Court File and Parties

NEWMARKET COURT FILE NO.: FC-14-45047-00 DATE: 20170719 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

J. Y. Applicant – and – L. F.-T. Respondent

Counsel: C. Marchetti, for the Applicant R. T. Pecus, for the Respondent

HEARD: February 21, 27, 28, 2017; March 1, 2, 3, 2017 and May 15, 16, 17, 18, 19, 20, 23, 29, 2017

Reasons for Decision

Part One – Final Orders for Naming, Joint Custody and Parenting Schedule

Preface

[1] In the early emotional chaos of separation, it is not uncommon for a primary care parent to resist, or otherwise attempt to control access. When such conduct proves persistent and unjustified it is characterized as negative gatekeeping.

[2] Gatekeeping tends to abate over time. As parents transition from intimate relationships to co-parenting relationships, most gain appreciation for the challenges faced by their child, who must grow up between two homes. Thoughtful parents wish to ease those challenges by making the road between their homes easier to travel.

[3] When gatekeeping does not subside, the excluded parent either exits the child’s life, or, presses for more time. Both responses carry the potential for harm. Is the child to be effectively abandoned, or, become the trophy to be won in an adult tug of war? [1]

[4] In the ordinary course, this case ought not to have fallen into such extremes. The father seeks more time – but not a great deal more, and certainly nothing out of the ordinary. He does not ask for a custody reversal. He has been paying child support.

[5] But this is an extreme case. The mother has responded to the father’s Application for joint custody and normative access by alleging sexual abuse of their daughter. She is convinced, or wishes to convince others – despite all the evidence to the contrary – that the father is a danger to their daughter.

[6] Two sets of allegations investigated by the York Regional Police and Toronto Police, Sex Crimes Unit have been closed as non-criminal events. York Region Child and Family Services (“the CAS”) has had an open file since January 2015 and has never verified any risk of harm, but for harm arising from adult conflict. The child’s life-long pediatrician has not identified any signs of abuse.

[7] These conclusions have not calmed the mother. Rather, they have escalated her fears that no one is listening, that she is not adequately expressing herself; and that more must be said and done to protect her daughter.

[8] Nothing is more disturbing than child sexual abuse. Nothing is more evidentiary problematic. It is a hidden crime, exacted on the most vulnerable of our society. No matter the circumstances, allegations of abuse must be carefully assessed.

[9] Much time has been spent hearing, reviewing and weighing the evidence presented in this 14-day trial. Ultimately, I find the allegations of sexual abuse to be false. The child has made concerning statements and displayed certain sexualized behaviours. But in viewing the evidence as a whole, those statements and actions only make sense as reiterations, often embellished, of what she has heard, or has been taught since birth, or exhibits to meet the expectations of her primary caregiver.

[10] In these Reasons I determine that it is in the child’s best interests to normalize her relationship with her father as quickly as possible. She has spent all the time with her father permitted by the current access Order. Clinical observations show him to be a fitting caregiver. She is happy in his care, attached and safe. An expansion of that Order is long overdue. It is time for the father-daughter relationship to thrive.

Introduction

[11] The mother seeks an order for sole custody and for supervised access of the parties’ six year old daughter; “G. [2] ”. She proposes that the length and frequency of access be determined by the supervising centre or the agency’s schedule. The mother’s plan would have their daughter seeing much less of her father, at a greater cost and always with another adult present. She asks for this order even if there is no finding of abuse.

[12] The applicant father seeks more time with his daughter, who is his only child. She is presently in his care twice a week from after school until 7:00 p.m., and on alternating Saturdays from 10:00 to 4:00. The father seeks an order that his parenting time be stepped up within four phases over five months, with an end schedule of alternating weekends and weeknights.

[13] G. has never had an overnight with her Dad. Not one in six years.

[14] G. was not a planned child. She was conceived near the end of a nine year on-again, off-again relationship conducted outside the mother’s marriage. The mother has fond memories of those years. At trial she related how much she looked forward to, and dressed up for weekend outings. She spoke of the break that it gave her from onerous family and business responsibilities. He was “fun” and had a “larger than life personality.”

[15] When the relationship was discovered, the mother and her husband more or less separated amicably. They remain married to this day. The mother cites certain advantages to remaining married.

[16] Since they became accidental parents, the mother identifies nothing positive about the father. In the early years she ignored his concerns for G., often refused to reply to communications, and was frustrated by his lack of immediate replies to – and agreement with - her concerns. In later years they ceased communication altogether.

[17] At one point in her testimony she referred to the father as a “wallet” who she had previously tolerated because he paid for things. She stated that an e-mail was probably not his because “he’s not that good a writer.” She refused to acknowledge that he had a relationship with her older two children despite them having travelled together. [3]

[18] In contrast, the father was excited about their relationship and the prospect of having a child together. There was a trip abroad, referred to as a “babymoon,” the creation of a nursery and planning for a home birth which the father attended. The mother’s view was that he had contributed nothing to the nursery: just the money for it.

[19] G. was born at home. That evening the mother completed a statement of live birth for G. on-line. She surreptitiously named her with no reference whatsoever to her paternity. She gave G. her husband’s surname.

[20] When G.’s surname was later discovered, the father was genuinely shocked. It caused a rift in the relationship. Further disputes arose. One of those disputes was the mother’s choice of “Bubba” to designate the father. Not “Dad.”

[21] The effect of this naming cannot be overstated. Long before G. was verbal, the mother determined that she would not call her father, or hear others refer to him as “Dad” or “Daddy.” The mother did this with no consultation, and for her own reasons. This naming has upset the father. He wants to be “Dad” and speaks to his daughter accordingly.

[22] Within a short period of becoming verbal, G. did start calling him ‘Dad,” creating confusion. “Dad” was used in the mother’s home to reference the mother’s husband, who is the father of G.’s two half-siblings. That confusion may help explain why later allegations of abuse purportedly made by G. reflect the term “Bubba”: an avatar that her mother, grandmother, and her mother’s husband continue to use for the father.

[23] Today G. primarily resides with her mother and two half siblings. Her maternal grandmother and her mother’s husband are frequent caregivers in the home, and gave impassioned evidence on her behalf. The mother initially sought to also call as witnesses G.’s two half-siblings, now ages 15 and 13. The 13-year-old daughter has been enlisted in the gathering of evidence to support the mother’s allegations.

[24] There is no place for the father in the mother’s household. At best, it is a strained tolerance. The father is not permitted to enter her home, dramatically differentiating him from the husband – the father of G.’s half-siblings - who is a frequent and flexible presence. Under the banner of sibling solidarity, she has promoted only one access “Dad” for her three children: her husband.

[25] On the eve of trial the parties did agree to amend G.’s surname. That agreement is contained within Minutes of Settlement and will form part of the Final Order. The exact name will not be reflected in these reasons to protect G.’s identity.

The Evidence of the Maternal Grandmother and the Husband

[26] Many of the witnesses called by the mother have a personal stake in this litigation. That of the maternal grandmother and husband bears particular focus.

[27] In anticipation of being called as a witness, the maternal grandmother attended the courthouse on the fifth day of trial. Her presence was disruptive. She made it known that she was uncertain if she could testify. While she waited, she paced outside in the hall with the husband. During this waiting period, and while the husband’s case progressed, the mother suffered arm and chest pains. EMS was called and the mother was taken to hospital, bringing an end to the day’s schedule, but for one short witness who was accommodated in her absence.

[28] The next day the maternal grandmother took the stand. She vacillated from emotional fragility, speaking in anxious whispers to melodramatic gestures punctuated by grand pauses. After one particularly dramatic suspension she launched into a recital of G. coming home “sore inside.” She proclaimed that G.’s “anus was sore” and that “we didn’t know what to do to help her.” She asserted that “this happened once a month at a minimum, sometimes two or three times, always on a week night when returning from Bubba’s.” She folded her hands, looked down and whispered that she didn’t like what he was doing to her granddaughter.

[29] She went on to recount numerous incidents, such as G. running into the house upset, with red marks around her neck, crying as she told them that Bubba had put his hands on her neck. The grandmother testified at some length, often going back to earlier assertions and adding to them. At one point she had to calm herself by walking around the courthouse. When she returned, she broadcast that she did not care at all for the father and proclaimed that he was inferior to the husband. She emphasized that G. often stated: “I don’t like Bubba and he doesn’t like me.”

