Court File and Parties

COURT FILE NO.: FC-15-1833 DATE: 2020-01-17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Maxime Gaetan Levesque, Applicant – and – Lindsay Windsor, Respondent

Counsel: Any Mayer and Tory Fishman, counsel for the Applicant Deanna Paolucci and Manraj Grewal, counsel for the Respondent

HEARD: October 8, 9, 10, 11, 30, 31, November 1 and 25, 2019 (at Ottawa)

REASONS FOR JUDGMENT

Shelston J.

Overview

[1] The issues for this trial are the custody and access to the parties’ child, Pyper.

[2] The parties resolved the issues of drug testing by the mother, table child support and section 7 expenses, extended health coverage, security for the child support and costs related to those issues by Partial Final Minutes of Settlement dated September 2019.

[3] The applicant’s (“father”) position is that he should be granted sole custody of Pyper with access to the respondent (“mother”) every second weekend, one night overnight every second week and a sharing of holidays.

[4] The respondent’s (“mother”) position is that she should have a graduated schedule of increased access with the child commencing on January 27, 2020. By June 20, 2020, the mother proposes a schedule that alternates so that on week one, she has the child from Monday after school until Wednesday morning and Friday after school until Monday morning and on week two, from Wednesday after school to Friday morning.

Father

[5] The father is 35 years of age. He is employed full-time with a flexible work schedule. He lives with the child in Orleans, Ontario.

Mother

[6] The mother is 33 years of age. She is employed on a part-time basis as a cleaner at a restaurant. Since October 1, 2016, she resides with her partner, Mr. Henley and his three children aged 7, 10 and 16 in Wendover, Ontario.

Child

[7] Pyper was born on November 1, 2012 and is currently 7 years of age. Since separation in July 2015, she has remained in the primary care of the father.

Trial Witnesses

[8] During the trial, I received and have considered the evidence of the following individuals:

(i) the father; (ii) Dr. Francis Harrison, the child’s psychologist; (iii) Mme. Cloutier, supervisor of access visits; (iv) Gaetan Levesque, paternal grandfather (v) the mother; (vi) Marlane Louis, clinician for the Office of the Children’s Lawyer; (vii) Tim Henley, mother’s partner; (viii) Mrs. Windsor, maternal grandmother; and (ix) Dr. Bissonette. mother’s family doctor.

Credibility

[9] As with any trial, the issue of credibility is an important consideration especially where there are different versions of events.

Father

[10] I found that the father was a very credible witness. His testimony was not contradicted by any other witness or by any documentary evidence. The father answered the questions presented to him and was not evasive. I find that the father was very self-controlled in his testimony. He became emotional when discussing his daughter’s mental health issues. I find that the father’s evidence was confirmed by the evidence of Dr. Francis Harrison, Ms. Cloutier and his father.

Mother

[11] The mother was very anxious during her testimony, appeared overwhelmed and was confused at the questions being asked. There were multiple occasions when her testimony was halted to allow her to take a break.

[12] The mother testified that since September 2015, she only tested positive for cocaine in June 2017. However that evidence was contradicted when on November 1, 2019, the records were produced showed that the mother tested positive for cocaine use on July 15 and November 2, 2016.

[13] The mother told the OCL assessor that she has been doing regular drug testing once a month since September 2015. The drug test results produced indicate that she was not doing the tests regularly. Further, three weeks before her meeting with the OCL assessor on August 7, 2016, the mother tested positive for cocaine. She never disclosed that fact to the OCL assessor. The mother’s statement to the OCL assessor was not true.

[14] The mother’s evidence was further contradicted when she stated in her affidavit sworn August 4, 2016 that she had been clean since September 2015. Based on the tests results that sworn statement was not true.

[15] The mother testified that she only became aware of the positive drug test results in June 2017 when she met her doctor on July 10, 2017. However, her family doctor testified that she met the mother on July 5, 2017 to discuss the positive test results. That statement by the mother was not true.

[16] I find that the mother has not been truthful in her testimony regarding her drug use. Consequently, when there is a conflict in the evidence between the father and the mother, I will prefer the evidence of the father because he is a more credible witness.

Family doctor

[17] The father submits that any evidence provided by Dr. Bissonnette should be disregarded because she misled the court and the OCL when she advised that the mother had been doing drug screening on a voluntary basis, that they were all negative and that the last positive result was in 2015. The evidence indicates that there were never multiple tests administered prior to June 10, 2016. Secondly, the doctor failed to disclose the positive test results of July 15 and November 2, 2016. Thirdly, that her evidence was not credible when she testified that she instructed the positive test results be faxed on June 30, 2017 to counsel for the father but acknowledged that the written proof was that it was only faxed on July 10, 2017.

[18] The father seeks a finding that the doctor committed perjury. I cannot make that finding on the evidence presented. Unfortunately, the doctor testified without her file thereby reducing the accuracy of her evidence. In any event, Dr. Bissonnette did not conduct the voluntary drug screens and failed to disclose the positive drug tests. Regarding the failure to fax the positive drug test on June 30, 2017, I accept her evidence that she instructed her staff to send the results. There is no evidence that she intentionally did not send the test results.

[19] However, her evidence was contradicted by the drug test results. Consequently, I find that her evidence is not reliable and credible regarding the drug testing.

Factual Findings

[20] The parties met at the end of 2010. The mother was a harm reduction outreach worker at the Somerset West Community Health Center and the father was employed with the Salvation Army.

[21] The parties moved in together in September 2011. The parties planned to have a child. Pyper was born on November 1, 2012.

[22] Both parties were very excited at the birth of their first child. They took a prenatal class together and after the birth of the child, they supported each other in caring for the infant. The child was seen by Dr. Bissonnette.

[23] After two weeks of parental leave, the father returned to work. From November 1, 2012 until December 2013, the mother was the primary caregiver of the child as she was at home on a full-time basis.

[24] In December 2013, the mother returned to work and the child was placed in a home daycare. Both parents cared for the child.

[25] After the mother returned to work in December 2013, the child had difficulty transitioning to daycare and in separating from the mother. During this period of time, the child was exhibiting separation anxiety, having sleep disturbances, becoming upset at loud noises and having night terrors. The parents consulted with the family doctor about the child sleepwalking.

[26] After the birth of the child, the mother struggled with anxiety. She testified that the relationship with the father was worsening as there was no communication, there was no affection from the father, that she did not feel loved and she felt depressed.

[27] Once she returned to work in December 2013, her doctor put her on an antidepressant, Cipralex, but after one week the mother was having severe side effects from the medication.

[28] In February 2014, the mother started using cocaine every day at work. By the fall of 2014, the father noticed that the mother continually had a runny nose, her hands were shaking, she was secretive, she was coming home late and at times would leave the house for a few hours without explanation. By January 2015, the parties’ marital problems worsened.

[29] In January 2015, the mother admitted to the father that she was using cocaine. The father was shocked. At the same time in January 2015, the mother told her employer that she was using cocaine. The mother attended a five-day detox program in Kingston from January 27 to January 31, 2015. During this time, the father cared for the child.

[30] Within 2 days of returning to work, on February 3, 2015, the mother was suspended from her employment because of reports of her working while under the influence of illicit drugs, showing lack of courtesy and respect for coworkers, clients and other workers by disclosing an excessive amount of personal information and breaching professional boundaries with clients. She was put on unpaid leave during which she was required to apply for and complete a rehabilitation program for substance abuse. Upon successful completion of the program, she was offered the right to return to her position.

[31] The mother went on short-term disability on February 9, 2015 until mid July 2015 when she went on long term disability which she received until January 31, 2019.

[32] The mother stayed home and cared for Pyper while applying to various programs. The mother attended a rehabilitation program at the Homewood Health Centre in Guelph, Ontario from March 12, 2015 to April 30, 2015. During this time, the child remained with the father. The mother would Skype with the child on weekends and she was allowed to come home for one weekend. The father was supportive of the mother’s attempts to address her addiction issues and even attended a three-day program in support of the mother.

[33] While in the program, the mother admitted to the father that she had an affair. After returning from the program, the mother appeared happy and the parties agreed on a new start for the family. The mother agreed to go to counselling to address the affair.

