COURT FILE NO.: FS-13-18943-0003 DATE: 2020-10-20

Superior Court of Justice – Ontario

BETWEEN:

Aretusa Fias, Applicant

– and –

Nuno Periera Souto, Respondent

COUNSEL: Ana Kraljevic, for the Applicant The Respondent, in person

HEARD: October 5th, 6th, 7th, 8th, and 9th, 2020

Reasons for Decision

M. Kraft, J.

Overview

[1] The applicant, Aretusa Fias (“mother”), brought a motion to change the Order of Stevenson, J., dated February 6, 2015 (“Stevenson Order”), as it pertains to the parenting schedule of the parties’ son, K.d.N.S. (“K.”), who is 11 years old, and the parties’ respective decision-making authority. Pursuant to the Stevenson Order:

i) the parties share joint custody of K., but if they cannot agree on major decisions regarding K.’s education, religion, health or extra-curricular activities, then the respondent, Nuna Periera Souto (“father”), has final decision-making authority, if a mandatory consultative process does not result in an agreement on the particular issue; and

ii) the parenting schedule provides that K. has his primary residence with the father and resides with the mother on alternate weekends from Friday, after school, to Monday morning; every Wednesday, after school, to Thursday morning; and alternate Thursdays, from after school to Friday morning during the weeks in which he does not have weekend access with the mother. This results in K. spending 6 nights out of 14 with the mother and 8 nights out of 14 with the father.

[2] The parties agree that the parenting schedule and decision-making regime set out in the Stevenson Order is not working. The parties cannot co-parent, as contemplated by the Stevenson Order. The child has significant needs, given diagnoses of ADHD and oppositional defiant disorder (ODD). The mother seeks to change the parenting schedule, such that K. will reside with each parent on a week on/week off schedule, with the exchange to take place on Friday morning, when K. is dropped off at school. She also seeks sole decision-making authority with respect to K.’s medical decisions because, according to her, the father refuses to comply with many doctors’ reports, which conclude that K. requires therapeutic intervention. According to her, he blames her for all of K.’s problems.

[3] Similarly, the Father seeks to change the Stevenson Order. He seeks to change the parenting schedule such that K. resides with him during the school week, the mother have K. in her care mid-week for two dinners but no overnights: and on alternate weekends, she have K. in her care from Friday, after school, to Monday morning. This would result in K.’s overnight time with his mother being reduced to 3 nights out of 14 from the current 6 nights. According to the father, K. requires stability, predictability and structure and he believes the mother is inept at parenting K., causing him emotional turmoil. He also seeks sole custody and final decision-making authority with respect to all major decisions affecting K. because he finds it impossible to communicate with the mother.

[4] Given the parties’ agreement that the 2015 Stevenson Order is not in his best interests, the two issues for determination by the Court are as follows:

i) What parenting schedule is currently in the best interests of K.? and

ii) What decision-making regime is currently in the best interests of K.?

Procedural History

[5] This matter has a long and protracted history of high-conflict litigation. The conflict that resulted in the parties’ Motions to Change the Stevenson Order is best described by providing a brief chronological procedural history of the litigation between K.’s parents.

[6] On February 6, 2015, the Stevenson Order was rendered after the parties participated in an eight-day trial. At the trial, the OCL had conducted a custody and access investigation pursuant to s.112 of the Courts of Justice Act. At trial, the mother sought joint custody of K. and the father sought sole custody. The parenting schedule that was in place at the time of the trial is the same as the current parenting schedule: K. was spending 8 nights out of 14 with the father and 6 nights out of 14 with the mother. The Stevenson Order did not vary the parenting schedule that was in place prior to the trial. It did, however, set out a detailed decision-making regime and consultation process in which the parties were to engage. In addition to parenting issues, the Stevenson Order dealt with child support, spousal support and property issues, which are not in issue in this trial.

[7] The most relevant parenting terms of the Stevenson Order provide as follows:

a) The parties shall have joint custody of K, subject to the following:

i) In the event that the parties cannot agree upon a matter that falls outside day-to-day decision making (i.e. a major issue relating to education (including where K. goes to school); healthcare; religion; major recreational/extra-curricular activities; and K.’s residence), the father shall provide written notice to the mother of the decision he intends to make. If the mother does not agree with the father’s pending decision, she shall provide formal written notice to the father of her disagreement and she shall have 30 days from the date the father provided formal written notice of his pending decision, to serve any necessary motion or application materials. If the mother does not do so within the 30-day period, then the father shall make the final decision. If the mother does do so within the 30 day-period then no decision shall be made by the father except by written agreement of the parties or court order:

b) K. shall have his primary residence with the father but he shall share time with the mother (and holiday time with the parties) as follows:

i) With the mother, every other weekend from Friday at the end of school to Monday at the start of school. The mother shall retrieve K. from the day-care/school and return him there on Monday;

ii) With the mother every Wednesday evening overnight. The mother shall retrieve K. from his daycare/school at the end of school and return him to the daycare/school on Thursday mornings by the start of school;

iii) With the mother every other Thursday evening overnight during the weeks in which K. is not going to be with the mother on the weekend. The mother shall retrieve K. from the daycare/school on every other Thursday, at or after 4:00 p.m. and return him to daycare/school on every other Friday morning by the start of school;

iv) Should K not have school for any reason on the day following time spent with the mother including illness or school closure, the mother shall return K to the father at 6:00 p.m. that day. The parties shall meet to exchange K at a public location that is halfway between each of their homes;

v) If the mother’s weekend contains a holiday or PD day, then her weekend day shall commence on the Thursday if the holiday is a Friday and end on the Tuesday if the holiday is a Monday. If the mother’s Thursday overnight is following by a Friday holiday or PD Day, then K. shall remain with the mother and be returned at 6:00 p.m. on the Friday;

vi) If Mother’s Day should fall on a weekend during which K. is not at the mother’s home, he shall spend from 10:00 a.m. to 6:00 p.m. with the mother;

vii) If Father’s Day should fall on a weekend during which K. is not at the father’s home, he shall return to the father’s home at 10:00 a.m. on Sunday;

viii) K. shall spend from the last day of school in December 2015 to December 26, 2015 at 10:00 a.m. with the mother, and then he shall spend time with the father from December 26, 2015 at 10:00 a.m. until school resumes in January, at which time the regular access schedule shall resume. The schedule shall alternate annually so that K. spends from the end of school in December 2016 to December 26, 2016 at 10:00 a.m. with the mother and from December 26, 2016 at 10:00 a.m. until school returns in January with the mother.

ix) When school finishes for the summer months, K. shall spend alternating weeks with each parent, starting with the mother. When he is with each parent for the week, K. shall spend Wednesday evening with the other parent, with the transfer taking place at daycare at 4:00 p.m. or if the daycare is not available, at a public location that is half-way between each of their homes;

x) Each parent shall have one uninterrupted week with K. each summer. The parents shall notify one another in writing of their desired week by April 1st of each year. Each parent is entitled to take K. out of his daycare for five days each year (if he is still attending daycare), but must notify the other parent and the daycare of their dates by April1st of each year;

c) K. shall have phone contact with the non-resident parent at least once daily, to be initiated by the parent in whose care K is at the time;

d) The mother and father shall communicate regularly about K.’s needs and care, using ourfamilywizard.com (“OFW”); each parent shall send an update through OFW or by email on the day K. leaves their home to go to the other parent providing information about K.’s health, behaviour, routines, or school activities; the communication between the parents should be by email, one paragraph or less, and address only one subject a time, shall be child-focused and neither parent shall make derogatory or accusatory statements about the other; if either parent feels the other is not meeting these conditions in their emails, they shall respond to the other parent advising him/her; the parents shall respond with reasonable promptness to the other parent’s communication, within a 36-hour timeframe; and if either parent experiences anger from the communication received from the other parent’s communication, they shall respond only after taking a moment to calm themselves and can think clearly;

e) Both parents shall follow the recommendations of K.’s doctors, teachers or daycare providers to support K.’s routines, behaviour strategies or other treatment needs;

f) Neither parent shall speak negatively to K. about the other parent, encouraging an ongoing secure relationship with both parents;

g) The father shall provide information to the mother about any doctor or other appointments K. has, either by email or by OFW and shall provide information about the details of these appointments within 24 hours of when they occur.

h) Th father shall provide the mother with any school reports, medical reports or other updates on K.’s activities within 72 hours of receiving them. He shall also advise K.’s doctors, school and daycare to provide information to the mother directly.

i) The parenting provisions contained in this Order shall be reviewed in one year to ensure K.’s needs are being met. The parties shall do this through counsel and it is recommended that a mediator be retained by the parties to resolve any issues at that time and to assist with any adjustment to the parenting plan.

[8] Despite the requirement that the parties review the parenting provisions in a year, the evidence before the Court is that neither party sought to review the provisions through counsel or retained a mediator to assist them.

[9] In April 2016, the father brought a Motion to Change the Stevenson Order, to reduce K.’s time with the mother and to change the decision-making regime. On April 26, 2016, Kiteley, J. made the following Order that:

a) the Motion to Change was to be heard on June 28, 2016 for one day;

b) no oral evidence could be introduced;

c) all affidavit evidence relied on by the father had to be served and filed by May 27, 2016;

d) all responding evidence by the mother had to be served and filed by June 24, 2016;

e) reply evidence, if any, had to be served and filed by July 23,2016;

f) the father had to make the child available for FaceTime or other electronic conversation with the mother on Mondays, Wednesdays and Saturdays, at 7:00 p.m., the “call” to be initiated by the mother; and

g) the psychoeducational assessment by Dr. Riccuiti; the two OCL reports filed in connection with the trial head by Stevenson, J. and the letter from the child’s paediatrician, Dr. Fiorini, if she provided one, were to be admissible evidence at the hearing of the Motion to Change, without further proof.

[10] In June 2016, the OCL became involved in this matter again. Ms. Lindsay-Skynner represented K. and Tricia Ryan was the OCL’s “clinical assist”. Ms. Ryan swore an affidavit, dated August 4, 2016, in connection with the father’s Motion to Change.

[11] On August 22, 2016, Mesbur, J. ordered as follows:

a) The father’s Motion to Change the Final Order of Justice Stevenson dated February 6, 2015 is dismissed;

b) The parenting arrangements set out in Justice Stevenson’s Final Order shall continue. Both parents shall fully comply with the final order in relation to communication through ourfamilyweizard.com as well as with all other provisions of the order;

c) This motion to change shall constitute the parenting review contemplated by paragraph 14 of the final order of Justice Stevenson. No further automatic review shall take place; and

d) The father shall pay the mother costs fixed at $7,000, all inclusive, to be enforced as support.

[12] On April 4, 2018, the mother brought a Motion to Change the Stevenson Order because K.’s behavioural problems were escalating. According to her, the father was continually breaching the communication portions of the Stevenson Order with respect to doctors’ appointments and he was wilfully preventing and/or obstructing both her attempts to have K. attend his doctor’s appointments and to access the appropriate mental health supports for K. that were recommended by his doctors. The father’s response to the mother’s Motion to Change was that the parenting schedule set out in the Stevenson order was not in K.’s best interests, given his diagnoses of ADHD and ODD; and having one parent make decisions for him would be in K.’s best interests because the various institutions from which K. needs assistance could receive direct guidance from one parent only.

[13] On June 28th, 2018, the parties attended before a Dispute Resolution Officer, the first procedural step on the mother’s Motion to Change. The Endorsement of the DRO indicates that the mother intended to seek an order, among other things, that she alone make the decisions relating to K.’s medical treatment, which motion was opposed by the father. The father intended to seek a change to child support. The parties agreed to a timetable for the delivery of the father’s responding material to the mother’s Motion to Change.

[14] The parties reached an agreement regarding certain matters. They attended before Kristjanson, J., who ordered, on consent that K. was to attend Reach out Centre for Kids (“ROCK”) for counselling services. The father was to be responsible for pursing and obtaining the necessary counselling. The father was to comply with the terms of the existing order in respect of that counselling in terms of the need to provide information to the mother. Each parent was entitled to two weeks of uninterrupted time with K. in the summer and could travel outside of Canada; The mother’s lawyer was to prepare a “Hague travel consent letter” in broad terms, allowing each parent to travel with K., with such letter to be completed by July 6th and the mother’s lawyer was to email the letter to both parties: Both parties were to sign the travel letter in person no later than July 10th. This was to be arranged through the mother’s lawyer; The mother was to apply for a passport and pay for expediting it. The parents were to split the cost of the passport. Both were to sign the passport application form. Kristjanson, J. also made the order requesting the OCL to become involved in the mother’s Motion to Change. Both parents were to complete the Intake Form by July 6th. The father’s responding material, including his own Motion to Change the child support order, was due by August 17, 2018. If the OCL accepted the appointment, then the schedule was to change, to accommodate the OCL report or representation; if the OCL did not accept the appointment, then a long motion was to be scheduled for the hearing of both the mother’s Motion to Change the parenting terms of the Stevenson Order and the father’s Motion to Change the child support provision on October 16th, 2018, for a full day.

[15] On July 31, 2018, the father appeared in court on an urgent ex parte basis because the mother had failed to comply with the June 28, 2018, consent order of Kristjanson, J., requiring her to obtain K.’s passport and provide the required travel consent for the summer travel. Accordingly, Kristjanson, J. ordered that, for purposes of applying for and/or renewing K.’s passport, the father was to have sole custody and the mother’s consent to the passport application and renewal was dispensed with.

[16] On August 23, 2018, the OCL appointed Julia Tremain as legal counsel for K. and Allyson Gardner as the clinical investigator, pursuant to s.89 of the Courts of Justice Act.

[17] On October 9, 2018, the one-day long motion scheduled for October 16, 2018, as per the Order of Kristjanson, J., dated June 28, 2018, was vacated on the consent of both parties.