[30] Much of the mother’s case relies on her mother’s evidence. It was purportedly the maternal grandmother who saw the father give G. a hickey on the back of her neck during a 2014 access visit at her home. It was the grandmother who told everyone that G. had sung what was to become known during the trial as the “Vagina Song” (“If you’re happy and you know it lick your vagina.”) It was she who stated that G. had tried to put her tongue in her mouth when kissing, because “Bubba does it and says it is fun.”

[31] During her testimony the maternal grandmother only referred to the father as “Bubba.” She was absolutely certain that it was the only name used by G. except for the odd time, and only recently. In blatant contrast she referred to the husband affectionately by his first name. She was lavish in her praise of him and her daughter.

[32] The mother was visibly distressed throughout the whole of her mother’s testimony. She did not show any distress while listening to the evidence of the professionals who had investigated the allegations of sexual assault such as the two Detectives and the Pediatrician, or of her daughter’s experience when being examined.

[33] The maternal grandmother was not a credible witness. The litany of alleged offences had no time lines, and no external verification. Many did not even match the evidence of the mother – such as the sore anus, or hand marks around her neck. Such assertions can be externally verified. They were not. There was no evidence of any reporting or medical attendances following these two particularly upsetting allegations.

[34] The grandmother was a most concerning witness.

[35] Without expert evidence, her exact role over the past six years cannot be surmised. But I am certain that it has been significant. The maternal grandmother is a constant presence in the mother’s home. G. has most certainly been influenced by her hatred of the father and her declarations of his conduct. Many of the later statements repeated by other witnesses, or made by G. reiterate statements made by the maternal grandmother.

[36] The mother’s husband is another powerful advocate for the mother. He has flexible access to her home, eats meals there, sleeps over, travels with the family, and has a car-seat in his vehicle for G. He otherwise resides with his parents.

[37] The husband boasts of having spent more time with G. than the father. At one point in his evidence he called the mother his “wife” and at another point referred to G. as his “daughter.” The five of them are “his family.” He is proud that G. has called him “Daddy” and regrets not being able to enjoy more special occasions with her. He wishes that he could better protect her.

[38] The husband provided evidence that G. made a disclosure to him while he was barbecuing supper for the family. G. had just returned from a visit with her father. He testified that she was upset and that after being greeted by her mother, she ran back to tell him that “Bubba was choking me inside the automobile.”

[39] The husband then recalls going into a rage, calling the CAS worker, leaving a message, but then not following up. He rejected the possibility proposed in cross-examination that the father had struggled with tightening the car seat. He was certain G. was being abused and repeated many of the observations made by the mother and the grandmother.

[40] He related how upsetting it was on occasion for G. to leave the home for an access visit with her father (this would only have occurred on Saturdays, or summer days, as the father otherwise picks G. up from school). When questioned, he displayed no insight into the effect on G. of having the whole family (including sometimes the grandmother) at the door, pressing G. not to be afraid to leave with a father who was not wanted in the home; and how that compared with her sibling’s father’s easy and welcome presence.

[41] The husband testified as to G. making particular statements and believes that whatever G. says should be taken literally. At the same time, he is able to acknowledge that G. has internalized a message that her father is unsafe.

[42] The husband appeared sincere. He is well-intentioned. He has not generated the multiple concerns before the court, but he has wholly adopted them, and he stands ready to protect his step-daughter. Interestingly, he acknowledged that he too had been accused of sexual abuse of his and the mother’s son following his separation from the mother. He did not see a correlation between the two events.

A Pattern Emerges

[43] The mother’s early concerns with the father’s parenting were not entirely unwarranted. She was an experienced mother of two. He was single, child free, and self-focused. She required all visits to be under her roof, supervised by her and at her discretion. The father initially accepted the terms within an unusual, but in his view, more or less intact relationship.

[44] A series of events when G. was nine months old, - in which both parents behaved very badly – changed everything.

[45] In March 2012, the mother went to Hawaii with G., her husband and her two other children without telling the father until after she had crossed the border. The father was shocked and angry. He overreacted. He was still reeling from the information that his daughter had another man’s surname. He went to the Police and the Children’s Aid Society with allegations akin to kidnapping. Both services made inquiries which reached the mother through the maternal grandmother. The mother perceived the inquiries as an attempt to ruin her vacation. She was livid.

[46] The mother testified during this 2017 trial that after her 2012 vacation she “was done with him.” She did not make G. available again until late May of 2012. She ignored the father’s many texts asking to see his daughter, and for assurances of her well-being. As he grew more frustrated, some of the father’s texts became vulgar and rude. One was dreadful. He stopped paying her the voluntary amount of $1,000 a month child support, and changed it to a table amount of support.

[47] In her own time, the mother announced that any future access would be supervised by her mother. At trial, the mother and maternal grandmother testified to this arrangement as a form of kindness to an inexperienced father who needed help safely caring for his young daughter. It was nothing of the kind. But the father desperately wanted to see his daughter and felt that he had no better option.

[48] Visits at the maternal grandmother’s home were uncomfortable, and became more so when the father issued this Application for joint custody and normative access in January of 2014. The grandmother visits continued until the Consent Order of July 2014, which provided for independent visits every Monday and Wednesday for three hours and alternate Saturdays for four hours, with an increase to six hours in November 2014.

[49] That schedule has not changed over the past two and a half years. The mother has permitted little, if any, additional time even around special events. The parents do not speak and have nominal e-mail communication.

[50] Allegations of sexual abuse first surfaced at the end of January 2015. G.S. is the mother’s bookkeeper and friend. She testified that the mother had shown her photographs of marks in G.’s genital area and bruises on her legs. The mother told her that the father was abusing G. and that she needed her help.

[51] The mother asked her to secretly listen in on a conversation that she planned to have with three year old G. The bookkeeper was to follow them upstairs to the mother’s bedroom. She did so and claims to have heard G. say “Baba licks my vagina like a lollipop,” and make a reference to the ripping of clothes. After hearing this, she returned to the mother’s office downstairs to complete her work. She did not call the CAS or the police. She assumed that the mother would.

[52] The mother also related this incident during her testimony. Despite their pre-planning, their respective testimonies differed wildly. G.S.’s listening post, whether the bedroom door was open and what was overheard were divergent.

[53] Neither account was credible. At trial the bookkeeper could not recall when this had happened, but that it was in the winter around the time of the Canada/USA hockey game. She was confused as to why neither the CAS nor the police ever contacted her, and she never took the initiative to call them – a view entirely inconsistent with having actually witnessed such a disturbing incident.

[54] The mother attended a local police station on January 31, 2015. She reported that G.’s vaginal area was red and had a foul odor. She told the police that G. had said that her father “poked and licked her vagina.” The CAS was contacted. Notes from that period indicate that the mother told them that G. said her father “licked and picked at her vagina.”

[55] A joint investigation between the York Regional Police and Toronto Police, Sex Crimes Unit was led by Detective Maxwell, an officer since 1999, who works at the Child Youth and Advocacy Centre (“CYAC”). He and his colleagues have special training on how to interview children. CYAC partners with BOOST. Both work with the Suspected Child Abuse and Neglect Unit (“SCAN”) at the Hospital for Sick Children.

[56] Detective Maxwell met with G. and the mother on February 3, 2015. With a CAS worker present, he carefully interviewed G. She provided no information that would suggest that she had been touched in an inappropriate manner. G. could not recall having made any of the statements attributed to her.

[57] Immediately following the interview, G. was examined by a specialized nurse who works with SCAN. The mother informed the nurse that three and a half year old G. had a history of yeast infections: something not possible, and for which the mother had taken no medical steps. The nurse conducted a head to toe exam, including an examination of G.’s private areas. She found no evidence of any abuse. The examination included a review of the rectal area, eliminating the maternal grandmother’s assertion made at trial of anal penetration.

[58] The investigation file was closed at intake on March 5, 2015.

[59] The mother subsequently forwarded e-mails to Detective Maxwell with further allegations, and some photographs. The e-mails and photographs were examined by the nurse, which elicited a comment that “it could be anything”. The officer informed the CAS that there was no further investigation warranted. He also requested that the mother be directed not to take any further photographs. The CAS reviewed the matter and did so direct the mother, asking her to stop investigating her belief of abuse.

