A.C.V.P. v. A.M.T.

COURT FILE NO.: 49578-14

DATE: 2019-03-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.C.V.P.

Applicant

– and –

A.M.T.

Respondent

COUNSEL:

William R. Clayton, Counsel for the Applicant

Anna L. Towlson, Counsel for the Respondent

HEARD: September 19, 20, 21, 24, 25, 26, 27, 28 November 5, 6, 7, 8, 9, 13, 14, 15, 16 December 4, 5, 6, 2018 January 7, 8, 9, 10, 11, 14, 15, 16, 17 February 8, 2019

BEFORE: The Honourable Mr. Justice D.J. Gordon

Reasons for Decision

[1] At the commencement of trial, the parties were able to resolve issues pertaining to property and related matters, leaving custody, access, child support and spousal support for determination.

Introduction to Case

[2] When dealing with parenting, or custody and access as described in section 16 of the Divorce Act and in Part III of the Children’s Law Reform Act, the focus is supposed to be on the children, with the determination being made in their best interests. See: M. (B.P.) v. M. (B.L.D.E.) (1992), 42 R.F.L. (3d) 349 (Ont. C.A.). The best interests of the children is the only test, parental rights no longer playing a role in deciding parental issues. See: Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 (S.C.C.); and Young v. Young (1993), 49 R.F.L. (3rd) 117 (S.C.C.).

[3] Yet in this case, much of the twenty-nine days of evidence pertained to the conduct of and conflict between the parties and their respective support networks. The evidence regarding their conduct is most concerning, perhaps bizarre. Trials are not meant to be an opportunity for parents to air their personal grievances. Rather, the evidentiary focus should be on the children. Some historical and other background information is helpful in understanding the nature of the dispute. But not to the length seen in this case.

[4] Despite the extensive evidentiary record, as hereafter discussed, there is a shortfall on a most serious issue. In the circumstances, and having regard to the focus on the children and their future, a complete final determination cannot be made. A further review is required after the necessary evidence is presented.

[5] In terms of an evidentiary review, I will only address what appear to be the key events and matters of interest, particularly as they relate to the children and parenting. There was, of course, much more said at the trial.

Basic Family Background

[6] A.C.V.P., the applicant father, is presently 38 years of age. A.M.T., the respondent mother is 37. The parties married on May 7, 2005. Separation occurred on May 19, 2014. Two children were born to the relationship: a son, M.A.P., now 12 years of age and a daughter, E.J.P., who is 8.

[7] Prior to separation, the parties and children resided in the matrimonial home in New Hamburg. A.C.V.P. moved out on May 19, 2014. The children remained in the primary care of A.M.T., A.C.V.P. having parenting time on a regular basis.

[8] A.C.V.P. commenced this proceeding by application issued November 20, 2014. A.M.T.’s answer followed on November 17, 2014. The parties were in motions court on November 27, 2014. Each had served an urgent motion prior to the case conference regarding parenting of the children. On this occasion, Sloan J. granted an interim interim without prejudice order, awarding custody to A.C.V.P. and supervised access to A.M.T. There were subsequent temporary orders but this regime has continued for over four years.

[9] The matrimonial home was sold in 2017. The property issues were not resolved until the first day of trial. Thereafter, the house sale proceeds were disbursed to the parties.

[10] A.C.V.P. resides with the children in his parents’ home in Waterloo. He has one sibling, a younger brother, who is also in the residence. A.M.T. obtained a rental accommodation in Waterloo, living on her own. Her parents also reside in Waterloo. A.M.T. has one sibling, an older brother. He lives in Kitchener.

[11] The grandparents have been involved extensively since the parties separated, in part providing emotional and financial support. Their involvement, as well, has caused further conflict, despite their good intentions.

[12] Both parties completed secondary school programs and pursued further educational opportunities. A.C.V.P. has an undergraduate degree from the University of Waterloo in environmental studies and planning. He graduated in 2003 and is presently employed in his field with a local municipality. His current income is approximately $85,000 per annum. A.M.T. completed the necessary programs to be qualified as a personal fitness trainer in 2001. She subsequently completed a two year educational assistant program at Conestoga College in 2005. A.M.T. has also completed a number of related courses offered by her employer, a local school board. She is employed on a part-time basis as an educational assistant and also provides nanny services for families. Her current income is approximately $25,000 per annum.

Conduct of the Parties – A General Description

[13] I choose to address the conduct of the parties in a general manner at the outset of these reasons as such was a consistent theme throughout the trial.

[14] The pleadings were poorly drafted, both the application and answer containing matters of evidence, disguised as facts. Yet serious allegations were raised by both parties.

[15] In his application, A.C.V.P. presents numerous complaints about the behaviour of A.M.T., such as matters pertaining to the birth of their children, being anti-public school, anti-university, anti-medicine, anti-medical doctors, anti-church, anti-urban and anti-white collar urban culture. More importantly, he alleged that A.M.T. has mental health issues, including suicidal thoughts, depression and self-mutilation. A.C.V.P. describes A.M.T. as uncooperative and controlling.

[16] In her answer, A.M.T. denies these allegations with a detailed response. She describes A.C.V.P. as an uninvolved parent but controlling. A.M.T. further alleged domestic violence and abuse by A.C.V.P. throughout their relationship.

[17] These themes were again presented in the opening address of both counsel. Yet, in response to my inquiry, they reported no expert opinion evidence would be tendered in evidence.

[18] Both parties testified at trial, each being in the witness box for eight days for examination in chief, cross-examination and re-examination. Evidence was presented as to their respective allegations regarding the other’s conduct in considerable detail. Each party presented as meek, mild and submissive, blaming the other for virtually all events and disputes. Yet, a unique feature of this case is that both were successfully challenged in cross-examination. Each of the parties, in my view, is a domineering and controlling individual, fixed in their respective views and positions and unwilling, in large measure, to concede positive attributes in the other, and bordering on narcissism.

[19] Despite the serious allegations regarding conduct, as raised in the initial pleadings in November 2014, it appears neither party nor the various lawyers involved in this case considered requesting an assessment under section 30, Children’s Law Reform Act. In his application, A.C.V.P. did seek an order for a psychological assessment of A.M.T., but he never pursed that request.

[20] The alleged conduct referred to in the pleadings, later addressed in evidence at trial, clearly identified clinical issues that had and may continue to have an impact on the children. A section 30 assessment may have led to a resolution of the parenting dispute or, at least, to a more focused trial.

[21] The initial order, granted on November 27, 2014, also requested the involvement of the Office of the Children’s Lawyer. A section 112, Court of Justice Act, investigation and report followed, the latter presented in July 2015. The clinical investigator testified at trial. Her report and evidence are of some assistance, limited by the passage of time. But the social worker, despite extensive experience, was not qualified to opine on the serious allegations regarding conduct and the corresponding issues as they pertain to parenting.

[22] In result, there is a considerable absence of evidence, an unacceptable event given the best interests of the children test.

Relationship – The Early Years

[23] The parties met in 2000 through a mutual friend. A.C.V.P. was then 19 years of age and in his first year of studies at the University of Waterloo. A.M.T. was 18, working and completing the final course for her high school program. They commenced a dating relationship in 2001 and married in 2005. They did not cohabit prior to marriage.

[24] They share religious views, one of the reasons for the initial attraction to each other. A.C.V.P., as a child, attended the Anglican Church services regularly with his mother. He reported becoming a Christian in 2000, a religious re-awakening following his brother’s “spiritual healing ceremony” involving a successful recovery from an excessive compulsive disorder that medical science had been unable to resolve. A.C.V.P. attended various churches thereafter, often with A.M.T. Since 2013, he has regularly attended and participated in services at Evangelical Missionary Church in Waterloo. A.M.T. was raised in the Baptist Church, regularly attending services as a child with her parents and brother. Such continues and A.M.T. also participates in programs at other similar churches in the community.

[25] While there are minor differences in their religious beliefs, the parties share what is sometimes described as a fundamentalist view, including a literal interpretation of the Scriptures. Much was made of religious beliefs, particularly in cross-examination. However, I conclude such is not a relevant factor in this case. No doubt, their religious beliefs had some influence on various events, but the similarity in their views negates any controversy. Individuals in our society are entitled to their religious views and practices as recognized in section 2, Canadian Charter of Rights and Freedoms.

[26] Problems developed early in the relationship, perhaps immediately following their marriage in 2005. There were vague references to matters arising on the honeymoon. A.M.T. also reported A.C.V.P. left the wedding reception and spent the first night of their marriage with his brother. Yet, the relationship would continue for nine years.

[27] At the time of their wedding, A.C.V.P. was unemployed while A.M.T. was working as a personal trainer. A.C.V.P. obtained a position in Caledon a few months later. The parties moved. A.M.T. found a job. They returned to Waterloo Region in five months, residing in an apartment in New Hamburg. A.C.V.P. secured a contract position with a local municipality. The contract was extended and eventually the position became permanent. A.M.T. was working as a personal trainer.

[28] A.M.T. discovered she was pregnant in 2006. Their son, M.A.P., was born in early 2007.

Birth of M.A.P.

[29] The plan was for a homebirth using the services of a midwife; however, due to events in the latter stage of pregnancy, M.A.P. was born at a hospital in Kitchener. Homebirth was common in the parties’ circle of friends.

[30] During her pregnancy, A.M.T. met regularly with a midwife. A.C.V.P. attended many of the appointments. No health concerns were reported in the early stages and A.M.T. continued working into the seventh month.

[31] At 36 weeks, the midwife, following an examination, expressed concern with the measurements of the baby. She wanted an ultrasound. The parties and the midwife attended at the Stratford hospital for that purpose. They met with an obstetrician immediately thereafter to review the ultrasound report. He recommended inducing the baby.

[32] The parties returned home to discuss the obstetrician’s advice. The advice was not followed. In result, the midwife resigned. A.M.T. attempted to retain another midwife. She contacted several. They all declined.

[33] A.M.T. went into labour. A.C.V.P. had set up the residence for a homebirth, including the placement of a pool in the living room. He contacted his friend, D.S., to report A.M.T. was in labour. It was a long and difficult labour. J.S., wife of D.S., called the house and then came over to assist.

[34] A.C.V.P. called 911 and an ambulance arrived to transport A.M.T. to the hospital. A.C.V.P. and J.S. accompanied her. M.A.P. was born shortly thereafter. He appeared healthy but nurses put him in an incubator and moved him to intensive care. He stayed there several days before being released home.

[35] The parties were upset with hospital staff, particularly as the attending physician cut the umbilical cord contrary to their instructions. The nurses recorded in the hospital records that A.C.V.P. was controlling and confrontational.

[36] Following the birth, hospital staff reported the event to the Children’s Aid Society. Of some interest, a friend and member of their congregation, said to be a nurse, had already called the Society to report her concerns. Society workers attended at the hospital to interview the parties. Another meeting occurred some weeks later. No protection concerns were reported. The parties were upset with this intervention. A.C.V.P. requested copies of the Society notes. He consulted a lawyer.

[37] The relevance of the pregnancy and birth is the differing perspectives of the parties.

[38] A.M.T. reported the homebirth as a joint plan, resorting to the hospital use only when the midwife resigned. A.C.V.P., however, said he was opposed to her plan but went along with it to show support. He went on to say he told A.M.T. her plan was “insane” and that her declining of the obstetrician’s recommendation and returning home was “crazy”. A.C.V.P. also stated he felt “ashamed” that A.M. T. chose an unassisted homebirth.

[39] This testimony from A.C.V.P. was inconsistent with his involvement in the research and planning for a homebirth. It was also contrary to his subsequent communications to friends announcing the birth and, later on, advising of the second pregnancy and plan for a homebirth.

[40] Homebirths, and the use of midwifes, is no longer an uncommon event. Midwives have been recognized as a medical service-provider for some time. Some have hospital privileges. No doubt, the last few weeks of the pregnancy were stressful after the midwife resigned. However, the evidence clearly indicates the original plan was jointly made. I conclude A.C.V.P. only presented a different perspective as a result of this litigation. Blaming A.M.T., as he did throughout his testimony, was neither helpful nor appropriate. But it demonstrated the extent A.C.V.P. would go to exert control.

[41] After his birth, M.A.P. was seen by the public health nurse at the family residence. A.M.T. also took him to see a naturopathic paediatrician for regular check-ups. At some later point, she also took her son to a dentist and to an optometrist for examination. M.A.P. has been a healthy child.

Birth of E.J.P.

[42] Planning for the birth of their second child was much more extensive. Given the experience with the hospital and a midwife who resigned prior to the birth of M.A.P., this time the decision made was for a homebirth involving support persons only.

[43] A.C.V.P. reported A.M.T. to be adamant it would be an unassisted home birth, advising her that was “crazy”. As with the birth of M.A.P., directing blame to A.M.T. is incorrect. He was fully involved in the preparation for the birth, going so far as to prepare a handwritten “Birth Plan”. This planning document included a list of people to be present, such as the two support persons, one of whom had been recommended by D.S., the friend of A.C.V.P. The plan also addressed necessary supplies, such as the pool, prayer and dealing with emergency situations.

[44] Their only disagreement was with the presence of A.C.V.P. during delivery. A.M.T. did not want him there, saying she was upset with his disruption and control. A.C.V.P. insisted, not wanting to leave her alone.

[45] The plan was followed. Delivery occurred without complications. E.J.P. appeared to be healthy.

[46] Subsequently, the child was seen by a naturopathic doctor on several occasions. No medical issues were reported.

