year was changed to 2014.)

WOODLEY, S.J.

OVERVIEW

[1] The trial of this matter continued through two sittings and took approximately four weeks to complete. These Reasons for Decision relate solely to the appropriate custody and parenting arrangements for the parties’ younger child, Matthew Peachman, born December 11, 2003.

[2] By these reasons I consider whether the shared parenting arrangement between the Applicant mother, Elizabeth Lambert (Elizabeth), and Respondent father, Eric Peachman (Eric), should continue or an alternate arrangement should be put in place, keeping in mind at all times Matthew’s best interests. The primary issues to be determined are as follows:

a. Which parent should have custody of Matthew?

b. Where should Matthew reside primarily?

c. How and when should access occur?

d. What services should Matthew engage in?

BACKGROUND FACTS

Personal and Professional Life

[3] Elizabeth and Eric commenced cohabiting in August 1987 and were married on May 12, 1990. They had two children together, Andrew who is 19 years old, and Matthew who is 12 years old.

[4] Eric is currently 51 years old. He worked in robotics and has been a long-time volunteer for Scouts Canada and a frequent volunteer coach for his children’s sports teams and activities.

[5] Elizabeth is currently 47 years old. She has worked for the Kawartha Pine Ridge District School Board since 1998 and is a Manager of School Software Systems. Elizabeth is trained in accounting and managed the family’s finances during the marriage. She also took Matthew to certain extra-curricular events and volunteered at the children’s school.

[6] The parties each had successful careers, earned similar incomes and shared a happy marriage together for many years. They were a popular couple with their peers. Based on the independent evidence of family friends, both parties were caring spouses and model co-parents during their marriage.

[7] In 2005, Eric was diagnosed with Dilated Cardiomyopathy and deemed incapable of working in any field. Eric receives long term disability payments of approximately $65,000 per year which cease when Eric turns 65 years of age.

[8] Following his disability, Eric became more involved in the household chores and assumed many roles previously undertaken by Elizabeth. Elizabeth was therefore able to dedicate more time to her career. In 2015, her salary was $87,676.40.

Marriage Breakdown

[9] On June 6, 2012, Elizabeth presented Eric with a letter advising him that she wished to separate. In this letter, she stated that they could sometimes work well as parents, but she wanted more from a relationship than that. Elizabeth advised that she would be requesting custody with Eric having generous visitation rights. She stated that she did not “want to impact the relationship that you have with the boys”, and therefore wanted to “make it appear as amicable as possible”. Elizabeth advised that she had retained a lawyer to deal with the issues surrounding the separation. She claimed that she was “prepared to be reasonable in dealing with the issues”. Elizabeth ended the letter with the statement that her “mind is made up and I want to proceed with this”.

[10] Upon receipt of Elizabeth’s letter, Eric was “devastated” since he still loved her and wanted to work towards reconciliation.

[11] At Eric’s request the parties went on dates and attended marriage counselling (once). On September 30, 2012, Elizabeth advised Eric that reconciliation was not possible and the separation was final.

[12] Elizabeth requested that Eric not advise the children of her decision to separate. Further, Elizabeth requested that the children only be advised of the separation in her presence. The children were not told until May 5, 2013. Although the parties separated in word and in deed on September 30, 2012, they continued to share their matrimonial bedroom until September 2013 when Eric moved to the basement. During this time, Eric and Elizabeth engaged in a shared parenting agreement.

[13] Elizabeth re-partnered sometime in 2012 or 2013 with a man named Colin.

[14] Following the separation, Elizabeth kept a journal and taped conversations and arguments with Eric. Elizabeth attended to have the taped conversations transcribed and provided copies of the recordings and transcriptions to various entities throughout the litigation including the family support worker at the Kawartha-Halliburton Children’s Aid Society (KHCAS).

[15] Commencing November 2012, the parties participated in an Open Mediation process, with respect to the issues of custody, access and parenting of their two children.

[16] On January 21 2013, Eric and Elizabeth entered into a Memorandum of Understanding (“Memorandum”) that provided for a shared custody and a parenting arrangement based on equal time between the parents.

[17] On January 28, 2014, Elizabeth commenced the within proceedings seeking sole custody and primary residence for the children. She alleged that Eric has a violent temper, was verbally abusive towards her, has exposed the children to abusive behaviour in the home, and is not able to care for the children on a full time ongoing basis due to his physical disability.

[18] Eric re-partnered sometime in 2014 with a woman named Cheryl.

[19] On consent of the parties an Order was obtained on June 13, 2014 for the sale of the matrimonial home. At that same time the parties entered into a temporary without prejudice Order that incorporated the terms of the Memorandum into a court Order.

[20] On September 30, 2014, Elizabeth moved from the parties’ matrimonial home to Colin’s home. At the date of the trial (November 2015), Elizabeth continued to live with Colin and adhered to the shared parenting arrangement.

[21] In March 2015, the matrimonial home was sold and Eric moved to a home owned by his girlfriend, Cheryl. At the date of trial, Eric and Cheryl were in a committed relationship but did not live together.

Litigation

[22] The trial commenced on November 24, 2015, and was continued during the May 2016 trial sittings. Although the trial dealt with outstanding financial issues between the parties, the primary focus was the appropriate custody and parenting arrangements for Matthew.

[23] During the hiatus between trial sittings, Elizabeth claimed that Matthew was in imminent crisis and suicidal. As a result of her submissions, I ordered the involvement of child psychiatrist Dr. Henriette Wynd to provide support and to complete an assessment of Matthew pending the continuation of the trial in May 2016.

[24] Dr. Wynd accepted the appointment, completed her assessment and produced two written reports dated May 10, 2016. Dr. Wynd also attended at trial as an expert witness and provided evidence regarding Matthew’s assessment and her recommendations regarding the proposed parenting regime.

[25] In addition to Dr. Wynd, each of the parties called various “character” witnesses on the issue of parenting and the best interests of the child.

[26] Elizabeth called a KHCAS family services worker, a friend employed at Matthew’s school, Matthew’s former daycare provider, and Matthew’s former grade three teacher.

[27] Eric called Dr. Wynd, Matthew’s current teacher, a close family relative, several family friends, and a colleague from Scouts Canada.

[28] The litigation was quite extensive and ultimately amassed costs that neither parent could afford.

[29] The allegations raised by Elizabeth at trial were serious and troubling. Eric met the allegations without rancour and sought to enforce the provisions of the Memorandum with necessary amendments.

Elizabeth’s Evidence

[30] At trial Elizabeth was very animated and emotional. She often broke down during her testimony and at times required a break to collect herself especially when she was talking about Eric’s “abusive and controlling” behaviour or Matthew’s health and well-being.

[31] Elizabeth claimed that her relationship with Eric following separation in June 2012 was very difficult. Elizabeth alleged that Eric was “verbally abusive and controlling”. Elizabeth advised that due to Eric’s verbal abuse their children were “subjected to domestic violence”.

[32] Following separation and commencing in or about September 2014, Elizabeth reported to the KHCAS that Eric engaged in abusive behaviour and Matthew had witnessed “domestic violence” in the home.

[33] Elizabeth claimed that to placate the situation she arranged for a temporary nesting arrangement with the children at the suggestion of KHCAS to “lessen the domestic violence in the home”.

[34] Throughout the trial, Elizabeth disparaged Eric’s temperament, his ability to parent, his involvement with the children, and his involvement in volunteer activities. She repeatedly and vehemently alleged that Eric was “abusive” and “controlling”.

[35] Upon separation Elizabeth commenced a “journal” or “log” of her daily activities. Elizabeth also began recording Eric on her phone to document alleged “incidents of abuse”. Elizabeth had transcripts of the taped conversations prepared.

[36] During the trial, Elizabeth attempted to introduce her journal as well as the tape recordings and transcripts into evidence. For oral reasons for decision delivered at trial, I refused to allow the tape recordings and transcripts in any capacity. While I allowed the journal to be introduced and filed as an exhibit – I held that I would determine the weight to be given to the contents of the journal in my reasons.

[37] Having now read all of Elizabeth’s journal entries, I give very little weight to the contents. The journal entries are obviously prepared in contemplation of litigation and constitute a form of oath helping. The journal entries record Elizabeth’s view of the events that transpired between the parties but offer no real independent evidence that would assist in the determination of the issues.

