Court File and Parties

Court File No.: 222/17 Date: 2020-09-25 Superior Court of Justice - Ontario

Re: M.J.D., Applicant And: C.B.B., Respondent (deceased) C.D., Added Party to the Motion

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: N. Matthews, Counsel, for the Applicant S. Heeley, Counsel, for the Added Party to the Motion

Heard: September 25, 2020

Endorsement

[1] There are many reasons we tend to perpetuate the "status quo" when dealing with temporary parenting determinations.

[2] But what if there was a secret status quo only revealed after the custodial parent's sudden death? What if for almost a year the "custodial parent" – and her family – carefully hid the truth about a young child's situation? What if they consistently misled the access parent? And the court?

[3] No matter how it was created, a secret status quo may entail routines and relationships the child came to be used to. The impact of any disruption must form an important part of the best interests analysis.

[4] But in this sudden emergency custody motion, the ingredients and behaviours which led to all the secrecy and deception must also be carefully considered. Particularly where a young child has just undergone the tragic loss of a parent, we must be vigilant to ensure that her future caregivers can be trusted to demonstrate candor, cooperation, parental insight and a commitment to promoting the most important emotional bonds in her life.

[5] Trust and reliability. Really important concepts when it comes to children.

[6] The short version:

a. The mother CBB was granted custody and the father MJD was granted access to the only child of the relationship, a now seven-year-old daughter ADB.

b. On September 16, 2020 the mother died of a drug overdose. When the father learned of this through social media, he contacted the mother's family proposing that he come pick up the child to live with him.

c. The mother's sister CD advised the father that she intended to keep the child and seek custody.

d. After the father brought an emergency motion, CD revealed that the child had been living mostly with her for the past year.

e. So the father now wants custody because he's the surviving parent. He says he has the closest bond with the child of anyone.

f. But the sister says ADB is used to living with her. She says don't disturb a status quo that nobody knew about.

[7] The longer version:

a. CBB and MJD have one child, ADB.

b. Pursuant to the final order of Justice Brown dated September 29, 2017 (based upon minutes of settlement) CBB was granted custody and MJD was basically granted access on alternate weekends and other times as agreed between the parties.

c. By the time that order was granted, both parties were in new relationships living in different cities.

d. CBB resided in Waterdown and for the past five years she was living with her boyfriend TT. There are no children of that relationship.

e. MJD lives in Newmarket with his partner BC. MJD and BC have a child of their relationship, a daughter OD (a half-sister to ADB). BC has five other children.

f. To my knowledge nobody has ever said anything bad about the mother's partner TT. He's a truck driver working long hours, and away from home most of the weekdays.

g. However, from the outset concerns have been raised about the father's partner BC. The two of them have had a turbulent, intermittent relationship (although they appear to be together again). She has had problems with substance abuse and CAS. The September 29, 2017 order specified that the first six of the father's alternate weekend visits were to be in the absence of BC's children.

h. Following the September 29, 2017 order, CBB and MJD regularly fought about timesharing. Motions were brought. The father ended up seeking custody. The mother ended up asking that his access be reduced and supervised. There were gaps in visits. The father alleged the mother cut him off. The mother alleged the father was disinterested.

i. At times the father's access was interrupted as a result of allegations the mother made to the Children's Aid Society of Hamilton ("CAS"). The mother also made complaints to the police.

j. For a period of time, while CAS investigated, the father's access was interrupted and then supervised. Eventually CAS concluded its investigation and took the position that unsupervised regular access could resume. They appear to have closed their file.

k. But the parties continued to bring motions and cross-motions. The mother kept alleging that the father and his partner both have substance abuse problems, and that the child should not be exposed to their unstable relationship. The father kept alleging that the mother is the one with uncontrolled substance abuse problems, and that the child should be removed from her household and placed with him. The mother categorically denied those allegations.