[47] As with the evidence regarding the birth of M.A.P., the only item of importance is the inconsistency in the testimony of A.C.V.P. He was clearly involved in the birth plan and fully in agreement. Yet at trial, A.C.V.P. attempted to put the decision solely on A.M.T. In so doing, he damaged his credibility.

[48] Following the birth of E.J.P., the relationship between the parties continued to decline.

Care of the Children

[49] Following the birth of M.A.P. and E.J.P., A.M.T. was the primary parent providing child care until November 11, 2014. While A.C.V.P. was able to take parental leave after the birth of each child and participated in child care, perhaps on an equal basis with A.M.T., after returning to work his involvement with the children declined significantly.

[50] A.M.T.’s responsibilities included arranging naturopathic and dental appointments, scheduling playdates with other mothers and children, participating in children activities, shopping and domestic chores. A.M.T., as hereafter discussed, was the sole provider regarding homeschooling. A.C.V.P. did assist with child care after returning from work and on weekends; however, the children were rarely in his care alone.

Homeschooling

[51] Homeschooling was common in the parties’ circle of friends. When M.A.P. was two years of age, A.M.T. and A.C.V.P. attended a homeschool conference. They undertook considerable research, gathered information, consulted others and ordered supplies and books.

[52] As with other matters, A.C.V.P. said he was opposed to homeschooling the children. He claims to have expressed concerns to A.M.T. but says she was adamant and so he went along with the plan. But, again, his communications, particularly emails, demonstrate he was in agreement. He also signed the homeschooling forms as required by the school board. A.C.V.P. then says he was not opposed to homeschooling in general, but that it was not working in their family. He blames A.M.T. for this failure, yet there was no evidence to suggest the children were not learning or progressing to appropriate educational standards.

[53] For some unexplained reason, A.M.T. was the only parent involved in homeschooling. A.C.V.P. took no part in instruction, his only role being to approve the purchase of supplies.

[54] A.M.T. was involved in two homeschool groups, a formal organization in Stratford and an informal one in New Hamburg. In these groups, children participated in classes for specific topics and for field trips together, such as to the library. The purpose of the events was said to have an educational component as well as for socialization. A.M.T. was an instructor for some of the group classes in Stratford, having obtained a qualification as an educational assistant some years prior.

[55] The parties also discussed enrolling the children in a Christian school. Each did some research and attended open houses separately. They could not agree on proceeding.

[56] A.C.V.P. suggests homeschooling was not productive. No evidence was presented to support his opinion. A.M.T. reported M.A.P. to be doing well in mathematics but struggled with reading. She worked with him daily to improve his reading. E.J.P. had just started a junior kindergarten program in homeschooling in the Fall of 2014.

[57] What A.C.V.P. was doing with respect to his position on homeschooling was developing another plan, this time for litigation. He arranged for a private tutor to assess M.A.P.’s educational development in August 2014. A report was received but not produced. A.C.V.P. also contacted the school board that same month seeking to register the children in the public school system. A.C.V.P. took this step without the consent of A.M.T., even though the children were then in her primary care.

[58] A.C.V.P. acknowledged a fundamental change in his approach occurring in August 2014. He had decided earlier that year the marriage would not continue. He said he now wanted to make private discussions with A.M.T. public. By September 2014, A.C.V.P. indicated he was planning on a court application. He decided to use the homeschooling of the children as one of the reasons for pursuing sole custody. So he asked A.M.T. “to go along with me” in registering the children for school, knowing she would not agree.

[59] Homeschooling is a recognized alternative educational system. It allows parents to provide academic instruction within a chosen framework of moral or, as here, faith based learning. The Stratford organization has in excess of fifty family members, with a formal structure for classes and financially supported on a private basis. Homeschooling is required to meet guidelines established by the Ministry of Education as most students will, at some point, enter the public system.

[60] In this family, it appears homeschooling for M.A.P. was successful, E.J.P. only just commencing the program when the parenting regime changed. The children quickly adapted to the public school system after A.C.V.P. took control after the custody order granted on November 27, 2014. Homeschooling is not an issue in this case.

Separation

[61] On Sunday, May 18, 2014, A.C.V.P. took the children to church. On the drive, he described an “awakening”, a decision the marriage was broken. Not true. In reality, A.C.V.P. had decided some months earlier that there would be a separation. He put together a team of advisors for that purpose, a planning committee that included his friends, D.S. and J.W., both of whom would have significant roles to play in the separation.

[62] As hereafter discussed, A.M.T. wrote several emails to friends in February and March 2014. These emails contain disturbing comments. A.C.V.P. reported seeing them in October 2014. Also not true. These communications were written on a joint email account. A.C.V.P. was discussing them with A.M.T.’s father, B.T., and brother R.T. shortly after.

[63] On May 17, 2014, the parties had another heated argument. A.M.T. left the house and spent the night with a friend, returning shortly before A.C.V.P. left for church the following morning.

[64] After church, A.C.V.P. took the children to his parents’ residence in Waterloo. He returned alone to the matrimonial home in New Hamburg and left a note for A.M.T. saying he wanted to discuss a separation. A.C.V.P. packed up clothing for himself and the children and drove to his parents’ home. He also took the children’s passports.

[65] A.M.T. spent Sunday with friends, returning home Monday morning. She saw the note from A.C.V.P. and immediately went to his parents’ residence. She grabbed E.J.P. from her grandfather’s arms and call for M.A.P. Both children were placed in the vehicle. However, A.C.V.P. took the keys from the ignition and told A.M.T. they had to talk. A.M.T. could not leave. The children remained in the vehicle for several hours. A.C.V.P. made it clear there was to be a meeting and that he wanted a separation agreement.

[66] Both parties made calls for people to assist in the meeting. D.S. and J.W. arrived. So too did two friends of A.M.T., along with her brother.

[67] A.M.T. and D.S. took the children out for lunch, returning to the home. The children were left with the grandparents. The parties and others retired to the sun room for the meeting.

[68] J.W. advised the parties she would be an independant mediator. This was untrue, as she would later admit in an email to A.M.T. D.S. claimed to be neutral, negotiating for both parties for “stability”. This was also incorrect. J.W. and D.S. were part of the team for A.C.V.P., their role clearly to achieve an agreement favouring A.C.V.P.

[69] A.C.V.P. wanted a separation agreement that day for equal parenting time. He was not prepared to allow the children to leave with A.M.T. until he achieved his goal.

[70] The meeting proceeded on that basis, purportedly directed by J.W. J.W. reported the amount of support payable by A.C.V.P., referring to a guideline chart. Of considerable interest, nobody mentioned consulting a lawyer.

[71] There was a discussion as to finances, particularly bank accounts and a credit card debt. The amounts were recorded and the agreement regarding use of the accounts was signed.

[72] The discussion regarding parenting time was also recorded but not signed. It covered the next two weeks. A.C.V.P. thought there was an agreement. A.M.T. did not. There was some discussion as to a follow up meeting. Such would not occur.

[73] The recorded parenting time essentially divided such between the parties although favouring A.C.V.P. in terms of weekends. Had it been signed, A.C.V.P. might have achieved his goal, frequently referred to by him, and D.S., as “order and stability”.

[74] A.M.T. was then allowed to leave with the children. Her vehicle keys were returned.

[75] There was no agreement. A staged meeting, controlled by A.C.V.P. and his advisors, cannot lead to a voluntary agreement. The controlling nature of A.C.V.P., who made the unilateral decision to take the children and then withhold them from A.M.T. as leverage in negotiations is most troubling. This sequence of events was not undertaken in the best interests of the children.

May 2014 to November 2014

[76] For several months after the meeting on May 19, 2014, A.C.V.P. enjoyed regular parenting time with the children. But it was not close to what he expected. He said A.M.T. dictated when he could see M.A.P. and E.J.P. But the emails between the parties show his requests for time and her arranging same. Some of A.C.V.P.’s visits were in the matrimonial home, a nesting arrangement, when A.M.T. would leave.

[77] Other emails reveal their disagreement, which was really the situation. A.C.V.P. requested mediation and a separation agreement, insisting on joint custody. He offered to then consider a reconciliation. A.C.V.P. also complained that A.M.T. was not living up to their agreement. She would respond, or through her brother, to indicate there was no agreement and that there should be another meeting. A.M.T. also asked A.C.V.P. to clarify his comment regarding reconciliation.

[78] In June 2014, A.C.V.P. discontinued depositing his pay cheque to the joint account. He opened a new account and started to save money. A.M.T. was left without funds to support the family and pay the credit card debt and other expenses, including the mortgage. She asked him for money, particularly to pay the credit card debt. He refused to provide any financial assistance until a separation agreement was signed.

[79] As previously mentioned, A.C.V.P. began planning for litigation in August 2014, if not before. He must have sought out legal advice as, in September 2014, A.C.V.P. began paying support to A.M.T. of $1,192.26 monthly. By then, his lawyer was starting to draft the court application.

[80] Prior to receiving the support payment, A.M.T. advised A.C.V.P. she could no longer afford to pay the vehicle insurance. He was using a vehicle registered in her name. A.M.T. suggested ownership of the vehicle could be transferred to him so that he could obtain his own insurance policy. She cancelled the coverage of A.C.V.P. as a driver. A.C.V.P. purchased his own vehicle instead.

Litigation

[81] A.C.V.P. commenced this case by application, issued November 10, 2014, seeking the following relief:

(a) a divorce;

(b) sole custody of M.A.P. and E.J.P., alternatively, joint custody with primary residence;

(c) the access of A.M.T. be supervised by a third party agreeable to him; alternatively, her access to be on alternate weekends;

(d) parenting time at Christmas, March Break, summer vacation and Thanksgiving weekend;

(e) ability to communicate with children’s doctors, teachers and other professionals, to schedule their appointments and access to all information from professionals and other persons connected to the children’s welfare;

(f) ability to communicate with the children by telephone daily when not in his care;

(g) ability to attend children’s school and extracurricular activities

(h) A.M.T. to provide her address and telephone number at all times;

(i) A.M.T. not to move the children from the Region of Waterloo without his consent or court order;

(j) to have children on Father’s Day and time on their birthdays;

(k) to have the first right to care for the children before a third party is arranged, if A.M.T. is unable to provide care;

(l) A.M.T. to attend and successfully complete counselling for separated parents;

(m) A.M.T. to obtain a psychological assessment;

(n) A.M.T. to attend all counselling appointments as requested by a health professional;

(o) A.M.T. to take all prescription drugs, as recommended by a physician, psychiatrist or psychologist;

(p) Children’s Law appointment;

(q) child support;

(r) police assist; and

(s) property matters (no longer in issue).

[82] A.M.T. subsequently delivered an answer, dated November 17, 2014. She sought an order for:

(a) custody of the children M.A.P. and E.J.P. with primary residence;

(b) A.C.V.P. to have access on alternate weekends and one evening per week;

(c) spousal support based on the Spousal Support Advisory Guidelines;

(d) child support in accordance with the Child Support Guidelines;

(e) proportional payment of section 7 extraordinary expenses of the children;

(f) maintaining her and the children on his employment benefits;

(g) life insurance coverage with the children as irrevocable beneficiaries and she the trustee;

(h) Children’s Law appointment;

(i) police assist; and

(j) property matters (no longer in issue).

[83] Since May 19, 2014, the children had been in the primary care of A.M.T.. A.C.V.P. had parenting time weekly, although the parties disagree as to the extent of same. Knowing A.C.V.P. would not be working on November 11, 2014, A.M.T. offered him the opportunity to have the children that day. He accepted.

[84] A.C.V.P. had been planning on the litigation for some time, likely since the meeting in May 2014, perhaps before, and certainly shortly after as he had not achieved the agreement he wanted, namely equal shared parenting. Once it was decided the children would be with him on November 11, 2014, he decided that was the day to serve A.M.T. with his application. He arranged for his friend, D.S., to be present when the process server met A.M.T. and delivered the documents to her.

[85] According to A.C.V.P., D.S. was to inform A.M.T. the children were not being returned that day but would be at some point in the near future. He decided to unilaterally withhold the children from A.M.T. and called the police in advance to warn them of her possible reaction once served. A.C.V.P. also wanted D.S. to testify as to how A.M.T. reacted when served, knowing that A.M.T. did not like D.S.

[86] D.S. described his role somewhat differently, saying he was to observe the service of documents and to advise A.M.T. the children would be returned to her that day if she reacted “properly”. As expected, no doubt, A.M.T. was upset with being served and with the children not being returned to her as previously arranged. D.S. made the decision, he said, that the children would not be returned to A.M.T., doing so “on the spot” as he felt it was not safe to do so given her reaction. In response, A.M.T. told D.S. he was “sick in the head for supporting an abusive man”.

[87] A.M.T. next consulted the police and determined they could not provide assistance. She and her father drove to the residence of A.C.V.P.’s parents, expecting to retrieve the children. Police officers informed her that his parents did not want her on their property. She left.

[88] A.M.T. was allowed to speak to the children by telephone several days later. She did not see them for almost three weeks and only after the court appearance. Prior to November 11, 2014, it is acknowledged the children had never been away from A.M.T. for more than one day.

[89] There can be no dispute, these events would have been most troubling for the children. Commencement of this case was well planned, the strategy of withholding children hardly being in their best interests despite the concerns regarding A.M.T. It should have been handled in a different manner. But clearly the strategy of A.C.V.P. was to get the upper hand, or control. He succeeded.

A.M.T. – Is There a Mental Health Issue?