[18] On June 26, 2019, the OCL conducted a disclosure meeting with both parents. Given that K. was to begin attendance at a new school in September 2019, the OCL expressed that it was premature to make any changes to the parenting schedule or custodial arrangements.

[19] On July 29, 2019, the father served and filed his response to the mother’s Motion to Change, in which material he sought a parenting schedule where K.’s mid-week overnights with his mother would be terminated.

[20] On August 13, 2019, Wilson, J. adjourned the father’s temporary motion to reduce K.’s overnight access with the mother during the school year to August 29, 2019, because neither the clinical investigator for the OCL nor counsel for the mother was available on that date.

[21] On August 29, 2019, the parties attended before Myers, J. The Endorsement of Myers, J. indicates that the father had understood that the mother’s Motion to Change was going to be heard that day and the mother understood that the father was moving for relief, independent of her Motion to Change. Both parties sought to file additional material and there was confusion as to scheduling. Myers, J. ordered that a Trial Management Conference (“TMC”) take place on October 9, 2019 and set out a timetable for the delivery of any further evidence on which each party intended to rely on for his/her Motion to Change.

[22] On October 9, 2019, Nakonechny, J. conducted the TMC. The Endorsement of Nakonechny, J. sets out that Ms. Tremain, counsel for the OCL, advised the court that there a Children’s Aid Society (“CAS”) investigation regarding K. was ongoing, which could result in a protection application. It impeded the ability of the OCL to complete its updated investigation regarding K. at his new school. Both parties had complied with the timetable set out in the Myers, J. order. Nakonechny, J. ordered the matter to proceed to a combined settlement conference (“SC”)/TMC on December 11, 2019. The parties were to sign joint authorizations for the CAS to release any report they provided to the OCL and parties directly. If K. was able to attend counselling at ROCK, then he was to do so. Both parties were to consent and facilitate K.’s attendance at counselling at ROCK as scheduled by the facility until a space at ROCK became available. The mother and father could seek counselling for K. at the Etobicoke Children’s Centre and both parties were to provide any consent necessary to permit the counselling, pending a space at ROCK becoming available.

[23] On February 5, 2020, Boucher, J. conducted a combined SC/TMC. The matter was set for trial for 3-4 days commencing March 23, 2020, with the exit TMC to be held on March 4, 2020, at 3:30 p.m.

[24] On March 4, 2020, Justice Shore was to conduct an “exit TMC”. Her Endorsement sets out that the TMC did not proceed because the mother had a medical emergency. The TMC was adjourned to March 13, 2020. The Trial was scheduled to proceed on March 23, 2020, as a 3-4, but likely 5-day trial.

[25] On March 13, 2020, Shore, J. vacated the trial date on consent because counsel for the mother was ill. The Trial was rescheduled for the week of June 15, 2020, for five days, and the parties were ordered to attend a further TMC on May 1, 2020. The Trial did not proceed during the week of June 15, 2020, due to the suspension of the Court’s normal operations due to the Covid-19 health crisis.

[26] On September 3, 2020, the parties attended the Return to Operations court, to reschedule the trial. Shore, J. held that it was in the best interests of the child that the trial proceed as soon as possible given K.’s significant needs and the commencement of the school year. She ordered the parties to attend a TMC on September 30, 2020, with the five-day trial to commence October 5, 2020.

[27] On September 11, 2020, the mother brought a motion, seeking “an order requiring the father to sign any consent forms relevant to the matters in these proceeding”. Shore, J. held that the relief requested was too vague and dismissed the motion, “without prejudice” to the mother’s right to bring the motion back on seeking specific relief, which the mother then did.

[28] On September 15, 2020, Shore, J., as the triage judge, found that the mother’s motion for an order requiring the father to sign various consent forms for the release of medical and school files of the child in advance of the October 5, 2020, trial date was urgent. Accordingly, she ordered the mother’s motion to proceed on September 22, 2020.

[29] On September 22, 2020, Faieta, J. heard the motion. His Endorsement indicates that the parties agreed to sign the requested consent forms so that both parties could obtain the records to be provided by the child’s paediatrician and others.

[30] On September 30, 2020, Kiteley, J. heard the TMC: organized the documents to be used at the trial; listed the witnesses who would testify; and set the procedural terms of the trial in general.

[31] I heard the five-day trial of this matter on October 5th, 6th, 7th, 8th and 9th, 2020. The trial was conducted via video-conference. Both parties and counsel, along with four witnesses, participated using the Zoom platform. I reserved my decision. Below is my decision and the reasons for it.

Background Facts

[32] The parents cohabited in a common law relationship from April 2008 until October 27, 2012, when a physical altercation between the parties occurred. The mother was charged with assault and removed from the home[^1].

[33] The parties are the parents of K., who was born in 2009. K. is about 11 ½ years old. At the time the Stevenson Order was made, K. was 5 years old and in Senior Kindergarten. K. is now in Grade 6.

[34] Again, K. is currently represented by Julia Tremain, a lawyer on the OCL panel. Ms. Tremain was assisted by a clinical investigator, Ms. Alyson Gardner. The OCL has been involved with the family since 2012.[^2]

[35] At the time the Stevenson Order was made, the mother resided in Toronto and the father had moved to Oakville, unilaterally moving K.’s residence, without any consultation with the mother. The father and K. moved into the home of the father’s girlfriend and her two children. The father and his girlfriend then had a baby together. They have since separated and the father and K. reside alone.

[36] K. attends Abbey Lane Public School (“Abbey Lane”) in Oakville, in the father’s catchment area. The mother moved to Etobicoke after the Stevenson Order. When K. resides with the mother during the school week, he commutes between her home and his school, which can take between 45 minutes to 1 hour each way, depending on traffic.

[37] In addition to both parents, the following people testified at the trial:

i) Ms Trixie Vasilakos, the Vice Principal (now Principal) of River Oaks Public School (“River Oaks”), K.’s school until June 2019;

ii) Mr. Jonathan Dinner, K’s current special education teacher at Abbey Lane;

iii) Ms. Nancy Boose, the child and youth worker who currently works in K.’s classroom; and

iv) Ms. Allyson Gardner, clinical investigator for the OCL.

[38] In 2013, K. was diagnosed with ADHD at Holland Bloorview. Prior to the Stevenson Order, K. had been exhibiting significant behaviour problems, including anxiety, aggression and incontinence, at school.

[39] In the fall of 2015, when K. was in Grade 1, the father engaged Dr. Riccuiti to conduct a re-assessment of K. by way of a private psycho-educational assessment. The psycho-educational report confirmed that K. has ADHD, Combined Type; Mild Adaptive Behaviour Delays; and difficulties that are consistent with Executive Functioning Deficits. K. was also considered to be at high risk for development of a behaviour and/or emotional disorder. Neither party disputes the findings of the assessment and the psycho-educational report was thus not admitted into evidence at the trial. Neither parent disputes K.’s various diagnoses. In September 2015, K.’s paediatrician, Dr. Cynthia Fiorini, prescribed Biphentin to treat K.’s ADHD. K. began to take the medication regularly.

[40] As a result of K.’s problematic behaviours and ADHD, K. had an Individual Education Plan (“IEP”), which gave K. access to academic accommodations and supports at River Oaks[^3]. K. also had the benefit of a second teacher’s assistant in his classroom at River Oaks. to provide him with one-on-one support when he was having trouble managing behaviourally. Despite these supports, K. continued to experience behavioural difficulties in the school setting on a regular and ongoing basis.

[41] Throughout his school career, K. has lashed out physically with peers and people in positions of authority when he has been overwhelmed or triggered. In addition, K. exhibits anxiety behaviours, which include hair pulling, hair twirling and poking his finger in his ear. As well, K. experiences toileting difficulties, including urine and fecal soiling, induced by emotional stress or trauma as all other potential medical causes were ruled out.

[42] In 2016, K. had escalating difficulties both at school and when he was with his mother. As a result, the father brought the Motion to Change the Stevenson Order, seeking to reduce the time K. was in the care of his mother during the school week and he sought sole decision-making/custody. As mentioned above, Justice Mesbur dismissed the father’s Motion to Change and ordered the father to arrange for therapy for K. at ROCK in the Halton region, the agency being in the father’s catchment area. Despite this 2016 order, K. did not receive therapy at ROCK.

[43] In connection with the father’s 2016 Motion to Change, Ms. Ryan, swore an affidavit on August 4, 2016[^4]. Ms. Ryan’s affidavit was sworn four years ago; it is very telling that K. was suffering in similar ways in 2016 as he is today, in 2020. More telling is that the professionals involved with the family four years ago identified that the parental conflict between the mother and father was the source of K.’s difficulties. Nothing has changed in the last four years, except that the conflict has continued unabated and K. lost the opportunity to benefit from important therapeutic resources as a result of his parents’ conflict. The following statements in Ms. Ryan’s affidavit are highlighted below:

(1) Sue Groover, a Resource Teacher at River Oaks, told Ms. Lindsay-Skynner, who then advised Ms. Ryan, that:

“she knew Mom was having huge difficulties with K. K. was “running the show” and he was being physical with her. When Mom went to Brazil for a period of time in the spring, she (meaning Ms. Groover) anticipated that K. might behave better but in fact he was worse. His anxiety was worse when he was not seeing her.” [para. 10]

(2) Dr. Christina Ricciuti, the psychologist who conducted the psycho-educational assessment of K., told Ms. Lindsay-Skynner, who the advised Ms. Ryan that

“the assessment was prepared as a tool to help K. at school for accommodations and services. The parents were not a huge focus, both wanted to put the other parent down, and it was not a part of her job to confirm or condone what the other parent was saying. Dad gets ramped up about Mom.…K. is a very bright child who will manipulate both parents. Mom seemed to want the assistance but Dad was rigid around having mom included….The best thing for K. is to have both of his parents” (emphasis added); [para. 11]

(3) Lip Hopkins, the manager at ROCK, and a therapist, Maureen Longo, the Manager of the Behaviour Program at ROCK, on a joint telephone call told Ms. Lindsay-Skynner, who then advised Ms. Ryan that,

“We discussed whether ROCK could be involved with Mom and K. in her home for intensive support for behavioural management. There were two problems with this suggestion. While Ms. Longo does go into homes, Mom resides out of their catchment area and they are unable to make an exception. Secondly, the problem is that parenting in isolation rarely works when high conflict is going on. Dad was constantly talking about Mom. Ms. London had actually already closed her file with this family as she couldn’t identify goals. Dad was very angry….Ms. Hopkins thinks the parents have to do individual work to deal with their unresolved personal adult issues for intensive in-home support to be successful. K. is resilient child but how long can he go on for, exposed to his parent’s [sic] conflict?”; (emphasis added) [para. 12]

(4) Ms. Ryan spoke with Dr. Fiorini, K.’s paediatrician since October 2014. Dr. Fiorini advised her that

“….Dad says K. is more disruptive and aggressive when he comes back from Mom’s home. In Dr. Fiorini’s opinion, the emotional trauma, not K’s ADHD diagnosis is more important. His urine and fecal incontinency showed he had emotional trauma.”; (emphasis added) [para.13]

(5) The Halton CAS advised Ms. Ryan that on June 22, 2016,

“they had called ROCK to speak with the current worker involved with the family. The Halton CAS were advised by the worker, Lisa Reisse, that ROCK’s file was recently closed and they are no longer working with the family due to the fact that there had been no progress and they feel that no work can be done with the family as long as the high level of conflict exists between the parents. Dad is focused on blaming the mother for everything and will spend the entire session talking about what she has done to him and the child. Dad refuses to co-parent with Mom and this makes it impossible to work with the family or help K.” (emphasis added) [para. 15]

(6) Ms. Ryan confirmed that “in paragraph 15 of Dr. Ricciuti’s recommendations she said that her “impression is that K.’s challenges are due, at least to the role that each parent plays which has likely created confusion for K. and contributed to his behaviour.”; (emphasis added)[para. 3]; and

(7) Ms. Ryan deposes that,

“the collaterals indicate that Dad is not willing to co-parent and continues to be angry and focused on mom. This is a huge problem for K. who appears to love both his parents and who requires consistency. K. was not able to access helpful supports such as ROCK, due to Dad’s anger. He does not receive the benefit of shared communication that OFW could provide. As the Mom and Dad have different parenting styles, this is extremely important for K. Dad needs to comply with the Stevenson Order or have the order amended to an alternate form of communication. Dad should also seek his own counselling to deal with his anger towards Mom.” (emphasis added) [para. 37(iii)].

[44] Ms. Ryan’s affidavit was before the court when Mesbur, J. dismissed the father’s Motion to Change. I am highlighting these paragraphs to demonstrate that the OCL had identified from the various third-party collaterals involved with K. in 2016 that the parents’ conflict was impeding their ability to parent K. having his best interests in mind and resulted in K. not being able to access the necessary supports and therapeutic assistance he desperately needs at this time.

[45] For the entirety of the time that K. attended River Oaks, he struggled with self-regulation and oppositional behaviours. According to the evidence of the OCL, K. is a child who requires structure, predictability and stability in order to thrive socially, emotionally and academically. Regrettably, the level of conflict between K.’s parents has made that impossible over the past 5 years.

[46] In September 2019, the current principal of River Oaks (the then-Vice Principal when K. attended River Oaks), Ms. Vasilakos, recommended that K. be placed in a Behavioural Resource Class (“BRC”) at Abbey Lane because River Oaks was unable to provide K. with the resources he needed. Thankfully, as a result of his placement at Abbey Lane, K. is now accessing some assistance to address his significant difficulties with emotional regulation and his problematic behaviours.