l. This matter was most recently before me for a bitterly contested motion on July 8, 2020. After much discussion, the parties negotiated temporary minutes of settlement which I incorporated into a consent order. The father was granted unsupervised access on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., with some make-up time, and telephone access three days per week. The father would ensure that BC and her children (other than OD) would not be present during the alternate weekend visits. This was relatively easy because on alternate weekends BC's children went to visit their own father. At the motion I commented that the restriction in relation to BC and her children was intended to be temporary, to allow the father to restore his relationship with ADB, without distraction. I recommended that this restriction should remain in place for a maximum of four to six months.

m. On July 8, 2020 I declined to order costs on the basis of divided success. The father had been successful in restoring and expanding his access and eliminating supervision. But the mother was successful in resisting his request for a temporary transfer of custody. Based on the mother's sworn materials, the father and I both thought I was leaving the child in her care.

n. Thereafter, the parties continued to follow my July 8, 2020 temporary order and the father had regular access. I have received no information about any problems or non-compliance.

o. On Monday September 21, 2020 the father brought an emergency motion, seeking an immediate transfer of the child to his care. He said on Friday September 18, 2020 he noticed condolence messages on social media and quickly pieced together that the mother must have passed away. He said the mother's family hadn't voluntarily disclosed anything to him, and when he contacted them, they gave him very few answers. But they told him they were keeping the child.

p. So we quickly organized this emergency motion. CD has retained the same lawyer who represented CBB. She brought a cross-motion asking to be added as a party, and seeking custody. She proposes that the father continue to have alternate weekend access together with Wednesday non-overnight visits after school (the latter being problematic because of the distance between Waterdown and Newmarket). She also requests the involvement of the Office of the Children's Lawyer ("OCL").

q. The father filed two affidavits. CD and TT each filed one affidavit.

r. The information now revealed about the mother and the child's situation during the past year is very different from the sworn evidence the mother presented in relation to a November 15, 2019 motion (before Justice Lococo) and the July 8, 2020 motion (before me).

[8] The father's September 20, 2020 affidavit includes the following narrative:

a. On Thursday September 17, 2020 his partner BC noticed some Facebook postings about the mother "which suggested that something awful had happened."

b. On Friday September 18, 2020 the father contacted CD who confirmed that CBB had died, but refused to provide him with any details, including when and how she died.

c. CD advised him that he would still get his access on alternate weekends, but she was keeping his daughter and would be seeking custody.

d. The father already had suspicions that something was wrong. On August 21, 2020 his lawyer had written to CBB's lawyer asking for information, because ADB had revealed she was living with the aunt. The father noticed that CD was doing all the access exchanges. ADB described situations which made the father worry that the mother was using illicit substances. But the mother's lawyer never responded to inquiries about the child's living arrangements, or what was going on with the mother.

e. The father gave an example of troubling information received from the child. On an occasion when MJD and ADB were at a hotel, the child recalled a time when she was at a hotel with her mother and the child was playing by herself all alone. ADB became bored and telephoned the front desk so often that hotel staff came to the hotel room to investigate. CBB was asleep and ADB couldn't wake her. So hotel staff called police who arrived and were finally able to wake CBB up. ADB told the father that the police gave the mother a lecture about drugs and caring for her child.

f. ADB revealed to the father that she had been staying at her aunt CD's home for the entire summer and that she hates it there. She complained that she is treated differently from CD's children.

g. After CBB's death the father continued to seek information and establish contact with ADB, but he was resisted. CD refused to give him details about the mother's funeral, and forbade the father or his family from attending.

h. The father is seeking a therapist to help ADB deal with the loss of her mother. He fears that she will feel the loss of both parents because of the efforts by the mother's family to keep him out of the child's life.

i. The father says his partner BC remains committed to her sobriety. He attached copies of her breathalyzer tests from July 22, 2020 to the present date, showing that she is not drinking. (The tests had been arranged in response to previous allegations against BC.)

j. The father says he has the support of his extended family.

k. MJD says he wants to work with the maternal family, but they are trying to shut him out of ADB's life.

