CITATION: J.D.1 v. S.D., 2017 ONSC 895

NEWMARKET COURT FILE NO.: FC-13-43603-00

DATE: March 29, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J.D.1 Applicant

– and –

S.D. Respondent

Elham Moaveni for the Applicant

Kevin Caspersz for the Respondent

Stephen Codas for the Office of the Children’s Lawyer

HEARD: September 30; October 1, 2, 7, 8, 9; November 16, 17, 18, 19, 23, 24, 25, 26, 27, 30; December 1, 3, 4, 2015; January 7, 8, 11, 13, 14, 15; November 14 and 15, 2016

REASONS FOR DECISION

TABLE OF CONTENTS

INTRODUCTION......................................................................................................................... 4

OVERVIEW OF THE PROBLEM............................................................................................. 5

PRELIMINARY ISSUES............................................................................................................ 5

Issue #1 – The surnames............................................................................................................ 5

Issue #2 – The legal status of Ms. J.D.1’ relationships.............................................................. 6

Issue #3 – Mr. S.D.’s relationship to J.A.P................................................................................ 7

Issue #4 – Mr. S.D.’s counsel ................................................................................................... 8

THE FACTS.................................................................................................................................. 8

INTRODUCTION.................................................................................................................... 8

THE EARLY YEARS – EVENTS PRIOR TO THE SEPARATION.................................... 9

EVENTS FROM SEPARATION TO TRIAL....................................................................... 18

August 2012 to June 2013 – Mr. S.D. stops working........................................................ 18

June 2013 – Mr. S.D. moves to Montreal and the court proceedings begin...................... 19

September 2013 to December 2013 – Mr. S.D. returns to Toronto and begins to

Exercise regular access....................................................................................................... 21

January 2014 – J.A.P. changes school............................................................................... 25

February to May 2014 – The court unsuccessfully tries to assist...................................... 28

February 28, 2014 Case Conference............................................................................ 28

Mr. S.D.’s bad behaviour continues............................................................................ 30

May to June 2014 – Ms. J.D.1 is introduced to Rabbi P.S................................................ 31

September 2014 – The Restraining Order......................................................................... 32

September 2014 – Mr. S.D. begins exercising scheduled access....................................... 36

October 2014 – Ms. J.D.1 marries Rabbi P.S.................................................................... 37

December 17, 2014 – The police are called to the Kindergarten school play.................... 40

December 18, 2014 – Ms. J.D.1’ next without notice motion........................................... 45

December 23 and 24, 2014 – Events involving Y.M........................................................ 47

January 21, 2015 – The Motion before Justice MacKinnon.............................................. 49

January 29 and February 2, 2015 – Ms. J.D.1 and Ms. Navy write letters to the

girls’ school........................................................................................................................ 50

February 2015 – Ms. J.D.1 tells J.A.P. that Mr. S.D. is not his father.............................. 53

February 2015 – Mr. S.D. threatens Mr. Y.M................................................................... 54

March 4, 2015 – Mobility Motion..................................................................................... 56

The Summer of 2015 – The children resume overnight visits with their father................. 56

THE TRIAL.................................................................................................................................. 56

Overview and Events during the trial…..……………………………………………………56 September 2015 to January 2016 – Access issues during trial........................................................................ 57

Issue #1 – The pickup and drop-off locations after Ms. J.D.1’ move......................... 57

Issue #2 – The allegation that Mr. S.D. had hit one of the children............................ 58

Issue #3 – The children’s concerns about Rabbi P.S. and Mr. S.D.’s reaction............ 59

Overview and impressions of the principal witnesses........................................................... 61

Ms. J.D.1...................................................................................................................... 61

Rabbi P.S..................................................................................................................... 63

Mr. S.D........................................................................................................................ 68

The Children’s Lawyer (Allyson Gardner) ................................................................. 74

EVENTS FOLLOWING THE TRIAL..................................................................................... 85

June and July 2016 – The issue of J.A.P.’s biological father................................................... 85

September 14, 2016 – An urgent motion about the girls’ school and Mr. S.D.’s breaches

of the access order................................................................................................................... 88

September and October 2016 – Mr. D.P.’s and Mr. S.D.’s 14B motions............................... 91

Mr. S.D.’s 14B motion....................................................................................................... 91

November 9, 2016 – Mr. S.D.’s counsel’s motion to get off the record................................. 92

November 14 and 15, 2016 – The trial resumes...................................................................... 92

Impact of the additional evidence relating to Mr. D.P............................................................ 94

DISCUSSION.............................................................................................................................. 96

CUSTODY............................................................................................................................... 96

Children’s Law Reform Act – S. 24 Test............................................................................... 96

Custody Ruling................................................................................................................... 111

MOBILITY............................................................................................................................. 112

The Law.............................................................................................................................. 112

Application of the law to the children in this case............................................................. 116

Decision about mobility...................................................................................................... 119

ACCESS................................................................................................................................. 119

SUPPORT............................................................................................................................... 122

CURRENT SECTION 7 EXPENSES................................................................................... 125

SPOUSAL SUPPORT............................................................................................................ 125

RESTRAINING ORDER...................................................................................................... 126

CLOSING COMMENT TO COUNSEL................................................................................ 126

FINAL ORDER......................................................................................................................... 126

COSTS………………………………………………………………………………………… 131

wildman J.:

INTRODUCTION

[1] This case is about the future of four children: H.A.D., born […], 2011; S.B.D., born […], 2010; L.A.D., born […], 2008; and J.A.P., born […], 2005. At the time of trial, they were four, five, seven and ten years old, respectively.

[2] Ms. J.D.1 is the mother of all four children. Mr. S.D. is the father of the three girls and J.A.P.’s stepfather. Both parents are asking the court for a sole custody order for all four children. If Ms. J.D.1’ is successful, she also requests an order allowing her to move with them to England to live with her new partner, Rabbi P.S..

[3] Ms. J.D.1 says she has always been the primary caregiver for these children and that she is the only possible choice as the appropriate custodial parent. She says that joint custody with Mr. S.D. is not possible, as he is highly combative and irrational. She believes that a move to England would remove the children from the toxic family situation they have been enduring, both during her marriage to Mr. S.D. and since the separation in 2012. She points out that moving would also offer her and the children more financial security than living in Ontario, as she has been trying to support the children with very little assistance from Mr. S.D.. Now that she is married, she is no longer eligible for some of the financial aid that she received from the Jewish community as a single mother. If she and the children move to England, Rabbi P.S. is prepared to assume full financial responsibility for all of them.

[4] Mr. S.D. is distraught about the idea of his children moving to another country. He says the move would, effectively, eliminate him from his children’s lives, as no one can afford to fly the children back and forth between Ontario and England. He says his children are his life, that he and the children are very close, and that the children do not like Rabbi P.S.. He believes the children would be better off living with him but, if the court grants Ms. J.D.1 custody, the children should certainly not be permitted to move to England.

[5] The Office of the Children’s Lawyer (OCL) has assigned a lawyer, Stephen Codas, and a social worker, Allyson Gardner, to this case. On behalf of the children, Mr. Codas takes the position that Ms. J.D.1 is the appropriate custodial parent. Mr. Codas does not support Mr. S.D. having overnight access until he obtains some significant counselling. He says Mr. S.D. needs to demonstrate that he can control his anger and show that he understands how his attitude towards Ms. J.D.1 and Rabbi P.S. affects the children.

[6] The Children’s Lawyer does not support the move to England. Mr. Codas points out that J.A.P., in particular, is adamantly opposed to the move. Mr. Codas says the move would be too disruptive for the children, as they would be uprooted from their father and extended family, their friends and teachers, and the only life they have ever known. He says that they would be going to live in a strange country with a stepfather whom they barely know and, frankly, do not like. He points out that this is a new relationship for Ms. J.D.1 and there are too many unknowns about immigration, finances, schooling and housing to justify moving the children at this point. He also notes that the local Child Protection Services[^1] has an open file regarding this family due, at least in part, to the conflict between the children and Rabbi P.S.. Mr. Codas says that it would not be in the children’s best interests to consider moving them until they have developed a positive relationship with Rabbi P.S. and more concrete details are known about the proposed plan for them in England.

[7] Depending on my decision about custody and mobility, there are also some ancillary issues. I will have to determine the terms of access and the appropriate amount of child and spousal support. Ms. J.D.1 also requests that I continue the current restraining order against Mr. S.D..

OVERVIEW OF THE PROBLEM

[8] Mr. S.D. and Ms. J.D.1 lived together from January 2008 to March 2012. Unfortunately, this does not seem to have been a very happy relationship at any point. The parties and their children have also endured a high conflict separation. It has been marked by several “urgent” motions to the court concerning access disputes. Ms. J.D.1 has had a consent restraining order in place against Mr. S.D. since September 12, 2014.

[9] These four children are in a middle of a war. They love each of their parents, but they are constantly being exposed to unhealthy and toxic conflict. Sadly, there seems to be no decision that will give these children a chance for a normal, healthy childhood. What would be best for them is for their parents to set aside their differences and try to promote some peace for their children. However, based on what I have observed in this trial, that is unlikely to happen.

[10] This decision will be a search for the least detrimental alternative, recognizing that none of the choices is ideal. I will do my best to explore the various options available and try to craft an order that will cause the least additional pain for these children, who are the innocent victims of their parents’ conflict.

PRELIMINARY ISSUES

[11] There are some confusing aspects of this case, which I will attempt to clarify before turning to the balance of my decision.

Issue #1 – The surnames

[12] Many people dealing with this file have been confused by the similarity of the surnames and assumed that there is a typographical error in the title of proceedings. There is not: Ms. J.D.1’ surname has an “s” and Mr. S.D.’s does not.

Issue #2 – The legal status of Ms. J.D.1’ relationships

Mr. D.P.

[13] Ms. J.D.1 is legally married to Mr. D.P., whom she met in university. Ms. J.D.1 married Mr. D.P. on October 10, 2004, and they separated in June 2006. She and Mr. D.P. have one son, J.A.P.. When she originally testified in this trial, Ms. J.D.1 said she had no idea where Mr. D.P. might be. Ms. J.D.1 was trying to locate him, so she could obtain a divorce. Ms. J.D.1 did not discuss the terms of the settlement that she and Mr. D.P. reached after they separated, but it resulted in Mr. D.P. not being a part of J.A.P.’s life.

[14] Neither Mr. D.P. nor his extended family has had any contact with J.A.P. for years. The last visit between Mr. D.P. and J.A.P. that Ms. J.D.1 was aware of was in 2006 or 2007, although she has since learned that her mother may have facilitated a visit between Mr. D.P., his mother and J.A.P. in February of 2008. J.A.P. would have been two years old at that time, so he has no memory of Mr. D.P.. Ms. J.D.1 says that Mr. D.P. has never paid child support for J.A.P..

[15] However, in June of 2016, just before my decision in this matter was to be released, Mr. D.P. was located. He sent Ms. J.D.1’ lawyer some correspondence saying that he wished to make a custody or access claim to J.A.P.. This resulted in Mr. S.D. asking to reopen his case to call evidence about Ms. J.D.1 failing to foster a relationship between J.A.P. and his biological father. Mr. S.D. felt that this reinforced his position that Ms. J.D.1 would not facilitate a relationship between Mr. S.D. and his children, if she were permitted to move to England with them.

[16] Ultimately, Ms. J.D.1 consented to the reopening of the trial. Mr. D.P. testified and the trial was completed on November 15, 2016. The impact of the issues related to Mr. D.P. will be dealt with in the discussion about Ms. J.D.1’ custody and mobility claims.

Mr. S.D.

[17] Ms. J.D.1 and Mr. S.D. are Orthodox Jews. In their faith, their marital status is determined by whether or not they have been married by a rabbi. It was irrelevant to the parties that Ms. J.D.1 had not yet been legally divorced from Mr. D.P. when she and Mr. S.D. went through their religious marriage ceremony with a rabbi in January 2008. Ms. J.D.1 and Mr. S.D. considered themselves married. Their religious marriage was terminated in 2012 by Mr. S.D. obtaining a religious divorce, or “Get”, from a rabbi.

[18] Although Mr. S.D. and Ms. J.D.1 treated their relationship as a marriage, both of them agree that, for legal purposes, it is akin to a common-law relationship. This means that their claims are being advanced under the Children’s Law Reform Act[^2] rather than the Divorce Act[^3].

Rabbi P.S.

[19] Ms. J.D.1 has now “married” again. Her new husband is Rabbi P.S., who lives in London, England. Ms. J.D.1 and Rabbi P.S. met in May or June 2014 through an internet site called SawYouAtSinai. As is customary in their faith, their introduction was facilitated by a “matchmaker”, who screens potential matches for compatible life goals, religious beliefs and levels of observance.

[20] Ms. J.D.1 and Rabbi P.S. married in a religious ceremony in Toronto on October 31, 2014. As they have not had a child together or lived together for three years, Ms. J.D.1 and Rabbi P.S. do not yet meet the legal definition for common-law spouses under s. 29 of the Family Law Act[^4]. This may have some significance for immigration purposes.

[21] Out of respect for the parties’ religious beliefs, I shall refer to Rabbi P.S. as Ms. J.D.1’ husband, as this is what all the parties and witnesses in this trial consider him to be. Although Rabbi P.S. has asked that I refer to his new wife as Mrs. S., she has not asked me to do so, and she is identified as J.D.1 in all the court papers. I intend no disrespect to Rabbi P.S., or to their religious union, but I shall refer to the Applicant as “Ms. J.D.1”, as this is how she and her counsel have referred to her throughout this trial.

Issue #3 – Mr. S.D.’s relationship to J.A.P.

[22] As mentioned, Mr. D.P. is J.A.P.’s biological father. However, he was gone from J.A.P.’s life so early that J.A.P. has no memory of him.

[23] Ms. J.D.1 met Mr. S.D. in September 2006, while she was still going through her separation from Mr. D.P.. J.A.P. was just over one year old. Mr. S.D. has assumed the role of parent for J.A.P. since then and is, essentially, the only father J.A.P. has ever known.

[24] Although he did not legally adopt J.A.P., to his credit, Mr. S.D. makes no distinction between his relationship with J.A.P. and the other three children. Until recently, J.A.P. believed his name to be J.A.D.. That is how he is registered in school. J.A.P. did not know that Mr. S.D. was not his biological father until, during this litigation, Ms. J.D.1 unilaterally decided to inform J.A.P., without telling Mr. S.D. that she had done so.

[25] As Mr. S.D. has demonstrated a settled intention to treat J.A.P. as his son, he is considered J.A.P.’s parent under the definition in s. 1 of the Family Law Act for the purposes of child support. However, Mr. S.D. is not J.A.P.’s father as defined by the Children’s Law Reform Act. He is not J.A.P.’s natural father;[^5] he has not adopted him;[^6] he has not been declared to be his father by a court;[^7] and none of the presumptions of parentage applies.[^8] This means that Mr. S.D. is applying for custody of, and access to, J.A.P. as “any other person”[^9] rather than as a parent. However, the blood relationship is only one of several factors to be considered when determining the best interests of a child in custody and access proceedings under that Act.[^10]

[26] Mr. S.D. has made no claim under s. 5 of the Ontario Child Support Guidelines[^11] to reduce the amount of child support he should pay for J.A.P.. He does not want to make any distinction between his biological children and his non-biological child.

[27] The legal significance of all of this will be discussed later. However, as Mr. S.D. considers J.A.P. to be as much his child as the other three children, and for simplicity, I shall refer to Mr. S.D. as the “father” of all four children, as that is how all the participants in this trial have referred to him. I will use the term “stepfather”, only if it is necessary to make a distinction from “biological father” in the legal analysis later in this decision.

Issue #4 – Mr. S.D.’s counsel

[28] Mr. S.D.’s first counsel was Paul Cooper. He got off the record on June 30, 2014. Mr. S.D.’s counsel throughout most of this trial was Ms. Pamela Bhardwaj. However, on September 1, 2016, just before the “reopening” of the trial to call new evidence was to begin, Mr. S.D. changed lawyers. His new lawyer is Mr. Kevin Caspersz. Any reference to Mr. S.D.’s “counsel” in this decision refers to Ms. Bhardwaj until August 31 and Mr. Caspersz thereafter. As Mr. Caspersz is Mr. S.D.’s current counsel, his name appears in the Title of Proceedings.

THE FACTS

INTRODUCTION

[29] This trial lasted 27 days. The evidence is voluminous. In an effort to review it in a comprehensible manner, I have organized events chronologically.

THE EARLY YEARS – EVENTS PRIOR TO THE SEPARATION

[30] Ms. J.D.1 was born […], 1976, and Mr. S.D. was born […], 1971. At the time of trial, they were 39 and 44 years old respectively. They met through an online Jewish dating site, JDate, and dated from approximately September 2006 until their religious marriage in January 2008. They separated in 2012.

[31] Ms. J.D.1 describes her entire marriage to Mr. S.D. as chaotic and stressful. Even in the first year of their marriage, Ms. J.D.1 says that Mr. S.D. was frequently angry and yelling at her, to the point that neighbours became concerned and called the landlord to check on her.

[32] The young family quickly expanded. J.A.P. was not quite three when the parties married. Ms. J.D.1 became pregnant almost immediately. In[…], 2008, L.A.D. was born, followed by S.B.D. in […], 2010 and H.A.D. in […], 2011.

[33] Ms. J.D.1’ main responsibility was caring for the four young children, with the assistance of the family’s nannies. She is a university graduate but most of her work outside of the home during the marriage was in the aesthetics field. She worked sporadically doing hair, nails, makeup and selling beauty products. Mr. S.D. estimates she might have made an average of $500 per month during the marriage, which she used for her own “extras”.

[34] Mr. S.D. was the primary breadwinner for the family. He is a graduate of Seneca College with a Business Administration diploma. Mr. S.D. supported his family during the marriage through his work as a handyman or contractor. He decided to start this business, despite the fact that he did not “even know how to put a nail in the wall”, when a friend suggested Mr. S.D. could be successful in home contracting and renovations because he was “such an amazing salesperson”. Mr. S.D. began posting ads on Kijiji and soon he was making a lucrative living through this work.

[35] Unfortunately, when customers had complaints, Mr. S.D. did not handle them well. For example, Ms. J.D.1 recalls one occasion in June 2009 when Mr. S.D. became so upset with customers who refused to pay him for “extras” that he had done in their kitchen renovation that he responded by smashing up the customers’ kitchen, necessitating police involvement.

[36] Despite the challenges with Mr. S.D.’s business, he generated a good income for the family. The couple lived a reasonably affluent lifestyle. They employed nannies to assist Ms. J.D.1, both during the week and on weekends. Ms. J.D.1 had a gym membership. She says that she and Mr. S.D. frequently ate out at fine dining restaurants. Mr. S.D. drove a Mercedes, which he traded in for a Range Rover in 2008.

[37] However, there were certainly financial pressures. Mr. S.D. and Ms. J.D.1 were together for less than four years and lived in at least four different homes. Ms. J.D.1 says that they had to move twice because Mr. S.D. got into arguments with the landlords and withheld the rent. Utility bills went into arrears and collection agencies began pursuing them. The children’s private schooling was threatened because Mr. S.D. did not pay the registration when requested. Ms. J.D.1 describes Mr. S.D. as an “operator”, who would always be trying to bargain with the school to reduce fees, and who knew that they would be able to get several months of free rent or utilities before legal action could be completed against them.

[38] The stress between the couple also caused strain with their extended families. Ms. J.D.1’ brother, J.D.2, told the court about the aura of tension in his sister’s home whenever he would visit for Shabbat. On one occasion, Ms. J.D.1 says that her mother called the police because she was so concerned for Ms. J.D.1’ safety. Mr. S.D. said his parents also did not like to visit, as they felt Ms. J.D.1 was rude to them. Neither of the parties painted a very pretty picture of their family life together.

[39] In March 2012, things really began to unravel. Mr. S.D. became so enraged with the nanny that Ms. J.D.1 was frightened and called her mother. Her mother called the police, who attended at the home and removed Mr. S.D.. Around this time, the couple was also in default on their rent. Ms. J.D.1 says they were eventually evicted. She and the four children moved in with her mother.

[40] This separation was the beginning of the end of the marriage. Although there were some unsuccessful attempts at reconciliation in 2012, the parties agree I should consider their separation date to be March 2012.

[41] Mr. S.D. admits that the parties had an erratic relationship and had many disagreements, but he believes that both of them contributed to the conflict. He admits that the “shouting matches” were so loud that neighbours became concerned and that it was an unhealthy environment for the children. Ms. J.D.1 says there were occasions where Mr. S.D. would spit at her, push her or pull her hair. She agrees that Mr. S.D. did not hit or seriously injure her. Mr. S.D. adamantly denies that he had anger management issues or that he was ever physically aggressive with his wife in any way.

[42] Although each party is quite adamant about his or her perception about Mr. S.D.’s treatment of Ms. J.D.1 during the marriage, I have elected not to make a finding about the level of physical violence that was present during the marriage. Focusing on this issue would take us in an unhelpful and unproductive direction that is not necessary for resolving the issues before me in this trial. In this case, the evidence about the parties’ conduct since separation is more determinative of their custody and access claims than what happened during the marriage.

[43] Abuse is not limited to situations of physical violence. I note that there has been a restraining order in place against Mr. S.D. since September 12, 2014. Although there are no allegations that Mr. S.D. has been physically abusive since separation, Ms. J.D.1 says that she is still frightened of him. Despite the lack of evidence about physical abuse, there is overwhelming evidence that Mr. S.D. has been incredibly verbally abusive to Ms. J.D.1.

[44] The text messages and emails between the parties during the years since separation shed some light on Ms. J.D.1’ complaints about how Mr. S.D. deals with her and how he reacts to stress and conflict. These texts clearly demonstrate abusive, aggressive and inexcusable conduct by Mr. S.D..

[45] Even though it adds significantly to the length of this decision, I have included lengthy quotes from some of the correspondence between the parties. It is hard to capture their tone and impact by summarizing or paraphrasing them. Their length and unrelenting nature bring to life the level of hostility that Mr. S.D. directs towards Ms. J.D.1, as well as how he reacts to stress. It also reinforces the restraint and patience that Ms. J.D.1 demonstrates when dealing with Mr. S.D., for which she deserves considerable credit.

[46] The timing of the texts also clearly demonstrates that Mr. S.D.’s vile treatment of Ms. J.D.1 was not limited to the last days of the marriage or to the particularly difficult time that frequently follows a couple’s separation. It has continued unabated throughout the years since separation, even while Mr. S.D.’s claims for custody were before the court in this trial and he might reasonably have been expected to be on his best behaviour.

[47] An early example was the communication just after the separation in March of 2012. In April, Mr. S.D. and Ms. J.D.1 were apparently trying to decide whether they would attempt to reconcile and move back in together after she and the children left her mother’s home. They had the following exchange:

S.D.: U make me Fucken sick and I don’t wan to be with u don’t u get it if u don’t then get it tomorrow they’re comn with me I don’t care what ur loser ass says ur shit[^12]

S.D.: Cause ur garbage mother wants me out u dirt shit u and ur mother can rot

S.D.: Both the same dirt

J.D.1;;): Omg. U r starting again. U can’t be normal. There is no way for us to do this. Obviously not goin to work.

