COURT FILE NO.: 25-2015D DATE: 20190424

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Vanessa Vandenberg E. Cohen, for the Applicant/Moving Party Applicant/Moving Party

- and -

Simon Desjardine W. Clayton, for the Respondent/Responding Party Respondent/Responding Party

HEARD: November 28, 2018

Summary Judgment Motion

Judgment

Templeton J.

Background

[1] Vanessa Vandenberg and Simon Desjardine were married on August 29, 2010. Their son James was born on July 29, 2011 and their daughter Lexi was born on February 7, 2013. The parties separated on January 2, 2015 and were divorced in February this year. James was 3½ years old and Lexi was 23 months old at the time of the separation.

[2] On January 2, 2015, a supervisor at the daycare James attended noticed a red swollen mark on James’ lower lip. James told her that his father had “stomped” on his head. The CAS and the police were contacted as required with respect to this allegation of child abuse. The Applicant was then interviewed. Ultimately, the Respondent was charged under the Criminal Code of Canada with thirteen counts of assault with respect to the Applicant; one count of assault with respect to the child James; three counts of uttering threats; and, three counts of mischief under.

[3] The time frame of these criminal charges ranged from August 6, 2012 to and including December 31, 2014. In three of the counts of assault on the Applicant, the Respondent was charged that (a) on August 8, 2012 (when James was 13 months old and Lexi was not yet born), he grabbed the Applicant by her hair and ripped a clump of her out of her head; (b) on September 30, 2012 (when James was 25 months old and Lexi was not yet born), he grabbed the Applicant by the hair and pulled her by the hair; and, (c) on May 21, 2013 (when James was 22 months old and Lexi was 3 months old), he grabbed the Applicant’s hair in his hand and proceeded to pull it out of her head. These were the only charges that related to allegations that the Respondent had pulled the Applicant’s hair [^1]. The significance of these dates is considered below.

[4] Ms. Vandenberg commenced an application in this Court on February 18, 2015 seeking a divorce, sole custody of the children, support for herself and the children, payment by Mr. Desjardine of section 7 expenses, a restraining order, equalization of their net family properties, exclusive possession of the contents of the matrimonial home, a sale of the family property, freezing of the parties assets, and valuation of the corporation.

[5] The litigation then exploded into a toxic and high conflict confrontation between the parties who, in my view, still appear completely unable or unwilling to reach a compromised solution.

[6] Unfortunately, the children did not see their father after January 2, 2015 for over a year. In February 2016, he was able to exercise access to the children supervised by his mother. A few months later, the parties agreed to a third-party professional access supervisor for the visits between the children and their father.

[7] In July 2016, Brayden Supervision Services Inc. (“Brayden”), a private agency, assumed supervision of the access and continue to supervise to date [^2].

[8] The motion before me is a motion by Ms. Vandenberg for Summary Judgment with respect to the issues of custody, primary residence, decision-making authority, communication with third parties, access and enforcement of the orders.

[9] In addition to multiple sworn affidavits filed by both of the parties, the evidence before the Court contains detailed supervision notes from Brayden; an Assessment Report dated May 7, 2018 and prepared by Dr. Louise Sas in compliance with a Court order pursuant to s. 30 of the CLRA; and, Ontario Provincial Police records.

[10] Further, the evidence on this motion includes transcripts of cross-examinations by counsel of both Ms. Vandenberg and Mr. Desjardine; Dr. Louise Sas; and, Crystal Hawkins, an employee of Brayden.

The Test for a Summary Judgment

[11] If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly [^3].

[12] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(a) weighing the evidence; (b) evaluating the credibility of a deponent; (c) drawing any reasonable inference from the evidence [^4].

[13] The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. The party responding to the motion may not rest on mere allegations or denials but shall set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial [^5].

The Positions of the Parties

[14] It is the position of the Applicant that the evidentiary record before the Court is complete and is more than sufficient to determine the issues of custody and access by way of summary judgment.

[15] This body of evidence includes the Continuing Record containing numerous sworn affidavits from both of the parties; access supervision notes; school report cards for both children; WAGG Motion materials; a CLRA Section 30 report dated May 7, 2018 providing an assessment and report to the Court with respect to the needs of the children and the ability and willingness of the parties or either of them to meet satisfy those needs; a transcript dated October 9, 2018 of the cross-examination of the Applicant by counsel for the Respondent; a transcript dated October 26, 2018 of the cross-examination of the Respondent by counsel for the Applicant; a transcript dated May 5, 2017 of the cross-examination of the Respondent by counsel for the Applicant; a transcript dated May 16, 2017 of the cross-examination of the Respondent by counsel for the Applicant; a transcript dated October 11, 2018 of the examination of Crystal Hawkins by counsel for the Respondent; a transcript dated November 22, 2018 of the cross-examination of Dr. Louise Sas by counsel for the Respondent.

[16] The Applicant submits that the expanded statutory powers referred to in Rule 16 of the Family Law Rules provide for the just and equitable determination of family law issues without the necessity of the traditional trial.

[17] It is the Respondent’s position that notwithstanding the principles outlined in Hryniak v. Mauldin [^6] and Rule 16 of the Family Law Rules, this is not an appropriate case for summary judgment. The Court’s decision in Hryniak was not intended to overrule the caselaw regarding the use of an assessment report or the weight to be given to an assessment report prior to trial.

[18] To award relief without the parties having testified before the Court would deprive the Court of the opportunity to observe the parties. There is a lot of conflict on the evidence. The dynamic of being in an open Court and being heard is necessary in this case. There are complex trial issues.

The Evidence and Analysis

[19] I do not intend to review all of the evidence in detail in this decision but it is important for the parties to be made aware that since the hearing of the motion, I have read the entire Continuing Record, all of the transcripts, all of the reports and the entirety of all other evidence filed in this proceeding. This evidence consists of over 4000 pages.

[20] Before I continue, however, it is also important to deal with two issues raised by the Respondent at the hearing.

(a) The Applicant’s Affidavit in Reply dated October 19, 2018

[21] Firstly, I agree with the Respondent that subrule 14 (20) of the Family Law Rules permits a party making a motion, to serve evidence in reply in the context of Rule 14 which deals with motions for temporary orders whereas Rule 20 which deals with summary judgment does not include such a provision. A summary judgment is not a temporary order. It is a final order. Rule 14 does not apply to summary judgment proceedings.

[22] Rule 20 (4) defines the evidence required from the moving party in a summary judgment proceeding and Rule 20 (4.1) speaks to the evidence from the responding party. Unlike Rule 14 (20) 3, however, Rule 20 (4) refers to the moving party’s evidence and the responding party’s evidence but is silent with respect to the moving party’s right to reply.

[23] Given that the opportunity for reply evidence with respect to interim motions is not provided for with respect to summary judgment motions, I therefore agree with the interpretation of the Respondent and strike the Applicant’s Affidavit sworn October 19, 2018 which purported to reply to the Respondent’s evidence in this summary judgment motion.

(b) The Report of Dr. Louise Sas dated May 7, 2018

[24] It is the position of the Respondent that this motion for summary judgment by the Applicant is precipitated by the recommendations of Dr. Sas in her report dated May 7, 2018.

[25] It is his position that the caselaw is clear that a Court, on a motion, should not make a decision based on adoption of all or some of the recommendations of the assessor before trial. The Respondent pleads and relies on the Court’s decision in Bos v. Bos [^7] and cases cited therein.