[9] CD's September 23, 2020 affidavit includes the following narrative:

a. CD has always had a close relationship with CBB and ADB. CD and her husband and three children live in the same community, Waterdown.

b. On September 16, 2020 CBB passed away from a drug-related overdose.

c. On September 17, 2020 CD and CBB's partner TT informed ADB of her mother's passing.

d. On September 18, 2020 the father contacted her asking to come pick ADB up. She would not agree to release his daughter and informed him she would be seeking custody.

e. CD feels it would be in ADB's best interests to remain in her primary care, both on a short term and permanent basis.

f. CBB had been struggling with addiction for a number of years, but until recently she had been maintaining her sobriety. CD says she understands the father and his partner BC were also struggling with substance abuse.

g. In October 2019 ADB's doctor informed CBB that the child may have ADHD.

h. In October 2019 the child was having behavioural problems at school, including very aggressive behavior. The mother could not manage ADB's behaviours, so the child began to live at CD's house from Tuesday to Friday each week. During weekends the child would live with the mother and her partner TT at his house.

i. In March 2020 CBB relapsed, so ADB began living with CD on a full-time basis. On weekends TT would arrange for the mother to have some time with the child. CD and TT monitored the mother's time with the child.

j. CD didn't discuss any of this with the father because at the time he wasn't exercising any access.

k. Following the July 8, 2020 motion, the father started visiting ADB on alternate weekends. Otherwise the child remained in CD's care.

l. ADB is well settled in CD's home and family. CD is a stay-at-home mother and available to meet all of the child's needs.

m. This month ADB was scheduled to start grade two at the Waterdown school she has been attending since junior kindergarten. She is well connected to that school and neighbourhood. But as a result of the mother's death, they have kept her out of school so far.

n. CD has made arrangements with the school principal for ADB to get counselling.

o. ADB's behavior has improved since she went to live with CD.

p. CD has informed ADB's psychiatrist of CBB's passing, and the doctor will be proposing a plan and recommendations to assist the child through her grieving.

q. ADB is very attached to CD.

r. CD fully supports ADB's relationship with the father. She is confident she and MJD can make decisions about ADB's best interests together.

s. She proposes that the father continue to have alternate weekend access and a Wednesday evening visit from 4:00 p.m. to 7:00 p.m.

[10] TT's September 23, 2020 affidavit sets out the same narrative. He supports CD's request, but has little to say about the father.

[11] MJD's reply affidavit of September 23, 2020 includes the following narrative:

a. He suspected the mother died of a drug overdose, but this was not confirmed until he received CD's September 23, 2020 affidavit.

b. He wished the maternal family had included him in the discussion around how to break the news of the mother's passing to their seven year old daughter.

c. He wished the maternal family had discussed with him a plan to help ADB cope as much as possible.

d. He wished the maternal family had accepted his sincere condolences, and that everyone could have pulled together for the sake of the child.

e. He feels CD has reacted to this situation from a selfish and strategic perspective, rather than focusing on the young child's emotional needs during this very difficult time.

f. He is concerned that CD actively and consistently assisted the mother in hiding very important information from him and the court.

g. He feels CD's long-standing and recent behavior demonstrates that she does not respect his role in ADB's life and that she intends to continue to marginalize MJD.

h. He is concerned that he was never advised by anyone that a doctor had suggested ADB may have ADHD.

i. He was never advised by anyone that ADB was having behavioural issues in school.

j. The father was fighting hard in court to regain access in October 2019. He believes if the court had known about how poorly the child was doing and how many problems the mother was experiencing, his motion heard in November 2019 would have resulted in the father having more involvement in the child's life.

k. He was never told that the mother had become a weekend parent.

l. He says TT may have been CBB's partner, but he was not ADB's father. He disputes CD's description that the child has "two dads".

m. He was unaware that the mother was struggling with drugs in March 2020. In retrospect it explains her erratic and aggressive behavior toward MJD and the paternal grandfather, in denying them access despite a court order.

n. CD knew there was a court order which said the father was to have regular access. She knew the mother was denying access and disobeying the court order. CD actively participated in a campaign to hide the truth and deny the father access, forcing him to incur unnecessary legal expenses.

o. He questions whether his motion for temporary custody in July 2020 would have had a more favourable result if the court knew the truth which CD helped the mother conceal.