[90] As previously mentioned, A.C.V.P. has presented allegations regarding the mental health of A.M.T. from the outset of this case. A.M.T. denies there is any merit in his claim.

[91] A.M.T. reported difficulties in her childhood. She was not close to either parent and, between the ages of 7 and 9, several close relatives passed away in traumatic circumstances. A.M.T. made reference to these deaths and the conflict within her family at the time, as hurtful, painful and difficult to endure.

[92] At some point in time after the birth of E.J.P. in late 2010, A.M.T. wrote by hand a note identified as a Prayer to God. A.C.V.P. found the note, he said, on his parenting time in the matrimonial home on May 22, 2014. He photographed the note on that occasion, leaving the original in the filing cabinet. The note said:

“Dear God (not much of a Father now). I want to die. I want to go home now. I have had enough pain, enough suffering. What the fucking hell do you except of me this is hellish torment. I am asking that you take my life so I don’t have to take it away. To spare my family the pain of knowing that I did myself in. I sorry that I fucked up [E.J.P.]’s birth by not asking [P.] and [B.] if they knew anyone who could help I am sorry for wanting another child. I am sorry for not expressing my needs to others. I sorry I was born. I sorry for having faith in God. I sorry for putting so much exception on you for a good birth. I am sorry for thinking you would come through for me and not taking things into my own hands. I am sorry for trying to control things. I am sorry for marrying [A.C.V.P.] when in my heart I didn’t feel right about it. I am sorry for settling for someone who treated me like garbage and not excepting that you would have better for me. Sorry for not killing myself as a child so I wouldn’t end up as a mother and wife as a complete fucking failure. It seems quite obvious and am not favoured by you God and you are completely displeased with me and repulsed by me so I am asking that you finish me off and destroy me. I can’t take anymore suffering it is too much. This is all evil. Everything is evil and wickedness. Please kill me. Please take me away. I am worthless to you obviously I have no value or significance. I was hated by you since the day I was born. I am unloved and hated by all. S. curses and rejection has followed me all the days of my life and fear never ending, pain never ending, pain never ending, no healing, no hope only suffering. Please end me now God. Please get rid of me now.”

[93] On February 24, 2014, A.M.T. sent an email to a friend saying:

Isn’t that the church you went to growing up? It’s supposed to be for ages 14-30 but I’m going to ask if we could come, because it sounds like so much fun and I’m really not over 30 in my mind.

I’m remembering about an e-mail that I’m not sure if I replied to: Anyway, my response is I love the idea of being prayer partners, if I never told you that yet.

So, I was the only one who came this weekend who doesn’t have a sister: (

I guess that might explain some of my challenges in life with women, girls.

Any my mom and I were never close and I feel more like her mom a lot of times. I realize now, as I child the only person a felt a warm love from was my mom’s mother (my grandma). She was very gentle in her spirit. I never knew or felt that my parents loved me or even liked me. What was done was only out of duty. I always wanted a little sister and the closest thing I got was a 14 year younger cousin, who saw me more as a mom than anything. Now that she is 18, she feels like a niece and the children call her their cousin, since she is the closest thing they have to their own cousin and [M.A.P.] is closer to her age then I am.

For half of my High school years and as young adult my closest friends were guys and I never seemed to fit in with the girls groups even though I was part of a few in grade 9 and ten. I still feel that way, but I would be considered a wicked woman if I were to go hang out with the adventurous guys, even though it would be more comfortable talking them, joking with them. When [A.C.V.P.] came along it seemed that I wasn’t allowed to have guy friends anymore, in my mind anyway and his too.

Sometimes, I dream of finding some really crazy girls like me and we would do crazy adventurous things and it would me so much fun. And I’d be my wild and free self, and enjoy life. But for now I’m just a loner and my life is boring and painful. Someday [M.A.P.] will grow up and want to do crazy things, but by the time he does I think I’ll be too old and missed my chance on life. I really hope he becomes a farmer like he says he wants to, because then I will go work on his farm and garden with him and L.; (lol).

Just joking (as I don’t know it will be L. but he likes her a little) Since I went to a farm as an 18 year old that is where I want to live; on a farm and I married a man who would like to live downtown Kitchener, a City boy, what a big mistake.

I’m oppressed, controlled and ignored here at home in every sense, it is just so painful for me and I think I’ve denied it for too long and I don’t even know who I am anymore, because I am not allowed to be myself and who I am is crushed, persecuted, hated and shamed. This can’t be what Jesus meant for me, he couldn’t have died on the cross for me just to live in hell on earth.

There has got to be better for me, because I’m really regretting that I didn’t end my life as a child and teenager as that is what I so desperately wanted to do for years. And now as an adult I’ve been through enough trauma for several life times and I just want to go home. I have had more than enough, I just want out of this pain that seems unending.

[94] The friend was concerned, responding as follows:

This is [L.] responding to an email i just got now almost 12 hours after you wrote it. I just left a message on your phone letting you know to please call me. It’s late already but i want you to know you can call me at any time of the day or night. [A.], I’m hearing that you need help. You and your family are in need of help and that is very evident if you are having conversations with yourself regarding what you all just wrote. I am a friend and here to help in whatever way i can. If it is someone to listen, i will be here. I may not always simply agree with everything or anything you say; especially when it comes to ending your life. [A.], You are put here for MANY purposes. You are loved, important and there is a space and time for you. In all of history he has placed you where you are for this time, because he wants you to see him and others to see him through you. He sees what the details of your life entail now and he sees the hope and future that he’s designed since the beginning of time in what is happening around you, even now.

You are not ignored and you are not the last one on the list to find out about anything. You are not forgotten, you are not ignored. This space and time in history needs to hold you. Yes, your children will grow up like you mentioned, and in that, there will be less of a demand on your time and energies. They need you now more than ever; as does your husband- to be the mother to them that they’ve always needed. They love you dearly and think of the tragedy that it would mean in their lives if you were gone. If it’s a break you need from them then that needs to be known as well. There are ways to get this, so you can have some time to think and just be without that responsibility. Their roles on this earth are known to their true Father, like he knows the number of stars and like he knows how many hairs are on your head or on his hand. He holds them and you in the cushion of his hand. If it’s long term help you need then there can be things arranged. You are imperative to the picture of all of this and your involvement can be lightened in different ways if that’s what you need. [A.], do not do anything you will regret. If you do not trust your own actions we need to see to it that you are kept out of harms reach. You are a responsible girl. You are female; designed with beauty and integrity. (here are some of the things written in your card). Did you know that when i first met you i thought; “There is a deep and smart girl I’d like to get to know” Since getting to know you I’ve come to appreciate your integrity. What you talk about in taking your life is anything but that. If you really can’t trust your judgement at ANY given time; please call a friend and let us know. You and your family are WORTH IT!!!!

[95] On February 27, 2014, A.M.T. sent another email to the same friend. She wrote:

Thanks for listening the other night and being a kind and loving friend

Just wanting to let you know, I am feeling like I’m standing much more level ground right now and I ordered 3 books that address issues I’m dealing with in my marriage and life. Which I am really looking forward to reading. I seem to struggle most, when I am over tired and physically not well. Also, when I don’t talk to anyone for awhile. This past weekend was mostly set off by painful triggers though. As, I said I have been wanting to end my life since I was 9 years old. The struggle has been on-going throughout my life almost continually, so I am not a stranger to it and not afraid of it. It is all too normal for me to feel that way. My life should have been done for many times over.

I just don’t talk about it and people really don’t know (years of masking it makes me really good at hiding it) I went through it alone for most of my life and still do. I often wonder though, it the pain can go any deeper or hurt anymore and it is hard, because it always does. I do really want to go home, because I don’t feel like I can bear anymore shattering of my already destroyed heart. Life has been that terrible for me, I’m sad to say and I have begged God to end it for me again and again. Anyway, I guess I trust you so I told you. I haven’t trusted many people in my life. I have realized if I don’t start talking about my pain, my body is going to self destruct anyway and caring all the weight of it is destroying me physically and I won’t live to see my children grow up, even if I want to. Sometimes the pain is so great I don’t want to think that far.

I’m happy your my friend/sister and I love how you are a reflective, deep, creative thinker; with a beautiful loving heart. I think your a great person [L.] and I love talking with you, laughing and hangin out. You are a lot of fun.

I think I’m doing okay right now, with the children (that may change), but I’d really love to go to the YMCA with you or take a walk together soon.

Hope your week is going well and your learning lots along side of your beautiful little girls. I want to make it clear that I don’t want to burden you with my pain please give to The Son.

[96] On March 25, 2014 A.M.T. sent an email to a different friend, saying:

I’ve been thinking about you and anyway just saying Hi.

Hope you had a great visit with [D.]’s Mom. I’m so glad you got to meet her, finally.

Life is very rough around here and it is a fight to hold onto any truths of God and find them and know them for certain. I’m desperately wanting to press the eject button. Lies abound, enough to wrench my stomach and make me sick. But on I go one day at a time, when the future is so uncertain. On the positive side I got to go skiing on Monday at Blue Mountain and was relieved that after almost ten years of not skiing and I still got it in me. It was a blast. Also, I planned a Homeschool Rock Climbing Field Trip and it was a Great Success the children had so, much fun. I’m doing another Trip to the Rock Climbing Gym for the teens in May and I’ll get to climb then and some of the other Mom’s will be too.

I’m hoping I still can climb well, half my life time ago, is the last time I was Rock Climbing Indoors.

How are things with you? What did you think of the winter out there? It very well could have been a worse winter here, probably like the ones you had when you were little. It has been a crazy cold winter unlike any winter in my lifetime, with a good amount of snow. I actually like the cold weather and the pure white snow, it has been beautiful and bright. So, I haven’t struggles as much with seasonal disorder this year, because of the brightness.

Anyways, have a great week,

[97] On April 23, 2014, A.M.T. sent an email to another friend. She wrote:

How have you been feeling? Did you end up getting your car fixed?

Wow, what a day yesterday. Oh I’m glad it is today and not yesterday, what a rough day it was, but today I see I was over reacting internally to things that were not a big deal.

Oh how I love Wednesdays it is a day with little anxiety. [A.C.V.P.] doesn’t come home till 10pm or later and I walk the children to the library for story-time, we have an early dinner and a peaceful evening.

Is [L.] saying she is bored of school or that it is boring? Oh, [M.] is, I think he has had just enough of hitting the workbooks. He does very much enjoy reading though, he has read fifty books in 2.5 months, this past weekend. Maybe I should have stuck with unschooling. Maybe a change for the next two months will help. I don’t think Christian Light is quite as exciting without his sweet little friend [L.] in his class and being in an actual classroom with a beautiful, non-emotionally stricken mom who acts like a real teacher as opposed to a broken mom who doesn’t want to be alive most days.

So, had anymore thoughts about a School at Grace? I’d be in and may there would be others.

Thanks for your help at Gym.

See you in 2 weeks again, please pray the next one goes better and for wisdom on how to handle [J.] ]L.]’s friend’s son. Oh, how I need Grace to keep the peace in my heart. I was so discouraged after yesterday’s Gym class. I feel like I made a real mess of things by saying that [L.] could invite [A-M.] and inviting my friend [C.]. Then [H.] didn’t even end up coming. So I don’t know what happened with that.

I pray the day comes when I won’t get so worked up about things in my heart.

[98] There are obvious indications of depression and extreme distraught in these writings. Conflict with A.C.V.P. had been increasing over time and, by early 2014, the marital relationship was in great difficulty. Indeed, in 2013 A.M.T. was contemplating separation and was seeking information as to how such would be accomplished. A.M.T. explains her note and emails as done in the moment, expressing thoughts at the time and reflective of the family situation. She does not now agree with all of the words used and says suicide is contrary to her belief system. Context is helpful, but it does not provide a clear and complete explanation for these troubling thoughts.

[99] During the trial, A.M.T. communicated with A.C.V.P. by text on October 21 and 23, saying:

Your Maker sees everyone of your lies and your hypocrisy.

[E.] saw and sees every violent and abusive act you committed against me.

Your Maker sees all the cruel and hateful ways you have treated me. HE will judge your unrepentance and punish you accordingly, as your Bible says.

You may think you can fool those around you will your lies and deception, but you can not fool The God and Creator of this Universe.

There is a special reservation for you!

There is someone who really wants to meet you.

He likes Abuser, Liar and S

[100] On the last day of the examination in chief of A.C.V.P, A.M.T. confronted him during a break outside the courtroom, saying something to the effect:

Shame on you for every lie you gave in court.

[101] On November 12, 2018, A.M.T. sent another text message to A.C.V.P. as follows:

May turmoil come to your heart for every cruel and wicked thing you have ever done to me and the way you have blasphemed Our Creator, swearing lies and bearing false witness on the Holy Word of The Heavenly Father. You will have to answer to your Maker and bear the eternal consequences of your unrepentant heard and sins.

[102] When challenged with respect to these comments, A.M.T. reported the degrading behaviour of A.R.V.P. continuing through his testimony at trial. She said he needs accountability, that he will have to answer to his Maker.

[103] There is also evidence regarding A.M.T.’s conduct during access visits since November 2014 and other events as described elsewhere in these reasons. Such compounds the potential concern.

[104] A.C.V.P. also referred to A.M.T. performing acts of self-mutilation by cutting her abdomen. He eventually conceded, after much questioning, that he never observed such events. He referred to A.M.T.’s purported admission of cutting in years past and, as well, seeing scars resultant from what he described as “scouring”.