[26] In this regard, I adopt the observations of Mr. Justice Mitrow in Bos who wrote, “In the often-quoted decision of Granger J. in Genovesi v. Genovesi [^8], the court set out the principle that an assessment report prepared for trial should not be acted upon until trial except in exceptional circumstances where immediate action is mandated by the assessor’s report… It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to otherwise change existing interim orders or an existing status quo.”

[27] That said, unlike in Bos, this is not a motion for an interim order. In the case before me, the Applicant seeks a final order that has the same force and effect as would the order rendered at the conclusion of a trial. Further, in the case before me, there has been an unfettered cross-examination of the assessor, Dr. Sas by counsel.

[28] In any event, I note that Mr. Justice Mitrow also observed in Bos that the jurisprudence has evolved to the point that “it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are exceptional circumstances as set out in Genovesi.”

[29] In Bos, Mr. Justice Mitrow quoted with approval and adopted the principles in relation to considering an assessment report on a motion as set out in two cases, namely, Forte and Forte [^9] and Kerr v. Hauer [^10]. In Forte, Justice Corbett wrote, “However, I cannot accept that the court is precluded from considering all of the evidence that is available in coming to a determination of the best interests of the children. In particular, in this case, I do not accept that the court cannot consider the statement made by the children to the assessor. It is not the report’s recommendations but its substance and analysis that is of value.” In Kerr, Madame Justice Eberhard held that hers was not a case “…where the court is delegating its adjudication about parenting to an assessor but one where a relevant expert has provided essential evidence based on the method and expertise of his discipline.”

[30] As with all adjudicative steps involved in custody and access proceedings, the Court’s overriding obligation is to render a decision in the best interests of the child(ren). The Court is well able to distinguish opinion from fact or allegation. In my view, it would undermine the administration of justice with respect to the Court’s predominant duty regarding the best interests of children, were the Court prohibited from considering or fail to consider all relevant and admissible evidence contained in an assessor’s report upon which the assessor’s opinion is based.

[31] That is not to say that the assessor’s opinion(s) or recommendation(s) ought to be considered by the Court at a summary judgment hearing. This will depend on the circumstances of the case. But I am of the view that admissible, relevant and probative evidence contained in the report that touches upon the needs of the children ought to be considered, particularly, in circumstances such as these where that evidence has been tested by way of cross-examination of the writer.

[32] In conclusion, for the purpose of the decision that follows, I have not considered or placed any weight on the opinions or recommendations of Dr. Sas as contained in her report to the Court. I have also not placed any weight on the following with respect to her report:

(a) her review of and comments and opinion with respect to the Brayden supervision notes. These notes are in evidence before me independent of the report and I am in a position to draw my own inferences and conclusions with respect to the information contained in those notes. Further, the transcript of the cross-examination of Crystal Hawkins of Brayden Supervision Services Inc. (b) her review of and comments with respect to audio files provided by the Applicant. Neither these recordings have been filed in evidence before me. There is no probative independent evidence as to the authenticity of the recordings; how they were recorded; and/or whether they constitute the whole of an event or merely part thereof. In my view, this evidence and references thereto are inadmissible on this basis. Even if I were wrong in this regard, I find that the prejudicial effect of these recordings and references thereto outweighs the probative value thereof. (c) her interviews with extended family members. This evidence constitutes hearsay and contains opinions and perceptions that have not been tested. Further, there is a substantial risk of natural bias based on the familial relationship between the grandparent and the parent in question which undermines the reliability of this evidence. In my view, for this reason, it would be inappropriate to consider or place any weight on this evidence for the purpose of this judgment.

[33] I have reviewed and taken into account, however, the balance of the substance of Dr. Sas’ report as it relates to her personal observations of the child(ren); her personal observations of the child(ren) with each parent; her interviews with each child; and, her interviews with each parent.

(c) Review of the evidence and analysis with respect to the child Lexi

[34] I turn now then to the evidence that is before me with respect to the child Lexi. In my view, there is an abundance of reliable and objective third-party evidence to determine the needs and best interests this child who is now 6 years of age.

[35] In her first report card dated November 2017, Lexi’s teacher described Lexi as having an awareness of making friends, able to play in a small group co-operatively as well as independently, and easily willing to accept directions and responses from educators. In February 2018, she was described as a child who enters a room excited to see her friends, follows the class routines independently, shows respect for the classroom environment and kindness for her peers, knows when it is important to ignore distractions and focus on the class activity and is clear to express her feelings. In June 2018, her teacher reflected the same observations of Lexi and described her as a child who is in touch with her inner emotions, able to express to her educators what she needs on most occasions, demonstrates empathy to all students in class on a regular basis and who knows what will work to calm herself down.

[36] In November 2018, her next teacher reported that Lexi is able to communicate her needs, wants, ideas and questions with the educator team and class mates. She participates during whole group discussions and demonstrates self-control by raising her hand when she wants to contribute. The teacher also wrote, “We are celebrating Lexi’s growth in her ability to express how she is feeling (i.e. “I miss my mom”) and managing her emotions when something unexpected has occurred.”

[37] The records of Brayden Supervision Services Inc. reflect the observations made by the access supervisors with respect to access between the Respondent and Lexi between July 16, 2016 and July 28, 2018. There are eighty-two days of recorded observations by the agency within this time-frame. Access has been exercised in accordance with the order of Justice Campbell dated June 15, 2017 every Saturday from 9:00 am until 2:00 pm.

[38] For most if not all of these visits with her father, Lexi has been accompanied by her brother James. In addition, their paternal grandmother and other family members have visited on many occasions at the same time. I am satisfied that the supervisors adopted the roles of supervisors only and refrained from providing parenting advice. I am also satisfied that they refrained from intervening in the access save and except where necessary such as assisting the children at the beginning of access in leaving the Applicant and assisting the Respondent with respect to the requirement for control of James’ emotional and physical outbursts.

[39] I find that the evidence contained in Brayden’s notes from the initial visit on July 16, 2016 when Lexi was just 3 years old through to July 28, 2018 overwhelmingly supports a finding that Lexi has been exposed to the serious emotional and psychological war between her parents. Further, I have absolutely no doubt that this child has been deeply influenced by what she has seen and been told by either and/or both of her parents; and, by the behaviour of and what she has been told by her brother James.

[40] In this regard, I cite the following comments made by her as only some examples of the statements she has made that are contained in Brayden’s notes:

