I.S. v. J.W., 2021 ONSC 1194

COURT FILE NO.: 657/17

DATE: 2021-02-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

I.S. Applicant

– and –

J.W. Respondent

COUNSEL: D. Vasilescu, Counsel, for the Applicant Self-Represented Respondent

HEARD: December 15, 16, 17, 18, 21, 22, 23, 24, 2020 and January 6, 7, 8, 15, 2021

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

OVERVIEW

[1] The following judgment is this court’s decision on the parenting issues only, as raised in the twelve-day trial of this action.

[2] This file has been beset by procedural complexities from the outset. Both parties have been primarily self-represented through the litigation process and the nature of the issues seems to have evolved since the commencement of pleadings. It is obvious from the court record that they have pursued their issues in an unfocused, disorganized, and inefficient manner, with little regard for proper court processes and the need to allocate court resources justly. This troublesome trajectory was further complicated, through no fault of either party, by the onset of the current health pandemic and suspension of regular court operations on the eve of trial of this complicated high-conflict matter.

[3] The parties have requested the judicial determination of a significant number of issues: each issue is substantively complex and very few facts are agreed upon. This high-conflict proceeding has been before the courts for over 2 ½ years and involves the best interests of an (almost) 6-year old child. As such, in an effort to bring stability and certainty to the life of this young child, I am releasing this partial final decision on only the parenting issues raised. My judgment on the financial issues heard at trial will be released in due course.

THE ISSUES

[4] It is important to note at the outset that it is fundamental to the litigation process that lawsuits be decided within the boundary of pleadings: Rodaro v. Royal Bank of Canada, 2002 41834 (ONCA) at para. 60. By allowing a party to make claims at trial which are outside of the scope of the pleadings the parties, the court risks confusion to the responding party in understanding the case he or she has to meet and depriving that party of fair opportunity to meet that case. Significant time was spent on the first day of trial attempting to organize the issues to be determined by the court.

[5] In the Respondent’s Motion to Change, and in his Amended Motion to Change, he “checked” box #3 of the Motion to Change document and specified that he seeks an Order that “I.S. and J.W. have joint custody of C.S-W., born March 1, 2015”. There is no court order pertaining to the custody of C.S-W. to change. The issue of custody is governed by the parties’ Separation Agreement dated December 30, 2016. Any request to adjust decision-making authority on behalf of the child ought to have been commenced by Application, not a Motion to Change. The Respondent did not initiate the proper process.

[6] This court is cognizant that family law litigation is unique – it is one of the few areas of law that is forward-looking rather than based upon a need to redress a past event or wrong. The nature of family court litigation often evolves, sometimes daily, in accordance with the needs and circumstances of the family as they progress through the legal system. In some circumstances, it might be appropriate to allow the parties to amend pleadings at the outset of trial to ensure that all available relief sought by the moving party falls within the jurisdiction of the court, however any such request must also be delicately balanced with the need to ensure fair process to the responding party and with the best interests of any affected children. As such, on the first day of trial, I advised both parties that the court would not entertain any request for a change of the Applicant mother’s sole custody designation. This was not the appropriate case to do so for the following reasons:

a. The legal test on a do novo Application for custody of a child, is distinct from the legal test on a variation motion which requires a preliminary finding of a material change in circumstance;

b. An adjournment of the trial to accommodate the initiation of this new process and to allow the Applicant to refine her evidence and argument, would delay and further inflame an already high-conflict situation, and would not be in the best interests of the subject child. The court has repeatedly reiterated the priority need to bring this particular matter to final resolution. No further delay could be justified; and

c. Within the completed Trial Scheduling Endorsement Forms, the parties specifically identified the parenting issues to be determined at trial as:

1. Applicant: Access to the child by the Respondent father; and

2. Respondent: Access, restraining order, restriction on child’s residence (mobility), immunization, and prohibition against homeopathic treatments.

[7] As such, the parenting issues for determination at trial were confined to access-related parenting issues and necessary changes to the restraining order, but not decision-making authority. At the outset of the trial the parties agreed that the discrete issues of immunization of the child and a requested prohibition against homeopathic treatment would also be considered by the court.

[8] The parenting issues for determination are therefore as follows:

1. Has there been a material change in circumstances that affects or is likely to affect the bests interests of C.S-W. since the Final Order(s) of Nightingale J. dated June 16, 2017?

2. If so, what terms of access between the Respondent father and C.S-W. and other incidents of parenting (but not decision-making authority) are necessary in the best interests of the child?

3. Is it in the best interests of C.S-W. to order that she be immunized?

4. Is it in the best interests of C.S-W. to prevent the Applicant mother from administering any homeopathic medical treatment in her care?

BACKGROUND

[9] The Applicant mother, I.S., is currently 53 years of age. The Respondent father, J.W., is currently 63 years of age.

[10] Together, the parties have one child, namely C.S-W., whose “official” date of birth is March 1, 2015.[^1] C.S-W. is just shy of six years of age and is in Senior Kindergarten at a local public school.

[11] The parties never married. They commenced cohabitation on January 15, 2013 and separated on December 1, 2016. They again resided together in the family residence from approximately July to December 2017.[^2]

LITIGATION HISTORY

[12] On December 30, 2016 the parties entered into a comprehensive Separation Agreement which resolved all custody, access, and financial issues arising from their relationship.[^3]

[13] The relevant terms of the Separation Agreement which pertain to the custody of and access to C.S-W. are as follows:

12 (1) I.S. will have sole custody of C.S-W. as of the 1^st of January 2017.

12 (2) C.S-W. will reside primarily with I.S. as of the 1^st of January 2017.

12 (3) The access schedule to see C.S-W. will be either Saturdays or Sundays from 10:00 a.m. until 8:00 p.m.

12 (4) J.W. will be allowed to have contact via telephone, email, skype, messenger or other agreeable method at reasonable times as agreed between the parties. It’s being acknowledged that J.W. will be travelling extensively overseas as of January 2017.

12 (5) I.S. shall be allowed to remove the child from the province and Canada without J.W.’s written consent.

12 (6) I.S. may apply for and obtain a passport for the child without the consent or signature of J.W.

[14] On May 17, 2017 the Applicant mother commenced an Application against J.W., in which she sought a Restraining Order against the Respondent father. On June 16, 2017 two Final court orders were made on the consent of both parties which resolved that court Application on a Final basis:

a. The Final Order of Justice R.J. Nightingale, which provided at paragraph 2 that:

“The Respondent shall have access with the child C.S-W. when he is in the Province of Ontario up to three times per week, with the times, dates, duration and location to be in the discretion of the Applicant. The Respondent shall provide an address/location where he would be exercising access to the child”.

b. The separate Restraining Order of Justice R.J. Nightingale which provided that the Respondent, J.W., shall not:

i. Contact or communicate directly or indirectly with the Applicant except:

1. Through text, email or mutually agreed third party to arrange access to the child;

2. To permit access to the child, up to 3 times per week as arranged through text, email or mutually agreed third party in accordance with the above order; and

ii. Come within 100 yards of [the family residence] at any time for any purpose.

[15] The Restraining Order came into effect immediately and was ordered to remain in effect until changed or terminated by further court order.

[16] These are the only Final Orders which have been made in family court in relation to these parties. They are the governing court orders under review in this Motion to Change. The mother’s designation as C.S-W.’s custodial parent, as agreed pursuant to the terms of the parties’ December 2016 Separation Agreement, has never been incorporated into an Order of the court or subsequently varied.

[17] On June 14, 2018 the Respondent commenced a Motion to Change the Order of Nightingale J. in which he sought specified parenting terms pertaining to his access to the child.

[18] On February 19, 2019 the Respondent’s Motion to Change was amended to include requests for overnight access to C.S-W., and other specified terms of contact, access exchanges, holidays, and travel.[^4]

[19] The Applicant mother opposed the father’s requested relief, and filed the requisite Response to Motion to Change. She correctly identified that there is no court order for custody and that she is C.S-W.’s sole custodial parent as per the terms of the parties’ Separation Agreement.[^5]

THE EVIDENCE

Evidence of the Respondent Father

Father’s Relationship with C.S-W.: Birth to July 2018

[20] The father advised the court that in C.S-W.’s early years, while the parties resided together, he enjoyed regular, loving, and unrestricted time with C.S-W.

[21] C.S-W. was approximately 1 ½ years old on the date of the parties’ first separation. Shortly thereafter, the Respondent father went on a five-month international vacation from January to May 2016. There can be no doubt that the Applicant mother remained C.S-W.’s primary caregiver during the Respondent’s period of absence.

[22] Shortly after the father’s return to Canada in May 2017 a dispute took place between the Applicant and Respondent in the family residence. The Respondent left the home and the Applicant mother commenced steps to initiate and obtain (on consent) the restraining order against the father that was issued on June 16, 2017. The father in his evidence advised that he was “cheap” and thought that his entry into the restraining order would make the Applicant happy. He did not realize at the time that the restraining order would haunt him for years to come.

[23] An allegation of breach of this restraining order was made by the Applicant in June 2017. The Respondent advised that on June 24, 2017 the Applicant indicated that they should go on a Baltic Cruise together. He filed e-mail communications with the court which appear to support this narrative. The Respondent was then invited into the family home and he was making telephone calls to travel agents when he alleges the Applicant barricaded him in a room. The father was charged with breaching the terms of the restraining order. The Applicant later recanted her allegations in a written statement wherein she noted that “I asked my former partner J.W. to enter our house”. The criminal charge was withdrawn, however the terms of the restraining order continued.

[24] The father does not complain about the quantity or quality of access he enjoyed with C.S-W. during the time period that followed. In particular:

a. During the period of resumption of the parties’ cohabitation from approximately July to December 2017, there does not appear to have been any restriction upon the father’s time with C.S-W.

b. In the fall of 2017 C.S-W., at approximately 2 ½ years of age, was left in the father’s sole care for six weeks while the mother travelled to Bucharest, Romania, and spent time at her property in Quebec. The father testified that he toilet-trained C.S-W. in the Applicant’s absence. This was not disputed by the Applicant mother.

[25] The Respondent then travelled to Africa from approximately January to April 2018.

[26] The father explained that upon his return from international travel, from April through June 2018, he continued to enjoy regular, comfortable, unsupervised time with C.S-W., a minimum of three times per week. He testified to the many activities that he and C.S-W. enjoyed together during this time period, including the beach, hiking, the zoo, the aviary, Christie Conservation area, the Farmers’ Market, playgrounds, nature centers, music festivals, etc. He entered photographs into evidence which appear to confirm C.S-W.’s enjoyment of these many outings. The father denies that during this time period he was attending at the family residence on a daily basis.

[27] The father testified that on the weekend of May 17 to 19, 2018 a series of significant events occurred. The Applicant, Respondent and C.S-W. spent the weekend together in the family residence. It was the weekend of the Respondent’s 61^st birthday and over the course of the weekend, the Respondent opened the backyard pool and assembled a playhouse for C.S-W., the family went shopping together, ate a birthday cake, went to a restaurant, and the Applicant gave birthday gifts to the Respondent. He provided photographic evidence to the court confirming these events. On May 19, 2018, the Respondent went into the basement to look for some of his items of clothing. He retrieved a shirt and upon returning upstairs was confronted by the Applicant who was furious with his actions. She grabbed the shirt and demanded that he leave the home. He went upstairs and packed a bag. He put the items on the floor and the Applicant stood on them. He then attempted to retrieve sandals from the closet. The Respondent advises that the Applicant lunged at him to prevent him from retrieving the sandals and lost her balance in the effort. She fell to the floor. The father accuses himself of being gullible and allowing himself to fall for the Applicant’s “trick”.