p. The mother and CD never provided the father with any information about ADB's school or extra-curricular activities. He was never told she was struggling in school or that she had been suspended. In retrospect he can piece together that the child's behavioural and emotional problems arose at the same time that the mother started denying him access.

q. Nobody ever told the father that ADB had seen a psychiatrist.

r. The father is shocked and disheartened about how much important information the mother and CD concealed from him.

s. He feels ADB should come live with him immediately. They have a close relationship. ADB has a good relationship with his partner and the children in their household (including ADB's half-sister OD). ADB can attend school with BC's children. The father has explored counselling for ADB in his community.

t. The father challenges statements in both CD and TT's affidavits that they both have confidence they can work cooperatively with the father. Neither of them have ever been cooperative. CD has consistently excluded and marginalized him. They have shown no respect or understanding with respect to his important role in ADB's life. And during this time of crisis – when ADB has most needed emotional reassurance – they have deliberately prevented him from comforting his daughter.

u. CD's proposal is selfish, unreliable, and lacks insight. The father is prepared to maintain some contact between the maternal family and the child, but he feels the basic schedule should be one weekend a month (plus any other times they can all agree upon).

v. It is in the best interests of ADB that her situation be stabilized, and that this protracted, expensive and destructive litigation should come to an end.

THE LAW

[12] Counsel for the Applicant father did not refer to any case law. Counsel for CD briefly referred to the decision of Justice Woodley in R.A. v. D.P. 2017 ONSC 4622 (SCJ). Although the facts in that case were different, some similar legal issues arose in that urgent motion. Justice Woodley's summary of the law is relevant to this case:

The Law

"Best Interests" Test: Children's Law Reform Act

[27] The test for determining an application for interim custody or access is always: "What is in the best interests of the child?"

[28] The court is required to take into consideration only the best interests of the child as determined by reference to the "condition, means, needs and other circumstances of the child."

[29] Under section 24(2) of the CLRA, in determining what is in the best interests of a child, the court, must consider all the needs and circumstances of the child, including:

a. the love, affection and emotional ties between the child and,

i. each person 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 care and upbringing of the child;

b. the child's views and preferences, if they can reasonably be ascertained;

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

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

e. any plans proposed 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. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[30] Parental conduct, no matter how meritorious or how reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. (See s. 24(4) of the CLRA; and Gordon v. Gordon (1980), 1980 3616 (ON CA), 23 R.F.L. (2d) 266 (Ont. C.A.)).

Child's Blood Ties vs. Importance of Psychological Parent

[31] Although courts have determined that "absence any evidence that parents are behaving in a way that demonstrates an inability to act in accordance with the best interests of their children, a parents' right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often and under what circumstances" – such considerations apply only where the parents are custodial parents and a non-custodial party seeks access. Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman, 2001 24015 (ON CA); Parkins v. Parkins, 2006 24450(ONSC); Giansante v. Di Chiara, 2005 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020; Z. (F.) v. Catholic Children's Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC).

[32] Although a child's relationship by blood is a relevant consideration - there is no "parental right" to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children's Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC); Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61, [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).

[33] The court must consider the best interests of the child including the psychological needs of the child and the child's attachment to each party. (See Moores v. Feldstein, 1973 535 (ON CA), [1973] 3 O.R. 921 (C.A.)).

Status Quo

[34] Our courts have traditionally given a great deal of weight to the arrangements that are actually in place at the time of the court's determination of the issue, be it at the interim stage or the final stage.

[35] Generally, courts are reluctant to change existing child care arrangements that are working to a child's benefit. (See N.(M.) v. B.(M.) (2000), 2000 22543 (ON SC), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.).

[36] The preference for maintaining the status quo emphasizes the primary caregiver's importance to a child. Where a child lived in the de facto custodial care of her grandparents for two years and all of her needs were met including stability and consistency, it was appropriate to maintain the status quo and grant the grandparents temporary custody. (See D.(S.) v. D.(M.P.), [2001] W.D.F.L. 78 (Q.B.); Perchaluk v. Perchaluk, 2012 ONCJ 525, [2012] O.J. No. 3988, 27 R.F.L. (7th) 479 (Ont. C. J.).