• July 16, 2016: The Respondent gave Lexi positive praise and Lexi responded by stating, “Dad, you hit my mommy. Don’t hit my mommy”.
• July 30, 2016: While en route to the park with the Respondent, Lexi said, “Mommy said that GrandBend daddy is bad. Bad GrandBend dad.”
• August 21, 2016: When Lexi was playing with her grandmother, she said, “You’re a bad grandma. Mom said you’re bad.”
• August 27, 2016: As Lexi got to the playground with her grandmother, Lexi said, “Mommy said you and Daddy are bad.” Toward the end of the drive home, James began swearing and encouraged Lexi to join in. They began to chant together “fucking daddy; fucking daddy”. The Respondent was driving the car.
• September 3, 2016: As Lexi got out of her maternal grandmother’s car, she pointed at the Respondent’s mother and said “I don’t want to play with you, you’re bad. Mommy said you’re bad.”
• September 24, 2016: Lexi introduced the access supervisor to her maternal grandmother as the person who protects them at their dad’s house to which the maternal grandmother replied that she knew and thanked the supervisor for protecting the children;
• October 29, 2016: Lexi told the supervisor that Mommy tells her that Grandma and Daddy are bad, and that the supervisor is only good;
• November 19, 2016: During a drive, Lexi began telling the Respondent that he was bad. The Respondent ignored it and continued talking about their visit to a museum. Lexi and her brother James ignored Simon and began chanting, “I hate Daddy” together. Lexi then stated that she told her teacher that her father is bad.
• November 26, 2016: Lexi told her paternal grandmother (Lynne) that her mom had said that she is not allowed to colour on herself. Lynne told Lexi that her mom had also said that it could make her sick and that hadn’t happened so she (Lexi) can’t always believe what her mom tells her;
• December 31, 2016: Lexi told the Respondent that her mom had told her that the Respondent was bad because he had hit her brother;
• January 14, 2017: Lexi told her grandmother Lynne that her mother hates her (Lynne) in response to which Lynne whispered something in Lexi’s ear. Lexi then replied that her mom was going to keep her forever.
• March 18, 2017: The Respondent asked the children if they had had fun (at the park). Lexi replied, “I did. But don’t tell my mom that I had fun. Franca (the supervisor), can you not tell my mom that I had fun today?”
• April 8, 2017: Lexi started a conversation about their “old house” where she was a baby and they all lived there. The Respondent said that he remembered that, and Lexi said that he had hurt her mom and James when they were there. The Respondent told her that it didn’t happen, but James intervened and said that it had happened. Lexi then continued telling the Respondent that it was true and that is what her mom had said. James then told Lexi that she was not supposed to say that and that she was going to get into “big, big trouble” when she got home.
• April 22, 2017: Lexi told the Respondent, “Mommy says you and Grand Bend (Lynne) are liars and that you pulled Mommy’s hair before.”
• June 17, 2017: The supervisor saw Lexi get into her car seat and spit at her father saying “spitty kisses”. James then said, “poopy daddy” and Lexi said, “stupid daddy”.
• July 1, 2017: The supervisor saw Lexi kicking her foot toward her grandmother Lynne. Lynne commented that Lexi was sassy. Lexi continued and was giggling while kicking at her grandmother. Lynne moved away but Lexi moved down the couch to get closer to her. As Lynne tried to change where she was sitting, Lexi raised her voice and tried to bite her grandmother’s arm. Lexis giggled and did not stop trying to kick her grandmother. Lexi said that she hated her Grandma GrandBend. Her grandmother distracted Lexi with a television program.
• August 5, 2017: While their father was driving, the children began to chant “daddy is stupid” and “daddy has a butt hole in his face”. The Respondent replied by saying “Daddy loves James and Lexi”. James whispered to Lexi to start kicking the Respondent…Lexi began chanting “stupid daddy” again while James cheered her on. While on their own with the supervisor, the children started chanting that they never wanted to go to their dad’s again.
• August 26, 2017: Lexi and the Respondent were looking at a hockey magazine when Lexi tried to rip it. She then climbed on her father and started punching him.
• September 23, 2017: Lexi called her dad a “loser”. He asked her how he could be a loser if he had such a great son and daughter. Lexi told him that she doesn’t live with him because he is bad. Her father told her that no matter where she lived, she would still be his daughter and he thought she was good. Lexi replied that she didn’t like him or love him. Her father told her that he loved her…On the drive home, Lexi began kicking her father while her brother was sleeping in the car. Although she was told to stop, she did not listen.
• November 11, 2017: Lexi hit her father twice to get his attention. Lexi closed the door on her father’s finger and laughed. On leaving, Lexi is heard to repeatedly say, “Yucky Grandma GrandBend”, “I hate her” and “Dad is baddest man ever”. As her grandmother did up Lexi’s coat, Lexi hit her.
• April 7, 2018: Lexi was asked by her father what her teachers would think if she misbehaved. Lexi replied that her teachers already know that here dad is bad because she told them. Her father told her that he isn’t bad to which she replied, “I know because you stepped on my brother’s head.”
• July 28, 2018: Lexi repeatedly kicked her father and laughed. Her father told her to stop but she continued until she was told they would have to stop the game he was playing with James. The Respondent walked away from Lexi who then, along with her brother, kicked and punched him (the Respondent). They kicked and punched him again during the visit and had to be told to stop. At one point, Lexi punched Simon and called him a bully. She again punched him before the end of the visit. In the car on the way home, both James and Lexi hit and kick their father who tells them to stop.

[41] In her report, Dr. Sas indicated that Lexi had told her that

• her father had not attended her birthday and had not been invited because her mother thought he was bad;
• on one occasion, her dad had grabbed and pushed her brother in the tummy when they were visiting. She had heard her brother crying and stated that her dad was bad when he did that.
• when she was a baby, her father had stepped on her brother’s head and that he had been hurt.
• she was never going to sleep at her dad’s new home because her mother would not hear her if she needed help. She then said that she was not going to worry about it because her mother had told her that she was never going to sleep there. She looked at Dr. Sas and said very clearly, “It’s his home; not mine.”

[42] When asked by Dr. Sas to draw all the people she wanted in her world, Lexi included her brother, mother and several aunts and uncles but when asked about her father and paternal grandmother (“Grandma GrandBend”), Lexi yelled, “No daddy. No Grandma Grandbend”. She then added her cat.

[43] When asked if she wanted her dad in her world, Lexi responded, “Mommy won’t be happy because Mommy says that he’s bad. James says that too, but I don’t. He is bad to James. He was bad to Mommy; he hurt Mommy; he pulled her hair.” Lexi added her day care teacher in the one empty space left in her world picture.

[44] I have emphasized this last comment from Lexi because it is important to recognize that she was, as I pointed out above, just three months old at the time of the most recent of the three criminal charges with respect to the allegations of hair pulling. She wasn’t even born at the time of the first two incidents. And Lexi was only 23 months old when her parents separated. There is absolutely no evidence before me that the Respondent has pulled the Applicant’s hair since their separation. Lexi is therefore clearly not speaking as a child who has witnessed this abuse. She has been fed this information.

[45] I also find it to be shocking that this vulnerable child has been made aware by an outside source of the fact of physical violence between her parents that she has not personally witnessed. Given the denial of the Respondent that these incidents even happened, it is entirely reasonable to infer that this allegation was divulged to Lexi directly or indirectly (through James) by either the Applicant or a member of the Applicant’s extended family. In my view, this is nothing short of psychological and emotional manipulation of this child intended to distance her from her father and form an alliance in her mind with her mother and/or her mother’s family.

[46] There is no probative evidence before me that the Respondent has physically harmed Lexi. It is clear, however, that Lexi has been and continues to be adversely affected by the conduct, attitude and thought process of her brother James as well as her mother during access with her father. She naturally copies her brother and follows his lead with respect to her own behaviour. And she often quotes her mother with respect to what she can and cannot do (i.e. colour her nails) and/or say and cannot say.

[47] I shall discuss the evidence with respect to James below but for the purpose of determining what is in the best interests of Lexi, I find the evidence of her escalating negative conduct during access to be both worrisome and appalling in nature.

[48] In my view, the physical violence the children exhibit to one another and to their father and grandmother when not in their mother’s presence; their lack of respect for adults in the absence of their mother; their lack of self-discipline in the absence of their mother; their rudeness and arrogance toward others in the absence of their mother; their destructive behaviour in the absence of their mother; and, their maintenance of secrecy with respect to the lives they lead in the absence of their father and paternal family members, is a reflection of destructive and extremely poor parenting by both the Applicant and the Respondent.

