CITATION: Davies v. Murdock, 2017 ONSC 4763

COURT FILE NO.: FC-13-2186

DATE: 2017/08/04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Brie Davies Applicant

– and –

Matthew Murdock Respondent

Stephen Pender, for the Applicant

Jennifer Reynolds, for the Respondent

HEARD: Jan 18-20, 22, 25, 26-29 2016, March 1-3 2016, September 14, 26, 28-30, 2016, October 7, 2016, November 16-17 2016, Written Submissions by December 2, 2016

REASONS FOR JUDGMENT

BLISHEN J.

Introduction

[1] The trial of this matter focused on what parenting arrangements are in the best interests of soon to be eleven year Kirsten and nine year old James, now most often referred to at his request, as Rosie.

[2] Kirsten Davies Murdock is a bright, active, outspoken, intuitive and loving ten year old girl. She is empathetic, caring and very protective and supportive of her sibling Rosie/James, with whom she has an extremely close relationship.

[3] Rosie/James is at this point in her/his life gender non-conforming. She/he is a bright, energetic (at times boisterous), caring, creative child. As with Kirsten, Rosie/James has a close and loving relationship with her/his sister.

[4] Both Brie Davies and Matthew Murdock are bright, capable individuals and loving parents, who have completely different parenting styles. Sadly for their children, since separation, their relationship has been characterized by an extreme lack of trust. Although both have attempted to be respectful and not overtly hostile, their relationship can now only be described as conflictual. This has taken its toll on their children who now suffer from anxiety in varying degrees for reasons to be further discussed below.

[5] Since separation, Ms. Davies and Mr. Murdock have had joint custody with respect to decision making and an equal shared parenting schedule for the children. This has been the status quo for almost four years. Both parties argue such an arrangement is no longer in the children’s best interests.

Issues and Positions of the Parties

[6] Ms. Davies requests sole custody and for the children’s primary residence to be with her, with access to Mr. Murdock every second weekend. She argues she has been the children’s primary care giver and decision maker throughout their lives. She notes that with the exception of one two year period (2009-2011) during which she was completing a graduate degree and the children were in daycare, she was a stay at home care provider.

[7] Ms. Davies claims Mr. Murdock was “emotionally and verbally cruel” and at time sexually abusive during their relationship. Since separation, she states there has been a limited ability to communicate effectively with Mr. Murdock regarding the children’s needs and interests. Frequently, he does not respond to emails regarding issues she considers important. In addition, Mr. Murdock has not provided adequate medical care for the children nor has he been able to meet their emotional needs. In particular, she argues, Mr. Murdock has not been supportive of the fact that his youngest child is gender non-conforming and now identifies as Rosie. Finally, it is her position that Mr. Murdock focuses on her previous mental health difficulties. He is fixated in his view that she is personality disordered and unable to adequately parent, despite evidence that she has diligently addressed her mental health challenges and has made significant progress since the date of separation.

[8] Mr. Murdock initially indicated co-parenting would be the ideal. However, he now requests sole custody with defined access to Ms. Davies. Mr. Murdock disputes the characterization of Ms. Davies as the primary care giver throughout the relationship and argues both parties were actively involved in caring for the children on a daily basis and shared equally in decision making.

[9] Mr. Murdock denies Ms. Davies’ allegations of emotional, verbal and sexual cruelty during the relationship. He notes she had issues with sexual intimacy pre-dating their relationship for which they sought professional help.

[10] Mr. Murdock argues there has been a continual campaign against him since the date of separation including unfounded allegations of abuse and neglect of the children made to the Children’s Aid Society and police by Ms. Davies and her parents. He characterizes Ms. Davies as a hyper-vigilant, over-reactive parent who outsources her parenting to professionals including doctors, psychologists, and the Children’s Aid Society. He describes the children as happy, healthy and not displaying symptoms of anxiety when with him. Finally, although he acknowledges his youngest child has now been assessed as gender non-conforming, Mr. Murdock questions the legitimacy of this identification and believes that Rosie/James is being forced to play out Ms. Davies’ agenda.

Background

[11] The parties met in 1999 when both were attending the University of Western Ontario in London. They began their relationship in August 2000 and commenced residing together in September 2001, ultimately marrying on August 13, 2004. Neither party describes any significant relationship difficulties in their early years together, although Ms. Davies was struggling with significant mental health problems including: post-traumatic stress disorder, suicidal ideation and self-harming relating to a sexual assault suffered in early adolescence. Ms. Davies describes chaos for a few years commencing in late 2001 when she experienced increased suicidal ideation, anorexia nervosa, anxiety and depression. She found it difficult to sleep and was not able to work. The prescribed anti-depressants appeared to worsen her symptoms. Mr. Murdock supported her throughout and assisted in finding psychiatric help and took her to emergency when her symptoms and worsened.

[12] In February, 2005 on the advice of a psychiatrist specializing in mood disorders, Ms. Davies stopped taking anti-depressants and her mental health appeared to stabilize. Although anxious about entering the work force, she was excited about the prospect of having children. Kirsten Anne Davies Murdock was born on September 1, 2006 and two years later, James Brian Davies Murdock was born on April 18, 2008. Ms. Davies was doing well at that time, breastfeeding and caring for the children, while Mr. Murdock was employed full time as an engineer in London. After James was born, Kirsten attended daycare most days while Ms. Davies remained home with James.

[13] Ms. Davies was anxious to continue her education and decided to pursue a Master’s degree in social work at Carleton University in Ottawa where her parents resided. Mr. Murdock was working full time as a consulting engineer and was able to arrange a transfer to Ottawa. The parties moved in August, 2009 and Ms. Davies commenced her Master’s program that fall. The parties hired a nanny in September/October 2009 and then arranged for the children to attend all day daycare which continued until Ms. Davies graduated in 2011. In September, 2011, Kirsten was attending kindergarten and went to daycare after school. In addition, James attended daycare as needed. Both parties shared the picking up of the children and the morning and evening routine. Ms. Davies made all medical appointments and took the children.

[14] Unfortunately Ms. Davies’ mental health difficulties resurfaced. She was under the care of psychiatrist, Dr. Eric Knight, commencing in 2009. Although she was able to complete her Master’s degree, her mental health issues escalated and she became significantly debilitated in 2011. In the fall of 2011, her psychiatrist, Dr. Knight, wrote supporting her request for a daycare subsidy, “Ms. Davies is undergoing ongoing medical treatment for a serious medical condition requiring her to have two lengthy hospital appointments per week plus two additional medical appointments. She is too debilitated to look after her children full time and is unable to work full or part time. Hopefully she will be well enough to work part time or care full time for her children by January 2012.” (Exhibit 7 Tab H)

[15] In a letter dated July 1, 2011, (Exhibit 7 Tab M), Dr. Knight asked a colleague at the Royal Ottawa Hospital to see Ms. Davies on an emergency basis as her “illness has reached a level of crisis”. Dr. Knight queried whether electro-convulsive therapy (ECT) was an option to treat Ms. Davies’ severe depressive symptoms and suicidality. ECT was arranged for Ms. Davies as an outpatient and Dr. Knight testified that by the summer of 2012, Ms. Davies had turned the corner and was functioning well.

[16] Unfortunately communication problems and difficulties in the relationship escalated in late 2012 and 2013. Ms. Davies testified her biggest concern was Mr. Murdock’s lack of respect for her sexual boundaries. This was significant, particularly given the sexual assault she suffered as a teenager. Dr. Knight met Mr. Murdock on two occasions to discuss this issue. The doctor emphasized to Mr. Murdock his behaviour could trigger Ms. Davies and discussed the need to create a sense of safety for her.

[17] Unfortunately, Ms. Davies continued to feel unsafe in the relationship and the parties agreed to separate on July 12, 2013, although they both continued residing in the matrimonial home until August 28, 2013. After Mr. Murdock returned with the children from a ten day vacation to British Columbia to visit his family, Ms. Davies left the home. Mr. Murdock continues to reside in the matrimonial home. With the assistance of her parents, Ms. Davies found rental accommodations close to her parents’ in a different neighbourhood.

[18] In September, 2013, Ms. Davies filed an application for divorce, spousal support, custody of the children, child support, and equalization of net family property. The parties were divorced by order dated October 21, 2014 and were able to settle the issues of spousal support, and equalization of net family property. Mr. Murdock has also been paying child support.

[19] The dispute regarding parenting arrangements for the two children has continued since September 2013. The parties continue to attempt joint decision making. The children reside equal time with both parents on a 2-2-5-5 parenting schedule. Mr. Murdock has the children every Monday and Tuesday; Ms. Davies has the children every Wednesday and Thursday and they alternate weekends. Exchanges normally take place at the children’s school. Although there was a dispute regarding the appropriate school for the children for the 2016-2017 school year they continue to attend Robert Bateman Public School. Kirsten is in grade 5 and Rosie/James in grade 3.

[20] A week on week off schedule was agreed upon for the summer. However, Ms. Davies raised concerns, which will be detailed below, about the father’s care of the children in late May 2016 which resulted in Kirsten and Rosie remaining in their mother’s care from June 1^st to July 15^th. In August, 2016, the 2-2-5-5 parenting schedule was reinstated by Mr. Murdock.

[21] On April 23, 2014, the court referred the parenting issues to the Office of the Children’s Lawyer (OCL) for a clinical investigation and recommendations pursuant to s. 112 (1) of the Courts of Justice Act. A report prepared by clinical investigator, social worker Nadine Crowley, was prepared dated December 12, 2014. The report recommended joint custody with a week on week off parenting schedule and a mid-week overnight visit. It was recommended that major decisions regarding the children’s medical care, treatment, and educational needs be made in consultation with professionals working with the children. If the parents were unable to agree, it was recommended they work through a parenting coordinator. Counselling was suggested for both parents along with parenting programs. Finally, it was recommended that Kirsten receive psychological assistance and James attend play therapy. Rosie/James’s gender non-conformity had not emerged at that time.

[22] Ms. Davies filed a Notice of Dispute of the clinical investigation report challenging a number of the factual findings as well as the recommendations. Attached to the Dispute were three Appendices written by Ms. Davies, her father and her then boyfriend. The OCL released two corrections/addendums on January 22, 2015 and March 24, 2015 correcting three errors in wording but maintained there were no further factual errors and no additional information had been received which would lead to a change in any of the recommendations.

[23] Prior to receiving Ms. Crowley’s recommendation for counselling for the children, the parents had arranged for them to receive counselling from Jennifer Williams, a social worker to assist with issues around the separation and managing stress. Ms. Williams met with Kirsten on five occasions and James on four, commencing July 2014. She also met with the parents. Ms. Williams was open to continue working with the children to address anxiety issues. Mr. Murdock agreed but on December 19, 2014, Ms. Davies withdrew her consent and proposed the children attend counselling with psychologist Dr. Zohar BenDavid-Streiner, who had been recommended by Ms. Crowley. The parties could not agree. At the settlement conference on April 10, 2015 an agreement was reached and an order made on consent that the children be assessed by child psychologist, Dr. BenDavid-Streiner and the parties follow the doctor’s treatment plan for both children. The cost of the assessment and treatment was to be equally shared by the parties. Dr. BenDavid-Streiner saw the parents in individual sessions in June and July 2015 and began seeing Kirsten on June 22, 2015. She began seeing Rosie/James on July 22, 2015. Dr. BenDavid-Streiner continues as the children’s counsellor and psychologist. She testified and provided four letters which were filed as Exhibits.

[24] In late fall 2014, Ms. Davies began to notice that James wanted to wear girl pyjamas all the time and began indicating that at times he felt like a girl and at times like a boy. By April 2015, James was more consistent indicating that he felt like a girl. In mid-April 2015, he told his maternal grandfather that his name was “Rosie”, a name he picked because he liked roses. By the summer of 2015, when with his mother, he was choosing to wear girl clothes and wanting to be called Rosie. At school however, he still wished to be called James and expressed mixed feelings. Mr. Murdock indicated he did not see this gender non-conforming behaviour. James was still James at his home. Ms. Davies reported the child had angry outbursts at times upon returning from the father’s home and expressed feelings of self-harm. She was understandably concerned.

[25] In September, 2015, Dr. BenDavid-Streiner referred Rosie/James to the Children’s Hospital of Eastern Ontario (CHEO) Gender Diversity Clinic regarding exploration of gender identity. The parents met with the director of the clinic, psychiatrist Dr. Stephen Feder who agreed to see James /Rosie and do an assessment. By the end of the trial, the child had met with Dr. Feder on four occasions.