[60] But the mother did not stop. From time to time the mother continued to take photographs of G.’s neck and private parts, always immediately after a visit with her father. She testified that G. suffered no emotional harm, because she was able to “trick” her into the photos without her daughter understanding the reason why they were being taken. It was not a credible assertion.

[61] From January to June, 2015, G. was in a daycare. The mother spoke to daycare staff about her concerns that something bad was happening to G. She told them about G. having nightmares and of things coming to light as G. gave her more information. As recorded in a CAS note, the mother asked the daycare workers to “look for penis pictures.” On May 19, 2015 G. and the class were colouring. G. drew a misshaped triangle. When asked by the teacher what it was, G. answered: “just a thing.” The mother tenders this picture as proof of sexualized behavior.

[62] The triangle was the only concern that the nursery school ever had, despite being fully alerted to the mother’s beliefs. It was the CAS worker’s view at the time that the daycare workers were being actively influenced by the mother. Nonetheless, no concerns were found. G. was described as happy and well adjusted.

[63] Dr. S. has been G.’s pediatrician since June 24, 2013. He testified to a lengthy involvement with G., particularly over the course of these allegations. He kept contemporaneous notes and focussed on G.’s wellbeing.

[64] The mother scheduled a March 31, 2015 appointment with Dr. S. Immediately upon arrival she advised Dr. S. that G. had been sexually abused by her father. Dr. S. conducted an examination and found nothing of concern. He followed up with a call to the SCAN nurse. The nurse informed him that abuse had not been verified and that no investigation was ongoing.

[65] On April 13, 2015 the mother again brought G. in for an exam, showing him a picture of G.’s vaginal area with a small red mark on her right inner thigh. She pressed him to confirm that G. was being sexually abused. The mother stated that G. was complaining of vaginal pain after an “accident” that had occurred while visiting her father, but that G. would not elaborate because the father had told her to keep it a secret.

[66] Dr. S. did a full examination on April 13, 2015. He spoke to G. in the absence of her mother. He made no findings of any abuse.

[67] The parties’ Settlement Conference was held on June 11, 2015. The case management judge endorsed that there was “no consensus whatsoever on a meaningful expansion of parenting time.” That same day, June 11, 2015, the mother’s therapist contacted the CAS to report concerns about G., after receiving an e-mail from her patient. The information given by the mother was that G. had told her that the father hurt her by pushing her and licking her all over her body, including her vagina.

[68] The CAS provided an immediate response. A Family Service Worker (“FSW”) privately met with G. the following day. G. denied any inappropriate sexual touching during visits with her father and described a happy, positive relationship with him. She could not recall having had a conversation with her mother about touching or licking.

[69] The CAS interviewed G.’s play therapist (unbeknownst to the father, the mother had placed G. in play therapy in April 2015). The therapist stated that G. had not made any disclosures of inappropriate touching and that all concerns had come from the mother. The CAS worker observed G. in her father’s care and she was assessed as happy and comfortable.

[70] On July 7, 2015 the worker again met with mother and daughter. The mother asked four-year-old G. to tell the worker what her father had done. The worker met with G. privately and observed her to be very uncomfortable. G. covered her face with her hands as she told the worker that her father had kicked her in the stomach. G. did not say anything further.

[71] Later that month the Society verified the risk of emotional harm. G. appeared to them to be caught in the middle of a custody and access battle between her parents. They did not verify sexual abuse. The file was transferred to ongoing services with no supervision orders in place. It has remained open on a voluntary basis ever since.

[72] On July 15, 2015 G. was placed with a new play therapist. As later reported to a clinician for the Office of the Children’s Lawyer (“OCL”) the mother brought G. to all the appointments and informed the therapist that she “had concerns with G.’s behaviour at home, and that she may have experienced something negative”.

[73] The mother scheduled another pediatrician appointment for G. on August 18, 2015. Again she asserted that G. was being sexually abused by her father and asked that she be examined. Dr. S. met with G. privately. G. denied having any pain or discomfort in her vaginal area. Again, Dr. S. had no concerns.

[74] The CAS finding of emotional harm was not communicated by the mother to subsequent service providers who included therapists, educators, physicians, and the Yellow Brick House. All of the mother’s witnesses were advised by her, either directly or indirectly, that G. was being sexually abused by her father.

[75] During that summer, and in the face of persistent concerns expressed by the mother, the presently assigned FSW took it upon herself to re-investigate the allegations of sexual abuse. She did this without consultation with her supervisor. Nothing further was done to address the Society’s verified concerns of emotional harm due to adult conflict.

[76] The Trial Management Conference was held in October 2015. On consent the matter was removed from the November trial sittings and targeted for May 2016, with a return TMC date in April. At that time the assistance of the OCL was requested.

[77] On November 16, 2015 the new worker attended the home for the second time. Within the mother’s hearing she directly asked G. questions related to sexual abuse. At one point the worker sang the words to the “Vagina Song”. She noted that G. did not know the actual words to the song.

[78] The worker recorded the mother’s statement to her that G. had asked her older sister to draw a “vagina and boobs”. I compare this to evidence from the same fall 2015 period that the mother had asked the educational assistant for G.’s class to keep an eye out for inappropriate pictures, telling her that G. was drawing pictures of “penises” at home. The assistant assured the mother that she had seen no such behaviour, and showed the mother G.’s writing and drawing journal. [4]

[79] On her next visit on December 17, 2015, the FSW asked G. to draw a picture of a penis and a vagina to compare to a picture that the mother claims was earlier drawn by G. Both were marked as Exhibits at trial. They appeared quite different to this judicial officer – although no expertise is claimed.

[80] On the same December 17 th visit, the worker is alleged to have secured a disclosure from G. during a second attempted interview. No disclosure was achieved in the first series of questions. During the second set of questions posed by the worker, G. was rolling on the floor, appeared uninterested, said “Bubba hurt my ankle” and “Bubba licked my feet.” With further questioning, G. eventually answered “Bubba licks my vagina,” and that she did not want to see him anymore. The worker then went into the kitchen to speak to the mother.

[81] I have reviewed the December 17, 2015 testimony and notes of the worker. I agree with the submissions of father’s counsel that the FSW’s questions to G. during her second interview of December 17, 2015 were suggestive and leading. The worker admitted at trial that she met with G. in the family living room which is open to the kitchen, where the mother was during the interview. The worker acknowledged that the mother often corrected and supplemented things that G. said. She agreed in cross-examination that G.’s statement to her on December 17, 2015 could have been impacted by the knowledge that her mother was listening.

[82] The worker also testified that during this very same period, she had no concerns for G. while in her father’s care. G. would seek out help from her father, she was not afraid of him, she was comfortable with him and he was a fully engaged parent.

[83] The worker reported the December 17, 2015 disclosure to the police. On this second activation CYAC Detective Panton took the lead. She interviewed G. on December 23, with a CAS worker present, albeit not the assigned worker – who was on holiday. The mother makes much of this, but in reviewing the sequence of events, I find that having a different worker present had no effect on the outcome of the interview.

[84] Detective Panton testified at trial. She described the general form of such interviews, and provided significant detail of her interview with G. including the use of an anatomy doll. She recorded that G. answered “no” when asked if her father licks her vagina. When asked how she heard about “licking my vagina” G. answered that she did not know. G. used the terms “Daddy” and “Bubba” when saying that she did not want to see him anymore. When asked why, G. simply repeated her answer. When asked if anyone told her to say that, G. did not answer.

[85] The forensic interview conducted by Detective Panton did not result in any disclosure and the matter was marked a “non-criminal incident.” The file was again closed. In the course of the interview G. had expressed that she wanted some privacy when in the bathroom at her father’s home. This was communicated and adopted by the father.

[86] While all this was unfolding the CAS cancelled the father’s Christmas access.

[87] The father was hurt and angry. He was always cooperative with police, but after the December 2015 incident, he withdrew from working with the CAS, making little effort to connect with them until events moved forward. He had become convinced that the mother would stop at nothing to remove him from their daughter’s life. He denies, and continues to deny, that he has ever sexually or physically abused his daughter, or touched her in any inappropriate manner.

[88] The Office of the Children’s Lawyer accepted the October referral and became involved in early 2016. It is not their role to investigate abuse. The mother was advised of this policy on her first appointment. She was so upset that she left.