S.D.: Good I don’t want it to work if it did ur mother isn’t aloud in the condo if so I’m not movn in that’s one my many rules for u I don’t like it I’m gone np u make me sick

S.D.: Wow dirt garbage zero ppl

S.D.: Can’t believe it wow wow wow

S.D.: Now u will see who am I wait and see

S.D.: No more bullshit that’s it today was the last

S.D.: Just have the boosters there so the kids can enjoy comn home before they go to sleep for once in they’re life and not having u stress them out all evening from today on

S.D.: Make sure J.A.P.[^13] is ready for Shabbos morning that’s it that’s all be alone u deserve no one who in the world would be with u who I’d like to see other then looks u have shit zero always remember that

[48] At the beginning of May 2012, Ms. J.D.1 and the children moved into a condominium without Mr. S.D.. Mr. S.D.’s reaction is clearly captured in the text he sent her that day:

S.D.: No kids done no u done I’m gone bye

S.D.: U will explain to the kids where they’re father is

S.D.: Make u understand this very clear I’m not messaging you cause the cops told me not to I’m not messaging cause ur finished done bye bye you will never see my face again for as long as u live and when my kids will be looking for me and they find me they will disown you I’ll make sure of that 100000 percent if you begged on ur hands and knees for 10 years I wouldn’t go back with u ur done enjoy ur low life shit dirt garbage life alone with 4 kids they will find me when the time comes and ul seewhat’s in store for u very soon be prepared for the sock of ur life u will be all alone in very soon time I’m going to ruin ur life for what u did today u will pay a very heavy price ul see I can’t wait u dirt shit low life scum

S.D.: … Maybe u should go fuck ur self has that loser shit

J.D.1;;): I told u no fighting or name calling I’m not engaging in that

S.D.: Dirt garbage

J.D.1;;): If u paid attention to how your behaviour affect your children, it may be an eye opener for u. J.A.P. just asked me why u picked me to marry if u always yell at me. He said hasham might punish you, but he hopes not. I try very hard to keep peace with you to my children to have a happy home with 2 parents. For the time that we are here, u need to do the same.

S.D.: U cause the kids to be like that ur garbage ur zero and I’m done with u simple

J.D.1;;): That’s fine but don’t cause stress in the house.

S.D.: Me cause stress its u loser get straight fake that shit u put in ur self out u don’t need actually ur going to need it for the next guy cause me haven sex with you won’t happen I would rather have sex with a dog

S.D.: Ur a lier garbage shit where’s the $200 u said I would I would done my car u dirt shit u lied to u said u were going to give me that its ok we ll see garbage

[49] Despite this exchange, Mr. S.D. did move into the condominium with Ms. J.D.1 and the children but any attempts at reconciliation were short-lived, as the relationship continued to be highly conflictual.

[50] Mr. S.D.’s anger toward Ms. J.D.1 also had an impact on the children, as Ms. J.D.1 had difficulty getting Mr. S.D. to make commitments or cooperate with her when parenting decisions had to be made.

[51] For example, all of the children attend private Jewish schools. Their parents are responsible for paying for the tuition but, if they are unable to afford it, subsidies are available. As Ms. J.D.1 points out, there is an incredible support system in the Jewish community and funding is available through the United Jewish Appeal (UJA) to ensure that every Jewish child will get a Jewish education. However, the parents are expected to contribute to the cost to the extent that they are able to do so.

[52] In August 2012, L.A.D. was about to turn four and begin school. The parties were apparently living together again by then, and Ms. J.D.1 was begging Mr. S.D. to assist her with the cost. His response illustrates the unrelenting vitriol that would be directed at her as she tried to attend to important issues regarding the children.

S.D.: Low life dirt when did ever say I’m not paying for L.A.D. to go to school u piece of garbage shit rot in hell dirt garbage u will day every day that goes by u garbage shit low life

J.D.1: Registration is due today. You already told me you aren’t paying registration. Without registration, she doesn’t go to school. So, yes, you are refusing to pay for her school. And u actually think I’m going to help u?

S.D.: How much is it I didn’t know that loser shit so stop talkn shit

S.D.: Talk loser

S.D.: PING!!![^14]

S.D.: PING!!!

J.D.1: I don’t know.

J.D.1: I think 150

S.D.: Find out how much and go there and pay

S.D.: Don’t they need papers from Abe

S.D.: Get everything and pay

J.D.1: I need to know how much u can pay a month

S.D.: I don’t know they will tell us then we will tell them

J.D.1: If u just tell them and they except it is easier. They won’t need all the info

S.D.: Let them tell u first then we negotiate

J.D.1: I really don’t want to give them all our financial information. Much better if u can say what u can afford. It’s a lot of work and I’d rather not give the information

S.D.: if they ask say $200 to start if they ask let them tell u first

S.D.: Read up $200 or less

S.D.: Try less then $200

S.D.: if they say can’t do less then $200 then say our max is $200 but don’t say $200 first say $150 and go up to $200 say $150 plus charity

S.D.: PING!!!

S.D.: Say $150 plus charity

J.D.1: U don’t seem to understand that u need to show them all your expenses, that …

S.D.: No $225 final

J.D.1: It is

S.D.: From the money u get from the government u can help pay for school to thanks

S.D.: From the money u get from the government u can help pay for school to thanks

J.D.1: No I can’t. I have to pay rent insurance and my car. Tuition can’t be my responsibility too

S.D.: I’m not paying $500 in tuition and ur not helping sorry L.A.D. can stay where she is now if ur not helping sorry

J.D.1: Are u normal? Yes, u r their father. U are paying tuition. I drive them everyday and take care of them after and before school. It is thousands a month to pay someone to do that. If you don’t want to pay tuition I will apply as a single mother and I will have to speak to Rabbi Gansburg about it since he is on the board at the school

S.D.: U need to go see Abe were suppose to get more from the government for our kids go see him stop doing shit all day

J.D.1: Again, I am not signing for u to throw away money on a car when u don’t put your kids education first.

J.D.1: I get what I am supposed to get.

S.D.: Good apply

S.D.: Go on welfare it will pay for they’re school or apply for what u need to apply for

S.D.: I pay $100 for my care loser shit

S.D.: Get a life

S.D.: U think ur going to clean me out of money this haaa in ur dreams once a fool 2nd time smart but good try and u want to buy a what? Did u say … A house more like a dog house for u

J.D.1: This is your KIDS. Its not for me its for THEM. I will do what I have to do to get L.A.D. into school.

J.D.1: You’re the loser. Not willing to pay for your daughters tuition. Thank Gd Rabbi Gansburg is on the board.

S.D.: She will go to school loser don’t u worry loser stop bye

S.D.: Loser shit

J.D.1: Rabbi Sosover and Rabbi Wagner aren’t interested in your bullshit. Their school isn’t run like the cheder and he doesn’t “need” extra money.

S.D.: The $600 I gave u pays for the first month and half of they’re school if you don’t have it go to work and get it

J.D.1: S.D., I will discuss this with the cheder and with DCM and Rabbi Gunsburg. If u are refusing to pay tuition I will do what I need to do.

S.D.: Good do it simple very good

J.D.1: Please just take your things and go. I was trying to make this work for the kids, but you don’t have their best intentions at heart. So I’m not willing to stay with you anymore. I’m discussing it with Rabbi Gansburg and I’ll let you know when the appointment is with Rabbi Ochs.

S.D.: Go fuck urself dirt loser shit u want a free ride its not going to happen sorry I pay for everything and go broke fuck u loser

S.D.: Loser u know who ur talkn to ur rabbi shit talk doesn’t work with me sorry loser

S.D.: This is why us can’t afford anything u have no work ur talking to me and hanging out all day

S.D.: Loser dirt ul go broke before I do and live on the streets

S.D.: Actually I might live on the streets cause u might be a nigger again and call the police loser garbage shit

S.D.: Call all ur rabbi get a divorce asap please please do I wish

S.D.: Ur dirt garbage shit not a wife a wife doesn’t do this ur an animal

S.D.: Drive the van give ur van back u rather pay for ur van then make sure ur kids have an education dirty scum

[53] As she had to do, time and time again when something had to be figured out for the children, Ms. J.D.1 did her best to make arrangements on her own to ensure that L.A.D.’s educational needs were met.

[54] Throughout the fall of 2012, the parties continued their on-and-off relationship. Ms. J.D.1 apparently wanted Mr. S.D. to get counselling. However, in November, things became so unbearable that Ms. J.D.1 had the police remove Mr. S.D. from her condominium. Mr. S.D. stopped working and sent Ms. J.D.1 a string of text messages:

S.D.: … I don’t want to be with you

J.D.1: Ok

S.D.: UR NOT FOR ME simple

S.D.: Ok ufucken dirt shit garbage ok that what u say garbage that’s what ur r you could care less piece of garbage

S.D.: Its ok ul care my promise to you mark my words on this day

J.D.1: I honestly cannot believe the pain you chose. Not to chose therapy and being with your wife and kids, but rather you chose to continue living with all the issues u have.

S.D.: That’s it blame me ur right ok thank u I don’t care bye

S.D.: I’m taking them to toys r us soon

S.D.: Where r u why is ur phone stright to ur message

S.D.: For half an hour

S.D.: PING!!!

S.D.: PING!!!

S.D.: PING!!!

S.D.: PING!!!

S.D.: Whwrer u

J.D.1: Understand this – my kids don’t get dragged out at bedtime. Nor do u yell at me.

J.D.1: I did not invite u here. If u start with me, u will end up in jail.

S.D.: Mark my words of all days today …

S.D.: Everyone will pay but u will pay the price like no other its already started so as soon I get papers ul know fucken good for nothing piece of shit I’m on the fucken street as of tomorrow and could care less one bit wait this tops all things I’ve gone through for the last year now we see I hope u rot in hell and u will

S.D.: How u could fucken leave me on the fucken streets if that’s where I would be an want me to give u money and want me to go to therapy and want be to be in ur life ur fucken dreaming and now shit ul pay very very deep price

[55] Mr. S.D. and Ms. J.D.1 have not lived together since then.

EVENTS FROM SEPARATION TO TRIAL

August 2012 to June 2013 – Mr. S.D. stops working

[56] As mentioned, the attempted reconciliations between March and August 2012 did not work out. Mr. S.D. stopped running his business by May 2012, as he says he became depressed and anxious and was not “mentally stable” to do anything. He says he was crying all the time and unable to work. He says that he went to a doctor, who prescribed medication for him, but Mr. S.D. could not recall the name of the medication or for how long he took it.

[57] Once Mr. S.D. was no longer living with Ms. J.D.1 and the children, he moved in with his parents and only saw the children sporadically. Mr. S.D. blames this on Ms. J.D.1 refusing to let him see the children unless he paid support, but he admits that his memory, particularly of that time, is not good.

[58] Mr. S.D. provided no evidence to support the suggestion that Ms. J.D.1 was withholding the children from him. This certainly does not accord with Ms. J.D.1’ pattern of behaviour since separation. When she had concerns about Mr. S.D. being around the children, she seems to have dealt with the situation by bringing the matter to court on urgent without notice motions, rather than by unilaterally denying him access.

[59] Ms. J.D.1’ perception is that Mr. S.D. would bribe her with promises to pay support if she would “come back to him”. I suspect that she is more accurate in her recollection of what was happening at that time than is Mr. S.D.. Ms. J.D.1 points out that Mr. S.D. was struggling personally, which caused him to be inconsistent in both asking for and exercising access. Mr. S.D. admits that he was not functioning well and was “crying all the time”. Regardless of the cause, both agree that he was not regularly seeing the children or paying any support in the latter part of 2012 and the first half of 2013.

June 2013 – Mr. S.D. moves to Montreal and the court proceedings begin

[60] In June 2013, things came to a head and litigation began.

[61] The court action started with a troubling pattern that repeated throughout the course of the litigation. Ms. J.D.1 would bring “urgent” motions without notice to Mr. S.D., claiming that there was an urgent situation that needed to be addressed immediately. Once Mr. S.D. was served, there would usually be a temporary consent order. The result was that many of the issues in this file were never actually addressed by the court on their merits, but Ms. J.D.1 has relied on the orders she obtained through these “urgent” proceedings as proof of the court “siding” with her.

[62] For example, when Ms. J.D.1 brought her first urgent without notice motion on June 17, 2013, she filed an affidavit stating that she had learned that Mr. S.D. was about to move to Montreal. She said that Mr. S.D. told her he was going to take the children, and she would never see them again. She also said that Mr. S.D. told the children that they would never see him again. Ms. J.D.1’ motion materials indicate Mr. S.D. had been mentally and emotionally abusive to her during the relationship, that he had begun to be “somewhat” physically “aggressive” to her and the children, and that she and Mr. S.D. had been trying to mediate with a rabbi, but Mr. S.D. would not agree to any support or visitation.

[63] Based on this affidavit, the judge at the first return issued a temporary order that the children “shall remain in the custody of the Applicant Mother”, and that they were not to be removed from the Province of Ontario without a court order or written notarized agreement.

[64] As there was no expiry date on the without notice order, Ms. J.D.1 has continued to rely on that order ever since to support her position that the court “granted her custody” and that she is the children’s “custodial parent”. There is no other order that mentions the word “custody”.

[65] The June 17, 2013 urgent motion was adjourned to June 21, 2013, so that Mr. S.D. could be served and given an opportunity to respond. Mr. S.D. appeared on the scheduled court date and the parties worked out a temporary agreement that Ms. J.D.1 could remove the children from Ontario without Mr. S.D.’s consent. However, Mr. S.D. could not take the children from Ontario without an agreement or court order. The parties agreed to participate in off-site mediation about the remaining issues.

[66] Over the summer of 2013, Mr. S.D. lived in Montreal, as he had a friend who had suggested to him that Mr. S.D. could try to get a fresh start there. Mr. S.D. says he came back and forth to Toronto to see the children every few weeks.

[67] The idea of resolving things through off-site mediation was apparently unfruitful, because Ms. J.D.1 brought another urgent without notice motion on August 20, 2013. This motion was for a restraining order to “stop harassment” and for an order that Mr. S.D. could not “go to the kids camps/schools/daycares without [Ms. J.D.1’] written permission”.

[68] I pause now to comment on the tenor of the material that Ms. J.D.1 was filing on her “urgent” motions, because this became more and more problematic as time went on. For the motion on August 20, she began her supporting affidavit with the paragraph, “I obtained an order for sole custody on June 17, 2013 followed by mobility order on June 21, 2013.”

[69] The June 17 order did not mention “sole” custody. The June 21 order was not a “mobility” order. There is an obligation on people applying for orders without notice to the other side to be scrupulously honest and accurate in their material. Ms. J.D.1 should have taken more care throughout this litigation to ensure that she was not misleading the court when she prepared court materials, particularly when they were without notice to Mr. S.D..

[70] Ms. J.D.1’ affidavit continued by saying that Mr. S.D. was arriving from Montreal without notice and exhibiting “stalking” behaviour. The behaviour referred to was Mr. S.D. showing up to talk to her at places that he predicted she might be, because Ms. J.D.1 was not responding to his texts and phone calls. She outlined that Mr. S.D. had returned the children one hour late on an access visit on August 18. She also complained that he had gone to J.A.P.’s camp to see him on August 19. She wrote of Mr. S.D. yelling and swearing at her in front of the children and causing “emotional disturbance” for J.A.P. by telling him that he would like to take him out of camp, but his mother would not allow it.

[71] Ms. J.D.1’ affidavit helps to understand what was going on for this couple at this time. Mr. S.D. was living in Montreal. He would arrive in Toronto without any prior notice to Ms. J.D.1 and want to see the children. Ms. J.D.1 would not respond to his texts and phone calls. Mr. S.D. would try to track her down because, as he says, he “just wanted to see his kids”. Ms. J.D.1 was frustrated with Mr. S.D. refusing to commit to a regular access schedule and simply showing up whenever he wanted. As Mr. S.D. had moved to another city, Ms. J.D.1 felt she was a “sole custodial parent”, who determined the children’s schedule. Ms. J.D.1 felt that Mr. S.D. had to go through her to arrange contact with the children, and that it was inappropriate for him to show up and visit with them at their camp or daycare, without any notice to her.

[72] Mr. S.D. felt these were his children and he could see them whenever he wanted. When Ms. J.D.1 tried to limit his spontaneous visits, Mr. S.D. did not respond productively. Ms. J.D.1 then went to court attempt to obtain an order without notice to him, based on her one-sided perception of events.

[73] This pattern repeated itself over and over throughout the course of this file. Ms. J.D.1 felt she was in charge. When challenged by Mr. S.D., she would go to court and try to get an order without notice to him. Although Mr. S.D. may not have behaved ideally, the descriptions in Ms. J.D.1’ without notice motions to the court exaggerated the level of risk, to try to obtain an advantage in this litigation.

[74] Justice Nelson received the material presented by Ms. J.D.1 on August 20th. He refused to grant any order without giving Mr. S.D. an opportunity to respond with his version of events. Tellingly, when Nelson J. directed that Mr. S.D. be given a chance to participate, Ms. J.D.1 abandoned her motion. She seems to have decided that the matter was no longer urgent, and she did not really need a restraining order, as she did not serve Mr. S.D. or pursue the matter further.

September 2013 to December 2013 – Mr. S.D. returns to Toronto and begins to exercise regular access

[75] The original court application, which had been adjourned on June 21, 2013 for the parties to attend mediation, was still before the court. The next scheduled court date was September 17, 2013, at which time both parties attended with counsel and signed a consent to settle the issue of access. They agreed that Mr. S.D. would have reasonable access to all four children, including telephone access, if he gave Ms. J.D.1 at least 48 hours’ notice for visits. J.A.P. could stay with him overnight “on Ms. J.D.1’ consent”, which consent was not to be unreasonably withheld. Mr. S.D. was to ensure that the children were safely transported for his access, and Ms. J.D.1 was to give notice of any trips that she and the children were taking and facilitate reasonable telephone access during them. There was no mention of a restraining order. This consent was turned into a court order by Justice Douglas on November 15, 2013.

[76] Any hope that the consent was a sign of a workable peace was short-lived. Mr. S.D. stayed in Montreal for a few more months after the consent was signed but returned to Toronto sometime around November 2013. When he returned, and began exercising more frequent access, there were almost immediate problems.

[77] On Saturday, November 16, the day after Justice Douglas’s order, there was a text message exchange. J.A.P. was with his father that day. At 9:57 p.m., Mr. S.D. sent Ms. J.D.1 a text to say that he would be returning J.A.P. soon. Ms. J.D.1 had understood that J.A.P. was staying with Mr. S.D. overnight, but Mr. S.D. said, “no one told him”. Mr. S.D. did not want J.A.P. to stay, because Mr. S.D. “had plans”.

[78] I pause to note that J.A.P. was eight years old and it was almost 10 p.m. I also note that this was one of the first, if not the first, access visit that Mr. S.D. had after he returned to the Toronto area. It is difficult to understand Mr. S.D.’s complaints that Ms. J.D.1 would “never” let him see his children, when he was so adamant about refusing to have J.A.P. stay with him overnight on this visit.

[79] Mr. S.D. insisted he was returning J.A.P.. Ms. J.D.1, who lived in an apartment building, acquiesced but asked that Mr. S.D. text her when J.A.P. arrived, so that she could meet him at the entrance to the building. Mr. S.D. refused and said that “[J.A.P.] will knock I’m not comn to the door”. Mr. S.D. also informed Ms. J.D.1 that he would be coming to pick all the children up the next morning.

[80] Ms. J.D.1 responded by sending Mr. S.D. a copy of the lawyer’s email that set out that Mr. S.D. was to have J.A.P. with him from Shabbat (Friday November 15) until Sunday November 17 at 6 p.m., and the three girls were to stay with Ms. J.D.1 for the weekend. Mr. S.D. responded that he did not care what the lawyers had agreed to as a schedule. He demanded that all the children be given to him the next day. He concluded with “then we see” and “Keep it up I can’t wait.”

[81] The text exchange that followed deteriorated quickly. Mr. S.D. demanded certain access days. Ms. J.D.1, quite properly, responded by saying that the schedule would have to go through their lawyers. Mr. S.D. became belligerent and ended the exchange with “Do what ever u like”, followed quickly by “Keep them 7 days bye”.

[82] I accept Ms. J.D.1’ evidence that she was trying to accommodate Mr. S.D.’s access requests. I note that, despite his rude texts to her, Ms. J.D.1 did allow all of the children to go for access with their father the next day, even though the girls were scheduled to be with her. This goes a long way to contradict Mr. S.D.’s suggestion that Ms. J.D.1 was not facilitating access.

[83] However, this did not placate Mr. S.D.. Even though he had received the children the next day (November 17) as he had demanded, Mr. S.D. sent Ms. J.D.1 offensive texts during the time the children were supposedly with him that day.

[84] In one text, at 4:54 p.m., he began demanding that Ms. J.D.1 come to his sister’s house to get S.B.D. immediately, because S.B.D. was falling asleep. This reinforces Ms. J.D.1’ evidence that Mr. S.D. was more interested in access with the older two children, particularly J.A.P., than he was in caring for the two younger girls.

[85] Unfortunately, both before and after that text, Mr. S.D. sent Ms. J.D.1 various other abusive and threatening texts. His 4:54 p.m. and 5:56 p.m. texts establish that the children were with him for much of this exchange, yet he chose to spend his time berating Ms. J.D.1 rather than interacting with the children.

[86] Apparently, Mr. S.D. discovered from the children during this visit that Ms. J.D.1 had been seeing someone named “Danny”. So he began to barrage her with texts:

S.D.: So there really is a Danny the kids know wow really …I can’t really fucken believe u … now we see u r a fucken disgrace to my kids and this world u will now pay a very heavy price ur fuck gross at least when I do what I do they don’t know if u only knew haa

S.D.: U tell ur friends about him wow very nice haa the kids know wow ur a big fucken hero makes me fucken sick u r seriously disgusting

S.D.: Betterr warn him who ur ex husband is and was and will be good luck ul be divorced (faster) then u get married haa can’t wait

S.D.: … U don’t fucken about no one but ur self haaa wait ul care after this week

S.D.: … Make sure Danny boy starts his duties fast cause ur going to need him very fast explain to my kids where they’re father is now

S.D.: If I didn’t have any women around me I would care I don’t I seriously don’t but my fucken kids know u fucken low life shit they suffer they won’t after this week

S.D.: This why I’m sick cause of ur bullshit all the time but trust in me all my sickness ul pay for that I promise u wait

[87] Ms. J.D.1 did not engage with Mr. S.D. but she did go to his sister’s to pick up the children, as he had requested. Mr. S.D. continued to text Ms. J.D.1 with his demanded schedule for the next week. His communications with her clearly reinforces Ms. J.D.1’ evidence that Mr. S.D. was only interested in access on his terms. In one text, he states that, if she did not accept his schedule, she would have the children for seven days a week. He followed this with “have fun ur on ur own”. He then added, “Ask Danny he can watch them on tues and thurs he will be more then happy to sad divorce loser like u the only difference is ur on ur 3rd which if I can help will be 4 and 5 to haa wait"

[88] Ms. J.D.1 is to be given considerable credit for not responding to this vitriol. Despite Mr. S.D.’s apparent inability to focus on the needs of his children, Ms. J.D.1 was still trying to be there for her children and complete the pickup at their aunt’s home, as Mr. S.D. had requested. Her only response to Mr. S.D.’s disgusting texts was a very polite: “Please bring S.B.D.’s black shoes up and j and l’s suitcases back”.