[26] In addition to the referral from Dr. BenDavid-Streiner, the children’s medical doctor, Dr. Kaplan-Myrth referred Rosie/James to the Gender Diversity Clinic and to the psychiatry department at CHEO in November, 2015. Both Dr. BenDavid-Streiner and Dr. Kaplan-Myrth were concerned about the parents’ completely different approaches to the issue of gender identity. As noted above, Ms. Davies was accepting of the child’s gender non-conformity and change of name. Mr. Murdock believed and continues to believe that his child is being forced to play out the mother’s agenda; that interactions with professionals are scripted and not reflective of the child’s true feelings and desires.

[27] How this little nine year old child identifies, whether as a girl, Rosie or at times as his cis gender, James and whether the feelings of non-conformity are genuine or scripted became a major issue in this trial. What is clear, based on the evidence of both Dr. BenDavid-Streiner and Dr. Feder, is this nine year old child who now identifies most frequently as Rosie, requires a common, consistent approach by a strong collaborative team to support her/him on this difficult and challenging journey. It is critically important, that if possible, the parents work together, coherently, logically and consistently.

[28] In addition to the issue of gender non-conformity and the special attention and support it requires, Kirsten, now close to eleven years old, also has some identified special needs. According to Dr. BenDavid-Streiner, she suffers from significant anxiety which requires ongoing psychological assistance. Mr. Murdock states he does not notice any significant anxiety when the child is with him. Kristen also has medical issues including: allergies, asthma and a gynecological dermatological condition which requires care and attention. She has had attention and spelling difficulties at school. A psycho educational assessment done pre-separation did not identify attention deficit disorder despite Ms. Davies’ concerns. Ms. Davies believes Kirsten should have a full updated psycho-educational assessment. Again, Mr. Murdock does not believe this is necessary. Dr. BenDavid-Streiner indicated a limited educational assessment to deal with spelling difficulties could be of assistance.

[29] As previously noted, Ms. Davies has a MSW. She is now employed close to full time by the Sexual Assault Support Center in Ottawa as a direct services coordinator. Mr. Murdock continues his work as an engineer doing consulting on a full time basis with flexible working hours.

[30] On August 28, 2014, a consent order was made requiring Mr. Murdock to pay child support in the amount of $1,022.00 per month and spousal support of $872.00 per month. A further consent order was made on July 27, 2016 terminating spousal support as of August 31, 2016 and ordering child support to continue in the amount of $1,022.00 per month. Mr. Murdock’s last financial statement sworn September 14, 2016 indicates an annual income of $106,469.88 which, when grossed up for non-taxable income equals $108, 426. Ms. Davies’ annual income is approximately $41,000. Mr. Murdock takes the position, whatever the outcome in terms of parenting time, he will not request child support from Ms. Davies. The parties agreed to share any special and extraordinary expenses pursuant to s. 7 of the Child Support Guidelines in proportion to their incomes.

[31] As previously indicated, the parties’ ability to communicate, cooperate and collaborate in order to meet the needs and interests of their children has become severely compromised over the course of these proceedings. In fact, the conflict and dispute between the parents caused the children’s doctor Dr. Kaplan-Myrth to withdraw her services in February, 2016. As of December, 2016, the parties had not been able to agree on an appropriate replacement.

[32] Ms. Davies characterizes Mr. Murdock as a non-communicative, passive aggressive liar who in no way trusts her judgment or the judgment of the professionals with respect to the needs of their children. Mr. Murdock characterizes Ms. Davies as a manipulative personality disordered individual who exaggerates and at time manufactures issues with respect to the children and outsources her parenting responsibilities to professionals. Their parenting styles are dramatically different and there appears to be no common ground. Despite it all, the children do well in school and present to outside observers as generally happy, bright, energetic and engaged. However, according to the evidence of the professionals involved with the children, including Dr. BenDavid-Streiner and Dr. Feder, the on-going long term mental health and well-being of these two children is in significant jeopardy, due to the oppositional and conflictual relationship between their parents, both of whom they dearly love and want to please.

Legislation

[33] Both Ms. Davies and Mr. Murdock seek an order pursuant to s. 16 of the Divorce Act for sole custody of Kirsten and Rosie/James. Both argue that control over decision making and physical custody be awarded to them as being in the children’s best interests.

[34] Section 16 of the Divorce Act indicates the merits of any application for custody or access must be determined on the basis of the best interests of the child. Section 16 (8) states:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

[35] Although there are a multitude of factors that impinge on a child’s best interests, in an application under the Divorce Act the court may also have reference to the non-exhaustive list of best interests considerations under s. 24 (2) of the Children’s Law Reform Act. Those considerations are outlined as follows:

s. 24 (2) The court shall consider all the child’s needs and circumstances, including,

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

(iii) persons involved in the child’s care and upbringing;

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[36] In considering the background and past conduct of the parties, section 16 (9) of the Divorce Act makes it clear the past conduct of a person is not relevant to a determination of custody or access “unless the conduct is relevant to the ability of that person to act as a parent of a child.”

[37] Pursuant to s. 16 (10), the court is required to give effect to the principle that children of the marriage should have maximum contact with both parents to the extent consistent with the best interests of the children. Therefore, the court must take into consideration the willingness of the person seeking custody to facilitate such contact.

Past Conduct

Ms. Davies

[38] As previously noted, Mr. Murdock argues Ms. Davies continues to suffer from mental health difficulties and is personality disordered which impacts on her ability to parent Kirsten and Rosie. He argues she overreacts and abdicates her parental responsibilities to professionals.

[39] Ms. Davies has acknowledged her previous mental health difficulties which are well documented and reported on by Dr. Knight, Ms. Davies psychiatrist since October, 2009. Since separation, Ms. Davies reports a gradual change in her mental health. She is no longer self-harming, her eating behaviour has stabilized and her depression has lifted. Her medication has been significantly reduced and she has not had any breakdowns or hospitalizations since separation. She continues to see Dr. Knight approximately once a month and has the continuing support of her parents, friends and co-workers. Ms. Davies works close to full time at the Sexual Assault Centre and is a well-respected, professional employee. No mental health problems have been noted in the workplace.

[40] In his report dated January 26, 2014 (Exhibit 6 Tab 9), Dr. Knight notes the following:

“Since she made the decision to physically separate from her husband on July 9, 2013; her suicidalities have completely disappeared and her self-cutting behaviour has also stopped completely for the longest time in many years. She also has been able to decrease her medications dramatically…..”

[41] Dr. Knight notes Ms. Davies last crisis hospitalization was in 2005, twelve years ago, and concludes his report:

“Her prognosis is excellent for continuing improvement of her symptoms of anxiety, sleep disturbance and trigger panic episodes. Her sense of self-esteem is incredibly improved and I expect will continue to do so.”

[42] In his report dated July 14, 2014 (Exhibit 7, Tab G), Dr. Knight notes:

“Since my previous letter, as I expected, Ms. Davies has continued to make progress. She is no longer clinically depressed and continues not to have significant cutting urges or suicidal thoughts. She has been able to decrease her Seroquel to 100 milligrams daily.

Her mood, energy, attitude, self-concept and optimism have all blossomed after she left her marriage. She no longer has significant irritability and is able to enjoy life.

From my discussions of her parenting throughout my clinical sessions with her, I have no doubt whatsoever that she is fully capable of being a full time autonomous single parent, without the support of others.”

[43] Dr. Knight noted he is not a specialist in child custody and has not assessed the children nor has he done a family assessment. Nevertheless he had no concerns in July, 2014 nor when he testified at trial that Ms. Davies’ ability to parent was in any way compromised by mental health problems. Dr. Knight did not diagnose a personality disorder and testified that Ms. Davies is “a normal, fully functional” individual. He indicated she was stable and often cheerful. Although stressed regarding her relationship with Mr. Murdock and the court case, she was able to maintain an even tempered mood.

[44] Based on the evidence of Dr. Knight which was not significantly challenged, I find on a balance of probabilities that, although Ms. Davies had significant mental health challenges in the past, those are now under control and do not impact on her ability to parent Kirsten and Rosie.

Mr. Murdock

[45] Ms. Davies argues Mr. Murdock crossed sexual boundaries with her throughout their relationship. Mr. Murdock denied any form of sexual abuse. He noted Ms. Davies had issues with sexual intimacy predating the parties’ relationship. As discussed above, Ms. Davies was sexually assaulted as an adolescent resulting in significant mental health difficulties. Mr. Murdock sought assistance and saw a counsellor commencing in April 2013, regarding concerns that he might be acting sexually inappropriately with Ms. Davies. He worked with his counsellor, Ray Robertson on setting boundaries with Ms. Davies.

[46] Dr. Knight saw Mr. Murdock on two occasions to clarify Ms. Davies’ sexual boundaries. Ms. Davies continued to report that Mr. Murdock was breaching her sexual boundaries. Dr. Knight was concerned about Mr. Murdock’s lack of empathy and inability to respond appropriately to the other persons’ needs. He believed Mr. Murdock to be a selfish individual who wished to control the parenting situation instead of co-operate. Dr. Knight only met Mr. Murdock twice and did not complete a psychiatric assessment. He was candid that he could not reach any conclusion as to a possible diagnosis. Ms. Davies was his patient and meeting her needs was his focus.

[47] According to both parties there were indeed difficulties with Mr. Murdock respecting Ms. Davies sexual boundaries during their relationship. However, based on the available evidence, I do not find on a balance of probabilities Mr. Murdock was sexually abusive towards Ms. Davies. Further, I do not find this past conduct to impact on Mr. Murdock’s ability to parent Kirsten and Rosie.

[48] Commencing in October 2013, Ms. Davies reported numerous concerns to the Children’s Aid Society regarding Mr. Murdock’s ability to care for the children. In particular, in October 2013 and March 2014, she reported concerns that Mr. Murdock physically abused James. The Children’s Aid Society investigated, interviewed the children and did not verify the allegations.

[49] In March, 2014, the Children’s Aid Society received an after-hours report from CHEO after Ms. Davies brought Kirsten to the hospital due to vaginal irritation. Ms. Davies expressed a concern the child may have in some way been sexually abused. Kirsten did not disclose any transactions of abuse. The Children’s Aid Society was later contacted by the doctor from CHEO who reported Kirsten was diagnosed with lichen sclerosis and was referred to gynecological services. There was no indication of any sexual interference.

[50] Based on all the evidence including testimony of the Children’s Aid Society child protection workers and the documentary evidence, I do not find on a balance of probabilities that Mr. Murdock has in any way physically or sexually abused either child.

Conclusion

[51] In conclusion, I do not find any past conduct of either parent that would impact at this time on their ability to parent these two children.

Evidence

[52] This trial proceeded over a twelve day period from January 18 to March 3, 2016. While the judgment was under reserve, the parties applied to the court to reopen the trial arguing there were new circumstances relevant to the best interests of the children. Both parties agreed there was material, relevant evidence which could change the ultimate decision by the court. Therefore, I exercised my discretion and granted the request to reopen the trial which proceeded for eight more days between September 14 and November 17, 2016 with written submissions in December, 2016.

Reopening of Trial

[53] Ms. Davies wished the trial reopened given a number of incidents regarding the father’s care of the children during the late spring of 2016 as follows:

1. He provided almond milk to the children knowing they had allergies;

2. He questioned the children in particular Rosie/James, about gender identity which he voice recorded;

3. He questioned Rosie/James in a department store about a possible wish to self-harm.

[54] Mr. Murdock agreed to the reopening given:

1. the disruption in the parenting schedule and his inability to visit with the children for many weeks during the summer;

2. a disagreement on the choice of school for September 2016; and

3. the further involvement of Dr. Feder and the Gender Diversity Clinic at CHEO.

[55] After the children’s parenting time with their father May 27-June 1, 2016, the children disclosed to Ms. Davies that Mr. Murdock made an almond milk smoothie and offered it to their children. Mr. Murdock was aware the children had nut allergies which could be life threatening, according to a March 2015 assessment by allergist Dr. Ham Pong. In addition, Kirsten disclosed Mr. Murdock had been questioning Rosie/James and recording her/his responses. Finally Kirsten reported that when the children were at a shopping mall, Mr. Murdock asked Kirsten why Rosie/James was threatening self-harm and he had not been informed.

[56] Ms. Davies was extremely concerned, particularly about the provision of almond milk to the children. She reported this matter to the Children’s Aid Society and in addition contacted Dr. BenDavid-Streiner. At that time, Kirsten indicated that she did not feel safe going back to her father’s home and appeared very anxious and scared about that possibility when meeting with Dr. BenDavid-Streiner.