[47] When K. began Grade 5 in September 2019, he was placed in the BRC at Abbey Lane. Mr. Dinner testified that the BRC is specifically designed to provide supports to students who have struggled in mainstream classrooms and have difficulty with self-regulation and emotional management. There are currently only 4 children in K.’s Grade 6 BRC, three of whom are in Grade 6 and one of whom is in Grade 8. In addition to a specially-trained special education teacher, there are two Educational Assistants in the BCR as well as a Child and Youth Care Worker. The goal of a BRC is for students to be re-integrated into a mainstream classroom once the school determines that the student has the requisite skill sets and supports in place to self-regulate and manage.

[48] The current decision-making regime set out in the Stevenson Order requires the parties to engage with one another on all major decisions affecting K. Again, as expressly set out in the Stevenson Order, the father is obliged to advise the mother in writing of any intended decision he plans to make regarding K. If the mother does not agree with any of the father’s intended decisions, then she has thirty days to provide her objection to him in writing or apply to a court. The father has final decision-making authority, unless a Court makes a different order, in K.’s best interests if the mother challenged the decision the father made. This regime has actively kept the parties intertwined and engaged with one another in an adversarial and negative manner. Rather then the process resulting in minimal conflict in the sphere of major decisions affecting K., what has resulted is a regime where each parent blames the other for the non-treatment of Kael’s mental health issues, and K.’s mental health issue have not been addressed.

[49] In addition to his prior ADHD diagnosis, in December 2017, K. was diagnosed with ODD (again, “oppositional defiant disorder”), which was particularly exhibited in K.’s school setting, according to a psychiatrist, Dr. Singleton. Neither parent disputes this diagnosis. Dr. Singleton prescribed therapy for K., to address his serious mental health needs. Despite this prescription, made almost 3 years ago, K. has not had the benefit of any therapeutic assistance.

[50] Yet, in the past three years, K. has been taken to and/or admitted to the Oakville-Trafalgar Memorial Hospital due to mental health distress on four occasions, set out as follows:

i) On November 23, 2017, Ms. Vasilakos, (the Vice-Principal at River Oaks) called both parents because K. had had a physical altercation with a teacher and with her. On that particular day, the mother was the resident parent and picked up K. from school, as directed. The school suggested that the mother take K. to the hospital and try to get him a referral to a psychiatrist. The hospital referred K. to Dr. Singleton for an appointment one month later, on December 18, 2017. The details of the Dr. Singleton appointment are as follows:

(a) On December 18, 2017, K. attended at the Halton Hills Health Centre for his appointment with Dr. Singleton. Both parents were present. In Dr. Singleton’s Consultation Notes, among other things, he indicated as follows[^5]:

(i) K had been brought to the BAS unit on November 23, 2017, following a physical altercation at school where he hit a teacher;

(ii) The behavioural outbursts had been present in the school setting for many, many years;

(iii) K was actually expelled from a daycare for having punched a teacher;

(iv) At of the time of the appointment, K.’s name had been put forward to work with a child and youth care worker again.

(v) There had been past contact with the ROCK agency. K.’s father suggested that the agency itself did not want to become too involved. K.’s mother suggested that the father had not been supportive.

(vi) K.’s mother suggested that she was quite concerned about K.’s outbursts and his resistance to going to school. K., for his part suggested, however, that he did not like to be rushed and when somebody tried to rush him, he could become upset.

(vii) K.’s mother suggested that she had been trying to seek therapeutic support for him for a long time. She indicated there was a contact with the Etobicoke Children’s Centre in 2016. However, she felt that attempts for therapy had been thwarted by K.’s father. K.’s father, however, reports that he has always waned to his son to have therapeutic support (for many years) and that there is really no agency that has been willing to provide that type of support.

(viii) Unfortunately, it did not appear as though there had been any significant counselling/therapeutic intervention as at that point in time. He wrote, “I certainly support both of K.’s parents in my belief that I think that counselling therapeutic intervention would be exceedingly important.” He thought it would be certainly to K.’s advantage, if therapeutic intervention could be obtained. He had supported the father in trying to re-establish contact with ROCK to see if K. could receive direct support. K.’s ADHD diagnoses was a very firm diagnosis. (Emphasis added)

(ix) He believed K. meet sufficient criteria for the diagnosis of oppositional defiant disorder (predominantly in the school setting). However, K.’s mother suggested that there were increasing behavioural concerns in her home setting as well.

(x) At that meeting, Dr. Singleton prescribed that K. attend for therapy at ROCK. The parents also discussed K.’s ADHD medication with Dr. Singleton. The mother had concerns about the Biphentin and felt that the Biphentin medication was making K. more agitated and anxious. Dr. Singleton suggested that the parties consider another ADHD medication, Vyvanse, together with Intuniv which worked well for ADHD.

(b) At a follow-up appointment on January 18, 2018. Dr. Singleton prescribed therapy for K., as 1) support with ROCK (local agency) and 2) support with school (i.e. Child Youth Care Worker)[^6].

ii) Then months later, in November 2018, the mother was called by River Oaks because K. had had a meltdown at school. He had had an emotional outburst and was hiding under a table. Ms. Vasilakos recommended that the mother take K. to the hospital, as he was engaging in self-harming behaviours. The details of K.’s hospital visit are as follows:

(i) On November 23, 2018, the mother took K. to the Halton Health Centre emergency department. They saw Dr. Singleton again. Dr. Singleton was shocked to learn that K. did not receive any therapeutic assistance after he had seen K. the year before.

(ii) On December 13, 2018, Dr. Singleton contacted CAS, to report a child protection concern - that K. has not been seen for treatment. If not addressed, he (Dr. Singleton) had serious concerns about K.’s mental-emotional health[^7]. In a follow-up call between the CAS and Dr. Singleton, he expressed that he had significant concerns that K. had not been seen for ongoing treatment since he had recommended such treatment a year earlier. His worry was that there were “significant gaps” in each parent agreeing to this treatment. Each saw the other as interfering.[^8]

iii) About a year later, on October 31, 2019, K. was assessed in the Child and Youth Urgent Care Clinic at the Hospital. He was accompanied by his father. He was assessed by Dr. Dhaliwal, a psychiatrist. He was referred to the psychiatrist because on October 22, 2019, K. had been seen in the emergency department for self-harm behaviours and emotional dysregulation. The father brought K. to the hospital, reporting that there had been an increase in his behaviours recently at his mother’s house and at school. Dad had apparently stated that all of K.’s behaviours were related to physical and emotional abuse by the biological mother. Dr. Dhaliwal’s notes indicate that he had initially seen K. on June 24, 2019, he had recommended switching K.’s medication to longer-acting Concerta and an increase in the Intuniv medication and that he had also recommended the family to connect with ROCK Centre for family therapy and parent training for ADHD behaviours. However, the recommendations were not followed and the father states that he has not been connected with ROCK yet.[^9]

iv) Less than two months later, on December 16, 2019, K was involuntarily admitted to the hospital for 72 hours (under a “Form 1”) to be sure that he was not a danger to himself or anyone else. The mother had brought K. to the emergency department after an altercation that had occurred the night before between her and K. The incident involved K. soiling himself. (The mother noted urine and fecal incontinence was happening with K more frequently.) When the mother asked K. to clean himself up, he refused. The mother turned the Wi-Fi off so that K. would stop playing video games and listen to her. K. began swearing, yelling at the mother, being violent and aggressive toward her, including punching, kicking, pushing and elbowing her in the head and neck. The mother said that she could not defend herself because of fear that the father would accuse her of abusing K. Dr. Dhaliwal decided to admit K. overnight. The Oakville-Trafalgar Hospital Reports from December 16th and 17th, 2019, indicate that both parents wanted counselling for K. The mother was alleging that the father would not consent to it, so it had not happened; They did not communicate. The mother wanted K.’s ADHD medication changed and wanted counselling for him. The father did not initially agree with changing medication, as he said the issue was the mother’s parenting. The father did acknowledge that K. had a history of ADHD symptoms from age 3 onward. The school reported behavioural concerns. The notes also indicate that K. would start seeing Jennifer Yates (a child and youth worker at the Hospital)[^10]. Further details of K.’s 72-hour stay at the hospital include the following:

(a) On December 17, 2019, while at the hospital, K. met with Dr. Kimberley Mollot for a psychiatric consultation. Dr. Mollot’s report confirms the following:

(i) K. acknowledged that he acted out of aggression towards his mother. He acknowledged that these big negative emotions tended to come out either with the mother or at school, and denied ever becoming aggressive with his father. When he got these “big mad” feelings, he would yell or hit.

(ii) When asked why he did not act out in this way at the father’s home, K. said, “My dad knows what is best for me” and said that dad made a sound that calmed him.;

(iii) He acknowledged having had suicidal thoughts in the past when angry or sad, but denied having any at that time;

(iv) There was also a lot of hair twirling and pulling, with some notable bald patches;

(v) The father blamed all of K.’s difficulties on the mother; (the alleged abuse and “trauma” that K. had been exposed to) or the mother;

(vi) The father said that he had reached out to ROCK but they would not treat K. They had explained to the father that this was likely because of the ongoing court case. The father did not believe that K.’s ADHD was all that problematic and told [Dr. Mollot] that he did not even give K. the medication on weekends, as he felt that K. was perfectly fine when he was with him.

(vii) [Dr. Mollot] spent a great deal of time reiterating the fact that K. had received an early diagnosis of ADHD and ODD; it was a neurodevelopmental disorder requiring ongoing treatment; and it would not be perfectly fine in one environment as opposed to another;

(viii) They attributed a lot of K.’s difficulties to his underlying neurodevelopmental disorder, as well as to the chronic conflictual relationship between K.’s parents. The father only saw the latter and the mother tended to focus more on the former one.

(ix) The parents were at complete odds, which was really leaving K. conflicted, confused and in the middle;

(x) Dr. Mollot believed that the parents were not able to see clearly because of their personal history with one another;

(xi) Dr. Dhaliwal had also suggested the optimization of the Intuniv medication and a change from Biphentin to Concerta, but neither of these medication changes had occurred. These recommendations had been made in the spring;

(xii) Although there was an opportunity to engage in an ongoing outpatient follow-up in their program, the father had suggested that he could continue with Dr. Fiorini, the paediatrician who had been involved over the long run.

(xiii) Although the father tended to really minimize the significance of the ADHD, a school report suggested otherwise. K. had a lot of difficulty with boundaries, significant affective instability, trouble with social interactions, and a history of running from school;

(xiv) There had been a number of recommendations around optimizing his ADHD medication, but the father had been reluctant to make those changes because, through his lens, the only reason K was having difficulties was the allegation of assault(s) on K. by the mother.

(xv) At the end of the day, “this [was] is still a young boy with early diagnosed neurodevelopmental disorder of severe ADHD who is most definitely being undertreated.” (emphasis added)

(xvi) Dr. Mollot believed that K. could benefit from a trial of Concerta. The father tried to push back the trial of this medication change to February, noting that the mother would be away for January and he anticipated that K.’s behaviour would be pristine while the mother was away, blaming all of K.’s challenges on the mother;

(xvii) Dr. Mollot indicated that she had been pretty insistent with the father that he was not to wait until February because there were separate concerns, and the ADHD would ultimately require treatment whether the mother was or was not around.

(xviii) Dr. Mollot spoke at length about the importance of structure in both homes, and about how both were to have the same limits around technology and bedtime routines. They were each accusatory of the other not having adequate limits. For example, the mother had stated that K. could access technology in the middle of the night at his father’s house, therefore feeling as if he had more flexibility at his father’s house.

v) On June 14, 2019, K. met with Dr. Singleton again. The psychiatrist’s notes[^11] indicate that:

(a) It was a significant factor that K.’s parents had been involved in the protracted legal struggle over access and obtaining supports. It was important to note that when speaking with the mother and father (who would never be interviewed in the same room at the same time with the mother) that there were significantly different reports regarding K.’s situation;

(b) Dr. Singleton had called CAS about the mother’s report that she was able to obtain services and support through the assistance of CAS.

(c) Unfortunately, K’s difficulties (in terms of oppositional traits) seemed to be escalating at the time of this visit. It was not clear to Dr. Singleton what therapeutic supports would ever be put in place to help K. on a different path.

[51] There were many other examples of high-conflict parenting between the parents and the involvement of third-parties on many occasions who have told the parents what K. needs in terms of support and therapeutic interventions and medication. The parents either willfully ignore the professional advice and blame each other for not accessing or failing to consent to the other accessing the recommended supports or are unable alone or together to have any insight into how their inability to place K.s needs and best interests ahead of their own needs is damaging to K. both currently and on a long-term basis. Exhibits tendered by both parties during the Trial evidence as follows:

(1) Both parents were arrested for alleged domestic assaults against one another in separate incidents. The mother’s charge of assault was resolved by way of a peace bond. The father’s charge was withdrawn. A police report, dated February 7, 2016, indicated that that there were four domestic incidents on file between the mother and father between 2014 and February 2016[^12].

(2) In accordance with the Stevenson Order, on May 1, 2015, the mother enrolled and established an account on the Our Family Wizard (“OFW”) website.[^13] Despite this, both parties testified that they did not use OFW to communicate and, instead, communicated by email. In particular, the father refused to use OFW. This is one breach by the father of the Stevenson Order.

(3) On August 6, 2015, the Catholic Children’s Aid Society in Toronto (CCAS) had received a call from 22 Division police, reporting an incident in which K. was exposed to adult conflict, which had occurred while the parents were exchanging K., after an access visit with the mother. No physical interaction took place and K. was unharmed but the mother reported that K was frightened when the father raised his voice and yelled at her during the exchange. The police did not press charges but cautioned the father.[^14] This incident took place seven months after the Stevenson Order.

(4) On September 1, 2015, Dr. Fiorini (K.’s paediatrician) prescribed Biphentin to K. to assist with his ADHD symptoms. The father began K. on the medication and advised the school. He only advised the mother on September 9, 2015, after she had learned about the medication from the Vice Principal at River Oaks[^15]. This is another breach by the father of the communication and information-sharing protocol set out in the Stevenson Order.