[34] After attending the Homewood Health Centre in the spring 2015, the mother connected with the Amethyst Addiction Centre. She attended regular meetings and started a one-to-one program with a counsellor which focused on addiction and trauma. From December 2015 to July 2017, the mother had weekly and at times bi-monthly meetings with her therapist. In July 2017, the therapist took a leave of absence. Her family doctor referred her to the Montfort Hospital where eventually she started working with another counsellor.

[35] In 2015, the mother was diagnosed with ADHD during active addiction. By the end of May 2015, the mother appeared happy and hopeful. She attended Alcoholics Anonymous and found a home group in Orleans for Alcoholics Anonymous. However, the father noticed that at times, the mother’s hands were shaking, she had a runny nose, she was secretive, and she went away for days without notice.

[36] The situation reached a breaking point on July 19, 2015 when the father saw a text message on the mother’s phone arranging the purchase of drugs. The father confronted the mother and an argument ensued after the mother admitted using cocaine that day. The father became upset and punched a hole in the drywall. The father called the child’s paternal grandfather to come to the house. He did and spoke to both parents. Thereafter, the mother left the home and stayed with friends and her parents.

[37] The father decided to leave his own residence and move with the child to live with his parents. Once the father vacated his residence, the mother moved back into the residence.

[38] After a few days, the father decided to end the relationship. He contacted the Children’s Aid Society (“CAS”) anonymously to share his concern. On July 21, 2015, he called the CAS and identified himself and sought their assistance. A CAS worker met with the father and recommended supervised access to the mother until the investigation was completed. Within seven days, the CAS worker recommended that the father permit supervised access and that he should commence court proceedings. The mother met with the child protection worker on two occasions to discuss the issues.

[39] From separation to September 8, 2015, the mother had access approximately 10 times at the father’s residence as well as in the community.

Commencement of Litigation

[40] On August 24, 2019, the father met the mother and proposed that the parties attend mediation or that he would commence court proceedings. The mother became emotional and left the meeting. On August 25, 2015, the father commenced proceedings.

[41] There was an incident on September 2, 2015 at a scheduled access visit, arranged by the CAS at Cosmic Adventures where the child would be delivered by the paternal grandfather to the mother. An argument ensued between the mother and the paternal grandfather. The paternal grandfather decided to leave and drive away with the child. The mother contacted the Ottawa Police to stop the paternal grandfather. He was stopped, questioned and released while the child was screaming and crying in the car. After this incident, the CAS worker recommended to the father that there would be no community access and that he should proceed to court.

[42] The father brought an urgent motion on September 8, 2015, where, with the consent of the parties, Phillips. J. ordered the following:

(i) that the father was granted interim sole custody of the child until further court order or agreement between the parties; (ii) granted the father exclusive possession of the family residence effective September 11, 2015; and (iii) granted the mother supervised access at a supervision centre to be agreed between the parties and approved by the Children’s Aid Society for every Tuesday, Thursday and Saturday from 10 am to 11:30 am.

[43] The issue as to where the supervised access would occur was a problem. While waiting to select a supervision center, the mother did not have access to the child from September 8 to October 28, 2015.

[44] The parties made application at the Separation and Divorce Resource Centre (“SDRC”) and the supervised access program at the Family Services Ottawa (“FSO”). The mother proposed the Early Years Centre in Orleans which was free, but the father refused.

[45] The access took place at SRDC, paid for by the father, from October 28, 2015 to January 30, 2016. The relationship between the father and the SDRC supervisor was strained, when on October 30, 2015, after one access visit, she emailed the father recommending unsupervised and increased access. The father responded by indicating this was the first time the child had access with her mother since August 31, 2015 and that he wanted to concentrate on her well-being and supporting her. On November 22, 2015, the supervisor emailed the father suggesting increased and unsupervised access. The father did not agree.

[46] On January 28, 2016, the father emailed SDRC advising that the family had been accepted at FSO. Commencing February 7, 2016, the mother had access to the child at the FSO every second Sunday for two hours. This lasted until November 2016.

[47] The mother raised concerns about the access only being every second Sunday for two hours. On February 9, 2016, the father’s counsel wrote to the mother’s counsel offering that the mother could attend access at SDRC on the weeks when FSO was unable to accommodate her but that the mother would have to pay the costs. On April 12, 2016, counsel for the mother responded that she proposed access at SDRC on Monday, Wednesday and Friday on weeks without Sunday access and Monday and Wednesday on weeks with Sunday access.

[48] On April 22, 2016, the father’s counsel replied indicating that the interim order of Justice Phillips provided the mother with three supervised access visits per week but that she never exercised them since the date of the order. Further, she indicated that due to significant changes in the child’s mental health since Justice Phillips’ order, the father took the position that the access schedule set out in the order was no longer in the child’s best interests and he refused to permit the access ordered. Despite this order, the father did not bring a motion to vary the order of Justice Phillips.

[49] On May 13, 2016, Sheffield, J., at a case conference, appointed the OCL to prepare a Section 112 assessment report. On October 3, 2016, the OCL filed its report.

[50] On October 1, 2016, the mother moved in with Mr. Henley in Wendover, Ontario. At that time, Mr. Henley was working in a restaurant. He suffers from a drug addiction and his clean date is January 17, 2016.

[51] In October 6, 2016, the mother proposed having access to the child every Tuesday and Friday from 9 a.m. to 11 a.m. at a community centre in Orleans in addition to the continued access at FSO as well as raised the issue of having Skype access. There was no agreement.

[52] On November 8, 2016, the mother brought two motions, one for contempt against the father as well as an order for increased access to the child and a second motion seeking joint custody of the child, and a gradually increasing unsupervised access schedule until the parties have relatively equal parenting time, in accordance with the recommendations of the OCL. In response, the father brought his own motion seeking to vary the mother’s access to one visit of two hours at the FSO on alternate Sundays plus one visit for two hours at Centre Vallée-Jeunesse on alternating Sundays, as well as an order for child support.

[53] On November 18, 2016, Linhares de Sousa, J. ordered the following:

(i) she found the father in contempt of the order of Justice Phillips dated September 8, 2015; (ii) the father may purge his contempt by complying with the court order; (iii) the mother will continue to have supervised access at a supervision centre three times per week for duration of two hours per visit for a total of six hours per week. The centre may be FSO, the SDRC or the Centre Vallée-Jeunesse or any other centre that the parties can agree on; (iv) the mother shall immediately arrange to participate in a program of random urine testing for illicit drugs in her system to be done two to three times per month randomly at a minimum. The mother will bear the cost of these tests. The mother shall immediately share with the father when these tests take place and their results; (v) by March 2017, the visits shall become unsupervised if the mother has been able to provide between now and then a series of random negative drug urine test, undertaken in accordance with the order; (vi) if the mother fails to provide the series of random negative drug urine tests, the unsupervised access shall take place for four hours on Saturday or Sunday of each week commencing the first weekend of March 2017; (vii) commencing the first weekend in May 2017, the weekly unsupervised visits shall be extended to eight hours or full days, from 9 a.m. to 5 p.m. on Saturday or Sunday; (viii) commencing the first weekend in July 2017, if the matter has not yet been decided on its merits or if the parties have not otherwise agreed, unsupervised overnight access on alternate weekends from Saturday 9 a.m. until Sunday 5 p.m. In addition, in the week preceding the non-access weekend, the mother shall have unsupervised access to the child for eight hours during the summer months, 9 a.m. to 5 p.m. when the child is not in school and from after school to 7 p.m. when the child is in school. This midweek access shall be on a date agreed to by the parties and on Wednesday if the parties cannot agree; and (ix) commencing the first weekend in September 2017, the alternate weekend access shall become full weekend access from Friday after school to Sunday at 7 p.m.. In addition, the midweek access preceding the non-access weekend shall become one overnight access on a date agreed to by the parties, and on Wednesday if the parties cannot agree with the mother being responsible for picking the child up from school and returning her to school the next morning.

[54] Thereafter, the parties agreed to use another supervision center, Centre Vallée-Jeunesse and that the access occurred three times per week for two hours at each visit on one week, being on Tuesday, Friday and Sunday and during the second week, access on Tuesday and Friday for an initial period of three months.