[57] Mr. Murdock testified on the weekend he gave Kirsten a taste of his smoothie made with almond milk. When she asked him if there were nuts in it, he acknowledged it contained almond milk. Rosie/James also had a taste. Mr. Murdock stated he was not concerned as Dr. Ham Pong earlier told both parents almonds should be avoided as a precaution but they were not life threatening. A letter from Dr. Ham Pong dated July 8, 2016 verifies that while Kirsten has a peanut allergy and sensitivities to many tree nuts, she is not allergic to almonds. However, she has been advised to avoid them as a precaution. (Exhibit 29, Tab 1)

[58] After a meeting with Dr. Feder on May 25, 2016, when the doctor indicated Rosie/James was presenting as gender non-conforming, Mr. Murdock acknowledged questioning Rosie/James about how she/he sees Mr. Murdock’s role as a father and recording the child’s answers. Mr. Murdock testified he wished to impress upon his child the importance of telling the truth. Mr. Murdock was concerned the child was telling her/his father one thing i.e. that she/he wished to be James and Dr. Feder another thing, i.e. that she/he wanted to be Rosie. Mr. Murdock indicated he was questioning the child and recording it for clarification purposes and to demonstrate to Rosie/James that she/he was saying different things to different people.

[59] Mr. Murdock also acknowledged questioning Rosie/James in the department store. He stated there was a quiet moment in the store and he felt it appropriate to ask questions about the child’s threatening to self-harm. Rosie/James did not recall any instances of threatening self-harm. Kirsten also became involved in the discussion. Mr. Murdock did not offer any explanation as to why he chose this time and place to question the child.

[60] Mr. Murdock’s continual questioning of Rosie/James was inappropriately intrusive, unnecessary and stressful for the child. Mr. Murdock was putting his own needs and interests before the those of his child.

[61] Dr. BenDavid-Streiner saw Kirsten and Rosie/James on June 3, 2016. She noted Kirsten was very upset and reported fear and feeling unsafe with her father. She did not want to go back to his home.

[62] To reduce Kirsten’s anxiety and refusal to go back to her father’s home, Dr. BenDavid-Streiner concluded it would be in her best interests to initiate a step approach to reinstating contact with her father. The approach included, as reported in the doctor’s letter of July 8, 2016. (Exhibit 37)

1. contacting CAS and informing them about Kirsten’s experiences and concerns;

2. meeting with all professionals who work with Kirsten and Rosie/James to develop a plan;

3. contacting the school principal and informing her about the latest developments, including Kirsten’s anxiety about her seeing her father at school; and

4. meeting with the father to inform him about Kirsten’s feelings and to develop a plan to initiate safe contact with Kirsten.

[63] On June 17 a meeting was held with Dr. BenDavid-Streiner, Benjamin Forson, the Children’s Aid Society worker and Mr. Murdock in the doctor’s office to inform Mr. Murdock about Kirsten’s concerns and develop a plan. The doctor advised, based on Kirsten’s level of anxiety, it would best for her to have two more weeks away from her father in order to calm down. Kirsten should also have an opportunity to discuss her anxieties with her father with the doctor present. Following such a meeting Kirsten, her father, and Rosie/James could have a fun outing supervised by the CAS worker. A follow up activity could then be planned with the CAS worker to facilitate.

[64] Although Mr. Murdock appeared receptive and wanted to support his daughter, he did not follow the therapeutic plan. He testified he heard the advice but he was the parent and he makes the decisions regarding the children. He testified he knew ultimately Kirsten’s anxieties would be reduced simply through contact with him. Therefore, he attended at the school on June 27, 2016 to pick up the children. They were called down to the principal’s office. Rosie/James was happy to see her/his father and go with him but Kirsten became very upset, began crying and refused to go. Principal Jocelyn Fagan testified Kirsten had her fists clenched and was extremely stressed. Mr. Murdock talked softly and calmly to her and after about twenty minutes, Kirsten calmed down and hugged her father but still refused to go with him. Ultimately, Mr. Murdock left with Rosie/James.

[65] On June 29, 2016, there was a meeting between Dr. BenDavid-Streiner, Dr. Feder, CAS worker, Ben Forson and his supervisor. Concerns were raised about Mr. Murdock’s behaviours and his reluctance to accept that his child is presenting as gender non-conforming. There was an agreement that CAS would develop a plan with the father to reflect the issues discussed. He would need to stop providing almond milk to the children or any products containing nuts; he was to follow medical procedures and administer medication and to create an accepting home environment for Rosie/James. The CAS was to prepare a voluntary services agreement for Mr. Murdock’s signature.

[66] In keeping with the recommendations of Dr. BenDavid-Streiner, a meeting was arranged between Mr. Murdock and Kirsten. Dr. BenDavid-Streiner and Mr. Forson were in attendance. According to the evidence of both Dr. BenDavid-Streiner and Mr. Forson, Kirsten was able to tell her father what makes her anxious. She was crying and upset. Mr. Murdock was appropriate and supportive in his response. He told her he was sorry that she felt sad and anxious and talked about ways to do things differently in the future. Mr. Forson noted the dialogue was free flowing. Mr. Murdock and Kirsten were then left alone for about 10 minutes. By the end of the meeting, Dr. BenDavid-Streinner noted that Kirsten seemed calmer and conversed freely with her father. It was decided Mr. Murdock and the children would have a visit at the Museum of Nature, monitored by Mr. Forson.

[67] Mr. Forson reported that on July 6, 2016, they attended for the outing at the Museum of Nature. Mr. Forson’s intention was to observe some of the parent child interactions so he remained for the initial ten minutes. He then indicated to the children and Mr. Murdock he would occasionally check in but wanted them to have family time. He noted in his July 7, 2016 letter (Exhibit 29, Tab 4) he observed them at the museum engaged in activities and talking with each other and met with them at the end of the visit. Kirsten appeared to be quiet and stayed back, while Rosie/James hugged her/his father and said goodbye.

[68] After that visit, Mr. Murdock indicated to Mr. Forson he wished to resume visits with the children in accordance with the previous summer parenting arrangements. Mr. Forson advised he should speak with his lawyer.

[69] In the next session with Dr. BenDavid-Streiner on July 8, 2016, Kirsten indicated she thought her father had been audio recording the visit. Kirsten wanted to tell Mr. Forson but could not find him and was upset about this. Given Kirsten’s continued anxiety about spending a whole week with her father, Dr. BenDavid-Streiner recommended to continue with the step approach and start with a weekend. She recommended Kirsten and Rosie/James spend the next three weekends with their father and if those visits proceeded well, the parties could discuss changing back to the visitation schedule.

[70] After the visit at the museum, Ms. Davies contacted Mr. Forson and expressed her concern that he did not fully supervise the visit. She requested further supervised access between the father and the children before considering returning to the previous parenting arrangement. Mr. Forson indicated “I advised Ms. Davies that I didn’t see the need for further supervised access. As indicated to the father, I also informed Ms. Davies that the Society would not be intervening any further at this stage.” Mr. Forson concluded his July7, 2016 report as follows:

“Both the previous worker involved with the family and I have observed loving and nurturing interactions between the father and his children.

During the course of assessing the identified concerns, I found Mr. Murdock to be open to hearing any concerns expressed and, at this time, I feel that he demonstrates a genuine willingness to repair any mistrust that may exist with his children, and in particular with Kirsten.

The Society does not intend to become the intermediary between the two parents. It is not the Society’s role to take a position in the current custody/access issues before the Family Court. The Society’s mandate is to assess and address issues of child safety.

Although it is clear the children continue to be exposed to the disagreement that is arising from the separation of the parents, at this time, the concerns are not such that more intrusive action on the part of the Society is warranted.

I imagine this is a difficult situation for all family members involved. I believe that both parents genuinely love their children and want what is best for them….”

[71] As noted, Dr. BenDavid-Streiner recommended three weekend visits which proceeded. On the third weekend, Mr. Murdock kept the children until Wednesday which was not part of the plan. Ms. Davies wanted to reassess the situation and wanted Mr. Murdock to sign the voluntary services agreement drafted by the CAS. Mr. Murdock refused to sign the agreement; kept the children and the visiting schedule reverted back to the 2-2-5-5 arrangement August 2016.

[72] The evidence regarding the further involvement of Dr. Feder with Rosie/James, and her/his gender identity issues as well as their impact on school choice with be dealt with below.

Best Interests

[73] The evidence at trial focused in general on the physical, emotional, and educational needs of the children and the ability of the parents to meet them. There was a particular emphasis on the gender identity of Rosie/James and whether her/his feelings of non-conformity were genuine or scripted. Overall, the ability of the parents to collaborate, cooperate, and communicate in making decisions relating the ongoing needs of both children pervaded the trial.

Love, Affection and Emotional Ties between the Children and their Parents

[74] During the marriage, both parents were significantly involved with their children. Although Mr. Murdock worked full time while Ms. Davies was at home and not working, he spent morning and evening time with the children and was an active, involved parent. Both agree they parented well together and shared responsibilities, although during the year before separation, there were more difficulties.

[75] The children were in full time daycare from September 2009-November 2011 while Ms. Davies did her Masters in Social Work. In addition, as noted above she had significant mental health problems in 2011. However, Ms. Davies was largely the stay at home parent until she obtained employment. She was not immediately employed after obtaining her Masters in Social Work but did some volunteer work. More recently she obtained close to full time employment at a Sexual Assault Support Centre.

[76] The report of OCL clinical investigator social worker, Nadine Crowley noted that both children were comfortable in the care of both parents and appeared to have a loving and close relationship with their parents, maternal grandparents and paternal grandmother.

[77] The observations of Ms. Davies’ neighbour and friend, Joanne Bihari were that Ms. Davies was kind, firm, patient and explained things to her children. Her household was clean, friendly and affectionate. Ms. Davies herself described the love and affection she has for her children and the particular closeness she has with Kirsten.

[78] Similarly, Mr. Murdock’s neighbour, Alison Snasdell-Taylor described how her children often play together with Kirsten and Rosie/James. Her observations were that Mr. Murdock was calm, kind and generous with his children. Mr. Murdock described a loving, warm and close relationship with both Rosie/James and Kirsten; enjoying outings with them and in particular cooking with Kirsten.

[79] James spoke positively about both parents with Ms. Crowley and considered his parents and his sister to be his support system.

[80] Notably, when Kirsten and Ms. Crowley spoke alone during the visit at her mother’s home, “Kirsten immediately began to tell the clinician why she wanted to spend more time with her mother than her father” and provided “a litany of reasons why her mother’s care was better than her father’s” including:

• She did not like that the rules at her father’s house were different than those at her mother’s house;

• Her father did not listen to her concerns and requests; and

• Her father did not dress them properly nor give them the proper medication

[81] She noted she missed her mother and wanted to spend more time with her because she did not feel safe at her father’s home. (Trial Record, Tab 6, page 9) She stated that “she and her mother and grandparents all agree she should spend more time with her mother.” However, she also stated she just wants things to be “equal.” (Trial Record, Tab 6, page 12)

[82] Ms. Crowley reported “Kirsten also sees herself as her mother’s support. As a result, she appears to have formed an alliance with the mother that is not healthy. She is very dependent upon her mother for reassurance and shares her mother’s opinions and ideas about the father, as Kirsten parrots a lot of the mother’s concerns by using similar words and citing similar examples of concerns about what the father may have done wrong.” (Trial Record, Tab 6, page 11)

[83] Mr. Murdock was very concerned about the alliance between Kirsten and her mother and believed he was to some extent being alienated. However, Kirsten identified to Ms. Crowley that both her parents spoke negatively about each other at times and the maternal grandparents also spoke negatively about her father. She stated both her parents talked about adult stuff but added she asks a lot of questions, particularly of her mother. I do not find Kirsten has been alienated from her father. She continues to spend significant parenting time with him and expresses affection for him.

[84] Although Kirsten appeared to demonstrate an unhealthy alliance with her mother, based on all the evidence, I find there is indeed a great deal of love, affection and emotional attachment between Kirsten and Rosie/James and both their parents, as well as between the children themselves.

[85] Both children are also very close to their maternal grandparents who live close to their mother and who have provided her with a great deal of practical, emotional and financial support. The grandparents describe taking the children skating and swimming; going on numerous outings with them; helping them with homework and having sleepovers. These relationships are significant and important to both children and must be preserved.