[37] A judge is unlikely to change ongoing child-care arrangements that meet a child's needs simply because the other parent claims that he or she can also care for that child. (See Longergan v. Longergan, [1998] W.D.F.L. 332 (B.C.S.C.).

[38] However, if the ongoing arrangements do not meet a child's needs, a court will change custody. (See Boyko v. Purdue, [2001] B.C.D. Civ. 360.35.10.90-04 (S.C.); A.A. v. S.N.A., 2007 BCCA 363, [2007] B.C.J. No. 1474, A.A. v. S.N.A., 2007 BCCA 364, [2007] B.C.J. No. 1475 (B.C.C.A.).

[39] In deciding the weight to be accorded to the status quo, a court may take into account that the current child-care arrangements were wrongfully acquired or were only intended to be temporary. While doing so may discourage wrongful removal of children or prevent a parent benefiting from wrongdoing, it is difficult to see how such considerations are relevant to the best interests of an individual child. (See Brooks v. Brooks, supra).

Proposed Change in One Parent's Home

[40] The onus is on the parent who seeks a change existing child care arrangements to prove that it is in the best interests of a child to do so. (See Tubello v. Tubello (2000), 2000 SKQB 276, 8 R.F.L. (5th) 451 (Sask. Q.B.).

Analysis

Urgency

[42] Pursuant to the Family Law Rules a person who wants to bring a motion is not entitled to have the motion heard prior to a case conference unless the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

[43] An urgent motion contemplates issues such as abduction, threats of harm, and dire financial circumstances. Prior to bringing an urgent motion the parties should enquire into the availability of a case conference and engage in settlement discussions. (See Rosen v. Rosen, 2005 480 (ON SC), [2005] O.J. No. 62 (Ont. S.C.J.); Hood v. Hood, 2001 28129 (ON SC), [2001] O.J. No. 2918 (Ont. S.C.J.)).

ANALYSIS

[13] This was a high conflict parenting dispute between the biological parents, and it has now quickly – instantly – become a high conflict parenting dispute between the father and the deceased mother's family. I very much fear for the emotional well-being of this child if this becomes a full-blown sequel to the original dispute which lasted three years.

[14] I am satisfied that this is an urgent situation requiring an immediate determination. Both counsel have asked me to do so.

[15] The circumstances are tragic for everyone. But especially for a seven year old girl whose current grief about losing her mother has been compounded by the inability of the rest of the adults in her life to cooperate and respect one another. If ever there was a time to put past grievances aside, this would have been the time.

[16] The court's dilemma is compounded not only by the gravity of the decision which needs to be made; and the urgency of the decision -- but also by the limited and somewhat binary options available.

a. CD lives in Waterdown. MJD lives in Newmarket. The distance imposes practical limitations in terms of exchanges between the households back and forth.

b. As well, the school year has just started, and both the father and CD have expressed an intention that the child physically attend school for grade two (as opposed to the COVID-related remote learning option).

c. So even though CD has proposed that the father's access to the child could include non-overnight Wednesdays after school, the reality is that mid-week exchanges will likely be impractical.

d. Realistically, at least during weeks when school is in session, the child is going to have a primary residence in either Waterdown or Newmarket. Weekends will provide an opportunity for "access". But weekends are precious for everyone, so almost inevitably they have to be shared in some fashion.

[17] As is often the case with urgent motions, the evidence before me is imperfect and incomplete. The lengthy accusatory affidavits are untested. It is difficult to make determinations of credibility. Fortunately, as both counsel are aware, I had the benefit of extensive involvement on this file only two months ago (prior to the mother's death). During submissions counsel referred to my motion endorsement of July 8, 2020.

[18] The competing themes have been quite clearly set out:

a. The father feels that as the child's only surviving biological parent it is logical and appropriate that she should revert to his primary care. I agree that a child's biological connection is one of the many considerations which must be taken into account in determining the best interests of the child. But blood ties are not in themselves determinative.

b. CD feels the child is well-settled and well-cared for living in her home, and that this arrangement should not be disrupted. I agree that the status quo is a very important consideration – particularly in making temporary determinations. But if continuation of an existing arrangement does not meet a child's needs, the court has the responsibility to protect and promote the best interests of the child.

c. Neither "biological connection" nor "status quo" will lead to an automatic or inevitable result.