[89] Shockingly, Mr. S.D. then informed her that he was not even his sister’s house. Apparently, he was somewhere else with the oldest two children, and he had left the younger two with his sister.

[90] However, Mr. S.D.’s attention was not even on the two children who were with him, as he was focused on his text tirade. Mr. S.D. continued to send Ms. J.D.1 escalating, abusive texts in rapid succession, stating that he would only see the children on his terms and that he did not and would not feed them. His verbal abuse towards Ms. J.D.1 continued to intensify:

S.D.: I’m not home were out and L.A.D. and J.A.P. are with me next Shabbos umless ur taking them 7 days a week

S.D.: Do u go for a quickie last nite at 10 then got home at 11 u so called frum mother check the rules dirt scum my kids know this wow

S.D.: Don’t worry this is ur week wait

[91] The next text was perhaps the most disgusting and frightening. Ms. J.D.1’ mother and father had been involved in a bitter divorce when Ms. J.D.1 was in university. Tragically, her father committed suicide.

[92] Mr. S.D. wrote, “This is how ur dad was until he couldn’t handle it no more and left the world and his kids be prepared for what’s yet to come especially this week.”

[93] His parting shot was, “Hope u made food for them cause if u didn’t u had better start I didn’t know I was suppose to feed them u never told me to today.”

[94] Apparently, the reference to being prepared for “what’s yet to come this week” was to a First Appearance court date that was scheduled for November 19, 2013. However, Mr. S.D.’s attempt at intimidation was unfounded: nothing happened that day. The endorsement shows Mr. S.D.’s lawyer attended on everyone’s behalf and simply adjourned the matter to a case conference on February 28, 2014.

[95] This exchange of texts reinforces Ms. J.D.1’ testimony from the trial. Mr. S.D. was, and is, impossible for her to deal with. I do not accept Mr. S.D.’s evidence that Ms. J.D.1 was withholding the children from him or demanding support as a condition of him seeing the children. Rather, he was dictatorial, abusive, and unprepared to see his children unless it was on exactly the terms he demanded. He was more focused on fighting with Ms. J.D.1 than he was on his children’s needs. Sadly, that appears to be a pattern that has continued right up to, during, and after this trial.

[96] As noted earlier, Ms. J.D.1 showed remarkable restraint throughout most of the text and email exchanges. Although Mr. S.D. complains that she “would not answer his texts”, he has failed to produce anything to substantiate this, other than the exchanges mentioned above.

[97] Mr. S.D. says that he kept a record of the texts and emails that Ms. J.D.1 sent him by copying them from his one email account to another. The only email from her that could be considered inappropriate is dated December 30, 2013 and reads as follows:

You are sick. Stop ruining my children. Your parents screwed you up beyond repair. It is so sad that you were raised so poorly. I haven’t met one person yet who has a normal thing to say about you. Get the help you need. My kids aren’t going to be exposed to your instability for much longer. My children do not need or want a thing from you. Thank God you are your worst enemy and soon the only visits you have with them will be supervised. You will have contact through a third party. DO NOT text me EVER again. Look forward to what is coming. The legal system is now my best friend and if I were you I would just disappear like you promised you would. Best of luck to you. Remember – DO NOT TEXT ME AGAIN.

[98] Although Ms. J.D.1 was not prepared to acknowledge that this email came from her, as there is no identification of the sender on the email produced by Mr. S.D., I find, on a balance of probabilities, that Ms. J.D.1 sent it. If Mr. S.D. were creating false correspondence, he would have probably produced more than one email. It is also unlikely that Mr. S.D. fabricated this particular email, because, unlike Mr. S.D.’s ranting texts, the punctuation, spelling and grammar in this email are correct, there is no profanity, and the content is more articulate and restrained than Mr. S.D.’s communications.

[99] However, the fact that Mr. S.D. can only produce this one inappropriate email from Ms. J.D.1 reinforces that Ms. J.D.1 generally displayed impressive control when dealing with Mr. S.D., despite Mr. S.D.’s anger and provocation. In addition, given Ms. J.D.1’ customary restraint, it suggests to me that Mr. S.D. likely did something particularly objectionable to provoke such a response on December 30, 2013. Mr. S.D. has produced this email in a vacuum, saying he has no idea what was happening between the couple at that time. There is no framework for me to decide how inappropriate the email might be, because I do not know to what Ms. J.D.1 was responding. Given the lack of context, I put very little weight on the December 30, 2013 email.

January 2014 – J.A.P. changes school

[100] Despite whatever happened to cause Ms. J.D.1 to send the December 30, 2013 email, she continued to ensure that Mr. S.D. would have opportunities to see his children. On January 3, 2014, Ms. J.D.1’ lawyer sent Mr. S.D.’s lawyer a letter advising that Ms. J.D.1 was going out of town from January 7th to 9th, and the children would be staying with her mother. Ms. J.D.1 offered to have the children see their father daily while she was away. She also proposed that, if he wished, he could have J.A.P. and L.A.D. stay with him for the entire period that she was gone, including overnights. This satisfies me that Ms. J.D.1 continued to remain child-focused. Contrary to Mr. S.D.’s assertion, I find that she was not withholding the children from him.

[101] As Mr. S.D. did not take Ms. J.D.1 up on her offer to have the children stay with him during her absence, Ms. J.D.1 had to arrange alternate childcare. She had a friend, L.A., picking J.A.P. up at school. One day, J.A.P. disclosed to Ms. L.A. that he was being bullied.

[102] Ms. L.A. is a wealthy, accomplished and kind businesswoman. She and her husband are involved in multiple companies in the telecommunication and software, shipping and pharmaceutical industries. They have adopted five special needs children and have taken training courses about how to deal with special needs and abused children. Ms. L.A. regularly assists people in need in her Jewish community, both by giving of her time and money, and by hosting charitable events in their 14,500 square-foot home.

[103] I think it is fair to say that Ms. L.A., quite rightly, considers herself a pillar of her local Jewish community. She is also a force with which to be reckoned. She is accustomed to being in charge and to being treated with respect.

[104] When J.A.P. told Ms. L.A. that he was being bullied, she sprang into action. Within a day or two, she had contacted the mother of the supposed bully, obtained information about Mr. S.D. being aware of J.A.P.’s concerns and had J.A.P. dictate a summary of the bullying events. She then met with the principal of the school, Rabbi Zaltzman, to discuss the matter.

[105] Exhibit 49 is a detailed summary of a document that Ms. L.A. prepared. It contains a list of J.A.P.’s complaints; the classroom rules that she felt should be investigated; and a timeline outlining details of the school’s response, Mr. S.D.’s five previous attempts to deal with the situation, and Ms. L.A.’s involvement. Ms. L.A. dated this document Sunday, January 5, 2014 and sent it to Ms. J.D.1 to sign and return to her, so that she could deal with the school the next day.

[106] Ms. L.A. also said that there was “absolutely” no thought of contacting Mr. S.D. about what was going on with J.A.P. or the actions Ms. L.A. was intending to take with the school. It is difficult to understand why Ms. L.A. felt it was appropriate to exclude Mr. S.D. from her dealings with the school, particularly as she was aware that J.A.P. had talked to Mr. S.D. about the situation, and he was already dealing with the school about ways to address the problem.

[107] Ms. L.A.’s document concluded with a signature line for Ms. J.D.1 and for the school principal. Immediately preceding Ms. J.D.1’ signature line are the following paragraphs of note:

13. Rabbi Zaltzman was told 1 month ago by S.D. (sic) about the bullying and Rabbi Zaltzman doubted the incidences after speaking with staff and Rabbi Rosenfeld[^15] of any bullying done to J.A.P..[^16]

My instructions are that Monday and Tuesday morning and afternoon S.D. will drop off and pick up J.A.P. from the Cheder. Wednesday morning, we will have another discussion with J.A.P. to evaluate whether the new seating arrangements and lunch issues, are solved. My instructions are that for any mundane question or emergency, only Mrs. L.A. should be contacted immediately at [phone number].

After I return, Mrs. L.A. is to be the secondary contact if you are unable to reach me.

[108] A few things about this note are significant for the custody, access and mobility issues.

[109] First, it corroborates Mr. S.D.’s testimony that J.A.P. confided in him about the bullying rather than Ms. J.D.1. This confirms Mr. S.D.’s evidence, and the Children’s Lawyer’s position, that J.A.P. is very close to Mr. S.D., and it would, no doubt, be difficult for J.A.P. to be wrenched away from Mr. S.D. and moved to England.

[110] Secondly, the note reinforces the lack of communication between the parties regarding important parenting issues. Mr. S.D. should never have taken it upon himself to deal with the school without involving Ms. J.D.1, the parent with day-to-day care of the children. According to Ms. J.D.1, she had no idea that J.A.P. was being bullied until Ms. L.A. told her.

[111] However, it also illustrates the dictatorial manner in which Ms. J.D.1 approaches parenting issues. It underscores why Mr. S.D. is concerned that if Ms. J.D.1 is the custodial parent, he will be excluded from information and have no input about important matters affecting his children. Ms. J.D.1’ officious instructions to the school to deal only with her friend, rather than Mr. S.D., were inappropriate. Although I understand Mr. S.D. was difficult to work with, he still had a right to know about what was going on with J.A.P.’s education. He was listed as J.A.P.’s father on the school registration, and he was responsible for half of J.A.P.’s school fees. Ms. J.D.1 and Ms. L.A. had no authority to instruct the school to exclude Mr. S.D. from receiving information about J.A.P..

[112] In any event, Ms. L.A. arrived at the school the next morning with this document in hand, but she did not feel the principal dealt with her concerns to her satisfaction. By 9:58 a.m. on Monday, January 6, she had arranged for Ms. J.D.1 to email the principal with instructions that Ms. L.A. could remove J.A.P. from school until the issue of the bullying was “acknowledged and resolved”.

[113] The principal responded quickly: “Its [sic] being worked. His place was changed again today. If J.A.P. [sic] leaves then we can’t do much. I strongly suggest that J.A.P. stay in school.”

[114] Ms. L.A. was not to be challenged or dissuaded. She removed J.A.P. from his school that morning. He never returned.

[115] Mr. S.D. said he was contacted by the school and advised that J.A.P. had been removed and was, apparently, going to be switching schools. Mr. S.D. was opposed to any change of school as he felt that Rabbi Zaltzman was trying to work with J.A.P. and Mr. S.D. to find solutions. He did not believe that J.A.P. wanted to move schools. Mr. S.D. felt that he, rather than Ms. L.A., should be involved in this decision. However, the principal said Mr. S.D. could do nothing about it because “that’s what the mother wants”. The principal told Mr. S.D. that he had been given legal documents to show that Mr. S.D. had “no power”.

[116] The helplessness and anger that Mr. S.D. must have felt at that time is understandable. Ms. J.D.1’ and Ms. L.A.’s behaviour, while no doubt motivated by a desire to help J.A.P., was high-handed, rash and inexcusable.

[117] Another reason that Mr. S.D. was opposed to the move was that he had already made financial arrangements with J.A.P.’s existing school regarding Mr. S.D.’s share of the tuition. While this may seem to be a secondary issue, the financial reality of this couple was that neither of them had much money. Mr. S.D. was in receipt of Ontario Works, and Ms. J.D.1 was receiving handouts from community members for food.

[118] However, finances were no object to Ms. L.A.. Money was not going to stand in the way of her decision not to return J.A.P. to that school. Ms. L.A. immediately arranged to enrol J.A.P. in another school, even if it meant that she had to help with the tuition personally. During her testimony in the trial, Ms. L.A. proudly told Ms. J.D.1’ counsel, “All this happened in one day, see how fast I am?”

[119] With the greatest of respect to Ms. L.A., she was too fast. She overstepped her bounds. Despite the document that she and Ms. J.D.1 provided to the school, Ms. L.A. should not have been making these decisions. Mr. S.D. should have had an opportunity for input, and the school change should not have happened, if at all, until Ms. J.D.1 had returned from her trip.

[120] At the very least, Ms. J.D.1 should have met with J.A.P.’s principal to discuss the plan he said he had already put in place to address the bullying issue. The haste with which the change of schools took place was not a considered response to how best to address J.A.P.’s problem. The drastic solution implemented by Ms. L.A. may have been more about her than J.A.P.. My impression was that her personal affront to the reception she had received from the principal might have shifted the focus away from exploring all options with him before making a decision about how best to support J.A.P..

[121] In any event, by the next week, J.A.P. began attending E[…] School. Ms. J.D.1 sent Mr. S.D. a polite note informing him of this and asking if he would assist her in providing two cheques of $250 as a “goodwill” gesture until her subsidy application was processed. As Mr. S.D. remained opposed to the move, and upset about being excluded from the decision, it is not surprising that there is no evidence that he provided any money to assist Ms. J.D.1 with this initial cost.

February to May 2014 – The court unsuccessfully tries to assist

February 28, 2014 Case Conference

[122] The next event of note was a case conference with Justice McGee on February 28, 2014. Despite Mr. S.D.’s complaints at trial that Ms. J.D.1 would not let him see the children when he wanted to, Justice McGee’s endorsement does not indicate that Mr. S.D. complained about being denied access under the existing “reasonable access” order. However, Justice McGee did note that a lengthy conference was conducted, and that both parents were quite emotional. She recommended that the couple consider some of the JFCS services for high conflict separations. She also noted that the family was in poverty, with Ms. J.D.1 being self-employed “doing makeup” and Mr. S.D. receiving Ontario Works assistance. Ms. J.D.1 felt that Mr. S.D. was enjoying a superior lifestyle to her and the children. Mr. S.D. claimed that he lived at his sister’s condominium, and his vehicle was owned by his parents.

[123] Justice McGee made a consent disclosure order that both parties were to produce their 2010 to 2013 Income Tax Returns, all bank accounts in which they might have an interest, and a full credit bureau report. Mr. S.D. was also to provide his full medical information, and a copy of the ownership and lease for the truck he was driving and “the condominium he stays in” (Mr. S.D. apparently watered down his position that he lived at his sister’s by adding to the consent “over the Sabbath”).

[124] Ms. J.D.1’ did attend to her disclosure obligations. She produced her Notices of Assessments, which show the following amounts for line 150 Income: 2009 ($4,450); 2010 ($7,025); 2011 ($7,550); 2012 ($15,918); 2014 ($17,150). 2013 appears to be missing from the information in the Trial Record, but it was her evidence that she was supporting the children primarily from donations from the Jewish community and some minimal work with Ms. L.A.. Ms. J.D.1’ brother testified that he was paying her car payments, because she had no money to do so.

[125] Mr. S.D., however, seems to have ignored McGee’s J’s order. Although he was paying no support at the time, he did not feel it was necessary to share his financial information. Even at the time of trial, he had still not produced all of the disclosure ordered by McGee J. on February 28, 2014. He did provide his 2014 Notice of Assessment showing a line 150 income of $8,055, all of which came from social assistance. He also produced a 2015 Trillium Benefit application, claiming that in 2014 he paid $3,000 rent at H[…] Avenue in Toronto (which is his parents’ residence). It is very difficult to understand how Mr. S.D. could pay $3,000 in rent on $8,055 of yearly income but that will be discussed in more detail in the child and spousal support section below. It is also interesting to note that Mr. S.D.’s counsel, Ms. Bhardwaj, advised MacKinnon J. on January 21, 2015 that Mr. S.D. had earned $18,000 in the previous year despite his Notice of Assessment saying otherwise. Obviously, Ms. J.D.1 is correct when she says that Mr. S.D. receives income that he does not disclose.

[126] Mr. S.D. addressed his obligation to provide “all bank accounts” by producing one printout of a Royal Bank statement for an account ending in “4291”. It is for the period May 31, 2015 to August 6, 2015. There is a monthly deposit for $711 from “Metro Toronto”. The whole amount was transferred each month directly to another account ending in “5172”. Mr. S.D. did not produce any statements for “5172” or any other account.

[127] Prior to separation, Mr. S.D. was the primary supporter of his wife and children. Shockingly, he paid no support for his wife or children (except for a possible contribution to school fees and J.A.P.’s 2014 summer camp) from the time of separation until he was ordered to pay $340 per month (retroactive to January 1, 2014) by MacKinnon J. on January 21, 2015.

[128] As will be discussed in the support section below, I am prepared to draw an adverse inference about Mr. S.D.’s failure to comply with McGee J’s order to produce some medical and financial documentation to support his claim that he had no income and was unable to provide any support for his family.

[129] Overall, Mr. S.D.’s evasive response to financial issues affects his credibility on all matters at issue, as I am not satisfied that Mr. S.D. is committed to ensuring that he is giving truthful, accurate and complete information to this court.

Mr. S.D.’s bad behaviour continues

[130] Problems continued after the case conference with Justice McGee. In addition to ignoring his financial disclosure obligations, Mr. S.D. did nothing to try to move towards a resolution of any of the issues. Ms. J.D.1’ lawyer suggested mediation, but Mr. S.D. was not receptive. Ms. J.D.1 seemed to be trying to facilitate access and be polite with Mr. S.D., but he continued to be difficult.

[131] An example of Mr. S.D.’s ongoing combative attitude is displayed in a text exchange on Wednesday, May 14, 2014. Ms. J.D.1 sent Mr. S.D. a polite text offering Mr. S.D. overnight time with the children:

J.D.1: Do you want to take kids overnight on Sunday?

Mr. S.D. did not reply until 9:44 p.m. He ignored Ms. J.D.1’ offer to have the children overnight on Sunday and simply wrote:

S.D.: If J.A.P. is still up tell him to call me

When Mr. S.D. did not receive an immediate response, he followed up with an escalating barrage of texts, all sent within seconds of the last:

S.D.: U can’t answer or ur to busy talkn to ur man I’m sorry wow so sad

S.D.: Ur like a little child I’m serious grow up for once in ur life

S.D.: I’m letting you know now you and your lawyer are wasting your time going to mediate u will see send that to your lawyer

A final rejection of the idea of mediation came a few weeks later, when Mr. S.D. sent another text:

S.D.: Ur going to mediate alone hope u know that and if we go to court then ul see better get married fast.

[132] Access problems also continued. At some point in May, Mr. S.D. apparently kept the children overnight without Ms. J.D.1’ agreement and sent the following texts to her the next morning:

S.D.: J.A.P. wants to talk to u answer

S.D.: Tell ur brother to call me to arrange what he’s doing and stop making excuses ur making him cry u dirt shit loser scum tell ur brother to call me

Ms. J.D.1 responded:

J.D.1: I am not discussing anything with you and my brother does not want to discuss anything with you. The children were to be returned LAST NIGHT. Your inability to adhere to a schedule only harms the children. I am not making him cry. This is a result of your actions. L.A.D. and J.A.P. need to be returned to my condo lobby by 10am.

Mr. S.D. replied with a series of texts:

S.D.: Don’t worry ul pay for all this … this week my promise to u wait u have yet to see what’s going to happen haaa ur going to witness who the fuck I am scum

S.D.: I do what I want and return my kids when I fell like after ur stunt that u will pay for don’t worry that’s a million percent my word to u wait

S.D.: That’s stunt is going to cost u a very very heavy price that ur going to wish u never did but ul see

S.D.: They’re here where r u

S.D.: Come now or I leave

[133] Shortly thereafter, Mr. S.D.’s former lawyer was granted an order removing himself as Mr. S.D.’s solicitor of record.

May to June 2014 – Ms. J.D.1 is introduced to Rabbi P.S.

[134] By this time, Ms. J.D.1 was actively pursuing a new relationship. She says she was working with a professional matchmaker to find someone “solid in his community, someone with stability, good morals, religious values and ethics”. Her goal was to build a proper home life for her family, so that her children could enjoy some financial security and “see what a loving relationship and marriage looked like”.

[135] Ms. J.D.1' January 2014 trip had been, at least in part, to meet a man in New York. That relationship did not work out but, through the matchmaker and an online Jewish dating site, SawYouAtSinai, she was matched with her “perfect match”: Rabbi P.S..

[136] Ms. J.D.1 said that she was initially reluctant to get involved with Rabbi P.S., because he lived in London, England. However, she and Rabbi P.S. began communicating via Skype in May or June 2014. After a few months, they decided to meet personally, so he came to Toronto for 12 days in August.

[137] During that visit, Ms. J.D.1 took the children to the park near her apartment. She arranged for Rabbi P.S. to drop by the park, supposedly by coincidence, so that he could meet her children. Ms. J.D.1 introduced Rabbi P.S. to the children as “just a friend”, because she “didn’t want to make a big deal of it”. He spent a brief period of time at the park with the children that afternoon and then he returned to England.

[138] The next time the children saw Rabbi P.S. was October 31, 2014, when he and Ms. J.D.1 arrived at their Toronto apartment and surprised the children with the announcement that they had just been married.

[139] After Rabbi P.S.’s visit in August, Ms. J.D.1 took a trip to England, as she thought it was important to meet his three teenage sons, who were 13, 14 and 15 years old at the time.[^17] She said she wanted to make sure she was getting into a situation with the “right type of person” that she would like to “spend the rest of (her) life with”.

[140] Apparently, Ms. J.D.1 was satisfied with her visit to England, as she married Rabbi P.S. in October 2014. The problems this created will be dealt with below.

September 2014 – The Restraining Order

[141] Over the summer of 2014, Mr. S.D. continued to send abusive messages to Ms. J.D.1. Ms. J.D.1 turned to her lawyer for some assistance in dealing with Mr. S.D.. The parties were still operating under the November 15, 2013 order of Douglas J., which provided that Mr. S.D. would have “reasonable access”, but the negotiations surrounding Mr. S.D.’s access times were fraught with conflict. Ms. J.D.1 felt that Mr. S.D. was dictatorial and became abusive when she did not give him exactly what he wanted. She wanted to establish set times for a regular access schedule and obtain some protection from his texts and behaviour towards her.

[142] Mr. S.D. alleges that he was having so much trouble getting access that he agreed to enter into a restraining order, just to get time with his children.

[143] I reject Mr. S.D.’s characterization of the negotiations surrounding access, as it is clear from the text exchanges that Ms. J.D.1 was offering him time with the children, and he was responding in an obnoxious and unproductive manner.

[144] In any event, regardless of the reasoning, on July 25, 2014, the parties and their counsel signed a consent. It established a regular access schedule for Mr. S.D. commencing August 1, 2014 and set out the terms of a restraining order that the court was to issue against Mr. S.D..

[145] Although the consent was provided to the court by 14B motion on August 1, 2014, it was not dealt with until September 12, 2014, when Ferguson J. signed an endorsement for an order incorporating the terms to which the parties had agreed. Unfortunately, two orders were issued as a result of her endorsement, which is significant for later events.