[105] A.M.T. acknowledged scratching her abdomen in the past, a means of alleviating pain in her back. She reported such to have last occurred at age 23. A.M.T. attended at a walk-in medical clinic on November 2, 2018 to obtain evidence to address A.C.V.P.’s allegation. Dr. Baskerville provided a note that said:

No scars or injury wrists, forearms or abdomen wall or other body parts.

[106] This evidence on self-mutilation is unclear. Scratching may or may not be a reasonable act. It is well known, A.M.T. has significant back pain. But the acts are troubling.

[107] A.C.V.P. further identifies the state of the matrimonial home as indicative of A.M.T.’s state of mind. On October 23, 2014 A.C.V.P. entered the matrimonial home. A.M.T. and the children were away visiting family for the weekend. He took photographs depicting a cluttered house, even chaos with clothing and other articles spread throughout.

[108] A.M.T. said the photographs are not accurate, presenting her own photographs taken after the first court appearance when she became aware that housekeeping may be an issue. Her photographs depict a reasonable housekeeping standard. A.C.V.P. reported such photographs to be “staged”.

[109] On its own, the state of the house is not a factor. This was a busy time and A.M.T. was on her own in parenting two young children. But, given the other evidence, the state of the house cannot be ignored. It is of some concern. However, it would be inappropriate to relate such to A.M.T.’s mother’s problem with “hoarding”.

[110] What am I to make of this evidence regarding A.M.T? The simple answer is, “I do not know”, in the absence of medical opinion evidence. I am concerned, as motion judges were previously, particularly as the focus is with the children, not as between spouses.

Conduct of A.C.V.P.

[111] A.M.T. presented serious allegations of abuse by A.C.V.P. in her answer dated November 17, 2014, described as domestic violence. Detail was provided in her testimony at trial.

[112] A.C.V.P. was the first witness to testify. He knew of the allegations from the pleadings and prior affidavits and addressed same in his testimony. A.C.V.P. denied, for the most part, the stated events of abuse involving A.M.T. and the children. He reported on numerous arguments during the relationship, increasing over time, yet said A.M.T. could not deal with conflict.

[113] During one heated exchange in 2013, A.M.T. indicated she was calling 911. A.C.V.P. pulled the phone cord out of the wall receptacle to prevent her from calling the police. He was concerned, he said, that A.M.T. would allege abuse.

[114] A.C.V.P. acknowledged calling A.M.T. a “fucking bitch” on one occasion and a “bitch” on other times. He said he would immediately regret the choice of words and seek forgiveness from A.M.T. A.C.V.P. also admitted throwing a piece of lumber at A.M.T. in anger during another argument.

[115] A.M.T. reported multiple events of emotional abuse and some physical contact on others. She also spoke of the lack of co-operation and assistance from A.C.V.P. regarding child care and maintenance of their residence and his priority with respect to his work and personal activities.

[116] The events described by A.M.T. cover the period from 2011 to separation in 2014. In addition to those acts admitted by A.C.V.P. above, A.M.T. described others, including:

2011 - When E.J.P. was 3 months old, she fell of a chair while in the care of A.C.V.P. – when A.M.T. inquired as to what happened, M.A.P. attempted to explain – A.C.V.P. told M.A.P. to “shut the fuck up”.

• When A.C.V.P. removed the kick-stand from her bicycle, A.M.T. asked him why – his response was “shut up”, calling her a “fucking bitch”.

2012 - During an argument in the basement of their residence, A.C.V.P. got angry and threw a weight bench and skates at her.

• An argument developed over giving ice cream to M.A.P. and A.C.V.P. told A.M.T. to “shut up, fucking bitch”.

2013 - When similar comments were made by A.C.V.P. during an argument, he said he was instructed by his counsellor “to take authority and control over you as the man in the house”.

2014 - During a discussion in the kitchen of the residence A.C.V.P. grabbed her bum – A.M.T. told him to stop as she did not want him touching her – M.A.P. was angry, hit his father and told him to stop – A.C.V.P. said she was his wife and he could do whatever he wanted to her.

• An argument occurred in the bedroom – A.M.T. attempted to pick up E.J.P. from the bed – A.C.V.P. pushed her away, grabbed her wrists and shoved her to the floor.

[117] Of some interest, A.M.T. was not challenged in cross-examination with respect to these other events.

[118] With respect to his allegations regarding A.M.T.’s mental health, A.C.V.P. acknowledged he is not qualified to diagnose. Yet he said she was suffering from an “undiagnosed mental illness”. When challenged with the purported comments to the contrary from A.M.T.’s family doctor and counsellors, described in more detail later in these reasons, A.C.V.P. reporting having a general sense of A.M.T.’s state of mind based on many years of living with her.

[119] This comment is concerning. A.C.V.P. is indicating knowledge of mental health difficulties of A.M.T., yet he took no steps to seek assistance for his spouse. He did not consult either a doctor or lawyer for advice, nor did he contact any health care agencies to obtain advice and direction to help A.M.T. Instead, A.C.V.P. decided the marriage was over and began planning for the separation and this litigation. In so doing, he relies on her writings to justify steps taken, to obtain what he repeatedly described as “order and stability”.

[120] Notwithstanding the turmoil and conflict within the marriage, the conduct of A.C.V.P. reveals an anger management problem. He is also a controlling person, determined to have things his way rather than compromise. He justifies his conduct by saying his counsellor instructed him to be more assertive. He always was. Control can be seen in his dealings with hospital staff, Children’s Aid Society and others, the planned separation and orchestrated meeting, the manner of commencing this litigation, withholding the children as a bargaining tool and his constant criticism of A.M.T. for every event in their marriage. A.C.V.P. accepts no responsibility for his conduct.

[121] What impact does this have at this stage of the case? Over four years have passed since separation. Conflict remains as between the parties, but the real issue going forward must focus on the children.

Motions Court - November 27, 2014

[122] In addition to the exchange of pleadings, both parties served urgent motions to address a temporary parenting regime. Both sought custody of the children.

[123] A trial judge does not have access to the continuing record. In result, I am not fully aware of the evidentiary record presented on the motions, other than referred to at trial, namely the note and emails authored by A.M.T., as discussed previously. Both parties were present in motions court. A.M.T. acknowledged that Sloan J. expressed concern about the contents of her emails. Both commented on motions court being a busy day with a long list for the presiding judge. A.C.V.P. indicated Sloan J. granted his order out of an “abundance of caution”. Cross-examination on the affidavits had not occurred.

[124] It appears Sloan J. delivered brief oral reasons for his decision. An interim interim without prejudice order was granted that day on the following terms:

(a) custody of M.A.P. and E.J.P. to A.C.V.P.;

(b) A.C.V.P. permitted to enrol the children in a school in his catchment area;

(c) A.M.T. to have supervised access on alternate weekends, each Wednesday and at Christmas, to be supervised by her parents or such other person as agreed to by the parties; and

(d) appointment of the Office of the Children’s Lawyer.

[125] While I am not aware of the expectations of Sloan J. at the time of granting this order, interim interim without prejudice orders are normally meant to address an urgent situation with a review soon after on a more complete evidentiary record. For some reason, this did not occur until A.M.T.’s motion to change heard and dismissed in February 2018 when the case was then on the trial list. This type of order is never meant to last for four years as it did in this case.

November 2014 to September 2015

[126] Following the granting of the order on November 27, 2014, A.C.V.P. registered the children at the public school in the catchment area of his parents’ residence. He also arranged for the children to see a new physician and to receive the usual vaccinations.

[127] The parenting regime as set out in the order was put in place and it continued until September 2015. But there were problems from the outset. Despite the order, A.M.T. registered M.A.P. to play hockey in Tavistock where he had played the previous winter. Difficulties developed on exchanges. The children were often returned later than expected.

[128] On the first access visit, A.M.T. took M.A.P. to the police station on Sunday. Her father delivered E.J.P. to A.C.V.P. M.A.P. is said to have complained about physical contact by his paternal grandfather. A police officer spoke to M.A.P. and then instructed A.M.T. to return the child to A.C.V.P. Police officers also interviewed A.C.V.P. and the paternal grandfather. No further action was taken.

[129] A.M.T. reported as to the difficulties in returning the children at the end of their visits. They enjoyed time together, she said, and the children would not want to leave. A.M.T. made reference to negative comments the children would make about their father, indicating they were angry with him for the disruption in their lives. In result, A.M.T. said it took longer to get the children ready to return, comforting them and offering encouragement to have a good relationship with A.C.V.P.

[130] The parents of A.M.T., or one of them, would be present during the access visits until September 2015. Her father handled the exchanges with A.C.V.P.

Children’s Lawyer Investigation and Report

[131] In his temporary order, granted November 27, 2014, Sloan J. requested the Office of the Children’s Lawyer involvement. An investigation and report followed, pursuant to section 112, Court of Justice Act, completed by Wendie Kirk, clinical investigator.

[132] Ms. Kirk, recently retired, was an experienced social worker, conducting in excess of 300 investigations in her 25 years with the Office of the Children’s Lawyer. She has a total of 37 years of experience in her field. While challenged by counsel for A.M.T. in extensive cross-examination regarding her methodology and impartiality, I consider the investigation and report to be of considerable assistance in understanding the status of the children and the underlying problems in this family. The report was completed on July 8, 2015 and is somewhat out of date given the growth and development of the children over the past years.

[133] The current views and preferences of the children are unknown, save to say they love both of their parents and want more time with their mother. That request has not changed in the past four years. It is most unfortunate that more current information was not obtained. Children have the right to be heard in all matters affecting them, including in custody cases, as set out in the United Nations Convention on the Rights of the Child. See, for example: Baker v. Canada, [1999] 2 S.C.R. 817 (S.C.C.); S.G.B. v. S.J.L. (2010), 2010 ONCA 578; and B.J.G. v. D.L.G., 2010 YKSC 44. Indeed, the views and preferences of the children are one of the factors requiring consideration in the best interests test as provided by section 24(2)(b), Children’s Law Reform Act. I am satisfied such could have been ascertained by a more recent inquiry.

[134] Ms. Kirk received and reviewed the intake information from the parties. She interviewed A.C.V.P. and A.M.T., both in person and by telephone. Ms. Kirk attended their respective residences for an observational visit with the children. Some, but not all, collateral persons were contacted for information. Ms. Kirk received a number of documents for consideration, including from the Children’s Aid Society and Waterloo Regional Police Services. She also received copies of the court documents but placed little to no reliance on what was said in same.

[135] In terms of that latter reference, Ms. Kirk indicated she was more interested in what the parties said in the interview process than what lawyers drafted in pleadings and affidavits. I concur with that statement.

[136] A.M.T. complains that not all of her collaterals were contacted by Ms. Kirk. While more information might have been obtained, particularly as to A.M.T.’s character and parenting ability, on my review of all of the evidence tendered at trial, I do not see this complaint as a valid criticism of the report. Indeed, many of Ms. Kirk’s findings were confirmed at trial.

[137] The investigative process, as identified in Ms. Kirk’s report, revealed a number of matters, including the following:

• the children were observed to be attractive, shy, intelligent and with keen sense of humour;

• positive comments were made regarding the relationship between the children and each parent;

• M.A.P. wants to see his mother more frequently, expressing the preference of being with his father one week and with his mother one week;

• E.J.P. stated she would like to have lots of time with her mother as well as lots of time with her father

• both children indicated they enjoyed meeting the art therapist and want to continue this contact;

• the lives of the children were altered significantly following the court order granted November 27, 2014;

• school personnel reported A.C.V.P. to be supportive and cooperative and that the children were settled into the school routines and expectations in their classrooms;

• the school principal complained of A.M.T.’s refusal to change the commencement time for her access to the end of the school day, identifying her actions as being aggressive (a minor point, at best, in my assessment, given the terms of the court order);

• the marital relationship was characterized by a high degree of conflict, inability to resolve issues, mutual abuse and lack of intimacy, seemingly from the time of marriage and certainly after the birth of their children (entirely correct);

• the high degree of conflict continues to date, exacerbated by the maternal grandparents (I say, also, to a lesser extent by the paternal grandparents);

• the Children’s Aid Society, in January 2015, reported the children experienced significant distress and being exposed to heightened conflict, recommending A.M.T. restrict her contact to the times specified in the court order (file was closed as no protection concerns);

• A.C.V.P. has increasingly been able to put the needs of the children before his own, but such is not the case with A.M.T..

[138] Ms. Kirk presented a number of recommendations in her report, including:

(a) sole custody in favour of A.C.V.P.;

(b) supervised access to A.M.T. at a supervised access centre on one day three weekends per month with consideration to unsupervised access after A.M.T. completes a number of programs and has participated in providing transportation for the children to their counselling sessions;

(c) children to continue attending the school in the catchment area of the residence of A.C.V.P.;

(d) parties to communicate by electronic means, suggesting “Our Family Wizard” program;

(e) A.M.T. to continue counselling with Dr. Doherty or another accredited therapist; and

(f) children to participate in a group program whose parents have separated.

[139] There are some shortcomings in the investigation when compared to the evidence at trial, particularly the reliance on information provided by A.C.V.P. and his good friend, A.S., that was not full and complete and, in part, misleading. Otherwise, I consider Ms. Kirk’s findings to be substantially correct. It must be recognized, the investigation and report occurred after the court order in November 2014 significantly altered the parenting regime. Further, Ms. Kirk was a social worker. While she saw issues regarding the conduct of A.M.T. that were of concern, she could not and did not opine as to any mental health issues. Ms. Kirk could not recall seeing the emails of A.M.T. previously referred to. After reading same, Ms. Kirk would only say she was more concerned today about A.M.T. than she was when completing her report in 2015.