[19] There can be no dispute that in the short period since the mother's sudden death on September 16, 2020, a great deal of information has surfaced which had never been shared with either the father or the court:

a. Information about the mother.

b. Information about the child.

c. Information which – if known by the father – would likely have caused him to take much more vigorous steps to be involved in his daughter's life.

d. Information which – if known by the court – would likely have resulted in different orders in relation to access and possibly custody.

e. Information which – if disclosed in a timely manner – would likely have led to a very different status quo today.

[20] The problem, of course, is that while the court disapproves of self-help and wrongfully created parenting arrangements – nonetheless, we always have to look at things from the child's perspective. If the current status quo is working well for the child and reflects the child's ongoing and future best interests, then the court will be loathe to tamper with the child's routine, relationships and primary placement.

[21] So – and particularly since this is a motion for temporary relief -- if I had confidence that ADB's current placement in CD's household was best for the child, I would have little hesitation in continuing that placement. I would not want to disturb a good thing, even if I didn't approve of how it was created.

[22] But I do not have confidence in that placement. And I do not have confidence that CD can be entrusted with any authority over this child.

a. I have no doubt that CD and TT love ADB. But CD's long-standing actions have been selfish and misguided. She appears to have been more interested in protecting her sister than in protecting the physical and emotional needs of a young, vulnerable child.

b. There can be absolutely no justification for all the secrecy and deception. The father should have immediately been notified of every development, as it arose.

c. He should have been notified that the child was exhibiting behavioural problems; that she was suspended from school; that a doctor suggested the child has ADHD. All of that was happening during the period after the mother suspended the father's access in August 2019.

d. ADB needed her father as her mother was bottoming out, and as the child was experiencing numerous personal problems. ADB needed her father more at precisely the time when the mother was trying to keep the father away, and CD was (at the very least) acquiescing to the mother's destructive and irresponsible decisions.

e. The mother's constant theme during multiple court appearances was that we have to be worried about the father and his partner BC. As it happens, it turns out that we had a lot more reason to worry about the mother's care of the child. Except the mother and her family conspired to keep it a secret from the father and from the court.

f. The father should have been told when ADB started spending weekdays at CD's house as of October 2019.

g. Justice Lococo should have been informed at the November 15, 2019 motion that the mother was no longer able to handle the child, and that she was only seeing the child on weekends.

h. The father and the court should have been notified that ADB went to reside with CD in March 2020 when the mother had a drug relapse.

i. At the July 8, 2020 motion the mother filed sworn documents disputing the father's request for a transfer of custody and insisting that he and BC should only have supervised access. The father and I should have been told that by that date the mother's own time with the child was being supervised by CD and TT because they were concerned about her.

j. And the father should have been notified immediately when his seven year old daughter suffered the tragic loss of her mother. He should have been given every opportunity to console his daughter, and provide her with his love and reassurance.

k. These were not innocent failures to convey unimportant information. These were malicious and strategic efforts to conceal vitally important information about the well-being of a child.

l. While CD says it was CBB's idea to hide so many problems from the father, CD appears to have shown willful blindness to the possibility that maybe the father should have been told. Maybe ADB would have been better off if the father had been alerted, and if he had been given an opportunity to help the child.

m. In any event, CD must assume full responsibility for her insensitive and entirely self-interested exclusion of the father after the mother died.

[23] While I am quite sure that CD has provided reasonable physical care for the child during much of the past year, I also find that CD has demonstrated a consistent disregard for the child's emotional needs. She has demonstrated a profound and troubling lack of insight with respect to the fundamental importance of ADB's relationship with her father.

[24] I have no confidence that CD can be entrusted to make good or selfless decisions when it comes to promoting ADB's relationship with her father, or allowing the father to participate in the child's life. The evidence is overwhelming that at every stage CD has been part of a campaign to marginalize the father, and during the last few weeks she has been leading that campaign.