[86] Mr. Murdock’s mother resides in British Columbia but visits from time to time. She also has a close relationship with the children. It is clear that the gender non-conformity issue has caused concern and anxiety for her . She has been involved in some questioning of Rosie/James in this regard which has been problematic for the child. Recently, the children reported to Dr. BenDavid-Streiner that their paternal grandmother yells a lot and they do not like it.

Medical Needs

[87] As previously noted, Kirsten was diagnosed in March 2014 with lichen sclerosis, a chronic gynecological skin condition. She is followed by the pediatric gynecology clinic at CHEO. This condition causes redness, white patches on the skin and at times abrasions in the genital area. It is treated with steroidal creams. Ms. Davies is concerned that Mr. Murdock does not make the cream available or remind Kirsten to apply it. Mr. Murdock is understandably reluctant to apply it himself and testified he reminds Kirsten to apply it. At this time, the condition is well controlled.

[88] Kirsten also suffers from asthma and allergies. There was a significant dispute between the parents regarding the management of these difficulties. Ms. Davies again expressed concern about Mr. Murdock’s lack of vigilance in ensuring Kirsten used her puffer as prescribed.

[89] In September and October, 2014, Kirsten was hospitalized due to asthma exacerbation in the context of enterovirus. Ms. Davies attributes the hospitalization in some part to Mr. Murdock’s neglect of the child. She testified that despite the fact Kirsten was not feeling well on the weekend with her father, he sent her to school on Monday morning. Mr. Murdock’s position was Kirsten had a cold and appeared to be avoiding school. He did not consider her cold a significant problem. Unfortunately, when Kirsten returned to her mother’s home, her coughing and breathing worsened and ultimately, she was admitted to the hospital.

[90] The OCL Report notes a doctor from CHEO spoke to Mr. Murdock by telephone to update him on Kirsten’s status and to confirm the diagnosis of asthma exacerbation. The report summarizes: “The doctor noted that the father expressed concern that the diagnosis of asthma may have been premature since she “only had a cold and has never been like this.” The doctor discussed the contributing factors that led to the diagnosis and the importance of ongoing management at home to avoid further exacerbations at which point the father agreed to administer the medications to Kirsten while in his care. Kirsten was diagnosed with the Enterovirus on September 29, 2014. In the Discharge notes, Dr. Jetty noted a history of complicated family dynamics and stressful environment and requested that they consider a social work consultation. On October 2, 2014 Kirsten was re-admitted to CHEO due to persistent asthma exacerbation in the context of the Enterovirus. Kirsten was discharged on October 15, 2014. On October 8, 2014, a doctor from CHEO contacted the CAS after Kirsten and her mother returned to the hospital as she felt as though Kirsten was suffering from “severe anxiety” after faking an asthma attack just to be re-admitted to hospital.” (Trial Record, Tab 6, page 31)

[91] After the hospitalization, CHEO recommended a pulmonary lung test. Mr. Murdock did not feel this was necessary but Ms. Davies took Kirsten to the test. Kirsten’s asthma is generally well controlled.

[92] Both Kirsten and Rosie/James have nut allergies. They were tested and assessed by allergist, Dr. Ham Pong in 2010 with what he terms “potential life threatening allergies to peanut and tree nuts especially cashews” (Exhibit 29, Tabs 5 and 6). The doctor advised both children to always carry epi-pens and to avoid foods with potential cross contamination including foods with labels that read may “contain nuts.” He also diagnosed both children with environmental allergies including cats and dogs and recommended avoidance of those animals as much as possible.

[93] There was a significant dispute as to the management of Kirsten’s asthma and allergies. Mr. Murdock exposed Kirsten to cats at his new girlfriend’s home. He indicated this did not appear to be a major problem and again took a more relaxed approach to the issue, whereas Ms. Davies was concerned and felt any exposure was inappropriate. As noted above, Kirsten’s nut allergies became a significant issue in late May 2016 when Mr. Murdock exposed her to almond milk.

[94] In 2014, Rosie/James was suffering from a number of urinary tract infections was and prescribed a specific laxative for constipation. Mr. Murdock provided a different non-prescribed alternative laxative. Ms. Davies’ objected. This again resulted in a great deal of email correspondence back and forth.

[95] Overall both parents have generally been able to meet the day to day medical needs of their children. However, I find Ms. Davies to be vigilant as to those needs and in following the advice and recommendations of the doctors. She makes the appointments, take the children and follows up. Mr. Murdock takes a more relaxed approach and does what he believes is right, which has at times caused medical difficulties for his children.

Educational Needs

[96] Rosie/James’s gender non-conformity and its impact on school choice will be dealt with below.

[97] Both children are doing well in school. Kirsten has just finished grade 5 and Rosie/James grade 3 at Robert Bateman Public School where both have attended since kindergarten. Robert Bateman principle, Jocelyn Fagan, testified as to her own observations and those documented by the teachers of both the children and parents from September-December, 2016. She noted the children were doing well in class and appeared to be happy, participating and learning well. There were no observations of distress reported to her. Ms. Fagan herself observed that Mr. Murdock made inquiries and appeared to have a genuine interest in his children. He was supportive of the school and took the time to say “Hello”. The children appeared happy to leave with him. Similarly, the children were happy to see and leave with their mother. Ms. Fagan testified Ms. Davies is the parent who will identify issues and concerns regarding her children and will often want a quick response.

[98] As previously noted, Dr. BenDavid-Streiner recommended a limited educational assessment in September, 2016 given Kirsten’s difficulties with spelling. Mr. Murdock responded that he was helping with her spelling; she was doing better and there was no need for an assessment. On the other hand, Ms. Davies wished a full psycho-educational assessment. Kirsten had one done previously and Ms. Davies believed an update would be of assistance. None had been done prior to the conclusion of the trial.

Psychological and Emotional Needs

Evidence of Dr. Zohar BenDavid -Streiner

[99] The children’s psychologist, Dr. BenDavid-Streiner presented her evidence and reports as a participant expert. She was permitted to give some opinion evidence based on her observations and involvement with the children over a sixteen month period prior to the end of the trial.

[100] As previously noted, a consent order was made April 10, 2015 for the children to be assessed by Dr. BenDavid-Streiner and for the parties to follow the doctor’s treatment plan for the children. Prior to that order being made, Ms. Davies had contacted Dr. BenDavid-Streiner and referred both children for anxiety and adjustment to the separation.

[101] Dr. BenDavid-Streiner provided reports dated January 16, 2016(Exhibit 19, January 20, 2016 Exhibit 20) July 8, 2016 (Exhibit 37) and September 3, 2016 (Exhibit 38). The latter 2 reports were introduced after the reopening of the trial in September 2016.

Kirsten

[102] Dr. BenDavid-Streiner first saw Kirsten in June, 2015 and has been seeing her regularly ever since.

[103] Both parents completed intake questionnaires prior to the first meeting and reported very different observations. Ms. Davies described Kirsten as being unhappy at her father’s house following the separation and expressing a wish to spend more time with her mother; feeling isolated at her father’s house and lacking privacy. She also described her daughter as having problems focusing and concentrating; having homework difficulties; becoming very angry when being corrected while doing homework and reporting feeling stupid.

[104] Mr. Murdock did not report symptoms of anxiety nor educational issues. He reported Kirsten was an “A” student and displayed confidence in many aspects of learning. Mr. Murdock was concerned that Ms. Davies and her parents were alienating him and placing Kirsten in a conflict of loyalty. He echoed the concerns outlined in the OCL report of an unhealthy alliance between Kirsten and her mother. He stated Kirsten was being made aware of the conflict between her parents and was encouraged to “spy and report back”.

[105] A great deal of Dr. BenDavid-Streiner’s evidence both via voce and in her reports consisted of what the children stated to her was occurring in the parents’ homes. No voir dires were conducted and it was made clear the statements of the children were admitted not as to their truth but as to children’s states of mind and at times as part of the narrative about certain incidents later testified to by her parents.

[106] In the first five sessions, Kirsten expressed many anxieties and worries about her mother and her grandparents and also about making mistakes at school. She was introduced to cognitive behaviour therapy (CBT) and strategies to manage anxiety.

[107] In terms of her relationships with her parents, she described feeling close to her mother and to her brother. She stated she wished to see her father but wanted more time with her mother, although she did not want to express this wish to her father. Kirsten expressed love and affection for her father but reported some challenges with living with him as he was at times “mean to her” and “he yells me and my brother, mostly me”. (Exhibit 20, page 4). What this really means is unclear. When the issue was raised with Mr. Murdock he indicated he got upset with Kirsten when she tried to help James with his homework as he was concerned about burdening her with adult responsibilities. Dr. BenDavid-Streiner encouraged him to praise Kirsten for her desire to help her brother, as she has a nurturing disposition. Kirsten also indicated distress as she was not allowed to call her mother whenever she wanted when at her father’s home. Again this was discussed with Mr. Murdock who stated he wanted to create a comfort level with his daughter so she could turn to him when she needed to discuss issues. Mr. Murdock was encouraged to be flexible and patient in efforts to help his daughter feel more comfortable talking to him.

[108] Kirsten’s concerns regarding her health issues were also part of the sessions with Dr. BenDavid-Streiner. She indicated one reason she would like to live with her mother more was that she needed to put the cream in “private areas” as part of her gynecological skin condition. She was not comfortable doing this herself and did not want her father to do it. Kirsten also expressed a concern that her father did not listen to her complaints about her health at times. She did not understand why he acted that way.

[109] Mr. Murdock’s positon was Kirsten was “made to feel chronically ill in order to receive maternal affection”. (Exhibit 20, page 2). The doctor encouraged Mr. Murdock to be mindful and indicated his position could negatively impact his ability to assess daily issues about his daughter’s health concerns or his decisions during health crises. Kirsten also stated her father stopped giving her allergy medications and she reported having respiratory issues after spending several days at her father’s girlfriend’s house with three cats. The exposure to cats was confirmed by Mr. Murdock who indicated, although Kirsten has asthma, she did not react significantly.

[110] Finally, Kirsten discussed her brother’s struggles with gender and the fact that “she doesn’t like it when people don’t accept her,” referring to Rosie. Kirsten expressed worry and anxiety about her brother and the fact that she/he at times engages in negative self-talk. The doctor introduced her to positive coping statements to use when this happens.

[111] Dr. BenDavid-Streiner saw Kirsten for 10 individual sessions from June 2015 to January 5, 2016 and concluded in her report dated January 19, 2016 (Exhibit 20) at page 8:

“In summary, Kirsten is a sensitive, articulate, well-meaning child, who loves both of her parents and wants a strong connection with each of them. However, Kirsten feels caught in a difficult situation because of her parent’s separation, dynamics with Rosie/James and some patterns of interactions with her father.”

[112] Dr. BenDavid-Streiner concluded that Kirsten’s long term mental health would be enhanced by greater stability and less conflict. She would continue to benefit from therapeutic relationships with professionals. Ms. Davies agrees, Mr. Murdock does not.

Rosie/James-Gender Non-Conformity

[113] As previously noted, by April, 2015 James was telling his mother he wanted to be a girl and wanted to be called Rosie. He first told his maternal grandfather in April his name was Rosie and during the summer of 2015, wished to wear girls clothes and be called Rosie while at home with his mother and on excursions with her, his sister and maternal grandparents.

[114] Dr. BenDavid-Streiner first met Rosie/James on July 22, 2015 and has seen him/her consistently ever since.

[115] Ms. Davies reported to the doctor her concerns about James’ anxiety and adjustment to the separation. She also reported his desire to be called Rosie and display of gender identity confusion. The child was not displaying these behaviours at the father’s home and had not discussed, apparently, his feelings with his father. In the following ten sessions, Dr. BenDavid-Streiner addressed the following issues:

1. James fears and anxieties and ways to address them;

2. James self-harm behaviours and ways to cope with intense emotions and fears;

3. James’ desire to be accepted as Rosie by his father and his concerns about his father’s reaction

4. James’ desire to be called Rosie at school

[116] James reported a number of fears some of which he attributed to a TV show he was watching with his father and sister, Murdock Mysteries. James reported that his father was not aware as he did not share his fears with his father. When Dr. BenDavid-Streiner discussed this issue with Mr. Murdock, and recommended that James not be exposed to this show, Mr. Murdock was receptive.