[55] On February 13, 2017, the parties agreed to a temporary order at a settlement conference were Roger, J., ordered the following:

(i) that access at the mother’s residence will be on Sunday between 10 a.m. to 2 p.m. with pickup and drop off at the Rockland Tim Horton’s by the mother’s sister or another person mutually agreed upon starting March 5, 2017; and (ii) starting March 1, 2017, on a temporary and without prejudice basis, the mother will pay to the father child support in the amount of $254 per month based on her income of $30,804.

[56] In April 2017, the mother filed for personal bankruptcy.

[57] The mother’s access followed the order of Justice De Sousa without incident.

[58] On June 30, 2017, on the eve of the mother having unsupervised access for a full weekend, the doctor received a positive test for cocaine. The test results were only provided to the father’s counsel on July 10, 2017. After receiving confirmation of a positive test result, the father brought an urgent motion which was heard on July 25, 2017 to vary the mother’s access.

[59] On July 25, 2017, O’Bonsawin, J., ordered that the matter be heard on an urgent basis on August 18, 2017 and based on the consent of the parties varied the mother’s access as follows:

(i) on Tuesday from 1 p.m. to 4 p.m. access to take place at François Dupuis pool supervised by the paternal grandfather; (ii) on Friday from 1 p.m. to 4 p.m. at Kids Kingdom supervised by the father; (iii) all transportation to and from the visits to be done by the father; (iv) the mother is permitted to attend at the child’s soccer games and practices on Friday but will not attend the child’s horseback riding lessons until further agreement or court order; and (v) until the motion of August 18, 2017, the mother shall attend for drug screening tests with Dynacare Lab at Dr. Bissonnette’s office every Monday, Wednesday and Friday. The results shall be forwarded to the father’s counsel as soon as the results become available.

[60] On August 18, 2017, Ryan-Bell, J., ordered that the mother was to have supervised access as follows:

(i) at a supervision centre, three times per week, for duration of two hours per visit, for a total of six hours per week. The supervision centre may be FSO, SDRC, Centre Vallée-Jeunesse or any other centre on which the parties can agree that might accommodate the ordered access schedule. The visits may take place during the week or on consecutive days on the weekends, as agreed to by the parties; (ii) any visits that are missed through no fault of the mother shall be made up within seven days of the missed visit; and (iii) all costs associated with the supervised access shall be borne by the mother; (iv) beginning in October 2017, the mother’s access shall be unsupervised if the mother is able to provide negative drug urine tests set out in accordance with the terms of the order which required the mother to attend at Dynacare Lab, via her family physician’s office, three times per week, more specifically on the Monday, Wednesday and Friday of each week. In addition, the mother shall submit for a hair follicle test, within 48 hours of a request from the father, which may be requested every three months. (v) If the mother provides negative drug urine testing and negative hair follicle testing, the mother’s access would become unsupervised on a gradual basis as follows: (a) commencing October 1, 2017, the mother to have one unsupervised visit for four hours each week on Saturday or Sunday from 10 a.m. until 2 p.m.; (b) commencing on November 19, 2017, the mother to have one unsupervised visit of eight hours per week from 9 a.m. to 5 p.m. on Saturday or Sunday; (c) commencing on January 6, 2018, the mother to have unsupervised overnight access in her home commencing with one overnight on alternate weekends from Saturday 9 a.m. until Sunday at 5 p.m. In addition, in the week preceding the non-overnight weekend, the mother shall have unsupervised access to the child for eight hours during the summer months, from 9 a.m. to 5 p.m. when the child is not in school and from after school to 7 p.m. when the child is in school. This midweek access shall be on a date agreed to by the parties and on Wednesday if the parties cannot agree. The mother shall pick up the child from school for her mid week access; and (d) commencing the first weekend of March 2018, the alternate weekend access shall become full weekend access from Friday after school until Sunday at 7 p.m. In addition, the midweek access preceding the non-access weekend shall be one overnight access on a date agreed to by the parties or on Wednesday if they cannot agree, with the mother being responsible for picking the child up from school and returning to school the next morning, (vi) in the event the mother tests positive for any non-prescription drugs in her system (other than cotinine) in the future: (a) the mother’s access shall automatically revert to a supervised access schedule which shall take place at a supervised centre, for a period of 14 weeks, at the mother’s sole cost; and (b) the mother’s supervised access shall only progress to unsupervised access if the mother provides negative drug test results for a period of 14 weeks following which the mother’s access shall progress as per the schedule and timeframe set out in Justice Linhares de Sousa’s order dated November 18, 2016.

[61] By March 2018, the mother’s test results were all negative and she started unsupervised access.

[62] On August 1, 2018, the mother filed a motion seeking to increase access, change her urine screen regime and obtain an updated OCL report. Justice Audet dismissed the motion but with the consent of the parties varied the drug screening requirement as follows:

(i) the father is permitted to ask for up to four drug screens per month; and (ii) the mother shall obtain such tests within 24 hours of requests. If the request is made on a Friday or Saturday, she shall have until 5 p.m. on Monday to do so.

Child’s Mental Health

[63] On November 9, 2015, the father and the child met with a social worker at the Centre Psychosocial, Ms. Dufour as the father was concerned that the child was regressing at school and that in the previous two weeks, she was having significant anxiety issues at the start of supervised access by the mother at the SDRC. Ms. Dufour recommended that the child see a child psychologist.

[64] Despite the recommendation, it was only six months later that the father arranged for the child to be seen by a child psychologist in May 2016.

[65] In May 2016, the father met with Dr. Francis Harrison, a child psychologist, to explain the issues that he was facing with respect to his daughter. The father told the psychologist that he had sole custody and that he could consent alone for the doctor to start working with the child.

[66] During the first interview with the father, the father described his concerns being that the child was not talking, that she would make baby and animal sounds, that she was running under beds, that she was wetting the bed, that she was soiling herself, that she was crawling on the floor, that she slept in the hallway and that she insisted on locking all the doors. Further, the father indicated that the child was unable to separate from him which was observed by the doctor as it took time for the child to get comfortable enough to allow the father to disengage from the sessions with the child.

[67] From May 30, 2016 to the date of the trial, the psychologist saw the child every second week for a visit of 50 to 60 minutes in duration. It took until mid October 2016 for the child to allow the father to leave the room during the sessions with Dr. Francis Harrison.

[68] Dr. Francis Harrison prepared three assessments being November 2, 2016, May 31, 2018 and September 9, 2019.

[69] In her first report dated November 2, 2016, she found that the child was an anxious four-year-old who displayed psychological restriction and was delayed in the development of pretend and creative play. She opined that the restriction is likely in part connected to high levels of anxiety. She noted that the child has less of an ability to cope, is not communicating, avoids eye contact and may be on the autism spectrum. The doctor received information from the child’s junior kindergarten teacher that the child was only attending half days and that she has anxiety, is withdrawn and has significant difficulty in separating from the father to attend the program. Her recommendation was that the child should obtain supports at school and at home to deal with the problems. Further, at page 3 of her report she stated:

At present, Pyper’s ability to cope is less than average for a child her age. She is easily overwhelmed and displays signs of stress. She is experiencing difficulty with the normal developmental milestone of attending school. Further, she is less able to be age appropriately independent. Pyper requires extra care and attention to ensure that she does not become overwhelmed.

[70] On February 14, 2017, Dr. Francis Harrison met with the mother to obtain her input as to the issues concerning her daughter. The mother advised that there was stress in the home while the child was growing up as there was parental conflict, no real communication between the parents and that there were financial issues. The mother expressed hope to be able to work with the father to address these issues but she was concerned because of the conflict between the parties. Further, at that meeting, the mother raised the issue that she was concerned that Dr. Francis Harrison was biased in favour of the father as the mother was not involved from the beginning of the therapy sessions and was not afforded an opportunity to provide her version of events. The doctor denied having any bias.

[71] After the meeting the mother emailed the father to try to work together to support the child. The father agreed if it was recommended by the psychologist. Over the next few months, the mother proposed that she would attend any joint meeting with her therapist. The psychologist initially agreed but required the consent of the father. The father did not agree. There never was a joint meeting.