[49] No child, no matter the circumstances, should be permitted to act or think that it is acceptable to punch, kick, swear at, insult or denigrate another human being.

[50] Although Lexi does not appear to act in this manner while at school, the fact that she does so at all whether toward family members or others, is unacceptable. And to remain passive or otherwise acquiesce in such conduct is contrary to the best interests of this child. In my view, her escalating negative behaviour and attitude does not bode well for her ability to remain out of trouble in society as she ages because it currently falls well below the standard of acceptable comportment within any given community.

[51] As I have indicated, no one, including the Respondent, should be subject to taunts, insults, kicking or biting. Notwithstanding what he may have done to the Applicant in the past, the Respondent is not an emotional and physical punching bag available for Lexi or James to use as she or he sees fit.

[52] If Lexi receives any message or indication from anyone in her life that her escalating negative attitude and conduct as reflected in the observational Brayden notes and the observational notes of Dr. Sas are acceptable, such a message conveyed to this child either directly or indirectly is abusive in that it deprives the child of the skills necessary to ensure successful integration in the community and will most likely ultimately lead to nothing less than the necessity of intervention by third parties to correct this behaviour.

[53] I also find that the mother of the Applicant and the mother of the Respondent have both made entirely inappropriate comments to Lexi and/or James and have thereby personally exacerbated and contributed to the extremely damaging environment in which Lexi finds it acceptable to say the denigrating things she does to her father and hold secrets from him.

[54] There is also overwhelming credible and reliable evidence before me that Lexi is strongly attached to her mother. She has regularly cried in having to leave her mother to go and spend time with her father. She has described her nuclear family as having her mother as the only parental figure. She sees her mother as the parent who will protect her and look after her if she needs anything. Dr. Sas observed “good parent-child interaction” between the Applicant and the children. Dr. Sas observed that the Applicant knew how to soothe and comfort the children; was skilled at caring for both of the children at the same time; and, that Lexi listened to her mother and sought her help when James was mean to her or controlling.

[55] But it is equally clear to me that Lexi needs and must be provided with an opportunity to develop a relationship with her father, free of influence; free of judgment by her brother and mother about her father; and, free of pressure or expectation.

[56] Dr. Sas observed that Lexi was not hesitant with her father. She was polite and said “thank you” to him. At one point in time, she told her dad that she was playing soccer and had scored goals but when prompted for more information by him, she became secretive.

[57] Dr. Sas wrote, “There was lots of proximate behaviour. Several books were read together and …she played with the doll house with her father… She did ask where her mother was and was told that [the Applicant] was out to supper with James. When it was time to go, she smiled, took her game and left. On her own, Lexi did not feel compelled to show anger and non-compliance.”

[58] Dr. Sas also observed, “In terms of the observation of their access in [the Respondent’s] home, Lexi was more relaxed than James once she was in the house and she did interact with her father. She seemed to enjoy one-on-one time with him and played with shopkins and did other activities. She could, however, be standoffish as well and would refuse offers by him at times…she then was rude and dismissive towards the end of the visits. She was not afraid of her father. She did watch the interaction between James and her father out of the corner of her eye.”

[59] Dr. Sas observed a home visit between the Respondent and the children on April 28, 2017. Lexi got out of her mother’s car willingly and went toward her father who was waiting at the side of the house. At one point in time, Lexi coloured a picture and allowed the Respondent to quickly hug her.

[60] Dr. Sas made further observations two months later after the Respondent had moved to his new home. She wrote, “As soon as Lexi came into the door of the house, she told her father that she and James weren’t going to sleep there”. When asked why by Dr. Sas, she indicated that it was because her father had stepped on her brother’s head. During the visit, Dr. Sas observed that Lexi “was quite mean to James and unreasonable”. Lexi screamed and did not listen. She was bossy and demanding of her father; out of control with her brother, splashing water all over the floor from the bar sink in the basement. She laughed at her father; showed no evident respect for the home or toys; and, kept hitting her father’s arm to get his attention. Dr. Sas then wrote, “When it was time for them to leave, the children ran out the door, did not hug their father and said “Bye, poopy” and other insults.

[61] On the basis of all of the evidence before me, I am satisfied that it is in Lexi’s best interests to reside with and be under her mother’s care on a full-time basis.

[62] On the other hand, I also find that it is Lexi’s best interests to have frequent and regular contact with her father. She must be allowed to develop a relationship with him in an environment that is free of conflict with her brother and full of love, support and attention from her father and her extended paternal family.

[63] I am also of the view that Lexi must not be placed in an environment with her father in which she is an experiment on whom her father can practise his parenting skills. The Respondent must acquire the skills necessary to engage with Lexi in an informed and effective manner as a parent. That said, I am satisfied that the vast majority of mistakes the Respondent has made in his parenting relates to his lack of knowledge, skill and expertise in responding to the challenges posed by his son James.

[64] At this juncture, it is extremely important to recognize that these children are not a “package”. In the circumstances of these particular children, the approach simply cannot be “one for all and all for one”. As will be discussed below, Lexi and James are entirely different children with dramatically different personalities, behaviours, needs and challenges. The right to access is the child’s right. It is in the best interests of every child that the child be allowed to develop a warm, loving relationship with his/her parent free of toxicity and traumatic conflict. Lexi has this right with respect to her relationship with both of her parents.

(d) Review of the evidence and analysis with respect to the child James

[65] The evidence with respect to the child James forms the bulk of the third-party observational notes. I do not intend to review them in the same detail because they are replete with consistent examples of attitude and behaviour that since infancy reflect a very bright but troubled little boy. James is a wonderful, loving child who faces serious challenges that require, in my view, an immediate diagnosis including neurological, emotional, psychological and intellectual testing and assessment followed by relevant therapy and treatment.

[66] It is clear at the outset that it is entirely in his best interests that he reside on a permanent basis in the care and control of his mother.

[67] That said, according to the evidence, James displayed signs of behavioural issues at daycare. He began wetting his pants at least once a week, would hit, bite, kick others and use the F-word. He also suffered from nightmares. Both the Applicant and the Respondent told Dr. Sas that they had difficulties with him at home and at the daycare centre.

[68] Under cross-examination, Dr. Sas indicated that James’ physical movements are aggressive and when he gets angry, he gets very stiff and shakes. When she was with him on her own, he was very attentive, polite, very calm and “very good”. She described him as a quick learner, able to put things together, reading instructions on very difficult Lego that he had brought with him to the office. He likes to learn and is very good with his hands. He has developed mathematical skills.

[69] She also stated that James does not like it when Lexi gets attention and he doesn’t.

[70] She further stated that he acts this way in the care of both his mother and his father.

[71] As I indicated above, on January 2, 2015, a supervisor from Brayden noticed that James had swollen lower lip and a red mark. When she asked James about it, he indicated to her that his father had “stomped” on his head. It was this explanation that lead to the departure of his father from his home and the subsequent events described above.

[72] It is clear from the photograph filed in evidence that James had suffered some sort of injury to his lower lip. It is clear that the Crown was of the view that there would be a reasonable probability of conviction based on the evidence. But there is no probative evidence before me as to whether the injury was consistent with the child’s version of the events. And there were no third-party eye-witnesses to this incident.