(5) In November 2015, the mother attended a parenting program, “Nobody is Perfect”, at the George Hull Centre to assist her in managing K.’s behaviours when he was at her home. This is an example of the mother taking steps to support her parenting of K. when he was in her home.[^16]

(6) On February 9, 2016, the police received a report from Jane Seward of the Halton CAS indicating that the father had reported that K. had disclosed an assault that had allegedly taken place at the mother’s home. K. had bruising on his right buttock. K. was interviewed but his recollection of the events was spotty and he could only recall certain things from the prior weekend. K. was sent home with the father. After CAS conducted its interviews with K., the mother and a home visit with each of the mother and the father, CAS closed its file[^17].

(7) On September 15, 2016, the mother and K. attended at the walk-in clinic at the Etobicoke Children’s Center (“ECC”). The mother expressed concern about K.’s anger and physical aggression and reported that she had difficulty in getting K off his iPad; K. has “physical temper tantrums”; and K. had bathroom accidents from playing video games instead of taking a break from them to use the washroom. The Walk-In Summary report indicates that K. and the mother created a plan to help K. stay calm and try to address his anger and manage his strong emotions. They left, hoping to implement the plan as a self-regulation technique.[^18] This is another example of the mother trying to access therapeutic support, to assist her in parenting K. and to assist K. in learning to identify and manage his emotions.

(8) On October 12, 2016, the mother returned to the walk-in clinic at ECC with K. and asked to see a therapist to discuss her concern about K.’s anger when his electronic devices were taken away. The mother had apparently advised that the prior week, K. had punched a mirror and broken it when she tried to take his device away. ECC called the father, to obtain his consent to treat K. The father consented to one walk-in session but asked the mother to return with K. on another night, at a time that was not so close to K’s bedtime. Both parents were told about the impact that conflict between separated parents can have on children and negatively impact children’s emotional wellbeing. Both parents apparently agreed that it would be in K.’s best interests to find ways to positively co-parent and decrease the conflict between them.[^19] This is another example of the mother trying to access therapeutic support for herself and K.

(9) On January 23, 2018, the mother brought K. to the walk-in counselling clinic at ROCK in an effort to connect with ROCK as to what services may be available for K. The clinical summary report of Sarah Stowell of ROCK indicates that the mother’s hope was to access services for K. as soon as possible. The recommendations from this walk-in were for the mother to 1) bring back signed attestation letter to pursue services for K.; 2) consider family mediator services to help parents with communication; and 3) for the mother to access The Women’s Centre, for support groups, legal-aid and parenting.[^20] This is another example of the mother trying to access therapeutic support for herself and K.

(10) On January 23, 2018, Stop Now and Plan (“SNAP) Boys (West) (an evidence-based behavioural model that provides a framework for teaching children struggling with behaviour issues, and their parents, effective emotional regulation, self-control and problem-solving skills) confirmed that the mother had completed an intake form for K. to partake in the SNAP group in March 2017 but that there was an 18-24-month waitlist such that K. would not be admitted to the program until between February and September 2019.[^21] This is another example of the mother trying to access therapeutic support for K.

(11) On March 21, 2018, the mother and K. attended at the George Hull Centre and met with a therapist, Eva Casino. Ms. Casino’s Consultation Notes indicate that K. has had significant stress in his young life, including witnessing significant parental conflict; being the subject of a protracted court battle; attachment disruption; hearing derogatory messages about a parent; and inconsistent parenting. K. was demonstrating concerning distress in his aggression and protracted temper tantrums; enuresis, encopresis and hair-pulling. She noted that the parents had joint custody of K. and either could not agree on a treatment plan or were having difficulty getting a counselling service to agree to see them.[^22] This is another example of the mother trying to access therapeutic support for K.

(12) Beginning on July 18, 2018, K. attended ten sessions at the Woodview School Based Support Team, which was a referral from River Oaks. K. had been referred to the Woodview School Based Support Team seven months earlier (on January 12, 2018) by staff at River Oaks. The referral was made for family conflict, physical aggression, impulsivity, sensory concerns (hair twirling, ear poking and noise sensitivity), emotional regulation, anxiety and oppositional behaviours (to authority figures)[^23]. This is the first example of K. gaining access to therapeutic assistance. The goals of the therapy included the following:

(i) For K. to learn strategies to be able to appropriate express and regulate his emotions; and

(ii) For the social worker, Ms. Koning, to provide behavioural management strategies to the parents. I note, in particular, that the Woodview Counselling/Therapy Report indicates that the father was not looking for parenting support so the in-person parenting support sessions were provided to the mother only[^24]. During these ten sessions K. learned emotional regulation strategies. In particular, K. was apparently taught to identify his emotions through colours. The mother, however, testified that these strategies did not translate into providing K. with any long terms benefits.

(13) Throughout the fall of 2017 and onward, the father maintained to the mother and the OCL that he was trying to K. assistance through ROCK. However, clinical investigator with the OCL, Ms. Ryan, deposed on August 4, 2016, that ROCK had declined to the assist K. or the family because of the high level of parental conflict.[^25].

(14) On July 16, 2018, Dr. Antowan, the father’s physician, confirmed that the father could not work for the time being, due to medical reasons.[^26] The father’s testimony was that he had become depressed and was unable to work.

(15) On October 22, 2018, the mother and K. attended a walk-in session at ECC, which was in the mother’s catchment area. The purpose of the session was to address the difficulty K. was having in getting up in the morning and getting ready for school when he was with his mother. The Walk-In Session Summary prepared by Marietta Nuyens, a child and family therapist, identified coaching K. about expressing his feelings with words; that the mother should acknowledge K.s feelings when he is upset or angry, to assist him in regulating his emotions; and recommended that the mother support K. in learning how to express himself.[^27] Again, this is an example of the mother trying to access therapeutic services for K.

(16) On November 29, 2018, Michelle Barr, Manager of Clinical Services at ROCK, stated in a letter that ROCK did not have an open file for K.[^28] This contradicts the father’s insistence that he was still waiting for ROCK to assist K. This suggests that, despite the father’s position that he was waiting for ROCK to assist, ROCK was not providing assistance for K. nor was ROCK indicating a willingness to the father that it would do so.

(17) According to an email from ECC to the mother on November 30, 2018, ECC had reached out to the father, to request his consent for K. to attend their walk-in clinic. The father refused to consent. He apparently indicated that K. was getting services at ROCK and wanted to avoid confusion for K.[^29] Again, this is an example of the mother trying to access therapeutic supports for K. and the father refusing to consent, based on an alleged incorrect assumption that ROCK would help K.

(18) Between the end of September 2018 and October 15, 2018, the mother took K. to the George Hull Community Centre to receive treatment for his mental health needs. The Supervisor at George Hull had received a call from the father, however, advising that the father was not in agreement with K. receiving treatment there and, as a result, the George Hull Centre could no longer provide services to K.[^30] This is another example of the mother trying to access therapeutic support for K. and the father refusing to consent to same.

(19) On January 23, 2019, Blake Anderson of the CAS spoke with Michael Barr, ROCK manager, who told Mr. Anderson that the family had had intensive services involved with them in the past. ROCK told Mr. Anderson that “Mom was only given permission for child to see a counsellor if she was able to be in the room via phone. She then revoked consent for counselling. ROCK had tried in-home support in the past. K. was on the waitlist for counselling at ROCK, which would start in 3-4 weeks. ROCK might refer the family to Peel Children’s Centre or the mother would have a to refer herself, as ROCK could not provide in-home support for the mother because she resided in Etobicoke. This is an example of the mother revoking her consent for K. to receive counselling from ROCK and the first indication that the ROCK might have been able to provide therapeutic support to K.[^31]

(20) In January 2019, the mother attended an 8-week parenting group, Problem Solving Together, at ECC. The program was based on a Collaborative Problem-Solving model as described in Dr. Ross Greene’s book, the “Explosive Child”. This demonstrates a willingness and openness on the part of the mother to access therapeutic supports to assist her in managing K.’s problematic behaviours.[^32]

(21) On October 2, 2019, Mr. Dinner, (K’s teacher at Abbey Lane) reported that in K’s first month in the BRC, K. was drawn to conflict with peers and inserted himself in the conflicts of others; mimicked the negative behaviour of peers; presented as initially reluctant to work, but could often follow through with adult prompts and encouragement; was easily distracted and caused distraction to others, (most evident when he came to school without medication). He mentioned concerns around K.’s understanding and using appropriate social interactions – K. appeared to set up situations in which he would be targeted; K. had run from school property/classroom on several occasions; He put his finders in his ear and twirled/pulled hair.[^33]

(22) On December 14, 2019, the Oakville Trafalgar Memorial Hospital referred K .to the OneLink referral program.[^34] The father did not consent to K. accessing this therapeutic assistance as he indicated that he was waiting for ROCK. This is another example of K. being offered therapeutic support services and the father not providing his consent to it.

(23) On October 6, 2020, the 2nd day of this trial, Mr. Dinner reported via email that K. had was having a very difficult time and that K. had used the voice-to-text feature on his computer to record conversations in the classroom. When it was brought to K.’s attention how inappropriate it was, K. apparently became very disrespectful to Mr. Dinner and everyone in the classroom. It resulted in a meltdown where K. was throwing things in the classroom and screaming to everyone that he had to record things for court as it was the only way anyone ever believed him about what is happening at home with his mother.”[^35]

The mother’s position (with her focus on the evidence)

[52] Throughout the trial, the mother’s position was that the father has breached the terms of the Stevenson Order in that he refuses to communicate with her; fails to inform her of important and relevant information regarding K. and violates the required consultation and sharing-of-information obligations he has with her.

[53] The mother is seeking a change to the parenting schedule so that K. can reside with both parents on an alternating-weekly basis, with the weekly exchange to take place on Friday morning, at school. She believes that this schedule will involve fewer transitions for K., which he finds stressful, and submits that K. has demonstrated an ability to manage this schedule since he resides with both parents pursuant to an alternating-weekly schedule in the summer months. In this particular year, as a result of Covid-19, K. had been living with the parties on a week on/week off schedule between mid-March and the commencing of the school year, for about 5 ½ months.

[54] The mother also seeks an order for sole custody with respect to K’s medical decisions only. She testified that she has desperately been trying to engage mental health services for K. for years, without success as a result of the father’s interference and his continual failure to provide his consent to her arranging such services. She does not seek any other change to the decision-making regime set out in the Stevenson Order, with respect to decisions about K.’s education, extra-curricular activities or religion.

[55] The mother submits that there have been three material changes in circumstances, that warrant a change in both the parenting schedule and decision-making regime set out in the Steven Order, as follows:

i) K.’s need for therapeutic support has changed dramatically since the 2015 Stevenson Order was made. She submits that this is confirmed by the testimony of Ms. Vasilakos, Mr. Dinner and Ms. Boose. K. was physically violent toward a teacher in 2017. He was taken to the Hospital. Dr. Singleton wrote in his 2017 report that counselling and therapeutic intervention for K. would be exceedingly important. One year later, in 2018, Dr. Singleton was upset to learn that K. had not received treatment. The mother submits that K. has received minimal treatment only and only because of her efforts. K. has threatened to hit the mother with a golf iron; He has pushed, punched, shoved and body-checked the mother. The Halton District School Board decided to transfer K. from River Oaks to a BRC at Abbey Lane. Ms. Boose, the child and youth worker who works in K.’s classroom at Abbey Lane, testified that K. had scratched his wrist and threatened to harm himself. One year later, after Dr. Singleton recommended treatment that was not arranged, he called CAS because of concerns regarding neglect by the parents, to engage a therapist for K. K.’s circumstances were seen by him as a child protection issue. In 2019, K. was then involuntarily hospitalized and saw Dr. Mollot, who recommended a change in his medication from Biphentin to Concerta, to which change the father was resistant.

ii) Co-parenting along the lines of the 2015 Stevenson Order has not worked to K.’s detriment. The parents cannot work collaboratively in any fashion as it relates to K. The mother submits that the father refuses to follow the joint custody parenting order, making it unworkable. The father refuses to be consultative with the mother. The father has shown disregard for the Stevenson Order’s decision-making terms and this makes it impossible for the mother to take action in K.’s best interests when the father will not or cannot do so. The father ignores the mother and does not share information with her let alone, consider her views and proposed courses of action, to K.’s detriment.

iii) The circumstances of the father have changed such that he is no longer capable of looking after K.’s needs. The father testified that he had become depressed and tendered an exhibit, which indicates that he cannot work due to medical reasons. He testified about receiving financial support from his family and being in arrears of child support. There is also evidence that was adduced to confirm that his financial hardship meant that he could not afford Intuniv medication for K. More importantly, the father has remained so hyper-focused on past circumstances that he is unable to focus on K.’s current issues. Further, the father is in denial about K.’s current issues. It is totally inappropriate and is contrary to meeting K.’s needs for the father to blame all of K.’s issues on the mother. The father’s position demonstrates that he does not understand or is unwilling to take the steps to comprehend K.’s complex neurodevelopmental needs. As a result, the father cannot appropriately evaluate and determine what it is in K.’s best interests in terms of his health, both physically and mentally.

b) The mother’s position is that a material change justifying a change in the Stevenson Order as it relates to decision-making/custody and the parenting schedule has taken place and the court must only look at K.’s best interests to determine what plan is best for him. The mother maintains that she can best meet his needs and is the only parent who has tried over the past four years to address K.’s complete health needs. The testimony elicited in the mother’s examination-in-chief and via the Exhibits tendered, demonstrate that the mother resorted to George Hull; Etobicoke Children’s Centre (ECC); SNAP waitlist and even the ROCK agency in Burlington to try and access therapeutic support for K. By contrast, when the father was cross-examined during the trial, his efforts to obtain therapeutic support for K. were that he went to a walk-in session and spoke to ROCK on the phone.

c) In terms of the parenting schedule, the mother’s position is that an alternating-weekly schedule is necessary so that she will be able to organize and take K.’s to any required health-related appointments, to address his mental health needs. If I were to impose the residential schedule that the father proposes, it would preclude the mother from having involvement in and taking K. to appointments as they are not open on the weekends. Further, the father’s proposed schedule would reduce the mother to be a mere visitor in K.’s life. It is undeniable that the status quo is harming this child. The mother’s position is that the evidence is clear that there is an “asymmetry” with the mother trying to help K. She submits that she has been relentless in her efforts to get K. the help he needs and deserves, no matter how violent K. is toward her or how much the father disrespects her. The mother has pleaded with the father to consent to treatment and he will not do so. As a result, the mother is now asking the Court to make an order giving her the authority to make medical decisions for K.