[146] A draft order was submitted with the 14B, probably by Ms. J.D.1’ counsel. It was issued by the court on September 24, 2014. I will refer to this as the “full order”. It provided:

1. This [sic] terms of this Consent shall be effective as of the date of its execution by both parties.

2. A restraining order against the Respondent/Father, S.D. from contacting the Applicant/Mother, J.D.1, and not to be within 500 feet of the school, daycare, residence or any place he knows the children to be, at the times at which the Applicant/Mother will be there. For clarity, the Children are defined as, J.A.P. born […], 2005, L.A.D. born […], 2008, S.B.D. born […], 2010 and H.A.D. born […], 2011 The following exceptions shall apply:

a. Access exchanges that are scheduled to occur at the Applicant/Mother’s residence are to proceed as follows: The Applicant/Mother shall remain in the lobby of her building while the Respondent/Father shall park his vehicle near the entrance to the Applicant/Mother’s building. The Respondent/Father shall remain within 5 feet of his vehicle, and may assist the Children with their personal belongings and car seats, as required. The Children will walk from the vehicle to the Applicant/Mother without the assistance of the Respondent/Father, although the Respondent/Father and Applicant/Mother shall supervise them to ensure their safety.

b. The Parties shall be permitted to attend legal proceedings and court hearings, provided that the Parties are not alone in the same room together. The Parties’ arrival and departure from these events shall be staggered, where possible.

c. The Parties shall be permitted to attend the Children’s major school events (such as graduation ceremonies or school plays), provided that the Parties are not alone in the same room together. The Parties’ arrival and departure from these events shall be staggered, where possible. The Respondent/Father shall advise the Applicant/Mother of his intention to attend a school event at least 48 hours in advance of the event.

3. The Applicant/Mother shall wait in the lobby of her building for a maximum of 15 minutes past the agreed-upon access exchange time. If the Respondent/Father will be more than 15 minutes late due to an unforeseen event, he shall contact a third party at the earliest opportunity to advise the Applicant/Mother of his new arrival time, which will not be unreasonably denied. The provisions regarding the access exchange shall still be applicable if a new time is agreed upon by the Parties.

4. The Respondent/Father shall be permitted to contact the Applicant/Mother in the case of an emergency involving the health or safety of the Children.

5. Any non-emergency contact between the Parties’ [sic] shall be through email, a third party or the Parties’ respective lawyers. Non-emergency contact shall be limited to required information regarding the Children or access.

6. The following access schedule shall begin on August 1, 2014:

a. The Respondent/Father, S.D. (“Respondent/Father”) shall have access to the children J.A.P., born […], 2005, L.A.D., born […], 2008, S.B.D., born […], 2010 and H.A.D., born […], 2011 (“the Children”), every Wednesday from school/camp/daycare pick up until 7:00 p.m. The Respondent/Father may pick up S.B.D. and H.A.D. early from daycare on his access dates.

b. The Respondent/Father shall have access to the Children on alternate weekends from school/camp/daycare pick up on Fridays until Sunday at 6:00 p.m. The Respondent/Father’s first weekend under this alternating weekend schedule shall begin on August 8, 2014. The Respondent/Father may pick up S.B.D. and H.A.D. early from daycare on his access dates.

c. The Respondent/Father is to ensure that the children have dinner on the days that he has access to them and shall ensure that their homework is completed.

d. The Respondent/Father shall ensure that he transports the children safely.

e. The Parties may vary the access provisions on by [sic] mutual agreement.

7. The Respondent/Father shall pay for a telephone and phone plan for the Children to use for phone access. The Applicant/Mother shall ensure that the telephone is properly charged or plugged in, as applicable.

8. The Applicant/Mother shall facilitate reasonable phone access with the children between 7:00 p.m. and 7:30 p.m. on the days that the Respondent/Father does not have access, provided that a telephone and phone plan has been paid for by the Respondent/Father, as outlined above. For clarification, if a Child is asleep or not at home at the time that telephone access is scheduled, the telephone access will not occur on that date. However, the Applicant/Mother will make reasonable efforts to ensure that telephone access occurs on the majority of days.

9. Non-compliance with the above access order, including early or late access exchanges may be addressed by way of police enforcement, contempt proceedings, fines, a motion for reduction or elimination of access or any other legal remedies that may be available.

10. The Respondent/Father shall pay for J.A.P.’s camp fees for August 2014.

11. Police assistance is requested to enforce this order.

12. The Respondent/Father’s approval of this Order is dispensed with.

[147] However, when Justice Ferguson signed her endorsement, she also signed the “pink sheet” endorsement form, which is now required for all Family Court matters in which a restraining order is to be issued. This pink sheet is used as a guide for the court staff to prepare restraining orders for unrepresented parties. It is also intended to alert anyone dealing with the file that a Restraining Order is in place. The pink sheet contained the terms set out in the beginning of paragraph 2 of the full order but did not make specific reference to the exceptions set out in paragraphs 2(a), (b) and (c). Instead, Justice Ferguson, quite properly, directed the court staff to “see order” for the exceptions.

[148] Unfortunately, after the full order was issued, court staff also issued a standard form restraining order, which did not contain any of the exceptions. I will refer to this as the “short order”. Regardless of whether or not someone asked the court staff to issue this order, it was inexcusable that a court order was issued that did not contain the complete terms, including exceptions. I have brought this to the attention of the supervisor in the Family Court office, as this should never happen again.

[149] Ms. J.D.1 knew, or should have known, that the short order was incomplete. She is very intelligent. During this trial, she demonstrated a high level of understanding and recall of the terms of the various court orders that had been issued in this file. Ms. J.D.1 knew she had agreed to the exceptions that allowed Mr. S.D. to be at the school for special events if notice was given.

[150] A restraining order is a very serious order, a breach of which can lead to criminal charges. Neither Ms. J.D.1 nor her women’s advocate, Miriam Navy, should have relied on the short order or provided it to anyone, including the school or the police, as they knew there were terms of the restraining order that were not included in the short form order. The importance of this will be discussed below.

September 2014 – Mr. S.D. begins exercising scheduled access

[151] The hope was that the consent clarifying set times for Mr. S.D.’s access, and delineating restrictions about his contact with Ms. J.D.1, would bring some peace to this family. Unfortunately, that hope was short-lived.

[152] September 17, 2014 was Mr. S.D.’s first Wednesday access visit after Ferguson J’s September 12 order. At 4:59 p.m. on September 17, while the children were with him, he sent Ms. J.D.1 the following email:

So for the record and I will make it official with my lawyer not to worry from today on I will not be feeding the kids dinner on Wed. I get very little time with as it is and when I pick them up on Wed. By the time I pick them and feed them they have to leave and the kids don’t like neither do I they will be dropped off at 7 pm like usual and u can feed them

[153] This email is appalling. The September 12, 2014 order specifically provided that Mr. S.D. was to ensure the children had dinner on the days he had access to them. At this point, the children would have been three, four, seven and nine years old. Mr. S.D. seemed to feel it was acceptable for them to wait from the time he picked them up from daycare or school until he returned them to their mother at 7:00 p.m. to have dinner. It is very difficult to understand how Mr. S.D. can complain about a lack of access, let alone advance a custody claim, when he has displayed such an appalling disregard for, not only court orders, but also his children’s basic needs during the time that he was parenting them.

[154] Over the fall of 2014, Mr. S.D. saw the children on Wednesdays and alternate weekends as set out in Ferguson J’s order. Mr. S.D. said he was living with his parents, so the access generally took place at either their home or his sister’s condominium. The pickup and drop-off continued to be at the lobby of Ms. J.D.1’ apartment building. Mr. S.D. was required to remain within five feet of his car during exchanges.

October 2014 – Ms. J.D.1 marries Rabbi P.S.

[155] As discussed previously, Ms. J.D.1 and Rabbi P.S. were introduced to each other through a professional matchmaker and an online dating site in May or June 2014. Their relationship progressed quickly. After Rabbi P.S.'s Toronto visit in August, where he briefly met the children at the park, and Ms. J.D.1’ London visit to meet his three boys, their next in person meeting was in October 2014. The day after he arrived, Ms. J.D.1 and Rabbi P.S. were married in Toronto.[^18]

[156] A day or two after they were married, Rabbi P.S. moved into Ms. J.D.1’ Toronto apartment. He stayed for three months. The newlyweds arrived home, set a festive table and broke the news to the children that their mother was now married to the man that they had met briefly in a park a few months earlier.

[157] Both Rabbi P.S and Ms. J.D.1 have explained that their religion does not support long engagements. Once a couple becomes engaged, they say that they generally marry quite quickly, as there are restrictions about an unmarried man and woman spending time together.

[158] I intend no disrespect to Ms. J.D.1 and Rabbi P.S.’s religious beliefs. The concern is not with Ms. J.D.1’ marriage to Rabbi P.S., or the haste with which it occurred, but rather with the lack of preparation of the children for this significant event.

[159] I agree with the Children’s Lawyer that the children’s needs were not addressed in the abrupt way in which Rabbi P.S. was introduced into their lives. The children had only met him briefly, they had no idea their mother was romantically involved with him, and she gave them no hint that she was about to be married. Some better planning and forethought would have helped to pave the way for a more successful integration of Rabbi P.S. into the family.

[160] I suspect that Ms. J.D.1’ secrecy may have related to concerns about how Mr. S.D. would react to her remarriage. Given his obscene texts when he discovered she was seeing her former boyfriend, she had cause for concern. However, the answer was not to thrust Rabbi P.S. into the children’s lives without warning and expect them to adapt without any issues. It was also unfair to leave it up to the children to manage the difficult task of breaking the news to their father. Not surprisingly, he did not respond well.

[161] Ms. J.D.1 and Rabbi P.S. say that the children enjoyed the celebration dinner when Rabbi P.S. arrived at the home. They say that the children were initially quite welcoming and accepting of him. However, this only lasted a few days. Then their father found out.

[162] Mr. S.D.’s first access visit following the marriage appears to have been Wednesday, November 5th. The next day, he reported to JFCS that Ms. J.D.1 had moved a “child abuser” into her home.

[163] The JFCS investigated and found that there were no concerns. However, both Rabbi P.S. and Ms. J.D.1 said there was a remarkable change in the children’s attitude following their visit with their father on November 5th.

[164] Rabbi P.S. indicated that he had never before experienced that “level of rudeness” from children. He says the children returned home from their access visit and announced that their father had said they did not have to listen to anything Rabbi P.S. said, and that Rabbi P.S. was not their father.

[165] L.A.D., in particular, became openly defiant to both her mother and Rabbi P.S.. On one occasion, Ms. J.D.1 disciplined L.A.D. by putting her in her room. Apparently, this became the source of another JFCS investigation, as L.A.D. said that Rabbi P.S. had thrown her on her bed.

[166] Rabbi P.S. adamantly denies that he was ever involved in putting L.A.D. in her room, throwing her on the bed, or touching her in any way. He is quite firm that this would not have happened, as his religion forbids him touching a girl of L.A.D.’s age.

[167] Ms. L.A.’s evidence was helpful to shed some light on what was going on for the children at the time. Ms. L.A. adopted the contents of her December 22, 2014 affidavit as part of her evidence in this trial. Although Ms. L.A. is Ms. J.D.1’ friend, and obviously sympathetic to her, I accept Ms. L.A.’s affidavit as an accurate and truthful reflection of her discussion with the children at the time. Just as she did when dealing with the principal regarding J.A.P.’s bullying, Ms. L.A. took great care to give a detailed account of what was said by the children. Although she could have taken this opportunity to exaggerate what happened, she does not appear to have done so, as her affidavit does not contain extreme or inflammatory accusations against Mr. S.D..

[168] The contents of her affidavit clearly establish that Ms. L.A. was asking about the children’s response to Rabbi P.S. and their father’s possible negative involvement. I am satisfied that Ms. L.A. accurately set out the gist, if not the exact wording, of what the children told her. I am accepting the children’s “statements”, not for the accuracy or truth of their contents, but to gain a glimpse into the children’s states of mind at the time. This evidence provides helpful information about the children’s response to their mother’s marriage to Rabbi P.S. and the impact of their father’s reaction to him. It also gives me a useful glimpse into the support that the children provide to each other when they are dealing with negative situations involving their parents.

[169] The affidavit confirms that the children were visiting with Ms. L.A. for the weekend of November 7 and 8, 2014. Ms. L.A. asked the children what they thought of Rabbi P.S.. They all said that they liked him. However, L.A.D. confided that Rabbi P.S. had “yelled” at her by telling her to “hush”.

[170] At this point, Ms. L.A. said that J.A.P. told L.A.D., “Dad would do worse to us”. L.A.D. then began crying and told Ms. L.A. that her father had told her to say that P.S.[^19] had yelled at her. Ms. L.A. said that L.A.D. shared that she did not know what to do anymore, as her father had told her “lots of things” to say about P.S. J.A.P. told Ms. L.A. that Mr. S.D. had become angry when L.A.D. told him that J.A.P. had called P.S. “daddy”.

[171] Ms. L.A. said that L.A.D. was up most of the night crying and clearly distraught. L.A.D. said that she was confused, because her father always told her to tell him what was going on in her mother’s home, and she did not know what to do. Ms. L.A. said that J.A.P. tried to ease L.A.D.’s mind by advising her not to say anything and to keep quiet when their father asks questions. J.A.P. suggested that L.A.D. should tell Mr. S.D. to ask their mother if he wanted to know something.

[172] This exchange is very troubling. It underscores one of my most serious concerns for these children. Mr. S.D. is livid that Ms. J.D.1 has married Rabbi P.S. and has convinced himself that Rabbi P.S. is a child abuser. As will be discussed below, he has tried to enlist the children in his campaign against Rabbi P.S., and he freely admitted to the court that he would have great difficulty ever supporting a relationship between his children and Rabbi P.S..

[173] This places these children in a terrible situation. First, the introduction of a stepparent is likely to be a period of adjustment for any children. Secondly, Ms. J.D.1 introduced Rabbi P.S. into their lives with very little forewarning or preparation. Thirdly, both Ms. J.D.1 and Rabbi P.S. have not shown sufficient sensitivity to the children’s needs: for example, the children have suddenly found that they may not go to their mother’s bedroom for comfort when Rabbi P.S. is there. Finally, Mr. S.D. has escalated the conflict by involving the children in his report to JFCS and his campaign against Rabbi P.S..

[174] As will be discussed below, the JFCS opened a file regarding this family during the trial, as L.A.D. reported to the Children’s Lawyer social worker that Mr. S.D. had hit her. JFCS investigated and did not verify any physical discipline by Mr. S.D. but did verify protection concerns involving, at least in part, the conflictual relationship that was developing between the children and Rabbi P.S..

[175] The Children’s Lawyer was concerned with the apparent failure of Ms. J.D.1 and Rabbi P.S. to appreciate the need to assist the children to develop a healthy and positive relationship with Rabbi P.S.. Rather than focusing on how hard this must be for the children, Ms. J.D.1 asked the children to be understanding of the stressful situation that Rabbi P.S. is experiencing adjusting to the strains in the marriage. These are young children: it should not be their job to attend to the needs of the adults in this difficult situation.

[176] I was particularly concerned to hear that Rabbi P.S. showed no interest in meeting with Ms. Gardner when she met with the children at came to Ms. J.D.1’ home, and that he did not pursue the outings that the JFCS encouraged between him and J.A.P.. If Ms. J.D.1 wishes to move these children to London with Rabbi P.S., she and Rabbi P.S. have to take responsibility for addressing these children’s emotional needs. They have to come up with a sensitive plan to help the children adjust to the new family constellation, and the stress of handling their father’s reaction, whether they agree that the children are behaving properly or not.

[177] Right now, these children are living in the middle of a war. They have nowhere they can go for peace and they are learning that they cannot rely on their parents for comfort from the storm. As will be discussed below, Mr. Codas poignantly shared with the court how concerned he was about J.A.P.’s presentation at their last meeting, when J.A.P. pulled his hoody up over his head and slouched in his chair. Ms. Gardner talked about L.A.D.’s stress when they last met at L.A.D.’s home: L.A.D. made Ms. Gardner promise not to share what they were talking about and L.A.D. pressed her ear up against her bedroom door to check if someone would hear them talking.

[178] For their long-term emotional health, these children cannot continue in this situation indefinitely.

December 17, 2014 – The police are called to the Kindergarten school play

[179] The conflict between their parents has even disrupted the children’s school lives. A perfect example is the scene at the girls’ school in December 2014. What was supposed to be a happy holiday play for these kindergarten children turned into an embarrassing crisis with police arriving at their school. This intrusion into the school, which should be a “safe zone” for the children to escape their parents’ conflict, was inexcusable.

[180] As previously discussed, Justice Ferguson’s September 14, 2014 order included a restraining order. It provided, in part, that Mr. S.D. was not to contact Ms. J.D.1 or come within 500 feet of her or the school if she was likely to be there. There was an exception allowing Mr. S.D. to attend major school events, provided he and Ms. J.D.1 were not in a room alone together and Mr. S.D. had given 48 hours’ notice. Ms. J.D.1 said that the stipulation about 48 hours’ notice was specifically included to avoid tension or stress at the school. It would give her an opportunity to notify the school in advance, so that special seating arrangements could be made to ensure the parties would not be in proximity to one another.

[181] At 6:55 p.m. on December 16, 2014, Mr. S.D. sent Ms. J.D.1 an email with the subject line, “S.B.D.’s play”. It read, “I will be attending S.B.D.’s play tomorrow morning as you attended H.A.D.’s today with your friend don’t show up or the police will be there very fast”.

[182] Ms. J.D.1 saw the message late in the evening, after she had put the children to bed. It was obviously too late to contact the school. As S.B.D.’s play was going to be held first thing in the morning, she had no alternative other than to drive the children to school as usual the next day. When she arrived at the school, Mr. S.D. was there.

[183] Mr. S.D. was clearly in breach of the restraining order. He did not provide 48 hours’ notice, so he should not have been at the school.

[184] Mr. S.D.’s excuse was that Ms. J.D.1 had not told him about either S.B.D.’s or H.A.D.’s holiday plays, so he could not give 48 hours’ notice. Ms. J.D.1’ response is that she did not feel it was her responsibility to advise Mr. S.D. of the children’s school events, as he had the same access to obtain information from the school that she did. She notes that he had the children overnight the weekend before and he could have seen the notice of both plays if he had looked in the girls’ backpacks. She also says that Mr. S.D. rarely came to school events, even when they were married.

[185] Regardless of whether or not Mr. S.D. blamed Ms. J.D.1 for failing to tell him about the play, the order was clear. If he did not give 48 hours’ notice, he was not to be at school events, if Ms. J.D.1 was there. This was a court order, and he should have obeyed it.

[186] What happened next occupied hours, if not days, of evidence at the trial. I heard from both Ms. J.D.1 and Mr. S.D., as well as the school principal, Rabbi Kamenetzky.

[187] Rabbi Kamenetzky was a superlative witness. He was thoughtful, measured and precise in his answers. He was clearly going to great lengths to try to avoid taking sides. Although he was sympathetic to Mr. S.D. wanting to see his daughter’s play, and tried to mediate a solution that would allow that to happen, Rabbi Kamenetzky was also careful to point out that he had never had the experience of suffering through domestic abuse. He was clear that his attempts to brainstorm options that would allow Mr. S.D. to see the play, while addressing Ms. J.D.1’ safety concerns, were not meant to minimize Ms. J.D.1’ issues. He made it clear that he would never presume to judge Ms. J.D.1’ actions or the position that she took. He stressed that his focus was always on the children at his school and, on this particular morning, he was trying to calm things down so that the school play could go ahead without disruption. Unfortunately, neither Mr. S.D. nor Ms. J.D.1 seems to have shared Rabbi Kamenetzky’s focus on the children and the importance of this event for them.

[188] Rabbi Kamenetzky provided a written report to the police on the day of the incident, which confirms much of Ms. J.D.1’ and Mr. S.D.’s accounts of what took place. There does not seem to be much serious dispute about the facts.

[189] Mr. S.D. arrived at the school at approximately 8:30 a.m. He seemed agitated and expressed with conviction that he would be attending his daughter’s play that morning. Rabbi Kamenetzky cautioned him that this would lead to a confrontation. Rabbi Kamenetzky told Mr. S.D. that it was unacceptable, as Rabbi Kamenetzky understood that Mr. S.D.’s attendance was prohibited by the court order.[^20] Rabbi Kamenetzky tried to dissuade Mr. S.D. by asking him to think about the children. He told Mr. S.D. that it would “expose the children to a potentially harmful outcome, both physically and emotionally”. Mr. S.D. refused to leave.

[190] While Rabbi Kamenetzky was talking to Mr. S.D., Ms. J.D.1 arrived and was very upset to see Mr. S.D. there. She threatened to call the police and a scene began to develop, as Ms. J.D.1 was blocking the flow of traffic of other parents arriving at the school with their children.

[191] The children got out of Ms. J.D.1’ car and ran to hug their father. Ms. J.D.1 became increasingly upset and would not cooperate with Rabbi Kamenetzky’s request that she park her car, so that they could continue the discussion inside the school.

[192] Rabbi Kamenetzky turned his attention to Mr. S.D. and asked him to go into the school and wait for him in a secluded room on the second floor of the school. Rabbi Kamenetzky said that he would speak to Ms. J.D.1 to see if she would be willing to allow Mr. S.D. to stay, but cautioned Mr. S.D. that he would not allow him to stay without Ms. J.D.1’ consent. Rabbi Kamenetzky told him that Ms. J.D.1 was going to call the police, and Mr. S.D. responded, “She would never call the police.” Rabbi Kamenetzky offered to Skype the entire performance, so that Mr. S.D. could watch it live, but Mr. S.D. refused. He insisted that, since Ms. J.D.1 had attended Haddasah’s play the day before, he should have the right to be there for S.B.D.’s play.

[193] Meanwhile, Ms. J.D.1 had phoned Miriam Navy. Ms. Navy is a Legal Support Worker with an organization called “Act to End Violence against Women”. Ms. J.D.1 has been a client of Ms. Navy’s since March 11, 2014.

[194] Ms. Navy immediately came to the school. When she arrived, Ms. J.D.1 was in the school office on the phone with a 911 operator, who had agreed to stay on the call until the police arrived.

[195] I find that it is unlikely that Ms. J.D.1 felt that she was in any danger at the school that day. There were many people around, including the principal and Ms. Navy. There is no question that Ms. J.D.1 knew that she would be safe if Mr. S.D. attended the play and was seated elsewhere.

[196] However, once a restraining order has been issued by a court, whether or not a “victim” has reason to be afraid on a particular occasion is irrelevant. Ms. J.D.1 was entitled to call the police to impress upon Mr. S.D. that he could not ignore the terms of the restraining order with impunity. His arrogance and disregard for the terms of court orders had to be addressed. Whether or not Ms. J.D.1’ overreacted in calling the police is an unnecessary debate. She was entitled to insist on Mr. S.D. leaving the school, and his failure to do so forced her hand.

[197] It is important to appreciate the context for the call to the police. Ms. J.D.1 says that this was not the first time that Mr. S.D. had breached the restraining order. For example, in September 2014, right after the restraining order was issued, he entered her lobby during an exchange when he saw that S.B.D. was crying. Ms. J.D.1 said that she was trying to calm S.B.D. down, but Mr. S.D. stormed into the building and wrenched S.B.D. from her arms.