[28] Following this event, the Applicant told the Respondent that “in two years [C.S-W.] won’t remember who you are”. The father commenced this Motion to Change. He produced text exchanges surrounding this time period wherein the Applicant wrote to the Respondent father:

a. “The child is saying daddy is a bad person, and go away monster”; and

b. “you don’t have no idea what’s in store for you”… “I will retaliate accordingly. You started the war… you have no idea what’s in store for you… jail instead of vacation… no access to child… increased payments, etc…”

[29] The father was arrested for the May 2018 altercation on July 28, 2018, as he walked into the family courthouse for the first appearance date on his Motion to Change.

Father’s Relationship with C.S-W.: July 2018 to Present

[30] Following the father’s arrest, he had no access to C.S-W. for a period of nine months.

[31] In May and June of 2019, the father had five, two-hour supervised visits with C.S-W. at the Hamilton YWCA Family Access Centre.[^6]

[32] The parties arranged for the father and C.S-W. to have access in the community (e.g. at the Ancaster pool) in July 2019 and upon the Applicant’s return from vacation with C.S-W. in August.[^7] These visits were supervised by the Applicant. Unsurprisingly, conflict arose between the parties at these visits and a further period of disruption ensued.

[33] It appears that since the late fall of 2019 the father has generally had access with C.S-W. of approximately two hours per week on a supervised basis: supervised by a supervisor of the Applicant’s choice (e.g. her adult son or the babysitter).[^8] Since September 2020 the visits have been supervised by S.S. (the babysitter).

[34] The father testified to the strict restrictions that the Applicant imposes upon the father’s time with C.S-W., including but not limited to:

a. The location;

b. The Supervisor;

c. Additional restrictions including:

1. Limiting photographs of the child (despite that the Respondent is a lifelong photography enthusiast);

2. Preventing the father from giving the child any food;

3. Preventing the father from giving the child any gifts;

4. Prohibiting any change of location or exploration of surroundings (e.g. a walk on the trails when at the park).

[35] In cross-examination the father acknowledged that in March/April 2020 he continued to ask for more time with C.S-W., even offering the mother increasing sums of money to see her. For example, he offered $100, then $150, and then $200, then unlimited sums of money per day to increase his parenting time. The mother did not ever accept money in exchange for more time with C.S-W. The father acknowledged that this attempt to purchase time with C.S-W. occurred during a time period wherein he was withholding payment of child and spousal support to the Applicant – he rectified this situation shortly thereafter.

[36] In cross-examination the father denied ever trying to ‘run away’ from S.S. He acknowledged that on occasion they are out of sight for short periods (for example, playing hide and seek in the library), but he has never tried to escape the supervision of S.S. Considerable time was spent discussing a recent incident of November 21, 2020. It was put to the Respondent that he “ran away in the forest behind the library”. The father strenuously disagreed and explained that after playing on the playground at length, he and C.S-W. wanted to go for a walk on a public walking trail. He denied that this was an attempt to run away from the supervisor. At most, the father observes, he and C.S-W. were 5-10 meters ahead of the supervisor, who it appears did not want to go for a walk or did not feel permitted to leave the confines of the playground. The father provided photographs of the walking trail. He asserts that C.S-W. is an active child and sometimes gets bored with remaining in the playground, and that a walk on the trails is reasonable in the circumstances. The Respondent asserts that the Applicant has attempted to scare the child into believing that he was taking her to live in the forest and that the child has told the father that the mother calls him “the wolf” or the “big bad wolf”.

[37] The father hopes to take C.S-W. to Nova Scotia for his adult daughter’s wedding on August 28, 2021. C.S-W. has been invited to be the flower girl. He hopes to take C.S-W. for a visit each summer in future years as well.

[38] To date there has never been a judicial determination of the parenting issues. All temporary court orders have been made on the consent of the parties or as per mediated agreements without judicial determination of C.S-W.’s best interests.

Concerns with Mother’s Care

[39] The father, in his evidence, drew the court’s attention to numerous concerns pertaining to the mother’s care of C.S-W. In particular:

a. The father advises the court that the CAS verified protection concerns pertaining to lack of supervision in May 2016 wherein the Applicant mother left C.S-W. (approx. one-year old at the time) alone in a running vehicle for a period in excess of 20 minutes requiring police intervention. The father presented a CAS casenote which describes that the Applicant showed no remorse nor took any responsibility for this event.

b. The father asserts numerous examples of historic concern regarding the Applicant’s refusal to properly secure C.S-W. in her infant car seat. He testified that on one occasion, on December 28, 2016, he attempted to tighten the straps for C.S-W. and the Applicant “flew into a fury”, reversing out of the driveway at speed and forcing the father to jump out of the way. He cited numerous other disputes between the parties over this issue and entered photographs into evidence which he asserts depict this common theme.

c. The father testified to numerous examples of concern relating to the Applicant’s alcohol consumption. Specifically:

1. On May 22, 2017 the Respondent had to assume responsibility for driving the parties and the child when, after consuming two martinis, the Applicant pulled over on the side of the highway and thereafter passed out in the car. The father testified to various other incidents wherein he asserts the Applicant was driving while under the influence of alcohol. In addition, the father submitted multiple photographs into evidence depicting the Applicant consuming alcohol and/or, he asserts, in various states of inebriation. In addition to concerns with respect to the Applicant driving in this condition, the father explained to the court that the mother’s alcohol intake often contributed to angry outbursts and verbal confrontation in public and in the presence of the child.

2. The father called Hamilton Police Service (“HPS”) Officer E. Gies as a witness at trial. Officer Gies testified that on June 15, 2019 at 3:40 p.m. she was called to the YWCA Family Access Centre in Hamilton regarding a concern by staff at the center about possible impairment by the mother at an access exchange. Office Gies confirmed observing the Applicant mother to have bloodshot “hooded” eyes, and vertical jerking of eye movements. The police concluded that they had no grounds to request a breath sample and arranged to have the Applicant’s son attend at the location to retrieve the Applicant and the child.

3. The father called HPS Officer P. Tremis as a witness. Officer Tremis testified that on July 10, 2019 he was called to a local animal hospital regarding a minor vehicle collision on private property and concern by staff at the clinic about possible impairment by the mother. Office Tremis noted a “sweet” odour on the breath of the Applicant and demanded a roadside screening (breath) sample. The Applicant’s breath sample registered an “alert” (a reading in the warning range of .05-0.99). The Applicant’s license was seized, and she was given a 3-day driving suspension. C.S-W. was noted to be present with the Applicant, and both were sent home in a taxicab. The father testified that he was not made aware of this incident until notified by the CAS of the investigation in July 2019. In reply, he further explained that he had never heard of this animal hospital before and was not familiar with any of its staff members.

Supervised Access at YWCA

[40] The Father called Ms. Natassia Dejanovic, the program supervisor of the Hamilton YWCA Family Access Centre. Ms. Dejanovic advised the court that she has been working at the Family Access Centre for the past 11 years. She testified that the Respondent father had five supervised access visits at the Family Access Centre on the following dates:

1. May 4, 2019

2. May 25, 2019

3. June 1, 2019

4. June 7, 2019

5. June 15, 2019

[41] Ms. Dejanovic directly supervised three of the above five visits, and in particular was present for a visit between the Respondent father and C.S-W. on June 15, 2019. On that date, the Respondent father’s visit proceeded from 1:00 p.m. to 3:00 p.m. The father left the premises as scheduled and C.S-W. was left to wait to be picked up by the Applicant mother as scheduled. The mother did not arrive at the scheduled time and was called by staff. The Applicant mother arrived late at 3:30 p.m. and stated, unprompted, “you can tell the father that all visits are cancelled”.

[42] Ms. Dejanovic testified that she smelled alcohol on the mother’s breath and that her eyes were red. She noted that the Applicant was behaving differently than on past pick-ups, and this was the first time she had been late to retrieve C.S-W. Ms. Dejanovic asked the Applicant mother if she had been drinking and the mother replied “yes I have”. Ms. Dejanovic was standing only one foot away from the mother during this exchange. The mother was advised that she could not leave the Centre with C.S-W. and the police were called. The police met with the mother, and left at 4:22 p.m., without laying criminal charges. The Applicant’s son attended at the access centre to pick up the Applicant and C.S-W. Ms. Dejanovic advised the court that prior to this event she had never been warned of any potential issues regarding the Applicant mother and alcohol consumption by the Respondent father or others.

[43] Ms. Dejanovic did not testify to anything noteworthy or unusual with respect to the father’s other supervised access visits. The supervised access note adopted by Ms. Dejanovic in her testimony regarding the above-noted visit reflect that C.S-W. was smiling and said “I want to see dad”, jumped into his arms upon arrival, and held hands and played various games with him during the visit.

[44] Following June 15, 2020, the Applicant mother cancelled two scheduled visits (June 23, 2019 and June 26, 2019) as a result of the child having a stomach virus, and no further visits were scheduled at the access centre again after this date.

Involvement of the Hamilton Children’s Aid Society (“the Society”)

[45] The Respondent father called Ms. S. Bernacki, the parties’ current caseworker, to explain the Society’s involvement with this family.

[46] Ms. Bernacki advised the court that since 2016 there have been ten ‘involvements’ of the Society. Five of the involvements have required investigation. The remaining five involvements did not meet the threshold of requiring intervention. Specifically:

1. In March 2016, the Society verified protection concerns surrounding supervision: the mother left the child unattended in a car while it was running;

2. In July 2016, there was a “community link” but no investigation;

3. In May 2017, there was an investigation regarding conflict between the parents. Protection concerns were not verified, and the Respondent father had left the home;

4. In July 2018, there was an investigation regarding caregiver capacity (i.e. allegations of the mother driving under the influence) which were not verified;

5. In May 2019, there was an investigation regarding concerns of violence between the parties in the presence of the child. Protection concerns regarding conflict between the parents and risk of emotional harm to the child were verified. Concerns pertaining to the mother’s alcohol consumption were not verified;

6. In November 2019, there was records disclosure;

7. In February 2020, there was another “community link” without investigation;

8. In March 2020, an investigation verified concerns relating to conflict between the mother and father/father’s partner in the presence of the child. Allegations of past abuse and threats of harm by father towards the child were not verified;

9. In May 2020, there was another “community link” without investigation;

10. In August 2020, an investigation was initiated which is ongoing by Ms. Bernacki. This investigation involves the alleged physical altercation(s) between the Applicant, Respondent and Respondent’s partner. She is also reviewing a recent complaint that the father’s camera bumped the child’s head during an access visit.

[47] Ms. Bernacki further confirmed that:

a. She has recently viewed the residence of the Respondent father. She observed no safety hazards in the home.

b. She also has no concerns about safety hazards in the mother’s home. She is satisfied that the Applicant mother is meeting C.S-W.’s basic needs.

[48] Ms. Bernacki advised the court that the Hamilton CAS takes no position on access, including overnight access and/or the need for supervision. Ms. Bernacki stressed that the primary concern of the CAS at this time is the level of conflict between the parents. The CAS continues to recommend that there be no contact between the Applicant and the Respondent in the presence of the child.