[56] Based on these material changes, the mother submits that it is in K.’s best interests that she have final decision-making authority (sole custody under the current applicable legislation) for medical/health decisions so that she can determine where K. can obtain the necessary mental health treatment he requires, without the requirement that the father consent to it. Furthermore, for her to not only determine what K. needs in terms of therapeutic support but to be able to implement a treatment plan upon which she has decided, the mother submits that a parenting schedule that will permit the required treatment to be provided with the added benefit that the plan would result in fewer exchanges between the parents is in K.’s best interests given his current diagnoses. The mother submits that when K. was living with both parents, pursuant to a week on/week off rotating schedule after the Covid-19 pandemic began, he managed very well.

[57] The mother reports that one of the triggers for K.’s explosive behavior occurs when he is asked by her to shut off his electronics. She testified that she has tried many strategies to manage this trigger for K., including having developed a contract with K. such that if he complies with expected behaviour such as hygiene and household chores, he will get V-box “currency” for Fortnight, his favourite video game. This technique has been somewhat successful, according to the mother.

[58] The mother, however, expresses that while she tries to put limits in her household on K.’s screen time and use of Fortnight, K. has been able to bypass her rules in her home by accessing his Fortnight account set up by him at his father’s house through his data plan. The inconsistencies in both households is problematic from the mother’s perspective. She believes that K. disrespects her because he has learned to behave this way from watching the father. The mother proposes that K. not be permitted access to a data plan set up by the father when he is at the mother’s home to bypass the limiting of K.’s screen time when he is with her.

The Father’s Position (with his focus on the evidence)

[59] The father also submits that there has been a material change which warrants a variation of both the parenting schedule for K. and the decision-making regime.

[60] The father submits that the Stevenson Order was based on recommendations of the OCL in 2015. The OCL hoped that the parents would be able to work together, despite the evidence that existed that they were unable to do so. The father asserts that the mother has been physically and emotionally abusive toward K. and that most, if not all, of K.’s mental health needs arise from trauma that he has suffered at the hands of his mother. He submits that, despite the number of parenting courses the mother has taken, she remains incapable of addressing and/or meeting K.’s unique needs. The father submits that he is the parent best able to soothe, calm and manage K.’s special needs; it is in K.’s best interest to have one primary residence during the school week, given the ADHD and ODD diagnoses; and K. should spend alternate weekends with his mother as well as mid-week visits, which would not longer be overnight. Further, as the father maintains that the parties cannot agree on any decisions relating to K.; the mother is insulting toward him when she communicates with him; and the mother makes it impossible for the parents to work together, in K.’s best interests, the Court should order that he have sole custody of K. If he is authorized to make all of the major decisions relating to K., the conflict between the parties would end. K. could then get the treatment he needs.

[61] The father testified about his extreme disappointment with “the system”, the court, the OCL and CAS in terms of no one protecting K. While he did not testify that the mother was a “bad parent”, he did testify that, in his view, the mother is incapable of dealing with K. and his needs.

[62] The father’s position is effectively, that the evidence shows that he was trying to arrange for K. to get therapy from ROCK. [He admitted, however, that he found out in December 2019 that ROCK would not accept K. for therapy because they felt that the father was so focused on his conflict with the mother that the therapy would not be productive].

[63] When Dr. Mollot met with K. in October 2019, she had recommended that K. meet with Jennifer Yates for counselling. The father refused to consent. The father’s position is that his refusal to consent should not be understood as him not agreeing to K. accessing therapy but, rather, that he does not believe K. having multiple therapists at different organizations is in K.’s best interests.

[64] The father relies on the evidence that, when the mother was in Brazil during the months of January and February 2020, Abbey Lane noticed significant improvements in K.’s behaviour and demeanor at school. Alyson Gardner, the OCL clinical who did the “clinical assist” in this proceeding, testified that the school confirmed that K.’s behaviour during this time period was positive. K. had made strides and no longer required supervision at recess. Further, K. was being integrated into some mainstream classes. The father submits that this proves that, of the two parents, he is more capable of meeting K.’s complex needs than the mother is and the mother’s involvement with K. only disrupts him, upsets him and causes K. distress.

[65] The father is steadfast in his belief that the mother is abusive to K. verbally and physically. He believes that K. has suffered trauma as a result of the mother’s treatment of him. He is adamant that K. does not need therapy for his ADHD or ODD but, rather, to address the trauma he has suffered at the hands of his mother. During the trial, the father introduced three screen shot pictures that he had taken of messages that the mother had sent to K. on his cell phone. He attempted to introduce these screen shots into the evidence when he testified, which occurred after the mother’s evidence had concluded. After considering the nature of this case and the importance of not excluding seemingly quite relevant evidence, which could likely cause any party in such circumstances to not only question the soundness of the decision, the court would make, particularly when the father was appearing In Person and the manner in which he dealt with the evidence did not appear to be calculated to prevent the mother from addressing the evidence, but likely become the fodder for subsequent motions or Motions to Change, I allowed the father to give evidence about this issue only after K.’s responses were redacted and the mother had an opportunity to identify whether she had sent the texts and give evidence about the texts before the father had an opportunity to cross-examine her in connection with the screen shots. In my view, she should have known that the father intended to rely on those documents before the trial took place.

[66] The father’s position is that these texts from the mother to K. are demonstrative of her lack of patience with K. and prove that she is not child-focussed and in fact, abusive toward him. In particular, the father believes the mother blames K. for his behaviour. As will be discussed below in these Reasons for Decision, I was advised at the starting of the trial that K. would not allow the OCL to provide his views and preferences to the Court. During the course of the trial, the father submits that K. not allowing the OCL to express his views and preferences at trial results from K.’s fear of the impact on him in the mother’s house, if he were to express his views and preferences to the Court.

[67] The redacted screens shots were tendered as Exhibit #37. The year in which these texts were sent is unknown. Given that the purpose of the evidence was to prove that the mother behaves inappropriately toward K., to the point of being abusive to him, and not to provide evidence of K.’s views and preferences, I directed the father to redact K.’s statements in response to the texts from the screenshots. The un-redacted portion of the screen shots of the texts read as follows:

(1) From the mother to K., undated: “Filho do you have your phone by any chance? Mommy is trying to find you but Papi is not responding Momi’s messages”[.]

(2) From the mother to K. on December 18, at 9:30 p.m.: “K. are you there?”

(3) From the mother to K. on December 24, at 7:29 p.m.: “It is Dad [sic] allowing you to contact me? He seems very very angry person. I miss you”;[.]

(4) From the mother to K. on December 25, at 11:05 a.m.: “Anyway, mom is better now, strong again, even stronger now, I want to ask you something…”

(5) From the mother to K., undated: “Don’t forget that. You better start reading again!!!!”

(6) From the mother to K., undated: “Judge said it should be 2 homes and one plan. If dad does not follow he can lose custody”[.]

(7) From the mother to K., undated: “But it’s the rules”; [.]

(8) From the mother to K. on July 18th, at 1:42 p.m.: “If you wake me up again I’m going to turn this shit off for good. Bell says modem is working fine. If legs or stops working I DON’T FLIPPING KNOW WHAT IS THE FLIPPING ISSUE!!!! One more thing if you shit in your pants again you will be bored as hell because I will turn off everything even the TC and when you use the toilet flipping flush”[.]

(9) From the mother to K., undated, “But the answer is No. I cannot change the court schedule. I get in trouble”; [.]

(10)From the mother to K., undated, “You can’t honey, the law says you are with me this week wed, thu and Friday. Rather [sic] you like it or not. This is a conversation between daddy and I. I will pick you up tomorrow. And you will be going back to daddy’s on Friday at 6 p.m. like the Court ordered”.

[68] The mother acknowledged that she did send these texts to K. She apologized for sending them. She expressed most specifically that she was frustrated with K. as he was having fecal incontinence regularly because, according to her, he would not turn off his video game to break long enough to use the bathroom no matter how many times she asked him and reminded him to do so. She acknowledged that this was not an appropriate manner to address K. and explained that this was a “one-off” example of her interaction with K. Further, the mother advised that she has accessed many supports that have helped her to deal with the difficult, oppositional and defiant behaviours that K. exhibits in her home. While the father reiterated to the Court many times during the trial that K. does not exhibit such behaviours in his home, this does not take away from the fact that K. does behave this way when he is with his mother, which poses additional challenges for her in her home.

[69] The father’s submissions regarding the order that this Court should make are clearly premised on the following alleged inappropriate behaviour of the mother:

i) She easily lies to organizations such as schools and CAS;

ii) She had demonstrated inconsistencies and many contradictions in her evidence;

iii) She accuses the father of neglecting K.’s mental health needs but she recently denied her consent to get help from ROCK and then falsely accused him of doing likewise;

iv) She has tried to paint him as being neglectful but she is focused on him and not K.;

v) She claims that he has denied consent for treatments she had sought for K. but he believes that K. ought not to receive multiple therapies from different organizations;

vi) She claims that K. is addicted to video games but then she bribes K. with payments “in currency” to get K. to behave, which furthers his love for Fortnight;

vii) She texts K. in a rude manner and then claimed that she did so only on a “one-off” basis. She apologized and said that she had been frustrated, but one does not know that to be the case with any certainty;

viii) She does not think that K. should be on the phone with his father when he is at her home; and

ix) She has a complicated and insecure relationship with K. K. is usually tired when coming from her home.

[70] The father further submits that the independent witnesses who testified during the trial all said that K. is better with his father and has more trouble when he is with the mother.

The OCL’s Position

[71] K. is represented by the OCL, Ms. Tremain, pursuant to the decision that the OCL made to provide such representation, pursuant to s.189 of the Courts of Justice Act. Again, Ms. Tremain has been assisted by a clinical, investigator, Allyson Gardner, who testified on K.’s behalf. The OCL describes K. as a bright boy who has significant challenges. As mentioned above, K. specifically did not give consent to the OCL to disclose his views and preferences to the Court during the course of the trial.

[72] Counsel for the OCL advised me that the OCL was not taking a position on behalf of K. in respect of his parents’ requests for relief at the trial.

[73] At the commencement of the Trial, Ms. Tremain indicated that I might wish to consider conducting a judicial interview with K., pursuant to s.64 of the Children’s Law Reform Act, RSO 1990, c.C.12 (“CLRA”). She indicated that doing so might be of assistance to the Court. Ms. Tremain indicated that K. might wish to be interviewed by a judge in a private setting, if I was inclined to do so, the OCL would support such an interview.

[74] The jurisdiction for a judge to interview a child is set out in s.64 of the CLRA. Section 64 is reproduced below:

Child entitled to be heard

64 (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them. R.S.O. 1990, c. C.12, s. 64 (1).

Interview by court

(2) The court may interview the child to determine the views and preferences of the child. R.S.O. 1990, c. C.12, s. 64 (2).

Recording

(3) The interview shall be recorded. R.S.O. 1990, c. C.12, s. 64 (3).

Counsel

(4) The child is entitled to be advised by and to have his or her counsel, if any, present during the interview. R.S.O. 1990, c. C.12, s. 64 (4).

[75] Despite having the jurisdiction to do so under the CLRA, I ultimately indicated to the OCL and parties that I did not intend to conduct a judicial interview of K. for the following reasons:

b) The trial was being conducted remotely and I was concerned both about a judge’s ability to appropriately interview a child on a video-platform and whether K. would necessarily be comfortable being interviewed by me on a video-platform. Interviewing K. on a video-platform also introduced the logistical problem of whether the parent in whose home K. was in would be able to listen to him, influence him, or the parent’s presence nearby would simply make K. feel uncomfortable and potentially result in an interview that might not result in my receiving open and frank views and/or preferences regarding both his parents. I was also concerned about having the interview potentially take place at K.’s school – one place where to this point he has not been physically caught in the middle of his parents’ conflict and where he apparently feels safe.;

c) Even if K. and his parents consented to him attending in-person in my chambers, that would then necessitate K. being interviewed by me while I was wearing a mask. K. would also have to wear a mask. I did not feel confident that I could appropriately interview K. or that K. would be comfortable being interviewed by me in-person with masks being worn;

d) Even if the challenges caused by masks and using a video-platform were not problematic and I felt confident that I was able to easily establish a connection with K., I do not necessarily believe that the views and preferences that K. might express during such an interview would necessarily be indicative of his true views and preferences in terms of the parenting schedule or anything else he might wish the Court to consider or order;

e) Further, K. had clearly told the OCL that he did not want his parents to know his views and preferences. If K. told me in the context of a judicial interview what his views and preferences were, I would have been obliged to disclose them to both parents and the OCL and, as a result, I was of the view that upon learning this, K. would decline to share his views and preferences with me and possible feel that he had let me, the OCL or perhaps even himself, down;

f) A child being interviewed by a judge can be very intimidating and can have long-lasting impressions on a child. For example, a child might feel tremendous guilt, if he or she expressed a preference to live with one parent over the other. Placing a child with special needs like K. in a situation where he is caught in a loyalty bind between his parents could easily be harmful to him;

g) Even if K. was willing to express his views and preferences to me in a judicial interview, I would have to explain to him in advance that his views and preferences are only one factor the Court must consider in determining what is in K.’s best interests, pursuant to s.24 of the CLRA. Not only would this possibly affect his preparedness to participate any further in the interviews;

h) Judges have not been trained to interview children. Although many judges have had experience with children including raising their own, and may think interviewing children is within his/her skill-set, clinical therapists with training as a social worker, psychologist or psychiatrist, have particular training in the manner in which to interview children. Having that specialized knowledge is very important when dealing with a child, who is a stranger to the judge and to whom the judge is a stranger, particularly where the child has been diagnosed with both ADHD and ODD and has been undertreated for these mental health issues; and

i) Finally, upon hearing from Mr. Dinner about the difficulties K. was experiencing in the classroom during the trial, I concluded that the potential harm to K. that could be caused by an attempt to interview him might well outweigh any potential benefit to the Court of eliciting information from K. The various witnesses who have developed intimate knowledge of K. in his classroom, or in face-to-face interactions with him, are in a far better position than I would be as a judge in a very limited and foreign role to K. to express what they have observed and know about K.