[72] In her second report dated May 31, 2018, the psychologist sought information from the child’s classroom teacher, the father and the mother. She concluded that the child continued to exhibit clinically significant levels of anxiety in the classroom and school environment. The information from the father was consistent with her finding of significant levels of anxiety while the mother reported much fewer problems. The psychologist found that the child exhibited difficulty separating, dealing with change, feeling nervous, fearfulness and worrying. The psychologist recommended that the child would benefit from an individual educational plan (“IEP”) that provides extra assistance in the school to help her cope with her anxiety.

[73] In her third report dated September 9, 2019, Dr. Francis Harrison found that the child’s adjustment in the school environment had improved. However, there were still significant concerns as follows:

(i) her academics were rated in the borderline clinical range and her adaptive functioning was in the clinical range; (ii) her social worker expressed serious concern about the child’s behaviour and emotional adjustment as compared to her age mates. The child displayed significant anxious behaviour as well as aggressive and rule breaking behaviours in the school settings; (iii) the child continued to display significant separation anxiety which was complicated by the parenting schedule that requires her to move from home to home regularly; (iv) she believed the child to be of average intelligence and ability to perform academically however, at this stage, her performance is hampered by anxiety (social, performance and generalized anxiety); and (v) she found that it was important to gently assist the child to go beyond her comfort zone to help her build new positive experiences and if she is pushed too far outside of that zone, the child is likely to be overwhelmed and retreat to an even smaller comfort zone. She recommended that small steps would have a high likelihood of success, accompanied by support and encouragement, would help her build a sense of herself as more competent and able.

[74] When Dr. Francis Harrison testified in the trial on October 7, 2019, she testified that presently the child talks, looks a person in the eye, the separation anxiety is much less than it was in May 2018, that the child opens up to the doctor about her life and that the doctor has dropped any concern about the child being on the autism spectrum. According to her collateral contacts from the school, the child shows significant anxiety but it is better than in the past.

[75] In cross-examination, Dr. Francis Harrison agreed that the child can be pushed beyond her comfort zone because if she is not pushed, it reinforces her anxiety. She indicated it was better to push the child to deal with her anxiety. However, any change must be very gradual otherwise it will affect the child’s psychological well-being. Further, she opined that when developing a parenting schedule, the parties must keep the child’s special needs in mind and that she needs time to adjust to changes and that all transitions are difficult for her. She recommended small changes over time because the anxiety suffered by the child is constricting her life.

[76] Ms. Cloutier, the child’s social worker at school, had worked with the child from kindergarten. She worked again with the child from November 2018 to March 2019 to address issues such as the child intentionally coming to school late to avoid interacting with her schoolmates, refusing to do homework, aggressive behaviour with friends and being anxious. She testified that the child had significant difficulty separating from her father but over time by the spring of 2018 she was better.

[77] In response to the request of information from Dr. Francis Harrison, she reported that in June 2019, Pyper had said to other students that she wanted to die.

[78] The social worker indicated that most of her information and contact was with the father. She reached out to the mother in January 2019 and had spoken to her on two occasions and met her at the school one or two times.

Report of the Office of the Children’s Lawyer

[79] On July 11, 2016, Ms. Louis was appointed the clinician to conduct the investigation for the OCL. Ms. Louis conducted interviews and contacted personal and professional collateral contacts between July 26 and September 19, 2016. She conducted a disclosure meeting on September 21, 2016 and completed her report on October 3, 2016.

[80] The clinician met the father for the first interview at Tim Horton’s to obtain background information where he indicated he wanted sole custody and no access by the mother. She met with the mother and had observation of both parents with the child. She made an observation visit of the mother’s access with the child at FSO and found the child was very comfortable and she had no concerns. She spoke to the supervisor at SDRC who confirmed that the visits were positive, and that the supervisor had recommended unsupervised access but that the father had refused.

[81] She was concerned that the father did not think the mother should be involved in the child’s life and that her access should increase. She spoke to Dr. Bissonette who advised that she was seeing the mother every four to six weeks, was conducting drug tests and the last positive test was in 2015. The clinician spoke to Dr. Francis Harrison, but she did not have a clear picture of what was going on, so she relied on other information and her own observations.

[82] The clinician indicated she wanted to produce an interim report since the mother had limited access, but the father insisted that the report be on a final basis. The clinician’s opinion was that the mother needed her role in the child’s life as she wanted to be involved and wanted to have input. It was the clinician’s view that a child should have both parents involved in her life.

[83] In cross-examination, the clinician testified that if the mother was not sober, she would not have recommended a joint custody arrangement, especially if she was using drugs. The clinician relied on the mother, her family doctor and her counsellor, Ms. Letang, to confirm the mother’s sobriety.

[84] Her recommendations were as follows:

(i) the parents to have joint custody with shared time done progressively with the mother as set out in her report resulting in that by August 2017, the child would be alternating residences every Friday at 3 p.m.; (ii) all exchanges to be done through mutual third party or by the parties in the designated public place; (iii) during the first stages of the gradual access, the father is to inform the mother about the important events in the child’s life, such as school projects, medical or psychological recommendations, extracurricular activities, etc.; (iv) the parents shall share inputs about important decisions for the child. In the event they cannot agree along the way, they might consider a parenting coordinator to help with decision-making; (v) the parties to share holidays; (vi) the parties are strongly encouraged to remain respectful with each other and abstain from making negative comments about each other in front of the child; (vii) to facilitate communication, it is recommended that the parents use a website such as www.ourfamilywizard.com which would allow them to communicate on a secure site. It would also allow for posting of a schedule as well as other services available on the website; (viii) the party who does not have the child is allowed to call up to three times a week. The call should be initiated by the parent, and the conversations to remain child friendly; (ix) the mother is to remain sober, providing urine test result once per month to the other party via his lawyer, during the period of the Progressive Shared Custody Plan; (x) the mother is to continue her involvement with her therapist and family physician; (xi) the father is to attend counselling sessions with particular emphasis on effective parenting and co-parenting. These services are available at the family services of Ottawa (FSO), Orleans-Cumberland Community Resource Centre (OCCRC) or Le Centre Psychosocial (CPS) d’Ottawa; (xii) the child is to continue her therapy sessions with Dr. Francis Harrison with special focus on separation and past traumatic events; and (xiii) the father is to allow mother and child to attend therapeutic sessions together.

Mother Drug Usage and Testing

[85] The mother’s use of drugs and her potential for use of drugs has been an major issue in the parties’ separation.

[86] The mother described the term “slip” as a one-time isolated mistake of using drugs. She indicated that the term “relapse” is continuing the cycle of addiction. The mother said that after attending the Homewood Health Centre in 2015, she had three slips, being July 2015, September 2015 and June 26, 2017.

[87] She testified that on February 1, 2017 she was diagnosed with bipolar disorder and has been taking medication from the diagnosing psychiatrist. By letter dated November 22, 2018, her family doctor confirmed that she has been following the recommended treatment plan, is receiving monthly therapy and is stable with respect to this illness.

[88] The mother emphasized that she recognizes her recovery is so important and that she has paid a high price for one year of active drug addiction. She testified she has rebuilt her life from the ground up, is stable with her medication and has been in a loving relationship for three and a half years.

[89] She testified that in 2016 she did four tests on her own and after the order of November 2016, she complied with the drug testing all of which were negative except one. Further since the decision of Justice O’Bonsawin on July 25, 2017 to trial, she has not tested positive for illicit drugs.

Custody and Access

Legislative and Jurisprudential Considerations

[90] 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, any or all children of the marriage ( s. 16(1) Divorce Act ).

[91] The court may make an order under this section granting custody of, or access to, any and all children of the marriage to any one or more persons ( s. 16(4) Divorce Act ).

[92] 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 ( s. 16(8) Divorce Act ).

[93] 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 the other 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 conduct ( s. 16(10) Divorce Act ).

[94] In addition to the provisions of the Divorce Act, subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), provides the court with a more detailed list of factors to consider in determining the best interests of children as follows:

Best interests of child

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

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities 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.