[73] That said, it is also overwhelmingly clear on all of the evidence before me that it was this description by James as to how he was injured that was the catalyst for the immediate change in the family dynamics. And it is to this explanation that James consistently refers in the context of his relationship with his father.

[74] The Applicant believes that the Respondent physically hurt James in the manner James described. At the time of the incident, she heard the Respondent twice say, “Get out of my way or I will step on your head” while James was sitting in a tantrum at the bottom of the stairs. The Respondent denies that he hurt James this way.

[75] Whether the description of how the injury was acquired is accurate or not, the issues facing this child and his parents are not resolved. If James told the truth, there is a problem of physical abuse that has to be addressed between the Respondent and this child. If James did not tell the truth and his father did not “stomp” on his head, there is still a problem that has to be addressed between the Respondent and this child because the child has lied and has repeatedly recounted this version which targets his father, to other people.

[76] In his report card dated February 5, 2016, James’ teacher wrote, “James needs guidance to interact cooperatively with peers and benefits from adult intervention to solve conflicts and express his feelings.” Another teacher observed that “James, with encouragement, usually participates in some of our activities, however, he often struggles in following class routines and cooperating with his teammates.” The concern continued to the end of that academic year when the teacher observed that “With teacher support, he follows routines and attempts to show some appropriate skills (e.g. raising hand)…Encourage him to talk with peers to solve social problems…[H]e continues to struggle in following all class rules and routines. He is encouraged to participate more effectively in all the class activities by following all the rules.”

[77] In February 2017, it was noted that “Going forward, James will be encourages to continue to be more open to the ideas of other children and consult with them when making adaptations to plans…James shows empathy for others…James will help a friend who is struggling with a task…Going forward, we will work with James to develop ways to help him stay calm during disagreements with friends. We will encourage him to use “I feel” messages and to take time to listen to his peers’ point of view before trying to solve the problem together.” In June 2017, the teacher wrote, “We are celebrating James’ improvement in his ability to manage his emotions and take more responsibility for his actions”.

[78] In November 2017, James was in Grade one. In his report card, it was noted that he needed improvement with respect to his ability to collaborate – working with others to resolve conflicts and build consensus; responding positively to the ideas, opinions, values and traditions of others. He continued to need improvement in this area of his life in February 2018. One teacher wrote that he is to be encourages to listen to instructions and participate in all activities according to the expectations given. In June 2018, he received the same assessment regarding collaboration with the note that he is reminded to carefully consider words and actions when interacting with peers in order to develop healthy peer to peer relationships. Of additional concern, in this report is the first indication that at that time, contrary to the observation of Dr. Sas, James was reading texts below grade level at a moderate rate and with limited expression. It was noted that he demonstrated limited understanding of the text in the retelling of the story.

[79] There were also complaints about James having thrown rocks at school, being hands-on with other children and having even urinated on another child.

[80] Fortunately, it appears that James’ behaviour has improved recently at least at school. The assessment of his collaboration at school in Grade 2 has now reached the “satisfactory” stage. This is most likely due to the frequent and consistent professional therapy he is now receiving in his home with the Applicant.

[81] But this is a sad and lengthy history of a child who even as a toddler has reacted physically to the stress he feels, with a mother who has struggled but has the skills necessary to be able to cope and foster a positive home-life and a father who has and continues to either respond physically at these times or simply ignore the behaviour and divert.

[82] For the purpose of providing context to this finding, I am going to refer to only some of the evidence which I accept before me:

• December 2015: The Applicant heard James screaming in the bathroom and when she went in saw the Respondent with James’ head on the toilet bowl and telling James that he was going to dunk his head into the toilet if he (James) continued to bite him.
• January 21, 2017: James was playing on the stairs. As he jumped over, he leaned down and bit the supervisor’s knee. When told he was not to do this, he walked away but as he did so, went to punch the supervisor.
• December 23, 2017: Upon entering his father’s home, James spit at and tried to punch his father. The Respondent ignored his son’s behaviour. James later began to scream and cry because he could not put his LEGO together. The Respondent helped him and fixed it for him. It happened again but this time James hit his father while his father was trying to help him. When the Respondent asked James not to take any more dental floss to unravel (he had already unravelled one case), James became physically aggressive toward his father, kicking, hitting and punching him. When the Respondent asked James not to wear his (the Respondent’s) winter boots in the house, James again became physically aggressive to his father by kicking, punching and hitting him and also, this time, attempting to bite him. The Respondent had to put his arms out in front of his body in a defensive mode in an attempt to stop James from kicking, hitting and punching him but James continued even when the Respondent told James to stop. Ultimately, the Respondent lifted James off the ground by his ankles to try to stop him at which time the supervisor intervened and told the Respondent “hands off”. The Respondent attempted to guide James to the door as they were going to visit his mother, but James again hit, kicked and punched at his father. When the Respondent held his son by the wrists to stop him, the supervisor intervened again. Lexi was standing behind her dad and witnessed this exchange. In the car, James began kicking at the vent and console and laughed and smiled as he declared that he had broken the vent. In her cross-examination, the supervisor stated that James would not follow any verbal clues from either the Respondent or herself.
• December 30, 2017: James grabbed pillows and motioned as if he were going to throw them at the computer. When asked not to do so by his father, he threw them at the fireplace. Again, James began to hit, punch and kick Simon.
• February 24, 2018: James punched his grandmother, kicked his father while he was driving the children home and chanted “poopy daddy”, “stupid daddy” and “dumb daddy” in the car on the way home.
• April 7, 2018: When asked by the Respondent what he had received for Easter, James replied “Nothing but your rubbish”. When he asked Lexi if she knew any verses or songs from school, James told him to “Shut up.” Shortly thereafter James hit his father. When the Respondent returned from disposing of garbage, James told him to check the bathroom. On doing so, the Respondent saw that James had urinated on a rug. James told Lexi what he had done and then told her to say, “Good job.” The Respondent cleaned up the bathroom rug and talked to his son about hockey as he was doing so but James told him to “Shut up.” Toward the end of the visit, James grabbed the soap from the kitchen and ran around the main floor squeezing soap everywhere. He was stopped by his grandmother who caught him. When his grandmother tried to help James out of the door as they were leaving, James threw himself on the floor and Lexi began hitting her grandmother. In the car, James kicked the Respondent and the Respondent removed his boots. James screamed and cried, grabbing cards and throwing them at his father.
• April 2018: Dr. Sas observed James start throwing a whoopee cushion at his father and at items in the room, knocking things over. The Respondent took away the cushion. James climbed onto the kitchen counter to retrieve it from the top of the fridge. The Respondent lifted him off the counter, held him firmly and told James that he had broken the rules. James hit his father. He eventually settled after ten minutes.

[83] Based on all of the evidence before me, I find that James is a high-needs child who first requires immediate and in-depth professional attention with respect to all aspects of his personal life in addition to his relationship with his parents. Unless James is properly assessed and the cause of his behaviour is diagnosed, the appropriate response and treatment cannot be ascertained [^11].

[84] And this, I find, is the crux of the conflict between the parents. Both of these parents blame the cause of these behaviours on the other parent. The Applicant accuses the Respondent of abusing James and the Respondent accuses the Applicant of coaching James. Further, they respond to James’ lack of anger and impulse control differently. And their diametrically opposed opinions as to the wisdom or validity of the response by the other parent to James’ attitudes and behaviours, deepens the hostility and the divide between them.