[140] Ms. Kirk’s report is of some assistance, limited to some extent as previously mentioned, particularly with the passage of time. Many of her findings remain correct. I note, as well, that both parties have been involved in some programs and with counselling. The children have continued with the art therapist, an obvious benefit given the situation created by their parents and the need for support in coping with same.

[141] Notwithstanding any benefit of this report, a section 30 assessment, in my view, would have been more appropriate.

September 2015

[142] The scheduled access visit for September 2, 2015 did not occur. A.M.T. had arranged a baseball game for this occasion, inviting friends of M.A.P. and E.M.P. to participate. It appears A.C.V.P. and the children had been camping that day. There was some communication between the parties regarding the access exchange. It is not clear why it did not occur. No doubt, the children would have been disappointed as they enjoyed spending time with their mother.

[143] The access exchange on Friday, September 4, 2015 did not go well. As indicative of the increasing hostility and problems between the two families, numerous adults had become involved in access exchanges. On this occasion, A.C.V.P. attended the site with the children. His parents, in separate vehicles, were present as observers. Both of A.M.T.’s parents arrived, also in separate vehicles. Her father, B.T., was to receive the children. Her mother, M.T. was to pick up M.A.P.’s bicycle.

[144] B.T. decided to confront A.C.V.P. about the missed access visit on the prior Wednesday, telling him he was appalled it had not occurred. A.C.V.P. replied, saying they would discuss it later. In response, B.T. said “I will see you Monday”. The access return was to be on Sunday.

[145] The situation escalated. There was a heated exchange between B.T. and A.C.V.P. B.T. proceeded to leave in his vehicle. The mirror on the driver’s door struck A.C.V.P. There is evidentiary conflict as to who caused this contact. B.T. and the children left. The police were called.

[146] Meanwhile, the father of A.C.V.P. decided to enter the vehicle of M.T. to prevent her from leaving. Words were exchanged.

[147] Police officers attended the site, interviewing the adults present. Officers subsequently attended the home of A.M.T. to check on the children. No charges were laid.

[148] B.T.’s explanation for his comment was that he meant to discuss the failed Wednesday visit with A.C.V.P. on the holiday Monday, not that the children would be returned that day.

[149] Regardless as to how this event occurred, it was irresponsible for adults to engage in hostile acts in the presence of the children.

[150] The access visit started out in the usual manner at the home of A.M.T. M.T. was also present to supervise. A.M.T. and M.T. made reference to comments from the children regarding the events on the Friday exchange. In particular, A.M.T. expressed concern for the level of fear shown by them. She decided to seek counselling for the children. A.M.T. called the Women’s Shelter in Stratford on Saturday and was advised there was space available for her and the children.

[151] On Sunday, A.M.T., M.T. and children went to Stratford. When A.M.T. informed the staff at the Women’s Shelter as to the particulars of the court order, she was informed they could not provide services for the children. A.M.T. then took the children to the home of G.P. in Stratford. G.P. was a friend she had met through a church organization. M.T. went home.

[152] A.M.T. said she had contacted the police, informing them she was at the home of G.P. in Stratford with the children.

[153] A.M.T. and the children stayed with G.P. until Wednesday. The police arrived at the residence with a court order to apprehend the children. The children, by then, had missed the first day of school on Tuesday.

Apprehension Order

[154] When the children were not returned on Sunday as scheduled, A.C.V.P. contacted his lawyer. A motion without notice was prepared, along with a supporting affidavit, such being delivered to the court on Wednesday, September 9, 2015.

[155] The material filed was reviewed by Reilly J., in chambers. He granted an order on the following terms:

(a) interim sole custody of the children to A.C.V.P.;

(b) children to be returned to A.C.V.P. immediately;

(c) A.M.T. to have no access to the children until further order;

(d) police to locate, apprehend and deliver the children in accordance with this order;

(e) order granted without prejudice to A.M.T. seeking access with the children by further motion;

(f) motion adjourned to September 16, 2015;

(g) A.C.V.P. to serve A.M.T. with copy of the order; and

(h) A.C.V.P. to serve counsel for A.M.T. with a copy of the order.

Apprehension

[156] There was some indication the police had contacted A.M.T., by telephone, and M.T., at her residence, perhaps prior to the order being granted. In any event, officers attended at the residence of G.P. with the order. The children were taken to the police station. G.P. was also in attendance.

[157] A.C.V.P. and his friend, D.S. were at the police station when the children arrived. The children were upset. M.A.P. approached his father, punching him. A.C.V.P. and the children left, returning to Waterloo.

[158] Of some interest, when M.T. returned home on Sunday she did not inform her husband as to the weekend events. B.T. was unaware the children were in Stratford. He knew something had happened and assumed the children were in a “safe place”.

[159] The conduct of A.M.T., and her parents, cannot be justified on the basis of saying the children required assistance. There are other appropriate methods to pursue counselling, if required. The events described are bizarre, an abduction perhaps, certainly a breach of the court order. Of greater concern is the exposure of the children to unnecessary conflict and turmoil.

More Motions

[160] As mentioned, the motion of A.C.V.P. was adjourned to September 16, 2015. A.M.T. retained a new lawyer and presented a motion for access.

[161] Both motions came before Lococo J. on October 15, 2015. An order, on consent, was granted on the following terms:

(a) questioning of the parties and others, including D.S. and Wendie Kirk (questioning never occurred);

(b) production of third party records from Waterloo Regional Police Services, Children’s Aid Society of Waterloo Region and the Children’s Aid Society of the Counties of Huron and Perth;

(c) sealing court file;

(d) issue of A.M.T.’s access to be argued;

(e) motions adjourned to October 21, 2015;

(f) A.M.T. to have telephone access with the children every other evening pending the return date of the motions; and

(g) A.M.T. restrained from making negative remarks about A.C.V.P. and members of his family during the telephone access, including negative inferences related to the children’s school.

[162] The motions came before Braid J. on October 21, 2015. The focus of this event appears to be the access of A.M.T. Counsel for A.M.T. proposed G.P. as the new access supervisor. G.P. was identified as a friend of A.M.T., the person previously referred to regarding the Stratford incident. The issues were argued. I am unaware of the evidence tendered or the submissions of counsel.

[163] Braid J. granted an order on the following terms:

(a) varying the orders granted by Reilly J. on September 9, 2015 and Sloan J. on November 27, 2015;

(b) awarding interim sole custody of the children to A.C.V.P.;

(c) granting A.C.V.P. authority to make decisions for:

(i) enrollment and schooling;

(ii) extra-curricular activities provided they do not unduly interfere with the access of A.M.T. and

(iii) doctors, dentists and any other medical care;

(d) A.M.T. to have supervised access on alternate weekends and for Christmas;

(e) access to be supervised by G.P., either at the home of A.M.T. or at the residence of G.P.;

(f) A.M.T. or G.P. shall be responsible for driving and transportation for the purposes of supervised access;

(g) A.M.T. to have telephone access with the children on Monday and Tuesday evenings and on Saturday of alternate weekends;

(h) access exchanges to be at the children’s school during the school year, at Tim Horton’s during holidays and summer;

(i) if G.P. becomes unable to supervise access visits, parties shall arrange twice weekly supervised access at Child and Parent Place; and

(j) parents shall not molest, annoy or harass each other and shall not speak badly of one another nor of any schooling or activities in which the children are enrolled.

Supervision by G.P.

[164] G.P. was 73 years of age at the time the supervised access order was granted. She has three adult children and was a retired registered nurse and foster parent. G.P. had known A.M.T. since 2014, meeting her at a church event. She met A.C.V.P. before the order was granted.

[165] Only two access weekends occurred with supervision provided by G.P. The visits did not go well. Unfortunately, nobody bothered to inform G.P. what her role was to be as a supervisor. Further, A.M.T. was determined the visits would occur on her terms despite the clear wording of the order.

[166] G.P. observed a strong bond between A.M.T. and the children. They wanted to be in the company of each other. G.P. was aware A.M.T. wanted to have more time with her children and to normalize the situation. She understood A.M.T. to be a conscientious parent. G.P. was prepared to assist and attended court on October 21, 2015 for that purpose. She agreed to supervise the access visits.

[167] The first access weekend commence on October 23, 2015. A.M.T. and G.P. attended at the school to pick up the children, thereafter driving to the residence of A.M.T. in New Hamburg, after a brief stop to visit with her parents and then to the park.

[168] On Saturday, they took the children to a book store in Linwood. Sunday involved attending church in New Hamburg and skating at the local arena. The children were returned to school on Monday morning.

[169] The second visit was two weeks later. On Saturday A.M.T., her mother, M.T., G.P. and the children had lunch at a restaurant in New Hamburg. It was A.M.T.’s birthday. After lunch, there was a walk to the park and playground. A.M.T. and the children proceeded together, G.P. and M.T. behind. For a brief period of time, G.P. could not see A.M.T. and the children on the walk.

[170] On Saturday evening, G.P. asked A.M.T. for a conversation. A.M.T. replied “nothing good would come from a conversation with you”. A.M.T. subsequently left her residence for several hours. The church service on Sunday was in Stratford at the request of G.P. A.M.T. stayed with the children during the Sunday School class. They returned to New Hamburg. A birthday party had been arranged for E.J.P. with friends and children attending. The children were returned to school on Monday morning.

[171] Throughout both weekends there were numerous arguments between A.M.T. and G.P. It appears G.P. went beyond her role as a supervisor and criticized A.M.T. for a number of matters unrelated to access visits. A.M.T. was less than accommodating, failing to recognize that G.P. had offered to assist and without compensation.

[172] G.P. resigned as supervisor after the second meeting. She prepared a letter explaining her decision, typed by her sister, making critical comments about A.M.T. G.P. intended the letter be sent to the lawyer for A.M.T. For some unexplained reason, it was sent to the lawyer for A.C.V.P. G.P. subsequently prepared affidavits in this case on behalf of A.C.V.P.

[173] G.P. initially offered to assist A.M.T. She had no experience as an access supervisor and was never informed of her duties. G.P. misunderstood her role. Conflict developed. In hindsight, G.P. was not a good choice to supervise. A.M.T., however, made the situation worse by insisting on activities outside the home, contrary to the court order. Unfortunately, no other supervisors were recommended by either party.

[174] With the resignation of G.P., access had to be supervised by Child and Parent Place (“CAPP”), pursuant to the court order.

Child and Parent Place

[175] CAPP provides supervised access services. It is a non-profit agency funded by, and subject to the policies and rules, of the Ministry of the Attorney General. Jennifer McMahon is the program supervisor at CAPP.

[176] The intake process took several months, the Service Agreement being signed by A.C.V.P. on February 1, 2016 and by A.M.T. at some later date. The first supervised access visit occurred in April 2016, some five months after A.M.T. had last seen the children.

[177] A.M.T. attended all scheduled access visits. The children and A.M.T. enjoyed time together. However, CAPP rules were difficult to follow. Often, the children would initiate a conversation about school or other persons. Such was not allowed. Nor was counting in French. Crafts made at the visits could not go home with the children.

[178] CAPP suspended the access visits on two occasions, terminating the agreement in February 2018.

[179] Ms. McMahon acknowledged the CAPP rules were put in place for what she described as a worst case scenario. They are universal in nature and applied to each family. Ms. McMahon also acknowledged CAPP is not a good fit for every family, particularly here, where A.M.T. and the children had contact, by telephone, outside of their system.

[180] Any breach of rules, as referenced in the evidence but not set out herein, was minor and inconsequential. The children were not negatively impacted. But CAPP rules are rigid. Unfortunately, CAPP is the only subsidized service provider available.

[181] Access again was disrupted, not occurring in person for several months.

Another Motion

[182] A.M.T. was not represented by a lawyer for a period of time. She had served a motion regarding access in July 2016. It was adjourned on multiple occasions. After retaining her present counsel, the motion was scheduled for February 16, 2018. A.T.M. was seeking unsupervised access. At this time, the case was on the trial list for the sittings in April 2018.

[183] The motion came before Braid J. Reference was made to an affidavit from G.P., the former access supervisor, and the CAPP records, including a termination letter, being part of the evidence presented on the motion. Braid J. dismissed the motion and awarded costs to A.C.V.P. in the amount of $5,000, payable at $500 per month.

[184] On some of the cheques A.M.T. sent to the lawyer for A.C.V.P., A.M.T. wrote comments such as “payment to my violent cruel abuser to continue being a criminal” (July 2018) or “payment to my violent abuser to continue abuse lying and crime” (August 2018). When challenged on these comments, A.M.T. said she blames A.C.V.P. for being dishonest and for his criminal conduct.

[185] Motions seeking significant changes on the eve of trial are rarely granted. In this case, the motion was ill advised.

By Peaceful Waters

[186] Following the termination of supervised access by CAPP, A.M.T. contacted By Peaceful Waters to arrange similar services. The parties signed the required agreement on March 24, 2018. Access at this facility commenced April 7, 2018.

[187] Supervised access has continued at By Peaceful Waters to the present, with some interruptions. The notes from this agency indicate the access visits have been successful, the children enjoying time with their mother in a better environment than at CAPP. There have been no complaints from A.C.V.P. regarding the visits, save that he would like to have a set schedule.

[188] The problem facing A.M.T. in scheduling visits is the cost. She paid the initial retainer in March 2018. The charge for visits is $65 per hour, plus HST, a considerable expense given her modest income. There was limited contact in the Summer of 2018 for this reason.