[89] A subsequent appointment was attended, and the OCL clinician was careful to note all of the mother’s concerns. Those extensive concerns for the period of January 2015 to October 2015 are chronologically set out in her May 17, 2016 report. When asked why they were transposed in such detail, the clinician answered that these were the mothers “sole concerns, communicated verbally and in writing”. Some of the language in the report was taken directly from the mother’s notes. The clinician confirmed that all of the concerns referenced in the report came from the mother.

[90] A careful review of that list shows that the stated concerns do not entirely match the allegations made to the CAS during the same period. Many go well beyond what was contemporaneously reported.

[91] On March 22, 2016 the mother once again scheduled an appointment with G.’s pediatrician. She insisted that G. was being sexually abused by her father. Dr. S. found no signs of abuse.

[92] The OCL clinician held a disclosure meeting in April and delivered her section 112 report on May 17, 2016. It is a comprehensive report that agrees that the mother’s description of G.’s behaviour and comments are “indeed significant and troubling.” At the same time, the clinician concludes that “G. appears relaxed and happy in the care of each of her parents”.

[93] The report confirms that G. made many negative comments about going to her father’s home during interviews, but observed that G. could not offer reasons why, and when asked, would disengage from further questions. The report offers two alternative explanations: G. is being abused; or she is aware of the negative relationship between her parents, and knows that her mother does not want her to go for access.

[94] Two additional features of the OCL’s involvement were noted at trial. When speaking with anyone in the mother’s household, the father was referenced as “Bubba,” but when the clinician spoke to G., she called her father “Daddy”.

[95] Second, the mother had advised both the OCL clinician and the CAS that G. had drawn concerning pictures at school. When the clinician spoke to the school, she learned that this was not correct. When she confronted the mother, she answered that she had meant the daycare. The clinician suggested to the worker that she follow up. It is not clear whether the worker did learn that neither the school nor the daycare had seen concerning pictures.

[96] During the period of OCL involvement the father had been avoiding meeting with the CAS. The clinician felt it premature to make any recommendations about custody or access changes until that meeting had occurred. As a result her section 112 report recommended that G. remain in the primary care of her mother, and continue with play therapy until that next step had been completed.

[97] The mother took G. to her five year physical exam with the pediatrician on August 18, 2016. Again she spoke about G. being abused. G. gave no indication of any distress. A head to toe exam was negative. This was the fifth attendance with Dr. S. (March 31, 2015 to August 18, 2016) in which the mother pressed for verification of abuse. In each and every one there had been no reason for concern. At trial, and as earlier shared with the CAS, Dr. S. offered his conclusion that the allegations stemmed from the mother.

[98] A Motion was heard by this judicial officer on October 12, 2016. The mother sought to dispense with the father’s consent to play therapy. She was successful. In the same Order, and on consent, the matter was removed from the fall trial list and the assistance of the OCL was requested for an updated report. The father had met with the CAS, events had moved forward and the outcome of play therapy would further inform settlement discussions and trial outcomes.

[99] The father completed the intake materials for the OCL. The mother did not. She is in breach of that Order. As a result of the mother’s failure to provide intake, the OCL closed its file.

[100] G. has continued with play therapy. She has made no disclosures to her current play therapist with whom she has had a trusted relationship since December 1, 2016. That therapist, Ms. C., gave evidence during this trial. She was professional, and impartial. She testified that G. was guarded at first, but that she has become more comfortable over time and is now addressing difficult feelings, which had been a challenge earlier in her therapy. Ms. C. is certain that G. is aware of the conflict between her parents. She reports that G. is nonetheless a happy and bright child.

[101] Ms. C. impressed the court with her independence and commitment to G. The prior therapist (July 2015 to April 2016) had earlier given evidence. She related concerns with G.’s sand play, interpreting the repeated action of burying objects, and then digging them up as a suggestion that G. was “burying secrets”. She was well versed in the mother’s view that G. was being sexually abused by her father. When questioned as to alternative interpretations, she struggled and would not hypothesize. [5] I find the prior therapist’s sand play interpretation to be pure conjecture and of no evidentiary value.

[102] Trial commenced on February 21, 2017. Mid-way through that first day the father learned that his father had died. The hearing was adjourned to the following Monday – continued to Friday, and then went on hiatus until May 15, 2017.

The March 2017 Mark

[103] G. had a play therapy appointment on March 30, 2017. In the course of the attendance, she noticed that G. had a mark on her neck. G. could not recall to Ms. C. how it had happened, and then later said it happened at the condo. [6]

[104] It was a small abrasion, variously observed as ranging from red to blue in colour. The therapist satisfied herself that there was no cause for concern, but out of an abundance of caution, brought it to the mother’s attention. The mother took a photo, and sent it to the worker. The worker called the therapist. The therapist was surprised to receive the call given the minor nature of the mark, and asked further questions of the worker to satisfy herself that the mark raised no reportable concerns.

[105] The worker called CYAC – they refused involvement because there was no direct disclosure.

[106] After the appointment with the therapist, the mother took G. to her friend, and G.’s former babysitter, Ms. M., asking her to look at a “suspicious mark.” This direction was confirmed in the mother’s testimony, although Ms. M. was adamant that the mother had not told her the purpose of the visit in advance.

[107] Ms. M. is a recently qualified Naturopath who is not permitted to treat friends or to diagnose. Despite these restrictions, she met with G., and on that same day wrote a March 30, 2017 letter opining that the mark on G.’s neck was “consistent” with a hickey.

[108] The letter was on her office letterhead with her designation (ND) and registration number. It was forwarded to the father’s counsel as proof of abuse. The letter did not disclose the personal relationship between Ms. M. and the mother. In cross-examination Ms. M. was adamant that the mark could only be a hickey, and would not concede any other possibility. She wholly lacked objectivity.

[109] The mother took G. to another appointment on March 30, 2017. She took G. to her own physician, Dr. G., who had never before met with G. Dr. G. initially testified that she had no advance knowledge of the purpose of the appointment and that she did not ask G. directly about the mark. She assured the court that she would never ask such a question, for “fear of traumatizing the child”.

[110] In cross-examination her notes were entered as an Exhibit. Upon reviewing those notes, she corrected her testimony. She was indeed told in advance, and she did ask G. how she had got the mark. In fact, the note indicates that the mother had lied to her. The mother told Dr. G. that G. had just had an overnight visit with her father. The reader will recall that G. has never had an overnight with her father. She asked Dr. G. to examine a hickey on G.’s neck on an urgent basis.

[111] Dr. G. completed a full exam on G. and then wrote a letter to the CAS suggesting that the mark was a hickey, made by the father. At no time had G. said that her father made the mark. At no time did Dr. G. speak to the father. The letter went on to say that;

a) the systems in place to protect G. had failed; b) G. should have an advocate; and c) the father should have supervised access.

[112] Dr. G. admitted that the contents of the letter were based on detailed information she had received from her patient: the mother. She then claimed that she had not spoken with a worker at the CAS, but when presented with a worker’s notes, advised that yes, she may have. She claimed not to have called the CAS to report sexual abuse but a “suspicious mark”. She was shown a CAS note and then agreed that yes, perhaps she had called the CAS to report sexual abuse.

[113] Upon cross-examination, she could not conclusively determine that the mark was a hickey.

[114] In early April, 2017, the worker met with G. at her father’s condo and later at her mother’s home. At her mother’s home G. told the worker that she had got the mark when playing with her dog (at her mom’s home). The worker spoke to both parents to inform them that G. had disclosed that the mark came from the family pet. The worker suggested to the parents that they needed to start speaking to each other.

Analysis

[115] I begin with the testimony of Detective Maxwell in which he explained how specialized officers are trained to conduct sensitive interviews with children. One begins with questioning the child about truth telling and insuring that he or she understands the difference between the truth and a lie. In the process, the officer attempts to build rapport and make certain that the child is comfortable.

[116] He explained that a child’s comprehension is not literal, and that children often get details wrong, or transfer feelings or events. One must approach questioning in a circular fashion, always checking in with them, and re-evaluating, while trying to match comments with external confirmation.

[117] Both he and Detective Panton referenced a cornerstone of their training: children are very open to suggestion. Open ended questions are essential. One cannot put a conclusion to a child. Body language must be observed and noted. The circumstances of the interview must be known. Independence is essential. There must be a defined methodology for accurate note taking. Detective Panton concluded that, “[I]t is delicate and challenging to properly interview a child.”