[38] Despite the above conclusion, several journal entries proved helpful in understanding some of the “behind the scenes” events such as:

a. Elizabeth routinely utilized the journal, tapings and transcripts throughout the litigation to support her position that Eric was “abusive” and proffered the self-made records to various individuals including the family support worker assigned from the KHCAS.

b. The journal entries record that on May 30, 2014, Elizabeth began seeing a “new counsellor” named Maria Rossetti through her Employee Assistance Program (EAP). Elizabeth “told her about Eric and what was going in [on], including his angry outbursts. Based on what I told her, she is calling KHCAS to talk to them about her concerns. She told me she is trained in risk assessment and she was doing one in her head for Eric…factors that indicate that he has a very real potential of becoming suicidal or homicidal. My homework is to develop a safety plan for me and the boys. I had to promise to get the boys and I out and that my first call would be to 911. She said that one added factor could set him off….that he might “go postal”.

c. Although Elizabeth’s journal does not record that Ms. Maria Rossetti was also the counsellor assigned to Matthew – the notes of the KHCAS worker, Mr. Andrew Foeller, dated December 3, 2014, record that Elizabeth emailed Mr. Foeller to advise him that Ms. Rossetti had been assigned to Matthew. Further, on December 4, 2014, Elizabeth requested Mr. Foeller to call Ms. Rossetti (which he does on December 8, 2014 when he leaves a message). On December 9, 2014, Ms. Rossetti returned Mr. Foeller’s call and confirmed that she was Matthew’s court appointed counsellor. Ms. Rossetti advised that Eric had filed a formal complaint against her and wanted Mr. Foeller’s opinion of Eric (which was negative). It is noteworthy that Eric objected to Ms. Rossetti’s appointment as Matthew’s counsellor – even though he had no knowledge that Ms. Rossetti was also Elizabeth’s counsellor. Nevertheless, Eric’s perception that there was bias in Matthew’s counselling process was correct as was Eric’s belief that Mr. Foeller was biased. To this end, Eric’s perception and belief that Ms. Rossetti and Mr. Foeller were biased does not (as suggested by Elizabeth) constitute conduct contrary to Matthew’s best interests; rather, it indicates attention to detail and an unwillingness to be bullied where Matthew’s best interests were concerned.

[39] There are several other incidents recorded in Elizabeth’s journal which provide some insight of the gamesmanship on display during litigation. They are as follows:

a. May 2, 2014 – Elizabeth had called the “firearms safety branch” to discuss “the situation”. She learned that if she lodged a complaint it could result in Eric losing “all of his guns”. Elizabeth’s journal records the following response “I am going to wait to see the response from my offer first”.

b. May 16, 2014 – Elizabeth sent a text intended for her boyfriend Colin, in error to her son Andrew. Elizabeth then explained to Andrew that the text was not meant for him – she was dating but Andrew was not to tell Matthew or Eric.

c. June 14, 2014 –Elizabeth told Matthew about Colin and indicated that Matthew “seemed very happy about knowing where he would be going. He even talked to Colin via text through me and asked him questions directly.”

d. July 18, 2014 –Elizabeth was ill and was hospitalized for an ulcer. Matthew stayed with Colin and attended at the matrimonial home to look after Eric’s dog.

e. July 24, 2014 – Eric asked Matthew where he had been while his mom was in hospital and learns about Colin from Matthew. Elizabeth recorded, “I had prepped Matthew and told him to tell the truth. Even with that, Matthew told me he was extremely uncomfortable telling dad. I told him if he felt that way again that he should just tell his dad to ask me.”

f. September 5, 2014 – Elizabeth met with Mr. Foeller and provided her log, transcripts, affidavits and the draft Memorandum.

g. September 8, 2014 – Mr. Foeller reported he had spoken to Eric and it “was a fairly positive experience. I told him I was in a little bit of shock from that”.

[40] At trial, Elizabeth referenced three primary incidents of Eric’s “controlling or abusive” behavior. The first incident was the “abusive language” and “yelling” referenced above which is alleged to have occurred from September 30, 2012 to September 30, 2014 when Elizabeth vacated the home.

[41] With respect to the abusive language and yelling allegations, Eric admitted that there was a period of time following separation that both parties engaged in abusive language and raised voices. Eric advised that they were both equally guilty of this behaviour and he remains embarrassed by the childishness of their actions. While Eric admits the behaviour, he denies sole responsibility and noted that this behaviour ceased in 2014 and had not been repeated.

[42] The second incident occurred in September 2014, a few days prior to Elizabeth moving to Colin’s home. Eric realized that Elizabeth had been removing personal items from the matrimonial home and grew increasingly upset. On the last day that Elizabeth resided at the matrimonial home, Eric removed the licence plate from the vehicle that Elizabeth utilized.

[43] Eric advised that he removed the licence plate for less than one hour. He was extremely upset that Elizabeth had been removing personal items from the home and wanted her to stop. After Eric removed the licence plate, Elizabeth called her lawyer who called Eric’s lawyer who called Eric. Eric immediately replaced the licence plate. The event lasted approximately an hour.

[44] Elizabeth used this removal of the licence plate as an example of Eric’s behaviour and when cross-examining Eric’s friends to ask if they were “shocked” by Eric’s behaviour in this regard. Only one witness stated they were “shocked”.

[45] The third incident of abuse is alleged to have occurred shortly after Elizabeth vacated the matrimonial home when Elizabeth claimed that Eric changed the locks and locked her out of her home without authority.

[46] Eric denies that he changed the locks but admits that he changed the alarm code for entry to the house. Eric claims that Elizabeth could have entered the home through the garage and is therefore unfairly characterizing him as “abusive” in this instance.

[47] At trial, Elizabeth claimed that Eric’s conduct was contrary to Matthew’s best interests and cited the following examples: (1) OCL and Kawartha Family Court Assessment; (2) KHCAS; (3) Counselling Services through EAP; (4) Peterborough Regional Health Centre (PRHC); and (5) Dr. Dallaire.

[48] Having thoroughly reviewed the evidence, including the notes and letters exchanged between the parties and the internal records produced, I find that each example cited by Elizabeth does not evidence that Eric acted contrary to Matthew’s best interests. Instead, I find that it was Elizabeth whose conduct was contrary to Matthew’s best interests through her persistent and active resistance to include Eric as a co-parent equally involved in the care and welfare of Matthew.

[49] Further, I find that Eric’s refusal to accept the “professional” opinions of the KHCAS Family Support Worker and his refusal to accept Ms. Rossetti as the counsellor appointed for Matthew – to be representative of vigilant parenting and, ultimately, of Matthew’s best interests.

Eric’s Evidence

[50] During Elizabeth’s testimony and while giving evidence himself, Eric was composed and soft spoken. Despite the seriousness of Elizabeth’s allegations, Eric did not speak disparagingly about Elizabeth. Instead, he maintained that she was a good mother and a good person.

[51] Eric advised that he loved Elizabeth and did not wish to separate but he voluntarily moved from the top floor to the basement to accommodate her. He offered a different view of the parties’ post-separation relationship conduct and relationship. Eric claimed that it was Elizabeth who aggressively pursued arguments, raised her voice and then would seek to record his responses and their arguments on her phone.

[52] Eric advised the court that both parties engaged in the use of foul language and raised their voices at one another. Eric stated that he is ashamed of the manner in which he and Elizabeth dealt with one another during the separation period when they both resided in the matrimonial home and regrets their arguments and childish behaviour.

[53] Notwithstanding this behaviour, Eric steadfastly maintained that he does not seek to disrupt the shared parenting regime that has been in place since 2013 since Elizabeth is a good mother who is merely mistaken with respect to what constitutes the best interests of their children, especially Matthew.

Observational Evidence

[54] There were several other witnesses who provided observational evidence regarding the parenting issues including Matthew’s best interests and the proposed parenting scheme.

[55] Elizabeth called Mr. Foeller, Ms. Bonsall who was Matthew’s former daycare provider, and Dr. Ballantyne, Matthew’s former grade three teacher. I discuss the evidence of Mr. Foeller below at some length and for the purposes of this paragraph, merely note that I give very little weight to Mr. Foeller’s testimony.

[56] With respect to the evidence provided by Ms. Bonsall and Dr. Ballantyne, I note that neither witness could provide evidence of any post-2012 parenting conduct. Further, both witnesses’ evidence was limited by the nature of relationship that they shared with the family and neither witness could provide any evidence about the actual day to day parenting that was in place pre-separation or post-2012. They knew about pick up and drop off. They knew that Elizabeth was the contact person for daycare and school during the period they were involved with Matthew. Ms. Bonsall shared a friendly relationship with Eric and knew him by sight and speak. However, Ms. Bonsall’s recollection of parental responsibilities pre-2012 were limited to her notes and records. I did not find the testimony of either Ms. Bonsall or Dr. Ballantyne to be helpful or informative to the issues before the court.

[57] Elizabeth also called a friend who was a teacher at the school. This witness could not provide any information about either of the parties’ parenting skills or their interactions with Matthew. Her evidence was limited to her brief observations of Matthew’s demeanour when she would notice him at recess or lunch hour. I did not find the testimony of this witness to be helpful or informative.

[58] Eric called Matthew’s current teacher, Brian Armstrong, as a witness. Mr. Armstrong testified that Matthew has never expressed fear of his father or indicated that he wished to harm himself. Mr. Armstrong testified that Matthew has a good sense of humour, is funny and occasionally silly in the classroom. He also described accommodations provided by the school to assist with Matthew’s learning process. Mr. Armstrong’s evidence was informative and relevant.