[189] More frequent access has occurred since the commencement of trial in September 2018. A.M.T. reports that a friend has provided financial assistance to help cover the expense. At Christmas 2018, the access visit also involved A.M.T.’s parents and brother. It appears all present enjoyed the occasion.

[190] By Peaceful Waters is a more appropriate supervised access centre for this family. The room setting allows better interaction between parent and children. The family can also engage in activities outside the building and some local field trips. A supervisor is always present. The only obstacle in using By Peaceful Waters is the expense.

[191] A.M.T. has requested using individuals to supervise due to this cost. A.C.V.P. has declined to approve her family members and friends.

Telephone Access

[192] Paragraph 4(e) of the order granted by Braid J. on October 21, 2015 permitted telephone access for A.M.T. with the children on specified days and times. A.M.T. understood the order to say such access was not to be supervised. Her interpretation is incorrect as paragraph 4 commences by saying her access to the children will be supervised “as follows”.

[193] Telephone access has occurred regularly as provided in this order for the most part. Some calls have not occurred while others have been terminated by A.C.V.P., or his father, as the time allowed had expired or, in their view, inappropriate topics were being discussed. A.C.V.P. has taken a rigid position in scheduling the calls, only as allowed by the order. This has been somewhat problematic when other activities conflict with the allotted times.

[194] The evidence reveals there have been inappropriate discussions in some of the telephone conversations between A.M.T. and the children, including with respect to public education and homeschooling, vaccinations, spending more time with her and other matters. A.M.T. says it is the children who initiate these discussions and she simply responds. A.M.T. has also initiated conversations on other matters, including access at CAPP and their inappropriate rules or that their father was preventing certain activities occurring. A.T.M. claims to be telling the children the truth.

[195] The explanation of A.M.T. is not reasonable. These topics are adult issues that should not involve the children. As a parent, it is A.M.T.’s responsibility to direct the children to talk about other activities.

Children’s Activities

[196] The children have always been involved in extra-curricular activities, including sports, church groups, field trips and school events. Prior to separation, it was A.M.T. who arranged these activities. After the court order was granted on November 27, 2014, it was A.C.V.P. who was responsible. Children benefit from extra-curricular activities in many respects, physically, socially and emotionally.

[197] The complaint from A.C.V.P. is with respect to A.M.T.’s attendance at the children’s activities since November 2014. He has always been of the view she ought not be present as such was not allowed in the order, being outside her stated access times. A.T.M. is of the opinion there is no prohibition on her attendance and that the purpose of her presence is to support the children in their activity.

[198] Although not part of the motion in February 2018, there was a discussion between counsel and Braid J. concerning the attendance of A.M.T. at the children’s activities. Quite appropriately, Braid J. commented on mother’s right to attend, particularly as such events occur in public and other individuals are present. I note, as well, the evidence of Ms. M.R., the school principal. She reported school policy as welcoming all parents attending children’s activities to demonstrate support by watching the performance but, when a court order is in place, not to interact with the children.

[199] Ms. M.R. correctly addresses the issue. It is not the presence of a parent but, rather, what occurs during the activity. In this case, A.M.T. crossed the boundary on multiple occasions to gain access to the children. Such occurred at M.A.P.’s baseball games, including sitting with him on the player’s bench or engaging E.J.P. in conversations at the nearby playground in the absence of other adults. Similar conduct occurred at the arena when M.A.P. was participating with his school choir. At one baseball game, A.M.T. also confronted A.C.V.P. regarding a telephone access issue, saying she was standing up for their son.

[200] A.C.V.P. went too far in telling A.T.M. she was not allowed to attend the events and in making similar comments to school and other officials. I agree with his position A.M.T. acted inappropriately, but the whole situation could have been handled better, either by involving the lawyers or a motion to address the issue.

[201] Of concern is the impact on the children. M.A.P. is old enough to understand there is a parenting system in place, reporting to Ms. Ferguson, the art therapist, that he feels embarrassed with what happens when his mother attends baseball games and other activities.

Dr. Jugdave

[202] Yajno Jugdave is a family physician in Waterloo. She was initially consulted by A.M.T. in August 2014. A.M.T. was seeking a medical doctor to provide care for herself and the two children. Dr. Jugdave met the children at the first consultation but, due to subsequent events, did not provide health care services for them.

[203] A.M.T. has consulted Dr. Jugdave on a number of occasions, primarily with respect to physical ailments, including a problematic back, iron deficiency, and recently, a parasite infection. The latter matter, said to be relatively common for people working with children, was treated with antibiotic medication. A.M.T. was not allowed to work at school as an education assistant for several months, for public health reasons, returning in early 2019.

[204] A.M.T. also consulted Dr. Jugdave with respect to matters raised in this case. A.M.T. said she requested a referral to a psychologist to address the concerns raised by A.C.V.P. but Dr. Jugdave refused to do so. Dr. Jugdave, however, reported no such request was made.

[205] Dr. Jugdave went on to say A.M.T. appeared to be in good physical and mental health, that she did not observe or hear anything that warranted a referral to a mental health specialist. Dr. Jugdave was aware of what A.M.T. was going through in this litigation, in general terms. She said A.M.T. presented as well together, made good eye contact and was emotional, as expected, when speaking of her children. Dr. Jugdave referred A.M.T. to counselling in 2015 to deal with “coping”. She did not see any signs of depression or anxiety in A.M.T., nor did A.M.T. present as suicidal or with suicidal intentions. Dr. Jugdave considered A.M.T. to be a co-operative patient.

[206] Dr. Jugdave acknowledged that the only information she received was the subjective reporting by A.M.T. A.M.T. did not disclose the emails previously described, nor with other details in this dispute. Dr. Jugdave went on to say that if a patient expresses comments, as in A.M.T.’s emails, she could consider a referral. But when a patient declines to provide disclosure, Dr. Jugdave indicated a doctor will be unable to determine if there are “inner demons” of concern.

[207] This lack of disclosure by A.M.T. is problematic. Had she provided Dr. Jugdave with a complete historical account, as now presented in this case, I am certain Dr. Jugdave would have made the requisite referral.

[208] As a family physician, Dr. Jugdave is not qualified to diagnose or opine with respect to mental health issues. Such doctors have some training, particularly for observations, but they rely on disclosure from a patient as it is well known people can hide or mask underlying problems. In result, the evidence of Dr. Jugdave is of limited assistance.

Counselling – A.M.T.

[209] A.M.T., quite appropriately, sought out counselling services, formally and informally, long before the separation. Problems in the marital relationship motivated A.M.T. to seek help in dealing with the stress. The subsequent litigation compounded her problems.

[210] In 2013, A.M.T. met with Teresa Wiebe, the co-ordinator at Wilmot Resource Centre, reporting an abusive relationship. At the initial meeting, A.M.T. was seeking information. The discussion focused on available options, including staying in or leaving the relationship and available services, such as counselling. A.M.T. consulted Ms. Wiebe on a number of occasions thereafter, in 2014 and 2015, again seeking information as a result of particular events. No counselling services were provided, their discussions limited to options available in the circumstances reported by A.M.T.

[211] A.M.T. also consulted Halyna Doherty, a faith based counsellor. Dr. Doherty has a post graduate degree, completed by extension, as a Doctor of Ministries from Tyndale Theological Seminary in Texas, one of the United States of America. Their initial meeting occurred in May 2014, continuing on a number of occasions until September 2018.

[212] The initial consultation occurred prior to the separation. A.M.T. reported an abusive relationship. She was seeking direction and counselling. Counselling services were provided, continuing after the separation and during the litigation. The focus was on coping and emotional support.

[213] Dr. Doherty was aware A.C.V.P. had raised mental health issues regarding A.M.T. and said such were discussed at length in their sessions. She understood A.M.T. to be despondent but was looking for help to resolve her difficulties. Dr. Doherty did not observe a mental health issue; however, she has no training or qualifications to diagnose or opine.

[214] Counsellors accept the subjective complaints and information provided by the individual. They make no inquiry and do not challenge a client’s report. Their role is to provide assistance and support.

[215] As with Dr. Jugdave, A.M.T. failed to disclose her emails or particulars as to other events. Dr. Doherty, for example, indicated that had she initially seen the emails, it would have caused a “pause”. Further, had she been provided with all of the information about A.M.T., Dr. Doherty said she would have considered a referral to a psychiatrist or psychologist

[216] Kristan Graham-Seymour is a social worker in private practice. She provides dialectical behavioural therapy, described as a set program of modules so that clients can learn and develop skills in mindfulness, interpersonal effectiveness, emotional regulation and distress tolerance. A.M.T. participated in these modules in 2016. Ms. Graham-Seymour reported A.M.T. to be motivated and successful in meeting most of the goals. She indicated a few more sessions would be helpful.

[217] Ms. Graham-Seymour does not diagnose but, as a social worker, has some experience in dealing with clients who have challenges or disorders. She does not seek detailed information, only an historical background check. Ms. Graham-Seymour understood A.M.T. had challenging family dynamics but was unaware of the emails and particulars regarding the various events. She accepts people as they present and focuses on their situation to learn skills for future use.

[218] I am certain A.M.T. has achieved some benefit from these and other counsellors and social workers. She has been involved in a difficult marriage and highly contentious court case. Managing and coping with stress can be difficult. I consider A.M.T.’s efforts to obtain counselling and related services to be a positive step. But such services can only assist if the underlying problems are identified. These individuals did not receive adequate disclosure from A.M.T. This limits success.

Children’s Counselling

[219] Kary-Lynn Ferguson is a registered psychotherapist carrying on practice as an art therapist, particularly for children involved in parental separation. She maintains an office at By Peaceful Waters in Waterloo.

[220] A.M.T. initially consulted Ms. Ferguson in August 2014, expressing concerns regarding the children’s interaction with their paternal grandparents. They discussed methods of talking to the children.

[221] A.C.V.P. contacted Ms. Ferguson later in 2014 and after the court order granted November 27, 2014. Subsequently, he brought the children to meet with Ms. Ferguson. Sessions with the children commenced at that point, initially weekly, and continuing to this date. Ms. Ferguson reported the sessions will continue for some unspecified period of time.

[222] In art therapy, children are encouraged to draw, a self-expression without direction. The purpose is to bring out their emotions. Ms. Ferguson indicated the children adjusted quickly to the program. She described M.A.P. as initially closed off emotionally but, over time, became able to express himself without holding back. E.J.P. was able to express her emotions from the outset, specifically with reference to her parents not being together and not seeing her mother as much as she wants. Both children are said to have a good sense of humour. Ms. Ferguson reports both have progressed in art therapy. She also made reference to their growth due to attending school and making friends.

[223] Ms. Ferguson indicated both parties have been supportive of their children’s involvement in art therapy. She had no concerns with respect to the involvement of A.C.V.P., but had some concern with A.M.T.’s reluctance to attend with the children in her access time. In this regard, A.M.T. said it was important to spend limited access time with the children, particularly as A.C.V.P. refused to accommodate a change in access periods so that she could attend. A.M.T. also brought her parents to a meeting with Ms. Ferguson which was said to be less than helpful.

[224] Ms. Ferguson reported the children in the initial sessions to be grieving the loss of their mother. Both children have clearly expressed a desire to see their mother more often. They do not indicate any fear of her. Over time M.A.P. has become more accepting of whatever happens.

[225] The children are aware of their parents’ conflict, reporting on arguments. M.A.P. is more reluctant to discuss the topic but has told Ms. Ferguson the process of supervision was not being followed. M.A.P. has spoken to Ms. Ferguson about parental conflict at his baseball games and his embarrassment when such occurs. The child has expressed an understanding that his mother is not supposed to be attending these activities.

[226] Of some concern is the information being given to the children about court proceedings, an adult issue. This could only be coming from one of the parties.

[227] M.A.P. and E.J.P. have suffered greatly from their parents’ separation, the conflict within the family and the change in the parenting regime. Therapy is an obvious need to address the children’s emotional well-being. The fact such therapy has continued for the past four years, and into the future, reveals a serious problem within the family. As is often the case, it is the children who are penalized by parental conduct and conflict. Ms. Ferguson’s involvement is seen as a positive step in the children’s development.

School

[228] After the court order was granted on November 27, 2014, A.C.V.P. attended at the public school in the catchment area of his parents’ residence. He met with M.R., who was then the school principal. Ms. M.R. has recently retired. The children were registered to attend this school. Ms. M.R. decided to gradually introduce the children to the school program as they had been involved in homeschooling previously.

[229] C.K. was the teacher assigned to M.A.P.’s class in 2016-2017 and 2017-2018, M.C. was the teacher assigned to E.J.P.’s class in 2017-2018. Both teachers spoke well of the children, describing them as good students, performing well academically and well behaved. No problems have been identified with respect to either child.

[230] These teachers have met A.C.V.P. and A.M.T. at parent teacher interviews. Both parents are said to have acted appropriately, expressing an interest in the children’s performance. No concerns were expressed regarding either parent.

[231] I consider the evidence from the teachers to be important. Frequently, problems at home surface at school. Here, there are no behavioural problems. Report cards reveal excellent academic performance. M.A.P. and E.J.P. are obviously mature for their age. This speaks well of both parents, perhaps specifically of A.C.V.P. as the primary parent since November 2014 and responsible for the school attendance.