[117] Both James and Ms. Davies reported self-harm behaviours i.e. hitting himself when he was frustrated or experiencing strong emotions. Strategies were introduced to James to regulate strong emotions. Dr. BenDavid -Streiner believed one of the reasons for James’ frustration and self-hitting behaviours was not being able to be Rosie when he/she wanted to and not feeling comfortable expressing strong emotions at his father’s place, given a desire to avoid upsetting his father. Dr. BenDavid-Streiner indicated James often talked about his desire to be called Rosie but sometimes wanting to be called James. She elaborated on this issue as follows:

“James indicated that on December 8, he told his father that he wanted to be called Rosie. He noted that although his father asked many questions, he was OK with the conversation and his father’s overall reaction. Yet in the last session, while he was playing with toys, James noted that he did not feel that his father was accepting Rosie. James stated that if his father accepted Rosie, he would have wanted his father to call him Rosie. He said that his mother and maternal grandmother called him Rosie.” (Exhibit 19, page 2-3)

[118] Dr. Bendavid- Streiner concluded the situation between the parents was putting James at risk for significant mental health issues. She stated,

“James will not be able to fully explore his gender identity if he is not allowed to be both James and Rosie at his mother’s place and if his father conceptualizes James’ gender exploration through the lenses of child abuse. Such an approach can appear to confirm James’ fears that his father will never truly accept Rosie. Significant differences in his parents’ approaches to gender identity questions will make it difficult for James to freely communicate his feelings and his thoughts. James loves both parents and wants to spend equal time with each, but living two kinds of lives is likely to be very difficult for James.” (Exhibit 19, page 3)

[119] Dr. BenDavid-Streiner referred the child to the CHEO gender diversity clinic regarding his exploration of gender identity in September, 2015. James met with the social worker at the clinic and his parents then met with the director of the clinic, psychiatrist, Dr. Stephen Feder.

[120] A report from Dr. Feder dated December 18, 2015 (Exhibit 14) was written after Dr. Feder met with the parents but before meeting the chid. Dr. Feder noted that both parents were in agreement with the approach of supporting the child in however they defined or expressed their identity. The disagreement was not with the approach “but rather with the fact that the parents drew differing conclusions as to whether or not this child was gender non-conforming.” (Exhibit 14, page 1)

[121] Ms. Davies reported to Dr. Feder that the child wanted “ to be called Rosie and for people to use female pronouns” and that she had been accepted by the maternal grandparents. As well she has spontaneously informed a few of her friends. It was Ms. Davies view that because of the parental disagreement the child had not been able to “come out as female” at school. Ms. Davies also reported the child had angry outbursts, often upon returning from the father’s home and had expressed suicidal intent. (Exhibit 14, page 1-2)

[122] As Dr. Feder put it Mr. Murdock “paints a very different story.” (Exhibit 14, page 2) It was Mr. Murdock’s view which he has maintained, that his son is being pressured indirectly if not directly by Ms. Davies to express a female gender identity. Although Mr. Murdock indicated he is entirely open to have a transchild, the child has consistently indicated to his father that he is James and has maintained that stance. Mr. Murdock describes Ms. Davies as “aggressively vindictive” and having a borderline personality disorder. Dr. Feder notes, “when dad was asked his reaction to the pictures of their child seemingly happily (sic) and dressed in a female wig, he stated: “I see it as child abuse.”

[123] Dr. Feder concluded, “This is an ugly situation wherein there is substantial antipathy between the parents and their disagreement seems now to be crystalized around the issue of who is right about their child’s gender. This puts an inordinate amount of pressure on the shoulders of the child….How does a child come to terms with who they are when there is so much extraneous adult conflict that sullies an already challenging developmental milestone.” (Exhibit 14, page 2).

[124] Dr. Feder indicated that Rosie/James was at risk for significant mental illness if the situation is not resolved. He stated, “Resolution absolutely requires that the parents find a way not to fight their battles through the child. I do not feel that this disagreement has anything to do with transphobia or reticence to love and nurture a transchild but rather a child who is trying to make both parents happy.” (Exhibit 14, page 3)

[125] Dr. Feder formulated a plan to review further documentation; consult with Dr. BenDavid-Streiner and with CHEO psychiatry to develop a process safe enough for the child to begin to communicate safely about her/his own inner feelings about gender.

[126] By the time the trial originally concluded in March, 2016, Dr. Feder had met Rosie/James on two occasions for an hour each. A report dated February 24, 2016 was filed as Exhibit 23.

[127] James described sadness at the disruption of his nuclear family but indicated it is something he has to adjust to. He did not express any profound difficulties either at home or at school nor he did he express any distress as to the issue of gender identification. He did describe episodes of anger which he could not truly explain.

[128] James described school as a positive experience. It was noted that the school administration was aware of his gender issues but he was socialized completely as male.

[129] When James attended the session with Ms. Davies, he suggested Dr. Feder call him Rosie and when he attended with Mr. Murdock, he asked Dr. Feder to call him James. The child seemed at ease with both scenarios. He indicated he had tried to speak to his father about Rosie but his father often terminated the conversation and walked away. The child stated “that he would just have to keep trying.” He voiced no distress in expressing as male at his father’s home or at school but reported he tended to wear more female clothing. When asked to situate himself from a gender perspective on a male to female spectrum, Rosie/James placed himself in the middle but on the male side of the midline.

[130] Dr. Feder was clear he had only a limited two hours with seven year old Rosie/James. At that time the doctor did not have the impression the child was overly distressed with the fact he was “Rosie” at Mom’s and “James” at Dad’s. Dr. Feder indicated “from the perspective of the child, there is no urgency in defining him as one gender or another and it is my belief that his gender variance should be celebrated in both homes and that the child should be able to express himself in however he wants in the moment without having to be concerned as to what house he is living in. I would not recommend socially transitioning at school at his time based on his description of his feelings….” (Exhibit 23, page 2)

[131] Dr. Feder emphasized it was crucial to understand that “gender identification and gender expression can be and will evolve over childhood. It is essential that the home environment allow for and support the child wherever the journey takes them. For this to happen, the parents no matter how adversarial they might be towards each other must absolutely create a level of consistency and collaboration when it comes to issues for the care of their children.” (Exhibit 23, page 3)

[132] By the time the trial reopened in September, 2016, Dr. Feder had seen Rosie/James on two further occasions, had met with the parents, discussed the situation with Dr. BenDavid-Streiner, reviewed documentation and had an informal blind consultation with a colleague in Montreal. He testified on the reopening of the trial and filed a further report dated September 2, 2016 (Exhibit 36).

[133] Dr. Feder was clear in both his report and testimony the goal is to attempt to optimize the child’s happiness, sense of validation and self-actualization. Unfortunately, both parents maintain their original positions: Ms. Davies accuses Mr. Murdock of manifesting transphobia and Mr. Murdock accuses Ms. Davies of manipulation and essentially brain washing the child. The situation became urgent in the fall due to the beginning of the school year. The issue of social transition for the child and the choice of school had to be established.

[134] Dr. Feder outlined seven basic relevant understandings of gender non-conformity in children as follows:

1. By age 8 a child is able to describe their gender identity.

2. Prepubertal children have a high likelihood of reverting to cis gender by the time they reach puberty (estimates may be as high as 80%.

3. A positive outcome is predicated upon parental acceptance and validation of the child at every step along the way. Even were a child to detransition at some point, the impact is mitigated by their being surrounded by caring nurturing parental figures.

4. The mental health outcomes for prepubertal children who are supported in their desire to transition are no different from the same outcome in cis children.

5. The mental health outcomes for prepubertal children who are refrained from social transition are substantially more negative.

6. The identification of gender non-conformity in and of itself does not automatically necessitate social transition. This would be determined through collaborative discussion between the parents and involving the child as to what course of action was in the child’s best interest.

7. A decision to socially transition does not automatically necessitate a change in schools. There are pro’s and con’s either way. Remaining at the same school maintains an already established support group including teachers, administration and students. It also reinforces that one does not have to leave a situation because of one’s trans status. Con’s are the converse-there is no support system and it messages that because of their trans status that they have to leave their home school and thereby keep the secret.

[135] In his testimony, Dr. Feder emphasized the need to be flexible as gender identity can change and evolve. It can go back and forth. Therefore, it is important to work in the moment and let the child take the lead. There are not steps or stages; the situation is fluid. To be rigid can be harmful.

[136] Dr. Feder indicated that over the course of his meetings with the child, Rosie/James evolved to a female identification and expressed that the female identity “Rosie” was closest to whom she felt herself to be. She asked Dr. Feder if he could help her father to better understand Rosie. Dr. Feder discussed with the child the fact that her feelings had evolved over the course of the visits with him. Rosie/James acknowledged this and described it as a readiness issue which Dr. Feder interpreted as he had to earn the child’s trust.

[137] With respect to school, the child’s first choice was to attend a new school, Bayview as Rosie, which is what Ms. Davies was advocating. The second best option from the child’s perspective was to attend the existing school Robert Bateman as Rosie. Dr. Feder commented “of interest, if socialized as male, they seemed to prefer returning to Bateman rather that switching to Bayview. This suggests to me that either there is a certain support that may derive from the old school environment or that they in some way hope to save the Bayview option for potential iteration to this controversy.” (Exhibit 35, page 2) Dr. Feder used the pronoun “they” in referring to Rosie/James.

[138] Dr. Feder was aware Mr. Murdock would disagree with his conclusions, as Mr. Murdock remained convinced Rosie/James was being forced to play out the mother’s agenda; interactions with professionals were scripted and not reflective of the child’s true feelings and desire. However, Dr. Feder stated, “the reason that I conclude that the child is being authentic is their presentation to myself as well as to Dr. BenDavid-Streiner has been consistent for the six-twelve months we have been meeting with the children. It seems to me improbable that there would be no cracks in their story over that timeframe.” (Exhibit 36, page 2) In his testimony, Dr. Feder was concerned about Mr. Murdock’s continued rejection and resistance and stated this was unusual.

[139] In responding to Mr. Murdock’s observations that the children are happy and seemingly care free during their time with him, during which any suggestion of Rosie was apparently rejected by the child, Dr. Feder commented: “Perhaps it communicates that for whatever reason, they are insecure in your acceptance of Rosie and so as not to jeopardize in any way the love and caring that is so very important to them, they assume the role they feel would be most accepted.” Dr. Feder noted he could not guarantee his stated determinations were 100 percent accurate as there could be intracacies of which he was unaware or which could be differently interpreted. Nevertheless he concluded:

• There should be support for the child’s gender nonconformity.

• The decision about whether to socially transition should be up to the child within the context of parental collaboration that communicates the validation of both parents to whatever decision is taken.

• All schools are mandated to provide safe and nurturing learning environments. There are pro’s and con’s associated with each of the schools as stated above.

[140] His report concludes, “I submit this assessment in the hope that all parties can take a step back and realize that more harmful to the well-being of the child than the controversy of gender identity is the ongoing negativity between the parents. Whichever direction is taken, the outcomes will be positive if the parents can agree to cooperate allowing the child to feel validated.” (Exhibit 36, page 3)

[141] Dr. Feder testified the clinic could and would continue to see the child up to the age of 18. Both parents were agreeable. Once again there was emphasis on the need for a strong collaborative team to flexibly support the child and provide a common, consistent approach. Dr. Feder recommended Dr. BenDavid-Streiner continue to see the child, as she has had a lengthy relationship for over a year and the child will need a place of comfort. Ms. Davies agreed but Mr. Murdock did not.

[142] Dr. Feder indicated for the next number of years the child should be followed by the clinic in order to provide the child and family with support. He noted that 2-3 years into puberty, if the child remains gender non-conforming and continues to identify as Rosie there will need to be a decision as to whether or not hormonal intervention is appropriate. This would prevent secondary sexual development and give greater time to assess the gender issue. Dr. Feder emphasized this would be an important turning point and would need parental cooperation and involvement.

School Issues

[143] As noted above, what schools the children would attend in September, 2016 became a significant dispute. A court order dated November 15, 2013 indicated that, subject to another court order, the children are to continue to attend Robert Batemen Public School. Mr. Murdock maintained this was in the children’s best interests. Batemen would provide consistency for the children; their friends were there and the children could continue to attend together. Ms. Davies wished to switch school from Robert Batemen to Bayview which was in her neighbourhood. She indicated Bayview had all the accommodations in place for James to socially transition to Rosie. In addition, she stated, as she had for some time, she wished Kirsten to switch to Fielding Public School for grade 5. There were many emails back and forth regarding the school issue but, as with most major decisions, no agreement.

[144] Dr. Feder indicated there would be a certain support and comfort provided by the old school environment. He did not take a position regarding school selection and indicated there were pros and cons to both. All schools are mandated to accommodate a child with gender identity issues.