[198] The restraining order had very specific terms about Mr. S.D. remaining within five feet of his vehicle at all access exchanges. By coming into the building on that occasion, and now appearing at the school, Mr. S.D. was conveying Ms. J.D.1 that he had no respect for the order. This left her with little choice but to rely on police assistance to reinforce with him that compliance was not optional.

[199] In addition, Mr. S.D.’s behaviour had been escalating recently, as he had learned about her marriage to Rabbi P.S.. Although it is not entirely clear who the “friend” was that had been to H.A.D.’s play with Ms. J.D.1 the day before, it may have been Rabbi P.S., which might explain why Mr. S.D. was so insistent that it was “his turn” to attend S.B.D.’s play.

[200] In any event, Ms. J.D.1 said that she had no interest in “being lenient” with Mr. S.D.. She said that she was tired of being bullied to the point where she had to give in or “look like the bad one”. She made it clear to Rabbi Kamenetzky that she was not prepared to have Mr. S.D. stay at the school to see the play under any circumstances. Ms. J.D.1 was perfectly entitled to take that position. Mr. S.D. should have left.

[201] Once the police arrived at the school, Ms. J.D.1 went into the auditorium and watched the play. She said the play was delayed a bit in getting started, but she did not believe there was any major disruption, as she did not believe that the children knew what was going on.

[202] Ms. J.D.1 says that she received a text during the play that the school was “in lockdown”. Mr. S.D. also said that Rabbi Kamenetzky used the term “lockdown”, although Rabbi Kamenetzky says this was not a “lockdown” in the official sense of the word. The teachers for the classes that were not at the play had simply been told that there was a situation going on and they were instructed not to open the classroom doors.

[203] As Ms. J.D.1, Ms. Navy and Mr. S.D. all used the term “lockdown”, I am prepared to accept that, for whatever reason, all of them honestly believed that the school was in “lockdown”. This term was subsequently used in court documents by Ms. J.D.1 and Ms. Navy. Mr. S.D.’s counsel suggested that saying the school was in “lockdown” was misleading to the court, and that Ms. J.D.1 had purposely exaggerated the situation in the school that day. I find that Ms. J.D.1’ use of the term “lockdown” was not a deliberate attempt to mislead the court.

[204] The police arrived at the school very quickly and met with Mr. S.D.. What happened next was striking: the police were given a copy of the wrong court order.

[205] Either the school or Ms. Navy provided the police with a copy of the “short order”, which prohibited Mr. S.D. from being at the school. The exception to allow him to be there on 48 hours’ notice was not included in this copy of the order. Mr. S.D. tried to argue that they had the wrong order, but the police officers told Mr. S.D. he had to leave and escorted him out of the school.

[206] If that had been the end of matters, everything might have been fine. However, Ms. Navy and Ms. J.D.1 then met with the police officers and advised them of “the history of breaches” that Ms. J.D.1 said Mr. S.D. had committed. At no time do they appear to have mentioned the “full order” to the police. There was no discussion about the amount of notice that Mr. S.D. had given, which would have been the determinative factor in whether Mr. S.D. could be arrested for breaching the restraining order on this particular occasion.

[207] This was improper. Both Ms. J.D.1 and Ms. Navy were under an obligation to ensure that the police were not acting under the incomplete “short order”, as they both knew that it did not contain any reference to the exception for him to attend a school event on proper notice.

[208] I am particularly concerned if Ms. Navy was aware of this omission. She did not testify in this trial, so I do not know what she would say about her involvement, and about what order she provided to the police. As she is a professional, providing support for abused women dealing with the legal system, she should have known about the importance of being scrupulously accurate in dealing with the police officers regarding the terms of a restraining order. I hope that Ms. Navy was not aware that the order that was given to the police was misleading, as it omitted crucial terms.

[209] Based on the information provided to them by Ms. J.D.1 and Ms. Navy, the police decided to charge Mr. S.D. with breaching the restraining order. He was asked to return to the police station, without being told why. When he arrived, he was arrested, and placed in a holding cell for seven hours before he was released.

[210] Ms. Navy accompanied Ms. J.D.1 to the police station for Ms. J.D.1 to give a statement. Rabbi P.S. also arrived. Mr. S.D.’s mother and sister, who were at the police station waiting for him to be released, alleged that Rabbi P.S. “waved” to them as he left. Mr. S.D. was livid.

[211] Somehow, Mr. S.D. managed to get in touch with a high-ranking police officer to tell his story. An “investigation” was launched and the police were provided with a copy of the “full order”. About a week later, Mr. S.D. received a phone call from the police telling him that the charges had been dropped.

December 18, 2014 – Ms. J.D.1’ next without notice motion

[212] The day after the incident at the school and Mr. S.D.’s arrest, Ms. J.D.1 escalated the matter further. She brought another “urgent” motion without any notice to Mr. S.D.. She asked that the court suspend his access, or order that it be supervised, and she asked for an order that he not contact the children, directly or indirectly.

[213] Ms. J.D.1’ affidavit in support of the motion painted a dramatic and misleading picture of the level of risk. She indicated that she had “received a custody order” in June 2013 due to Mr. S.D.’s threats to “kidnap” the children. She indicated that the family situation had recently escalated due to her remarriage and told the court that she had a restraining order that prohibited Mr. S.D. from attending the school. She did not mention the exception if he provided notice or the fact that Mr. S.D. told her he would be attending (albeit without providing 48 hours’ notice). She said that she had “entered the school through a back entrance”, so Mr. S.D. would not know where she was and “scared for her safety, [she] entered a locked office to call 911”. She said the principal put the school in lockdown, and the teachers were all put on high alert. She said the police located Mr. S.D. “hiding” on the top floor of the school. She said that Mr. S.D. was “violently angry” and had a strong history of abusive behaviour and threats toward her, including threats of violence sent to her through the children.[^21] She concluded that she was “extremely fearful”, and the children’s safety was in “severe danger” due to her remarriage, Mr. S.D.’s recent arrest and his “history of threats, violence and unpredictable behaviour combined with his disregard for the law”. She said she feared for the children’s physical safety and that they might be kidnapped.

[214] Although I have already found that it was quite appropriate for Ms. J.D.1 to take steps to ensure that Mr. S.D. complied with the restraining order, I find that Ms. J.D.1 grossly exaggerated the concerns arising from the situation at the school the previous day. I have already found that Ms. J.D.1 knew that she was safe within the school. She had no information that Mr. S.D. was “hiding” and had to be located by the police: Rabbi Kamenetzky had asked Mr. S.D. to wait upstairs, and Mr. S.D. was waiting upstairs in plain view when Rabbi Kamenetzky and the police came to find him. Finally, other than the pushing and spitting she spoke about during the marriage, there was no evidence presented at trial that Mr. S.D. was physically violent, particularly after separation. Certainly, there was no evidence that he had ever put the children at risk. Ms. J.D.1’ statement that she was fearful that “the children’s safety was in severe danger” was not warranted and was misleading to the court. She knew that there was no reason to believe that Mr. S.D. posed any risk to the children or that he might kidnap them.

[215] Ms. J.D.1’ affidavit, and the fact that she, once again, came to court for an order without any attempt to provide notice to Mr. S.D. concerns me. She has shown a pattern of manipulating and exaggerating information and using the court’s urgent motion procedure improperly.

[216] While I do not believe that Ms. J.D.1 completely fabricates evidence or lies to the court, she is extremely clever and articulate. Without actually lying, she exaggerates and leaves out important facts.

[217] This causes me to be concerned about any attempts by Ms. J.D.1 to obtain future relief from this, or any other, court without notice to the other side. It also causes me to be hesitant about trusting her when she says that she will promote a relationship between the children and Mr. S.D., if she is permitted to move them to England.

[218] Ms. J.D.1 needs to understand: if she does not abide by the access orders that I will be making in this trial, that should be considered a material change in circumstances entitling Mr. S.D. to apply for a review of any custody, access and mobility orders that I make as part of this judgment.

[219] Returning to the without notice motion, on December 18, 2014, when Kaufman J. read Ms. J.D.1’ alarming affidavit, he ordered that Mr. S.D.’s access for the upcoming weekend be suspended. He adjourned the matter to December 23, so that Mr. S.D. could be served and given an opportunity to respond.

[220] On December 23, McDermot J. had Mr. S.D.’s response before him, so he had a better picture of what had actually transpired. He reinstated daytime access only, on Sundays and Wednesdays, pending the argument of the motion on full material, on January 21, 2015. He did not require Mr. S.D.’s access to be supervised. He also ordered that the police were to enforce the order.

[221] The war was now on in earnest.

[222] Not having got what she wanted from either the police or family court, Ms. J.D.1 began to try to assert her power via another avenue. She wrote to the girls’ school on January 14, 2015 to advise them that she had sole custody of the children. She told them that Mr. S.D. was to be removed as an emergency contact, and demanded that the school staff immediately stop allowing the children to phone their father during the school day.

[223] It is unclear why Ms. J.D.1 felt that she was entitled to do this. First, she did not have “sole” custody. At best, she had the original June 17, 2013 “custody” clause from her first without notice motion. Legally, it may be a distinction without a difference, but this is another example of Ms. J.D.1 exaggerating wording to suit her own purposes.

[224] More importantly, Mr. S.D. was an access parent. It is unclear why Ms. J.D.1 felt that she could unilaterally remove him as an emergency contact, particularly as there was a motion pending in one week to determine the rights of the parties.

[225] However, Ms. J.D.1 was not the only one acting improperly. Mr. S.D. appears to have felt vindicated at this point, as Justice McDermot had refused Ms. J.D.1’ requests and reinstated daytime access. The motion for supervision had been denied. The police had dropped the charges against him. He was empowered.

[226] Like Ms. J.D.1, Mr. S.D. also tried to assert his power via another avenue: he called the police with concerns about the children on each of the two days following McDermot J’s order.

December 23 and 24, 2014 – Events involving Y.M.

[227] For most of the previous year, Ms. J.D.1 had been a single mother with four children, attending to almost all of the parenting responsibilities for the children. She needed to juggle getting them to and from school, daycare and all of their appointments, with trying to generate some income to support them, as she was receiving no child support from Mr. S.D..

[228] The level of assistance that Ms. J.D.1 received from the Jewish community was very impressive. She received anonymous food vouchers and food baskets. She was given gift certificates for household items and clothing. The UJA subsidized the children’s school.

[229] The help was not just financial. Generously, various people pitched in to pick the children up from school and provide childcare assistance when Ms. J.D.1 needed to work or run errands. I have already described the incredible kindnesses and assistance provided by Ms. L.A.. Ms. J.D.1 also received an incredible amount of help from Mr. Y.M..

[230] Mr. Y.M. is an exceptionally kind young man, who was 22 years old at the time he began helping Ms. J.D.1. Mr. Y.M. apparently has some special needs that caused him to withdraw from school before obtaining his high school diploma. He has some learning disabilities, a hearing impairment and a slight speech impediment. His testimony at trial demonstrated that he has some challenges, but it also confirmed that he is a kind and honest person.

[231] Mr. Y.M. was confused about the timing of some of the events, but he was clear in his memory of what happened. I have no hesitation in accepting his evidence about his involvement with this family. I am satisfied that, despite his obvious stress and nervousness about testifying, Mr. Y.M. came forward and gave honest and truthful evidence to this court. I was very impressed with him, and the kindness he tried to show Ms. J.D.1 and the children, until Mr. S.D. forced him out of their lives.

[232] Mr. Y.M. is hoping to become a photographer but, in the meantime, he is unable to work. Instead, Mr. Y.M. volunteers to help the elderly in nursing homes. He also goes to his synagogue three times a day, where he assists with the children’s afternoon programs. In order to do this work, he had to obtain a criminal record clearance. There was no reason for Mr. S.D. to have any cause for concern about Mr. Y.M. being around the children.

[233] Mr. Y.M. learned of Ms. J.D.1’ difficulties through Ms. L.A.. Sometime in 2013 or 2014, Mr. Y.M. began picking the children up from school for Ms. J.D.1 and babysitting for her almost daily. He would participate in activities with the children, such as bowling, or stay home with them and order pizza and play games. Ms. L.A. would sometimes give him money to take the children to a restaurant after school. He took J.A.P. to sporting events including a visit to the Hockey Hall of Fame. He remembers J.A.P. being particularly excited when Mr. Y.M. got tickets to a hockey game at the Air Canada Centre and kindly decided that, rather than taking one of his adult friends, he would take J.A.P. with him.

[234] Mr. Y.M. was also available as a support person for Ms. J.D.1 regarding the access issues with Mr. S.D.. Unfortunately, he went further than he should have with his assistance. Because he is particularly familiar with technology, Mr. Y.M. apparently helped Ms. J.D.1 tape some of the children’s phone calls with their father. He also came to some of the access exchanges wearing special glasses that had a hidden camera to videotape any problems. The children told Mr. S.D. what Mr. Y.M. was doing, which, understandably, did not endear him to Mr. S.D..

[235] Wednesday, December 23, 2014 was the day after the urgent motion regarding the school play was heard by Justice McDermot. Justice McDermot had reinstated Mr. S.D.’s daytime access for Sunday and Wednesday “as set out in the order of Ferguson J. dated September 12, 2014”. Justice Ferguson’s order had stated that Wednesday access was to be “from school/camp/daycare pick-up until 7 p.m.”

[236] December 23rd was part of the school holiday break, so the children were not in school. Ms. J.D.1 and the children were out but returned home prior to 4:00 p.m., so that the children could have their access with Mr. S.D., as McDermot J. had directed. Given the recent events at the school play and in court, Ms. J.D.1 asked Mr. Y.M. to be with her for the exchange “to ensure there were no problems”. However, when they arrived at Ms. J.D.1’ building just before 4:00 p.m., the police were waiting in the lobby. Mr. S.D. had called them, because he felt his access should begin at 3:00 p.m. rather than 4:00 p.m.

[237] The children went with Mr. S.D. for access that day. The next evening, Mr. S.D. called the police again.

[238] December 24th was a Thursday, which was not a scheduled access day for Mr. S.D.. However, Ferguson J’s September 12 order had also provided that Ms. J.D.1 was to facilitate reasonable phone access with the children between 7:00 p.m. and 7:30 p.m. on the days that Mr. S.D. did not have in-person access.

[239] At this point, the parties appeared to be, understandably, confused about the access to which Mr. S.D. was entitled. Ms. J.D.1 apparently believed that, until the motion was heard on January 21, 2015, Mr. S.D. was only entitled to the specific access that had been set out by McDermot J. Mr. S.D. felt that his 7:00 p.m. to 7:30 p.m. telephone access under Ferguson J’s original order was still in effect.

[240] On the evening of December 24, 2014, Mr. Y.M. was watching the children, so that Ms. J.D.1 and Rabbi P.S. could go out.[^22] Just after 7:00 p.m., the police arrived at the door. Mr. S.D. had called the police because the children had not telephoned him. Although I do not know exactly what he said to the police, he obviously suggested that the children might be at risk, or the police would not have gone to Ms. J.D.1’ home.

[241] Mr. Y.M. was, understandably, distressed when the police showed up at the door. He said he had no idea that the children were supposed to call their father. He reviewed McDermot J’s order with the police, and they agreed that there was no provision for telephone calls. The police asked if he would mind if one of the children called Mr. S.D. to reassure him, and Mr. Y.M. gladly provided his own cell phone for the call. His recollection was that L.A.D. was the one who placed the call because he remembers her saying to her father, “What are you doing? You are ruining my life.”

[242] Although the police were satisfied that there were no further concerns, Mr. S.D. appears to have developed a vendetta against Mr. Y.M., which will be discussed below.

January 21, 2015 – The Motion before Justice MacKinnon

[243] Ms. J.D.1’ urgent motion to suspend Mr. S.D.’s access or, in the alternative, request that it be supervised, had been adjourned to January 21, 2015. Mr. S.D. had responded with his own motion requesting that the restraining order be rescinded; that he be entitled to alternate weekend access from Friday after school until Monday morning; that he be entitled to additional access each Wednesday from after school until Friday morning, with drop off at school; that all holidays be divided equally between the parties; that he receive make-up access; and that the Children’s Lawyer be appointed to represent the children.

[244] Ms. J.D.1 raised the stakes even further. She brought an additional motion requesting a final order that she be permitted to move with the children to London, England.

[245] As Ms. J.D.1’ “mobility” motion was only served on January 16, 2015, Mr. S.D. had obviously not had an opportunity to file responding material. Justice MacKinnon adjourned the mobility motion to February 11, 2015, peremptory on both parties.

[246] However, Justice MacKinnon dealt with the other two motions that were before him.

[247] Justice MacKinnon noted that Mr. S.D.’s counsel advised the court that Mr. S.D. had earned $18,000 for the past year, but he had paid no child support since separation. Justice MacKinnon acknowledged that Ms. J.D.1 did not accept that Mr. S.D.’s income was only $18,000 a year. However, in order to have some support begin flowing, Justice MacKinnon made a “without prejudice interim” order that Mr. S.D. should pay $340 per month for his four children, retroactive to January 1, 2014, on his admitted income of $18,000. This created $4,420 of arrears, together with ongoing payments that were to be made on the first day of each month.

[248] Justice MacKinnon also requested that the Children’s Lawyer be appointed to represent the children. He noted the high level of conflict in the case and encouraged the OCL to consider a “social work assist”.

[249] Justice MacKinnon imposed a number of terms designed to try to reduce the hostility between the parties. He ordered that neither party should criticize or demean the other in the presence of the children or permit anyone else to do so. He ordered that neither party was to discuss the issues in the litigation with the children and ordered that both parties should foster in the children a respect for the other parent. He ordered that Ms. J.D.1 was to keep Mr. S.D. fully informed of all matters that related to the children.

[250] Justice MacKinnon ordered that there would be no requirement that Mr. S.D.’s access be supervised. The access ordered by McDermot J. was to continue. This meant that Mr. S.D. was entitled to daytime access only with the children, each Sunday from 9:00 a.m. to 7:00 p.m., and each Wednesday from after school until 7:00 p.m. He ordered that Mr. S.D. was to ensure that, during all access periods, the children’s education was to be a priority. Mr. S.D. was to ensure that the children were fully fed, housed, and nourished while they were with him.

[251] Justice MacKinnon concluded his endorsement with a paragraph explaining why he was not prepared to order costs to either party. He aptly pointed out, “They have both, in my view, exacerbated hostilities. Their children deserve better – much better!”

January 29 and February 2, 2015 – Ms. J.D.1 and Ms. Navy write letters to the girls’ school

[252] Justice MacKinnon’s words do not appear to have had any calming effect on either party. Their poor behaviour continued unabated.

[253] Justice MacKinnon’s endorsement was quickly given to the school principal, Rabbi Kamenetzky. School report cards were due out shortly thereafter, and the school was unsure whether they were permitted to provide copies to Mr. S.D..

[254] Quite properly, the school wrote to both Ms. J.D.1 and Mr. S.D. telling them that their conflict was beginning to affect the school environment. They asked both parties to have their lawyers clarify “the rights of both parents in regard to their children.”

[255] I was shocked by what happened next.

[256] Ms. J.D.1’ domestic violence support person, Ms. Navy, wrote a “PRIVATE AND CONFIDENTIAL” letter to the school on the Act to End Violence Against Women letterhead. She signed it, Miriam Navy, Legal Support Worker, which suggests that she was holding herself out as having some understanding of the law in this area. Her letter includes several statements purporting to explain the legal rights of the parties to the school officials. Unfortunately, they are inaccurate and unhelpful statements.

[257] First, Ms. Navy expressed her “disappointment and surprise” that the school has written to the lawyers. She stated that this is “inappropriate on many levels” and expresses that confidentiality and rules of professional conduct would prohibit the lawyers from responding without the express written permission of the parties. I am unsure how Ms. Navy is qualified to make such a definitive statement. Even if she knew the specifics of Ms. J.D.1’ retainer agreement with her lawyer, which is doubtful, she certainly would have no knowledge of the nature of Mr. S.D.’s retainer arrangement with his lawyer. How would she know whether the lawyers would be comfortable dealing with the school? In any event, this would be something for the lawyers to comment on, not her.

[258] Ms. Navy went on to say that it is “not the job of the lawyers to explain to the school what the protocol is for the children’s contact/access with their parents”. She indicated that “J.D.1 is the sole custodial parent” (emphasis added), which, as already noted, is not the wording contained in any court order. She said that “S.D.” is the access parent and, “as such, the school is not permitted to circumvent the order by allowing S.D. to visit the children in the school”. She continued,

The school is also not permitted to provide S.D. with any information regarding the children without J.D.1’s express written permission. The order as it stands now does not contain any provision allowing for third party information to be shared. J.D.1 is ordered by the court to keep S.D. posted of pertinent information about the children and this is her obligation and not the school’s.

[259] Ms. Navy was obviously not aware of s. 20(5) of the Children’s Law Reform Act, which provides that an access parent has the right to make inquiries and to be given information as to the health, education and welfare of the child.

[260] Although MacKinnon J. had ordered that Ms. J.D.1 had an obligation to keep Mr. S.D. fully informed about all matters relating to the children, he did not make any order that would prohibit Mr. S.D. from also obtaining information directly from third party service providers, such as the school. It was his legal right to do so, and Ms. Navy had no business telling the school otherwise.

[261] Domestic violence is a serious concern in our society. The work done by support persons working in women’s organizations trying to combat domestic violence is an essential service to assist victims. Ms. Navy’s support of Ms. J.D.1 is admirable but her letter was not appropriate. It could affect not only her own credibility but her organization’s and Ms. J.D.1’ as well. There were also complaints about Ms. Navy being overly during the court proceedings.

[262] I am commenting on these issues to, I hope, provide some feedback that may be useful to Ms. Navy in the future. I have every confidence that Ms. Navy wishes to behave professionally and appropriately in the execution of her very important role in the legal system. Hopefully, my comments will assist Ms. Navy to obtain some guidance to ensure that she does not, inadvertently, lessen the value of her work by exceeding the proper parameters of her role.

[263] Ms. J.D.1 also wrote to the school. Her letter was as strident and confrontational as was Ms. Navy’s. Ms. J.D.1’ letter chastised the school for contacting her lawyer without her consent and forbade them from doing so again. It indicated that Mr. S.D. was not permitted to attend at the school, other than for the pick-up on Wednesdays. The letter claimed that allowing him to do so “upsets and traumatizes” the children.

[264] Ms. J.D.1’ letter contains a very telling glimpse into Ms. J.D.1’ true colours when faced with a problem. She angrily reacted to a question from Rabbi Kamenetzky about whether she had thought about the effect on her children before remarrying. While she may have been offended, her combative manner of dealing with that situation reinforces Mr. S.D.’s complaints about her dictatorial manner of dealing with him.

[265] I have already commented on how impressed I was with Rabbi Kamenetzky. I cannot imagine a kinder, more concerned resource for these children. He appeared to be far more focused on the effect of this conflict on the children than were their parents, and he seemed desperate to try to find some way to stop the unproductive struggle between Mr. S.D. and Ms. J.D.1 from intruding into the children’s school life. Unfortunately, his efforts to have Ms. J.D.1 think about the children’s perspective were for naught.