[118] The mother proposes four main themes:

a) G. does not want to go on visits with her father; b) G. returns from access visits with her father with marks on her neck and these marks have been identified as hickeys; c) G. has told four people (the mother, the grandmother, the husband and the CAS worker) that Bubba has licked her vagina; and d) the same four people have witnessed G. displaying sexualized language and behavior.

Refusal to Attend Access

[119] It is not contested that G. has stated that she does not want to go on visits with her father. And yet, she always has. Much can, and has been written concerning children’s wishes regarding access. It is not a child’s choice. In these circumstances, G.’s occasional reluctance to attend access does not inform any risk of harm. I note the collateral evidence through the OCL that G. has always gone happily with her father when picked up from school.

[120] The OCL clinician was prescient in identifying the alternative explanations for G.’s statements of reluctance: abuse, or a fear of disappointing her mother.

[121] I find that it is the latter.

[122] In my view, it is self-evident that the mother does not want G. to go for access. She did not want G. to have a different surname from her siblings. Her actions over the past six years suggest that neither does she want G. to have a different father.

Marks

[123] Reviewing the evidence as a whole, it is wholly insufficient to a finding that G. has received hickeys from her father.

Allegations of Sexual Abuse and Sexualized Behaviours

[124] Mother’s counsel asserts that the evidence of four witnesses proves the allegations: the maternal grandmother, the husband, the CAS worker and the mother. I will not deal further with the evidence of the grandmother or the husband.

[125] With respect to the evidence of the CAS worker, I am satisfied that the disclosures made by G. in December, 2017 do not evidence abuse. They were fully and properly investigated by CYAC. The methodology employed by the CYAC was sound, and that of the worker was not. G. has had five workers since January 2015 and disclosed abuse only to the most recent worker, under conditions of persistent suggestion and with her mother listening.

[126] With respect to the evidence of the mother, I did not find her to be a reliable witness. Her evidence was inconsistent, scattered and frenetic. She was self-focussed. For example, when asked “How many times was G. sexually assaulted?” her answer was “[M]ore than I would have liked”. She spoke rapidly in the form of repeated conversations, using her voice to mimic others. She interchangeably used the terms “Bubba” and “Dad” with little thought of context.

[127] She self-styled as a model parent doing her best in the face of an ignorant and unreasonable father. She launched her testimony with the declaration that the only explanation for G. doing so well in these circumstances must be her own good parenting. All her allegations have a common subtext: she has done nothing wrong and does not deserve the distress that has been caused. No one should have to go through what she has gone through. If the father simply deferred to her, as does the father of her older children, everything would work out.

[128] The mother’s assertions escalated whenever her statements did not compel attention. She became so histrionic during her cross-examination, that this judicial officer intervened and expressed a concern for her ability to participate further, to care for young children, and whether she ought to travel home alone. But the next morning she was fine, and her counsel had Dr. G. later confirm that the mother was of sound physical and mental health.

[129] The mother added new information at trial that had not been previously disclosed. She embellished when she felt that she was not being believed. She went off on tangents, only to be reminded that she had not actually answered the question she had been asked. Her list of concerns and allegations were limitless, and she provided the court with new alleged examples of the abuse (both sexual, verbal, and physical) up until the very last day of trial. Some of the statements the mother attributed to G. were outright fanciful.

[130] The mother has gone to great lengths – including while this trial was on hiatus - to convince and to ally others to her cause, in the face of acknowledged and consistent evidence that G. is doing well. She proposed to call her other two children as witnesses so that they could testify as to what G. had told them. She spoke of their disappointment in her for not keeping G. away from her father. She styles herself as her daughter’s only hope and seeks forgiveness, understanding and accommodation for not being able to fully articulate the horror that she (the mother) has experienced in having to deal with all this.

[131] As her own statements have not been acted upon, the mother has set up others to confirm indicia of sexual abuse and then to intervene on her behalf. Some, such a G.’s current play therapist, have resisted the mother’s influence, maintaining an independent child focus. Others were easily, if not enthusiastically, allied, such Ms. M., her former protégé who was profuse in her praise, and highly critical of the father. Ms. M. admitted to having a great deal of knowledge about the abuse allegations, as she frequently spoke with the mother about the course of litigation and her frustrations.

[132] The mother asserts that she is only bringing forth statements made by her daughter, and that G. must be believed. She describes her daughter as a young child who took a long time to disclose.

[133] Out of court statements made by G. are hearsay and, in order to be admissible into evidence at this trial, must fall within one of the principled exceptions to hearsay. In R. v. Khan, [1990] 2 S.C.R. 531, the Supreme Court of Canada held that hearsay statements by a child will be admitted into evidence where those statements are both (i) necessary and (ii) reliable. [7]

[134] Necessity will be interpreted as “reasonably necessary,” which will include the traumatic effect of testifying in court for a young child. Reliability will include an assessment of timing, demeanour, personality of the child, intelligence and understanding of the child, and the absence of any reason to expect fabrication. This list is non-exhaustive, and the factors will vary from case to case. [8]

[135] Given G.’s young age, it is reasonably necessary for her hearsay statements to be admitted into evidence. The question to answer is whether her statements are reliable.

[136] G. is aware of the conflict between her parents. She has lived her entire life in an environment hostile to her father. Her mother actively investigates a theory of abuse. Her body has been photographed after visits with her father. She has had constant contact with the CAS, and her present worker has questioned her in a manner presupposing sexual abuse - even though the Society has only ever verified harm due to adult conflict. G. receives considerable attention from her mother, grandmother, the husband and others for any behaviour that might confirm “abuse.”

[137] G. has made concerning statements and acted in an overly sexualized manner. She was seen by neutral family members to have come out of a public bathroom with her underwear down, looking at herself, saying “I love my vagina.” She did draw a concerning picture for the CAS worker on December 17, 2017 – whether or not she had drawn the earlier one. The worker fairly observed that G. has more sexual knowledge than would be appropriate for her age.

[138] At the same time, the mother acknowledges that G. is happy, adjusted, and doing well at school. She admits that two years into G.’s formal education, her school and teachers do not have any concerns, and have not seen any of the alleged troubling behaviour that the mother claims that G. exhibits at home.

[139] In my view, the evidence as a whole is consistent with G. acting on suggestions made to her by her mother, her grandmother and their allies, and not with abuse by her father.

[140] The mother asks that G.’s alleged statements to her be accepted into evidence as exceptions to the hearsay rule.

[141] In Catholic Children’s Aid Society of Metropolitan Toronto v. B. (S.), [1998] O.J. No. 6445, the court identified indicia of reliability including:

a) The statements were first-hand hearsay; b) The witnesses had all recorded the statements in writing at the time they were made; c) The witnesses were trained professionals in child sexual abuse; and d) None of the witnesses had a personal interest.

[142] The mother does have a personal interest. She is not a trained professional. She did not make contemporaneous notes, although at one point in the trial, she did claim to have done so. She sought to reference those notes to refresh her memory. Upon conclusion of a voir dire, she was allowed to reference the notes as past recollections revived.

[143] As the trial progressed, it became clear from the mother’s own admissions that the notes were unreliable. Contrary to the evidence that she gave in voir dire, she subsequently admitted that the notes were not prepared contemporaneously with the statements, that they contained omissions and inconsistencies. She offered this as the reason why she could not reconcile her recollection with her notes. Or why she kept recalling new things that were not previously recorded.

[144] I find that hearsay statements allegedly made by G. to her mother fail to meet the requirements of reliability and, as such, are not admitted into evidence.

[145] I find that G.’s out of court statements to the specially trained professionals who had no personal interest, spoke to G. first hand and properly recorded G.’s statements: the CYAC Detectives, the SCAN nurse, and the pediatrician to be admissible hearsay.

[146] The mother’s allegations of sexual abuse fail.

[147] The mother’s pattern of gatekeeping was established long before the allegations of sexual abuse arose. And it continues.

[148] As set out earlier in this Decision, the trial was adjourned upon the father learning of the death of his father. At the conclusion of the following week the trial went into hiatus until the May 2017 sittings. The extended paternal family arranged for a celebration of life to be held during the period of hiatus. The event was planned well in advance and included all of G.’s peer aged cousins. There was absolutely no risk of harm.