[95] The child’s best interests are not merely “paramount”—they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[96] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[97] No one factor in the statutory definition of a child’s best interests is given statutory preeminence: Wilson v. Wilson, 2015 ONSC 479.

[98] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them: Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.

[99] The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability: Wilson v. Wilson, 2015 ONSC 479.

[100] The child should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz, [1996] 2 S.C.R. 27. The Court must view what is in the best interests of the child, not the parents. The “maximum contact” principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per Justice McLachlin.

[101] The only relevant issue in custody and access matters is the best interests of the child. ( Gordon v. Goertz, 1996 SCC 52).

[102] In Kaplanis v. Kaplanis, 2005 ONCA 1625, 2005 O.J. No. 275, the court of appeal set out principles in determining whether a joint custody order is appropriate as follows:

(i) there must be evidence of historical communication between the parents and appropriate communication between them; (ii) joint custody should not be ordered in the hope that it will improve their communication; (iii) just because both parents are fit does not mean the joint custody should be ordered; (iv) the fact that one parent professes an inability to communicate does not preclude an order for joint custody; (v) no matter how detailed a custody order, there will always be gaps and unexpected situations and when they arise they must be able to be addressed on an ongoing basis; (vi) the younger the child, the more important communication is; and (vii) any interim custody order and how that order has worked as a relevant consideration for the trial judge or any reviewing court.

[103] The jurisprudence provides guidance as follows:

(i) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of what such conflict’s impacts are on the well-being of the child. If the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interest ’s ahead of their own, an order for joint custody may be appropriate ( Ladisa v. Ladisa, 2005 ONCA 1627, 2005 CarswellOnt 268 OCA); (ii) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation ( Lawson v. Lawson, 2006 ONCA 26573, 2006 CarswellOnt 4789 OCA); (iii) where it is necessary to preserve the balance of power between the parties, particularly cases were both parties are caring and competent parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate ( Khairzad v. Macfarlane, 2015 ONSC 7148 and Fraser v. Fraser, 2016 ONSC 4720); (iv) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication ( Khairzad v. Macfarlane, 2015 ONSC 7148); (v) courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable ( Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209); (vi) the issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis ( Warcop v. Warcop, 2009 ONSC 6423, 2009 CarswellOnt 782); (vii) joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interest ( Graham v. Bruto, 2008 ONCA 260); (viii) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict and if the conflict impacts the well-being of the child. ( Ladisa v. Ladisa, 2005 ONCA 1627, 2005 CarswellOnt 268 OCA) (ix) where it is necessary to preserve the balance of power between the parties, particularly cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. ( Khairzad v Macfarlane, 2015 ONSC 7148 and Fraser v. Fraser, 2016 ONSC 4720);

[104] In Cook v. Sacco, 2006 ONCA 37116, the court rejected an appeal of the trial decision ordering joint custody in a case where the mother had addiction problems related to alcohol and cannabis and then had been diagnosed as having bipolar affective disorder. The court acknowledged that the mother’s sobriety and addiction were clearly significant issues in determining the best interests of the children and found that the trial judge had based the order on the best interests of the children and all relevant considerations. Specifically, at paragraph 9, the court stated:

9 ….. The trial judge recognized that the legal test was the best interests of the children and specifically dealt with all of the factors relating to that test. The trial judge did comment that joint custody would be contingent on the respondent’s continuing efforts to stay clear of substance abuse. He also opined that joint custody would serve as an incentive to her and that a delay in commencing joint custody could be a disincentive. A parent’s sobriety and addiction issues are clearly significant in determining the best interests of children and the trial judge did not commit an error in making the comments he did. The trial judge saw the respondent’s sobriety as a factor in determining her fitness to parent and not as an end in and of itself, or the objective of his ultimate parenting decision. The factual findings made by the trial judge served as a backdrop to his analysis of what was in the best interests of the children.

Analysis on Custody and Access

Decision-making

[105] I find that the parents love the child and the child loves them.

[106] I find that from the birth of the child on November 1, 2012 to December 2013, both parents played an integral rule in the child’s life. Things changed when the mother started using cocaine. The mother readily admits that her decision to use cocaine was wrong, regrettable and has placed her in the position she finds herself during this trial.

[107] I find that the father was supportive of the mother’s attempt to deal with her addiction when she went away to Guelph for the seven-week program.

[108] The father did not trust the mother in July 2015, again in June 2017 and at the end of the trial when it was disclosed of the mother that she tested positive for cocaine use on July 15 and November 2, 2016. The father’s position is that the mother is a drug addict and that there is a risk that she may use drugs in the future and for that reason she should have no say in her child’s major decisions.

[109] The father seeks to have sole custody of Pyper to make all decisions for the child while the mother seeks to have a joint custodial regime where both parties have input. The father submits the joint custody is not appropriate for the following reasons:

(i) mother’s significant history of drug addiction issues; (i) mother’s significant history of mental illness; (ii) child’s special needs requiring high level of cooperation and communication between the parties to ensure that important decisions concerning the child are made in a timely manner; (iii) mother’s refusal to acknowledge the child’s special needs; (iv) mother’s lack of confidence in Dr. Francis Harrison and her recommendations as well as mother’s refusal to get involved with the child’s treatment; (v) the history of communication issues between the parties; and (vi) the status quo.

[110] The mother denies the reasons set out by the father and states that she has addressed her drug addiction issues, has addressed her mental illness, recognizes the child suffers from anxiety, is prepared to work with Dr. Francis Harrison and the school, has the ability to communicate with the father. She submits that she is ready willing and able to have an equal say in all decisions affecting her daughter.

[111] Since September 2015, the mother has been excluded from providing any input regarding her child. The mother wants to work together with the father. She admits that she has hurt the father in the past.

Mother’s Drug Usage

[112] Since September 2015, the mother has had five incidents where she used cocaine. From late November 2016 until August 2019, the mother has been submitting to extensive drug screens and there has only been one positive test in June 2017.

[113] The mother has agreed in the Partial Final Minutes of Settlement to future drug testing and in the event, she tests positive any time, her access will be supervised.

[114] I find that today the mother is a much different person that she was in 2015. I find that she has been clean from drug use since June 2017, is employed, is in a loving relationship and continues to address her addiction and mental health issues.

[115] Many of the father’s submissions address the mother’s drug usage from 2013 to 2017. The father submitted that the drug testing undertaken by the mother was not supervised by the family doctor and possibly the mother switched urine testing. I find no evidence to support this allegation.

[116] Based on the above, I reject the father’s submissions that the mother’s drug use prevents her from having input into major decisions affecting her child.

Mother’s Mental Health

[117] The father submits that the mother has serious mental health issues and for that reason she should not have input into the child’s major decisions.

[118] The mother has been diagnosed as having anxiety, depression, ADHD during active addiction and bipolar disorder. The mother takes medication to address these issues.

[119] Dr. Bissonnette testified and stated in her letter dated November 22, 2018 that the mother is stable and is taking the medication recommended by the treating psychiatrist. She confirmed that the mother was following the recommended treatment plan and was receiving monthly therapy and that currently her condition is stable with respect to that illness.

[120] The mother received counselling at the Amethyst Woman’s Addiction Centre to address her addiction issues from December 2015 to July 2017. She then, through the assistance of her doctor, was referred to another mental health counsellor through the Montfort Hospital located in Rockland, Ontario. She pursued this counselling until the summer 2019 when the counsellor and the mother agreed that she would need only to see the counsellor on an as-needed basis

[121] I find that the mother has anxiety issues, as was evident during the trial, but is living her life with her challenges with the assistance of her family doctor and medication.

[122] However, the mother admitted that her anxiety may interfere with attending a doctor or dentist appointment with the father while she sees no issue meeting at gymnastics or at the school because they are public places.

[123] These parties have had challenges together and will face more challenges in the future.

[124] However, I reject the submission that the mother’s mental health issues prevent her from having an equal say in her child’s major decisions.

Child’s Special Needs, Mother’s Refusal to Acknowledge Said Special Needs and Mother’s Lack of and Refusal to be Involved with the Child’s Treatment by Dr. Francis Harrison.