[59] Angela Ronco, Eric’s niece, also testified. Ms. Ronco has been present in the family’s lives for the past 30 years. She shares a close and loving relationship with both children. She formerly thought of Elizabeth as her “sister” and spent many happy times with her including time following the separation. Ms. Ronco was Elizabeth’s confidante and best friend. She stated that she admired the partnership shared between Elizabeth and Eric and marvelled how their parenting skills suited one another. Elizabeth never expressed any fear of Eric or the need for a “safety” plan. Ms. Ronco stated that following separation she often observed Eric and Elizabeth interacting cordially and cooperatively. Ms. Ronco testified that Eric was a gentle and loving parent and that she often witnessed the close and loving relationship shared between Eric and his children. Ms. Ronco provided her evidence clearly and concisely. She did not exaggerate her points nor did she seek to criticize or malign Elizabeth, despite the breakdown in her relationship with Elizabeth. I found Ms. Ronco to be a credible, compelling and reliable witness.

[60] Brenda McKay, a long-time family friend, provided evidence of the parties’ relationship and their relationship with the children. Based on her observations during shared holidays and vacations, Ms. McKay thought that Eric and Elizabeth had a close and loving marriage. Ms. McKay testified that Eric and Elizabeth parented extremely well together. Ms. McKay stated that she witnessed the parties acting affectionately towards each other and has seen Matthew hug his father and spontaneously express his love for him. Following separation, Ms. McKay witnessed Eric and Elizabeth being so respectful and cordial towards each other on New Year’s Eve that an outsider would not have known that they were separated. I found Ms. McKay to be a credible, compelling and reliable witness.

[61] Bill Sarginson provided evidence about Eric’s involvement with Scouts Canada, his relationship with his children and Eric’s relationship with Elizabeth. Very similar to the evidence provided by Ms. Ronco and Ms. McKay, Mr. Sarginson described Eric as a kind and loving father and an attentive husband. Mr. Sarginson never observed Eric losing his temper nor has he ever observed Matthew showing any fear of Eric. Mr. Sarginson praised Eric’s volunteerism and noted that he had never received any complaints from the public or any parents in respect of Eric’s volunteer work with Scouts Canada. Mr. Sarginson was “shocked” that Eric had removed the licence plate from the vehicle as described in Elizabeth’s second “incident of abuse”. To my mind, this “shock” further evidences Eric’s general good behaviour and character. Mr. Sarginson’s evidence was brief but compelling and forthright.

[62] Eric’s friend Mark Ray provided evidence at trial. Mr. Ray’s evidence was very interesting in that he had lived with Eric and Elizabeth for one month during their separation (in September 2013). During this period, Mr. Ray did not observe conflict between them, except on one occasion, when he noted that both parties raised their voices. Mr. Ray never witnessed Elizabeth being fearful of Eric. Mr. Ray participated in activities with Eric and the boys and noted that Matthew was generally in a good mood and interacted well with his father. Again, like the other witnesses called by Eric, I found Mr. Ray to be an honest, straightforward credible witness who provided reliable testimony un-tainted by exaggeration or self-interest.

KHCAS Involvement

[63] The KHCAS became involved with this family in February 2014.

[64] During her testimony Elizabeth claimed to have no idea how the KHCAS became involved. However, based on the KHCAS records and Elizabeth’s journal entries, it is very clear that Elizabeth contacted KHCAS to request their involvement.

[65] On August 28, 2014, Elizabeth telephoned Mr. Foeller and left a message advising that her son Matthew was “afraid” and she had concerns. A telephone interview followed.

[66] On September 3, 2014, Elizabeth contacted another KHCAS employee and advised that she wanted a counsellor. This same day, Elizabeth contacted Mr. Foeller and arranged for a private meeting at her workplace “before anything else happens”.

[67] On September 5, 2014, Mr. Foeller attended at Elizabeth’s office at the Kawartha Pine Ridge District School Board for a private meeting. Elizabeth advised Mr. Foeller that she is “afraid” for Matthew. At that time Elizabeth provided binders of material from her family litigation and mediation including her diary notes and recordings and transcripts of recordings as evidence of alleged “incidents of abuse”. Mr. Foeller took the complete binders with him.

[68] Also on September 5, 2014, Mr. Foeller came to Elizabeth’s home and met privately with Elizabeth, Matthew and Andrew. Although Eric was living at the home at the time, he was away all weekend on a scouting trip. According to Mr. Foeller’s notes “Matthew reports he is not afraid of father”.

[69] At the September 5, 2014 meeting Mr. Foeller discussed rules for separated parents. Matthew noted that his mother had broken the rules by telling him to keep a secret from his father that she had a boyfriend named Colin but that his father knew about Colin now.

[70] Following the home visit (on September 5, 2014) Mr. Foeller left a voice mail message for Eric advising that he had met with his “ex-wife” and children and wants to meet with him to discuss “conflict in the home”.

[71] On September 8, 2014, Eric returned the call advising that he had just returned from a scouting weekend and Mr. Foeller could call him anytime and come for a home visit.

[72] Also on September 8, 2014, Elizabeth wrote a private email to Mr. Foeller thanking him for his involvement and requesting to be informed when he spoke to Eric.

[73] Following receipt of the email, Mr. Foeller telephoned Eric who was at a funeral of a friend. Eric agreed to a home visit that day (September 8, 2014).

[74] Mr. Foeller’s notes indicated that “Eric began talking of court, motions, and conspiratorial plans to involve the KHCAS”. Eric asked about what information was shared with KHCAS. The worker noted that Matthew was friendly to the worker but turned his back on his father. No interview was completed of Matthew in his father’s presence – on this date or at any time.

[75] On September 22, 2014, Elizabeth reported to Mr. Foeller that she was “afraid” of Eric. Elizabeth also reported that Matthew has been saying that he wants to live with her, and not Eric, because she is consistent.

[76] On September 23, 2014, Mr. Foeller attended the home to have a meeting with Eric and Matthew. Elizabeth had already provided Mr. Foeller with an email setting out the parties’ dispute regarding terms for counselling. Mr. Foeller brought with him a consent form for counselling and demanded that Eric sign it. Eric refused to sign the document without his lawyer’s advice. Without advising Eric that he is aware of the counselling issues, Mr. Foeller sided with Elizabeth and directly entered the litigation fray.

[77] Also on September 23, 2014, Elizabeth wrote Mr. Foeller and requested a letter for the court to respond to Eric’s statement that KHCAS has no concerns. Elizabeth suggests KHCAS is involved to “minimize domestic violence in the home”. Mr. Foeller advises that his supervisor would not agree to provide a letter as per Elizabeth’s request – however, a letter is in fact provided which supported Elizabeth’s position.

[78] On September 30, 2014, Elizabeth vacated the matrimonial home and moved in with her new partner Colin. The shared parenting regime between Eric and Elizabeth continued with each parent having their own home to parent.

[79] On October 4, 2014, Elizabeth emailed Mr. Foeller to ask him to meet Matthew at her new home (she had moved to Colin’s home). Elizabeth reports (for the first time) that Matthew is saying he is “afraid”. Elizabeth provides copies of litigation material to Mr. Foeller. Matthew’s comments to Mr. Foeller’s questioning is that his dad is “scary” when he gets mad.

[80] Mr. Foeller determines that he will meet bi-weekly at Elizabeth’s home “due to fear and conflict”.

[81] On October 10, 2014, Mr. Foeller telephones Eric and alleges that Matthew reported that “his father was yelling a lot, and that it scared him…Eric responded that it was ridiculous and that something else was going on.” However, Eric agrees to meet to discuss Matthew’s alleged disclosures of being “afraid of his father and the yelling and negative references to Liz” (both allegations denied by Eric). Later that day, Mr. Foeller followed up with Eric to ensure that their “earlier conversation has not upset Eric to the point where his ability to provide care to Matthew is impacted.” Mr. Foeller also notes that there was “no indication that Eric was angry or yelling prior to the call other than a possible hoarse voice. Eric was calm and polite over the phone”.

[82] On October 10, 2014, at 6:30 p.m. Elizabeth calls Mr. Foeller and reports that Matthew is “scared” and is asking to be picked up.

[83] On October 15, 2014, Elizabeth telephones Mr. Foeller and reports that Matthew is “afraid” and wants to leave his father’s home. Mr. Foeller notes that Elizabeth is distraught.

[84] On October 17, 2014, Elizabeth emails Mr. Foeller to report and discuss bullying issues at school. Elizabeth advises “I worked out strategy with the teacher” when in fact, both parties worked out the strategy with the teacher.

[85] On October 20, 2014, Elizabeth sends an email to Mr. Foeller and discusses that it is difficult to get Matthew to school because he is being bullied. She then states that on the drive to school that Matthew put on one of his favourite songs. Elizabeth attaches partial lyrics to the song “I got no one to talk to it’s like I don’t exist…if I was gone would I be missed”. She reports that she does not want to overreact but that this has “scared her”.