[232] The aforementioned court order specified Wednesday access to start at 3:30 p.m. The school day ends at 3:40 p.m. Ms. M.R. was most critical of A.M.T. for declining her request to change the commencement time to 3:40 p.m. She felt this was an oversight by the judge. Ms. M.R. did not speak to A.C.V.P. about adjusting the access times.

[233] Ms. M.R. was familiar with court orders, seeing them from time to time with respect to other children. She had no authority to change an order and her criticism of A.M.T. was inappropriate. A more reasonable approach would have been to suggest to both parents that they speak to their lawyers about seeking an amendment to the order.

R.F.

[234] R.F. is the present girlfriend of A.C.V.P. They met at a church Christmas dinner in 2016, commenced dating several months later and plan to marry in the near future. R.F. is 28 years of age and is employed as an early childhood educator. She lives with her parents in St. Clements.

[235] It appears R.F. has a good relationship with the children M.A.P. and E.J.P. She sees them in church on Sundays and visits at their home. R.F. describes the children as well behaved and says they take direction appropriately from their father and other adults. R.F. participates in activities with both children. She says the children understand she is their father’s girlfriend, not their mother. R.F. reports the children to love their mother but, on occasion, are stressed from the family situation.

[236] Of some interest, A.M.T. approached R.F. outside the courtroom during the trial, introducing herself and offering her hand. A.M.T. spoke well of R.F. saying, for example, that R.F. has been a positive influence in assisting E.J.P. with her dietary restrictions.

[237] Going forward, it appears R.F. will be a positive influence for the children.

Other Matters

[238] There were several other witnesses who provided helpful evidence. A brief review is warranted.

[239] M.F. is a private daycare provider in Waterloo. She provided before and after school daycare services, at the request of A.C.V.P., for M.A.P. and E.J.P. from January 2015 to April 2018. She described the children as well behaved. They followed her instructions and did not present with or cause any problems.

[240] C.G. is involved in the Stratford Homeschool Group. She is a certified professional accountant, serving the group as chair of the finance committee and as a class instructor. C.G. was involved with A.M.T. and the children for several years. She described A.M.T. as a great member of the homeschool group and a good and well prepared instructor. The children did well in the classes lead by C.G. C.G. also had interaction with A.M.T. outside of homeschooling. She observed A.M.T. to be a caring mother, responsive to her children’s needs and engaged in the children’s activities.

[241] E.A. is a lawyer in Kitchener. She retained A.M.T. as a nanny for her children from February 2016 to October 2016 and from October 2017 to September 2018. E.A. reported that A.M.T. provided excellent childcare in all respects. She considers A.M.T. to be a friend. E.A. was aware of the family situation of A.M.T. and has been supportive of her efforts in this case. She indicated A.M.T. never spoke of her situation in the presence of her children and that A.M.T. never referred to A.C.V.P. in a disrespectful manner.

[242] In prior topics I made a brief reference to R.T., brother of A.M.T. While supportive of his sister, what stood out was the fairness, in large measure, in his testimony. He was respectful of A.C.V.P., referring to him as very polite and gentlemanly on the first meeting in 2005. R.T. also made reference to observing equal child care responsibilities when the children were young and that M.A.P. was very close to A.C.V.P. The children, he said, were always well behaved. He has enjoyed spending time with them.

[243] Although the separation was difficult for all concerned, when R.T. attended the meeting on May 19, 2014 he did not take sides. Rather, he tried to support both parties in achieving a resolution. Court cases, particularly when involving high conflict, can divide families. This has impacted R.T., as expected; however, this is an uncle who has a role to play and should be involved with M.A.P. and E.J.P. in the future.

Matrimonial Home

[244] At some point in the marriage, the parties purchased a residence in New Hamburg. On May 19, 2014, A.C.V.P. vacated the matrimonial home and moved to the residence of his parents in Waterloo. Since November 11, 2014, the children have also resided with him in this home. A.M.T continued to occupy the matrimonial home after separation, paying the mortgage and other household expenses.

[245] This arrangement continued until 2016. For a considerable period of time, A.M.T. did not have a lawyer. The court case was not moving forward for reasons unknown. A.C.V.P. decided to pursue the sale of the jointly owned matrimonial home. A motion for that purpose was presented in court on September 23, 2016. A.M.T. says she was never served with the motion but attended in court that day having received a telephone call from someone at the courthouse advising her of the event.

[246] A.M.T. opposed the request to sell the matrimonial home. She wanted to keep it for the children, no doubt expecting they would be returned to her care. A.M.T. said the process was unfair, not having time to prepare responding material or to adjourn the motion for that purpose.

[247] After hearing submissions from counsel for A.C.V.P. and from A.M.T., Campbell J. granted a final order on the following terms:

(a) matrimonial home to be listed for sale immediately;

(b) dispensing with the consent and signature of A.M.T. on any documents pertaining to the sale or closing of the transaction;

(c) A.M.T. to pay all costs associated with the clean-up of the property;

(d) A.C.V.P. to have exclusive possession, A.M.T. to vacate the matrimonial home forthwith;

(e) sheriff to enforce the terms of the order;

(f) order stayed for 10 days to allow A.M.T. to vacate the property;

(g) net sale proceeds to be held in trust pending resolution of this matter;

(h) costs of motion awarded to A.C.V.P. in the amount of $9,750, plus HST, payable from A.M.T., one-half share of the net sale proceeds after closing.

[248] The matrimonial home was subsequently sold. The net sale proceeds of $163,381.80 were held in trust until the parties negotiated a resolution of the property issues on September 19, 2018, the first day of trial.

[249] A.M.T. vacated the property in the specified time period and moved to the residence of a friend. In October 2017, she obtained her present rental townhouse in Waterloo.

Analysis

[250] Rule 2, Family Law Rules, in part provides as follows:

(2) PRIMARY OBJECTIVE – The primary objective of these rules is to enable the court to deal with cases justly.

(3) DEALING WITH CASES JUSTLY – Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) DUTY TO PROMOTE PRIMARY OBJECTIVE – The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[251] This case has been mismanaged from the outset. It took far too long to be tried. Proper steps were not taken. Evidence was not obtained that is necessary for a determination. Compliance with Rule 2 was ignored.

[252] I understand the litigation advantage to a custodial parent and the corresponding prejudice to an access parent resulting from delay. I appreciate mother did not have a lawyer for a long period of time. But when the case involves children, litigants and their lawyers have an obligation to move a case forward in an expeditious manner. Delay makes a decision more difficult. More importantly, children suffer while they wait an outcome.

(i) Divorce

[253] The applicant seeks a divorce. The evidence tendered complied with the requirements of the Divorce Act. A divorce is granted.

(ii) Parenting

[254] The children are healthy and are doing well in school. They enjoy time with each parent. The child and parent bonds are strong.

[255] The children’s lives have been subjected to unnecessary turmoil and conflict. Yet they appear to have accepted their situation, perhaps on the realization they have no control. They are still grieving the loss of their mother, resultant from events in November 2014. They want to spend more time with her, as acknowledged by A.C.V.P. In 2015, the children expressed strong views to Ms. Kirk, the clinical investigator with the Office of the Children’s Lawyer in this regard.

[256] But it is now 2019, almost five years since separation and four and a half years since the parenting regime was put in place by court order.

(a) Legislation

[257] The relevant legislation is section 16 (1), (8), (9) and (10), Divorce Act and section 24 (1), (2), (3) and (4), Children’s Law Reform Act, as follows:

16. ORDER FOR CUSTODY – (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

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

(9) PAST CONDUCT – In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

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

24. MERITS OF APPLICATION FOR CUSTODY OR ACCESS – (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) BEST INTERESTS OF CHILD – The court shall consider all the child’s needs and circumstances, including:

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

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

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application.

(3) PAST CONDUCT – A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

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

(a) his or her spouse;

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

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

(d) any child.

(b) Status Quo

[258] Status quo is always a relevant consideration, perhaps less so with the passage of time. Parents are presumed to have equal status and neither has the right to make unilateral changes, absent special circumstances, agreement or court order. See: Rifai v. Green, 2014 ONSC 1377. A.C.V.P. did act unilaterally at the time of separation and commencement of litigation. The circumstances had not changed prior to these events. But he was successful in obtaining the initial court order for custody in November 2014.

[259] Status quo is neither a rigid concept nor a short term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.

[260] Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gerbert v. Wilson, supra.

[261] During the relationship, the family resided together in the matrimonial home. Each parent had child care duties. A.M.T., however, was the primary parent in day to day matters, arranging health care and activities and in homeschooling. The role of A.C.V.P. was secondary given his employment, providing child care subject to availability.

[262] The situation changed on separation. From May to November 2014, A.C.V.P.’s role diminished. He became an access parent with limited child care responsibilities. A further change, dramatic in nature, occurred in November 2014. A.C.V.P. became the primary parent by court order. A.M.T.’s role was reduced significantly, now only seeing the children on a limited basis.

[263] The passage of time, despite being unnecessary and unreasonable, must be considered from the children’s perspective. Both parties are responsible for the delay. In this regard, I am not persuaded the status quo during the relationship is determinative. Nor do I conclude a new status quo was created. Nevertheless, the four plus years in the care of A.C.V.P. is a factor under section 24 (2) (c).

(c) Joint Custody

[264] In May 2014, A.C.V.P. created the separation. The circumstances surrounding the meeting on May 19, 2014 must be condemned in the strongest terms. Withholding the children, forcing a meeting and having his advisors improperly influence A.M.T. show a complete disregard for the best interests of M.A.P. and E.J.P. A.C.V.P sought control.

[265] It is of some interest that A.C.V.P. was then seeking a joint shared custody regime. He did so with full knowledge of A.M.T.’s purported mental health issues. Despite the methods used, such a parenting arrangement may have then been appropriate, particularly having regard to the views and preferences of the children, as expressed to the clinical investigator a year later.

[266] When he did not achieve his goal, A.C.V.P. pursued this litigation, seeking complete control.

[267] There was obvious conflict in the relationship for many years, perhaps from the beginning of their marriage. Despite similar views, particularly in their faith, arguments were many, escalating after the birth of the children. Communication declined on separation and has been problematic to the present. There is no longer any level of respect for each other on a personal basis or as parents. The grandparents have exacerbated the situation.

[268] Joint parenting is of obvious interest from the perspective of the children. For such a regime to be successful, the parents must have a desire and ability to make it work. There must be a reasonable level of co-operation and communication, not necessarily perfect but certainly sufficient to ensure the parental focus is the children. There must be confidence in the ability of parents to work together to make appropriate decisions for the children and avoid hostility and turmoil. See: Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont.C.A.); and Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50 (Ont.C.A.).

[269] There is no evidence to remotely suggest joint custody would be feasible. Not only is there conflict between the parties, they continue to have different views on matters pertaining to the children, including education and health. Both of the parties are controlling and opinionated and disrespectful of the other in general and in regards to parenting roles in particular. Joint custody cannot be considered in this case.

(d) Custody

[270] Both parties seek an order for sole custody. It is not in dispute, the children love each parent and want to spend more time with their mother than currently exists.

[271] The interim interim without prejudice order granted on November 27, 2014 ought to have been reviewed on a more complete evidentiary record in early 2015. At the very least, the trial ought to have taken place in the Fall of 2015. A decision then may well have been different. I cannot ignore the reality of the situation, the passage of time and the events that have occurred since the litigation commenced.

[272] Despite my criticism of the conduct of A.C.V.P. regarding the circumstances pertaining to the separation, the meeting and the commencement of this case, the focus is now on the best interests of the children going forward.

[273] A.C.V.P. has strictly followed the terms of temporary orders. In my view, he could have done better in access arrangements but he did ensure the children saw A.M.T.

[274] The compelling factor is the conduct of A.M.T. since November 2014. Regardless as to whether there are any mental health issues, she has not complied with court orders, frequently misinterpreting them in her favour. Such matters include:

(a) taking M.A.P. to the police station on the first access visit;

(b) returning the children late, being unable to take charge as a parent;

(c) discussing adult issues with the children, such as education and this case;

(d) difficulties with supervisors;

(e) taking the children to Stratford rather than returning them to father; and

(f) using the children’s extracurricular activities as a means to gain additional access.

[275] Court orders are not proposals, recommendations or suggestions. They are commands. Parties are required to comply with them. See: Chapel v. Hillock, 2015 ONSC 4168. A parent has an obligation to do what is necessary and to actively require the children to comply with the terms of the court order by explanation, exhortation, inducement, entitlement and the threat of discipline. See: Purcaru v. Purcaru, 2010 ONSC 4031. The explanations offered by A.M.T. for her failure to comply, including delay in preparing the children to return, are neither reasonable nor satisfactory.

[276] The children were caught in the middle of their parents’ conflict. Separation was disruptive to them, compounded by the commencement of this case. The actions of A.M.T. has made the situation worse. She fails to understand the impact of her conduct on the children. At the very least, she has put the children’s emotional health at risk.

[277] There is no evidence to suggest the children are at such risk with A.C.V.P. Concerns regarding his abusive conduct directed at A.M.T. during the relationship no longer exist. Nor is there any suggestion of inappropriate physical discipline or contact with the children since 2014. The evidence of the teachers is compelling. The children adapted quickly to the school routine. They are doing well academically. There are no behavioural issues. This evidence speaks well as to both parents but, more importantly, addresses the past four years of father’s care and control.

[278] A.C.V.P. has demonstrated a willingness to support A.M.T.’s role as a parent in the lives of the children. He could have done better in terms of arranging access. Of some interest, he has done so during this trial. The conduct of A.M.T., on the other hand, and despite her protestations, shows she does not similarly support A.C.V.P. This has, and will have, a significant impact on the children. They not only need both parents to be involved in their lives, they need to know that each parent supports the other.