[25] In contrast, I have more confidence in the father and his proposal.

a. Previous interruptions in his involvement with the child were largely caused by the mother who sometimes unilaterally denied access, and sometimes caused access to be interrupted or supervised as a result of her complaints to CAS and the police. Indeed, the parents had a trial date scheduled for January 2020, but that trial was adjourned on consent because the parties were awaiting further disclosure and a report from CAS. Eventually CAS closed their file and they do not appear to be taking a position that there is any reason to supervise or limit the father's time with the child. Indeed, at this point even CD is not asking for any restrictions with respect to the father's time with the child.

b. The father has consistently denied the mother's allegations about himself and his partner BC. With the recent revelations, there is good reason to question the mother's previous allegations and complaints, particularly since it is clear that she misrepresented her own situation.

c. All that time the mother said we should be worried about the father, it turns out we should have been worried about the mother.

d. I am satisfied that the father has a good relationship with the child and that he has always demonstrated good insight and an acknowledgement of the mother's role in the child's life. I am satisfied that he would continue to respect and facilitate ongoing contact between ADB and CD. In contrast, I have no confidence that CD would respect and facilitate ongoing contact between the child and the father.

[26] This was a tough decision. The circumstances couldn't be more difficult. But a decision has to be made.

[27] Continued placement with CD would simply perpetuate bitter conflict, and I would have significant reason to worry about further strategic and exclusionary behavior by CD, further marginalizing the father from ADB's life.

[28] In my view, significantly expanded time with the father is long overdue. I am confident that the household arrangement and daily routine proposed by the father is workable and beneficial for the child. I am confident that although the child will experience a significant transition, the father has demonstrated that he has sufficient insight and compassion to ease the child through the transition. In contrast, I have no confidence that CD has the inclination to demonstrate similar insight, compassion and fairness.

[29] Now more than ever, ADB requires stability and an end to the jockeying, maneuvering and strategizing. Placement with the father offers the best prospect for that kind of peace in her life.

[30] Today's temporary order:

a. The child ADB shall immediately be placed in the care and custody of the MJD.

b. The father shall have the authority to enroll the child in school and arrange all necessary medical and counselling services.

c. Commencing October 2, 2020 CD shall have access to the child each weekend for five successive weekends, from Friday dinner hour until Sunday dinner hour. In the absence of any other agreement exchange times shall be 6:00 p.m. and CD shall transport the child at the beginning of the visit, with MJD to transport the child at the end of the visit. CD's time shall be extended by 24 hours to include Thanksgiving Day this year.

d. Commencing November 6, 2020 CD shall have access on alternate weekends at the same times and on the same terms.

e. Commencing November 6, 2020 CD may have a visit each Wednesday from after school until 7:00 p.m., provided that she notifies the father in writing at least 48 hours in advance that she will be attending for the visit.

f. CD may also have electronic, telephone or video access to the child once per week at a mutually agreeable time.

g. CD shall provide MJD with all of the child's belongings and documents, and full particulars as to the child's past or ongoing involvement with professionals.

h. MJD shall keep CD informed as to the particulars of any schools, medical, counseling, recreational or other agencies the child becomes involved with.

[31] I read this endorsement to counsel and the parties during a Zoom hearing late on a Friday afternoon. Understandably they all need time to digest this information.

[32] I can only hope that the parties get the message that whatever has happened in the past, ADB will be better off if they stop the hostilities and start cooperating and respecting one another.

[33] On consent, all remaining issues are adjourned to the timelines which are extended to January 29, 2021. Counsel may arrange a Case Conference or a date To Be Spoken To.

[34] I hope costs won't be an issue. These parties don't need any more sources of conflict. But if costs are being claimed, written submissions should be served and filed on the following timelines:

a. Father's written submissions (maximum 3 pages with no more than five pages of attachments) by October 26, 2020.

b. CD's written submissions (same size limitations) by November 13, 2020.

Pazaratz J.

Date: September 25, 2020