[86] On October 30, 2014, Mr. Foeller meets Matthew at Elizabeth’s home. Elizabeth reports that she has seen an improvement in Matthew and things are better now that she’s moved out. Matthew reports that things were good at school and there is nothing new to report. Mr. Foeller and Elizabeth agreed to talk after the “legal team sorted out their options”.

[87] Oddly, on October 31, 2014, Elizabeth attends at the KHCAS and completes a “Safety Assessment”. The report is alleged to have been completed because a “FSW [Family Services Worker] had met with Elizabeth and Matthew today and Matthew reported that his father yells at him a few times each week and that he’s afraid…Eric denies there are any issues in the home and spent several minutes yelling at a FSW (Foeller). Eric stated that it was okay to yell at FSW because there were no children present in the home.” The result of the assessment was that there were no safety threats identified. The parties were safe. In fact, when interviewed by the After Hours Worker, Matthew told the worker he was comfortable in his father’s home – he had left because he missed his mother rather than being afraid of his father.

[88] On December 9, 2014, Elizabeth reported that she attended at the YWCA to have a “danger assessment” completed. She reported that “18 is considered extreme danger” and she reports to have scored a 25. Elizabeth “fears escalation due to the content in Eric’s emails and texts”. She believes “the tone has changed and fears things may soon get worse". Liz reports that “YWCA staff have warned her that Eric may use the children to hurt her”.

[89] On December 9, 2014, Mr. Foeller reported that he had spoken to Matthew’s court appointed counselor, Ms. Rossetti. Ms. Rossetti reported that Eric called to complain about not being involved in the counselling sessions. The complaints have been made to progressively higher levels. According to Mr. Foeller, Ms. Rossetti “reports that Matthew expresses fear of Eric and anxiety about his dad’s yelling…asked what the agency’s position is on Eric being involved in the counselling sessions…I told the counsellor that my experience of Eric is that he is an angry guy who will likely file more complaints if he is not granted his requests and suggested to the counselor that Eric’s complaints should not impact Matthew’s counselling.”

[90] On January 6, 2015, Elizabeth wrote Mr. Foeller to advise that she has met with the Women’s Health Centre and they have done a full violence report. Nurse Mary Waters was going to call Mr. Foeller for his input.

[91] On January 9, 2015, Mr. Foeller telephoned Eric to disclose that Matthew was still reporting fear and sadness in relation to his yelling. Eric responded that the accusations were untruthful and ridiculous. He suggested that Matthew was being coached by his mother. Eric added that his older son Andrew would also think the allegations were ridiculous. Mr. Foeller notes that he “spent some time holding the phone away from my ear so that Eric’s volume wasn’t uncomfortable”. The notes state that Eric continued “to lambast me with criticisms about being biased, not digging deep enough for information, being used as a tool, making up accusations to remain involved with the family, ignoring instructions from his lawyer to stop involvement and other similar complaints”. Mr. Foeller then proceeded to advise that he was only calling to relay information shared by his son. He requested that Eric consider the fact that his son asked him to talk to his father about the yelling because he is afraid to do so on his own. Eric stated that his lawyer was going to enjoy hearing that he (Mr. Foeller) was still meeting with Matthew. Mr. Foeller noted that he told Eric that he “appreciated him taking the time to speak with me, stated that I hoped that he would consider the information shared with him for the benefit of his son and ended the call”.

[92] On January 15, 2015, Mr. Foeller drove to Elizabeth and Colin’s home and met with Elizabeth and Matthew and Colin. His notes from that visit are as follows:

Matthew reports that things are good at both homes. Matthew reports no concerns at his mom’s. Matthew reports that Eric is not yelling at him but he still overhears his father yelling at someone…He appears to be more interested in other subjects than discussing the events at his father’s home…Matthew seemed to indicate that most of the time he spends with his father is positive and it’s only when he overhears his father yelling that he feels upset. Matthew reports that he hasn’t told his father how he feels...I explained to Matthew that I spoke to his father about how Matthew continues to overhear yelling but I wasn’t sure of the outcome…Matthew does not say to me that he doesn’t want to visit his father. Matthew did not report any fear of his father. It must constantly be asked how much of Matthew’s report is his own feelings and how much he is influenced by his mother’s fear for him when he’s on access…Matthew has dyed his hair a dark colour. Liz had reported that Matthew asked to dye his hair to look more like Colin but Matthew denied any link when asked”. [Emphasis added]

As for Mr. Foeller’s meeting with Elizabeth, she reported fully on the state of the litigation including financial issues: “she has stated to the children that Eric needs help and has pointed out that everyone but Eric is in counseling”. [Emphasis added]

[93] On February 27, 2015, Elizabeth reported to KHCAS that Eric is moving out of the matrimonial home on March 11, 2015. She is concerned that Eric will not tell her where he is going. “She is wondering if he is thinking of running with the boys”. Elizabeth notes that she has been working with Mr. Foeller since last summer and “he is aware of things that have been going on. He has her logs of incidents of abuse…”

[94] On March 26, 2015, Elizabeth telephoned Mr. Foeller and reported that Matthew had “previously stated, “I want to kill myself,” and had been pulling on his hair”. I note this allegation was never disclosed to Mr. Foeller previously despite the counselling sessions, email exchanges, texts and telephone calls. On this same date, Mr. Foeller advised Elizabeth that there was a need to close the file as “Eric has agreed to counseling service for Matthew there is no longer identified child protection concern”.

[95] On December 8, 2015, Elizabeth sent an email to Mr. Foeller updating him on the status of the trial and advising that “Justice Woodley is presiding over my trial. I was on the stand for 3 days. We were brought in on Friday and she has halted the trial and held it over for the May sittings. She was very concerned with Matthew and ordered that Matthew attend Dr. Wynd to get the help that he needs and to also continue with Peterborough Youth Services. This will also allow Dr. Wynd to provide recommendations to the court...” Elizabeth advised that she may need him as a witness in May. By a subsequent email Mr. Foeller advised that he had no objection testifying at trial but will require that a subpoena be served upon him.

Evidence of Mr. Andrew Foeller – KHCAS Family Services Worker

[96] Mr. Foeller did attend at the trial of the matter to provide evidence in response to Elizabeth’s subpoena. It was clear from the testimony of Elizabeth and Mr. Foeller that they admire each other and have established a close bond that might be described as friendship. Mr. Foeller brought his notes to the trial – they had not been disclosed previously. A copy of the notes was provided to counsel and the court.

[97] Based on the notes and records produced by Mr. Foeller, the following is a quick summary of the contact between Mr. Foeller and the parties:

a. Private emails and text messages: 30 private emails and texts between Mr. Foeller and Elizabeth; and 0 between Mr. Foeller and Eric;

b. Private meetings with the parties: 8 meetings with Elizabeth including a meeting with her new partner Colin (Sept 5/14 – Mar 5/15) combined with interviews/counselling sessions with Matthew; and 2 meetings with Eric at the matrimonial home while Elizabeth was home with 0 interviews/counselling sessions with Matthew while Eric was home (Sept 8/14 and Sept 23/14); and

c. Telephone conversations: 11 with Elizabeth and 5 with Eric (to set up meetings or to share Mr. Foeller’s concerns about Eric).

[98] Mr. Foeller clearly did not like Eric. In fact, at one point in his testimony Mr. Foeller described Eric as “terrible”. Mr. Foeller’s opinion of Eric seemed to be based primarily on Elizabeth’s interviews and disclosure as well as a belief that Eric was more concerned with litigation than his children’s health.

[99] I find that Mr. Foeller’s belief that Eric’s focus was the litigation and not the children was unfounded. Having reviewed Mr. Foeller’s notes and records it is very clear that it was Elizabeth who: (i) initiated the involvement of KHCAS and claimed to not know who contacted KHCAS; (ii) requested and was granted a private pre-meeting with Mr. Foeller at her work office; (iii) fully discussed the litigation and her allegations of alleged “abuse” with Mr. Foeller prior to KHCAS involvement and throughout his involvement; (iv) provided Mr. Foeller and KHCAS with “binders” of litigation material including her self-made diary, descriptions of incidents of “abuse”, and transcripts of recordings at her first private meeting with Mr. Foeller without disclosing the production of these materials to Eric; and (v) provided ongoing numerous private emails, text messages, telephone messages and telephone calls with updates about the litigation, court orders, requests for appointment of the OCL and even the identity of the judge to hear the trial throughout the proceeding.

[100] Eric did not provide any litigation material to Mr. Foeller or KHCAS nor did he attempt to discuss the details of the litigation with Mr. Foeller or the KHCAS. Eric legitimately queried why KHCAS and Mr. Foeller continued to have ongoing involvement with their family when it was not warranted. Eric was very correct to be concerned with the independence of the process. It is my view that the KHCAS involvement was tainted and biased throughout and I give very little weight to either the testimony or personal comments and conclusions contained in the notes and records of Mr. Foeller with respect to this matter.