[266] Ms. J.D.1’ letter to him reads, in part:

I would like to remind you of a conversation we had recently. … You said I should have thought of how this would affect my children before I remarried. This comment was inappropriate and very judgmental. You have not walked in my shoes and until you do (G-D forbid), you have no right to judge me. I am a parent of children in your school and my personal life is not open to scrutiny or discussion.

[267] If Ms. J.D.1 is this assertive dealing with her children’s Menahel or headmaster, I accept that she is no more conciliatory when trying to resolve conflict with Mr. S.D.. The combination of Ms. J.D.1’ and Mr. S.D.’s personalities is poisonous, and it is a challenge for the court to try to construct an order that will lessen the effect of their dysfunctional interactions on their children.

February 2015 – Ms. J.D.1 tells J.A.P. that Mr. S.D. is not his father

[268] To recap, at this point, Ms. J.D.1’ motion to move to England with the children had been filed with the court. J.A.P. had told his mother that he did not want to go. Ms. J.D.1 was frustrated with Mr. S.D., who had reported her and Rabbi P.S. to the JFCS and had started calling the police. She had not been successful in her attempt to obtain an order that Mr. S.D.’s access must be supervised.

[269] Although Ms. J.D.1 says none of this had anything to do with the timing, Ms. J.D.1 decided to share with J.A.P. that Mr. S.D. was not his biological father. She said that unnamed “others”, whose parenting she admired, had told her that J.A.P. was mature enough to know. Somewhat belatedly, during cross-examination by Mr. Codas, Ms. J.D.1 also suggested that J.A.P. had seen something with the name “P.” on it and was curious.

[270] Regardless of Ms. J.D.1’ motivation, this was a very significant event. J.A.P. had no idea that Mr. S.D. was not his natural father. When J.A.P. learned the news, he cried. Ms. J.D.1 said, “As a loving mother”, she hugged him and offered to have a Rabbi sit with J.A.P. when he told Mr. S.D. about the disclosure. However, she says J.A.P. told her he was “okay”, so she simply left it to J.A.P. to tell Mr. S.D. on his own.

[271] There is no doubt that Mr. S.D. had behaved abominably towards Ms. J.D.1. I can understand how she would dread telling him that she had made this disclosure to J.A.P., and I agree that it would have been extremely difficult for the two of them to sit down and tell J.A.P. together.

[272] However, to give Mr. S.D. no forewarning, and leave it to a nine-year-old boy to break such distressing news to him was terrible.

[273] Understandably, J.A.P. was upset and crying when he told Mr. S.D. that his mother had said that he was not his “real” father. Mr. S.D. was very emotional when he testified about how he handled this meeting. Mr. S.D. cried on the witness stand, his leg was twitching rapidly, and he had to take several deep breaths to get through his evidence. However, I was impressed with his answer.

[274] Touchingly, Mr. S.D. said he told J.A.P. that what his mother had told him was true but that he should not worry. He said he tried to get through the conversation quickly, because he did not want to break down in front of J.A.P.. Mr. S.D. reassured J.A.P. that, “no matter what you need in your life, I’ll be there for you and I’m your father”.

[275] J.A.P. asked Mr. S.D. about the whereabouts of his biological father. Mr. S.D.’s response to this was also appropriate:

I tried to avoid the question, because he was crying and I didn’t want to continue to upset him, I didn’t want to start crying in front of him. I just told him no matter what it is in his life, I will be by his side, I am his father, I always will be. His grandparents will be his grandparents, it will be fine. I tried to assure him and calm him down.

He said okay, Abba, and he hugged me.

[276] Mr. S.D. said neither he nor J.A.P. has ever mentioned the subject again. They have continued on their relationship exactly as before. He and J.A.P. are very close and as far as both of them are concerned, Mr. S.D. is J.A.P.’s father.

February 2015 – Mr. S.D. threatens Mr. Y.M.

[277] Following the police involvement on December 23 and 24, 2014, when Mr. S.D. called the police over a possible hour’s lateness for access and a missed telephone call, Mr. Y.M. continued to babysit the children on most days. After these incidents, Mr. Y.M. made sure that the children called their father promptly every night that he was babysitting them. However, a little over a month later, there was another incident involving the police.

[278] On February 11, 2015, Ms. J.D.1 was going to be late getting home. Mr. Y.M. agreed to look after the children until she arrived at 7 p.m. When Mr. S.D. arrived at the building to drop the children off, Mr. Y.M. was waiting in the lobby for them, because Mr. S.D. was not supposed to go further than five feet from his car during exchanges.

[279] Mr. S.D. refused to let the children go into the building with Mr. Y.M., as Ms. J.D.1 was not present. He kept the children in the car for over an hour. Mr. Y.M. noted that it was February and cold outside. He said the children were crying. It was a school night.

[280] Mr. S.D. had known Mr. Y.M. for over 10 years, as they are members of the same synagogue. Mr. S.D. knew that Mr. Y.M. often watched the children. Mr. Y.M. had no idea why Mr. S.D. would refuse to let the children come inside and go up to their apartment with him.

[281] Mr. Y.M. contacted Ms. J.D.1 by cell phone and explained what was happening. She called the police. Ultimately, Mr. S.D. did release the children to Mr. Y.M., around 8:00 p.m. Their mother arrived home shortly thereafter.

[282] Mr. S.D. was angry and decided to call Mr. Y.M.’s parents. He frightened Mr. Y.M.’s mother by telling her that her son was in “big, big trouble.” Mr. Y.M.’s mother hung up the phone on Mr. S.D., which appears to have infuriated him further.

[283] A day or two later, Mr. S.D. went to the local grocery store where Mr. Y.M.’s father works. Mr. S.D. confronted Mr. Y.M.’s father, and told him that his son was in “big trouble”. Mr. S.D. threatened that he was going to report that Mr. Y.M. (Jr.) was abusing Mr. S.D.’s children.

[284] When Mr. Y.M. was testifying about this, his distress was palpable. He was very agitated and almost crying. He explained that his father was so upset that he could not sleep properly after Mr. S.D.’s visit. Mr. Y.M. pleaded, “I am a 24-year-old man, if you have a problem, deal with me, don’t upset my parents.”

[285] The Y.M.s sent Mr. S.D. an email telling him not to contact them again. However, Mr. Y.M. was so distressed by how frightening this had been for him and his parents that he decided he could not be involved with the children any further.

[286] Sadly, for no reason other than Mr. S.D.’s vindictiveness, Ms. J.D.1 lost a valuable source of support and the children lost a friend who had been very kind to them.

[287] This is remarkably similar to Mr. S.D.’s reaction to Ms. L.A. helping Ms. J.D.1. Ms. L.A. testified that Mr. S.D. would be “in your face, cornering you, threatening you”. On two occasions, when Mr. S.D. was upset about Ms. L.A.’s involvement with Ms. J.D.1 and his children, Mr. S.D. contacted her husband, accusing her of lying and “abusing” his children. According to Ms. L.A., Mr. S.D. told her husband that he was going to the police or Children’s Aid.

[288] Fortunately, Ms. L.A. was in a better position to stand up to Mr. S.D.’s bullying than Mr. Y.M. and his father had been. She refused to be cowed. She pre-empted Mr. S.D.’s threats to report her to the authorities by contacting the police, JFCS and her own lawyer herself. She was reassured that she had nothing to worry about, as she had done nothing wrong.

[289] Mr. S.D. never followed through on his threats to report Ms. L.A. to anyone, but it is quite telling and troubling that he would attack another of Ms. J.D.1’ friends and support persons in this way. Trying to isolate and marginalize Ms. J.D.1 from her community this way is inexcusable. She is entitled to a personal life and friends without worrying that they will be dragged into the conflict of her life with Mr. S.D..

[290] Mr. S.D. was not able to interfere with Ms. L.A.’s personal support of Ms. J.D.1 and the children, but the chaos that he was creating in Ms. J.D.1’ life did cause Ms. L.A. and her husband to terminate Ms. J.D.1’ employment with them. Ms. L.A. had given Ms. J.D.1’ work doing filing, assisting with legal documents related to one of their adoptions, and helping out with some of their charitable endeavours. However, Ms. L.A. said that they had to let her go because of all the “drama” related to Mr. S.D.. They said that they would only be prepared to consider giving Ms. J.D.1 future work if they could be assured that there would no longer be any disruptions and further chaos that would affect Ms. J.D.1’ ability to focus on her work.

[291] I am concerned about the way that Mr. S.D. reacts to situations with others with whom he disagrees. He has clearly illustrated that he is a bully, he is irrational in the face of conflict, and he has no conflict resolution skills. None of this bodes well for parenting children, which can be a challenging job at times. A parent who deals with problems through anger is a real worry. I am also very concerned that Mr. S.D.’s vendetta against Rabbi P.S. will mean the children will be exposed to ongoing, toxic conflict, if both Rabbi P.S. and Mr. S.D. are part of their daily lives.

March 4, 2015 – Mobility Motion

[292] Ms. J.D.1’ motion to be permitted to move to England with the children was heard on March 4, 2015. Justice Nicholson denied Ms. J.D.1’ request to move, noting that, “These issues clearly require an assessment of all the evidence and the credibility of the parties”. He indicated, “The drastic and final results requested by the applicant mother simply cannot be considered on a motion”. He ordered that the matter proceed to a Trial Management Conference, with a view to a trial in May 2015.

[293] Unfortunately, MacKinnon J’s January 21, 2015 order requesting the OCL was never taken out by either party. This meant that the Children’s Lawyer was not appointed and, on May 19, 2015, both counsel consented to the matter being removed from the May trial list, so that the OCL could become involved.

The Summer of 2015 – The children resume overnight visits with their father

[294] As previously mentioned, the children had been visiting with their father for alternate weekend overnight access from August 8 to December 18, 2014, when the court terminated the overnight access in response to the incident at the school.

[295] After that, court ordered access remained limited to daytime access on Sundays and Wednesdays. However, as part of the negotiations regarding payment for summer camp in the summer of 2015, Ms. J.D.1 agreed to reinstate Mr. S.D.’s alternate weekend overnight access. This remained a private arrangement between the parties and the court order was never changed to reflect that overnights were now allowed. The significance of this will be discussed later.

THE TRIAL

Overview and Events during the Trial

[296] The OCL assigned Mr. Codas and Ms. Gardner to represent the children under s. 89 of the Courts of Justice Act[^23]. The trial was finally scheduled to begin on September 30, 2015. There were only six days of trial time available in the court schedule but all counsel assured the court that they could complete the trial by the end of the sixth day. They were given priority, as the court was told that Ms. J.D.1 was about to be evicted from her home with the children, so the family needed an immediate answer about whether she could relocate with them to England.

[297] Unfortunately, it took until day five to complete the evidence of Ms. J.D.1, who was the first witness. By the end of the scheduled six days, the court had only heard from Ms. J.D.1 and Rabbi P.S..

[298] The trial was adjourned to November 16, 2015. Incredibly, by the end of that three-week sittings, the parties had still not completed the trial. Counsel vastly exceeded the estimates of time that they had predicted for each witness. We were also sidetracked by a midtrial child protection investigation and the need to hear testimony to resolve immediate access issues, which will be discussed in the next section of this decision.

[299] The trial resumed in January and finally concluded on Day 25: January 15, 2016.

[300] At that point, Ms. J.D.1 advised the court that she did not have any plans to try to move the children before the end of the school year.

[301] There was also the outstanding matter of J.A.P.’s father, Mr. D.P.. During the trial, the court had queried whether he should have been a party to Ms. J.D.1’ application for custody and permission to move to England. Ms. Moaveni advised that they were already trying to locate Mr. D.P. to serve him with a divorce application. At the end of the trial, it was agreed that Ms. Moaveni would either deal with the issue of service of the custody claims on him or bring a motion to dispense with service, prior to me releasing my decision in this matter.[^24]

September 2015 to January 2016 – Access issues during trial

Issue #1 – The pickup and drop-off locations after Ms. J.D.1’ move

[302] When the trial was not completed in October, Ms. J.D.1 had to find other accommodation. Given the representation that had been made to the court schedulers that this matter needed to receive priority as Ms. J.D.1 needed an immediate answer about whether she could move to England, it was surprising to learn that she had signed a new one-year lease on a townhouse. However, by the time that the trial resumed in November, she and the children had moved into their new accommodation, about 20 to 25 minutes further south from Mr. S.D.’s home than her previous apartment had been.

[303] The existing order had provided that Mr. S.D. would pick up and drop off the children for access at Ms. J.D.1’ apartment building. She was to stay in the lobby and he was to stay by his car.

[304] Mr. S.D. refused to change the exchange spot. He did not want to “waste 40-50 minutes in my car both ways with the kids for nothing”. It is unclear to me why he considered time with his children, even if in a car, as “nothing”, but in any event, he proposed that he would keep the children overnight on Wednesday and Sunday and return them to school the next morning.

[305] When Ms. J.D.1 would not agree to overnight access, Mr. S.D. insisted that Ms. J.D.1 drive north to her old residence for the access exchanges. She explained that she could no longer wait in the lobby because, as a non-resident, she could not get into the building. Ultimately, Ms. J.D.1 did the driving and went to Mr. S.D.’s home to pick up the children. As she said, other than denying access, she had no other choice. This is another example of Mr. S.D. bullying Ms. J.D.1 to get his way, and of her going to considerable effort so that the children would see their father.

[306] When the trial resumed, I was advised that there were “scenes” at the exchanges at Mr. S.D.’s home, so I would have to make an order about the logistics of the pick-up and drop-off.

[307] However, the trial was quickly sidetracked by an even bigger problem.

Issue #2 – The allegation that Mr. S.D. had hit one of the children

[308] On Wednesday November 11, 2015, in preparation for Ms. Gardner’s testimony at trial, Mr. Codas and Ms. Gardner had a meeting with the children. L.A.D. told them that her father had hit her. She demonstrated to them an open-handed slap on her buttocks or upper thigh.

[309] As she is required to do by law, Ms. Gardner reported this to the JFCS, who began an investigation. This took the trial off on a highly emotional and conflictual tangent, culminating in the need to hear evidence about the event in question, in order to make an urgent ruling about whether Mr. S.D. should be permitted to continue to have unsupervised access with the children.

[310] When Mr. S.D. learned about the report to JFCS, he was, understandably, devastated. He said that, when he received the call, he pulled his car over to the side of the road and cried for 90 minutes. He then immediately drove to J.A.P.’s school and pulled J.A.P. out of class to tell him that Mr. S.D. had been accused of “hitting his kids.”

[311] Mr. S.D.’s attendance at J.A.P.’s school is very troubling. J.A.P. was only 10 years old. He should not be his father’s primary support system in times of trouble, and he should not be disturbed during a school day because his father is upset about something. Mr. S.D.’s lack of boundaries with J.A.P. is extremely unhealthy and concerning.

[312] Mr. S.D. agreed to suspend his Wednesday access on the day of the disclosure. However, by the next week, he wanted his access to resume. Even though we were in the middle of a trial, he would not consent to simply resuming his court-ordered access on Wednesdays and Sundays. Instead, he wanted to bring a motion before the trial adjourned, to reinstate the alternate weekend overnight access, which he had been exercising since the summer of 2015 by private agreement with Ms. J.D.1.

[313] Ms. J.D.1 was not agreeable to continuing the overnight access. She said that she had voluntarily agreed to this in the summer, when she felt that things were going well. However, “Now that [she knew] he is hitting my kids”, she did not think there should be any additional access beyond what was contained in the court order. She seemed uncomfortable with even that access but recognized that she needed to abide by the court order until it was changed.

[314] Before the issue of Mr. S.D.’s access could be resolved, there were further developments. When the JFCS completed their initial investigation, things took another turn. The worker had asked L.A.D. if her father had ever “hurt her by hitting”. L.A.D. “shook her head ‘no’ and smiled”. However, both J.A.P. and L.A.D. told the worker that they were afraid of Rabbi P.S. as he “yelled a lot”. L.A.D. also said that Rabbi P.S. had “thrown her on the bed once [when he was angry] and it scared her.”

Issue #3 – The children’s concerns about Rabbi P.S. and Mr. S.D.’s reaction

[315] The disclosures about Rabbi P.S. incensed Mr. S.D.. L.A.D.’s allegation about Rabbi P.S. throwing her on a bed related to an event that had supposedly taken place sometime in January 2015, which Mr. S.D. had reported to the JFCS at that time. However, as mentioned earlier in this decision, Rabbi P.S. and Ms. J.D.1 adamantly denied that this had happened. Rabbi P.S. explained that his religious beliefs would prohibit him from touching a female of L.A.D.’s age. The JFCS investigated at the time but, as they did not confirm any concern, they did not open an ongoing file.

[316] However, the repetition of L.A.D.’s allegation in the JFCS investigation in November, along with the concerns that L.A.D. and J.A.P. raised about Rabbi P.S. yelling at them, convinced Mr. S.D. that his children were living with “a child abuser”.

[317] At this point, it seems that Mr. S.D. became fixated on his dislike of Rabbi P.S. and his effort to have him found to be a “child abuser”. Mr. S.D. seemed to be involving J.A.P., and perhaps the other children, in an escalating campaign against Rabbi P.S.. Mr. S.D. testified that in November, J.A.P. was leaving class daily to call his father. Mr. S.D. admitted that he had talked to J.A.P. at length about Rabbi P.S.. Mr. S.D. openly told the court that it would be “very hard” for Mr. S.D. to ever accept Rabbi P.S. being around his children. Mr. S.D. also said he wanted to ensure that Rabbi P.S. could never work in Canada.

[318] Mr. S.D.’s evidence was given immediately before the December 2015 school break. As the parties could not agree, the court was asked to determine what access Mr. S.D. should have over the school holiday.

[319] Mr. S.D.’s presentation in the courtroom in December was extreme and alarming. He was unstable and irrational during his testimony. He jumped from sobbing and shaking in distress, to angry outbursts, such as when he twice openly accused Mr. Codas in open court of being paid by Ms. J.D.1. Mr. S.D. refused to be calmed down, indicating that the court could “put him in jail”, but he would “stand in front of a bus” to protect his children. He vowed that there would be a “full investigation” at the end of the trial. He referred to Rabbi P.S. as a “child abuser”, who was living with his children.

[320] I became so concerned about Mr. S.D.’s inability to control his anger towards Rabbi P.S. in the courtroom that I doubted that Mr. S.D. would be able to shield his children from his fury regarding their new stepfather. As Rabbi P.S. had recently returned to Canada from England, I took the exceptional step of terminating all contact between Mr. S.D. and the children over their December 2015 holiday break, other than to permit the children to travel with Mr. S.D. and his family for a vacation to Niagara Falls from December 20 to 24. My hope was that giving the children a brief period of peace during their school break might allow them to begin a peaceful, healthy relationship with Rabbi P.S., without it being undermined by Mr. S.D..

[321] The trial resumed on January 7, 2016 and ended on January 15, 2016.

[322] At the end of the trial, Mr. S.D.’s counsel advised the court that Mr. S.D. had started counselling to address the impact of his actions on his children. However, given the lack of details about the counselling, Ms. J.D.1 and the OCL were still opposed to any overnight access by Mr. S.D..

[323] On two different weekends in January, I gave the parties an opportunity to try to work out a plan for Mr. S.D. to resume some access. Ms. J.D.1 tried to extend an olive branch by suggesting some access, even though she was obviously uncomfortable with Mr. S.D. resuming any contact before he got some counselling to address his anger about Rabbi P.S..

[324] Mr. S.D., on the other hand, was unbending. Even though, at that time, he was having no access with his children whatsoever, he would not entertain any proposal, other than his own. He was not willing to agree to see his children during the daytime access specified in the last court order[^25]. He was firm that he would agree to nothing other than resuming his overnight access immediately.

[325] This was very telling. After 25 days of trial, and a lengthy endorsement outlining concerns about his behaviour, Mr. S.D. showed no indication that he understood he was behaving improperly. There was no sign that he would become more conciliatory, or that he would back off on his campaign against Rabbi P.S.. The fact that, on behalf of the children, the OCL was opposing overnight access appeared to be lost on him. Mr. S.D.’s attitude was, as it has always been, that everyone else should accede to his demands. He demonstrated absolutely no self-awareness, and the concept of “compromise” appeared to be foreign to him.

[326] I decided that mid-week and telephone access would be too disruptive to the children’s home life during the school week. Although I was still concerned about Mr. S.D.’s inability to shield the children from his fury against Rabbi P.S., I reinstituted his access with his children for every Sunday from 9:00 a.m. until 7:00 p.m., so that the children would have some contact with their father until I released my decision.

Overview and impressions of the principal witnesses

Ms. J.D.1

[327] Ms. J.D.1 is a strong, articulate, attractive woman, who was 39 years old when she gave her evidence in this trial. Her examination-in-chief lasted one-and-a-half days, and she was cross-examined for three days. She held up very well. There were only a few occasions where the stress got to her, and she had to take a break to compose herself. She was clearly able to articulate the difficulties that she had, both before and after separation, dealing with Mr. S.D..

[328] The court was able to experience firsthand the chaos affecting this family and the impact it has on their day-to-day lives. Even during Ms. J.D.1’ testimony, which was at the very beginning of this trial, there were issues involving communication problems relating to the children’s return time from access. This resulted in the children not being returned to Ms. J.D.1, and the parties exchanging late night texts to try to determine what had happened.

[329] On two of the four-and-a-half days of Ms. J.D.1’ testimony, the start of court was delayed due to problems relating to the children. One time was because of childcare issues relating to J.A.P.’s religious school holiday and the other was because Ms. J.D.1 attended the children’s school on the morning after Mr. S.D. had unilaterally decided to keep the children overnight. Ms. J.D.1 had to leave car seats at the children’s school the next morning, so that they could be picked up by someone else if court ran late. She says that H.A.D., who was four years old at the time, saw her mother in the office and came running to her, threw her arms around Ms. J.D.1’ neck and begged her mother to take her home with her. This resulted in Ms. J.D.1 needing to stay at the children’s school to calm H.A.D. down and arriving late, and stressed, for court.

[330] This is just a small example of the effect that all this conflict has had on both Ms. J.D.1 and the children. The children’s daily routine is constantly in jeopardy, as it is never clear when there will be another miscommunication or blow-up between Ms. J.D.1 and Mr. S.D..

[331] It is understandable that dealing with this is frustrating and chaotic, and that it has worn Ms. J.D.1 down. However, it appears to have also has made Ms. J.D.1 rigid and increasingly less flexible with Mr. S.D.. She is angry and bitter that his unproductive involvement in the children’s lives is now standing in the way of her moving with the children to be in England with her new husband. This rigidity played out in her refusal to consider alternatives for Mr. S.D. to view S.B.D.’s school play in December 2014, and her unbridled anger towards anyone, including the school authorities, who attempts to be supportive of Mr. S.D..