Involvement with the Hamilton Police Service (“HPS”)

[49] The Respondent father also called Constable S. Jindo to testify for the court as to 12 other recent incidents reported to the HPS in August 2020 by the Applicant mother as against the Respondent. Specifically:

1. An allegation of death threats uttered by the Respondent at mediation;

2. An allegation of threats and extortion of funds;

3. An allegation that the Respondent forced the child to play in very cold snow during an access visit, and that the child was not happy;

4. An allegation that the Respondent was following or surveilling the Applicant in her neighbourhood and at a Home Depot;

5. An allegation that the Respondent questioned the Applicant’s son about moving vans at her home;

6. An allegation that the Respondent attempted to run from the access supervisor’s vision during access visits;

7. An allegation that the Respondent attempted to lose the access supervisor at an Indigo during a supervised access visit;

8. Complaints regarding the logistics of an access visit at 50 Point Lake;

9. An allegation that the Respondent was surveilling her by drone in July 2020;

10. Allegations of assault by the Respondent;

11. Allegations of assault by the Respondent’s partner, L.;

12. Allegation of prohibited communications (i.e. text messages).

[50] Constable Jindo noted for the court that the Applicant’s stories changed course and content during his interviews with her, that some of her complaints were non-criminal in nature, and that her physical evidence (e.g. photographs and purported injuries) conflicted with her account of events. Upon completion of his investigation Constable Jindo formed the opinion that “It is quite evident that [the Applicant] is trying to get [the Respondent] charged by any means. She has changed up several stories from conversation to conversation and it appears to have something to do with their upcoming court date”.

[51] At the request of his Staff Sergeant, Constable Jindo reinvestigated the text communications exchanged between the Applicant and Respondent, and on October 1, 2020 one count of failing to comply with a probation order was laid against the Respondent father.[^9] The court was advised that no further charges were laid, that there are no current investigations underway, and there are no other pending charges before the court.

[52] Under cross-examination the Respondent explained that the allegations regarding assaults upon the Applicant by the Respondent and his partner, L., pertain to two events. Specifically:

a. In March 2020, the Respondent reportedly acquiesced to the Applicant’s request to meet L. and view his apartment. He described that immediately upon entering the apartment the Applicant started taking photographs of his home. L. attempted to prevent this, and a scuffle ensued. C.S-W. was present and became upset, so the Respondent picked her up to calm her. The father notes that the Applicant blames L. for this conflict: rather than introducing herself and exchanging pleasantries, she immediately started acting in a confrontational manner, screaming in the apartment, and calling 911. The police attended and no charges were laid; and

b. In August 2020, an argument ensued between the parties at an access visit wherein the Applicant shoved his face and broke his sunglasses. She later called the police and alleged that he had broken her glasses. The father asserted that this version of events was entirely fictitious and opined that if that Applicant repeats her stories enough times, even she herself comes to believe them. Again, no charges were laid.

Criminal Convictions

The Respondent acknowledged that he did plead guilty to the following offences:

1. Assault as per the event of May 19, 2018. The Respondent acknowledges that the Applicant did injure her knee in their altercation. In his evidence he apologized and stated that “I’m sorry she twisted her knee. I had no intention to hurt her”.

2. Disobeying a court order and being unlawfully in a dwelling house (the family residence) on July 25, 2018. The Respondent acknowledged to the court that he entered the kitchen on this date with a request to take C.S-W. to the playground and was charged with these offences; and,

3. Failing to comply with a recognizance, and obstructing justice on August 4, 2019. Under cross-examination the father specified that these charges resulted from contacting the Applicant and trying to convince her to drop the charges against him/not attend for trial and offering her money to do so.

[53] The Respondent pleaded guilty to all of the above offences on September 19, 2019. He received a sentence of time-served, a suspended sentence, and a three-year probation order. The Respondent father advises that the final charges (August 2019) resulted in him being detained in custody where he was punched in the head by other inmates several times. His guilty pleas in September resulted in his release.

[54] The father advises that he has not attended at the family residence since July 2018, approximately 2 ½ years ago.

False Allegations

[55] The father testified that the mother has made other very harmful false allegations against him which were investigated by the CAS and the police. Amongst many false allegations, in particular, he advises the court that:

a. The Applicant’s allegations of historic domestic abuse are fabricated and not supported by any other evidence;

b. In February 2020 the mother made false allegations that he had sexually harmed the child in the past;

c. Between March and May 2020, the mother made further false allegations to the CAS wherein she asserted that the father has threatened to kidnap and torture and otherwise cause physical harm to the child;

d. In February-March 2020, the mother asserted that the father extorted sums of money from her. She presented copies of e-transfers of money purportedly sent to the father to ‘keep C.S-W. safe’. Specifically,

a. E-transfer dated January 13, 2020 for $3,000.00;

Applicant: “J.W., my mom sent the second installment you requested. Give us back our lives. You can take everything else. Stop the insane abuse. Let’s move on with our lives”;

Respondent: “Keep sending the money if you and C.S-W. want to stay alive”;

b. E-transfer dated February 9, 2020 for $3,000.00:

Applicant: “J.W., this is the 4^th instalment you requested. My sick mother is providing this money with huge efforts, after you drained all my savings, RRSPs, credit lines. STOP HURTING C.S-W. STOP THE ABUSE. LEAVE US ALONE”;

Respondent: “KEEP SENDING THE MONEY IF YOU WANT TO KEEP C.S-W. SAFE”.

The Respondent testified that he provided his banking statements to the police (which he also filed with the court), to demonstrate he had no such participation in this e-transfer exchange. Of particular concern, the Respondent also drew the court’s attention to a sworn Affidavit of the Applicant dated December 3, 2019 wherein she demonstrated how to falsify e-transfer records.

[56] These allegations were investigated and not acted upon by either the Society or the police. The allegations were not verified. The father maintains that both are “utterly fictitious”, and a disgusting reflection of the lengths the Applicant is willing to go to sever his relationship with C.S-W.

[57] It is interesting to note that these allegations appear to have been made during the time period that this matter was first scheduled to proceed to trial. In her Trial Affidavit, dated March 13, 2020 the Applicant advises the court that “J.W. is currently under investigation due to recent abuse of child on March 7, 2020”.

Respondent’s Attempts to have Applicant Charged/Investigated

[58] Under cross-examination the father acknowledged that he too had attempted to bring criminal charges against the Applicant mother. The father asserts that the mother has engaged in criminal behavior by (i) engaging in public mischief in falsifying documents (i.e. the e-transfer extortion scheme), and (ii) by fraudulently charging a trip for herself and the child to Bucharest, Romania on the father’s account.

[59] The Respondent acknowledged that:

a. In November 2018 the Respondent reported a historic assault to the Kingsville OPP pertaining to a physical altercation which took place between the parties on August 7, 2016 arising from conflict surrounding the proper use of C.S-W.’s safety seat. Police declined to lay charges, concluding that the allegation was motivated by upcoming court proceedings.

b. In April 2019 the Respondent laid a private information in this region alleging the same historic assault upon him by the Applicant in August 2017. This charge was withdrawn at the request of the crown in May 2019.

[60] The father also acknowledged that during the conduct of one investigation he raised the issue of the Applicant mother’s disregard for the proper use of C.S-W.’s child safety seat.

Birth Registration

[61] C.S-W. was conceived through donor egg IVF procedure. The Respondent is the biological father. The father speculates that the mother is insecure about her lack of biological connection to the child, and that this this insecurity manifests itself in unusual ways over and above her efforts to marginalize the Respondent.

[62] By way of example, the father testified that C.S-W. was actually born on February 28, 2015. He entered a photograph of C.S-W.’s “crib card” into evidence which appears to confirm her birth on that date. The Respondent father explained that, while they were still in hospital, he completed the child’s birth registration online on his laptop. The Applicant, disappointed that the child was not born in March - the same birthday month as the Applicant, later resubmitted the paperwork to government officials to amend C.S-W.’s date of birth to March 1, 2015. Bizarre as this may seem, the father produced documents which demonstrate that C.S-W.’s Statement of live birth was amended to show a changed date of birth from February 28, 2015 to March 1, 2015.

[63] By contrast, the Applicant’s evidence is that the child was born on March 1^st. She asserts that Respondent alone was responsible for the birth registration, and the amended registration. The Applicant raised a concern that the father had included his last name “S-W.” as the child’s surname without consulting her. The Applicant did not provide an explanation for the child’s crib card which clearly depicts a different date of birth.

[64] While nothing significant turns on this issue, it is another example of the parties being unable to agree on a simple fact in this proceeding (the date of birth of the child) and raises concern that one of the parties has been deliberately untruthful to the court.

C.S-W.’s Education

[65] The Respondent father called C.S-W.’s current teacher, Ms. K, as a witness in this action. Ms. K confirmed that C.S-W. is in Senior Kindergarten at the appliable public school. At the time of trial she had known C.S-W. for four months and described C.S-W. as a very happy, kind, friendly and helpful little girl. Ms. K confirmed that she has observed no behavioral issues and no attendance issues. She attends at school with healthy lunches each day, and that she is completing her web-based reading log at home. Ms. K further explained that C.S-W. is very artistic, and able to engage in conversations with friends easily. She explained that C.S-W. is “on the level” academically and produced samples of C.S-W.’s writing to demonstrate her progress level.

[66] The father described enjoying his time reading and writing with C.S-W., doing puzzles and playing games together. They work on an exercise book, using felt pens of colours that appeal to C.S-W. He described how they sit in the picture book section of the library, reading fairy tales and other age-appropriate books. He dismissed the Applicant’s accusation that reading a book about China was age-inappropriate, and that he is any way critical of C.S-W.’s achievements in school. He expressed a desire to assist C.S-W. with her remote learning during the COVID-19 school shutdown.[^10]

C.S-W.’s Medical Circumstances

[67] The Respondent father called Dr. Abiodun Oyebola, C.S-W.’s developmental pediatrician as a witness in this action.

[68] Dr. Oyebola testified that C.S-W. has not been immunized. Dr. Oyebola advised that he has no specific information as to the efficacy of the COVID-19 vaccination for children generally nor for C.S-W.’s specific age group. Dr. Oyebola testified that he will get the vaccine for himself when available, and will recommend to his patients that they get the vaccine as well. Dr. Oyebola was unable to comment upon the possibility that the MMR vaccine may provide some measure of COVID-19 protection, noting that there is no consensus globally at this time. He agreed that the MMR vaccine is one of the recommended vaccines on the Ontario routine immunization schedule. Dr. Oyebola explained that inasmuch as he highly recommends immunization, he has no legal authority to force a parent to vaccinate a child. He testified that there is no medical evidence that C.S-W. needs this vaccine urgently.

[69] Dr. Oyebola further testified that at the request of the Applicant, C.S-W. was seen at the Ron Joyce Children’s Health Centre for a preschool assessment consultation. C.S-W. was found to demonstrate age-appropriate language and motor schools, and no sign of neurological issues. He noted some behavioural issues reported by the Applicant which are “not uncommon at that age”.

[70] Dr. Oyebola testified that one of his roles is to act as advocate for the child. He has encouraged the Applicant mother to ensure that her relationship with the Respondent is cordial that she is protected from emotional distress arising from the conflict. He confirmed that parental conflict could have a negative impact upon C.S-W.’s behavior.

C.S-W.’s Therapy

[71] The father denies that C.S-W. requires therapy. He asserts that she is a “normal child”, and that when the Applicant ‘stops the war’, that C.S-W.’s psychological health will improve dramatically. He asserts that it is the actions of the Applicant that have created the need for therapy. The father testified that the child has told him that “I will show you the plant in my room when mommy stops calling you a wolf”. He hopes that one day C.S-W. will learn how much work he has done to get back into her life. The father argues that C.S-W.’s mental health could best be protected by bringing the hostility between the parties to an end. However, he opines that because the Applicant was ‘lobbying’ to have him charged with further criminal offences as recently as September 2020 that it is safe to assume that “the war is not over yet”.