[101] As is evident from the above summary, no witness provided any independent corroboration of Elizabeth’s claims that Eric was abusive and controlling, either during their marriage or following separation. Several witnesses did provide contradictory evidence concerning Elizabeth and Eric’s relationship, both during their marriage and following separation. The independent evidence presented described Eric as a kind person, a loving and supportive spouse and father, a dedicated citizen, coach and volunteer who did not exhibit anger issues, or abusive or controlling behaviour.

[102] Elizabeth’s allegations of abuse and domestic violence were simply not supported by any independent evidence. Further, any documents or reports outlining Matthew’s recollection of domestic violence or abusive behaviour were based on information reported by Elizabeth.

Concerns for Matthew - Suicidal Ideations and Self-Harm

[103] Elizabeth took Matthew to the hospital during the litigation. Eric was not directly informed by Elizabeth that Matthew was being hospitalized nor was he informed why Matthew was in hospital.

[104] Elizabeth claimed that Matthew expressed a desire to hurt himself and had “suicidal ideations”. During her testimony Elizabeth occasionally stated that Matthew had “attempted suicide” – but this is clearly incorrect. Hospital records from the most recent visit on February 1, 2016 indicate that Elizabeth took Matthew to the hospital because she believed that he had “suicidal ideations”.

[105] The admission note prepared by Dr. Adam Enchin does not support Elizabeth’s belief. Dr. Enchin’s note states that: “[Matthew] was quite clear that the [sic] came into the hospital in the context of a family dispute and that he had no plan or intent to hurt himself in any way.”

[106] Matthew was hospitalized from February 1, 2016 to February 3, 2016 then allowed to go home with an “emergency plan”. Matthew returned to the hospital on February 4, 2016 and was discharged.

[107] The hospital notes for this visit include the following statements:

a. At no point during his stay on the unit did he express any suicidal ideation, although he acknowledged having thoughts of this nature in the past.

b. Mental Health Admission Note – He has no previous suicide attempts or no previous self-harm attempts. …He also notes that during the night he has difficulties with nightmares of his parents arguing.

c. His thoughts were coherent and goal-directed. They contained no delusions. They contained no ideations for suicide, homicide or self-harm.

d. When he describes his parents arguing he states those arguments are verbal in nature and have never been physical...Matthew denies any previous history of abuse including physical, sexual or emotional abuse.

[108] In support of Elizabeth’s position that Eric was abusive and Matthew was in crisis, a letter dated February 2, 2016 and written by Registered Nurse Mary Waters, was introduced. The letter is addressed To Whom It May Concern and states that the Domestic Violence Program and the START program had been working with Elizabeth since December 2014. Formal risk assessments and safety planning were completed. The risk assessment tools were forwarded to KHCAS as the team rated her and the family to be at significant risk of harm. The letter details that Elizabeth advised that Matthew was admitted to hospital February 1, 2016 and advised that the purpose of the letter is to inform the reader that an emergency motion regarding custody and access was before the court. The letter further states that if custody is assigned to Elizabeth that this information needs to be conveyed on a priority basis to Elizabeth and the KHCAS worker (Mr. Foeller).

[109] To my knowledge no such emergency motion was before the court in February 2016. Further, Ms. Waters was not called as a witness and there are no notes that would disclose the source or extent of information provided by Elizabeth to Ms. Waters that prompted the writing of the letter. As a result, I attach little, if any, weight to the contents of this letter.

Expert Evidence of Dr. Wynd

[110] Due to allegations raised by Elizabeth in the hiatus between the November and May trial sittings, I became concerned with Matthew’s well-being and advised the parties that whether they consented or not, I would order psychiatric assistance for Matthew.

[111] A motion was brought before me by Elizabeth on December 4, 2015, where I ordered, among other matters, the following:

a. The parties shall request a referral from the child’s pediatrician for Matthew to meet with and get assistance from Dr. Wynd;

b. The parties shall fully cooperate in the process and recommendations of Dr. Wynd’s treatment and/or counselling of Matthew (including executing any required consents or directions for Dr. Wynd to obtain information from any third party);

c. Treatment/recommendations if any, of Dr. Wynd shall be communicated (in writing if Dr. Wynd so chooses) to both parties jointly;

d. All other parenting issues adjourned to the return date of the trial; and

e. Approval as to form and content of the Order by the Respondent is dispensed with.

[112] Dr. Wynd’s initial contact with the family occurred January 28, 2016, following Matthew’s pediatrician’s referral for an assessment.

[113] In preparation for the completion of her written report Dr. Wynd took the following steps, on the dates and times and with the contacts indicated:

a. January 28 – Mother’s documentation received;

b. February 1-4 – PRHC/Admission/Discharge Reports from Dr. Enchin and Dr. Fedal (psychiatrists);

c. February 25 – meeting with Matthew alone;

d. Mar 1 – meeting with mother alone;

e. Mar 3 – meeting with father alone;

f. April 5 – Peterborough Youth Services (PYS) – phone interview with Marissa Barnhart (counsellor);

g. April 8 – PYS – phone interview with Sue Gastle (counsellor);

h. April 12 – meeting with mother alone;

i. April 14 – meeting with father alone;

j. April 19 – telephone conversation with Dr. Dallaire;

k. May 3 – PYS – telephone interview with Sue Gastle.

[114] Dr. Wynd provided two letters (“reports” both dated May 10, 2016) in response to questions posed by each party’s lawyer. The questions and responses were filed as exhibits at trial. Dr. Wynd also attended to provide testimony and was qualified as an expert in child psychiatry at the trial. Dr. Wynd was the only expert witness called at the trial to provide evidence.

[115] Dr. Wynd’s evidence concerning her opinions about Matthew was extremely enlightening as was the fact that Dr. Wynd was called by Eric but not Elizabeth who disagreed with Dr. Wynd’s recommendations.

[116] Dr. Wynd was concerned for Matthew to the extent that the adult issues appeared enmeshed with Matthew’s behaviour. Dr. Wynd is of the opinion that Matthew is not exhibiting active suicidal thoughts or ideations but is reacting to the ongoing stress level and the indecisiveness of the parenting style. She noted that while he does have mild Attention Deficit Hyperactivity Disorder (ADHD) he was also experiencing “reactive anxiety” due to stress. Dr. Wynd noted that ADHD and anxiety are commonly connected to one another.

[117] Dr. Wynd opined that both parents are potentially and directly contributing to Matthew’s reactive behaviour because of unresolved adult issues and the difficulty in providing Matthew the feeling of respective permission to spend time with the other parent.

[118] Dr. Wynd did not criticize Elizabeth for Matthew’s recent hospitalization but noted that it was directly related to extreme stress and not suicidal ideation. On cross-examination Dr. Wynd vehemently stated that Matthew was not suicidal on admission to hospital in February but was admitted due to the adult and family litigation issues as was clearly recorded in the treating psychiatrist’s admission notes.

[119] Dr. Wynd anticipated that Matthew’s stress level will be considerably lower once court issues and parental agreement have been resolved.

[120] Dr. Wynd strongly recommended that Matthew continue with his current counselling at PYS and work towards an appropriate supportive parenting program that lowers the stress level for Matthew, both at home and school. Dr. Wynd opined that Matthew required counselling to “help him develop a style of coping for the high stress level that he is experiencing in the unresolved marital issues.”

[121] Dr. Wynd noted both in her report and in her testimony that “the current status of co-parenting is ideal provided that parents can accept their responsibility to encourage Matthew’s freedom to be involved with each other’s environment.” [Emphasis added.]

[122] Dr. Wynd advised that she stressed to both parents that “it is in Matthew’s best interest to continue his counselling with Ms. Barnhart, but parents as well continue with Ms. Gastle with formulating an effective parenting plan, as I feel that “the co-parenting process is most appropriate to meet Matthew’s overall needs.” [Emphasis added.]

[123] Dr. Wynd testified that Matthew liked being with both parents and the environment in both homes was good. While the parents have different parenting styles, Dr. Wynd did not find Eric’s rule-based parenting style to be objectionable. Dr. Wynd stated that she found no signs of historical abuse in relation to Matthew by either parent.

[124] Dr. Wynd testified that Matthew had no fear of Eric whatsoever and that Matthew needs his mother and father equally. Dr. Wynd stated that the parents need to cooperate and be supportive of the other’s parenting and the child’s right to spend equal time with each parent.

[125] Dr. Wynd was surprised that Matthew had been admitted to hospital following her referral without there being any attempt to contact her. However, Dr. Wynd had reviewed the hospital records, did not feel that urgent intervention was required, and did not see the need to remain involved unless the situation changed. Dr. Wynd was very clearly and firmly of the opinion that the stress level would be much lower once the family law trial was over. Dr. Wynd concluded that “co-parenting is ideal” to meet Matthew’s needs. No amount of careful cross-examination was able to vary Dr. Wynd’s professional medical opinion that co-parenting is in Matthew’s best interests and medically suited to meet Matthew’s needs.