[76] After hearing that I did not intend to conduct a judicial interview of K., Ms. Tremain advised the Court that she, too, shared my concerns in terms of potential harm to K., especially after hearing about K.’s difficulties in the classroom on the first and second day of the trial. The father advised that he understood the reasons for my decision but that he still felt it would have been helpful for me to have heard from K. directly about his views and preferences. The mother expressed no view.

[77] At the conclusion of both parties’ evidence, I asked Ms. Tremain if the OCL had anything further to add prior to the commencement of closing submissions. Ms. Tremain made the following submissions about the evidence of both parents on behalf of K.:

i) The mother and father love their son very much and he loves them;

ii) The parents have a fundamental inability to agree on K.’s medical needs and on the parenting schedule;

iii) K. has significant needs; One of K’s wishes is that his parents become friends again;

iv) K. did want the OCL to share with this Court that the conflict with his parents is affecting every aspect of his life.

v) K. is such a bright boy. The reports of K.’s behaviour highlight the effect that this dispute has on him. K. is simply sick and tired of hearing about court.

vi) K. is 11 ½ years old now and he will become more independent with each passing year. There is limited time left for the parents to be able to work with K. He is a wonderful boy and everyone likes him. He needs the proper tools to grow and thrive. The parents cannot agree on the appropriate therapeutic supports and medications that K. needs. For years, doctors have stated what K. needs; yet, he has not received the needed support;

vii) Dr. Singleton recommended therapeutic support for K in 2017. In 2017 (a year later) when he learned K. had did not received the medical or therapeutic support he needed, he was frustrated and felt it was a child protection matter;

viii) Similarly, Dr. Dhaliwal and Dr. Mollot also confirmed K.’s needs for therapeutic support in the notes they prepared in relation to their involvement with this family;

ix) Everyone involved with this family has commented on the clear detrimental impact on K. of the parents’ unabated dispute [and litigation]. The parents must put aside their dislike for each other and put K.’s needs first;

x) The court heard inconsistent evidence in terms of which parent scheduled appointments made to get K. into therapy, and which parent consented to treatment and/or withdrew his/her consent to treatment. Regardless, K., had not received and is still not receiving any therapeutic support outside of his Behaviour Resource Class (“BRC”). Prior to starting at Abbey Lane in September 2019, he was not receiving any support at all;

xi) K. exhibits more challenging behaviour when he is with his mother and it is troubling that he has actually hurt her in the past. The father is concerned about some of the things the mother says to K. He also believes that the mother is abusive to K.; and

xii) The mother has availed herself of parenting support programs available at different organizations and demonstrated a willingness and openness to therapy for herself, for K. and for the two of them together. Both parents needs to support K. first.

Analysis

[78] None of the parties referred to any legal authorities during the trial. This was clearly a fact-driven trial. The question before me is, in general terms, whether a change(s) in the circumstances has/have occurred since the 2015 Stevenson Order was made, which necessitates changes being made to the Stevenson Order in K.’s best interests. Nonetheless, the Court must consider their legal authority and the parameters of that authority, with regard to the law applicable to the case.

[79] Given that K.’s parents were not married, s.24 of the CLRA governed the determination of the parenting issues outstanding between them upon the breakdown of their relationship.

[80] Each parent had an equal entitlement to seek custody of K., pursuant to s.20(1) of the CLRA. A parent who is granted custody of a child : CLRA, s.20(2).

[81] Section 24(1) of the CLRA mandates that the merits of an application for custody of or access to a child shall be determined on the basis of the best interests of the child. Section 24 provides as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

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 necessaries of life and any special needs of the child;

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

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

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

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

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

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

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

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

(a) his or her spouse;

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

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

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[82] Pursuant to s. 28(1) of the CLRA, the Court has the power to make such orders as I considers necessary and proper in the circumstances. Paragraph 28 of the CLRA is reproduced below:

Powers of court

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. R.S.O. 1990, c. C.12, s. 28; 2009, c. 11, s. 12.

[83] On February 6, 2015, Stevenson, J. considered the evidence that the parties presented to the Court during the trial of the issues outstanding between the parties at that time and made the parenting orders that the parties seek to change at this time.

[84] Pursuant to s.29 of the CLRA, a court shall not make an order that varies another custody or access order made by a court in Ontario unless a material change in circumstances has occurred, which affects the best interests of the child.

[85] Bill 207, the proposed Moving Ontario Family Law Forward Act, was introduced by Ontario’s Attorney General, Doug Downey, on September 24, 2020. The Bill is the Province of Ontario’s response to amendments recently made to the federal Divorce Act, which amendments are not yet in force. As I understand it, the expectation is in the foreseeable future the provisions in the CLRA respecting custody and access will be amended to mirror or conform closely with the amendments that have been made to the Divorce Act.

[86] The proposed amendments, if and when enacted, will substantially change the language that the court will use in determining “custody/access” issues. The government appears to be moving away from the labels of “custody” and “access” toward a regime that authorizes a judge to make orders in relation to “parenting time” and “decision-making responsibilities” What is now called a custody order (both sole and/ joint custody) will be called parenting orders. A parenting order will set out parenting time (with no reference to custody or access) and decision-making responsibility.

[87] In Bill 207, the decision-making provisions stipulate that the court can order that one parent have the primary responsibility for making “significant” child-related decisions about health; education; culture, language, religion and spirituality, and significant extra-curricular activities, but that either parent, during his/her parenting time with the child, has “exclusive authority” to make “day-to-day” decisions about the child.

[88] The best-interests-of-the-child test requires the court to consider “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent,”

[89] Bill 207 contains a clause, which provides as follows:

“In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.”

[90] While it is the current legislation that governs this case at this time, the approach taken in the amendments is, in my view, a better one generally in cases relating to children as the language in, and of itself, is less adversarial. Although the terms in the proposed legislation do not govern this case, the discretion the Court has under the current provisions of the CLRA amply enable a judge to make orders using the new language.

[91] To assist me in determining whether a material change in circumstances has occurred since 2015, which justifies a change(s) in the terms of the 2015 Stevenson Order, I heard submissions from Julia Tremain, counsel for the OCL and I received evidence from the parties; Ms. Vasikalos, the past Vice-Principal of River Oaks, the school K. attended until June 2019; Mr. Dinner, K.’s current special education teacher at Abbey Lane and his teacher for both Grade 5 and now 6; Ms. Boose, the child and youth worker who works in K.’s classroom at Abbey Lane; and Ms. Gardner, the social worker who acted as the clinical investigator, to provide assistance to counsel for the OCL and who had met and spoke with K. several times, each parent, and all third-parties involved with K. on a regular basis.

[92] In addition, each party tendered Exhibits, which assisted the Court, including but not limited to the prior CAS file for the family; Dr. Fiorini’s file for K. (again, Dr. Fiorini, is K.’s paediatrician); the hospital records relating to K.’s involvement at Oakville Trafalgar Memorial Hospital, including the treatment notes of Dr. Singleton, Dr. Dhaliwal and Mr. Mollot, the three psychiatrists who had treated K.; the Walk-In Summary notes from ECC, detailing every visit the mother and K. made to ECC; the Treatment notes from Woodview, detailing the treatment K. received at Woodview; the Walk-In summary notes from ROCK; various emails between the parties and between the parties and the school; and a number of texts that the mother had sent to K. (K.’s statements in the texts were redacted by the father at my instruction, given that the purpose the father had for adducing them was to confirm that the mother had acted inappropriate with K. to the point of being abusive to him).

[93] In my opinion, much of the oral testimony of each party was given for the purposes of blaming the other parent for cancelling or refusing to consent to K. attending appointments he/she made for K. to receive the therapeutic assistance needed to address his mental health needs. Again, K. did not receive the treatment that he has needed - treatment that virtually every doctor involved with K. had recommended for the past four years. In essence, the trial’s focus was primarily both parents alleging that the other had been the road-block to K. accessing the counselling first prescribed in 2017 to address his mental health needs.

[94] Regardless of which parent did or did not take active steps to engage therapeutic resources for K., or which parent withdrew his/her consent to such appointments taking place, the fact is K. has gone without the therapeutic assistance that was prescribed by various medical doctors over the past four years, when the objective medical professionals did what they could to bring home to these parents that he has needed this support. While both parents clearly love K. and want what is best for him, their intense anger and bitterness toward one another has caused each of them to lose sight of what is truly important in this case, K, their 11-year old, who is struggling. He deserves better.

[95] The father has very little, if any, regard for the mother’s parenting skills or the role she plays as K.’s mother. However this may have begun, the father, at this time, truly believes that all of K.’s mental health issues and ongoing difficulties stem from his relationship with his mother. which he testified is a complicated one and stems from an insecure attachment K. has with her. Specifically, the father believes that while K.’s diagnoses of ADD and/or ODD are challenging, K.’s mental health needs only stem from his relationship with his mother and his mother’s ineptitude in addressing K.’s complex needs and best interests. He asserts that K. needs therapeutic assistance to address the “trauma” he has suffered by being abused by the mother. Even if this were so, the father had the authority to make a decision as to the therapy in which K. was to be involved but, did not take the necessary steps to implement a therapeutic plan. This is a case where the father’s action (or perhaps better put, lack of action) speaks louder than words. In my opinion, he does not agree that K. needs therapeutic assistance, among other things, to learn how to self-regulate; identify his emotional triggers; and develop strategies to help himself when he is triggered.

[96] Despite the fact that every single doctor and/or other professional who has been involved with K. since the Stevenson Order was made has told the father that the conflict between him and the mother is the reason K. is suffering, the father disagrees. The father believes that the mother is verbally abusive toward K. and blames K. for his difficulties. The father remains steadfast in his belief that the mother is unfit to parent K. because she physically and emotionally abuses K. He submits that it is in K.’s best interests to have a weekend-only relationship with his mother. More specifically, the father claims that the mother lies and is inconsistent in what she tells professionals and agencies involved with the family. The father lacks the necessary insight into the problem to enable him to accept that the mother alone is not the main issue; it is the parental conflict that is mainly responsible for K.’s difficulties.

[97] The mother is not a perfect parent. The screen shots that the father took of texts the mother had sent K. confirm that she places K. in the middle of the parents’ conduct when she refers to the litigation and undoubtedly makes K. feel that he is the source of the blame the father places on her. It is clear that she has lost her patience with K. and spoken to him in an insensitive manner. The mother, however, recognizes that she has lost her patience at times and is apologetic for her mis-steps. She seeks support in parenting a very challenging child who is defiant and oppositional toward her. It is clear that that the mother has taken steps to improve her parenting skills and that she has acquired some insight into the difficulties she experiences with K. The mother has enrolled and participated in at least three long-term parenting courses at reputable agencies, to improve the way she approaches K. and handles the difficult behaviour he exhibits while he is in her care. Further, the mother has testified that her skill-set in managing K.’s difficult behaviours and resistance toward her rule-setting has improved over time.

[98] Various witnesses, including the father, Mr. Dinner and the OCL, report that K. is more responsive to the father’s parenting and boundary setting. It is impossible for this Court to know why this is the case. It could be because the father gives in to K.’s wishes; it could be because K. respects his father more than he does his mother; it could be because K. has learned he can push limits with the mother; it could be that the mother has not imposed the kind of boundaries K. needs out of fear that she will be accused of abusing K.; it could be that the mother herself makes him feel that he is responsible for the litigation and for her being the victim in the family; and it could be all or none of these reasons. There is no doubt in my mind however, that K. is aware of his father’s disdain and disrespect for the mother and this knowledge, in and of itself, is particularly damaging to K. The father does nothing to improve K.’s relationship with the mother, as if it would be better for him if she were not in his life.

[99] K. did not give the OCL his consent to disclose to his parents and the Court what his views and preferences are. Instead, K. wanted this Court to know these six things:

(1) He loves both his mother and father;

(2) He wants his parents to stop fighting “like children”;

(3) He feels like a ball bouncing back and forth between his parents’ two homes;

(4) As far back as he can remember his parents have been fighting about where he should live;

(5) He cannot remember a time when his parents were not fighting; and

(6) When he turns 18 years of age, he will move out and he will live with neither his father nor his mother.

[100] This 11-year-old child has more insight into the issues in this case than either of his adult parents do. He did not have to be a psychiatrist to appreciate the impact on him of his parents’ unending acrimony. He has said in clear and unambiguous terms that when he has a modicum of control over his life, he will remove himself from the conflict. I have no doubt that if he believed that the cause of the conflict lies with one parent only, he would have authorized the OCL to say little, if anything, about his above wishes.