[145] After receiving the letter from Dr. Feder dated September 2, 2016 (Exhibit 36), Mr. Murdock asked Rosie/James what school he/she wished to attend. The reported response was Bateman as Rosie and to remain James at home. This response from the child is inconsistent and confusing and fits with Dr. Feder’s conclusion that the child is insecure in her/his father’s acceptance of Rosie. So as not to jeopardize in any way the love and caring so very important, the child assumes a role that would be most accepted.

[146] When the trial reopened, Dr. BenDavid-Streiner testified and provided a letter dated September 3, 2016 (Exhibit 38). She indicated she now refers to Rosie/James as Rosie as this is how the child has asked to be addressed when meeting with her. She noted Rosie had become more comfortable during the summer in her identity as a female and attended summer camp as Rosie.

[147] In the last few sessions with Rosie prior to school, the child told Dr. BenDavid-Streiner that she wished to go back to school as Rosie and her first choice would be to attend a new school, Bayview, as it would be easier to start in a new school as Rosie as opposed to returning as Rosie to a school in which they knew her as James. Kirsten indicated her wish to move to Fielding Public School.

[148] Dr. BenDavid-Streiner indicated the school board is committed to creating a safe and caring environment for all students. Therefore it would be reasonable to assume Rosie’s needs could be addressed by Bayview and Batemen Public Schools. Nevertheless, the doctor felt it important to respect the children’s wishes when possible and therefore she supported their stated wishes regarding attending new schools. A meeting was held with the parents, Dr. Feder, Ben Forson and Dr. BenDavid-Streiner regarding the school issue. According to Dr. BenDavid-Streiner, Ms. Davies was willing to discuss options but Mr. Murdock was adamant there was a court order that the children remain at Batemen which he felt was in their best interests.

[149] Given the controversy and inabilities of the parents to reach an agreement, the children continued to attend Robert Batemen for the 2016-2017 school year. Meetings and accommodations were made for Rosie/James by the school. Principal Fagan testified she spoke to the teachers and requested they take the lead from the child. A gender neutral washroom was provided. In February and March 2016 training was provided for staff regarding gender identity and fluidity.

[150] On September 13, 2016, Dr. BenDavid-Streiner, the parents, the teachers and other staff members met together after the first week of school. It was agreed that the teachers call the child “Rosie” at school, as this was her preference. She was socially transitioned at school.

Wishes of the Children

[151] As noted above, the wishes of the children have changed and evolved overtime. For the most part, Kirsten has indicated a desire for greater time with her mother, although she initially indicated to the OCL social worker she wanted things to be equal. James enjoys spending time with both parents and has seemed to outside observers to be happy in both households.

[152] Prior to testifying at the reopening of the trial, CAS protection worker, Ben Forson saw the children on two occasions.

[153] On September 16, 2016 the children indicated they were pleased to be back in school and there were no difficulties. Neither expressed any difficulties with their father providing almond milk or almonds to them. Rosie indicated she did not want to be asked any further if she wanted to be called James or Rosie. She wished to be called Rosie. Kirsten indicated her wish to have the visits with her father longer not short visits.

[154] On September 24, 2016, the children both reported to Mr. Forson their paternal grandmother was screaming when she was upset and appeared to be upset all the time and they did not like this. Kirsten followed up by then stating she would like to be at her mother’s all the time.

[155] Mr. Forson has seen the children approximately 6 times at the father’s and 6 times at the mother’s residence. Mr. Forson described Rosie/James as engaging, sweet, open, and intelligent. She presented this way at both homes. Kirsten was described as bright, articulate, and protective of her brother. She continued to express a number of concerns about the father. She has been consistent in wanting more time with her mother.

[156] Mr. Forson indicated the CAS file remains open due to a risk of emotional harm. The Society’s concern is the children are getting different messages from the parents which creates confusion and anxiety. The Society does not plan to take any other action but will await the court’s decision in this trial.

[157] On November 11, 2016, Dr. BenDavid-Streiner met once again with the children. At that time Kirsten expressed an desire to spend a great deal of time with her mother. Rosie expressed a concern that her father was going to cut her hair which she wants to be shoulder length. She reported there were still long discussions as to whether she really wanted to be Rosie or whether someone was pushing her in this direction. She expressed a wish to have week days with her mother and the weekends with her father or perhaps every second weekend. This was the first time Dr. BenDavid-Streiner had heard this. It is not clear where this idea originated and whether it genuinely reflected Rosie/James wishes.

Communication

[158] Prior to the commencement of trial the email, text messages and other correspondence filed by the parties demonstrates communication expected of two people attempting to co-parent. Although, there are a number of disagreements between the parties, they focus largely on negotiating parenting time and organizing and discussing various medical appointments. By and large the communication is respectful. However, it is clear the parents take completely different approaches to dealing with most major issues affecting the children. With respect to medical issues, e.g. asthma medications and the cream necessary for Kirstin’s lichen sclerosis, Ms. Davies’ takes a very proactive approach whereas Mr. Murdock takes a wait and see or laissez-faire approach to the situation. At times, he does not respond to Ms. Davies’ emails and appears to ignore the issues she raises which causes her a great deal of frustration. Ms. Davies responds by sending more emails.

[159] With respect to Rosie/James’s gender identity, it has been clear from the outset the parents take completely different approaches. Ms. Davies is accepting of the new gender expression demonstrated by her child and has attempted to discuss it on numerous occasions with Mr. Murdock. The issues of the child’s clothing, social transitioning at school and haircuts cause disagreement and disputes between the parents. They simply do not appear able to agree. Mr. Murdock continued to cut the child’s hair; objected to social transitioning at school and treated the child as James in his home. This, of course, caused a significant clash between the parents.

[160] After the trial was reopened, in September 2016, numerous other communications by way of email, text message, and correspondence were filed by the parties. It is clear from this documentation, Ms. Davies is becoming more and more frustrated and angry at Mr. Murdock’s failure to recognize Rosie/James’s exploration of gender identity and Kirsten’s anxiety regarding her father’s level of care. Mr. Murdock’s communications are generally neutral in tone and respectful, however he does not consistently respond to Ms. Davies communications and requests over extended periods of time. This passive approach causes Ms. Davies a great deal of frustration and at times anger. The parties’ communication is demonstrative of their parenting style. Ms. Davies is pro-active, insistent and desires an immediate response and resolution. Mr. Murdock does not always respond, which causes Ms. Davies communications to escalate. He takes a laissez-faire wait and see approach to communication as is his parenting style.

[161] Nadine Crowley, OCL investigator, noted in her testimony the ability to send messages and receive timely responses is important. Each party should listen and respond to communications in a civil and respectful manner. She noted the ability to negotiate, compromise and listen to each other and consider issues in a non-biased manner without letting emotions or relationship issues get in the way, is essential for good parenting communication. Although the parties do not have to like each other, they should have a similar path and the same general goals in meeting the children’s needs.

[162] Unfortunately, this is not the situation with Ms. Davies and Mr. Murdock. They see things through completely different lenses; appear to have different goals regarding their children’s’ needs and interests and have not been able to give and take in resolving disputes. Both are rigid in their beliefs about the other.

Conflict

[163] Sadly, as noted above, this situation has evolved into a situation of hostility and conflict creating, among other things, significant anxiety and stress for their children. The situation became so difficult the children’s doctor, Dr. Kaplan Myrth withdrew her services. She noted that the parents set their own agendas. They would both sit in the waiting room with the children who looked frightened to talk and remained silent and stone faced. The tension was palpable. Dr. Kaplan Myrth indicated she “couldn’t imagine the anxiety it provokes for the children.” She could not in good conscience continue to be the children’s doctor. Since that time the parents have been unable to reach an agreement as to a new doctor for the children. They completely disagree on this issue, as with most other major issues involving the children.

[164] Both Dr. BenDavid-Streiner and Dr. Feder independently expressed concerns regarding the emotional safety and the mental health of the children given the level of animosity between the parents and the way they spoke of each other. Dr. Feder expressed to the Children’s Aid Society that the environment was emotionally abusive and could ultimately raise concerns about the long term needs and emotional safety of the children.

[165] The evidence demonstrates that both parents have spoken negatively about the other and the messages have been communicated to the children. Ms. Davies appears to have involved the children, in particular Kirsten in her disagreements with Mr. Murdock. She testified as did her mother that Kirsten is very bright and asks many questions. Ms. Davies believes it is important to answer the questions honestly. Unfortunately her views of Mr. Murdock and his parenting have made themselves obvious to this insightful, bright child. As stated by Ms. Crowley in the OCL report from December, 2014:

“Kirsten also sees herself as her mother’s support. As a result, she appears to have formed an alliance with the mother that is not healthy. She is very dependent upon her mother for reassurance and shares her mother’s opinions and ideas about the father, as Kirsten parrots a lot of the mother’s concerns using similar words and citing similar examples of concerns about what the father may have done wrong.” (Trial Record, Tab 6, page 11)

[166] Ms. Crowley concludes that the children are caught in the midst of the parents’ conflict. She states regarding the parenting styles as follows,

“Ms. Davies expressed a fear of Mr. Murdock and an inability to trust him due to the abuse she claims to have endured during their relationship. Further, the parents appear to have continued their relationship dynamics upon separation with respect to the lack of effective communication and not working together regarding the parenting of the children. It is evident to the Investigator that both parents have made changes since the separation as the mother has become more emotionally stable and independent and the father has become more assertive, independent and hands on in his role as a parent. These changes are not sitting well with the other parent as they have not learned how to handle them creating difficulty disengaging from historical relationship dynamics which results in them not working together as co-parents. Therefore parents need to learn new skills and work towards shifting their mindset from parenting and apart to a businesslike relationship.” (Trial Record, Tab 6, page 15)

[167] In considering the reasons for the ongoing conflict Ms. Crowley states as follows:

“The investigator has found that the ongoing conflict between the parents is as a result of an overwhelming lack of trust due to historical relationship issues which appears to impede the parent’s ability to communicate effectively, the parents differing opinions on child care and medical care and both parents feel scrutinized and devalued which results in them feeling defensive and blaming each other for having negatively influenced the children. Further, the involvement of paternal and maternal grandparents appears to be fuelling some of the conflict.” (Trial Record, Tab 6, page 15)

[168] Unfortunately, the demonstrable conflict between the parties has only become worse over time. There is simply no ability to collaborate, co-operate and communicate to resolve important and sometimes life changing issues with respect to their children. The parties simply do not trust each other and their children are suffering as a result.

Joint Custody

[169] Although neither party is requesting an order of joint custody, it is within the discretion of the Court to impose joint custody even when not on consent, but only in circumstances where such an arrangement would ultimately be in the best interests of the children.

[170] In Khairzad v. McFarlane, 2015 ONSC 7148, Justice Chappel reviewed the jurisprudence on shared or joint custody orders and notes as follows:

The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger, Supra., and Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.) the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other (Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.)). The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis Supra.; Ladisa v. Ladisa, 2005 CanLII 1625 (ON CA), 2005 CarswellOnt 266 (C.A.)) Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties are such that the conflict is impacting or likely to impact on the well-being of the child. If the evidence indicates that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa, lbid) (Applicant’s Closing Submissions, page 46).

[171] The evidence in this trial clearly establishes that although, at times, the parties have been able to communicate by email regarding scheduling changes and other minor issues, they have never been able to cooperate or collaborate effectively with respect to the most fundamental medical, psychological/emotional and educational needs of their children.

[172] Although the OCL Investigator recommended a joint custody order, she testified there would need to be co-operation and an ability to communicate regarding the children’s needs in an effective manner for a joint custody order to work. When she concluded her report in December, 2014 she was hopeful that with: counselling, utilization of educational tools such as the New Ways for Parenting Program available at family service agencies, attendance at parenting programs, the use of communication tools and ultimately the services of a parenting co-ordinator, Ms. Davies and Mr. Murdock would be able to work together to make decisions in the best interests of their children. Unfortunately, her recommendations were not followed. Neither party attended counselling; they did not attend parenting programs and did not utilize educational and communication tools. Neither party worked on an agreement for a parenting co-ordinator. Under these circumstances, Ms. Crowley testified that at this time any form of joint custody order would be a challenge.

[173] Ms. Davies’ and Mr. Murdocks’ fundamental lack of trust in one another and completely different parenting styles preclude any kind of joint custody order even one crafted as a “parallel parenting”, instead of “cooperative parenting” arrangement. A parallel parenting order could address specific incidents of custody and divide the decision making authority for example between medical and educational issues. Given the history and prevailing atmosphere of mistrust and ill feelings between the parents which I find has spilled over to some extent to the children, it is impossible to see any basis for a viable joint decision making process. Even a parallel parenting arrangement would require ongoing respectful communication, information sharing, and trust. Sadly, such an approach is not possible in this case.