The Credibility and Reliability of Elizabeth and Eric

[126] As to the credibility and reliability of Elizabeth and Eric, I note the following:

a. Elizabeth provided her testimony in an overly emotional manner. She was very quick to criticize Eric and had difficulty controlling her emotions on the witness stand. Following separation, Elizabeth recorded evidence of “abusive incidents” through the use of her journal and through taping and transcripts. Elizabeth did not call any witnesses to support her abuse allegations nor did she report her allegations to her friends, the police or other authorities, or any other person excepting persons associated with Matthew’s care and/or well-being, including Mr. Foeller, Nurse Waters, and the intake recorders at the hospital. Elizabeth did not even report her concerns to Dr. Wynd, who was preparing an assessment of Matthew. With respect to her credibility, it is clear that Elizabeth firmly believes her testimony. She believes that Eric is abusive and controlling, Matthew is in crisis and suicidal, and all blame should be placed on Eric. However, despite Elizabeth’s firm belief in her testimony - I do not accept the substance or facts that support her allegations. As such, I find that even if Elizabeth is deemed to be a credible witness, much of her evidence is unreliable.

b. Eric provided his testimony in a reserved manner. His tone was generally quiet and unaffected. Despite the allegations made against him, he did not disparage Elizabeth and repeated that she was a good mother who wanted the best for her children. Eric admitted that there was a period following separation when his behaviour was childish and argumentative. Eric testified that he was ashamed of this and was regretful for any damage that he may have caused his children or Elizabeth. Eric did not allege that Elizabeth manufactured evidence about abuse or Matthew’s illness to further her case but understood that her beliefs were wrongly but honestly held. Despite Elizabeth’s allegations, no witness testified that Elizabeth experienced any “fear” or “abusive behaviour” at Eric’s hands (excepting Mr. Foeller whose evidence is discussed above). Eric’s witnesses, all of whom were credible, described a kind and loving father who wanted the best for his children. While I understand that “abusive and controlling” behaviour is often hidden and not easily demonstrated or recognized – I do not accept that this behaviour existed in this case. I found Eric to be a credible witness. I found his testimony to be fair, balanced and reliable.

LAW AND ANALYSIS

[Children’s Law Reform Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html), R.S.O. 1990, c. C.12

[127] Section 24(2) of the Children’s Law Reform Act (CLRA) provides a code for the court's consideration of the child's needs and circumstances when determining their best interests.

[128] With respect to s. 24(2) (a), Matthew was reported to share a close bond with both of his parents. Further, the evidence established that Matthew also shared a good relationship with his mother’s partner Colin and his father’s girlfriend Cheryl.

[129] With respect to s. 24(2) (b), Matthew’s views and preferences were ascertained by Dr. Wynd wherein she indicated that Matthew wanted to live with both parents. Matthew’s difficulties are not the shared parenting regime but the parenting pull that he feels as a result of the litigation. As Dr. Wynd noted, it is important that each parent support and encourage the child’s right to live with both parents. In this case that means that Elizabeth has to cease and desist her attempts to obtain primary residence and sole custody. She must recognize that it is in Matthew’s best interests to reside equally with both parents as well as to love and respect both parents. In other words, Elizabeth must recognize that Matthew’s best interests require her to put her personal feelings and opinions of Eric to rest. Elizabeth must support Matthew’s right to reside with his father and respect Eric and Matthew’s right to share a loving relationship separate from her own relationship with Matthew.

[130] With respect to s. 24(2) (c), Matthew has lived with both parents in a shared parenting regime since 2013. Both parents have stable housing and are in stable relationships.

[131] With respect to s. 24(2) (d), it would appear that both parents can provide Matthew with the guidance and education necessary to address any special needs. Both parents are loving and supportive. Both can provide for his physical, educational and emotional needs. Dr. Wynd did not hesitate to recommend joint primary residence and custody of the child. In fact she felt that only joint custody and shared parenting would meet Matthew’s needs. The witnesses were positive in their comments about the mother and the father’s ability to co-parent. The only ingredient that appears to be missing is the desire to co-parent. In this regard, as previously noted, Elizabeth needs to bury her anger and begin co-parenting with Eric for the betterment and health of Matthew.

[132] With respect to s. 24(2) (e), the parties differ on which parenting plan is in Matthew’s best interests. Elizabeth requests sole custody and supervised access for Eric, while Eric seeks joint custody in a shared parenting regime as set out in the Memorandum. Dr. Wynd concluded from her assessment that co-parenting, as reflected in Eric’s plan, is ideal for Matthew’s care and upbringing.

[133] With respect to s. 24(2) (f), the permanence and stability of the two family units is not an issue. Both parties have stable partners and are in committed relationships. However, even without evidence of any permanent relationships, each party is strong enough to parent separately and without assistance.

[134] With respect to s. 24(2) (g), both parties need communication counselling which is in place with Sue Gastle and should continue. As well, both parents could benefit from continued individual counselling to deal with the effect and fall out of the litigation.

[135] The issue of violence and abuse is addressed in s. 24(4) of the CLRA which provides that:

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

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

(c) a member of the person’s household; or

(d) any child.

[136] Further, s. 24(5) states that anything done in self-defence or to protect another person shall not be considered violence or abuse.

[137] Despite the allegations raised by Elizabeth, I find that there is no evidence of any physical or emotional punishment or abuse by Eric against the child. Though Elizabeth indicated that Eric physically and emotionally abused her, she did not provide any corroborative evidence of such abuse. With respect to the physical abuse, the only incident recounted was alleged to have occurred prior to their marriage. However, I did not believe her testimony in this regard. With respect to emotional abuse, Elizabeth referred to three incidents of abuse which I have discussed in detail above. Despite Elizabeth’s testimony, I do not find that only Eric participated in use of abusive language and yelling. Both parties participated and both equally share the burden of their actions. As for the two further alleged incidents of emotional abuse, I do not accept them as being demonstrative of emotional abuse. Further, although not raised by Eric, the evidence established that Elizabeth began dating another man while residing at the home, told her children of her new boyfriend, and advised them to keep the secret from Eric. These activities could be described as evidencing emotional abuse. However, I have no doubt that any harm suffered was unintentionally inflicted. Both Elizabeth and Eric present as kind, supportive and caring individuals. However, it appears that the circumstances surrounding the breakdown of their marriage caused them to temporarily lose sight of what was best for their family. I believe that each has or will soon restore their moral compasses and continue their lives as amicable co-parents. On the evidence, I cannot find that Eric was physically or emotionally abusive to Elizabeth or that Elizabeth’s actions constituted intentional emotional abuse.

Joint Custody

[138] Elizabeth’s position is that she should be awarded sole custody of the child, whereas Eric seeks joint custody in a shared parenting regime in accordance with the parties’ Memorandum negotiated at mediation.

[139] Per Zelinski J. in Cook v. Sacco, 2005 CanLII 28535 (ON SC), at para. 84, “considerations of the propriety of the joint custody orders have changed significantly since Baker v. Baker.”

[140] Further, citing Salhany J. in Lewis v. Lewis (1988), 1988 CanLII 4523 (ON SC), 18 R.F.L. (3d) 97 (Ont. Dist. Ct.), at paras. 6-7:

Judicial thinking has proceeded upon the assumption that joint custody cannot work unless the parties are prepared to cooperate fully in every aspect of child rearing.

Fortunately, that attitude has been overridden by legislative enactment. For example, section 16(4) of the Divorce Act provides:

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

Less specific is the Children's Law Reform Act, R.S.O. 1980 c. 68. Section 20(1) simply provides that:

(1) Except as otherwise provided in this Part, the father and the mother are equally entitled to custody of the child.

[141] Since the 1990s, decisions dealing with custody have found significant support for joint custody arrangements, as in Mol v. Mol (1997), 40 O.T.C. 1 (Ont. Gen. Div.), based on a “parallel parenting” model.

[142] On January 31, 2005, the Ontario Court of Appeal released two decisions dealing with the issue of joint custody.

[143] In Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), the court reversed the joint custody order. In that case the child was two and a half years old at the time of the separation. The parties attended counselling, which was unsuccessful as a result of the “uncontrollable invective” exchanged between the parties. Further, there was little evidence that the father had a plan of care for the child. As well, the child had not spent any nights alone with the father.

[144] On the other hand, in Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA), the court dismissed the appeal with respect to the issue of joint custody. The father of three children was actively involved in the children’s school, activities and appointments. The court also cited several examples of the parents’ cooperation when the real interests of the children were at stake.

[145] In joint custody cases, courts have determined that the level of conflict along with the parents’ ability to competently care for the child must be examined, even where there is a “pattern of considerable conflict”: see Ursic v. Ursic, 2006 CanLII 18349 (ON CA). In Ursic v. Ursic, the Court of Appeal upheld a joint custody order, citing that the parties largely cooperated on major decisions affecting the child. The court went on to recognize at para. 26 that even where there is conflict, “difficulty communicating or reaching a consensus on the child’s upbringing,” that a joint custody order under a parallel parenting scheme was appropriate.