[332] Unfortunately, her desire to escape from life with Mr. S.D., although understandable, may have led her to enter into her marriage with Rabbi P.S. without fully considering the impact that this would have on the children. It is difficult to understand why she did not better prepare the children for this significant change in their lives. It is also very difficult to understand how Ms. J.D.1 and Rabbi P.S. made this important decision, prior to obtaining the court’s approval for Ms. J.D.1 to move the children to England.

[333] As previously mentioned, Ms. J.D.1 confirmed that the children had only met Rabbi P.S. on one occasion before she brought him home and introduced him to them as her new husband. She gave them no forewarning that she was getting married or that Rabbi P.S. was anything other than a casual acquaintance.

[334] It was clear during both Ms. J.D.1’ and Rabbi P.S.’s testimony that, although they had done some preliminary investigation, they had not solidified the details of how the children would be provided for in England, how they would obtain immigration status, and where they would live. They did not seem to have given any real thought to the financial reality of how access would be facilitated with Mr. S.D., given the high cost of flying four children and an accompanying adult to and from Canada whenever access was to occur. Neither Ms. J.D.1 nor Rabbi P.S. would disclose specific details of his finances: they simply asked the court to accept that Rabbi P.S. would be able to provide for the family if they were to move.

[335] After the marriage, Rabbi P.S. remained in Ontario for a few months. During this time, he made some preliminary inquiries about the possibility of setting up a company, similar to One 2 One in Canada, or finding other work in his field here. However, he concluded that it would not be financially viable, as it would take too long to build up contacts and clientele in Ontario, and the family could not be without income while he tried to do this. Rabbi P.S. indicated that, in his view, the only possible way for him to support his new family is for him to continue his One 2 One business operations in England.

[336] Tellingly, Ms. J.D.1 and Rabbi P.S. do not seem to have agreed on what they will do if permission to move the children to England is not granted. Ms. J.D.1 indicated that she would remain in Canada, but Rabbi P.S. did not seem to have been informed of this. When asked, he said that Ms. J.D.1 remaining in Canada “would not really be a marriage”. Rabbi P.S. was quite firm that he was not prepared to live in Canada, as his business and family are in England.

[337] Ms. J.D.1’ frustration and anger with Mr. S.D. understandably caused her to have an extreme reaction when the Children’s Lawyer disclosed that one of the children said that Mr. S.D. had hit her. Thereafter, Ms. J.D.1 was opposed to Mr. S.D. having any unsupervised contact with the children and referred to her “mother’s intuition” that something had been wrong with Mr. S.D.’s parenting that caused the children to be at risk in his care.

[338] The bottom line is that things seem to have deteriorated to the point where these parents are so angry with each other that there is no hope of peace. Ms. J.D.1 says that the current situation is so chaotic and unhealthy that it simply cannot continue.

[339] Ms. J.D.1 notes that she has always been there for her children. She is the one who has looked after them, both before and after separation. She has provided for all four children’s needs on her own since separation, while Mr. S.D. has been of very little assistance, financially or otherwise. She has been surviving by receiving handouts from the Jewish community for food and clothing for herself and the children. Either she has had assistance from Ms. L.A. to cover the children’s school costs, or she has had to suffer the indignity of asking that the cost be waived by the school due to her financial circumstances. Unfortunately, even if she wanted to stay in Canada, those subsidies may no longer available to her, as she is not a single mother. Financially, she says that she has to move to the country where her husband can work, as there is no other way to provide for the family.

[340] Ms. J.D.1 has now found a man, whom she describes as her “perfect match”. She believes he is a religious man and a man of integrity, who will be able to help her demonstrate to the children what a normal, loving relationship between a husband and wife should be. She notes that he is prepared to assume all financial responsibility for her and the children.

[341] Ms. J.D.1 understand that the move to England would, initially, be difficult for the children. However, she points out that “children move all the time” and they can adjust. She believes that the move would bring her, the children, and even Mr. S.D. a chance for peace. It would allow her to parent the children on her own in England without the destructive conflict with Mr. S.D.. It would also allow him to have uninterrupted, lengthy periods of access with the children in Canada, in which he would be able to enjoy time with them without exposure to the tension between their parents. In her view, this would be far preferable to the high conflict living arrangements that have been in place for the children since separation.

Rabbi P.S.

[342] As previously discussed, Rabbi P.S. is Ms. J.D.1’ current husband according to Jewish law. He lives in England. Rabbi P.S. and Ms. J.D.1 met through an online dating site, SawYouAtSinai, in May or June 2014. They were married in Toronto by a rabbi on or around October 31, 2014. Rabbi P.S. confirmed that, prior to their marriage, he and Ms. J.D.1 had only had two in-person meetings: one in Toronto and one in England, during which they briefly met each other’s children.

[343] Rabbi P.S. came to Canada in October 2015 to give evidence at this trial. At that time, he was 42 years old. He advised the court that he had been previously married from about 1998 to 2008. He has three sons, whose ages at the time were 13, 14, and 15 years old. Rabbi P.S. and his ex-wife live relatively close to each other in Edgware, England, which is a suburb of North London with a very large Jewish community.

[344] Rabbi P.S. says he and his ex-wife have never been involved in litigation regarding their separation. As their sons grew up, their parents were able to work out a shared residential schedule, as well as mutually satisfactory financial arrangements to meet the boys’ needs. Rabbi P.S. and his ex-wife now agree that their sons are old enough to decide when they want to spend time with each parent. Currently, the boys reside primarily with their mother, but one of them had lived with Rabbi P.S. for about three months immediately prior to Rabbi P.S.’s marriage to Ms. J.D.1. Regardless of where they are staying at the time, Rabbi P.S. says his boys always visit with the other parent regularly. He and his ex-wife have no formal arrangement regarding child support; he provides money for the boys, as they need it for expenses. Rabbi P.S. does not pay his ex-wife any sort of spousal support.

[345] Rabbi P.S. indicated that he has lived in the London, England area for the majority of his life. He originally obtained a degree in furniture design in London, then switched his career path and moved to Israel, where he pursued 12 years of full time study of Judaism.

[346] Rabbi P.S. initially was employed teaching “principles of Judaism” as a senior lecturer and program coordinator for various organizations. In 2008, he created his own business, “One 2 One”. The purpose of One 2 One is to deliver learning programs for young professionals “primarily in the investment banking and hedge funds sector in the west end of London” to learn more about principles of Judaism. Rabbi P.S. instructs these young professionals, individually or in groups, either in his clients’ offices or homes, or in Rabbi P.S.’s own home in Edgware.

[347] One 2 One is a registered charity. Rabbi P.S. is the only employee. There are two trustees who sit on the Board of Directors, both of whom give large donations to assist with operating costs and fund Rabbi P.S.’s salary. One 2 One’s other source of revenue is from people who benefit from its services and choose to make contributions. As Rabbi P.S. pointed out, the Jewish community is supposed to give 10 percent of their income to charity, so the clientele of One 2 One voluntarily makes donations to fund its operations.

[348] Unfortunately, Rabbi P.S. was not prepared to disclose any of the particulars about his financial situation or his remuneration from One 2 One. Rabbi P.S. indicated that he has a savings account, but he would not provide the particulars of the account or how much he has saved. At one point, he did agree that he would be prepared to privately reveal details of the financial circumstances of One 2 One to the Children’s Lawyer or me but he did not want any information to be shared with Mr. S.D. or his lawyer.

[349] Of course, it is not possible for the court to receive evidence that will not be disclosed to one party. I agree with the Children’s Lawyer that this is a problem in Rabbi P.S. and Ms. J.D.1’ plan to relocate the children to England. They ask the court to accept Rabbi P.S.’s word that he is in a financial position to support all four children, but they are not prepared to provide any supporting documentation to prove this.

[350] Rabbi P.S. indicated that he was very uncomfortable with the trouble that Mr. S.D. had attempted to cause for him since he had married Ms. J.D.1. I can understand Rabbi P.S.’s wish to avoid Mr. S.D. intruding into One 2 One’s operations, or contacting his trustees or customers. However, Rabbi P.S. did not explain why disclosing the financial statements for One 2 One, or proof of his income and bank accounts, would increase the risk that Mr. S.D. could cause difficulties for Rabbi P.S. or his business.

[351] The lack of information is not helpful in evaluating the financial viability of the plan to move the children to England. As Mr. Codas pointed out, one would have thought that Rabbi P.S. and Ms. J.D.1 would be presenting their plan as a team, and “put their best foot forward” to convince the court of the sustainability of their plan. Unfortunately, Rabbi P.S. left the uncomfortable impression that he saw this court case as more Ms. J.D.1’ problem than his.

[352] In any event, Rabbi P.S. testified that he has no assets, other than a car. He rents a large two-bedroom apartment in Edgware that occupies three floors of a building. He said that his apartment had recently been occupied by a family with four children, so it would be sufficient to temporarily house Ms. J.D.1 and the children if they moved to live with him in Edgware. Their plan would be to relocate to a large three or four-bedroom home with a garden, near to his current residence. Rabbi P.S. said that he investigated the cost of housing and he was quite certain that he would have no difficulty managing the rent.

[353] When Ms. J.D.1 was in England, she looked into private schooling for the children, close to the area in which they would be living. The cost would be approximately 200 British pounds per month per child, which Rabbi P.S. also indicated that he would be able to pay without any problem.

[354] Rabbi P.S. and Ms. J.D.1 also made some inquiries about the process for her and the children to immigrate to England. He cannot sponsor her as his wife, as their marriage is not recognized in law.

[355] It was Rabbi P.S.’s evidence that the only marriage that mattered was their religious one and a civil marriage is “irrelevant” to them. Neither Ms. J.D.1 nor Rabbi P.S. mentioned any plans to be legally married to each other after she is divorced from Mr. D.P., but perhaps they may explore this if it will assist with Ms. J.D.1’ immigration. I presume this had something to do with Ms. J.D.1’ decision to issue a Divorce Application against Mr. D.P.. Unfortunately, those proceedings have been delayed due to the complications that will be discussed later in this decision.

[356] Rabbi P.S. said that he and Ms. J.D.1 spoke to an immigration lawyer and there are two other options for her and the children to immigrate to England.

[357] The first possibility would be for Ms. J.D.1 to become an employee of One 2 One. Rabbi P.S. said he discussed this with his two trustees, and they were supportive of this plan. The idea would be that Rabbi P.S. would run education programs for men and Ms. J.D.1 would run similar programs for women. Using this option, Ms. J.D.1 would be paid a salary of $18,600 British pounds per year and would then be entitled to obtain an employment visa. After five years of being in the country under that visa, she would be eligible to obtain citizenship. He said that this would also allow her to pay 200 British pounds per year per person for her and the children to obtain all the benefits of the National Health Service. There were no details about whether this would increase the overall revenue for the family or whether Rabbi P.S.’s current withdrawals from One 2 One would be split between him and Ms. J.D.1.

[358] The second option involved Ms. J.D.1 obtaining a European Union passport from Poland. Ms. J.D.1’ grandparents are all from Eastern Europe and are Holocaust survivors. She and Rabbi P.S. are working on trying to obtain the documents in support of this, which they thought might give her the option to receive an EU passport. They say that this would permit her and the children to live in England as residents of the European Union[^26].

[359] Rabbi P.S. described the difficulties that Mr. S.D. had presented since Rabbi P.S.’s marriage to Ms. J.D.1. Rabbi P.S. said that, initially, when they told the children that they had been married, the children were excited. He said that they organized a little party to make the children part of the celebration, and everyone appeared quite happy.

[360] That changed drastically after the children had their first access visit with their father. They returned home belligerent and upset, and told Rabbi P.S. that their father had told them they did not have to do anything that Rabbi P.S. said. Their behaviour escalated, particularly L.A.D.’s, who became openly defiant of both Rabbi P.S. and her mother. Rabbi P.S. described his surprise at “the level of rudeness” and said he had never before witnessed such behaviour from a child.

[361] Rabbi P.S. also described accompanying Ms. J.D.1 to court one day in early 2015. When he went to use the restroom, Mr. S.D. followed him into the bathroom and threatened him by saying, “Don’t you dare touch my kids, you will be in a lot of trouble.” Rabbi P.S. said he was shocked and protested to Mr. S.D. that he had never touched his children. A person who was with Mr. S.D. intervened and told Mr. S.D. to “just leave it.” Mr. S.D. swaggeringly told the court that Rabbi P.S. was shaking during this exchange.

[362] Not only did Mr. S.D. threaten Rabbi P.S. at court, he also reported him to JFCS regarding L.A.D.’s allegation that, shortly after Rabbi P.S. married Ms. J.D.1, Rabbi P.S. picked her up and threw her on her bed when she was misbehaving. As a result of this comment from L.A.D., Mr. S.D. has decided that Rabbi P.S. is “a child abuser”, and he is intent to have him removed from the country. The JFCS worker told Ms. Gardner that Mr. S.D. calls her incessantly.

[363] Mr. S.D. has been through the horrible experience of being investigated by JFCS based on the statement by L.A.D. about Mr. S.D. hitting her, which he vehemently asserts is false. It is ironic that he is so certain that Rabbi P.S. is a “child abuser” based on something L.A.D. says happened, despite Rabbi P.S.’s explanation and denial.

[364] Mr. S.D. also does not seem to understand that, even if it occurred, an isolated incident such as this might not be ideal parenting, but it is unlikely that it would be considered “child abuse” or qualify as a protection issue.

[365] In addition, on the evidence before me, I find as a fact that it is highly unlikely that this incident occurred. L.A.D.’s statement has not been scrutinized, and I am mindful of her tearful confession to Ms. L.A. that her father pressured her to say things about Rabbi P.S. that are not accurate.

[366] I accept Rabbi P.S.’s denial that he has ever physically disciplined L.A.D., let alone thrown her on her bed. Rabbi P.S. has explained that he defers to Ms. J.D.1 in disciplining her children. As mentioned previously, he has also explained that, by Jewish law, he is forbidden to touch a girl of L.A.D.’s age. Rabbi P.S. is a man of strict religious observance and his adamant assertion that this event did not ever happen is far more credible than L.A.D.’s vague report, particularly given the pressure that was being put on the children by Mr. S.D. regarding Rabbi P.S..

[367] However, the reality is that the JFCS now has an open file relating, at least in part, to the children’s conflict with Rabbi P.S.. This is something that needs to be considered in deciding whether it is appropriate for the children to move to another country with him.

[368] Not surprisingly, the children have had some problems adjusting to their new family situation. Rabbi P.S. has a much stricter level of observance than the children were accustomed to and J.A.P., in particular, has found it hard to accept the new restrictions that have been suddenly imposed upon him regarding television and internet use. Rabbi P.S. also appears to have a much more authoritative parenting style than either Ms. J.D.1 or Mr. S.D.. The children have said that he tells them to “hush”, and J.A.P. reported, “You can’t say no when he asks you, you must listen right away”. As previously mentioned, Rabbi P.S. has been appalled by the children’s lack of manners and poor behaviour, particularly after they return from spending time with their father. Hopefully, everyone will adjust to each other as they move forward but it is clear that there were still some difficulties between the children and Rabbi P.S. in January 2016, as the first part of the trial concluded.

[369] The JFCS had just opened their protection file as the trial concluded, so I am unaware of the details of their current involvement. I do know that the file remains open, as all counsel undertook to advise the court if it was closed.

[370] The JFCS suggested three outings for J.A.P. and Rabbi P.S. to spend time together, to try to help the two of them begin to establish a better rapport. Unfortunately, Rabbi P.S. did not attend any of the outings, citing health issues. This was disappointing, as it leaves the impression that Rabbi P.S. may not participate in trying to improve the situation with the children.

[371] Improving the situation is particularly important for J.A.P.. As the eldest, and the only male child, he needs to form a reasonable relationship with Rabbi P.S.. It would be very unfortunate if a power struggle between Rabbi P.S. and J.A.P. undermined the family peace that Ms. J.D.1’ hopes this marriage will provide to her children.

[372] As the JFCS opened their file after Rabbi P.S. had completed his testimony before me, I have not heard his explanation or response to what, if any, concerns he sees regarding his relationship with the children at this time and what plans he might have to assist with a solution.

[373] When Rabbi P.S. mentioned anything regarding the children during his testimony, Mr. S.D. became very emotional. On more than one occasion, he was crying to the point of sobbing, and we had to stop the proceedings. However, I also note that he would frequently cover his face with his hands while he was weeping, but peek up at me through his tears. It seemed to be important to him that I was noticing his distress.

[374] In contrast, when Mr. S.D.’s counsel cross-examined Rabbi P.S. about finances, Mr. S.D. perked up considerably. He would adamantly nod his head up and down and frequently grinned or smirked at Rabbi P.S.’s answers.

[375] Mr. S.D.’s extreme reactions to Rabbi P.S.’s testimony made it clear that he has absolutely no objectivity about Rabbi P.S.. His behaviour also suggests that he is unlikely to be able to shield the children from his feelings about Rabbi P.S.. Mr. S.D. is not prepared to give Rabbi P.S. any chance and it is highly unlikely that Mr. S.D. could maintain a civil relationship with Rabbi P.S.. During his testimony, Mr. S.D. repeatedly called Rabbi P.S. a “child abuser” and said that he would find it “very, very hard” to ever accept Rabbi P.S. as part of his children’s lives.

[376] I was impressed with Rabbi P.S.. He was calm, thoughtful, articulate and poised. He deftly handled all questions put to him, including a very personal question by Mr. S.D.’s counsel about Ms. J.D.1’ past, which served absolutely no purpose other than to try to embarrass Ms. J.D.1 and create problems between her and Rabbi P.S..

[377] It is unfortunate that the children were not better prepared for Rabbi P.S.’s entry into their lives. I am concerned that Rabbi P.S. is not being sensitive enough to the children’s needs, as this family tries to move forward to a peaceful home life. Understandably, the behaviour of the children may be shocking to him, but he needs to be willing to adapt, and recognize how difficult this is for all four children. They have been raised in a country and family that may have had different behavioural expectations for children than Rabbi P.S. had for his own children. It is not solely up to the children to adapt to him, and he may need to soften his approach if he wishes to make gains with his stepchildren. In particular, it would be helpful if he could recognize the pressure that J.A.P. is under, and make one-on-one time with him a priority, as was requested by the JFCS.

[378] Although I am concerned about Rabbi P.S.’s refusal to provide details about his financial situation, his assertion that he will assume financial responsibility for the children is more promising than Mr. S.D.’s lack of financial support since separation. Rabbi P.S. appears committed to making a good life for Ms. J.D.1 and the children in England. He struck me as an intelligent and responsible person who would provide these children with a level of education, financial security, stability and moral example that they are unlikely to receive from Mr. S.D..

Mr. S.D.

[379] Mr. S.D. did not do very well in his testimony. He admitted he was nervous and upset, which was apparent from his body language. As previously mentioned, he was frequently emotional during his examination-in-chief, to the point where we had to take breaks to allow him to collect himself. He often teared up, or completely broke down sobbing, and had to take deep breaths to collect himself before continuing. He was easily confused and admitted that his memory is not very good. We had to switch the seating in at counsel table, because Mr. S.D. said he was unable to continue his testimony with Ms. J.D.1 and Ms. Moaveni seated on the same side of the room as the witness box. He had similar concerns about having Ms. Navy in the courtroom during his evidence, which she graciously accommodated without objection.

[380] The apparent theme of Mr. S.D.’s examination-in-chief was that he was an innocent victim of Ms. J.D.1’ campaign to exclude him from his children’s lives. He insisted that he was only allowed to see his children “when he paid”, despite overwhelming evidence that Ms. J.D.1 has facilitated frequent access with the children since separation, even though Mr. S.D. has paid very little, if any, child support. He was completely unrepentant about the tone of his communications with Ms. J.D.1, continuing to justify his behaviour as an acceptable reaction to his frustration with the way he felt he was being treated by Ms. J.D.1. Shockingly, he and his counsel seemed to suggest that Ms. J.D.1 was responsible for the way he speaks to her and treats her, and said his abusive conduct would likely stop if Ms. J.D.1 would just give him the time with the children that he wanted.

[381] Mr. S.D. would not acknowledge that he had done anything to contribute to the high level of conflict this family has endured. He continuously deflected questions about his own behaviour by blaming Ms. J.D.1.

[382] A typical example was when his counsel was valiantly trying to focus Mr. S.D. on his plan to provide for the children. In order to establish how he would support them, she attempted to give him a chance to explain why he had been on Ontario Works for so long since the separation. The exchange went as follows:[^27]

Ms. Bhardwaj: You have been on Ontario Works for one-and-a half to two years, why weren’t you working?

Mr. S.D.: I was going through a very rough time, I did try, as I said before, to try to apply for jobs, I had numerous interviews. I think you need to understand the level of Ontario Works, they don’t just let you sit home, they put you into programs, they put you into seminars, they send you to different places, it is not a free ride, they monitor you extremely heavily. They received phone calls from outside sources, three times, they have monitored me, they have made investigations, they have called me, asked a series of questions, they come to my home, see if I live at the address, see where I live, a lady came to the house to investigate. I explained that I am in the court system, I believe the person calling is my ex-wife. She understood. They called me into the office to investigate, found absolutely nothing. Ontario Works is through investigating, they have told me if I am lying they will catch me, they haven’t, I have done nothing wrong to this day.

[383] That answer did little to assist the court to understand why Mr. S.D. now feels he can support his children, having failed to do so for the bulk of the time since separation. Much of his testimony was similarly verbose and unresponsive to the questions that were put to him by his counsel. Mr. S.D. seemed unable to stick to what was being asked of him, and continually reverted to his complaints about how he had been victimized by Ms. J.D.1.

[384] Mr. S.D. was so absorbed by his repeated attacks on Ms. J.D.1 that he seemed to lose perspective about the purpose of the trial. He appeared far more interested in complaining about Ms. J.D.1 than he was in establishing that he had a viable plan for meeting the needs of the children, either as a custodial or access parent.

[385] Mr. S.D.’s lack of focus presented a problem for his counsel and contributed to the length of Mr. S.D.’s examination-in-chief. In the trial management conference, counsel had indicated that Ms. J.D.1 and Mr. S.D. each required a half-day for their evidence-in-chief and a half-day for cross-examination. In fairness, Ms. J.D.1’ evidence-in-chief exceeded her estimate by almost a full day. However, Mr. S.D.’s evidence-in-chief went more than three times as long as Ms. J.D.1’ did. He seemed to lack any insight into how poorly he was doing on the stand. After four-and-a-half days of his rambling evidence-in-chief, consisting primarily of complaints about Ms. J.D.1, he complained that he was being hurried, and could not concentrate, because of what he perceived to be inadequate time to “tell his story”. We had to take yet another break for him to compose himself.

[386] When we reconvened, Mr. S.D. was reminded about how long he had been on the stand. The parties were, at that point, on Day 14 of what was supposed to be a six-day trial. They had already continued from one trial sittings into the next and were, once again, in danger of still not completing the trial during the available time. However, Mr. S.D. continued to protest, “I deserve a fair trial, I need to explain my side”.

[387] However, when his examination-in-chief finally ended and his cross-examination began, Mr. S.D.’s presentation was quite different. He was no longer an emotional victim: he was ready to fight.