Best Interests Summary

Love, Affection and Emotional Ties

[174] As noted above, I find that both children have a loving and close relationship with each of their parents both of whom have been significantly involved with Kirsten and Rosie/James throughout their lives. Both children have strong emotional ties to each of their parents and to their maternal grandparents, who have provided them and their mother with a great deal of support since the date of separation. The relationship between the children and the maternal grandparents is important and must be preserved.

[175] Although the children also benefit from time with their paternal grandmother, she resides in British Columbia and is only able to visit from time to time. In addition, the gender non-conformity issue has caused concern for her and she has been involved in some ongoing questioning of Rosie/James. I do not find the relationship between the paternal grandmother and the children to be as close or as significant to them as the relationship with the maternal grandparents.

Children’s Views and Preferences

[176] Kirsten is a bright outspoken 11 year old. Although her views and preferences have changed from time to time, more often than not she has expressed a desire to spend more time with her mother. As noted above, Kirsten has formed an alliance with her mother which is not entirely healthy for an 11 year old child. I find that to some extent her views and preferences have been influenced by that alliance. There is independent evidence that when with her father she enjoys the time with him and presents to outsiders as happy and content.

[177] The views and preferences of 9 year old Rosie/James are less clear. What is clear is that the child does not wish to be further questioned by her/his father or paternal grandmother as to whether her/his wishes expressed to be Rosie are genuine or due to pressure by Ms. Davies. In addition, the child does not wish to have her/his hair cut by the father as has happened in the past. More recently, Rosie/James indicated to Dr. BenDavid-Streiner a wish to spend weekdays with the mother and weekends with the father.

Ability of the Parents to meet the Needs of the Children

Ms. Davies

[178] Although both Ms. Davies and Mr. Murdock are bright, capable individuals who love their children dearly, I find the parenting abilities of both have been to some extent compromised due to the extreme lack of trust and animosity they have towards one another.

[179] I find that Ms. Davies’ extreme lack of trust in Mr. Murdock’s parenting abilities and in Mr. Murdock in general causes her at times to over react and escalate difficult situations, instead of stepping back, taking a deep breath and reasonably assessing what has occurred. For example, when Kirsten was ultimately hospitalized due to her asthma in the fall of 2014 Ms. Davies indicated “she could have died.” This is an extreme reaction to a situation that, although of significant concern did not warrant that kind of statement or reaction. Ms. Davies testified that due to her PSTD when Kirsten was not believed by her father regarding the difficulty she was having breathing, it upset her to the extent that she made the statement, “she could have died.” This was clearly an overreaction. Ms. Davies’ sometimes extreme reactions are felt by the children and at times echoed by them to professionals e.g. Dr. BenDavid-Streiner. This applies in particular to Kirsten who, although not alienated from her father, is aligned with her mother. It will be important for Ms. Davies to attend counselling as recommended by Ms. Crowley, to assist her in understanding how individual personality issues continue to impact upon the relationship with the other parent and to help her manage her reactions to information and the behaviour of both children. Unfortunately, Ms. Davies has not attended such counselling to date.

[180] Ms. Davies is an extremely vigilant parent with respect to all her children’s needs; physical, psychological, mental and educational. Although at times she is almost hyper vigilant, largely due to her lack of trust in Mr. Murdock, she has always carefully considered the needs of her children and worked diligently to provide them with the support and professional assistance necessary to meet those needs.

[181] Ms. Davies has worked closely and co-operated with the children’s counsellor and psychologist Dr. BenDavid-Streiner from the outset. She has maintained ongoing contact with the doctor and has been vigilant in having the children attend their appointments on a regular basis and on time. She has been open and prepared to follow the recommendations of Dr. BenDavid-Streiner with respect to the psychological needs of her children. At times, Mr. Murdock has not been as well informed regarding the appointments with Dr. BenDavid-Streiner as he should have been. He must take some responsibility for this as he was well aware that the children were seeing the psychologist for counselling and could have contacted her at any time.

[182] Ms. Davies has attended to the children’s medical needs and has been careful to again follow the recommendations of the doctors with respect to any prescribed medicines and recommended treatment.

[183] With respect to Rosie/James’s gender non-conformity, although Ms. Davies testified this is not the path she wished for her child, she has always been supportive and prepared to follow the recommendations of the Gender Diversity Clinic at CHEO, specifically those of the director, Dr. Stephen Feder. Dr. Feder testified that Ms. Davies’ actions to support the child were appropriate, including the participation in the Around the Rainbow Support Group for transgender children.

[184] Ms. Davies advocated for the child to socially transition at school and in that respect made her views clear that attendance at a new school Bayview, would be a better option. It would provide a new start for Rosie/James who had only been known as James at Bateman. She was prepared to consider any recommendations of the professionals regarding school choice. As Dr. Feder did not provide a strong opinion either way and both Dr. BenDavid-Streiner and Dr. Feder reported the views and preferences of the children, Ms. Davies was prepared to follow the children’s wishes. Mr. Murdock was adamant that the children continue to attend Bateman.

[185] Ms. Davies is prepared to continue having the children attend counselling with Dr. BenDavid-Streiner. Dr. Feder recommended Rosie/James continue with the counsellor as she/he is familiar and comfortable with the doctor. Dr. BenDavid-Streiner recommended counselling continue for Kirsten’s anxiety. Mr. Murdock disagrees.

[186] In general, Ms. Davies remains open and willing to working with third party professionals and to following their recommendations in meeting the needs of her children.

Mr. Murdock

[187] Mr. Murdock continues to consider Ms. Davies a personality disordered individual who has campaigned against him and blamed him for all difficulties from the outset. There is no question that Ms. Davies and her parents both reported numerous times to the Children’s Aid Society concerns they had regarding Mr. Davies care of the children which required questioning of the children and further investigation. I find these reports to be once again symptomatic of the extreme lack of trust of any of Mr. Murdock’s actions with respect to his children. The number of reports and the fact they all had to be investigated was not always in the children’s best interests, although they emanated from genuine concern.

[188] I find Mr. Murdock to be use a wait and see, laissez-faire approach to parenting. By and large, the children do well in his care and he is able to meet their day to day needs. Nevertheless, at times Mr. Murdock maintains this attitude in the face of professional evidence and advice that there could be risks to his children’s well-being, e.g. giving the children almond milk and exposing Kirsten to cats.

[189] Mr. Murdock presents himself as a calm, reasonable parent and the children as happy and anxiety free while in his care. He takes issue not only with the evidence of Ms. Davies regarding the children’s stress and anxiety but also the evidence of Dr. BenDavid-Streiner, Dr. Kaplan Myrth and Dr. Feder in this regard. Mr. Murdock is frequently reluctant to rely on the evidence and advice of the professionals involved with his children. He is the parent and he knows best. He refused to sign the voluntary services agreement proposed by the CAS; he did not follow the gradual reintegration plan recommended by Dr. BenDavid-Streiner designed to alleviate Kirsten’s anxiety; he unilaterally kept the children in August and returned to the 2-2-5-5 parenting schedule and he does not believe Rosie/James stated sexual desire to be Rosie is genuine; he did not agree with social transitioning at school and does not believe Rosie/James should continue therapy sessions with Dr. BenDavid-Streiner.

[190] Mr. Murdock continues to believe Rosie/James’s gender non-conformity is manufactured and/or exaggerated by Ms. Davies. The child has been forced to play out Ms. Davies agenda. Mr. Murdock continues to question the children about this, despite the expert evidence from Dr. Feder that as of September, 2016, his child was expressing an authentic female identity as Rosie. Dr. Feder was clear that at this time support for the child’s gender non-conformity is extremely important. The fact that Mr. Murdock continues to question the child on gender identity is significant. It appears Mr. Murdock remains unable or unwilling to recognize the negative impact of his behaviour.

Conclusion

[191] Although I find concerns about the parenting styles of both Ms. Davies and Mr. Murdock, overall, in considering all the children’s needs and circumstances and the fact that on major issues the parents have shown themselves unable to co-operate and compromise in order to make joint decisions, I find it in the children’s best interests that, if necessary, one parent make decisions on major issues.

Order

[192] The Court orders that:

Information and Decision Making

1. The Father and Mother shall prefer the interests of their children Kirsten Anne Davies Murdock, born September 1, 2006, (hereinafter "Kirsten") and Rosie/James Brian Davies Murdock, born April 18, 2008, (hereinafter "Rosie/James") to their own. The Father and Mother shall:

(a) Exchange information regarding Kirsten and Rosie/James;

(b) Encourage Kirsten and Rosie/James to have a good relationship with the other parent;

(c) Refrain from making disparaging remarks to Kirsten and Rosie/James about the other parent;

(d) Consult each other regularly regarding important issues such as Kirsten and Rosie/James' education, health care, behavioural issues, psychological issues and any other special needs.

(e) Share with each other all information provided by professionals involved with Kirsten and Rosie/James.

2. Both parties shall ensure that all education, medical, special needs and other third party professionals involved with Kirsten and Rosie/James' care are authorized to share information freely with both parties.

3. The Father and Mother shall inform and consult one another with respect to all important decisions relating to their children’s welfare and shall attempt to make such decisions together. To make such decisions, the parents shall:

(a) Discuss the decision to be made and their opinions with respect to the decision via e-mail or in person;

(b) Consult any third parties involved with decision, e.g. the child’s teacher or doctor and take into account his or her recommendations

(c) If they are unable to reach a decision together, the Mother shall have legal custody of the children and shall make the final decisions with respect to medical, dental, psychological, educational and all other important issues with the exception of certain aspects of Rosie/James’ gender non-conformity.

(d) With respect to medical and psychological decisions or mental health regarding Rosie/James’ gender non-conformity the parents shall follow the recommendations of Dr. Stephen Feder, director of the Gender Diversity Clinic at CHEO or another doctor at the clinic if Dr. Feder is no longer able to provide services for Rosie/James. If there is a dispute as to those recommendations or their implementation, the parties are first to attempt to resolve the matter through the exchange of written proposals. If the dispute remains unresolved after the exchange of written proposals on the issue, it is strongly recommended the parties attend mediation or retain the services of a parenting coordinator to attempt to resolve the dispute, and share the costs proportionate to their incomes. If the dispute remains unresolved, the parties may return the matter to Court for determination.

4. The Mother shall schedule the children’s routine, medical, dental, psychological counselling and school appointments. Immediately upon scheduling an appointment, she shall notify the Father as to the date, time and location of the appointment. In advance of each appointment, the parties shall make arrangements for one or both of them to attend, depending on each parent’s availability and wish to attend.

5. If either child requires medical/dental care or other outside of routine appointments, either parent may bring the child to an on-call doctor or to a walk-in clinic. Unless it is not possible in the circumstances, the residential parent shall notify the non-residential parent in advance of the appointment, the reason for it, the location, and the time.

6. If either parent brings a child in for emergency care, he/she shall notify the other immediately. The parent who attends at emergency care with the child shall have the authority to sign authorization and/or consent forms on behalf of both parents to permit the child to receive any recommended medical assessment and/or treatment until the other parent arrives.

7. If only one parent attends a medical/dental/psychological/counselling or other professional appointment or other with a child, as soon as possible after the appointment, that parent shall share in writing with the other parent any information received from the care provider relating to diagnosis, and/or treatment options/recommendations.

8. Other than in urgent circumstances or in situation where only one appointment time is offered, any appointment scheduled for either of the children with a medical doctor, dentist, psychologist, teacher, a school staff member, or other professional involved with the children shall be scheduled to permit both parents to attend if each wishes to do so.

9. Both parties shall ensure that all third parties involved with the children’s physical, psychological and educational needs, and care are authorized to share information freely with both parties, and both parties shall instruct all third parties involved with the children to provide all information they give to one party also to the other party.

10. Both parties shall provide the names and contact information of all third parties involved with the children to the other party on an ongoing basis.

11. The parties may attend parent/teacher meetings at the school separately as long as the school can accommodate and support separate meetings. If the parents attend separate meetings, or only one parent attends a parent/teacher meeting, the parent (s) attending the meeting shall provide a written summary of the discussions to the other parent.

12. The parent residing with the children at the relevant time shall make daily decisions affecting Kirsten and Rosie/James' welfare, subject to the recommendations of the children's health, education and psychological professionals.

13. The parties shall continue to use the services of child psychologist Dr. Zohar BenDavid­-Streiner for the children’s counselling and therapy unless and until Dr. BenDavid-Streiner recommends otherwise.