[149] The mother did not permit G. to attend. She was asked why during her May cross-examination. Her answer was dismissive. She didn’t like, or purported not to understand, the various invitations to have G. attend, and when she did, she indicated that they had already made other plans. She stated that she spoke to a Yellow Brick House counsellor who told her that young children need not go to funerals.

[150] The mother’s actions invite incredulity. Parties are generally on best behavior during active periods of litigation.

Order for Joint Custody and a Parenting Plan

[151] While publically lauding her parenting as progressive, child-centered and facilitative, the mother’s actions have been consistently and unjustifiably restrictive. Her testimony was riddled with subtle revelations that she sees nothing of real value in the father, or her daughter’s relationship with him; and certainly none worth her inconvenience.

[152] At the conclusion of her evidence, the mother could not concede the possibility that the messages G. is receiving both directly and indirectly from the adults in her life could be contributing towards the alleged problems she identifies in connection to G.’s relationship with her father. The mother displays no insight into her actions, or their effect on G. She takes no responsibility for the harm caused to G.

[153] In viewing the totality of the evidence, and observing the parties over 14 days of trial conducted over five months, I find that the mother has engaged in an extreme form of gatekeeping. The evidence does not inform the “why” of it, only the “what:” she desires that access be indefinitely controlled because she, and others, cannot ever be certain that G. is completely safe with her father.

[154] Negative gatekeeping is a misuse of parental authority. Children are taught that they are not safe, and that they cannot trust their other parent, even when they feel safe, and do trust their other parent. Over time, the child’s independence of thought and feeling are extinguished. They become enmeshed in the gatekeeping parent’s dysfunction.

[155] I find that the respondent mother has failed to demonstrate the criteria necessary to an order for sole custody per section 24 of the Children’s Law Reform Act. An order for sole custody would embolden the mother. It would not be in G.’s best interests.

[156] The father does not seek sole custody. And his evidence was at times problematic. His texts and e-mails to the mother between March and May 2012 (when he was not seeing G.) are painful to read. They are peppered with vulgarities, threats and recriminations, such as “you’ll learn your place,” and “I’m warning you.” One was particularly offensive. His frustration was also clear: “I’m coming for my daughter you can count on that [mother’s name]. The time you have kept her away from me I can never get back. I’ll never let that go in life.” He testified at trial that in hindsight he regrets many of the statements, and asks that they be considered in context.

[157] The father has a tendency to overstate his evidence. For example, he claimed to have never had a Father’s Day with G., when in fact he had in 2015 and 2016. He struck the court as a person who keeps score in life, and is not always accurate in its keeping.

[158] The father has cultivated an imposing presence. I accept the evidence of a number of witnesses that he makes them uncomfortable. I suspect that it is deliberate. The world is a simpler place when it is organized into people who are with you, and people who are against you. People that you need and people that you do not. Parenting is not as simple. For most of us it is quite humbling.

[159] In determining what custody and access provisions are in G.’s best interests, I must consider all the evidence and the circumstances. Some form of custody order must be made. G. is young and many decisions lie ahead.

[160] But an order for joint custody could frame years of conflict between accidental parents who relish each battle as an opportunity for vindication.

[161] G. deserves a better choice.

[162] I make a Final Order for joint custody. It is the less risky path forward. When one parent seeks to marginalize the other parent, joint custody may be necessary to ensure that parent’s continued involvement in the child’s life. [10]

[163] G.’s primary residence shall continue with her mother and half-siblings. There shall be a parenting schedule setting out the times in which G. will be in her father’s care.

[164] The father wants G. to have a full cultural inheritance from both sides of her family. He wants to put her to bed and to have breakfast with her. He wants to take her places on the weekend. He wants a normal, meaningful relationship. He has much to offer G. as a parent, and wishes to be involved in making important decisions. It is in G.’s best interests to have these benefits. Fathers matter to daughters, even if (and sometime – especially if) their parenting style differs from that of the mother.

[165] The proposed parenting schedule sought by the father in his counsel’s opening statement was predicated on the trial concluding in February, during the school year. Instead, this Decision is being released during the summer vacation period, almost six months later. Given the urgency of normalizing the father-daughter relationship, I am expediting the proposed period of phases.

[166] It will not be an easy co-parenting relationship. It may fail. I encourage counsels to speak to their respective clients about using a specialized communication and scheduling software program. I ask them to again remind the parents that all communications can be tendered as evidence in future proceedings.

[167] I commend the testimony of the father that while his relationship with the mother has been difficult, his mind is open to them working together to parent G. He ought to work as hard as possible to make that happen, and while doing so, demonstrate the skills necessary to becoming a primary care parent. Just in case.

[168] Parenting Orders to issue as follows:

1. On consent, the child’s name shall be legally changed to -. [11]
2. The Applicant and the Respondent shall have joint custody of the child, G., born –
3. The parties shall continue to communicate predominately by e-mail and shall communicate only about the child in a brief, courteous and informal manner.
4. Neither parent shall disparage, or allow others to disparage the other parent in any manner that may come to G.’s attention.
5. G. shall primarily reside with her respondent mother.
6. For the six weeks following the date of this Order, (three rotations of two weeks each) G. shall be in her father’s care as follows: a. Week One: (Commencing July 24, 2017) Monday from 3:00 p.m. until 7 p.m.; Wednesday from 3:00 p.m. until 7 p.m.; Friday from 12:00 noon until Saturday at 7 p.m. b. Week Two: (commencing July 31, 2017) Monday from 3:00 p.m. until 7 p.m.; Wednesday from 3:00 until 7 p.m.; Saturday from 12:00 noon until Sunday at 7 p.m., unless the next day is a holiday, (Monday August 7 th and Monday September 4 th ) in which case G. is to be returned at 7:00 p.m. on the Monday. The return date of Monday September 4 th, 2017 is extended to a return to school on Tuesday September 5 th. This will permit G. to experience a first day of school with her father. Thereafter the father will have all first days of school on odd numbered years, and the mother on even numbered years.
7. Upon G. returning to school on September 5, 2017, the rotation shall be: a. Week One (commencing September 4, 2017) Monday night from after school until 7:00 p.m. (inclusive of the Monday September 5th as set out above). Wednesday overnight from after school until return to school Thursday morning. b. Week Two (commencing September 11, 2017) Monday night from after school until 7:00 p.m. Optional: Wednesday lunch with G. at the school. Friday (Thursday if Friday is a school holiday) from after school until return to school on Monday (Tuesday if Monday is a school holiday.)
8. Should the parents agree, the Monday night return of 7:00 p.m. may be extended to accommodate an activity, such as swimming or music lessons.
9. The parents are to agree on a standard bedtime for G. In the absence of an agreement it will be 8:00 p.m. extended by 15 minutes upon each birthday until she is 14 (10:00 p.m.)
10. Commencing with the summer of 2018, the Applicant father shall have two non-consecutive, uninterrupted weeks with G. during her summer vacation, with one week in July and the other in August at his choice, to be communicated by May 1 st of each year.
11. Commencing with the summer of 2020, the Applicant father shall have four uninterrupted weeks with the child over the summer break. He will have the right to choose the weeks that year and any subsequent even numbered years by May 1 st. The mother shall have the right of first choice, to be communicated by May 1 st for any odd numbered years.
12. Unless they agree otherwise, the parents shall alternate G.’s Christmas Break such that the father has the first period from after school until 1:00 p.m. on December 25 th in odd-numbered years, and the mother has the remaining period until return to school. The periods are reversed in even numbered years, with the mother having from after school until 1:00 p.m. December 25 th. All other holidays and March Break shall alternate between the parties on a yearly basis with the father having odd numbered years and the mother having even numbered years.
13. Each party is permitted to travel with the child, and the other parent shall provide a travel consent within seven days of request.
14. The Respondent shall immediately provide the Applicant with a notarized photocopy of the child’s health card, social insurance number and any other government issued identification.
15. Neither parent may change G.’s school, or move his or her residence more than a 45 minute drive from his or her present residence without written consent or a court order.

Part Two – Final Orders for Child Support, Section 7 Expenses and Life Insurance

[169] The father has always paid voluntary and court ordered child support. The amount paid to date is agreed. The amount that he ought to have paid is not. These Reasons shall determine on a final basis the parents’ income for support purposes, the applicable table amounts, and the proportionate shares of section 7 expenses in each of the relevant years.