[101] Having considered the evidence before me as a while, I have a level of confidence that the mother is capable of accepting her son’s word that she is jointly responsible for the conflict between the parents of which K. has become the sole focus. I cannot at this time, say the same thing in relation to the father. I am not satisfied that, even on learning that his son places the blame for the conflict between his parents on both of his parents, the father will emotionally be able to accept that he is even, in part, responsible for the unending exposure K. has had to his parent’s ongoing and damaging conflict of the two people in his life upon whom he is supposed to be able to depend for emotional security and support.

[102] How unfortunate it is that K. did not wish to express his views and preferences as to the parenting schedule that he would like to have his parents agreed or the court order. This confirms that K. does not wish to be caught in a loyalty bind between his parents with all of his health challenges, K. has the insight to know and experience that expressing a preference will undoubtedly add to the conflict, as opposed to help him.

[103] It is imperative that both the father and mother each get help he/she needs to be able to put their feelings of anger, resentment and bitterness toward the other aside. What can assist K. at this point is to get K. the therapeutic assistance he desperately needs and to love and support him as he gains the necessary skill set to learn how to self-regulate, manage his emotions, take control of his anxiety and stress, and process the difficult emotions of sadness, despair, depression and anxiety. Without this professional support, this confirms even having the health condition he does K. will not succeed into adulthood.

[104] K. lived with his parents pursuant to an alternating weekly basis from March 2020, to September 2020. When asked by this Court whether Ms. Gardner had any concerns with K. being able to manage an alternating weekly schedule during the academic year, Ms. Gardner answered that, in her opinion, K. would have no difficulty being able to manage that parenting schedule.

[105] Both parents agree that there have been material changes, which have affected K.’s best interests since the 2015 Stevenson Order, which justify changes in the parenting time he spends with both of them and the decision-making model. In particular, I find that there have been the following material changes:

a) K. needs have dramatically changed from what they were known to me under the 2015 Stevenson Order. In 2015, K. had had an early assessment of ADHD and exhibited some negative behavioural conduct in the classroom setting. Between the date of the Stevenson Order and today, K. has physically assaulted teachers, peers and his mother. K. has had issues relating to fecal and urine soiling; hair twirling; hair pulling and ear poking. K. has been moved into a BRC, to access daily therapeutic supports in an effort to have a supportive environment in school that can help him self-regulate, in the hope of him reintegrating into a mainstream classroom. K. has experienced social difficulties. K.’s ADHD diagnosis has been confirmed and he has also been diagnosed with ODD. Furthermore, K. has not had the benefit since the ODD diagnosis two years ago, to access any mental health supports that would assist him in gaining the skills necessary to communicate his emotions rather than in ways that do not involve lashing out with verbally and physically aggressive, defiant behaviours. K. has had inconsistent expectations of him in both homes and he is highly aware that his parents do not communicate and fight about him.

b) The co-parenting decision-making model which has required a parent to first share information about K. and then consult with one another, even giving the father the right to make decisions if consultation does not result in an agreement about a major issue has not worked with these parents. The father refuses to communicate with the mother in a productive manner. The mother has tried repeatedly and unsuccessfully to engage the father in productive conversations about K.’s, needs and treatment. The mother has become frustrated with the father’s dismissal of her parenting role and has engaged in denigrating communication from time to time. The father is focussed on the past, so much so that every contact he has with any professional intended to assist K. is taken up with the father discussing how the system has failed him and K. and blaming the mother for all of K.’s issues. The father has clearly demonstrated an inability or unwillingness to share information with the mother about K.’s medical needs. This demonstrates to the court that the father is unable or unwilling to support the development and maintenance of K.’s relationship with the mother, a key consideration pursuant to s.24 of the CLRA;

c) The father is unable currently to see the role he plays in sabotaging attempts by the mother to assist K. He requires individual therapy, to gain insight into how his need to dismiss and ultimately minimize or entirely eliminate the mother from K.’s life will be very damaging to K. K. loves both his parents and needs both parents in his life to reach his full potential as an adult. The mother, as well, needs to continue in her individual therapy, to address her interaction with the father and to address her own mental health needs. The mother herself has ADHD. The father has been diagnosed with depression to the extent that he has apparently been unable to work. The mother has also been diagnosed with depression. She has been in therapy since the separation.

[106] Over the years there have been multiple recommendations from doctors that K. receive therapy. In 2017, Dr. Singleton prescribed therapy for K. In 2018, Dr. Dhaliwal prescribed therapy and in 2019, Dr. Mollot prescribed therapy. It is now 2020, and K. has not received any therapeutic intervention.

[107] The current co-parenting regime does not meet K.’s needs. Even though the father had the right to ultimately make a major health decision, the terms of the Stevenson Order enables the mother, if she does not agree with the decision, to apply to the court to challenge it. Given the history of litigation in this family, a decision on an issue that at one point would not have been considered to be urgent has been so delayed that it has undoubtedly caused emotional harm to the child and delayed his personal and academic progress. The need for K. to be in the therapy that K. so obviously needs and, given his astute observations of his position in the conflict, from which he will undoubtedly benefit enormously, is now urgent. The decision-making regime in place at this time does not work in relation to K.s’ significant health issues.

[108] Further, the evidence satisfied me that, despite all the positive aspects of K.’s relationship with his father and the father’s love for K., the father’s animosity toward the mother had prevented him from accepting that K. needs therapeutic supports whatever the cause of his need for them may be. As I mentioned above, even if I accept that the father believed that therapy was needed as a result of the mother’s conduct, his overall lack of action shows an inability to place K.’s needs above his own emotional needs.

[109] The decision-making term of the 2015 Stevenson Order must be changed as it relates to health-related decisions that must be made in K.’s best interests. At this point in time, one parent must be able to respond in a timely way to K.’s health-related issues. The mother has demonstrated a far more consistent attempt to access therapeutic resources for K. She attempted to engage the father and obtain his consent to such treatment. In contrast, the father refuses to answer the mother, address her attempts to get K. help and continues to insist, for example, that he make the call. If the father had actually engaged services for K. to assist him with his mental health needs, that would have been different. Instead, he twists the mother’s attempts into her engaging too many professionals for K. or unsuitable professionals. However, the evidence demonstrates that the only mental health support K. has accessed is that which has been mandated by his school; Woodview and K.’s current BRC. All attempts made by the mother to access therapy for K. at George Hull; the Etobicoke Children’s Centre; through SNAP and ROCK have been dismissed by the father. The father has taken no similar steps to get K. therapeutic support, other than purporting to ask ROCK for assistance when the agency had explained to him that they cannot assist K., given the father’s inability to let go of the parental conflict.

[110] Given the high conflict evident in this family, I have decided that it is necessary (and not just desirable or a preference) in K.’s best interests to immediately order changes to the parenting schedule and in the parents’ decision-making authority regarding significant decisions that have to be made in relation to K.’s health. Both the mother and father owe it to K. to get on board with these changes and stop engaging with one another in a destructive manner. Your child has told you that he is sick of the fighting. He has told you he feels like a bouncing ball going back and forth between your homes. His conduct and behaviour cries out for emotional support from both of you directed at his needs, and not the “support” that you have provided to him to this point. K. needs professional help, to assist him in coping with his health challenges and day-to-day circumstances, which in large part are difficult circumstances to which you have both contributed. You have made him the focus of your unresolved feelings about one another, when you should have focused on K.’s needs alone. This harms K. This must stop now.

[111] If the father cannot stop blaming the mother for all of K.’s problems, K. will continue to disrespect his mother and lash out against her. K. is aware that his father has highly negative feelings about the mother. No doubt, K. is aware that his father has no respect for his mother or her parenting role. This knowledge either gives K. permission to or contributes to the way K. treats his mother. K. says he wants more stability in the parenting schedule. I find, in any event, that it is in his best interests to live with each parent on an alternating-weekly basis. Not only is it less change during the school week for him, but it will enable the mother to take steps to arrange the required therapy for K., but to ensure that he attends the appointment on alternating-weekly basis and during her time with K., if the recommended treatment schedule is bi-weekly or less than that. If the therapist recommends weekly appointments, I expect the father to ensure that he attends appointments. The Court requires that a review of the schedule and decision-making regime take place in six months, so that the Court can see how K. is faring. The court will also want to hear from the OCL if they agree to remain involved with K. If K.’s circumstances have improved or not sufficiently improved and the parents have not sufficiently assisted K., then further or other terms may well be imposed at that time in his best interests.

[112] On the review, I expect to receive evidence that shows efforts on both parties’ parts to change the focus to K.’s needs alone. It does not matter how they feel about one other. They both must take to heart that it is time to put their bitterness, anger and personal disappointments aside. These feelings have helped no one in this family, including themselves. They must work together, if they want K. to improve and succeed.

[113] Neither parent shall tell K. about the changes being made to the parenting schedule or decision-making authorities. The relaying of these changes in K.’s life shall be told to him by Ms. Tremain and Ms. Gardner of the OCL only. Once K. learns of the changes and the OCL has advised the parents that K. has been told about them, each parent must sit K. down, and present hope to him that the changes will be better for everyone in the family .

Conclusion

[114] Based on all of the above, this Court orders as follows:

a) The order of Stevenson, J., dated February 6, 2015, shall be changed as follows:

i) Paragraph 1) shall be deleted and replaced with the following:

(1) The significant decisions affecting K. shall be decided as follows:

(a) The mother shall have the final decision-making authority for all health-related decisions for K. The mother shall consult with the father about all significant health-related issues that have to be decided by sending the father an email and taking into consideration the father’s position and opinion on the issue. However, if the parties cannot agree on the health-related decision, the mother alone shall make the decision. Health-related decisions include, but are not limited to, all decisions regarding K.’s physical and emotional health, such as wellness appointments, illness-related appointments, dental appointments, orthodontic appointments, eye doctor appointments, vaccinations, flu shots, prescriptions for coughs, colds, nausea, constipation, diarrhea, eye infections, skin infections, prescriptions for ADHD, ODD, anxiety, depression or any mental health condition; treatment for any bodily infections, appointments with specialists; therapeutic supports for K., individual counselling, group counselling, in-person or virtual therapy, brief or long-term. Prior to consulting with the father, the mother shall first consult with the physician(s) and/or other professionals assisting K. in relation to the issue and obtain his/her/their input on the issues. The father shall sign any and all required consent forms required by a health-related professional dealing with K., the mother has the sole decision-making authority in connection with K.’s health-related decisions. The mother shall provide information to the father about any health-related appointments K. has, by email and shall provide information about the reason for these appointments at least 24 hours before they occur. The mother shall hold K.’s health card and provide a copy of it to the father. For clarity, pending the review of the terms by this Court approximately 6 months following the release of this decision, the father shall not attend health-related appointments unless the mother invites him to attend the appointment, but both parents shall be entitled to obtain a copy of the health-professional’s notes and records relating to the visit. The mother shall nonetheless provide the father with details of any diagnoses made if any, obtained from a professional whom K. has seen immediately after the appointment via email.

(b) The parties shall share decision-making authority for all significant education-related decisions for K., such as school placement, psycho-educational assessments, class placement, tutoring. If the parents cannot agree on a significant issue relating to K.’s education, then they shall follow the advice of the school-related professionals involved in the issue. If an education-related decision has to be made and the parties do not immediately agree on the decision to be made, then shall each present to the other in writing his/her proposed decision and his/her reasons for proposing it within 14 days. If agreement cannot be reached within 10 days of the parties exchanging their proposed plans, then either party shall be free to apply to the court to have the education-related decision issue determined. Both parents are entitled to obtain copies of all communications between the school and parents, including, correspondence, updates, school reports, school calendars, from the school directly.

(c) The parties shall share decision-making authority in relation to significant extra-curricular-related issues, such as K.’s enrollment in activities, such as sports, summer camps, or lessons that would overlap each parent’s time with K. If an extra-curricular-related issue has to be decided and the parties cannot agree on it, then they will each present to the other in writing his/her proposed decisions, intended decision, taking K.’s views and preferences into account. If an agreement cannot be reached within 15 days of the first party providing his/her proposed resolution in writing to the other, then if the issue deals with the continuation of an activity in place or the proposed “activity” is education-related and cannot reasonably await the review, and treatment plan, then either party shall be free to apply to the court.

(d) The father shall have the sole decision-making authority in relation to significant religious issues unless the issue involves a health-related, education-related, and/or s.7 expense-related issue. The father shall consult by email with the mother about any significant issue that arises in relation to religion and requires him to provide Consent or Direction to a third party to permit K. to participate, before he makes the decision he shall advise the mother in writing of any decision he makes and give his reasons for the decision he made via email.

(e) The resident parent shall have exclusive day-to-day decision-making authority related to K. when he is in his/her care. If there is a health-related emergency when K. is in the care of a parent, the resident parent shall notify the other parent in writing immediately by way of a text message, and if the other parent does not acknowledge receipt of the message within 10 minutes, then the parent shall call the other parent to provide full information to the other parent about the circumstances, If a health-related circumstances requires a parent’s consent immediately, and the father is the resident parent, and has notified the mother by test message and/or phone call, leaving a voicemail message for her, if she does not answer the phone and if the mother has not responded to the communication; and the health-care professionals confirm that treatment cannot wait and must be dealt with immediately, then the father shall in those circumstances only make the urgent decision and he shall immediately communicate the decision to the mother by email.