[388] Mr. S.D. did not hold up well under cross-examination. He was belligerent, argumentative and evasive. Despite requiring Ms. J.D.1 and Ms. Moaveni to move during his examination-in-chief, because he perceived them to be “smiling” at his answers, when Mr. S.D. was challenged on questions during cross-examination, he was openly derisive to Ms. Moaveni. He frequently snorted, smirked or laughed at her condescendingly. He demonstrated no ability to understand or appreciate anyone else’s perspective or address their questions appropriately, if it did not accord with his own point-of-view. He was argumentative to the point of being ridiculous, failing to concede even the simplest issues, such as the authenticity of the Parent Handbook from his children’s school, because he did not recognize the font of the print. He was beyond the point of reason and would not be swayed from his erroneous beliefs, insisting, for example, that he was entitled “by law” to spend four weeks with his children each summer, because he read on the internet that “the children’s law” says that.

[389] One would have thought that Mr. S.D. might soften his presentation, as he was in a courtroom and trying to convince the court that he was an appropriate custodial parent. However, his belligerent reaction to being questioned reinforced Ms. J.D.1’ evidence about family life with Mr. S.D. being chaotic and filled with conflict due to his arguments with, not only her, but also their landlord and Mr. S.D.’s customers.

[390] It is difficult to understand how Mr. S.D. could successfully raise four children, when he has such a limited ability to respond to anyone else’s ideas if they do not accord with his own. He has also showed no ability to temper his reaction when he is displeased. He angrily accused Mr. Codas of being paid by Ms. J.D.1, because he did not like the questions Mr. Codas was asking him in cross-examination. It is very rare, and quite troubling to see such a blatant and unrepentant display of combativeness from a parent in a custody trial.

[391] Mr. S.D. also demonstrated his lack of honesty, when he was questioned about his finances.

[392] As noted previously, Mr. S.D. did not comply with the court orders for disclosure. Despite being ordered to do so, by the time of trial, he had still not produced such basic disclosure as his Income Tax Returns or copies of his bank statements. He had not complied with court orders to establish who owned the vehicle he was driving or the condominium he was previously residing in. He was evasive about simple things, such as where he had lived since separation, saying he “didn’t remember”. Despite assertive and swaggering statements that “tomorrow” he would disprove Ms. J.D.1’ “fraudulent” claims that he had not paid child support, the promised proof was never presented to the court.

[393] Mr. S.D.’s financial statement claimed that he paid his parents $250 per month in rent, while his sole source of income was $550 per month from Ontario Works. When asked about the inconsistency of paying his parents rent, when he had also testified that he was borrowing money from his parents at that time to meet his living expenses, Mr. S.D. became evasive. He vaguely suggested that he “owed” this rent money to his parents and would repay it at some point in the future. He had no explanation for why this debt was not shown on his financial statements. His parents did not testify or provide anything to the court to confirm this “debt”.

[394] When Mr. S.D. was questioned about his business operations, things deteriorated even further.

[395] Initially, Mr. S.D. said that he had started a sole proprietorship doing renovations in about April of 2015, and he expected to earn $30,000 in the upcoming year. However, when questioned about this, he changed his testimony to say he was only an employee of the business.

[396] Ms. Moaveni was able to produce various printouts from the internet for multiple businesses with Mr. S.D.’s telephone number and address as the contact information: Mr. S.D. was evasive about which, if any, of these businesses were his. Eventually, he admitted that he goes by various names and that he has many different email addresses. Mr. S.D. also said that he has partners in his business or businesses, but he was reluctant to discuss their identities.

[397] The internet printouts for each company claimed that it had been in business for 10 years and had an excellent reputation. There are references in the various websites to the “long list of satisfied clients attest(ing) to our superior craftsmanship”, “honesty”, “integrity”, “unrivalled credentials” and “quality of work”.

[398] However, the online reviews from consumer sites of Mr. S.D.’s companies were extremely negative, accusing him of misrepresentation, calling him a “scam artist” and saying he lies, cheats and does not pay his workers or suppliers.

[399] I do not put a great deal of weight on these reviews, as Mr. S.D. is correct that they could be posted by anyone, including Ms. J.D.1. Their primary purpose is not for the truth of their contents. The reviews are only important as they may affect Mr. S.D.’s ability to generate business in the future.

[400] However, Mr. S.D.’s previous boast that he started his renovation business during the marriage, despite “not being able to hammer a nail” does call into question his advertising about having “unrivalled credentials” and a long list of customers who attest to his superior craftsmanship. It certainly would have been helpful if Mr. S.D. had presented evidence to substantiate those claims. It also would have been helpful to the court to get a sense of how “long” the list of customers supposedly was, and who they might be, given that Mr. S.D.’s income since separation is an issue that I am being asked to determine.

[401] Mr. S.D.’s online JDate dating profile reinforced the impression that he is not an honest person. In it, he falsely described himself as having a Bachelor’s Degree and listed his occupation as “Architecture/Int”. He indicated in his profile that he had no children. After some nonsensical wrangling about semantics, in which Mr. S.D. tried to focus his answer on the lack of clarity about what “Int” might mean, Mr. S.D. acknowledged that none of this was true.

[402] The profile does support Mr. S.D.’s claim that he is an excellent “salesperson”. He wrote eloquently about his healthy lifestyle, running his own business, and his work ethic. Despite the inaccuracy of his claims, Mr. S.D. was not at all repentant, as he seemed to feel that there was nothing wrong with lying on an online dating site to try to get dates.

[403] Returning to Mr. S.D.’s current sources of income, Ms. Moaveni questioned Mr. S.D. about the two contracts that she was aware he had entered into since starting his new business. Mr. S.D. was evasive about whether or not there were any other contracts, saying he “didn’t recall”. This is another example of his dishonesty. It is simply not credible that Mr. S.D. could not remember whether he had only had two contracts since he started up this business in April 2015.

[404] Mr. S.D. acknowledged that he had not completed the work on either of these two contracts.

[405] The first contract was with “Ms. Volaria”. The total contract price was $86,000, of which Mr. S.D. was paid $30,000. He says he did not complete this job because he felt the customer was “too picky” and difficult to work with.

[406] The second contract was with Linda Dibb. Mr. S.D. says there were actually three contracts with her. The first was for $95,000; the second for $60,000; and the last for $35,000. I presume that these were not cumulative amounts, as Mr. S.D. said he “called his guys out” three times. Mr. S.D. received a total of $22,300 in payments from Ms. Dibb. He testified that he was suing her for the balance. Mr. S.D. says he did not complete the work for Ms. Dibb, as he decided that she was a friend of Ms. J.D.1, and he felt he was being “set up”.

[407] Mr. S.D. admitted that he received the $52,300 in payments from these customers in cash. He said he was paid in cash, because the customers insisted on doing things that way and he did not want to argue with them.

[408] This response is another example of an answer that is completely lacking in credibility. I do not accept that Mr. S.D.’s customers insisted on paying cash: it is far more likely that Mr. S.D. insisted on this for a number of reasons.

[409] First, at least some of this money was received while Mr. S.D. was still in receipt of Ontario Works. As there was no interruption of his benefits, it appears that this income was not disclosed to them.

[410] Next, Mr. S.D. also admitted that he did not disclose any of this income on either of his financial statements, nor did he pay any child support on this money. While I accept that Mr. S.D. could have had expenses to offset some of this income, he should not unilaterally determine he had “no profit”, and simply exclude this money completely from his income for child support purposes.

[411] Mr. S.D.’s testimony satisfied me that he has not been at all honest about his finances. It is impossible to accurately determine his income on the evidence in this trial.

[412] However, there is some evidence of his lifestyle that may assist. Mr. S.D. admitted that he has been on a vacation to Mexico, he is driving a vehicle, and he is the sole renter of a multiple bedroom home for $1,400. It is difficult to understand how Mr. S.D. is affording all this, unless he has other contracts that he has not disclosed.

[413] I am hesitant to conclude that Mr. S.D. is earning the significant income that Ms. J.D.1 would like me to impute to him from his renovation business. His lack of conflict resolution skills continues to plague him, and I have no evidence of any customers, other than the two, quite dissatisfied ones, whose contracts he did not complete. As previously mentioned, Mr. S.D. started his construction business during the marriage by posting ads on Kijiji, despite “not knowing how to hammer a nail.” It appears that he has continued to try to carry on a renovation business, without any of the requisite construction or interpersonal skills and, understandably, it is not going very well. His online reviews, regardless of the source, will further impair his future prospects of success.

[414] Turning from finances back to Mr. S.D.’s ability to cope with Ms. J.D.1’ new relationship, I have already noted that Mr. S.D. was completely unable to mask his anger when he spoke of Rabbi P.S.. He admitted to calling the JFCS “numerous times”, and at the time of his testimony, he had just contacted the local police force to report that a “child abuser” was living in the community. He volunteered that he was on a campaign to have Rabbi P.S. “deported” and admitted to talking to the children about Rabbi P.S.. When asked if he might be able to build a relationship with Rabbi P.S. for the sake of his children, Mr. S.D. adamantly maintained that he would “never, in his entire life, speak to a child abuser”.

[415] In summary, Mr. S.D.’s testimony established that he loves his children and wishes to be part of their lives. I accept that he has, on occasion, helped them with homework and purchased school supplies. He has arranged for L.A.D. to get private tutoring when she needed it. He is to be commended for his devotion to J.A.P. and his sensitive response to Ms. J.D.1’ disclosure to J.A.P. that Mr. S.D. was not his biological parent.

[416] However, Mr. S.D. is fighting many personal demons. He has battled depression and anxiety and has been unable to provide for himself, let alone his children. Whether he was weeping in despair or raging with anger, he demonstrated that he has great difficulty controlling his emotions. He lacks any insight into his own behaviour and how his mistreatment of Ms. J.D.1 might affect his children. His campaign against Rabbi P.S. is very troubling and suggests that his children will know no peace until either Rabbi P.S. or Mr. S.D. is removed from their daily lives.

[417] Mr. S.D. is completely unrepentant. When Mr. Codas reminded Mr. S.D. that he was breaching McDermot J’s court order by discussing “adult issues and this court proceeding” with the children, Mr. S.D. flippantly responded, “Put me in jail then”.

[418] Mr. S.D.’s insistence that he does not care what court orders might say about shielding his children from this conflict, and that he would rather be imprisoned than have his children continue to suffer the “mental, physical and emotional” abuse of living with Rabbi P.S., leaves the court with very few options to try to protect these children from their father’s unbending hatred of Ms. J.D.1’ and her new partner.

The Children’s Lawyer (Allyson Gardner)

[419] The final primary witness was Allyson Gardner, a Social Worker with the OCL.

[420] Ms. Gardner has a Masters of Social Work from the University of Toronto. She has a private practice, in addition to her work with the OCL. Since beginning OCL work in 2000, she has conducted about 20 to 25 s. 112 assessments each year, as well as 10 to 15 s. 89 “reports”. She has 10 years of previous experience working in the child protection system with Children’s Aid. She has taken numerous courses and interviewed countless children. Ms. Gardner outlined how she interviews children, including the games played and therapeutic techniques designed to draw out children’s thoughts in a gentle way. I am satisfied that Ms. Gardner is well qualified to interview these children and report to the court on their views and preferences.

[421] Ms. Gardner clarified that there are two ways that an OCL social worker can be involved in a court case. The first is by conducting a s. 112 assessment. In that process, the social worker does a full assessment and writes a report for the court with custody and access recommendations. The second is a s. 89 assist, in which the social worker reports on the children’s views and preferences, including some information about the context in which the children’s views were expressed, but does not express an opinion or make any recommendations to the court.

[422] In this case, Ms. Gardner was providing a s. 89 assist.

[423] For the initial trial, Ms. Gardner met with the children four times for a total of over eight hours. Her meetings with the children were on August 19, September 8 and November 11, 2015 and January 5, 2016. Mr. Codas was present for all but the January 5 meeting.

[424] Ms. Gardner also interviewed Mr. S.D., Ms. J.D.1 and Rabbi P.S.. She had an observational visit with Ms. J.D.1 and the children at her home, but Mr. S.D. mixed up the appointment time when she was to meet with him and the children at his home, so she met with Mr. S.D. alone that day. Ms. Gardner also spoke to various “collaterals”, including people at both schools and the worker at the JFCS.

[425] On behalf of the children, the OCL took the position that all four children should remain in their mother’s care but should not be moving to England. The OCL did not support Mr. S.D. having overnight or telephone access with the children, until he could demonstrate that he understood the effect it had on the children when he spoke negatively about their mother and Rabbi P.S..

Ms. Gardner’s interviews with the children

J.A.P.

[426] Both parents described J.A.P. as very intelligent (his mother called him a genius). Both parents agree that he has many friends, but he does not have them over to visit at either home. All agree that J.A.P. loves sports and is very close to Mr. S.D..

[427] When Ms. Gardner first met with J.A.P., on August 19, 2015, he had just turned 10. She said that J.A.P. seemed at ease through all of his four interviews with her. Although he was a bit quiet at first, once engaged, he was able to be quite expressive and easily shared his thoughts. He was smiling and relaxed. He demonstrated that he understood the role of the OCL. He freely shared his views with her and had no objection to her sharing them with others.

[428] An example of how Ms. Gardner elicits children’s views was the “Ranking Game” that she played with J.A.P.. He was asked to rank various things on a scale of 1 to 10, with 1 being the lowest and 10 the highest. J.A.P. gave these rankings:

• Dave and Busters: 8

• Eating falafel: 5

• Chocolate cake: 10

• Homework: 1

• Playing with his best friend: 10

• Montreal Canadiens: 0

• Roller coaster: 10

• Summer holiday: 10

• Hanging out with his sister: 2

• Summer camp: 8

• Living with his mom: 6

• Living with his dad: 7

[429] When asked about the rankings for his parents, J.A.P. explained that his mom’s house was a 6, because there is no internet, and he is the only boy, but his dad was a 7, because his mother (at that time) lived in an apartment, and his father was moving to a townhouse. He said his father is less strict than his mother is, and he gets to go to Dave and Busters when he is with his father.

[430] J.A.P. also stated with conviction that if his father comes to his mother’s house, bad things happen. His parents fight (verbally) and “they just care about themselves”.

[431] J.A.P. also said that he found Rabbi P.S. annoying, because he is strict and has “lots of rules”. He said, “You can’t say no when he asks you, you must listen right away”, and J.A.P. “can’t spend time with his mother” when Rabbi P.S. is there.

[432] J.A.P. also shared that his mother was going to move to England, because her husband was there, but he understood that a judge would decide if he and his sisters would move to England.

[433] J.A.P. was very clear that he did not want to move to England. He told Ms. Gardner in his initial meeting that he would like more time with his father and that he had told his parents that he wanted to spend “one week straight” with each of them.

[434] When Ms. Gardner next saw J.A.P., on September 8, 2015, she said he appeared disheartened and preoccupied. He confirmed that both of his parents had talked to him about the previous interview, even though Ms. Gardner had instructed them not to.

[435] Apparently, the night before this second meeting, Ms. J.D.1 had told J.A.P. that if he did not want to move to England with her, he did not have to. He told Ms. Gardner that his mother said she would leave him with Mr. S.D. and take the girls. Ms. J.D.1 told him they would visit every six weeks and J.A.P. felt that six weeks was a long time.

[436] When he went to sleep after this conversation with his mother, J.A.P. had a nightmare. He said that people were trying to kill him. They had set his house on fire and were trying to burn it down.

[437] L.A.D. and Ms. J.D.1 came to soothe J.A.P. when he had the nightmare. L.A.D. comforted him while he was crying and slept with him that night.

[438] J.A.P. continued to say that he did not want to go to England. He seemed very upset about the idea of his mother and sisters going without him but angrily told Ms. Gardner that he “wouldn’t miss her”. He also changed his position about where he would live if his mother did not move to England and told Ms. Gardner that he wanted to live with his father and see his mother on alternate weekends.

[439] The next time that Ms. Gardner saw J.A.P. was November 11, 2015. In this meeting, J.A.P. was much happier, because his mother had told him that she would not move to England without him.

[440] He was, however, annoyed that Rabbi P.S. was going to be coming to live with them, saying his mother was “the only person in the whole city that likes him”. He said that Rabbi P.S. did not want to spend time with him or his sisters, and that his mother’s bedroom door was now locked at night. When he or his sisters were crying, they had to talk to their mother through a locked door, and Rabbi P.S. would tell them to go back to bed. This was a change from when they were living with their mother alone, as the children would often crawl into her bed at night for comfort.

[441] J.A.P. confirmed that, once again, both his parents had talked to him about what he had discussed with Ms. Gardner. His mother had only asked him one question, but his father asked him many. Ms. Gardner was concerned that Mr. S.D. was discussing parenting issues with J.A.P. and trying to draw him into the conflict between his parents. J.A.P. shared that his father had questioned him about the children’s bedtime at Ms. J.D.1’ home. Mr. S.D. told J.A.P. that he had received an email from the school about the girls being late and tired. Mr. S.D. also told J.A.P. to tell his mother to get the children to bed by 8:00 p.m.

[442] Mr. S.D. also questioned J.A.P. about whether or not Rabbi P.S. was yelling at them. He knew how his father felt about Rabbi P.S., as he said that his father “got really mad and called the police to try to get him in trouble”. Ms. Gardner said that J.A.P. was very animated when he described this, but then stopped himself and appeared to be concerned that perhaps he should not have shared this information. Ms. Gardner said that J.A.P. was very aware of his father’s feelings, particularly about Rabbi P.S.. However, J.A.P. did not seem to be was aware of how his mother felt about the court case.

[443] During this meeting, J.A.P. confirmed that he would still like to live with Mr. S.D. and see his mother on “the same schedule as he sees his dad”. He said it would not be as good if his sisters were not there, but he would still want to live with his dad. He added that it was “not fair that my mom can marry someone none of us like and move to England.”

[444] Ms. Gardner expressed her concern that J.A.P. could be taking this position about his living arrangements because he had heard these statements from Mr. S.D..

[445] Justice MacKinnon’s January 21, 2015 order prohibited both parties from discussing the issues in this litigation with the children. He commented that, “Both parties are required by morality and in law to permit and encourage their four children to escape their parents’ failed relationship without irreparable harm.” He ordered the parties to “foster in the children respect for the other (parent).”

[446] Quite apart from MacKinnon J.’s order, common sense and good parenting would dictate that the children should be shielded from their parents’ conflict. J.A.P.’s statement to Ms. Gardner mirrors Mr. S.D.’s views so closely, that it is understandable that Ms. Gardner was suspicious that Mr. S.D. was openly sharing his views of Rabbi P.S., and what was going on in Ms. J.D.1’ home, with the children.

[447] The last meeting with the children took place at Ms. J.D.1’ home on January 5, 2016. Ms. Gardner arrived before Ms. J.D.1 and the children came home. Rabbi P.S. answered the door but had Ms. Gardner wait in her car, which I assume may have had something to do with religious restrictions about being alone with a woman in the house. However, once Ms. J.D.1 and the children returned, Rabbi P.S. was polite to Ms. Gardner but withdrew to another room and had no interaction with her.

[448] This meeting happened after I had suspended Mr. S.D.’s access over the December 2015 school holiday break. J.A.P. wanted to know why he was not seeing his father and wanted to know if he would be able to see him soon. He shared that there were now “good days and bad days” with Rabbi P.S. and that Rabbi P.S. was no longer raising his voice as much with the children. J.A.P. estimated there were four to five good days a week. He felt that Rabbi P.S. had “a lot of dumb rules”, like not drinking on the couch, not having dirty hands and keeping the house clean. Another two rules were to hang up their coats and put their shoes away but J.A.P. conceded that he was “okay with those two”. In short, over the holiday period while their father’s access was suspended, things with Rabbi P.S. seemed to improve. This is a very promising sign.

[449] During this meeting, J.A.P. happily told Ms. Gardner that he, his mother and his siblings were not moving to England for “two to three years”. Ms. Gardner found it interesting that J.A.P. did not tell her that the parenting arrangements with his father were insufficient, as he had in the prior three meetings. He also did not repeat his wish to live primarily with his father.

L.A.D.

[450] Both parents agreed that L.A.D. tends to follow her brother’s lead. She needs a little more help academically. She is a bit behind in school, and Mr. S.D. assisted by getting L.A.D. a tutor. Ms. J.D.1 added that L.A.D. is tough, but can have a “big mouth”, which I take to mean that she is more outspoken than the other children.

[451] When Ms. Gardner first met L.A.D. in August, L.A.D. was six years old. Ms. Gardner said that L.A.D. seemed very comfortable with her, although she was quiet at first. Once they connected, Ms. Gardner said L.A.D. freely shared her thoughts. She seemed very articulate and did not appear to be anxious, until her last interview (which was after L.A.D. had made the disclosure about her father hitting her). Ms. Gardner said that L.A.D. was responsive to questions and presented as comprehending and understanding what was being asked throughout all of the interviews.

[452] In the first meeting, L.A.D. did not express any view about moving to England or about changing the schedule for the time she spent with her father. She described Rabbi P.S. as her “step-father” and said he was tall and “sort of nice”.

[453] The second meeting was September 8. Mr. S.D. brought the children to this appointment. Ms. Gardner was concerned, because Mr. S.D. insisted on discussing inappropriate issues in front of the children. She also felt he demonstrated a lack of understanding about how his comments could affect his children. For example, Mr. S.D. openly made negative comments about L.A.D.’s recent haircut in front of L.A.D..

[454] Ms. Gardner redirected Mr. S.D. and met privately with the children. She said L.A.D. had “a bit less of a spark” in this meeting. L.A.D. shared with her that she slept on an air mattress on the floor at her father’s home[^28] and that she has to change her clothes before she goes back to her mother’s. She is not allowed to take anything between the two homes, even her bear, which makes her sad.

[455] This was the meeting right after the night that J.A.P. had his nightmare. L.A.D. said J.A.P. was sad, crying, and worrying, so she slept with him that night. L.A.D. said that she often sleeps with J.A.P. when either she or he feels worried or sad, and she misses him during the day when she is at school.

[456] L.A.D. said that her mother had told her the night before that they were moving to England, but she did not know when. L.A.D. said she did not want to live in the same house as Rabbi P.S., but she wanted to go to England because she was excited to have her first plane trip. When asked if she would be as excited to go on a plane to Florida, L.A.D. said, “Yes”.

[457] L.A.D. did not express any other preference about her living arrangements in this meeting.

[458] However, the third meeting, on November 11, was concerning. L.A.D.’s demeanour had changed dramatically. She was quiet and noncommittal in her responses at the beginning of the interview but eventually shared that she had “changed houses” with her mother, and Rabbi P.S. was moving in “later”. Initially, she did not express an opinion about Rabbi P.S. moving in, but later volunteered that things were “different” when he was in the house, as she could not go to her mom when he was around. For example, she had tried to go to the door of her mother’s room at night and it was locked. She says that Rabbi P.S. tells her to go back to bed. Ms. Gardner said that L.A.D. seemed sad when she was speaking about this.

[459] L.A.D. also talked about life with her father and said that he “asks a lot of questions and gets upset when he asks”. L.A.D. said, “He screams at us, at all of us, he says bad things about mom, he says we have to go to bed on time.” L.A.D. said both she and her little sister, H.A.D., cry when her father is “screaming” at them.