C.S-W.’s Immunizations and Homeopathic Treatment

[72] The Respondent father testified that the Applicant does not believe in vaccines, but does believe in homeopathic medicine. He is greatly concerned that C.S-W. has not been vaccinated against any illness and disease, as recommended by government health officials.

[73] The only reference in his evidence to the treatment of C.S-W. by homeopathic methods was in relation to a teething gel that was not FDA approved. The Respondent did not put any of his concerns regarding homeopathic medicine to the child’s pediatrician.

Father’s Current Circumstances

[74] The father is a retired copywriter. He manages real property on a part-time basis. He is a relationship with his partner L. L. works as an accountant. She has no criminal record; speaks Mandarin, and coaches tennis. She is a Canadian resident and has children/grandchildren in the Mississauga area. The father and L. reside together only part of the week (she also resides in Mississauga), but they hope to live together full-time in the future. C.S-W. has met L., but it does not appear they have spent any extended time together to date.

[75] The father argues that there is no legitimate basis upon which to prevent exposure of C.S-W. to L. He submits that the mother’s complete opposition to this interaction is motivated by her own jealousy and insecurity rather than the best interests of the child.

[76] The father denies any need to attend a parenting course. He advises that he has decades of experience: since 1990. He has completed the Partner Assault Response (PAR) program as a term of his probation.

Litigation Conduct

[77] Under cross-examination the Respondent denied that the frequency of his motions brought against the Applicant in these family court proceedings were tantamount to emotional abuse. He acknowledged that ultimately an order was made requiring him to obtain leave before he could bring any further motions. With respect to parenting motions the father explained that he felt guilty when not taking action to see his daughter: “I felt I had to do something. I owed it to her”. He speculated that perhaps the excessive volume of his motions could be attributed to a “guilt of abandonment”, but “not as a result of an intent to harass the Applicant”.

Evidence of the Applicant Mother

Allegations of Domestic Violence

[78] The Applicant mother raised the following allegations of domestic violence in her evidence:

1. Violence during her pregnancy with C.S-W. in 2014: The Applicant has asserted in these proceedings that the Respondent is extremely violent, and that during her pregnancy he would physically and verbally assault her, including throwing her against walls and the floor, choking her, and pushing her down the stairs. The Respondent vehemently denies any such abuse. The Applicant, in her Trial Affidavit, alleges that on December 1, 2014 the Respondent pushed her down the stairs and that as a result, she was “in hospital in the middle of the night in critical condition”.[^11] She was ordered on bedrest for the balance of her pregnancy. In support of her narrative the Applicant submitted a one-page Attending Physician’s Statement dated December 1, 2014 where she is diagnosed as having a high-risk pregnancy and ordered to complete bedrest. Notably, this statement appears to be a human resources form submitted to the Applicant’s employer in support of an early medical leave from work. Under the category “date of hospital in-patient admission”, the attending physician has indicated “n/a”. The Applicant was 48 years of age during her pregnancy and C.S-W. was in fact born prematurely;

2. Violence during C.S-W.’s infancy: The Applicant asserts that the Respondent’s abuse of her continued. She alleges that his abuse was unrelenting, particularly when she was breastfeeding. She advised that she would be on the floor covering the baby with her body while he punched her and that she was “covered in bruises for months”. Again, the Respondent vehemently denies any such behavior. The Applicant recalled for the court that by October 31, 2016 the situation in the house could only be described as “living hell”. She advises that many persons observed the Respondent’s abuse.

3. January-May 2017: The Applicant asserts that while the Respondent was travelling abroad between January and May 2017, that he continued to harass her with emails and phone calls, sometimes up to 15 per day. No e-mail communications were submitted into evidence.

4. May 12, 2017: The Applicant testified that on May 12, 2017 she called the police because the Respondent choked her to the point that she nearly passed out and pushed her to the floor. Police attended and the Respondent left the home. A police incident report pertaining to this event was filed in evidence at this proceeding.

5. May-June 2017: The Applicant asserts that following this incident the Respondent continued to return to the home at night and in the morning. As a result, she initiated the court Application in which she requested a restraining order against the Respondent.

6. June 25, 2017: On June 25, 2017 the Respondent was charged with breaching the restraining order (i.e. attending at the family residence). The Applicant later recanted her allegations, as per above.

7. July 2017-January 2018: In July 2017 the Applicant, Respondent and child travelled together to Vancouver. Upon their return home they began residing together in the family residence again. The Applicant asserts that his behavior did not improve, and he again began terrorizing her daily and blackmailing her.

8. January 2018-April 2018: The Respondent again travelled internationally from January to April 2018. Upon his return, the Applicant alleges that he again began “his constant barrage of texts, phone calls and attendance at the home”. She alleges that he would sometimes “call [her] 45 times a day or text 100 times a day”.

9. May 19, 2018: The Applicant alleges that the Respondent physically assaulted her on May 19, 2018 causing injury to her knee. In her testimony the Applicant added that the Respondent was in and out of the house that weekend, that he broke into the house and she asked him to leave, and he wouldn’t. She testified that “there were several attacks that day. One was actually a sexual assault in front of the child. The other resulted in me having an injured knee”.

10. March 7, 2020: The Applicant alleges that on March 7, 2020 there was a violent event between herself, the Respondent and his partner, L., in the Respondent’s apartment. On that occasion the Applicant asserts that as soon as the door was closed that L. “jumped on my back and started screaming and kept me on the floor for 15 minutes until I was able to escape”. She asserts that neighbours called the police.

11. August 1, 2020: The Applicant testified that on August 1, 2020 the Respondent refused to release the child at the end of a visit supervised by the Applicant. She alleges that an alteration ensued wherein a ligament was torn in her thumb and her glasses were broken. She argues that the Respondent has not accepted responsibility nor shown any remorse for these events.

12. August 2020: The Applicant asserts that one week later, C.S-W. wrote a letter. The Applicant took a photograph of C.S-W. holding the letter on the street and presented it to the Respondent. This disturbing photograph was entered into evidence. It depicts an innocent little 5 year old girl holding a sign that reads “C.S-W. dad stop hurting me I want to go to the beach I want to be a champion swimmer”. The Applicant asserts that C.S-W. wanted to write this letter is response to the incident of August 1, 2020. The Applicant stated that she “did not” assist C.S-W. with this letter, but later admitted that she may have assisted with “some of the spelling”.

13. August 8, 2020: The Applicant asserts that on August 8, 2020, she was physically assaulted by L. with a tennis racket, causing bruises. She advised the court that she has photos and videos of this attack but did not submit any such physical evidence to the court.

[79] Most alleged events have been investigated by the police at the Applicant’s request.

Impact of Domestic Violence upon the Applicant

[80] The Applicant asserts that she continues to suffer the negative effects of the conduct and behavior of the father.

[81] She filed a Psychiatric Consultation Report dated September 4, 2019 as an exhibit in this proceeding. The report concludes that “this 52-year old woman shows evidence of PTSD with hyperarousal, potential nightmares, cognitive disturbance but limited avoidant behavior.” She was prescribed medication and anxiety treatment.

[82] The Applicant further advised that:

a. She has opted not to take medication as prescribed, rather preferring homeopathic treatments (e.g. naturopathic tinctures and teas);

b. She has taken successive leaves of absence from her schooling since 2019 due to her ongoing health issues and stress levels;

c. She has engaged in counselling since September 2018 (approximately once per month, but this has been impacted by COVID-19);

d. She attended a number of anxiety groups and is on a wait list for a PTSD group.

S.S.

[83] The Applicant called S.S. as a witness. S.S. advised the court that she is an early childhood educator and has been providing babysitting services to the parties since May 2017. She advises that she was interviewed for the position (jointly) by the Applicant and Respondent at that time. They were residing together with C.S-W. as a family when she met them.

[84] S.S. advised the court that she began babysitting C.S-W. in May 2017, for between approximately 15-18 hours per week. She described the Applicant and Respondent as a normal couple (i.e. eating meals, going to the park, grocery shopping, cooking, together as life partners). She did not observe any problems or conflict between them.

[85] S.S. advised the court that she and her husband moved into the family residence from April to June 2018. She advised the court that the Applicant had requested her to do so because she was “terrified” that the Respondent would come back to the home in April. S.S. described that, upon the Respondent’s return from his travels, he was coming to the house every morning and every afternoon, knocking on doors, screaming and yelling and asking to come in the home. At times, she found him inside the house and described feeling unsafe in the home at times due to the Respondent’s actions. S.S. further noted that sometimes C.S-W. would be playing inside when the Respondent was knocking on the windows. She described C.S-W. as being anxious and having nightmares during this time period. S.S. described one occasion where she was awoken at night due to the Applicant mother screaming – she clarified that the Applicant was screaming because the child was sleepwalking.

[86] S.S. advised that when she came home from a weekend away on the Victoria Day long weekend (May 2018) she observed the Applicant to have a “broken knee” and that the Applicant mother advised her that the father had “pushed her from the stairs”. S.S. noted that she did not observe any other injuries but confirmed that the Applicant could not walk very well.

[87] S.S. testified that she began supervising the Respondent father’s access visits on September 19, 2020. S.S. advised that visits are currently from 12:00 noon to 2:00 p.m. each Saturday and that she is the supervisor of these visits. The first visit occurred at the Ancaster Library, and at that time she explained her understanding of the rules: “no junk food, no sugar, no chocolate, no computer, no phone, not a lot of pictures, and don’t leave her sight”. She opined that the Respondent did not appear to want to respect these rules.

[88] S.S. testified that on November 21, 2020 the Respondent and the child started running away from the playground towards the trails. She was calling them to come back, saying “please don’t go, we have to stay at the playground” but she was ignored. S.S. testified that she was “terrified”, and she said that if he doesn’t release the child she will call the police. She called the Applicant instead. S.S. noted that the father was taking photographs even though he “wasn’t supposed to”.

[89] S.S. testified that the Respondent told C.S-W. to ‘tell your mommy that you want to see me on Wednesdays”. She also noted that the father asked C.S-W. about the Applicant, her son, the house, where her mother goes, whether she has baths, what she is eating, etc.

[90] S.S. also testified that C.S-W. is “very scared to live in the woods, and not have a house, and be hungry and cold, and not go to school, and not have a shower, and that Santa won’t come because she won’t have a chimney, etc.” She reiterated that C.S-W. is “terrified.”

[91] S.S. observed that the Respondent brings his camera to every visit and sometimes is so busy taking photos, changing batteries, etc., that it distracts him from C.S-W. She asserted that on one occasion C.S-W. slipped on the slide stairs, and another time was bumped on the head by his camera, due to this preoccupation.

[92] S.S. described that during outdoor visits the Respondent and C.S-W. play on the playground equipment or play games like hide and seek. If indoors, they read books or play games (but she has to remind them to be quiet so as not to disturb others). She opined that a recent book choice (re: China) was inappropriate for C.S-W.’s age. She observed that on some occasions C.S-W. gets bored before the full two hours are over.

[93] Finally, S.S. told the court that the Respondent gave her a cheque and asked her to be a witness and say that he was a good father and that C.S-W. enjoys her time with him. After cross-examination it became clear that S.S. incorrectly believed the witness fee given to her by a process server had a nefarious purpose.