[125] While I agree that when she became aware of the involvement of Dr. Francis Harrison in November 2016, the mother wanted another child psychologist to be retained as she was unsure of the allegations raised regarding her daughter’s behaviour and had fear of bias.

[126] I agree with the father that after separation, the mother may not have appreciated how severe the child’s anxiety was. However, I note that the mother had very limited, supervised access to her daughter at either SDRC or FSO. I find that the mother, her partner and the maternal grandmother have not experienced the severe anxiety described by the father and the paternal grandfather that the child suffered in the past

[127] During their testimonies, both the mother and her partner testified that they are aware that if the child is triggered, she will suffer severe anxiety. They recognize that once triggered, the child must be wound down. I accept the evidence of the mother and her partner that the child has never had a “complete meltdown” while in their care.

[128] The mother has agreed in the Partial Final Minutes of Settlement that the child continue her therapy with Dr. Francis Harrison. Further, the mother testified that it was clear to her that the child is struggling emotionally in every environment including school.

[129] The mother acknowledged that she struggles with anxiety and has all her life but that she has something to offer to her daughter because she knows how the child is feeling. The mother indicated that she had tried breathing techniques and uses essential oils and lavender in the child’s room to address her issues with anxiety. For example, the mother testified that she went to a hockey game with her father and the child and requested from the teacher to borrow her headphones, if she needed them. The mother testified the child did not need the headphones but she had them if needed. I find that this is an example that the mother has acknowledged the child’s challenges and has accepted protocols to reduce her anxiety.

[130] Further, during the trial, the mother acknowledged that the child struggles with change and she needs to take things slowly.

[131] While I find that the father was supportive of the mother’s challenges with her drug addiction, that support ended on July 19, 2015. Since that time, the father has attempted to protect his daughter from his belief that the mother is a drug addict. This belief was reinforced when on the last day of the trial, the mother’s positive test results for July 15 and November 2, 2016 were disclosed.

[132] The father submits that the child has special needs that require a high level of cooperation and communication that may require important decisions being made in a timely manner. While I agree that the child has serious mental health challenges, I reject the submission that decisions may have to be made quickly which would prevent a joint decision being made. The child had therapy every two weeks with her psychologist and has significant supports in place for her at school. There is no evidence she suffers from any physical issues. There is no evidence that since July 2015 there was any circumstance requiring an emergency decision to be made regarding the child’s mental or physical health.

[133] I conclude by finding that both parents acknowledge that the child suffers from mental health issues and both have agreed to her continuing therapy with Dr. Francis Harrison. Both parents have embraced the supports from the school.

[134] I reject the father’s submission that the mother has not acknowledged the child’s special needs. I find that she is aware of her daughter’s challenges, agrees to psychological intervention and has employed techniques to address the child’s anxiety.

[135] The father takes the position that the parties do not communicate, that there is no evidence of historical communication and due to the child’s young age, communication is very important. The mother submits that the parties do communicate, that the communications are polite and child focused, but it has been the father’s decision to eliminate the mother from any input on decisions regarding the child.

[136] I find that the communication between the parents has been respectful, polite, collegial and child focused.

[137] I find that between November 4, 2018 and April 2, 2019, the mother sent emails to the school teachers where she complained that the father’s emails to her were vague, that this is a high conflict matter, that the father refuses to co-parent and that the father is not informing the mother regarding the child’s school progress. I find that while the emails to the teachers were critical about the father, I accept that some of the emails were at times vague, the father refused to co-parent and the mother was frustrated by the information received from the father.

[138] The father sent the mother weekly emails on Sunday and the mother sent emails to the father after every access visit. The parties attend the child’s extracurricular activities and have agreed that they would rotate attendances of the child’s year-end field trip.

[139] Other than the incident of September 2015 between the mother and the paternal grandfather, there is little evidence of any conflict between the parties and no evidence that the child has been exposed to any parental conflict.

[140] I find based on testimony of the father, the mother and Mr. Henley, that the parties are able to be polite and civil to each other while in the presence of the child.

Lack of Trust Between the Parties

[141] The mother testified that she trusts the father and that since the child has been in his care, he has made appropriate decisions for her care. On the other hand, the father does not trust the mother. The father testified that this lack of trust will make it very difficult for him to co-parent with the mother.

[142] Both parties have failed to disclose relevant information to the other. The father failed to advise the mother that:

i) he took the child to meet Ms. Dufour; ii) he retained Dr. Francis Harrison to provide therapy to the child; iii) he changed the family doctor at the end of November 2016 and selected a new family doctor; iv) he failed to advise the mother in advance of any medical or dental appointments for the child.

[143] On the other hand, the mother failed to advise the father that:

i) she was diagnosed with bipolar disorder in February 2017 until November 2018; ii) the mother provided the father with no information as to with whom she was living when she moved in with her partner on October 1, 2016; iii) the mother failed to disclose her positive test results for cocaine on July 15 and November 2, 2016 until November 1, 2019; iv) the mother failed to advise the father that she was in receipt of disability income when she declined to pay for the $60 cost for each supervised access at SDRC from October 2015 to January 2016.

Status Quo

[144] Since September 8, 2015, the father has made all decisions regarding the child’s education, medical care and extracurricular activities. However, that was based on the father being granted interim sole custody of the child, with the consent of the mother. I accept the mother’s evidence that she never expected that the interim order would last over four years.

Father’s Actions Since Separation

[145] I am concerned about the father’s actions since separation including, his failure to encourage maximum contact between the child and her mother, his failure to advise the mother that the child was seeing Dr. Francis Harrison and his finding of contempt by Justice De Sousa.

[146] After separation, the father requested that Dr. Bissonette not share with the mother any medical information regarding the child. The doctor requested a court order to that effect, but one was never provided. In December 2016, the father switched the family doctor to Dr. Picard.

[147] I find that when the father avoided arranging for access of the child with her maternal grandparents, the father failed to recognize the possible negative effects on the child. The maternal grandparents were actively involved in the child’s life prior to separation. They were a positive influence on her life especially at a time when she was suffering from such anxiety. It was only when the mother had unsupervised access that the maternal grandparents resumed their relationship with this child.

[148] The father admitted that he does not invite the mother to medical or dental appointments or advise of the dates of the appointments but only provided her with an email update after the appointment.

[149] The father advocated to the OCL assessor that the mother not have access to her child. I find that to be inappropriate and a failure by the father to recognize the role that both parents have to play in the child’s life. I find that the father acted inappropriately when he insisted that the OCL prepare a final report when the recommendation of the OCL clinician was to complete an interim report because of the mother’s restricted access.

[150] I find that it was inappropriate by the father to list the mother as the fifth emergency contact on the child’s emergency contact list at the school after the father, paternal grandfather, paternal grandmother and a friend of the father.

Disposition on Custody

[151] The major decisions that will have to be made for this child relate to her education, medical care and extracurricular activities. Since the issue of religion was not raised during the trial, I have not considered it as a factor in this decision.

[152] The parties have agreed to share in the cost of Dr. Francis Harrison’s therapy. The mother has indicated she is prepared to participate in such therapy. The child is currently being seen by her family doctor, Dr. Picard. There is no evidence that there is any anticipated change in the child’s medical professionals.

[153] On the issue of education, the child is currently attending elementary school and eventually will be transitioning to high school. The child is currently attending a French school and there is no evidence that either party intends to change the language of her education. Both parties agree the child be schooled in French.

[154] The parties have agreed to share in the cost of the child’s gymnastics. There are currently no other extracurricular activities but things will change as the child gets older. At that time, the parties will have to agree on any new extracurricular activities.

[155] I find that the mother has made significant gains in her recovery. I find that it is in the best interests of the child that both of her parents have an equal say in major decisions affecting their daughter. I grant the parties joint custody of their daughter, Pyper.

Parenting Schedule

[156] Since March 2018, the mother has the child Friday after school until Sunday evening at 7 p.m. and the next week, she has the child Wednesday after school until Thursday morning drop off. During the summer, 2019, the father consented to the mother picking the child up at 10 a.m. instead of 3:20 pm on Friday one week and Wednesday the following week.

[157] Both parties have provided their draft final orders setting out the specifics of all issues including the access requested.