[279] The children’s views and preferences as expressed to the clinical investigator reveal a desire for more time with mother. Such does not impact on the custody decision alone.

[280] Having regard to the best interests of the children, as discussed throughout these reasons, only one parent can be the decision-maker going forward. Sole custody is awarded to A.C.V.P.

(e) Access

[281] Returning to the children’s views and preferences, they want, and need, more time with their mother. The difficult issue now is how to accomplish that goal of maximum contact.

[282] The access of A.M.T. has been supervised since November 2014. Supervised access, as a general rule, is normally meant to be temporary, designed to resolve any particular issues, and not as a long term remedy. There may be cases where supervision ought continue or even where access should be terminated. The standard is always the children’s best interests: See: M. (B.P.) v. M. (B.L.D.E.), supra; Jennings v. Garrett (2004), S.R.F.L. (6th) 319 (Ont.S.C.J.); Merkand v. Merkand 2006 CarswellOnt. 712 (Ont.C.A.); and Zambito v. Zambito, 2012 ONSC 576.

[283] The temporary orders in this case have imposed supervision as a term of mother’s access. As previously discussed, there have been problems with supervision, or perhaps as to who the supervisor was, such as the parents of A.M.T. and with G.P. Supervision by CAPP was not appropriate for this family. Supervision at By Peaceful Waters, by all accounts, has gone well and has been a more positive experience for the children.

[284] A.M.T. takes the position supervision is not required, relying on the analysis in Caputo v. Caputo, 2014 ONSC 1639. In that case, the court accepted the evidence from a family doctor that there were no signs or symptoms of ongoing mental health pathology and that the parent was complying with the treatment plan. Unsupervised access was granted, thus removing the prior supervision term as required in temporary orders.

[285] The Caputo decision is clearly distinguishable. While it was the family doctor who testified at trial regarding his observations, there already existed a diagnosis for bipolar type 2 affective disorder. Such a diagnosis could only have been made by a medical specialist. Here, there is no diagnosis. The observations of Dr. Jugdave are thus limited in scope.

[286] I am of the view supervision of some form must continue. In this regard, the compelling feature in this trial was the absence of evidence regarding the issue of A.M.T.’s mental health. The primary dispute was with parenting. As the focus is on the children, I conclude both parties have the onus of presenting evidence on this issue. The reality, however, is that A.M.T. cannot succeed in her request for custody or unsupervised access unless medical opinion evidence is tendered.

[287] The motions judges were concerned with the various emails and other communications authored by A.M.T. Those concerns continue. She made disturbing comments regarding depression and ending her life. Her explanation cannot be compelling in the absence of a medical opinion. It is beyond my ability to reach any conclusion as to the state of her mental health.

[288] The best interests of the children test necessitates consideration of a parent’s mental health. Any difficulties a parent may be experiencing can, in all likelihood, impact on the child. There is no suggestion the children are at physical risk in mother’s care. Emotional risk is unknown. The communications of A.M.T., together with the various events as previously discussed, must be addressed.

[289] I am not prepared to move to unsupervised access until medical opinion evidence regarding the status of A.M.T. is presented.

[290] Accordingly, the access of A.M.T. will continue to be supervised.

[291] Submissions did not address who the supervisor should be for A.M.T. I do not consider CAPP to be appropriate in this case. By Peaceful Waters, I expect, would be satisfactory, but the expense is of concern. Expense might also limit the amount of time for her access. It would be preferable to have an individual as the supervisor, someone knowledgeable and able for the task. This excludes the parents of A.M.T. But I was favourably impressed by her brother, R.T. There may be others. Perhaps a combination of By Peaceful Waters for some visits with an individual for others would be appropriate.

[292] I request counsel to confer with each other on this issue. If the parties cannot agree on a supervisor(s) then I will require written submissions, at the very least. I will provide further direction once I hear whether the issue is resolved or not and whether submissions are sufficient or if further evidence is required.

(f) Psychiatric Assessment

[293] A.C.V.P. seeks a term in the final order requiring A.M.T. to obtain and deliver a psychiatric assessment. A.M.T. opposes that request.

[294] The court has jurisdiction to direct such an assessment under section 30, Children’s Law Reform Act, and/or section 105, Courts of Justice Act. See, also: Jennings v. Garrett, supra; Merkand v. Merkand, supra; Young v. Young, 2013 ONSC 4423; and Kucan v. Kucan, 2017 ONSC 6725. There must be sufficient evidence to establish the necessity of such an assessment. See: Children’s Aid Society of London and Middlesex v. B. (C.C.) (Ont.S.C.J.).

[295] The position advanced on behalf of A.M.T. is that the evidence of Dr. Jugdave, the counsellors and other witnesses called by her, ought satisfy the court. No ongoing mental health issue is said to be present. The submission is rejected. None of these witnesses had been provided with full disclosure by A.M.T. When shown the communications of A.M.T., most expressed concern.

[296] There is, in my view, ample evidence to support the requirement of a psychiatric assessment, as previously discussed. Indeed, this is a case where a section 30, Children’s Law Reform Act, assessment ought to have been requested at the outset. The communications of A.M.T. and her conduct are troubling. It is in the best interests of the children to determine if there is an underlying mental health issue or not. The court cannot be asked, in effect, to make a diagnosis. Nor can it ignore the evidence that was presented.

[297] In these circumstances, I conclude a psychiatric assessment of A.M.T. is warranted. I have considered, and rejected, a section 30 assessment involving both parents and the children. There is no evidence to support the necessity of subjecting the children to such a process. They appear to be doing well or, at least, as well as can be expected in the situation. There are no behavioural problems. Despite my concerns as to the past conduct of A.C.V.P., there is no evidence to suggest he has any problems at present that would necessitate further inquiry.

[298] In result, A.M.T. is directed to arrange and attend for a psychiatric assessment on the terms set out at the conclusion of these reasons.

[299] Further, I am of the view there ought be a fixed date to review the access terms of the order granted, rather than require a motion to change, once the psychiatric assessment report is obtained. My inclination is to suggest the matter be returnable before me at the September or November 2019 sittings, or such other date convenient to the parties, counsel and the court. Before so doing, I request submissions from counsel in this regard as I am not aware as to the time needed for A.M.T. to obtain an assessment report.

(iii) Support

[300] I am not persuaded there is a retroactive support issue. A.C.V.P. did not pay either child or spousal support between May and September 2014. His payments then commenced and continued for some time despite the custody order in November 2014. Thereafter, there was little difference between the parties’ support obligations, as conceded by counsel at the time of the February 2018 motion. I will only address prospective support.

[301] A.M.T.’s income in 2018 was approximately $25,500, the income of A.C.V.P. for that year being $85,000.

(a) Child Support

[302] Given the parenting terms of the order granted, A.M.T. is obliged to pay guideline child support to A.C.V.P. That amount is $384 monthly. It will commence April 1, 2019.

[303] A.M.T. is also required to contribute to the section 7 extraordinary expenses on a proportionate basis. At present, that would be 23 per cent.

(b) Spousal Support

[304] I am satisfied A.M.T. is entitled to a spousal support award on both a compensatory and non-compensatory basis. Her current employment skills were acquired prior to separation, if not prior to marriage. While there is some likelihood of increasing her earnings by pursuing full-time employment as an educational assistant, A.M.J.’s income is modest. She was a stay at home mother for some time. A.C.V.P. was the income provider for the family. Certainly, A.M.T. has been impacted by the economic consequences of the separation.

[305] The spousal support advisory guideline provides a range between $444 and $592 monthly. In the draft orders accompanying their written submissions, both counsel suggest the monthly amount of $400. They also agree such award should be time limited. In result, A.C.V.P. is directed to pay A.M.T. spousal support in the monthly amount of $400, commencing April 1, 2019 to and including March 1, 2021.

Summary

[306] For the reasons herein, a final order is granted on the following terms:

1. A divorce;

2. The applicant father shall have sole custody of the children M.A.P. and E.J.P.;

3. The respondent mother shall have supervised access with the children (Note: further submissions required before term is finalized);

4. The respondent shall, within 30 days, arrange a referral from her personal physician to a qualified psychiatrist for the purpose of obtaining a diagnosis, if any, regarding her mental health and a written report in this regard, including any treatment plan. The respondent shall deliver to the psychiatrist prior to the initial consultation a copy of the report of The Children’s Lawyer, dated July 8, 2015 and a copy of these reasons. The respondent shall also deliver to the psychiatrist a written direction, including on any prescribed from under the relevant statutes or regulations, to delivery such report to counsel for the applicant and to the court;

5. The issue of the respondent’s access shall be reviewed (Note: further submissions required before term is finalized);

6. The respondent shall have telephone access with the children on Monday of each week, or such other day as may be agreed, provided such does not conflict with the children’s activities and, if it does, on a different day. Such telephone access shall be for a duration of 45 minutes, the respondent to call at 7:15 p.m. The respondent is restrained from discussing adult issues with the child or children, including, but restricted to, the children’s residency or their degree of contact with her. The telephone access may be supervised by the applicant.

7. The applicant shall have uninterrupted time with the children for three weeks each year, consecutive or non-consecutive but provided the consecutive weeks shall not exceed a period of 16 days. The weeks shall run from 3:30 p.m. Friday to 8:00 p.m. the following Sunday (9 days). The scheduling of the three weeks of uninterrupted time for the applicant shall be made at the applicant’s sole discretion. The applicant shall give the respondent 30 days’ notice of the week or weeks selected by him. During the applicant’s uninterrupted time with the children the respondent’s telephone access shall not be suspended. In giving notice, the applicant shall provide a telephone number to the respondent to call for such telephone access;

8. The applicant shall have the children in his care on Father’s Day each year for the full day;

9. Subject to the availability of a supervisor, the children shall be in the care of the respondent on Mother’s Day for a period of three hours;

10. The applicant shall keep in his safe possession the important documents relating to the children, including health cards, passports, birth certificates and so forth and shall provide a certified copy of each document to the respondent within 30 days;

11. The parties shall forthwith register for Our Family Wizard and utilize same to communicate with one another on all matters concerning the children. All of the children’s appointment and schedule for activities shall be posted to the calendar as soon as same are known;

12. Both parties shall keep each other informed of their current contact information, including address, telephone number (land line, cell and emergency contacts) and email address;

13. Both parties shall have the right to request and receive information from all third party service providers involved with the children. The applicant shall keep the respondent informed of such third party service providers, including what the services may involve;

14. Neither party shall disparage the other or members of the other’s family to or in the presence of the children nor shall either party allow others to do so;

15. The applicant may travel outside of Ontario with the children without the consent of the respondent. He shall provide the respondent with a detailed itinerary of the travel plans as well as contact information;

16. The respondent may attend the children’s extracurricular activities, including sports and school functions where family members are welcome, but shall not contact or speak to the children, nor be involved in the activity, without the consent of the applicant;

17. Pursuant to section 36(2), Children’s Law Reform Act, the police force having jurisdiction where the child or children may be found shall be directed to locate, apprehend and deliver the child or children to the parent entitled to custody or access in accordance with this order, which direction shall remain in effect until further order of the court;

18. Commencing April 1, 2019, the respondent shall pay child support to the applicant for the support of the children, M.A.P. and E.J.P., in the monthly amount of $384 in accordance with the Child Support Guidelines and based on her estimated 2018 income of $25,500;

19. The parties shall share the children’s extraordinary expenses, as defined by section 7 of the Child Support Guidelines, in proportion to their incomes, subject to the governing provisions of section 7. The applicant will pay 77 per cent, the respondent 23 per cent of the after tax section 7 expenses on their respective estimated 2018 incomes of $85,000 and $25,500;

20. Neither the applicant or the respondent shall incur an expense, for which he or she expects reimbursement under section 7 of the Child Support Guidelines, without first advising the other party in advance and in writing with supporting verifying documentation and obtaining the other party’s written approval, such approval not to be unreasonably withheld. Proof of payment for the expense shall be provided to the other party. Payment of the other party’s proportionate share shall be made within 30 days of receiving the documentation;

21. Both parties shall obtain and maintain extended health and dental benefits for the children, for so long as there is a support obligation, as may be available through his or her employment. Plan and coverage details shall be shared and exchanged. Claims shall be submitted forthwith and reimbursement received shall be distributed appropriately and forthwith on receipt. Both parties shall cooperate with each other to maximize the benefits available to the children;

22. Both parties shall maintain the full amount of life insurance coverage as may be available through their respective employment, naming the children as irrevocable beneficiaries and the other party, or another adult of their choice, as trustee, for so long as there is a child support obligation by one of them;

23. Commencing on June 1, 2019 and on June 1st each year, the parties shall exchange their personal income tax returns, with all schedules and attachments and, when available, their notices of assessment and re-assessment, and the monthly child support and proportionate sharing of section 7 extraordinary expenses, but not spousal support, shall be adjusted in accordance with the Child Support Guidelines effective July 1st each year;

24. Commencing April 1, 2019 the applicant shall pay spousal support to the respondent in the monthly amount of $400 to and including March 1, 2021, at which time spousal support will forever terminate;

25. Unless this order is withdrawn from the Director’s office, at the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[307] Given the terms of the partial minutes of settlement, I anticipate the parties will resolve the issue of costs; failing which, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days of the release of this decision.

D.J. Gordon J.

Released: March 11, 2019