(2) Paragraphs 2(a)-(i) of the Stevenson Order, inclusive, shall be deleted and replaced with the following:

(a) K. shall share his residence with each parent on an alternating-weekly basis, such that during Week One, the mother shall be the resident parent, and during Week Two, the father shall be the resident parent. The residential care exchange time for K. shall be Friday at 9:00 a.m. K. shall be dropped off at school by the parent with whom he has resided all week. If K. does not have school on a Friday, then the exchange of K. shall take place on Fridays, at a neutral and public location, such as a Tim Hortons restaurant. The residential schedule shall commence on Friday, October 23, 2020, and K. will be with the parent he is otherwise scheduled to reside with for this upcoming weekend. For clarity, if K. is scheduled to be with his father for the October 24-25th weekend, then the alternating-weekly schedule shall commence October 23, 2020, as Week Two, and likewise, if K. is scheduled with his mother for the October 24-25th weekend, then the alternating-weekly schedule will commence October 23, 2020, as Week One. At any exchanges that have to take place in person, the parents shall exchange pleasantries only, such as “nice to see you”, “thank you for sending K.’s bag”. It is imperative that K. see both parents interacting with one another in a civil manner. Any information that the resident parent reasonably needs to provide to the other parent about K., to ensure that the other parent is aware of any health issue that K. had in the prior week or school work, or projects that are due in the upcoming week, shall be provided via email before or within 1 hour after the exchange takes place.

(3) Paragraphs 2(j), (k) and (l) of the Stevenson Order shall remain in place.

(4) Paragraphs 2(m) and (n) of the Stevenson Order shall be deleted and replaced with the following:

(a) When school finishes for the summer months, K. shall spend alternating weeks with each parent, following the regular-alternating weekly schedule referred to above.

(b) Either parent is free to travel with K. during his or her interrupted weeks with K. in the summer, provided the travelling parent gives the other parent at least two weeks’ notice of the intended trip and provides an itinerary, including the location of the trip, method of transportation to and from the destination and a telephone number where K. and the travelling parent can be reached in case of emergency. Neither parent shall unreasonably withhold his/her consent to such trip and shall execute the necessary travel consent form provided to him/her by the travelling parent.

(5) Paragraph 3 of the Stevenson Order shall be deleted and replaced with the following:

(a) K. shall be permitted to have telephone or video contact with the non-resident parent at least once daily; K. can initiate contact with the non-resident parent as often as he wishes. For clarity, if K. has not initiated contact with the non-resident parent by 7:30 p.m., , then the non-residet parent can reach out to K., taking into account K.’s schedule.

(6) Paragraph 4 of the Stevenson Order shall be deleted and replaced with the following:

(a) The mother and father shall communicate regularly about K.’s needs and care as follows:

(i) The parents shall communicate only via email. There shall be no communication between the parents unless it is writing.

(ii) Each parent shall send an update to the other on the day of the exchange of K. (Friday), providing any pertinent information about K.’s health, education, routines, homework, medication, behaviour or school activities, as needed;

(iii) Emails between the parents should be no longer than one paragraph unless absolutely necessary. All emails shall be child-focussed. Neither parent shall make accusations or derogatory statements about the other in the email. Neither parent shall comment on the other’s parenting style, parenting rules or parenting in any fashion.

(iv) If one parent has imposed a consequence on K. due to misbehaviour in his/her home, that parent shall advise the other parent by email before the exchange on Friday, to communicate the misbehaviour by K. and to provide details of the consequence given so that the non-residential parent does not undermine the parent who gave the consequence to K.

(v) All routines for K. shall be shared in emails between the parents, including information about issues such as K.’s nutrition, K.’s toileting routines or any other difficulties; K.’s sugar intake, if problematic; and K.’s bed times, so that K. learns to expect the same routines in both households; the same behavioural expectations in both households and, at a minimum, to ensure that the non-resident parent is aware of the issue before K. returns to his/her care and ensures that he/she does not undermine the decision the other parent made by communicating disapproval of the parent’s decision or or questioning.

(vi) The parents shall follow the same rules about screen-time allowed for K. in his/her house. The parents shall abide by the advice of the therapist(s) working with K. as to how much screen time is appropriate for K. and ensure that his/her household does not deviate from the therapist’s recommendations;

(vii) The parents shall respond to each other’s emails within 36 hours.

(viii) If either parent believes that the other parent has violated the communication rules set out in this order, then he or she shall advise the other parent of the alleged breach by indicating as follows: “Your email of today’s date violated the communication protocols. Please rephrase your email and resend it and I will then respond to the issues raised in the emails. Thank you.”

(7) Paragraphs 5, 6, 7, 8 of the Stevenson Order shall remain in force.

(8) Paragraph 9 of the Stevenson Order shall be deleted and replaced with the following:

(a) Neither parent shall speak negatively to K. about the other parent or within earshot of him. Neither parent shall inform K. of changes made by this Order or the content of these Reasons for Decision. The relaying of these changes in K.’s life shall be told to him by Ms. Tremain and Ms. Gardner of the OCL only. Once K. learns of the changes and the OCL has advised the parents that K. has been told about them, each parent shall sit K. down, and present hope to him that the changes will be better for everyone in the family and read this to him:

“As you know Mommy/Daddy and I have been fighting back and forth for a long time about which schedule is best for you and which parent should make decisions for you. We are very sorry that we didn’t think enough about how this makes you feel. We want you to know that we are going to try very hard not to fight anymore. Although we don’t live together as a family anymore and Mommy/Daddy and I do things differently, we both love you very much and we both want what is best for you. You are now going to be living equally with both of us and Mommy/Daddy are going to do what the judge at court has told us that we need to do.”

(i) Neither party shall thereafter refer to the 6-month review or this court case as all

(9) Paragraph 10 of the Stevenson Order shall be deleted and replaced with the following:

(a) If the resident parent cannot look after K. overnight when he is scheduled to reside with him/her, then he or she shall offer the other parent a first right of refusal, with at least 24 hours’ notice in writing by email. If the other parent cannot look after K., then the residential parent shall arrange and pay for child care/babysitting for K.

(10) Paragraph 12 of the Stevenson Order shall be deleted.

(11) Paragraph 13 of the Stevenson order shall be deleted as it relates to K.’s health card because the mother shall be the holder of K.’s health card. The father shall hold K.’s passport and shall provide to the mother when it is required for travel. Neither parent shall travel outside of Ontario with K. without the written consent of the other parent, such consent not to be unreasonably withheld, or court order.

(12) Paragraph 14 of the Stevenson order shall be deleted and replaced with the following:

(a) The parenting provisions continued in this order shall be reviewed in approximately six months’ time, to ensure that K.’s needs are being met. The parties shall return to Court before me for the purposes of this review. Each parent shall prepare an update for the Court in terms of the therapeutic arrangements that were made after the release of these Reasons for Decision, how K. has adjusted to the parenting-schedule changes and details as to how the decision-making regime has been working. The update shall be provided by way of a sworn affidavit, not more than 10 pages in length, not including any attached Exhibits.

(b) The OCL is asked to continue to be involved with the family. If the OCL accepts the referral, then the OCL is requested to represent K., with a “clinical assist” for purposes of the review and/or to report on K’s views and preferences, if he gives his consent at that point to the OCL to do so.

(13) The mother shall immediately make arrangements to engage a therapist(s), to provide therapeutic support for K., in order to to address his difficulties with self-regulation, overwhelming emotions, anxiety and/or depression. The therapist can be either in the mother’s catchment region or in the Halton region, where the father resides. Therapy must commence immediately. If possible, the therapist shall be someone who has expertise and knowledge about children diagnosed with ADHD and/or ODD. The therapist may speak with both parents if he/she wishes to about K., but the mother shall be the contact person and make all decisions regarding K.’s mental health in consultation with the therapist(s). Both parents shall sign any Authorization, Consent or Direction required by the therapist(s) to be able to consult with or obtain information from K.’s paediatrician, the OCL and/or K.’s teachers and/or the child and youth worker who works in K.’s classroom. The mother shall authorize and direct the therapist(s) to meet with the father, in the therapist’s sole discretion to communicate the appropriate strategies and techniques K. is being taught to assist him with self-regulation and/or anxiety management. Both parents shall follow the advice of the therapist working with K., in terms of setting out protocols, strategies and techniques to assist K. in his self-regulation building skills, emotional management and anxiety treatment, when K. is living in his/her house.

(14) In terms of K.’s screen time and video-game use, both parents shall consult with K.’s therapist(s) to determine how much time is appropriate for and in K.’s best interests. Both parties shall follow the protocol that is recommended by the therapist(s) in terms of video-game and internet access. There shall be no deviation by either parent with respect to K.’s screen-time and/or video-game usage. Any access K. has to a data plan in one household shall not be made accessible by him when K. is with the other parent. In other words, by way of an example. if the mother determines that K. has no screen time or internet access past 7:30 p.m. in her house, then K. ought not to be able to access the Internet in any other fashion through another account that he has set up in the father’s home.

(15) The child support paragraphs of the Stevenson Order at paragraphs 15 and 16 shall be reviewed by Kraft, J. in December 2020. This review is not a step in this case that can be changed on consent, although in 2020, the parties may contact Kraft, J. via the Trial-Coordinator that they are of the mutual view that a review is not needed or that a different process if required. The communication will be considered by Kraft, J. at that time and decide on the timing of the review of any change she would make to the process in light of the parents’ joint communication. The father shall schedule the review on a Tuesday or Thursday, to be scheduled as a one-day long-motion. The father shall serve and file any materials in support of his Motion to Change the child support provision by October 30, 2020. The mother shall serve and file any responding materials by November 9, 2020. Reply materials if any, shall be served and filed by November 18th, 2020. The return date of the motion shall be scheduled on a day that works for both parties and counsel, if any.

(16) If a party seeks costs of the trial, if the parties cannot resolve the costs issue on consent, then a party seeking costs shall serve and file written submissions that are no longer three pages (plus a bill of costs and copies of any dockets or disbursements) and any relevant offers to settle by November 13, 2020, and the other party shall serve and file any written responding submissions (in similar form as the submission seeking costs) and a copy of any relevant Offer to Settle, filed within five days of receipt of a party’s submission for costs. Reply submissions, if any, shall be no more than 2 pages and served and filed within 3 days of receipt of responding submissions.

M. Kraft, J.

Date Released: October 20, 2020

[^1]: Paragraph [7] of Stevenson, J.’s Reasons for Decision, dated February 6, 2015. [^2]: OCL involvement was requested by the Order of Jones, J., dated December 21, 2012, 3 years before the first trial of this matter. [^3]: Exhibit #17, Individual Education Plan for K. for the 2016/2017 and 2017/2018 academic years. [^4]: Ms. Ryan’s affidavit dated August 4, 2016, was tendered as Exhibit #25 in this Trial and was before Mesbur, J. at the Motion to Change. [^5]: Exhibit #7, Halton Health Care Services Report, dated January 2, 2018, prepared by Dr. Singleton [^6]: Exhibit #8, copy of prescription from Dr. Singleton, dated January 18, 2018. [^7]: Exhibit #49, CAS CPIN Disclosure, page 31 of 36. [^8]: Exhibit “49: Contact records from the CAS, CPIN Disclosure, page 26 of 36. [^9]: Exhibit #20, Records from Oakville-Trafalgar Memorial Hospital. [^10]: Exhibit #21, Oakville-Trafalgar Hospital Records, dated December 16 and 17, 2019. [^11]: Exhibit “20”, Oakville Trafalgar Memorial hospital records. [^12]: Exhibit #25, Affidavit of Tricia Ryan, sworn August 4, 2016, at paragraph 20. [^13]: Exhibit #2, email from Our Family Wizard to the mother, dated May 1, 2015, at 10:35 a.m. [^14]: Exhibit #25, Exhibit “A” to Affidavit of Tricia Ryan sworn August 4, 2016, Interagency Referral Letter from CCAS, dated Sept. 11/2015. [^15]: Exhibit #28, Email from Mr. Souto to Ms. Fias, dated Sept. 9/2015, and attached copy of prescription from Dr. Fiorini for K. dated Sept. 1/2015. [^16]: Exhibit #25, Affidavit of Tricia Ryan, sworn August 4, 2016, paragraph 37(i). [^17]: Ibid, at paragraph 20, and Exhibit #36, CPIN Contact Log from CAS by Jane Seward, dated February 9, 2016.. [^18]: Exhibit #6, Walk-In Session Summary from Etobicoke Centre’s Centre, dated September 15, 2016. [^19]: Exhibit “6, Walk-In Session Summary from Etobicoke Children’s Centre, dated October 12, 2016. [^20]: Exhibit #16, Walk-In-Consultation-Services report from ROCK, dated January 23, 2018. [^21]: Exhibit #1, Document Brief, Tab 14, an email from Francesca Albanese to the mother dated January 23, 2018. [^22]: Exhibit #13, Consultation Notes from Eva Casino, dated March 21, 2018, from the George Hull Centre. [^23]: Exhibit #17, Woodview Therapy Report, dated July 18, 2018. [^24]: Ibid. [^25]: Exhibit #25, Affidavit of Tricia Ryan, sworn August 4, 2016, at para. 12. [^26]: Exhibit #32, Letter from Dr. Samir Antowan, dated July 16, 2018 re: Nuno Pereira Souto. [^27]: Exhibit #6, Walk-In Session Summary report dated October 22, 2018 from ECC. [^28]: Exhibit #19, letter from ROCK to the mother dated November 29, 2018. [^29]: Exhibit #42, email from Marietta Nuyens, Child and Family Therapist at the Etobicoke Children’s Centre, to the mother, dated November 30, 2010, at 10:55 a.m. [^30]: Exhibit #18, emails from the mother to OCL and CAS dated October 29, 2018. [^31]: Exhibit #49, CPIN Disclosure from Halton CAS, Intake Case Information, pp. 17-18 of 36. [^32]: Exhibit #42, Email from ECC, M. Nuyens, dated November 30, 2018, to the mother confirming mother’s registration. [^33]: Exhibit #44 from John Dinner to the mother, dated October 2, 2019, at 3:02 p.m. [^34]: Exhibit #39, Prescription from Oakville Trafalgar Memorial Hospital for K., dated December 14, 2019. [^35]: Exhibit #46, email from John Dinner to the mother, father and Julia Tremain, counsel for the OCL, dated October 6, 2020.