[146] Each party relied on cases after Ladisa v. Ladisa, which supported their respective positions, for and against joint custody. Each case is distinguished by the unique facts of this case and provided little guidance to this court, other than a review of the primary principles of the law of custody, namely:

a. The best interests of the child as per the CLRA.

b. Maximum contact between the child and both parents, in assessing the best interests of the child: s. 16(10) and s. 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). Although the Divorce Act is not the governing legislation in this case, the principle of maximum contact is supported in case law, social science scholarship and Dr. Wynd’s assessment. Nevertheless, maximum contact does not create a presumption of shared parenting.

[147] In this case, each parent is relatively competent, but they have had disagreements over issues of health, treatment plans and house rules. The evidence does not establish physical abuse between the parties or towards the child. Each parent is provoked easily when confronted by the other’s intransigence on a particular issue. Each parent desires control over decision making.

[148] Yet, in this case, there is also a great deal of evidence that the parents have the ability to cooperate and communicate. The court was provided with evidence that praised the ability of these parties to co-parent, even in the period following their separation. The parties have utilized a communication book and are able to exchange information via e-mail correspondence on issues affecting the child. Although the parties cannot effectively communicate face to face at the moment, this is not an impediment to effective communication in today’s world. Parents can exchange points of view and positions via e-mail, Skype, or parenting scheduling programmes such as Our Family Wizard.

[149] Elizabeth’s attempt to raise the spectre of Eric’s ineffective communication as a bar to joint custody ignores the fact that these parents do, in certain respects, communicate. As well, they come to agreements on some issues – for example, attendance at counselling, the appointment of Dr. Wynd, and the importance of their child’s education.

[150] As reflected in Ladisa v. Ladisa, it is important that: the parties already have a parenting plan in place for the child, the father has a history of involvement in the education, health and extra-curricular activities of the child; and the child has been in a shared parenting regime since separation or at least since June 2013.

[151] Given both parties need to have some control over issues affecting the child, and yet require a parenting environment which minimizes incidents of conflict, a shared parenting arrangement would be appropriate in these circumstances.

[152] In “Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans” (2008) 46 Fam. Ct. Rev., 500 at 516-517, Peter G. Jaffe et al state that:

[P]parallel parenting is an arrangement where each parent is involved in the children’s lives, but the relationship is structured to minimize contact between the parents and protect the children from exposure to ongoing parental conflict, typically by having each parent make day-to-day decisions independently of each other when the children are in his or her care, and responsibility for major decisions (e.g., education) is assigned to one parent. There is limited flexibility in a parallel parenting arrangement, and the parents typically abide by a very structured and detailed schedule...The legal framework for parallel parenting may be joint or sole legal and physical custody...The time-share arrangement, however, should not be one that divides the child’s world into two spheres that do not relate to one another or unduly disrupts the child’s continuity in schooling, social, and extracurricular activities.

[153] To minimize conflict arising from different views on parenting, an order that is in the best interests of the child may be structured to eliminate such conflict, particularly where the child has a strong attachment to both parents.

[154] The mere suggestion of ineffective communication cannot by itself rebut joint custody of the child, if, on the facts, it is necessary to protect the child’s uninterrupted significant involvement with both parents. In the face of an undisputed attempt by Elizabeth to minimize the involvement of Eric in the life of the child, and given that the child wants to live with both parents equally, and given that the father’s involvement with the child has been extensive, preservation of each parent’s relationship with the child can only be maintained through a joint parenting scheme, even though the parents are in conflict.

[155] Overall, Elizabeth is not capable of setting aside her animosity towards Eric. Further, while Eric accepts partial responsibility for the conflict, Elizabeth places all blame on him.

[156] But, this conflict can be minimized, if not eliminated, thorough a parenting plan, which provides both parents with a communication and decision-making regime that maintains maximum contact with the child and minimal physical contact between the parents, and provides both with ultimate decision making power over an aspect of parenting. Luckily, the parties have already negotiated an agreement through the Memorandum which has been in effect since 2013.

Determination of Issues

[157] For the reasons stated above, I find that Matthew’s best interests dictate that the shared parenting arrangement as established by the Memorandum dated December 3, 2012 shall continue to govern the parenting regime which shall be shared equal parenting with joint custody. In particular, the issues are determined as follows:

a. The Applicant and Respondent should have joint custody of Matthew.

b. Matthew should reside equally with both parents in a shared custody arrangement.

c. Access should occur as already agreed to by the parties and as outlined in the Memorandum.

d. Matthew should be engaged in those services as outlined by Dr. Wynd in her reports dated May 10, 2016, as necessarily adjusted in accordance with the recommendations of Matthew’s counsellors and medical professionals.

ORDER RE: PARENTING

[158] I hereby make the following final Order regarding custody and parenting:

CUSTODY OF MATTHEW

A. Elizabeth and Eric shall enjoy joint custody of Matthew and shall cooperate with one another to ensure that Matthew’s bests interests are served as follows:

1. The parties will attempt to consult and discuss with each other regarding any major decision regarding Matthew’s health or education. In the event there is a dispute or disagreement regarding a decision, the parties shall retain Dorothy Ryan (or such other person as otherwise may be agreed upon or determined) as Parenting Co-ordinator, to assist the parties and to mediate any matters, subject to review by a court on terms to be discussed by the parties. Each party will bear his or her own costs of the parenting coordination.

2. Both parties are equally entitled to information about Matthew from all third-party sources including Matthew’s school, doctor, hospitals, therapist, and any other third party provider.

Current Major Decisions that Remain in Place

3. The following services, supports and enrollments shall remain in place for Matthew, subject only to written agreement otherwise or determination otherwise by the parenting coordinator as set out herein:

a. Matthew shall continue to be rostered with Dr. Jamieson as his pediatrician and primary care physician. Once Matthew turns 16, the parties may enrol Matthew with a general practitioner to whom he shall be transitioned over the next couple years.

b. Matthew shall continue to be followed by Dr. Wynd, if she feels such continued care by her is warranted, and the parties shall follow her recommendations and direction with respect to any treatment for Matthew;

c. Matthew shall continue to be engaged with PYS and shall continue with his counsellor Marisa. The parties shall follow her recommendations and direction with respect to any treatment for Matthew.

d. Matthew shall continue to attend James Strathy Public School. Both parents shall continue to work with the school and Matthew's teachers for his benefit.

e. The parties shall continue to work with Sue Gastle at PYS on their communication for Matthew's benefit.

4. Neither party shall represent to any organization or service provider that he or she is the "primary parent" and shall provide a copy of this order if necessary.

Examples of Major Decisions

5. For some clarity, the following is a non-exhaustive list of major decisions that require resort to the decision-making framework as set out below:

a. Changes to Matthew's vital statistics, including his name;

b. The enrollment of Matthew with any medical or health provider in relation to any medical or mental health issue affecting Matthew;

c. A proposed change of Matthew's school;

d. Any decision relating to prescription drugs for Matthew; and

e. Any health-related decision for Matthew that involves a major surgery, procedure, or urgent treatment for any future mental health concern. For clarity, this does not prevent either parent from seeking emergency care for Matthew if that is necessary, so long as the other parent is notified by the admitting parent immediately of the emergency care sought and the reason for same.

6. In the event of a material event with respect to Matthew’s health or well-being, the party aware of this event shall immediately notify the other and both parents shall equally deal with the material event in Matthew’s best interests.

7. Neither party shall enrol Matthew with a medical or health-related third party without the consent of the other and, consistent with paragraph 2 above, both parents shall be equal participants in any process, program or third-party treatment of Matthew.

8. Neither party shall make any unilateral changes to the children’s vital information, or contact information with third parties, and both parties shall ensure both parents are listed equally as contacts with schools, doctors, and other third party providers.

9. Matthew shall continue with counselling with PYS. Both parties shall commit to cooperating with PYS on their communication skills and working towards Matthew’s best interests.

10. The parties themselves shall continue to work with Sue Gastle to improve their communication.

Communication

11. The parties shall use Our Family Wizard for all communication regarding Matthew and shall bear their own costs for use of the program.

12. In the event of an emergency, such as Matthew's admittance to a hospital, the parties shall use text message and/or phone and shall communicate clearly the reason for the admittance, the date and time, and the location of the admittance.

Dispute Resolution Framework

13. The following framework shall be used to determine any major decision affecting Matthew's health, education or other applicable matter.

STEP 1: The parties will discuss the matter through a civil and informed exchange through Our Family Wizard and attempt to agree on the decision through respectful dialogue.

STEP 2: Further engage Sue Gastle at PYS to assist with communicating each party's position to the other and providing input as to how compromise might be reached. Sue Gastle shall be provided with a copy of this order to help her understand her role.

STEP 3: Utilize the services of a Parent Co-ordinator (PC) as set out herein, who shall mediate the issues.