The Father’s Income for Support Purposes

[170] The father is a 47-year-old, self-employed car salesman. He resides with his mother in his parents’ condominium. He has no savings and spends everything – if not more - than he earns. He has considerable debt, much of it under collection, so he uses his credit cards as his bank account. Part of that debt is Canada Revenue Agency (“CRA”) arrears of $104,000. He is a gambler.

[171] His financial affairs are organized through a corporation for which he is the sole shareholder. The corporation operates as a vehicle wholesaler. It does not have any employees. The father purchases cars at auction, from private sellers or car dealers, and then sells them to dealers. He has limited dealings with the public and reports no income for the corporation. He is carrying forward a loss on his personal taxes. As a result, he has paid no income tax for several years, and will not likely pay taxes for the next few years. His counsel accepts that his reported income should be grossed up to account for such circumstances.

[172] The father runs over a million dollars in annual sales through the corporation, but his profit margins are modest. The cost of goods sold is high. He pays HST on his sales and he has various expenses, including rent on his office, repairs and maintenance on the cars, cleaning the cars, and his own transportation costs and other costs such a telephone. In addition, he has some marketing costs, and sometimes entertains clients.

[173] Where an individual is self-employed, the starting place to determine his or her income for support purposes is the wage or salary paid to that individual from the business. [12] The court will then turn to the pre-tax corporate income and assess whether any portion of that income should be added back to the individual’s income. This step refers only to the pre-tax corporate income, and not gross sales of the business. [13] Finally, the court will look to the reasonableness of any business expenses deducted. [14]

[174] If an individual who is self-employed and the sole shareholder in his or her business withdraws for income purposes all reasonably available resources from the business, those withdrawals will be a “good indicator” of the individual’s “real income for child support purposes.” [15]

[175] In the absence of an income valuation report, the court is not required to conduct an accounting analysis or reconcile all the discrepancies in the analyses provided by the parties. [16] The court will choose the “most reliable number” with respect to the payor’s income for support purposes. [17]

[176] The father’s counsel proposes a calculation of income for support purposes as: gross sales, less the cost of goods sold and expenses. The cost of goods sold is determined by taking the inventory left over from the previous year and adding the purchases in the current year, less the inventory left over in the current year. The expenses are recorded in detailed ledgers, plus rent, insurance, and repairs.

[177] The father’s counsel summarizes his income for the relevant years in the chart below. Neither of the parties calculated 2016 or 2017 income, as this matter was originally intended to be heard in the May 2016 trial sittings.

Year	Reported Income	Payments to Credit Card in Excess of Income	Income for Support Purposes (including credit card payments, and gross up for taxes)
2011	$1,679	$0	$1,679
2012	$18,336	$26,464	$55,273
2013	$34,817	$1,483	$43,191
2014	$35,793	$0	$45,522
2015	$38,818	None calculated	$45,556

[178] Counsel then deducts the agreed amount of child support paid against the table amounts payable on the above incomes. She reaches a figure of $585 owing by the father for the period of July 1, 2011 to May 31, 2017.

[179] The mother submits that the father earns $350,000 per year, or alternatively, $100,000. Her experience while socializing with the father – and much of its attraction – was that he was a high roller. She testified that, “he didn’t care about his money, so why should I?” She recalls lavish vacations, a plane trip to a casino and $400 - $500 bottles of wine. His income was supposed to make her life easier. She rejects the disclosure of his actual income, hints at the existence of other businesses and relies on lifestyle flags to impute income. For example:

a) initial payments of $1,000 in monthly child support; b) frequent trips to casinos, with significant losses ($20,000 a year); c) travel; d) cash in his pocket; e) paying for a large gathering of diners; f) telling his brother, “you only make $350,000, so I will pay”; and g) saying, ‘only chumps pay taxes”.

[180] The father disputes these assertions. He testified that the early payment of $1,000 per month in voluntary child support predated any legal advice or calculation under the Guidelines. I do not accept this assertion. It is telling that this amount was paid during a period in which he asserts annual income of $1,679, and that payments dropped to $346 not at a time of a demonstrated change in financial means, but upon the mother withholding access.

[181] I do accept his testimony that his brother’s business funded the one lavish trip taken with the mother, and that the bottle of wine was an accidental ordering that occurred once.

[182] To substantiate the balance of her allegations, the mother presented charts that she had made summarizing the father’s spending on gambling, deposits into his bank accounts, and an alleged difference between gross sales reported to CRA and the deposits into his accounts.

[183] I will deal first with the gambling. The father sees nothing wrong with his pastime, and its value to him in developing relationships with associates at industry events. He denies the frequency of gambling, and scale proposed by the mother, but acknowledges that he enjoys it, and boasts that he is not entirely unsuccessful.

[184] Gambling can be a debilitating addiction. Although it is not recognized as such by the father, in my view, there is no doubt that gambling has contributed to his presently dismal, and rather embarrassing financial circumstances. But does it inform a determination of income for support purposes?

[185] Funds received from gambling or betting will be attributed to an individual as income where the approach to gambling is “organized and professional” and “leaves very little to chance.” [18] The father’s counsel asserts that his gambling is in no way organized or professional, and should not be included. I agree. Moreover, no consistent income figure was identified by either party that might result from gambling.

[186] Rather, the mother asserts that the father’s gambling is indicative of more moneys being available to him than is reported. I cannot make that determination on these facts. The father’s excessive debt and lack of any assets muddles the source of gambling funds. They may be drawn from debt and capital. [19]

[187] As to the deposits into accounts, I found the mother’s charts to be misleading. Deposits in the car sales industry are prepayments of a capital purchase, not income. Income derives from sales margins less operating expenses. Because the father has fused his personal and business affairs (to hold income away from CRA) deposits cannot be used as a measurement of income. Moreover, the deposits did not correlate to sales recorded per the Ontario Motor Vehicle Industry Council. [20]

[188] The balance of the discrepancies identified by the mother is accounted for by the HST paid on sales, as well as returns of deposits when sales fell through, and cancelled sales. I do agree that there are two years in which the payments to the father’s credit card are in excess of his reported income. I have considered adding those amounts back to his income for support purposes, although it is unclear whether they originate from another source of debt or result from timing discrepancies.

[189] In viewing all of the evidence, I am prepared to impute some level of income to the father, per Section 19(a) of the Federal Child Support Guidelines. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. [21]

[190] The father has 20 years of experience in a specialized industry. He holds himself out as an expert in his field. No evidence suggested that the secondary vehicle market is depressed. He frequently deals in luxury vehicles. I have reviewed his pattern of sales, expenses and personal spending within his extensive disclosure and sworn Financial Statements. I do not accept that his proposed annual incomes are the realization of a fulsome application of his skills and acumen.

[191] I exercise my discretion to impute the following income, resulting in arrears of $14,731 as of July 31, 2017.

Year	Imputed Income	Annual Owing	Amount paid	Arrears
2011	$50,000	$5,400 (450 x 12)	$6,000	($600)
2012	$50,000	$5,400 (450 x 12)	$6,114	($714)
2013	$50,000	$5,400 (450 x 12)	$4,152	$1,248
2014	$60,000	$6,552 (546 x 12)	$4,102	$2,450
2015	$60,000	$6,552 (546 x 12)	$3,822	$2,730
2016	$70,000	$7,668 (639 x 12)	$3,612	$4,056
2017 (Jan-July)	$70,000	$7,668 (639 x 12)	$2,107	$5,561
Total				$14,731

Section 7 Expenses

[192] In order to assess the father’s proportionate share of Section 7 expenses, the mother’s income must first be determined. She is a self-employed marketing consultant who owns her own home. Rather aggressive expensing reduces her income for tax purposes, and portions of those expenses must be added back to determine her income for support purposes. For example, she writes off repairs and purchases for her home, her mortgage, utilities and property taxes, much of which is personal. In addition, she writes off meals and entertainment, cellphone, professional fees, certain other fees and a portion of her transportation expenses.

[193] The mother did not provide disclosure as comprehensive as that of the father. Her income for support purposes is best extrapolated from the most fulsomely evidenced year of 2015. In that year she reported income of $71,467 after deducting expenses of $34,363.50. If 50% of these expenses are added back, her income for support purposes for 2015 totals $97,729. The evidence suggests a higher range of earnings and add-backs, but for the purpose of determining proportionate shares, I will round her income to $100,000 per annum. In my view, this is a fair figure for all the relevant years but for 2011 and 2012 when she was caring for a young child. Although she had in-home assistance, her energy to earn income would be understandably limited. For those years, I find her income to be $50,000.