[85] In my view, both parents have contributed to the circumstances as described in the evidence before the court. As I outlined above, allowing James to believe it is acceptable to treat anyone the way that he has by simply diverting his attention without immediate and focussed consequence restricted to the behaviour or attitude to be corrected, ignores his overriding need to learn to work within numerous boundaries in order to become a well-adjusted adult in the community; on the other hand, yelling and/or corporal punishment is equally detrimental, has clearly been of no effect for James and does nothing more than exacerbate the attitude or behaviour that needs to be corrected.

[86] It is also shocking that the Respondent, even allowing for the possibility that he was joking, suggested to James on August 16, 2016 that the Michael Jackson song ‘Bad” that was on the radio was about him (James); or, that on another occasion, he told James that were it not for the presence of the supervisor, he (James) would receive a spanking with respect to an incident involving Play Doh; or, that on yet another occasion he told James that they needed the “stick together club” because of the lies he (James) and his mother had told people. The Respondent’s profound and obvious lack of appreciation for the effect his negative conduct and words can have on a child is extremely concerning and, in my view, amounts to emotional abuse.

[87] On all of the evidence before me, the Respondent does not yet have the appropriate parenting skills necessary to meet the special needs of this child.

[88] James needs a trained, structured and consistent environment in which the response to his needs meets his needs at the time and not those of his parents.

[89] The Applicant also needs to acquire further parenting skills to address the issues that James faces. The Applicant must re-direct her focus away from the Respondent and concentrate solely on the health and happiness of her children whose father is a permanent figure in their lives. Her negative attitude toward access is clear. The evidence is replete with her comments to the access supervisor at the conclusion of access – none of which are child-focussed.

[90] When the children are returned to her, she repeatedly asks for example, if the Respondent was ‘hands-on’ during access.

[91] On April 8, 2017, the Applicant noted to the supervisor that the children were late arriving home. It was 2:05 pm – five minutes passed that designated end time. She then asked if the children had been fed. The supervisor told her what they had eaten. This was the end of their conversation. This attitude ignores and/or completely subverts the happiness and fun experienced by the children during access to her own need to target, undermine and control.

[92] On August 21, 2016, the children had gone outside to play in the backyard of their father’s home. They both had had fun with their dad playing with water to cool themselves down. The supervisor wrote, “Upon dropping the kids off at Vanessa’s, this writer told her they had a good visit and played outside with water so probably need to change into dry clothes.” At the beginning of the next access visit, the Applicant handed Lexi to the supervisor with the instruction, to “not let the children come home soaking wet this weekend”. Thereafter, while walking to the beach with their dad and grandmother, the children told them that they are not to go home with wet clothes anymore.

[93] Even in the positive circumstances of children returning home with wet clothes because of the enjoyment they had experienced with their dad, the Applicant’s focus was negative and on what the Respondent had permitted. There was no evidence that the children were cold or had been chilled by the experience. And yet, in this instance, by her comments, the Applicant completely overlooked the development of a positive engagement between the children and their father (who she chose, I might add).

[94] The additional and far more important factor with respect to her feelings on this occasion, is that the Applicant doesn’t leave her objection there with the supervisor or take it up with the Respondent or his mother directly. Nor does she provide a solution by sending an alternate set of clothes with the children in case they get wet again. Instead, the Applicant communicates her objection to the fact that the children returned home in wet clothes and her follow-up instruction, to the children.

[95] It is in this way, that the Applicant uses the children as a conduit for her negative message to the Respondent; interferes with the nature of the access the children experience with their father; and, subtly creates emotional and psychological distance between the children and their father by creating the illusion that they and their father have to follow her instructions during access regardless of the circumstances their father creates for them. She did this when Lexi and her paternal grandmother coloured on their skin/nails.

[96] Another example of the Applicant’s laser focus on the Respondent occurred on November 12, 2016. When the children were delivered to the Applicant by the supervisor at the end of the access, the Applicant asked if James was “put down” or “belittled” during this visit. She was told that he wasn’t. The Applicant then asked about Lexi’s hat. The supervisor apologized and told her that it must have been forgotten at the Respondent’s home. The Applicant’s response was that she would not send a hat with Lexi the following week and asked that the child’s hat be returned to her the following week. The supervisor then left.

[97] The fact that Applicant placed emphasis on the child’s hat in communicating with the supervisor and demonstrated no concern with respect to the behaviour of the children during their time with their father and/or even whether they had enjoyed themselves, is glaring.

[98] The dynamics of the snare in which the children have become trapped by both of their parents became tragically and dramatically obvious on December 10, 2016. In the car, the Respondent began talking to the children about their day and asked if the children had had fun. James responded that he had played with his dad all day, but he could not tell his mother. He said that if his mother knew that he played with dad all day, she would punch him in the face and flush him down the toilet. James then asked the supervisor if she would lie to his mommy and tell her that he did not play with his dad. When the supervisor indicated that she would not lie, James began to raise his voice and cry continually asking, “Franca, please lie to her. If she knows I played with dad, she will punch me in the face, please lie to her.” The supervisor repeated that she would not lie. The Respondent asked James why he would say that in response to which James repeated it was because she would punch him if she knew that he had played with his dad all day. The Respondent changed the subject.

[99] It appears from the evidence many people accepted the accusations James made against his father as having been accurate, truthful and based on his personal experience. It begs the question whether those same people would accept the accusation James made against his mother on this occasion as being accurate, truthful and based on his personal experience.

[100] I therefore repeat my observation made earlier, the difficulty in this case is that if what James is recounting is accurate and is truthful and is based on personal experience, there is a major problem for both of his parents that must be addressed; and, if what James is recounting is not accurate, is not truthful and is not based on personal experience, there is a major a problem for both of his parents that must be addressed.

[101] I note that the Applicant further involved James in the adversarial dynamics of her relationship with the Respondent by taking photographs of marks on James. On May 6, 2017, James and his father were having a very difficult time and James ran upstairs and turned the thermostat up very high. The Respondent grabbed James by both wrists (to ensure that James did not fall if he grabbed only one) and moved James away. James rubbed his right-side rib cage and said “ow” and started crying. James then told the supervisor that his dad had hurt him. The supervisor saw a redness just under his right nipple. The Respondent told the supervisor that his son was not actually hurt. The supervisor consoled James and took him back downstairs where he calmed down.

[102] Less than an hour later, both children welcomed their grandmother and began running back and forth along the main floor of their home with their dad, laughing and shrieking as they raced each other. They asked the Respondent and their grandmother to join in their fun which they did. At one point, the Respondent tickled James on both sides and James reacted with laughter. At another point, James asked his dad to hold him tight so he wouldn’t fall as he stood on a window sill which the Respondent did.

[103] On returning the children to the Applicant, the supervisor described what had happened with respect to the thermostat and the interchange between father and son. The Applicant asked the supervisor if she thought that the Respondent was being malicious during the incident. The supervisor told the Applicant that she thought that the Respondent had panicked that James was going to break the thermostat and had just reacted quickly. But after the supervisor left the Applicant’s home, the Applicant could not leave it there. Instead, she contacted Brayden’s coordinator and sent photographs of James’ right side with two red marks under his right nipple. In this way, the Applicant saw fit to remind the child of what had happened as he lifted up his shirt, involve him by taking photographs of him and then send them on.

[104] On the other hand, I note that no explanation was volunteered by the Applicant to the supervisor the following week as to how the child Lexi had acquired two small bruises on her lower back when she dropped Lexi off for access. Unfortunately, once Lexi was in her father’s home, the Respondent then engaged in the same behaviour as the Applicant by commenting on the bruises to the supervisor (not once but twice) and further lifting up Lexi’s coat and shirt to show the bruises to the supervisor.