Father’s Position

[158] The father’s position is as follows:

(i) week one, from Friday after school (or 4 p.m. on non-school days) until Sunday at 7 p.m. If the access parenting time attaches to a Monday PD day/civic holiday, the child will be in the mother’s care until 12 p.m. on Monday; and (ii) week two, from Thursday after school (or 4 p.m. on non-school days) until drop off at school on Friday morning (or 12 p.m. on non-school days).

Mother’s Position

[159] The mother’s position is that there be a gradually increasing access schedule broken into different time frames as follows:

(i) February 1, 2020 until the March break: (a) week one, Monday after school (or 4 p.m. on non-school days) until 6:30 p.m. and Friday after school (or 4 p.m. on non-school days) until Sunday at 7 p.m.; and (b) week two, from after school on Wednesday (or 4 p.m. on non-school days) until drop off at school on Thursday morning. (ii) From the return of the March break until April 10, 2020; (a) week one, Monday after school (or 4 p.m. on non-school days) until 6:30 p.m. and Friday after school (or 4 p.m. on non-school days) until Monday morning school drop off (or 12 p.m. on non-school days); and (b) week two, from after school on Wednesday (or 4 p.m. on non-school days) until drop off at school on Thursday morning. (iii) From April 14 to June 20, 2020: (a) week one, Monday after school (or 4 p.m. on non-school days) until Tuesday morning school drop off and from Friday after school (or 4 p.m. on non-school days) until Monday morning school drop off (or 12 p.m. on non-school days); and (b) week two, from Wednesday after school (or 4 p.m. on non-school days) until drop off at school on Thursday morning. (iv) From June 20, 2020 onwards: (a) week one, Monday after school (or 4 p.m. on non-school days) until Wednesday morning school drop off and from Friday after school (or 4 p.m. on non-school days) until Monday morning school drop off (or 12 p.m. on non-school days); and (b) week two, from Wednesday after school (or 4 p.m. on non-school days) until drop off at school on Friday morning.

[160] Regarding the summer holidays, the father proposes that the mother have access twice a year, once in July and once in August, and have the option of extending her parenting time with the child from Thursday at 10 a.m. until Sunday at 7 p.m. The mother proposes that each party be entitled to one-week uninterrupted access with the child

[161] Regarding the March break, the father proposes that the mother have access depending on when her regular access occurs, either from Friday after school until Monday at 12 p.m. or Thursday at 12 p.m. until Sunday at 7 p.m. The mother’s position is that the parties equally share the March break with an exchange on Wednesday at 12 p.m.

[162] Regarding the Christmas holidays, the parties each propose that in even numbered years, the father will have the child on December 24 at 10 a.m. until December 25 at 10 a.m. and the mother will have the child from December 25 at 10 a.m. to December 26 at 10 a.m. In odd numbered years, the child will be with the mother from December 24 at 10 a.m. to December 25 at 10 a.m. and the father from December 25 at 10 a.m. to December 26 at 10 a.m.

[163] Regarding the Easter holiday, the parties each propose that in even numbered years the father will have the child from Friday at 10 a.m. until Sunday at 10 a.m. and the mother will have the child from Sunday at 10 a.m. until Tuesday morning when the child is dropped off at school. In odd numbered years, the mother will have the child from Friday at 10 a.m. until Sunday at 10 a.m. and the father will have the child from Sunday at 10 a.m. until Tuesday morning school drop off.

[164] Both parties propose that the child will be with the respective parent on Mother’s Day and Father’s Day.

[165] Regarding the Thanksgiving holiday, both parties propose that in even numbered years, the child will be with the father and in odd numbered years the child will be with the mother.

[166] Both parties agree that the child will spend Halloween in accordance with the regular parenting schedule and the parent having care of the child for Halloween will be responsible for organizing her costs in trick-or-treating.

[167] The father proposed that for Valentines Day, it should be in accordance with the regular parenting schedule and that the parent having care of the child will be responsible for purchasing and preparing with the child valentine cards for her friends and classmates.

Analysis

[168] The father submits that the mother’s access should be limited because of the mother’s lack of credibility, her positive test results and that she should not be trusted.

[169] I find that since July 19, 2015, the child has resided in a stable home environment with the father. This status quo was created as a result of the mother leaving the home after an argument with the father when he discovered that she was using drugs again. The fact remains that for the past four and a half years, the child has been cared for primarily by the father.

[170] I find that the child takes significant time to adjust such as when she started school, when the father changed his glasses or when she started therapy with Dr. Francis Harrison. At trial, the father testified that Pyper wears earmuffs to deal with noise at school and she works one-to-one with teachers when presented with a new task or she uses a stationary bike in the classroom to release her stress. The supports at school confirm the child’s anxiety issues.

[171] I accept the evidence of the father that when she does shut down, Pyper is in a different world where she throws objects, hits, hides under the bed, or takes off her clothes. Until she calms down, the child is unreachable.

[172] I accept that from October to December 2015, the father had to physically put the child in the car seat when the child went for supervised access at SRDC. I accept that once the access was transferred to FSO, the staff had to coax her out of the car on a few occasions and one time she vomited on herself in the car due to the stress.

[173] I find that today there is no longer any stuttering, the child is more at ease, she talks about what she wants but there are times when she shuts down.

[174] The mother submits that she had limited access to her child however, since March 2018, she has had the child every second weekend and one night overnight on the non-access week. She submits that there have been no issues regarding her ability to parent the child. She further submits that there have been no issues related to any mental health issues or any positive test for drug use. The mother seeks more access with her child.

[175] I accept that the mother suffers from an addiction and will for the rest of her life. Throughout the trial, the mother and Mr. Henley readily admitted that people suffering from drug addictions will have, in their words, “slips”. While that may be true, the court is concerned about the best interests of the child and is troubled when a parent may suffer from a “slip” while in a child caring role.

[176] I am troubled that the mother tested positive for cocaine on July 15 and November 2, 2016 and then failed to make that disclosure to the father until November 1, 2019. Since November 2, 2016, the mother has tested positive one time in June 2017. I recognize that the father’s view is that one positive test for cocaine use is one test too many. However, the issue of the mother’s drug usage will be scrutinized based on the terms of the Partial Final Minutes of Settlement, where the parties have agreed that the mother will submit to a urine drug test during the following periods:

(i) until September 30, 2020, the father is entitled to request that she attend random urine drug screens up to two times per month; (ii) from October 1, 2020 to April 1, 2021 the father may request one urine drug screen per month; (iii) commencing April 2, 2021, the father may request up to two urine drug screens per calendar year.

[177] If the mother tests positive for illicit drug use, then her access reverts to being supervised with a further period of negative drug testing before her access can become unsupervised. What is important is that both parties have agreed to this provision. I agree with the father that there will always be the risk that the mother uses cocaine. However, if she does, and the test result is disclosed or she fails to submit to the testing, her access become supervised.

[178] I find that the mother has a close and loving relationship with her child. This was corroborated by Mr. Henley, the maternal grandmother, and the access records of the supervised access centres. I find that the child has a close relationship with Mr. Henley’s children.

[179] I find that when the mother had supervised access, there were no parenting concerns raised at SDRC, FSO or by her own father. The access records of SDRC disclosed the following observation of the child’s interaction with her mother over the period of October 28, 2015 to January 30, 2016 as follows:

(i) the child was smiling and kissing her mother at the commencement of the access visit; (ii) the child unprompted gave her mother a hug and a kiss during the access visit and at the end of the access visit; (iii) the child ran to the mother at the beginning of the access and gave her a big hug; (iv) at the end of the access visit the child did not want to leave; (v) at the access visits, the mother and the child would laugh and play without any concern; (vi) the child became upset when she had to leave at the end of access; and (vii) the child telling her mother that she missed her.

[180] The access records at FSO disclose the following observations of the child’s interaction with her mother:

(i) hugging and kissing her mother at the beginning of the access; (ii) smiling and laughing with her mother during the access; and (iii) telling her mother “I love you mommy”.

[181] Since the mother has had unsupervised access, there is no evidence that the mother has acted inappropriately with the child. The evidence is that the child has done well in her mother’s care.