[194] The proportionate shares are thus:

Year	Father’s Income	Mother’s Income	Proportionate Shares
2011	$50,000	$50,000	50/50
2012	$50,000	$50,000	50/50
2013	$50,000	$100,000	33/67
2014	$60,000	$100,000	38/62
2015	$60,000	$100,000	38/62
2016	$70,000	$100,000	41/59
2017 (Jan-July)	$70,000	$100,000	41/59

[195] On October 26, 2015 the parties entered into a Consent Order that there were no section 7 arrears arising out of a previous Order, but for the costs of daycare which were to be addressed at trial. At trial, the mother sought contribution not only for daycare, but for the released expenses incurred from 2011 to 2017. Father’s counsel asserts that receipts for the released expenses were produced for the first time at trial.

[196] During her evidence, the mother acknowledged that:

a. she did not seek the father’s consent for the various activities, such as swimming ($88). The father was not even aware that G. was in play therapy ($3,140) until later advised by the OCL; b. G. does not need tutoring, ($425 claimed) but likes to be included with her brother and sister’s tutoring; c. ski lessons for G. were part of a family package; d. the claimed outstanding daycare expenses for 2011 to 2014 total $11,962, but there is an incomplete record of receipts, and the amounts claimed are not set out as an after-tax/benefit cost [22]; and e. daycare expenses from the preschool total $9,440, but again, are not set out as an after-tax/benefit cost.

[197] Consistent with the consent incorporated into the Order of October 26, 2015, I decline to deal with section 7 expenses claimed for the period of 2011 to 2017 but for daycare and preschool. Given the mother’s first three acknowledgments above, they would not be ordered in any event. With respect to daycare, I am left with:

a. the father’s blended proportionate obligation of 43% (average of 2011-2014) to apply to a supposition at what $11,962 in daycare over four years would have cost the mother in after tax dollars. b. the father’s rounded proportionate obligation of 40% to apply to a supposition at what $9,440 in preschool fees would have cost the mother in after tax dollars.

[198] The Family Responsibility Office (“FRO”) holds a balance in its account of $4,800. This amount was collected while the father was making payments directly to the FRO for daycare expenses, but during a period in which the mother had failed to inform him that she had stopped taking G. to daycare. Father’s counsel proposes that this figure be released to the mother as rounded satisfaction of any outstanding obligation. I accept the proposal, despite it being based on somewhat different variables: lower percentage share, but additional expenses; but for the costs of the play therapy incurred since October 12, 2016. Although not addressed by counsel, I wish to make certain they are appropriately paid. They have been of considerable value to G.

Security for Support

[199] The father holds an insurance policy on his life with Canada Life with a face value of $250,000. The beneficiary of the policy is his brother, J.Y, in trust for G. Assuming a continuation of table support until the age of 18, a minimum face amount would be $92,000. The father is prepared to maintain the whole of the face amount of $250,000 for his daughter. I agree that G.’s paternal uncle ought to continue as the trustee.

Orders to issue

[200] Orders to go (with numbering sequencing the earlier orders):

[16] The father shall pay $14,731 in fixed arrears of table child support as of July 31, 2017. [17] Commencing August 1, 2017 the father shall pay table child support of $639 per month, based on income of $70,000 per annum. [18] The father’s proportionate share of section 7 expenses incurred up to July 31, 2017 is fixed in the amount of $4,800, but for the costs of play therapy incurred since October 12, 2016. The amount of $4,800 held by the FRO is to be immediately released to the mother in satisfaction of this paragraph. [19] Support Deduction Order to issue. [20] Commencing August 1, 2017 the parties shall pay the costs of any uninsured health, medical, counseling, dental and activity costs in the rounded proportionate shares of 40% by the father and 60% by the mother. The costs of play therapy since October 12, 2016 are to be paid in the same percentages. Each parent is free to claim resulting deductions within their personal income tax returns. [21] All section 7 expenses for which a parent seeks the other’s parent’s contribution must be agreed in writing, which consent is not to be unreasonably withheld, at least seven days in advance of the expense, but for emergency care, or prescription costs. [22] Until such time as this Order is varied, or G. is no longer a dependent child, the father shall maintain a life insurance policy on his life in a face value of $250,000. The beneficiary of the policy shall be his brother, J.Y., who shall hold the funds in trust for G. [23] By June 1st of each year, starting in 2018, the parties shall exchange tax returns, Notices of Assessment, and income information for the prior taxation year.

Closing Comments

[201] I make two comments in closing. First, I thank both counsels for a well-organized and focused trial in the most challenging of circumstances. Each counsel conducted her case in an exemplary fashion.

[202] Second, I ask the parents and their supporters to consider making a new way forward. Trial decisions do not in themselves end conflict. Only parents can make that happen. Much is at stake. If the mother and her allies can accept that G. is safe in her father’s care, and that he loves her; and if the father can treat the mother with the utmost in civility, perhaps G.’s future can unfold in the ordinary course, with two fully engaged parents. G. deserves no less. Grade One awaits.

Costs

[203] Unless otherwise agreed, the applicant shall serve and file his costs submissions by August 11, 2017, response from the respondent by September 1, 2017, reply by September 13, 2017. Submissions are limited to five pages, exclusive of Offers to Settle and Bills of Costs.

Justice H. McGee

Released: July 19, 2017

[1] For excellent academic articles that explore gatekeeping well beyond the cursory introduction in this Decision, start with Parental Gatekeeping and Child Custody/Child Access Evaluation: Part I: Conceptual Framework, Research, and Application William G. Austin, Marsha Kline Pruett, H. D. Kirkpatrick, James R. Flens & Jonathan W. Gould, Family Court Review, 2013, Vol. 51(4); and Adaptive and Maladaptive Gatekeeping Behaviours and Attitudes: Implications for Child outcomes After Separation and Divorce Michael Saini, Leslie M. Drozd and Nancy W. Olesen, Family Court Review 2017,Vol. 55(2) [2] G. references “girl” and is not necessarily the child’s initial. [3] For example, the mother took her then six-month-old daughter (with her husband, G.’s half-sister) on an excursion to Florida during her marriage. The parties took both the mother’s children with them on their babymoon. [4] As recorded by the OCL clinician. [5] One must wonder whether G. was expressing her own identity as one that must be hidden. Or maybe she was just playing in the sand. [6] The father resides in a condominium. [7] R v. Khan, 1990 Carswell 108, [1990] 2 S.C.R. 531, paras. 31-32 [8] Ibid. [9] Catholic Children’s Aid Society of Metropolitan Toronto v. B. (S.), 1998 CarswellOnt 5962, [1998] O.J. No. 6445. [10] Garrow v. Woychesen, 2008 ONCJ 686, Sinclair v. Sinclair, 2013 ONSC 1226, Szakacs v. Clarke, 2014 ONSC 7487. [11] When issuing and entering this order G.’s changed surname is to be included in the order, including her birth date, and her parents’ full names. This will insure enforceability. If there is any dispute as to the terms of the Final Order, I may be spoken to on a priority basis. [12] Bekkers v. Bekkers, 2008 CarswellOnt 173, [2008] W.D.F.L. 1514, para. 17 [13] Ibid, para. 18. [14] Ibid, paras. 20-21. [15] Ford v. Shuter, 2011 ONSC 4229, 2011 CarswellOnt 7019, para. 20, Supplementary BOA, Tab 10. [16] McCombe v. McCombe, 2014 ONSC 2399 [17] Ibid, para. 36. [18] Kripotos v Kripotos, 2004 BCSC 37 [19] The mother expressed outrage at the prospect that his monthly gambling losses might be in excess of child support payments. The evidence did not support such an assertion, but even if it did, it would only be relevant were the father paying no child support. As long as he is paying appropriate child support, fettering away the balance of his livelihood serves only to harm himself - and his ability to stand as a primary care parent. [20] The mother points to a balance of approximately $85,000 in a business account, but a view of the period immediately following shows the moneys paid out. A broader view shows frequent peaks and valleys of funds as cars are purchased and sold. [21] Drygala v. Pauli, [2002] O.J. No. 3731, Ont. C.A. [22] As required in section 7(3) Federal Child Support Guidelines.