[105] It is crucial to note at this point in time, that there is absolutely no probative evidence before me that either child had complained to the other parent about the minor injuries sustained while under the care of the one parent but both parents involved the children further investigations, visual examinations of their bodies, and, in my view, unnecessary comment to other adults with the sole purpose of gathering “evidence”. This behaviour is destructive and ultimately targets and affects only the children involved.

Conclusion

(a) The summary judgment procedure

[106] Firstly, given all of the evidence before me, the testing by counsel of that evidence prior to the hearing and the transcripts of the cross-examinations of the witnesses prior to the hearing with respect to the issues to be tried, there is no genuine issue requiring a trial in this case. The issues in this litigation may be readily bifurcated; the only parties to this litigation have served and filed their evidence all of which has been tested by opposing counsel; and, in my view, a fair process and just adjudication can be rendered in the factual and procedural circumstances of this case.

(b) The best interests of the children

[107] I am satisfied that James must undergo a series of tests and assessments to determine the cause of and triggers for his anger, outbursts, violent and destructive behaviour and lack of impulse control in order to identify and properly address his needs.

[108] I am also satisfied that the Respondent must undergo therapy and/or counselling to determine the cause of and triggers for his own anger and lack of impulse control. He must further acquire further self-awareness and parenting education as well as be taught the skills necessary to appropriately meet James’ needs once diagnosed.

[109] I am further satisfied that the Applicant must undergo personal therapy and/or counselling to address her anger and hostility toward the Respondent, to understand and appreciate the effect this anger, and hostility have on the children and finally to acquire the skills necessary to

(a) resolve these issues for herself; (b) protect the children from her own antipathy; and, (c) avoid transference of her lack of trust toward the Respondent to the children.

[110] I am satisfied that the Applicant has the parenting ability necessary to care for both of the children at the same time; that the children are very attached to her; and, that the children are happy and content with her in a loving home.

[111] I am satisfied that there is a significant potential for a regularized and loving relationship between James and his father when the therapy and the Respondent’s necessary skills acquisition have started to take effect for both of them.

[112] I am satisfied that Lexi and her father have a loving relationship that has unfortunately been sidetracked or overshadowed by James’ needs. I am of the view that Lexi’s relationship with her father must be immediately allowed to develop on an individual basis for the time being.

[113] I also find that unfortunately for these children, any possibility of a co-operative joint parenting or joint custodial regime does not exist in this family. The feelings and actions of hostility and resentment of both parties toward each other are too deep and toxic to allow for resolution of issues involving the children in a manner conducive to their best interests.

[114] As well as ongoing emotional harm to the children, I also find as well that there is a real risk of alienation of the Respondent should the access regime be allowed to continue in its current form.

Order

[115] For all of the foregoing reasons, the following is my order:

(a) Communication between the parties

[116] The Applicant and the Respondent will each create an email address for the purpose of communicating with each other with respect to the child(ren) and shall use that address for that purpose only. The addresses will be exchanged by the parties through counsel with seven days of the receipt of this judgment.

[117] There shall be no communication between the parties except (a) in writing; (b) using the email address created and provided through counsel; and (c) with respect to information regarding the children as required herein.

(b) Custody of the children

[118] The Applicant shall have sole custody of the child James born July 29, 2011 and the child Lexi born February 7, 2013.

(c) Disclosure of Information

[119] The Applicant shall forthwith provide to the Respondent, a list of the names, addresses and contact information for all professional care-providers of the child(ren) including physicians, dentists, therapists, coaches and educators and shall update that list in writing immediately upon there being any addition, deletion or other amendment to the list.

[120] The Applicant shall sign all consents necessary to allow the third-party service-providers to disclose information to the Respondent upon his request, but such disclosure shall only be to the extent deemed appropriate by the service-provider. Further and in any event, should the Respondent request the disclosure, he shall make the request and contact the service-provider one time only every three months and in writing. The Respondent shall not contact any service-provider of the children more than once within a three-month period of time unless invited or permitted to do so by the service provider in writing and even then, on an infrequent basis only.

(d) Calendar

[121] Commencing May 1, 2019 and on the first day of each month thereafter, the Applicant shall create and deliver by way of email to the Respondent, a monthly calendar for each child. This calendar shall contain all scheduled appointments, engagements, and personal and school activities for each child and shall also include the time, date, and location of the scheduled activity and/or appointment for that child. Should the appointment be for a medical or dental reason, the name of the care provider shall be included in the information provided. The Respondent shall be notified of any change to this calendar 24 hours prior to the change.

[122] The Applicant shall send an email to the Respondent twenty-four hours after any and all medical and dental appointments pertaining to the child(ren) and advise the Respondent of the results of that appointment including any diagnosis, prognosis or treatment plan given by the professional care provider or shall sign a consent for the Respondent to obtain this information at his own initiative subject to the restrictions above.

(e) Assessment and Treatment/Therapy for James

[123] The Applicant shall forthwith arrange for a complete neurological, psychological, emotional, and intellectual assessment(s) of the child, James. The Applicant shall consult with the child’s physician and current therapist with the Southwest Counselling Centre to obtain the names of professional service-providers in this regard.

[124] The cost of the assessment(s), test(s), diagnoses, prognoses, development of treatment plan(s), and implementation of treatment plan(s), if any, will be borne by the parties on a prorated share in accordance with their incomes.

[125] The Applicant shall be solely responsible for the choice of and all arrangements in this regard with respect to the child, James.

[126] The Applicant shall sign all consents necessary to allow the third-party service-providers to disclose information to the Respondent upon his request, but such disclosure shall only be to the extent and frequency deemed appropriate by the service-provider. The Respondent is prohibited from contacting the service-provider beyond the parameters set down by the provider.

[127] Unless contra-indicated by the therapist, James shall continue his therapy with the Southwest Counselling Centre on a weekly basis.

[128] The Applicant and the Respondent are to implement all recommendations of the therapist(s) responsible for James at all times James is in his/her care.

[129] The Respondent shall attend and participate in all therapy and/or treatments and appointments involving the child, James, but only as required or requested by the care-provider.

(f) Personal Assessment and Treatment/Therapy for the parties

[130] Within 90 days, both parties shall choose either a program concerning high-conflict family breakdown offered by a local agency or attend upon a therapist specializing in high-conflict family breakdown and, thereafter, file with the Court, proof of ongoing therapy or attendance at and completion of the program.

[131] The Respondent shall attend for an assessment of his personality by a specialist. He shall then consult with a child behavioural specialist and obtain instructions and training with respect how to respond to and discipline a child with the specific challenges posed by James. The Respondent shall provide to the child behavioural specialist, the results of his personality assessment, the report of Dr. Sas and Brayden’s observation notes. The child behavioural specialist shall be a professional person recommended by the persons responsible for testing and assessing James as required above.

(g) Communication concerning the other parent

[132] The Applicant is prohibited from discussing the Respondent (i) with the children; (ii) in the presence of the children; or, (iii) at any time the child(ren) are in her care and control, save and except in a positive supportive manner and even then, only if the child(ren) speak about him first.

[133] The Applicant is prohibited from discussing the behaviour of the Respondent with the child(ren) save and except in the course of and as required by a therapist in the presence of that therapist.