[94] In cross-examination, S.S. initially alleged that on one occasion the Respondent “broke the door and came inside” the home, but later acknowledged that she had not seen this. Similarly, S.S. testified that the Applicant asked him to leave on May 18, 2018, but then admitted that she didn’t know this for certain as it was a private conversation.

C.S-W.’s Therapy

[95] The Applicant testified that she made the decision to enroll C.S-W. in therapy. She advised the court that they are often late to access visits because C.S-W. doesn’t want to go, and it takes a lot of time to prepare her.

[96] The Applicant mother called the child’s Therapist, Ms. M, as a witness at trial. Ms. M testified that C.S-W. was referred to her purposes of helping her express her emotions and feel better about visits with her dad (i.e. crying, throwing tantrums, difficulty settling down, etc.) as described by the mother. Ms. M is a counsellor with a background in behavioural sciences and developmental disabilities. When working with children her focus is on social skills, communications, and behavioural problems. She is not a member of any College at this point.

[97] Ms. M advised that she had had five in-person appointments with C.S-W. in January – March 2020. She then had two short informal visits over Zoom in late 2020. Ms. M observed that C.S-W. had a hard time sitting still and did not communicate a lot. They mostly played games together, drew pictures, coloured etc. in a manner that would attempt to engage C.S-W. in naming her emotions. On one occasion, C.S-W. drew a picture of her mother with an “x” on her knee and stated that “mommy hurt her knee”. The therapist later referenced a “boo-boo” on her knee. During some of the sessions C.S-W. would say that she did not want to go see her dad. On one occasion C.S-W. wet herself while the therapist was attempting to have her focus on an upcoming visit with her father. Sessions with C.S-W. were arranged solely through the Applicant mother, and a debriefing would occur before or after sessions with her. The therapist opined that she was “very concerned that [C.S-W.] is being used as leverage, control, and intimidation.” She did not elaborate as to how she formulated this opinion.

[98] The therapist testified that during one of the short informal sessions, held in approximately November 2020, C.S-W. told her that her dad had taken her into the forest. C.S-W. expressed concern that she would not have a bed and didn’t know what they would eat, and that Santa Clause would not be able to reach her without a chimney. The therapist confirmed that the mother advised her in advance of that session that there was an altercation at an access visit and that the Respondent father had taken C.S-W. into “the woods” or “the forest” and that there “was difficulty in returning C.S-W.”. It does not appear that the Respondent father had any role or input in C.S-W.’s counselling.

[99] Ms. M stated that her “only concern is that [C.S-W.] holds a lot of things in”. Her plan for future therapy sessions with C.S-W. is “just to help her express herself and make choices”.

[100] Ms. M advised that she has not had any training related to high conflict parenting or alienation.

Immunization

[101] The Applicant advised the court that she secured an immunization exemption for C.S-W. which permits her to attend at school. She advises the court that the Respondent brought a motion to have C.S-W. immunized during the life of this file, and that his motion was dismissed. The Applicant explained that her opposition to having C.S-W. immunized is two-fold:

a. Her adult son had a serious reaction to a vaccine when he was one month old; and

b. She herself was immunized for measles, and contracted measles nonetheless. Though not expressly stated, this suggests the mother doubts the efficacy of routine vaccinations.

[102] Based upon these personal experiences, the Applicant does not wish to vaccinate C.S-W. She asserts that as custodial parent, this is her decision, and if C.S-W.’s health situation changes, she will reconsider. She advises that she has always ensured that C.S-W.’s medical needs are met through her pediatrician, family doctor, homeopathic doctor, counsellors, etc. There does not appear to be evidence to the contrary.

Applicant’s Request for Supervision

[103] Counsel for the Applicant made valiant effort to have the Applicant outline her concerns about the father’s parenting for the court. She required redirection an inordinate number of times on this topic. Likewise, her counsel made significant effort to have the Applicant explain for the court why the father’s access with C.S-W. must be supervised. The Applicant struggled to stay on topic. Eventually (and at various times throughout her testimony) she identified that supervision of the father’s access time is required because:

a. of her allegations of historic and current domestic abuse by the Respondent;

b. of two incidents wherein she alleges the father left C.S-W. unattended at the zoo (2017) and at the beach (date unknown);

c. she has not seen any improvement in the father’s behavior;

d. she believes access is unsafe due to:

i. exposure to L.;

ii. past incidents of the Respondent feeding C.S-W. ketchup and sugar at McDonalds, and

iii. the Respondent feeding her chocolate at 1 year of age;

iv. the Respondent is distracted by photographing and videotaping during visits;

e. the father refuses to follow “reasonable and simple rules”;

f. C.S-W. has said many times she does not want to go;

g. the Respondent will be distracted by his computer or his phone or his camera during access visits;

h. the father has provided C.S-W. with inappropriate toys. For example, one year for Christmas she cried and was very upset for a long time because he bought her transformers which are for older boys. Further, he bought so many toys that the mother was forced to retain some for the following year. Finally, she complains that he took too long to put together a (Frozen) ice castle;

i. the father has not completed a parenting course as she has requested;

j. When C.S-W. was 3 or 4 she was very sad when he was away - she was saying “daddy’s in Africa”, and the Applicant would have to soothe her. This was harmful to the child;

k. C.S-W. does not have the skills to call the Applicant or 911 and is too small to protect herself; and

l. C.S-W. sleepwalks, and the Respondent sleeps with earplugs.

[104] The Applicant did not explain why it was safe to leave C.S-W. in the care of the father for six weeks as a toddler, but not today.

[105] The Applicant called her long-time friend, M. as a witness. He did not testify to any first-hand observation of domestic violence between the parties, but had observed the Applicant to have a bandaged knee over the Victoria Day weekend in 2018, and to be limping, and observed her to have a finger bandaged on either August 1^st or 2^nd of 2020. M. last saw the father in December 2017. He testified that on two occasions (at approximately ages 3 and 5), C.S-W. advised him that she has bad dreams, and that the “big bad wolf is coming”, and that “my dad is the big bad wolf”.

Response re: Allegations of drinking

[106] The Applicant advised the court that in November 2018 a child protection investigation was triggered by an anonymous call to the Children’s Aid Society (a former friend of the Applicant). Correspondence from the Society was entered into evidence reiterates that the “child needs a sober caregiver, but concludes that the allegations were not verified”.

[107] The Applicant alleges that it is the Respondent father who began suggesting to others that she abused alcohol, and that the YWCA and the Ancaster Pet Hospital were both influenced by such suggestions.

[108] With respect to the June 2019 incident at the YWCA access centre, the Applicant disputes the evidence of the access centre supervisor, Ms. Dejanovic that she admitted to drinking on that occasion. She specifically testified that “I hadn’t had any alcohol. I do not drink alcohol”. She testified that she had gone home to rest during the access visit – she was exhausted as she does not sleep well. She explained that she was late to pick up C.S-W. because her mother (who was visiting at the time) did not wake her up as requested.

[109] With respect to the July 2019 HPS involvement at the pet hospital, she asserts that the receptionist at the pet hospital “knew” the Respondent and she sensed an unfriendly vibe. The Applicant believes that she registered an “alert” on the alcohol screening device because a naturopathic tincture she had purchased at the grocery store was alcohol-based.

[110] The Applicant also produced October 2019 correspondence from the Society, after their investigation of these two incidents. The Society advised the Applicant therein that “there are no imminent protection concerns with C.S-W. in your care”…“it is expected that neither parent nor any other caregiver be impaired”…“we have not verified that you have a problem that impacts your ability to care for C.S-W.”.

Communications

[111] The mother speculated in her examination in chief that the text message exchange entered into evidence, wherein she appears to have stated that C.S-W. was referring to the Respondent as a “bad person” or a “monster”, was a “fake”; doctored by the Respondent to discredit her.

[112] Likewise, she testified that she did not recall writing the text messages wherein she advised the Respondent that she would “retaliate accordingly” and that he would experience jail instead of vacation. She speculated that “It doesn’t make any sense that I could have written this message. I find it unreasonable for him to have even suggested that”.

[113] Moving forward the Applicant supports the use of an online platform (i.e. Our Family Wizard) for any and all future communication between herself the Respondent.

Applicant’s Plan for C.S-W.’s Access with the Respondent Father

[114] The Applicant mother testified that she “would like an access schedule that is flexible, tenable and reasonable”. However, she does not trust any of his parenting skills. She stated that she hopes the Respondent’s parenting time “will evolve”.

[115] The mother testified that, if the family residence is sold, her only viable option is to move to her Quebec cottage. She testified that this is a 700km drive from her current residence, and therefore it would not be realistic for the Respondent to have weekly access to C.S-W. She suggests that in those circumstances:

a. Access might be once per month, potentially with the parties meeting in Ottawa (it was unclear as to how these visits would be supervised); and

b. Every year for the next ten years the Respondent’s adult daughters could supervise one week of vacation with C.S-W.

[116] The Applicant did not propose any sharing of statutory holiday time with the Respondent. During the conduct of this trial, the proceeding was adjourned over the Christmas Break. The Applicant was critical of the Respondent for reducing an agreed-upon 3 hour visit on Christmas Day (outdoors and supervised by S.S.) to two hours, after the child became cold, and after spending some portion of the visit in S.S.’s car. She accused the Respondent of putting snow in C.S-W.’s pants and making her cry. Under cross-examination the Applicant did not agree that the restrictions she placed on this outdoor Christmas Day access visit were unduly restrictive and not in C.S-W.’s best interests. In reply the Respondent explained that after tobogganing C.S-W. was wet and cold. Since they were not permitted to go inside to warm up, he felt it best to allow C.S-W. to go home to the Applicant.

[117] The Applicant advised the court that she would like to be able to visit her aging mother and extended family in Europe for a full month over C.S-W.’s summer holidays from school. She does not want the “life sentence” of the Respondent’s access to C.S-W. to prevent her from doing so, however she acknowledged that there have been no incidents wherein the Respondent father had prevented her from travelling with C.S-W.

[118] The Applicant believes that access exchanges should take place at the library as this is a “safe location”, although it is not open on Sundays or holidays.

[119] The Applicant asserts that the current arrangement for access is working and that the status quo should be maintained. She advised that she will not accept that access is safe until a professional advises her that it is safe.

[120] Under cross examination, the Applicant:

a. Would not acknowledge that she has had any role in the conflict between the parties. In her evidence she acknowledged that C.S-W. “has suffered” from this conflict, but could not identify any role she may have had, nor anything she could do to avoid or minimize conflict with the Respondent in the future;

b. Would not agree that permitting access exchanges to occur at C.S-W.’s school (i.e. eliminating interaction between the parties) could serve to reduce stressful conflict in the child’s presence;

c. Did not agree that she is the party who is often late for access visits (despite her previous evidence in-chief to this effect);

d. Evaded questions with regards to:

1. Whether C.S-W. was glad to see the Respondent (preferring instead to advise the court that she is working with C.S-W. to build a stable relationship and build trust between them); and

2. Her instruction of C.S-W. regarding “rules” of access such as photography, etc. (preferring instead to make allegations of name calling on the part of the Respondent);

3. Could not describe regular outings and activities she has engaged in with C.S-W., which were comparable to those enjoyed between the Respondent and C.S-W. until the summer of 2018;

4. Did not agree that it was the Applicant who told C.S-W. that the Respondent was forcing the sale of the family residence and suggested to her that they would have to live in the woods, although she did reiterate C.S-W.’s fears in this regard;

5. Did not agree that she used the police as a tactic to gain advantage in the family court proceedings, stating that she only went to the police when she “had a knife at [her] throat”;

6. Would not agree that the Respondent could assist with C.S-W.’s online learning during the COVID-19 health crisis.

7. Would not agree that it could be beneficial to C.S-W. to be exposed to mandarin and tennis with L. – instead expressing that involvement with L. would “never” be appropriate;

8. Does not acknowledge that she had “any role” in the conflict with L.

[121] The Applicant reiterated that her objectives moving forward were “harmony, stability, comfort and trust”.