[182] I do not find that the mother’s health issues are an impediment to allowing more access with the child. The question is what access is in Pyper’s best interests.I find that it is in the best interests of the child that she has greater access with her mother.

[183] Due to the age of the child and mental health challenges, her views and preferences cannot be taken into consideration.

[184] I have also considered the conclusions contained in the OCL report. However, the report is more than three years old and many things have changed since October 3, 2016. Based on the evidence presented during this trial, most of which was not available to the OCL assessor by October 3, 2016, I have placed no weight on the OCL report due to the significant changes in circumstances since the report.

[185] In making a decision regarding the parenting schedule, the court is to consider the parties’ plans. The father’s plan is that he will live in Orleans, the child will attend school in Orleans and the mother will have access. Currently, the father lives five minutes from school.

[186] The mother’s plan is that she will live with Mr. Henley with his three children in Wendover. She will drive the child from Wendover to Orleans for school which starts at 8:50 in the morning. The parties differ over the length of the commute. The mother testified that in good weather the commute is between 30 to 35 minutes. Her partner testified that the commute is between 35 and 40 minutes and coming back it could be between 40 and 45 minutes. The father did not testify that he has done the commute from Wendover to Orleans in the morning or in the afternoon. I accept the evidence of the mother and her partner that the drive in the morning can be between 30 and 40 minutes and coming back could be up to 45 minutes. While I understand that the father is reluctant to have his daughter make such a commute when he lives only five minutes away from the school, I do not find it unreasonable for a child to commute between 30 and 45 minutes to school.

[187] The mother has been having overnight access every second week on Wednesday to Thursday morning since March 2018. There was no evidence presented that the child was late for school on Thursday morning or that the child exhibited any dysfunctional behaviour on Thursday morning. Further, the father has proposed that the mother have access every second Wednesday to Thursday morning.

[188] Today, the child’s mental health has improved. However, there are still serious challenges that face this young girl including her high degree of anxiety, her resistance and difficulty in adapting to changes and challenges at school.

[189] At this time, I do not find it is in the child’s best interests to implement the gradual increase of access advocated by the mother. I find that from May 2016 to September 2019, the child has made improvements but her transitions are still difficult for her and that is the source of part of her anxiety. I am prepared to increase the access slowly and gradually.

[190] Under the current access, the child transitions between school and the mother’s home, eight times per month, being one weekend from Friday to Sunday and the next week being Wednesday to Thursday. I will increase the mother’s access on a gradual basis starting in January to June 2020. I have determined that the number of transitions will increase to 12 per month on the regular schedule and that the time spent with the mother will be increased over a five month period.

[191] In addition, there will be further transitions for holidays such as March break, Mother’s Day, Father’s Day, summer holidays, Halloween, Thanksgiving and Christmas. These holidays are on different months and, in my view, part of the process of slowly and gradually increasing the transitions.

Disposition

[192] I order that:

(i) the father and mother shall be granted joint custody of Pyper Katherine Levesque, born November 2, 2012; (ii) the father and mother shall consult in making any major decision regarding Pyper’s education, medical care and extracurricular activities; (iii) Pyper shall continue to attend her elementary school, continue with her therapy with Dr. Francis Harrison, continue with her family doctor, dentist and her gymnastics program; (iv) day-to-day decisions regarding Pyper will be made by the parent who has the care of Pyper at the relevant time period; (v) both parties have the right to communicate directly with and receive information directly from Pyper’s school, teachers, healthcare professionals, therapists, counsellors, coaches and any other third-party or professionals involved with Pyper; (vi) both parties shall be entitled to attend Pyper’s extracurricular activities and school activities; (vii) if Pyper requires emergency medical care while in the care of one parent, that parent will notify the other parent of the emergency as soon as possible; (viii) each party shall be listed on all documents pertaining to Pyper and shall be entitled to attend any of her scheduled medical or educational appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with Pyper to speak fully and openly with both parties; (ix) each party shall be named as emergency contact with Pyper’s school and with any other organizations or professionals involved with Pyper; (x) neither party shall change Pyper’s name from Pyper Katherine Levesque without the written consent of the other party or court order; (xi) Pyper’s primary residence will be with the father; (xii) the mother will have access to Pyper commencing on January 27, 2020 as follows: a) on week one, from Monday after school or 4 p.m. on non-school days until 7 p.m. and from Friday after school, or 4 p.m. on non-school days, until Sunday at 7 p.m. and every second week thereafter with such weekend to include any statutory holiday or a professional development day; b) on week two, from Wednesday after school or 4 p.m. on non-school days until drop off back to school Thursday morning, or 12 p.m. non-school days and every second week thereafter (xiii) the mother will have access to Pyper commencing on April 20, 2020 as follows: a) on week one, from Monday after school or 4 p.m. on non-school days until 7 p.m. and from Friday after school, or 4 p.m. on non-school days, until Monday drop off at school (or 12 p.m. on non-school days) and every second week thereafter with such weekend to include any statutory holiday or a professional development day; and b) on week two, from Wednesday after school or 4 p.m. on non-school days until drop off back to school on Thursday morning, or 12 p.m. non-school days and every second week thereafter, (xiv) the mother will have access to Pyper commencing on June 22, 2020 as follows: a) on week one, from Monday after school or 4 p.m. on non-school days until Tuesday morning drop off at school or 12 p.m. on non-school days and from Friday after school or 4 p.m. on non-school days, until Monday drop off at school (or 12 p.m. on non-school days) and every second week thereafter with such weekend to include any statutory holiday or a professional development day; and b) on week two, from Wednesday after school or 4 p.m. on non-school day until drop off back to school on Friday morning, or 12 p.m. non-school days and every second week thereafter, (xv) the parties shall share the summer holidays, Christmas holidays and March break holiday, as follows: a) each party shall be entitled to one week in July and one week in August, non-consecutive, of each year. Each party shall notify the other in writing of their choice of holidays no later than April 15. In even numbered years, the father shall have the right to choose his week first. In odd numbered years, the mother shall have the right to choose her week first; and b) for Christmas, in even numbered years, the father will have access to Pyper from December 24 at 10 a.m. until December 25 at 10 a.m. and the mother will have access from December 25 at 10 a.m. until December 26 at 10 a.m. In odd numbered years, the mother will have access to Pyper from December 24 at 10 a.m. until December 25 at 10 a.m. and the father will have access from December 25 at 10 a.m. until December 26 at 10 a.m.; and c) in even numbered years, Pyper will be with the mother from the last day of school before the start of the March break holiday until Wednesday at 12 p.m. and with the father from Wednesday at 12 p.m. to the return to school on Monday morning. In odd numbered years, the schedule will be reversed or as the parties may agree, (xvi) Pyper will be with her mother on Mother’s Day from Sunday at 10 a.m. until Monday drop off at school and with her father on Father’s Day from Sunday at 10 a.m. until Monday drop off at school; (xvii) for Thanksgiving, in even-numbered years, the mother will have Pyper from Friday at 10 a.m. until Tuesday morning drop off at school. In odd numbered years, the father will have Pyper from Friday at 10 a.m. until Tuesday morning drop off at school; (xviii) Pyper shall spend Halloween in accordance with the regular parenting schedule. The parent having care of Pyper will be responsible for organizing her costume and trick-or-treating; (xix) Pyper shall have free and uninterrupted telephone access to either parent at all reasonable times as per her wishes provided that such communications not interfere or disrupt either parent’s household; (xx) Pyper’s OHIP card shall travel with her between households; (xxi) all communications between the mother and father shall be in writing, either by email or text messaging with the exception of emergencies when the parties may communicate by telephone; (xxii) parenting time shall only be altered on consent of the parties or by further court order; and (xxiii) the parties may vary any of the provisions set out herein on consent.

Partial Final Minutes of Settlement

[193] On consent of the parties, I grant a final order in accordance with the Partial Final Minutes of Settlement.

Costs Regarding the Issues of Custody and Access

[194] If the parties are unable to resolve the issue of costs by January 31, 2020, the father shall provide his written costs submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by February 7, 2020. The mother shall file her written costs submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by February 14, 2020. The father may file reply submissions by February 21, 2020 not to exceed two pages.

Mr. Justice Mark Shelston

Released: January 17, 2020