[134] The Applicant shall cause all family members and/or other adults who have contact with the child(ren) not to discuss the Respondent (i) with the children; (ii) in the presence of the children; or, (iii) at any time the child(ren) are in her care and control, save and except in a positive supportive manner and even then, only if the child(ren) speak about him first.

[135] The Respondent is prohibited from discussing the Applicant (i) with the children; (ii) in the presence of the children; or, (iii) at any time the child(ren) are in her care and control, save and except in a positive supportive manner and even then, only if the child(ren) speak about her first.

[136] The Respondent shall cause all family members and/or other adults who have contact with the child(ren) not to discuss the Applicant (i) with the children; (ii) in the presence of the children; or, (iii) at any time the child(ren) are in her care and control, save and except in a positive supportive manner and even then, only if the child(ren) speak about her first.

[137] Both parties are hereby specifically prohibited from denigrating, insulting, or otherwise referring to the attitude or conduct of the other party in the presence of the children or within visual or hearing distance of the children.

[138] Both parties are prohibited from asking for information about the other parent from any third-party supervisor. Any communication by either parent to the third-party access supervisor shall concern the behaviour and emotional well-being of the children only and shall not concern the conduct of the other parent.

(h) Access to the Respondent

[139] The Respondent is permitted to attend school concerts or games and sports events involving one or both children provided he is in the company of an extended family member if the activity involves the child James. He is permitted to attend any and all school functions, concerts and sports events involving the child Lexi on his own. However, the Respondent shall not communicate with or engage in any manner whatsoever with the child(ren) unless such contact is initiated by the child(ren). The Applicant shall not withhold the child(ren) from communicating with the Respondent or cause them to avoid the Respondent if they see him.

[140] Commencing the week of Monday May 13, 2019, both children shall speak to the Respondent once per week (save and except Fridays, Saturdays and Sundays) at 7:30 pm by way of FaceTime, Skype for two or three minutes per child to a maximum of five minutes. The Applicant shall arrange the communication and shall not be in the room when they children are speaking to him.

[141] Commencing Saturday May 4, 2019, the child James shall be in the care of the Respondent the first, second and fourth Saturday of every month from 9:00 am to 2:00 pm such access to be supervised by Brayden. Commencing Saturday September 7, 2019, the child’s access shall be extended from 9:00 am to 5:00 pm.

[142] Commencing Sunday May 5, 2019, the child, Lexi, shall be in the care of the Respondent the first, second and fourth Sunday of every month from 9:00 am to 2:00 pm such access to be supervised by the Respondent’s mother. Commencing the Sunday September 8, 2019, the Respondent’s access to Lexi shall be unsupervised and extended from 9:00 am to 5:00 pm.

[143] Commencing with the first access in September 2019, the Applicant shall send with the child, a note setting out any and all projects/homework and/or assignments the child has for school and shall inform the Respondent as to how the Respondent can contribute to the successful completion of the child’s school obligations in this regard.

[144] Save and except in the month of July 2019 or August 2019 (as the Applicant may choose), commencing on Thursday May 16, 2019, both children shall be in the care of the Respondent from 5:00 pm to 6:30 pm every Thursday immediately prior to the Applicant’s uninterrupted access with the children. Access shall be supervised by the Respondent’s mother and exercised at a public restaurant of the Applicant’s choosing. The Respondent shall pay for the meals for the children and shall not remove the children from the restaurant save and except to return the children to their mother’s or her designate’s care. The Applicant shall notify the Respondent in writing on or before May 15 as to the selected restaurant which shall be the location for all access at this time.

[145] Save and except in the month of July 2019 or the month of August 2019 (as the Applicant may choose), commencing on Monday May 20, 2019 both children shall be in the care of the Respondent from 5:00 pm to 6:30 pm every Monday immediately following the Applicant’s uninterrupted access with the children. Access shall be supervised by the Respondent’s mother and exercised at a different public restaurant of the Applicant’s choosing. The Respondent shall pay for the meals for the children and shall not remove the children from the restaurant save and except to return the children to their mother’s or her designate’s care. The Applicant shall notify the Respondent in writing on or before May 19 as to the selected restaurant which shall be the location for all access at this time.

[146] Prior to June 1, 2019, the Applicant shall choose and notify the Respondent in writing whether the children’s access to their father at a restaurant on the Thursday and Monday is suspended for the month of July 2019 or the month of August 2019.

[147] Prior to June 1, 2019, the Applicant shall choose one week in July or one week in August when Lexi will have access to her father from 9:00 am to 4:00 pm Monday, Wednesday and Friday of that week such access to be supervised by the Respondent’s mother or an extended family member of the Respondent’s; and, in that same week, James shall have access to his father Tuesday, Wednesday and Thursday from 9:00 am to 4:00 pm such access to be supervised by Brayden.

[148] As of July, 2019 the Respondent’s partner and son are permitted to participate in the access if the Respondent so chooses.

[149] The Respondent is prohibited from physically disciplining the children or either of them or otherwise touching them physically save and except for their own safety and/or to express love and affection for them, on their consent. Further, the Respondent shall treat each child with respect. He is prohibited from yelling at them, calling them names or otherwise insulting them. He is not to enter into any discussion with them about allegations they make about his past conduct.

(i) Transportation

[150] When the children exercise access to their father at the restaurant, the Applicant or her designate will drop the children off and pick the children up at the restaurant.

[151] When James exercises access to his father on Saturdays, the current transportation arrangements involving Brayden shall continue in full force and effect.

[152] When Lexi exercises access to her father on Sundays, the Applicant or her designate will drop the child off and if the Applicant so chooses, pick the child up. The Respondent’s mother or other extended family member will otherwise return Lexi to her mother’s care. Prior to the first access, the Applicant shall choose the mode of transportation for Lexi to return to her care and thereafter that shall be the mode of transportation at the end of access on Sundays.

(j) Review

[153] Save and except as permitted by law, the children’s access schedule set out herein shall continue in full force and effect for not less than six months at the end of which time, the parties may initiate a review to determine whether any adjustment is warranted on the basis of reports obtained from the therapists or other professionals involved in the diagnosis, treatment and well-being of one or both of the children.

[154] The review shall be based on an assessment of the best interests of the child(ren) at that time in the context of the provisions of s. 16 of the Divorce Act with respect to access including the maximum contact principle.

(k) Costs

[155] The parties may make brief written submissions as to costs within 45 days.

Justice L. Templeton

Released: April 24, 2019

Footnotes

[^1]: It is unclear from the evidence as to when and to exactly which two of the counts of assault with respect to the Applicant, the Respondent plead guilty, but it is clear from the evidence that he did so and received a conditional sentence followed by a period of probation. The remaining counts including the charge of assaulting the child James were dismissed as withdrawn. [^2]: Contrary to the statement of Dr. Sas at page 16 of her report, the involvement of Brayden was on the consent of the parties and was not imposed by way of Court order. [^3]: Family Law Rules R. 16 (6) [^4]: Family Law Rules R. 16 (6.1) [^5]: Family Law Rules R. 16 (4); R. 19 (4.1) [^6]: 2014 SCC 7 [^7]: 2012 ONSC 3425 [^8]: [^9]: , [2004] O.J. No. 1738 [^10]: 2010 ONSC 1995 , [2010] O.J. No. 1506 . [^11]: Apparently, in response to the recommendations of Dr. Sas which I have not reviewed, the Applicant has arranged for therapy for James through the Southwest Counselling Centre on a weekly basis since September 10, 2018.