THE LAW

A. Variation Generally

[122] The Supreme Court of Canada in Gordon v. Goertz established the two-stage process for determining a motion to change custody or access:

a. First, the parent applying for a change in the custody or access must meet the threshold requirement of demonstrating a material change in circumstances affecting the child.

b. Second, if the threshold is met, the court must embark upon a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them: 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 49.

B. Material Change in Circumstance

[123] A court shall not make an Order that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child: Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am., s. 29.

[124] Before entering into the merits of an application to vary a custody order the judge must be satisfied of:

a. A change in the condition, means, needs or circumstance of the child and/or the ability of the parents to meet the needs of the child;

b. Which materially affects the child; and

c. Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 13.

[125] The party seeking the variation must establish that there has been a material change in the circumstances of the affected child that has altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Brown v. Lloyd, 2015 ONCA 46 at para. 7.

[126] The change must be substantial, continuing and if it were “known at the time, would likely have resulted in a different order”: L.M.L.P. v. L.S., [2011] SCC 64.

C. Best Interests

[127] Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie: there is no legal presumption in favour of maintaining the existing access arrangements: Persaud v. Garcia-Persaud, 2009 ONCA 782.

[128] The best interests of a child on a Motion to Change are determined in accordance with s. 24 of the Children’s Law Reform Act:

s. 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).

(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.

[129] It is generally accepted that children should have as much contact with each parent as is consistent with the child’s best interests. The ultimate goal of the court should be to establish, maintain and promote relationships which are of significance and support to children: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3. While ‘maximum contact’ is not explicitly referenced under the provincial legislation in Ontario, it is clear that this is an important consideration in crafting a parenting schedule which best meets the interests of a child.

Violence and Abuse

[130] In assessing a person’s ability to act as a parent, the court must consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child: Children’s Law Reform Act, s. 24(4). A parent’s past conduct is otherwise not relevant to the “best interests” inquiry unless the conduct is relevant to the party’s ability to act as parent: Children’s Law Reform Act, s. 24(3).

Supervision of Access

[131] Counsel for the Applicant relies upon the case of V.S.J. v. L.S.J., 2004 17126 (ONSC) in which Blishen J. provides a helpful review of the principles pertinent to a request for supervised access. Specifically, in V.S.J., the court notes that:

a. [p. 1]: “An order for supervised access also requires evidence of exceptional circumstances as it is just one small step away from a complete termination of the parent-child relationship.”;

b. [p. 128]: There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances: see Jafari v. Dadar, [1996] N.B.J. No. 387 (QL);

c. [p. 129]: There is no standard criteria for termination of access within the best interests test: “it is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered”: M.(B.P.) v. M.(B.L.D.E.), (1992), 1992 8642 (ON CA), 42 R.F.L. (3d) 349 (QL) (Ont. C.A.);

d. [p. 135]: Factors commonly considered by the court in determining both the issues of termination and/or supervision of access include:

i. Long-term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and/or fear;

ii. History of violence, including unpredictable, uncontrollable behaviour, alcohol and drug abuse that has been witnessed by the child and/or presents a risk to the child’s safety and well being;

iii. Extreme parental alienation;

iv. Ongoing denigration of the other parent;

v. Lack of relationship or attachment between the non-custodial parent and the child;

vi. Neglect or abuse to the child at access visits;

e. [p. 138]: Supervised access is seldom viewed as an indefinite order or long term solution: “the purpose of supervised access, far from being a permanent feature of a child’s life, is to provide a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy”: M.(B.P.) v. M.(B.L.D.E.).

[132] The Respondent father draws the court’s attention to the case of M. v. F. 2015 ONCA 277 in which the Ontario Court of Appeal upheld the trial judge’s decision to grant (unsupervised) overnight access to a six-year old child in a case in which serious allegation of physical violence during their relationship (e.g. strangulation during intercourse, ripping out earrings, dragging the mother down the stairs, and striking her in the face) were levied. In M. v. F. the trial judge found that the allegations against the father had no bearing on his ability to parent the child and his conclusion was upheld by the Court of Appeal.[^12]

[133] The father further references the case of Ene v. Ene, 2015 ONSC 867 for factual similarities he argues to be comparable to those before this court. Of note, in Ene, McGee J. highlighted the obligation of each parent to foster and promote a positive relationship between the child and the other parent:

“The end of a spousal relationship does not terminate the parent-child relationship. Nor does it terminate a child’s fundamental need for love, attachment and the support of each parent. A parent who intentionally removes the other parent from his or her child’s life commits an abuse upon the child”: para. 70.

[134] The father argues that the pattern of behaviour identified by the court in Ene, that is, the mother’s personal, panicked response to the relationship breakdown and the finding that the “prospect of a normalized relationship between the father and the daughter has not calmed her, but rather has escalated her fears, and the projection of those fears upon her young daughter” is very real and present in the matter before this court.

[135] By contrast, counsel for the Applicant mother argues that the factual similarities in this case are more akin to those in V.S.J. or Riaz v. Ul Islam, 2019 ONCJ 108. In V.S.J., the court had lingering concerns about alleged sexual abuse towards and inappropriate behavior during access visits. The court noted the father to a “deeply disturbed individual” with clear need for therapy. In Riaz, the court was influenced by concerning behavior by the father during supervised access visits.

[136] I have reviewed and read all cases submitted by the parties in support of their position. It is trite but true to note that each case must be determined upon its own unique set of facts and circumstances.

ANALYSIS

A. Issue #1: Has there been a material change in circumstances that affects or is likely to affect the bests interests of C.S-W. since the Final Order(s) of Nightingale J. dated June 16, 2017?

[137] At present, the sole court-ordered term governing the parenting of C.S-W. is:

“The Respondent shall have access with the child C.S-W. when he is in the Province of Ontario up to three times per week, with the times, dates, duration and location to be in the discretion of the Applicant. The Respondent shall provide an address/location where he would be exercising access to the child”.

[138] At the time that this consent parenting term was incorporated into an Order of the court, C.S-W. was just over two years of age and the Respondent father had recently returned from a five-month trip overseas. The order provided that the father would have access up to three times per week, and it appears that C.S-W. and her father spent time together without restriction during this time period. Even during periods where the parties were not cohabiting, the evidence suggests that C.S-W. and her father spent very generous and liberal time together until the summer of 2018. In short, the court-ordered arrangement generally worked without issue until July 2018 - then it fell apart.

[139] The mother’s position regarding the material change threshold is somewhat unclear. She seems to argue that the material change threshold has not been met, but then also seems to suggest that she should have discretion over all terms of the father’s access, including whether or not it is supervised. I do not read the access of provisions of Nightingale J. to provide the Applicant mother with this discretion to impose a term of supervision over his access, but rather the “times, dates, duration and location”. When pressed on this point, the mother argued that there has not been a material change warranting variation of the terms of the existing Temporary Orders permitting short periods of supervised access. This is not the test on a Motion to Change. The terms under review by this court are the terms of the Final Order as outlined above. The mother’s position therefore is a request to change the terms of the Final Order to more restrictive terms of access (i.e. supervised access on a less frequent basis than contemplated in the order). This position requires a finding that there has been a material change in circumstances.

[140] The father’s position is that the terms of the Final Order of Nightingale J. are no longer appropriate. I agree. There have been significant changes in the dynamics of the relationship between the parties since 2017, and specifically in their ability to negotiate a flexible and undefined parenting schedule. Further, the circumstances of C.S-W. have evolved. C.S-W. is now almost 6 years of age. She is at a completely different stage of development than she was at the age of 2. I cannot accept that the access terms agreed to between the parties in 2017 continue to meet her best interests.

[141] On the facts of this case, I conclude that the threshold requirement of demonstrating a material change in circumstances affecting C.S-W. has been easily met. As such, a fresh inquiry as to C.S-W.’s best interests is necessary.

B. Issue #2: What court-ordered terms of access and other incidents of parenting are necessary in in the best interests of C.S-W.?

Credibility

[142] As is the case in many family law disputes, the Applicant and Respondent in this proceeding have vastly disparate accounts of the facts relevant to the parenting of C.S-W. In Kinsella v. Mills, 2020 ONSC 4785, para. 68, Justice Chappel provided an extensive review of the task a trial judge undertakes in assessing the credibility of parties at trial

[68] The case-law has highlighted that the assessment of credibility and reliability is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. c. Gagnon, 2006 SCC 17, at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51, at para. 49; Hurst v. Gill, 2011 NSCA 100, at paras 18-19). The complexity of the task is highlighted by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. Howe, 2005 CarswellOnt 44 (C.A.), at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22). Despite the challenges inherent in the task, the case-law has articulated numerous factors which the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133 (B.C. C.A.), at para 9; R. v. Norman, (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.); R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75; R. v. Jeng, 2004 BCCA 464 (C.A.); Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para 186, aff'd 2012 BCCA 296 (C.A.); and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538, at paras. 34-40 (S.C.), these considerations include the following:

1. Were there inconsistencies and weaknesses in the witness' evidence, including internal inconsistencies or evidence of prior inconsistent statements?

2. Was there a logical flow to the evidence?

3. Were there inconsistencies between the witness' testimony and the documentary evidence?

4. Were there inconsistencies between the witness’ evidence and that of other credible witnesses?

5. Is there other independent evidence that confirms or contradicts the witness' testimony?

6. Did the witness have an interest in the outcome, or were they personally connected to either party?

7. Did the witness have a motive to deceive?

8. Did the witness have the ability to observe the factual matters about which they testified?

9. Did they have a sufficient power of recollection to provide the court with an accurate account?

10. Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10)

11. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?

12. Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?

13. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (Jeng, at paras. 53-54).

[143] The assessment of credibility in the context of allegations of domestic abuse can be a particularly delicate task: see for example, Liu v. Huang, 2020 ONCA 450, and M.A.A. v. D.E.M.E., 2020 ONCA 486.

[144] With respect to the evidence of the Respondent father, I did not note significant inconsistencies in his evidence: his evidence was generally consistent with the information found within his trial Affidavit, and with the content of the documents tendered at trial. The Applicant did not draw the court’s attention to any specific inconsistencies or prior inconsistent statements. The father’s evidence was generally compatible with the evidence of other third-party witnesses in this proceeding (save and except the Applicant mother and S.S., which will be explored more fully below). Where possible, the Respondent submitted documentary evidence (e.g. emails, police reports, photographs, etc.) which were also generally consistent with his narrative. Although the Respondent father clearly has an interest in the outcome of this proceeding, I found that he was able to testify in a straightforward manner. He did stray off topic from time to time, and at other times become fixated on a particular detail, but in general the Respondent appeared to listen to and answer the questions posed to him in cross-examination. I did not find the Respondent to be evasive in his answers and I observed him to acknowledge facts that were adverse to his interest in these proceedings when it was appropriate to do so.