STEP 4: Return the matter to court in the event mediation is unsuccessful and/or no decision or agreement is reached.

Parenting Coordinator

14. The parties agree that they will retain the services of a PC within 60 days following the failure of Step 1 and Step 2 above to resolve a dispute between them.

15. The PC's engagement shall have the following parameters:

i) The PC shall attempt to mediate the dispute for as long as the PC thinks that process has value, but shall to the extent possible shall pre-judge the matter which the PC may then have to decide on;

ii) The PC is not entitled to vary the terms of the order, but rather, to resolve dispute arising from the order;

iii) Notwithstanding (i) and (ii) above, the PC may order minor variances of the parenting plan herein and extra-curricular activities for special requests on agreement of the parties;

iv) The PC may arbitrate disputes over major decisions for Matthew if both parties agree to this process in writing, subject to a full right of appeal to a court of competent jurisdiction on questions of both fact and law; and

v) The PC shall not have any power to materially change the parenting time in this Order.

The parties shall inquire if Dorothy Ryan is available and willing to act as their PC. If the parties cannot agree on a mutually agreeable PC within the time period referenced above, the parties may request the court to assist to select a PC.

16. At the time the PC is retained, the parties shall execute a retainer agreement and provide the PC’s initial retainer, and if the parties agree in writing the retainer agreement may include language that the PC shall have arbitrative powers pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17.

PRIMARY RESIDENCE OF MATTHEW

B. The principal residence of Matthew shall be shared by both parties in accordance with the following schedule, as outlined by the Memorandum reached between the parties with necessary modifications to reflect the current circumstances of the parties as follows:

Current Parenting Schedule to Remain in Place

17. The temporary without prejudice Order of Justice Sosna dated June 13, 2014, shall continue on a final basis and each week Matthew will spend from after school on Monday through to the end of the school day on Wednesday in Eric's care, and from Wednesday after school through to end of the school day on Friday in Elizabeth's care. Matthew will spend the weekends with both parents on an alternating weekend schedule, from Friday after school through to Monday morning.

Special Occasion Parenting Time

18. Summer Access – The normal time sharing schedule shall apply during the summer vacation period save and except the following:

a. Canada Day - Matthew shall be in Eric’s care and shall remain for an extended vacation period, to include two full weeks.

b. Civic Long Weekend - Matthew shall be in Elizabeth’s care and shall remain for an extended vacation extended vacation period, to include two full weeks.

c. If either party wishes to exercise additional extended vacation time, they shall do so on mutual agreement. They shall provide reasonable notice to the other of any requests for additional time and such requests shall not be unreasonably denied.

19. Christmas – The parties shall share the Christmas vacation period to be divided into three block periods and shared equally pursuant to the following schedule:

a. Block A shall begin the afternoon that Matthew is released from the school break, until Christmas Day at 2:00 p.m.

b. Block B shall be from Christmas Day at 2:00 p.m. to New Year’s Day at 2:00 p.m.

c. Block C shall be from New Year’s Day at 2:00 p.m. until the morning Matthew returns to school.

Blocks A and C equal Block B. Elizabeth shall have Matthew in her care for Blocks A and C on odd numbered years and shall have Matthew in her care for Block B on even numbered years. Eric shall have Matthew in his care for Blocks A and C on even numbered years and shall have Matthew for Block B on odd numbered years.

20. Thanksgiving and Easter - Matthew will spend Thanksgiving weekends (from Friday after school through to Wednesday at the end of the school day unless agreed otherwise) with Eric on odd numbered years and will spend Easter weekends (from Thursday after school through to Wednesday at the end of the school day unless agreed to otherwise) with the Eric on even numbered years.

21. Thanksgiving and Easter - Matthew will spend Thanksgiving weekend (from Wednesday after school through to Monday at approximately 7:00 p.m. unless otherwise agreed) with Elizabeth on even numbered years and will spend Easter (from Wednesday after school through to Monday at approximately 7:00 p.m. unless otherwise agreed) with Elizabeth on odd numbered years.

22. Victoria Day and Labour Day - The parties agree that Matthew will spend Victoria Day weekend (from Wednesday after school through to Monday at approximately 7:00 p.m. unless otherwise agreed) with Elizabeth each year, and Labour Day weekend (Friday after school through to Wednesday at the end of the school day unless the parties agree otherwise) with Eric each year.

23. Family Day - The parties agree that Family day weekend will alternate on annual basis, with Matthew spending Family day weekend (Friday after school through to Monday at 7:00 p.m., unless otherwise agreed. The normal time sharing schedule preceding Friday after school and following Monday at 7:00 p.m. will remain in place), with Eric on odd numbered years and with Elizabeth on even numbered years.

24. Consecutive Weekends – In the event that Matthew is scheduled to spend three consecutive weekends with the same parent, due to any special occasion/long weekend, the regular schedule shall be altered so that Matthew spends two consecutive weekends with each parent rather than three weekends with one parent. That is, if the parent scheduled to have Matthew for a special occasion/long weekend as detailed herein, also has their regular weekend access the weekend before and after the special occasion/long weekend, they shall forego one of the regular scheduled weekends.

25. Mother’s Day and Father’s Day – If Matthew is not regularly scheduled to be with Elizabeth on Mother’s Day pursuant to the regular weekend rotation; Matthew shall spend Saturday from 7:00 p.m. to Sunday at 7:00 p.m. with Elizabeth. If Matthew is not regularly scheduled to be with Eric on Father’s Day pursuant to the regular weekend rotation, Matthew shall spend Saturday from 7:00 p.m. to Sunday at 7:00 p.m. with Eric.

26. March Break – The parties shall share the March Break equally pursuant to the regular time sharing agreement.

27. Matthew’s Birthdays –Elizabeth and Eric shall each have an opportunity to spend time with Matthew on his birthday regardless of the regular time sharing schedule. Specifically, unless otherwise agreed, the parent who is not providing care on that day shall have Matthew from after school until 6:00 p.m. Matthew will have dinner with the parent in whose care he is scheduled to be with. If the birthday falls on a Saturday or Sunday, Matthew will spend 12:00 noon to 6:00 p.m. with the non-residential parent, with the understanding that the birthday dinner will be with the residential parent. Matthew’s wishes shall supersede this arrangement and his wishes will be followed.

28. The parties shall endeavor to maintain the regular and special occasion time sharing schedule set out herein. Either party may request a change in the regular and special occasion time sharing schedule and shall provide the other parent with as much notice as possible of such requests. Such requests shall not be unreasonably denied. If no agreement can be reached as to any requested changes, the parties agree that the schedule detailed herein shall remain in place.

29. The parties will attempt to consult and discuss with each other regarding any major decision regarding Matthew’s health or education. In the event there is a dispute or disagreement regarding a decision, the parties shall retain Dorothy Ryan (or such other person as may be agreed upon and failing agreement as determined by the court) as parenting coordinator who shall mediate the matter and if the parties agree in writing shall also have arbitral powers to determine the matter, subject to review by a court. Each party will bear his or her own costs of the parenting coordination.

30. Both parties are equally entitled to information about Matthew from all third-party sources including from Matthew’s school, doctor, hospitals he has been treated, therapist, and any other third party provider.

Joint Sit Down With Matthew

31. Within two weeks of the date of this Order, the parties shall jointly sit down with Matthew, with the assistance of Marisa and Sue Gastle if necessary, and shall jointly convey to Matthew the following information in a suitable manner for Matthew given his age and stage of development:

a. The court has made a decision that joint custody and shared parenting is best for him;

b. There shall be no more arguments or disagreements about Matthew, custody or joint parenting. Matthew is to understand that the arguing is over; and

c. Each parent shall encourage him to enjoy a close, loving and respectful relationship with the other parent.

GENERAL PROVISIONS

Neither Parent Shall Denigrate the Other

32. Neither parent shall denigrate the other in the presence of the child or permit others to denigrate the other parent in the presence of the child, including questioning the child about the parenting and lifestyle of the other, speaking negatively about the other, demonstrating by word or action any anger or disapproval of the other or acting in such a way as to undermine or lower the opinion of the child of the other or the other's friends and family.

Financial Issues

33. If the financial issues are not resolved by the parties within 45 days after release of this Judgment then the Applicant can serve and file submissions regarding the property and financial issues within 60 days after the release of this Judgment, with the Respondent serving and filing a Response within 75 days after release of this Judgment and the Applicant serving and filing any Reply within 90 days after release of this Judgment.

Costs

34. The issue of costs shall be reserved to the final judgment regarding property issues. If property issues are resolved and the only issue that remains is costs, then each can serve on the other and provide the Court with a 4 page, typed, double-spaced costs submission, together with Offers to Settle and Bill of Costs, within 60 days of the release of the Judgment.

35. Finally, I would like to thank counsel for their sensitive and thoughtful approach to the advocacy of this difficult matter.

Justice S.J. Woodley

Released: December 1, 2016