14. If a party receives an e-mail requiring a response from the other parent, they will reply within 24 hours. If the receiver needs more time to consider their response, they will let the other party know and let them know when they will reply.

Regular Parenting Schedule

15. The children shall reside primarily with their mother.

16. The children shall reside with their father as follows:

(a) every second week-end from Thursday immediately after school until their return to school on Monday morning or if Monday is a school or public holiday, until Tuesday at 9 a.m. (Week 1);

(b) The following week on Thursday from immediately after school until their return to school on Friday morning or, if Friday is a school or public holiday, until Saturday at 9 a.m. (Week 2).

17. Pickups and drop offs shall occur at the children’s school or daycare unless otherwise agreed in writing between the parties, or unless it is a school or public holiday. If it is a school or public holiday, the parent with whom the children are residing shall drive the children to the other parent’s home for transitions, unless another location is agreed upon in writing between the parties.

18. Kirsten and Rosie/James shall be free to contact either parent whenever they wish. Neither party shall discourage Kirsten and Rosie/James from contacting the other parent nor shall they interfere with telephone calls between the children and the other parent.

19. Both parties shall make all reasonable efforts to accommodate reasonable requests to change the parenting schedule. They undertake to provide each other with as much written notice as possible if the need arises to change the schedule and to work out a schedule that is convenient to both parties and Kirsten and Rosie/James. Any agreed upon changes to the schedule are to be confirmed in writing. Further, the parties shall show flexibility with respect to the parenting schedule in order to enable Kirsten and Rosie/James to attend and participate in significant family events, extracurricular activities, excursions, and other special events.

20. Both parents shall follow the recommendations of the children's medical and psychological service providers during their parenting times as follows:

(a) Dr. BenDavid-Streiner or other child psychologist should Dr. BenDavid Streiner be unable to continue to provide psychological counselling services to the children;

(b) Dr. Ham Pong or other pediatric allergist should Dr. Ham Pong be unable to continue to provide services to the children ;

(c) Dr. Feder or other doctor at the Gender Diversity Clinic at CHEO should Dr. Feder be unable to continue to provide services for the child Rosie/James;

(d) Dr. Gagné or another gynecologist should Dr. Gagné be unable to continue to provide services to the child Kirsten.

21. The parents will use the online tool “Two Happy Homes" or similar online service to communicate regarding the children. Both parents are to refrain from derogatory or belittling language in their communication. Communication is to be restricted to Kirsten and Rosie/James' needs only. No emails are to be sent to or from the other parent's family members unless there is an emergency or urgent need regarding Kirsten or Rosie/James' care and the residential parent is not available.

22. Neither parent shall speak ill of or denigrate the other parent in Kirsten and Rosie/James' presence or in circumstances where the parent might be overheard.

23. Both parties shall attend a parenting program in order to gain better insight as to how their conflict is affecting Kirsten and Rosie/James, either through Family Service Ottawa or another counselling service. The New Ways for Parenting Program is recommended.

24. Both parents are to attend counselling with respect to personality issues and their impact on communication and cooperation with the other parent.

Holiday Schedule

25. The following holiday residence schedule shall override the regular parenting schedule. Subject to any written agreement otherwise between the parties, the mother and father shall share the holiday periods with the child as follows:

(a) Spring break (March break). The children shall reside with the Father in even numbered years from Friday after school until their return to school the following Monday after the break and likewise with the mother in odd numbered years. The parent with the children in their care for March break is responsible to enroll them in day camp or to provide appropriate daycare if the parent is unable to take time off work.

(b) Mother's Day: Kirsten and Rosie/James shall reside with their Mother on Mother's Day from 9:00a.m. until their return to school on Monday morning.

(c) Father's Day: Kirsten and Rosie/James shall reside with their Father on Father's Day from 9:00 a.m. to their return to school on Monday morning.

(d) Easter Weekend: The parties will share the Easter Holiday Weekend with the children such that in even-numbered years the children will be in the Father's care from Thursday immediately after school until Saturday at 7:00 p.m. and with their Mother from Saturday at 7:00 p.m. until their return to School on Tuesday morning. In odd-numbered years, the schedule shall be reversed.

(e) Halloween: The children will spend Halloween with their Father in even-numbered years and the Mother in odd-numbered years, from pick-up at school until their return to school the following morning, or from 4:00p.m. on Halloween until 9:00a.m. the following day if Halloween falls on Saturday or Sunday.

(f) Christmas- Unless otherwise agreed upon by the parties in writing, the children’s school holiday shall be divided as follows:

(i) In even numbered years:

a. From leaving school at the start of the holiday until December 24^th at 6:00 p.m. and from January 1^st at 6:00 p.m. until their return to school at the end of the holiday, with the Father; and

b. From December 24^th at 6:00 p.m. until January 1^st at 6:00 p.m. with the Mother.

(ii) The opposite shall apply in odd numbered years.

(g) Summer vacation: The regular parenting schedule shall apply in the summer with exception of the following:

i. The children shall reside with each party for four (4) full weeks during the summer vacation. Such weeks begin and end on Monday morning at 9 am. A maximum of 2 weeks (fourteen days) may be taken consecutively.

ii. The parties shall advise each other by April 1^st of their chosen weeks, with the Father to have first choice in even-numbered years and the Mother to have first choice in odd-numbered years. In making plans, each party shall take into account the children’s camp (s) and other scheduled activities.

ii. Each parent shall be responsible for ensuring appropriate daycare during the time with the children throughout the summer school holiday. If either parent is required to place the children in care or camp so that they can attend to work commitments, the expense shall qualify as a special or extraordinary expense.

26. The holiday residence scheduled outlined above shall not affect the underlying parenting schedule, with the exception of overriding the regular parenting schedule (i.e. there shall be no make-up time or variations to the regular parenting schedule for holidays other than those specifically stated in the above holiday residence schedule).

Travel

27. Either party may travel outside of Canada with Kirsten and Rosie/James. The Mother shall retain the passports for Kirsten and Rosie/James and shall give them to the Father when he requires them for travel. The Father shall return the passports to the Mother forthwith upon his return from the trip.

28. If either parent plans a vacation outside Canada with the children, the travelling parent shall provide a consent letter authorizing the child to travel for the non-travelling parent to sign and have notarized. Within five (5) days, the non-travelling parent shall sign and return the letter or provide written reasons why he or she will not sign the letter.

29. If the children will be away from home for 2 nights or more, regardless of the destination, the parent with whom the children are residing shall ensure the other parent is provided with a detailed written itinerary at least 7 days before the trip. The itinerary shall include travel arrangements, name of any flight carrier and flight times if applicable, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip. If the parent is travelling outside of Canada, this written itinerary shall be provided at the same time as the consent letter.

30. The parent taking the children on vacation shall ensure that the children have the appropriate health coverage and shall cover the total cost of such coverage.

31. The parent taking the children on vacation shall provide any equipment or clothing necessary for the trip that the children do not already own.

32. The parent taking the children on vacation shall ensure the children are vaccinated as recommended by the children’s doctor, and shall cover any costs associated with same.

33. If either parent plans a vacation without the children, that parent shall give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that parent.

Children’s Documents

34. The mother shall retain the children’s passports, birth certificates and SIN cards. She shall provide them to the father when needed for travel.

35. The children’s health cards shall travel with them between the parties’ homes.

36. The parties shall cooperate to renew the children’s passports as necessary.

Removal from the Jursidiction

37. Neither party shall move the permanent residence of Kirsten and Rosie/James outside the City of Ottawa without first providing the other party with sixty (60) days notice of the planned move and obtaining the other party's written consent or court order authorizing such a move.

Child Support

38. Commencing July 1, 2017 the respondent Father shall pay monthly child support for two children to the applicant mother in the amount of $1,519.00 based upon the Respondent's last reported income of $108,426.00 (being his declared income of $106,470.00 plus the gross-up of non-taxable income) as per Child Support Guidelines.

Special and Extraordinary Expenses

39. The parties shall contribute to the children’s special and extraordinary expenses in proportion to their incomes in accordance with the Child Support Guidelines. Based on father’s income of $108,426 and the mother’s of approximately $41,000, the father’s share of expenses at time shall be 73% and the mother’s share shall be 27%.

40. A party shall only be required to contribute to a child’s special or extraordinary expense over $100, if that party consented to the expense in advance in writing. Neither party shall unreasonably withhold their consent. In determining whether consent is being unreasonably withheld. The parties shall take into account the necessity of the expense in relation to the children's best interests and the reasonableness of the expense, having regard to the means of the parents and those of the children.

41. The party incurring a special or extraordinary expense shall provide reasonable written proof of the cost within fourteen (14) days of incurring same. The contributing party shall reimburse the other party within fourteen (14) days of receiving said proof.

42. The Father shall also pay his proportionate share of expenses pursuant to section 7 (a)(b)(c) and (e) of the Child Support Guidelines for the children which shall include but not be limited to:

a. Child care expenses (net of tax deductions and available subsidies);

b. Medical and dental expenses (net of insurance benefits);

c. Post -Secondary Education;

d. Psychological counselling for the children.

Variation of Child Support

43. The child support provisions of this Order shall be reviewed on July 1^st of each year commencing July 1, 2018, based upon the parties' incomes for the previous year. The parties shall exchange their income tax returns by May 30^th of each year (and Notices of Assessment by June 30) , commencing May 2018, and any adjustment (upwards or downwards) shall come into effect as of July 1^st of that year.

44. If either party asks in writing for disclosure, each party shall, in writing , provide the following information to the other, within thirty (30) days of the request:

a) the documents required in s. 21(1) of the Guidelines that have not been previously provided;

b) current information about the children's special or extraordinary expenses;

c) current information about a party's claim of undue hardship, if any, and his or her household standard of living;

d) details of child tax benefits or other child benefits received in the previous year and anticipated in the coming year ;

e) any other information needed to review child support; and

This may be requested once a calendar year.

Medical and Dental Expenses

45. The parties shall both maintain the children as beneficiaries of any medical, dental and extended health plan available through their employment. Both parties shall continue this coverage for the children for as long his or her employer or subsequent employer makes the benefit available to its employees.

46. The Father shall sign a direction with his benefits provider authorizing the Mother to be reimbursed directly for any claims she submits for the children. If the Father's benefits provider does not allow reimbursements to be made directly to the Mother then the Father shall forthwith file any claims received from the Mother and provide her with the reimbursement cheque as soon as he receives same.

47. Medical and dental expenses not covered by either party's extended health insurance are special or extraordinary expenses and shall be paid by the parties in proportion to their incomes in accordance with the Child Support Guidelines.

Life Insurance

48. To secure his child support payments, the Father shall maintain, at his cost, life insurance in the amount of not less than $200,000 with the Mother named as irrevocable beneficiary in trust for the children.

49. This insurance can be made up through life insurance policies available through his employment and/or separate life insurance policies that shall be unencumbered and in force while he is obliged to pay support.

50. The Father shall pay all policy premiums when due. If he does not and the Mother pays any premiums, interest or penalties to prevent the policies lapsing, those amounts shall be considered support and enforceable against the Father. If the policy lapses because the Father failed to pay the premiums, the Father shall also pay the Mother all necessary costs incurred by her to reinstate the policy.

51. Within thirty (30) days of this Order, the Father shall provide the Mother with a copy of the policy(ies) and the irrevocable beneficiary designation .

52. Within thirty (30) days of the policy's anniversary date, the Father shall give the Mother proof that he has paid the premium.

53. There shall be a lien and first charge against the Father's estate for the full amount of the policy proceeds if the policy(ies) or alternate security are not in force on the Father's death .

Dispute Resolution

54. In the event of a future dispute between the parties regarding the terms of the within Order, the parties are to first attempt to resolve the matter through the exchange of written proposals. If the dispute remains unresolved after the exchange of written proposals on the issue, it is strongly recommended the parties attend mediation or retain a Parenting Coordinator to attempt to resolve the dispute and share the costs proportionate to their incomes. If the dispute remains unresolved, the parties may return to Court for determination.

Costs

55. I encourage the parties to settle the issue of costs. If they cannot, the Applicant Mother is to provide written costs submissions not to exceed five pages plus a bill of costs and any offers to settle by September 1, 2017. The Respondent Father shall file his costs submissions not exceeding five pages plus a bill of costs and any offers to settle, by September 15, 2017. Reply cost submissions by the Applicant Mother are due by September 22, 2017.

Blishen J.

Released: August 4, 2017