[145] By contrast, I found the evidence of the Applicant mother to be less credible. In particular, the court noted the following problems:

1. I found to the mother’s narrative with respect to domestic violence and abuse to be very inconsistent.[^13] I note:

a. Officer Jindo testified that during his investigation into allegations made by the mother, he noted that she continuously changed her story, and that her narrative was inconsistent with the physical evidence available at the time.

b. Inconsistencies were evident between her viva voce evidence given at trial and her sworn trial Affidavit, as compared to:

a. The documents she filed at trial: For example, her prenatal record (which does not support the allegation that she was hospitalized as a result of a violent episode during her pregnancy as she purports) and C.S-W.’s Developmental Pediatric Report – (in which the Applicant alleges that the Respondent broke into the home and assaulted her in the night);

b. Other witnesses called on her own behalf: For example: S.S. observed that in May 2017, when she began working for the parties, the Applicant and Respondent were a normal loving couple. She had daily interactions with them as C.S-W.’s caregiver. While it is true that S.S. would not have been observing the parties at all times in the home, it is the opinion of the court that if the behavior of the Respondent was so abusive and so disruptive that the a restraining order was necessary to prohibit him from coming within 100 yards of the family home for any purpose at any time (as alleged), S.S. – who is aligned with the Applicant – would have been aware of this high level of discord. Also, later in her evidence S.S. advised the court that she was aware that the Respondent pushed the Applicant down the stairs during the altercation in the home in May 2018, because she was advised of such by the Applicant. This narrative is at odds with every other version of events regarding this incident provided by the Applicant, in her testimony, Affidavits presented, police reports, etc.

c. I do not accept that, if the Respondent father had engaged in the violent campaign of terror that the Applicant describes during her pregnancy and C.S-W.’s infancy, that the Respondent would have been left alone as C.S-W.’s sole caregiver for a six week period in the fall of 2017 while the Applicant vacationed internationally and interprovincially. C.S-W. was 2 ½ years of age at the time. By contrast, the mother now asserts that C.S-W., who is almost 6, cannot be left alone for the Respondent event for a few hours, because she does not have the social skills to protect herself. This narrative is logically inconsistent.

d. The mother testified that multiple persons were direct witnesses to the Respondent’s physical abuse (i.e. both parties’ mothers, multiple friends, her adult son, the Respondent’s adult daughter, etc.), yet she did not call a single witness at trial who supported this information. Further, the mother testified that she had hundreds, if not thousands, of communications between the parties, including e-mails and texts, and visual evidence including photographs and videos, which confirmed the Respondent’s physical abuse of her - yet again she did not introduce any such physical evidence at trial. The court specifically acknowledges that domestic violence often occurs in private, in the absence of witnesses, and that a victim of abuse should not be obligated to produce corroborating evidence to be believed. However, my concern is that in this case the Applicant emphasized the ample body of evidence in existence to support her claims, yet chose to produce none.

2. I observed that the Respondent mother claimed to have no recall, or answered questions with questions (i.e. such as “why would anyone do such a thing?”) when being challenged on difficult issues. For example, with respect to one particularly damning communication: “you don’t have no idea what’s in store for you”… “I will retaliate accordingly. You started the war… you have no idea what’s in store for you… jail instead of vacation… no access to child… increased payments” the Applicant claimed no recollection of writing this message. I find that the Applicant did in fact author this communication to the Respondent and was untruthful to the court when claiming no recall and suggesting that perhaps the Respondent may have falsified this document.

3. As displayed by the above communication, the Applicant mother had clear animus towards the father – she was motivated to cause him harm.

4. I believe, on a balance of probabilities, that the Applicant mother doctored physical evidence in these proceedings on more than one occasion. For example, I find it more likely than not that the mother inserted the words “for 1 year” into the note from the Ancaster Central Medical Centre. The amendment renders the document internally inconsistent (i.e. as to the length of the necessary medical leave), and looks to have been added into the margins after the fact. The mother did not address this allegation in her evidence. Further, and of more significant consequence, I find that, on a balance of probabilities, the Applicant mother attempted to have the father charged with extortion through fraudulent means. I find that the mother produced fake e-transfer statements for the dates of January 13, 2020 and February 9, 2020 wherein she claims that the Respondent extorted money from her under threat of harm to C.S-W. She did so on the eve of the first scheduled trial sittings in an effort to gain leverage in the court proceedings (likely to either have the father incarcerated and unavailable for trial, or to be in a position to advise the court that the father was under investigation for these violent acts). My conclusion that the Applicant mother falsified these e-transfers is supported by her previous Affidavit wherein she demonstrates to the court her ability to manipulate banking records in this same fashion.

5. The Applicant made no effort to explain the crib card photograph which clearly depicts that C.S-W. was born on February 28^th. I prefer the father’s evidence on this point: I do not accept that the Respondent father applied to amend the birth registration to change C.S-W.’s birth date March 1^st. I find that it was the Applicant mother who requested this change of date and it is concerning to the court that she would be deliberately untruthful to the court on this issue of little consequence.

6. The Applicant initially led the court to believe that C.S-W., age 5 at the time, authored a letter to her father which read: “C.S-W. dad stop hurting me I want to go to the beach I want to be a champion swimmer”. I note that such writing capabilities far exceed the “popcorn” words and writing samples produced by C.S-W.’s senior kindergarten teacher at trial and the description provided by the teacher as to C.S-W.’s stage of development. The court is left to conclude that the Applicant either wrote this abusive letter herself, or directed each letter at C.S-W.’s hand. The implications of either conclusion result in serious concern.

7. The Respondent testified in her evidence in chief that “I do not drink alcohol”. This is an untrue statement:

a. Multiple photographs entered into evidence at trial clearly portray the Respondent consuming what are obviously alcoholic beverages at various periods of time;

b. On July 10, 2019 the Applicant registered an “alert” when compelled to provide a breath sample to Hamilton police. I accept the evidence of Officer Tremis that the alert reading produced signifies that the Applicant had a blood alcohol concentration of over 0.5 but under 0.99 – i.e. in the warning range. The Applicant received an automatic license suspension of three days as a result of this event. I reject the Applicant’s evidence that this alert reading was caused by homeopathic tinctures. I find that the Applicant is being untruthful with respect to the issue of her alcohol consumption.

8. At times, the Applicant would not acknowledge the truth of obvious questions posed to her. For example, under cross-examination the Applicant would not admit that sometimes she is late for the access visits. This is contrary to her own evidence that visits have been delayed because she has to spend significant amounts of time trying to “convince” C.S-W. to go with her father, calming her down, etc. The Applicant appeared unwilling to concede any points which, even if inconsequential, might cast her in a negative light.

9. I observed the Applicant to use highly exaggerated and dramatic language throughout her testimony. For example, the Applicant stated that she “only went to the police when I had a knife at my throat”. This statement is at odds with the information provided to the court by Officer Jindo wherein multiple non-criminal acts were reported to police by the Applicant in a series of interviews (e.g. the child being cold at access, drones flying overhead, etc.). Other examples of rather dramatic language used by the Applicant included such descriptions as her home being “under siege”, her life as a “living hell”, and the Respondent’s access to C.S-W. as “a life sentence”. While the Applicant may very well believe these statements to be true, this narrative, is not in my view an accurate description of the events as presented to this court. The Applicant’s flare for theatrics is also evidenced by S.S.’s observation that she once awoke to the Applicant mother’s screaming because C.S-W. was sleepwalking.

[146] With respect to the evidence of S.S., I do not find that her testimony was deliberately untruthful, however I find that she has been unduly influenced by exposure to the Applicant’s exaggerated (and at times fabricated) narrative. This impacts the reliability of her evidence. S.S. repeatedly referenced the Applicant’s “terrified” state of mind in her testimony. In my view, S.S.’s repeated exposure to the mother’s perspective has caused her to interpret seemingly innocent events and acts as having a very nefarious purpose (for example, a request to walk on a walking trail, is perceived as an attempting kidnapping into the forest, a court-prescribed witness fee, is perceived as an attempt to bribe her evidence, and an incidental bump on the child’s head with a camera as an act of child abuse or neglect). This impacts S.S.’s ability to provide accurate recall to the court. While I do not reject S.S.’s evidence outright, in certain areas it must be approached with caution as a result of this influence.

[147] This court is left with the impression that, where the evidence of the Applicant or S.S. conflict with the evidence of the Respondent or any other witness who testified in this proceeding, on important areas under dispute, the testimony of the Respondent and other third-party witnesses is to be preferred.

Domestic Abuse

[148] At the heart of this case are the allegations of violence and abuse levied by the Applicant mother as against the Respondent father and as such, in assessing the best interests of C.S-W., I will address this issue first.

[149] Having closely reviewed the allegations of abuse made by the Applicant mother in this trial, I do accept that there has been a measure of abusive conduct in the relationship between the Applicant and Respondent. Specifically:

1. I accept that during an episode of domestic conflict between the parties in May 2018, the Applicant mother’s knee was injured. The Respondent pleaded guilty to assault and has apologized to the Applicant and the court that the Applicant was injured in that altercation. Despite that the father does not agree with the version of events on that occasion as presented by the Applicant, he acknowledges that he was convicted of assault, and it appeared to the court that the remorse he expressed regarding the Applicant’s knee injury was genuine. The Respondent has completed the court-mandated PAR program arising out of this conviction and appears to understand that future interactions between the parties should be avoided to the fullest extent possible.

2. I accept that the father’s behaviour has, at times, been a nuisance to the mother. On occasion, I accept that his behavior has risen to the level of harassing conduct. I find that during the early summer of 2018, the Respondent was attending at the Applicant’s residence almost daily, sometimes invited and sometimes uninvited – the day to day distinction was at times confusing. The father was convicted of breaching the terms of the restraining order and breaching a recognizance by attending at the family residence on July 25, 2018. However, I cannot conclude that this is evidence of coercive and controlling behavior: both parties simply disregarded the terms of their consent restraining order (prohibiting the Respondent from attending at the family residence at any time for any purpose) for a very substantial period of time, and thereafter when it was convenient for them to do so. To this court’s observation, it appeared that the father’s ability to interpret and react to social cues may be somewhat limited, and it is likely that he did not always respect the Applicant’s personal boundaries. I do not however, accept that his behavior rose to the levels of threatening conduct that the mother portrays. I accept that the Respondent father has not attended at the family residence since July 2018.

3. Finally, I accept that the Respondent father’s litigation conduct has been relentless: he has engaged in a repetitive, disorganized, constant stream of motions in this action, taking little time to reflect upon the judicial guidance given at each step. He has been his own worst enemy in this litigation, incredibly ineffective in navigating the justice system, and his approach to the litigation has taken an emotional toll on the Applicant.

[150] However, the analysis of abusive conduct does not end here. The Applicant’s conduct also requires scrutiny. In particular, I make the following factual findings:

1. The Applicant has both fabricated and exaggerated allegations of abuse against her by the Respondent. After careful consideration of the testimony of both parties, I do not accept that the Applicant has been truthful in her account of historic domestic violence in the early years of their relationship, I do not accept the Applicant’s depiction of the events of physical conflict between the parties in 2017-2018 as accurate, and I do not accept that the Respondent or his partner, L., committed one-sided physical acts of aggression against her in 2020.

2. The Applicant has fabricated allegations of abuse by the Respondent against C.S-W. Save and except two typical childhood accidents involving (a) slipping on the stairs of a slide, and (b) being bumped on the head by the Respondent’s camera, there is absolutely no credible evidence before the court that the child has ever suffered physical harm while under the care of her father. In particular, I find that the Applicant’s complaints to the police and the Children’s Aid Society regarding (a) threats made by the Respondent to kidnap or harm C.S-W., (b) the extortion of monies by the Respondent under threat of harm to C.S-W., and (c) sexual abuse of C.S-W., are entirely false.

3. I find that the Applicant mother has, at times, been the antagonist in the conflict between the parties. I believe that she has manipulated the application of the 2016 restraining order to gain tactical advantage in these court proceedings. I find that she invited the Respondent into the family home when it suited her to do so, often under enticement of spending time with C.S-W., and then invoked serious legal sanctions against the Respondent when she was unhappy with his actions (e.g. attempting to remove his personal effects from the home). I find that this reflects a level of manipulative, coercive, and controlling behavior that may also be classified as abusive.

4. I endorse the commence of McGee J. in Ene, that a parent who intentionally removes the other parent from his or her child’s life commits an abuse upon the child. I find that the mother has attempted to do just that.

5. Finally, I find that, to a lesser extent, the Applicant has also engaged in undesirable litigation conduct. For example, triage endorsements of the Honourable Mr. Justice Pazaratz from March 2020 note that “a consistent problem on this file has been the relentless and repetitive motions brought by each of the parties. I have warned both parties – in clear and at times blunt language – that they are wasting judicial resources”, and “we are rapidly approaching the stage where one or both of these parties may come to be identified as vexatious litigants”. The Applicant appears to have heeded these warnings better than Respondent father, however the number of cross-motions evident in the subsequent court record demonstrates that while the Applicant did not often initiate the motions, she did not hesitate to bring offensive action of her own in response.

[151] It is obvious that the conflict between the parties has reached a toxic and pervasive level. However, I conclude that the allegations of physical violence in this proceeding have been grossly distorted and exaggerated by the Applicant. Both parties have played a role in the conflict between them, and both parties will need to remedy their own behaviours moving forward.

[152] In considering the allegations of domestic abuse in the context of C.S-W.’s best interests, I conclude that:

a. the level of domestic abuse between the parties is far less severe and far less frequent than the Applicant has attempted to portray;

b. any incidents of actual violence between the parties was situational only, arising out of failed efforts at reconciliation and episodes of high emotion, and are not a reflection of a pattern of coercive and controlling behavior on the part of the Respondent;

c. this is not a clear case of one perpetrator and one victim of abuse;

d. the level of parental conflict that C.S-W. has been exposed to is high, but the level exposure to violence is relatively low; and

e. strict terms of contact and communication between the parties can adequately manage the risk of future domestic violence between the parties and prevent C.S-W. from suffering harm.

Exposure of C.S-W. to Conflict

[153] I find that the biggest risk of harm to C.S-W., on the facts of this case, is the risk of emotional harm resulting from the conflict between her parents. It is acknowledged by both the Applicant and Respondent that C.S-W. has been exposed to multiple instances of verbal conflict and physical conflict between them. This can and must be managed with very stringent conditions of contact moving forward. If not, C.S-W. is at risk of suffering life-long emotional consequences.

[154] I am concerned that neither party appears to have insight into their role in exposing C.S-W. to their parental conflict. For example:

1. I find that, at times, the Respondent father has inappropriately involved C.S-W. in the conflict between the parties. Specifically, I find that he has tried to make requests for more parenting time with C.S-W. by directing C.S-W. to tell her mother that she wanted to spend more time with the Respondent (e.g. on Wednesdays), and that he has attempted to use C.S-W. as a source of information regarding the Applicant’s life and circumstances. It is concerning that the Respondent father does not appear to understand the potential harm to C.S-W. in using her as a messenger and by placing her in the middle of the parenting dispute.

2. However, I find that the Applicant mother is equally unaware of the emotional harm she has caused to C.S-W. by:

a. causing C.S-W. to participate in the creation of a sign, and to be photographed holding the sign which states “dad stop hurting me”; and

b. causing C.S-W. to believe that her home will be sold, and she will be forced to live in the woods, at the hands of the “bad wolf” - her father. I find that it is the Applicant mother who has suggested this scary tale to C.S-W., causing her significant fear and anxiety, because the Applicant is angry with the father for requesting the sale of the family residence.

[155] Any future therapist providing services to C.S-W. should be aware of this extremely harmful dynamic.

[156] Fortunately, it appears that the conflict is personal between the parties themselves. That is, the evidence does not support a view that either party is of such a high conflict nature that conflict is pervasive in their everyday lives and in their functioning with others. The conflict is limited to the interpersonal dynamics with each other. This suggests that the best defence in protecting C.S-W. from the impact of emotional harm caused by her parents is to craft an order which strictly governs the acceptable contact and communication that may take place between them.

Duty to Promote a Positive Relationship:

[157] In considering the best interests of C.S-W., it is important to consider the custodial parent’s ability and willingness to promote a positive relationship between the child and the access parent. This is particularly true where one parent suggests that he or she should have discretionary powers over terms of access to the other parent.

[158] The Applicant mother made broad, generalized claims of her efforts to support the relationship between the Respondent father and C.S-W. She claims to espouse the objectives of “harmony, stability, comfort and trust”. However, I do not accept that her actions are consistent with her words. There are far too many incidents evident in this court record which demonstrate the mother acting in her own self-interest, rather than out of concern for the best interests of C.S-W. For example:

1. I find that after the May 2018 altercation between the Applicant and Respondent the mother threatened the father that:

a. In two years C.S-W. won’t remember who you are; and

b. You have no idea what’s in store for you… I will retaliate accordingly… you started the war… no access to child.

2. The mother criticized the father for travelling to Africa for 3-4 months while C.S-W. was young, asserting that C.S-W. was harmed by this period of absence from her father. However, the mother prevented all contact between C.S-W. and her father from July 26, 2018 to May 4, 2019 (a period of 9 months) without considering the harmful impact that this may have upon the bond between the child and her father.

3. On June 15, 2019 the mother was late to retrieve C.S-W. from the YWCA family access centre. I find that when she arrived at the access centre she stated (unprompted) to staff: “you can tell the father that all visits are cancelled”. The mother’s tardiness on this occasion had nothing to do with the father. The mother felt that her parenting was under challenge and her immediate reaction was to threaten to disrupt the parenting of C.S-W. by the father.

[159] I conclude that the mother has allowed C.S-W. to be a pawn in her battle with the Respondent and that she has preferred her own interests over C.S-W.’s in matters which involve the Respondent. It appears to this court that when the mother’s parenting is challenged, she retaliates against the Respondent with little regard for the impact this may have on C.S-W.

[160] The mother’s animus towards the father has distorted her beliefs regarding his parenting capabilities and the safety of C.S-W. while in his care. In my view, the concerns relating to the mother’s alcohol consumption while in a caregiving role to C.S-W. in 2019 were very real and required investigation and intervention. The mother does not acknowledge or understand the seriousness of her conduct at that time. By contrast, the mother asserts that C.S-W. is unsafe with the father by reason of such things as being allowed ketchup, being excessively photographed, reading books about China, excessive gift-giving, etc. The mother does not see the paradox in this position and has allowed her distorted perception of father’s parenting to justify unnecessary and excessive restrictions upon C.S-W.’s time with her father. I find that the mother has unfairly limited C.S-W. time with her father in terms of frequency, duration, supervision, location (including not leaving designated areas), and quality (for example, no photographs, no snacks, no gifts, no using the computer at the library, etc.) of access.

[161] It is not in C.S-W.’s best interests to permit the Applicant mother to have any continued discretion over the terms of her access with the Respondent father.

Flexibility

[162] Both parties seem to suggest that some measure of flexibility should be built into their parenting schedule with C.S-W. I disagree. Ad hoc, flexible parenting arrangements are appropriate and workable in scenarios where parents demonstrate a capacity for effective communication, coparenting, and mutual respect. This does not describe the parenting relationship before me. The Applicant and Respondent have not inspired confidence in the court that they will achieve any measure of peace between them that would permit them to deviate from a highly-structured set of rules. They should adhere strictly to this court order until C.S-W. and both parties have demonstrated a significant period of stability under the terms of this new order. C.S-W. will benefit from this structure and routine, and there should be no room for negotiation between the parties which would open any possible avenues for conflict.

C.S-W.’s Age and Stage of Development

[163] The Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC – Ontario), though certainly not binding upon the court, has been lauded as a useful tool in crafting child-focused and realistic parenting plans for children of separated parents: see for example J.N. v. A.S., 2020 ONSC 5292, and Saunders v. Ormsbee-Posthumus, 2020 ONSC 2300. The Parenting Plan Guide reviews factors that might be considered and offers suggestions for parenting schedules for children of different ages.

[164] C.S-W. will soon be six years of age. She is at a stage of development where she is leaving “preschooler age” and entering the “early school age” of childhood. In consideration of the features of the Parenting Plan Guide for these age groups as applied to the extensive evidence I have heard at trial in relation to C.S-W.’s specific circumstances and needs, I conclude that C.S-W. will benefit from a parenting which acknowledges the following:

a. She will benefit from the certainty of a fixed parenting schedule where she continues to reside primarily with the Applicant mother and spends regular, consistent time with her father;

b. C.S-W. may struggle initially with changes to the parenting schedule, and transitions between her two houses, however she will settle in with appropriate guidance, security and the loving support of both parents;

c. She is now able to tolerate longer absences from her primary caregiver (the Applicant), as evidence by her behavior and success at school. She is at a stage of development where she is demonstrably able to tolerate longer periods of time in the care of her father;

d. C.S-W. will respond well to a step-up plan of access with her father, including more frequent and longer periods of access, and eventually including overnight visits; and

e. C.S-W. must be protected from conflict between her parents at all times.

Love, Affection and Emotional Ties & Views and Preferences of the Child

[165] I find that despite the conflict between her parents C.S-W. continues to have a love, affection and emotional tie with each of them. C.S-W.’s views and preferences are not formally before the court. She will turn six years of age shortly, and her views and preference in the context of this case, would be of somewhat limited value. The father indicates that C.S-W. enjoys her time with him.[^14] The mother indicates that C.S-W. is reluctant to attend visits.

[166] If C.S-W. is expressing a reluctance to attend visits with her father, and I am not convinced that she is, I conclude that it is more like than not that this reluctance arises from the mother’s anxieties and influence. The mother’s overt and more subtle objections to C.S-W.’s relationship with her father have been communicated to C.S-W. and this has caused harm and disruption to the father-child relationship.

[167] I conclude that a far more generous but graduated access schedule, as detailed below, is in the best interests of C.S-W.: to allow her the opportunity to strengthen her bond with her father in a manner that permits her opportunity to grow accustomed to increased time with him. The expansion of time will include time for holidays, vacation and travel, opportunity to share in remote learning (if applicable), and special occasions. It is in C.S-W.’s best interests to enjoy such time with both of her caregivers.

Contact and Communication

[168] It is obvious to the court that a formal restraining order is no longer appropriate on the facts of this case. The Restraining Order of Nightingale J. dated June 16, 2017 ought to have been terminated, or at minimum amended, when the parties recommenced cohabitation in the months that followed.

[169] Restraining Orders in family court proceedings are governed by s. 46 of the Family Law Act, R.S.O. 1990, c. F-3 as amended, and s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. Both statutes permit the court to make an interim or final Restraining Order against the Respondent as it pertains to the Applicant or subject-children, if it is found that the Applicant has reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody. I do not accept that any fear the Applicant mother may have in relation to the safety of C.S-W. or safety of herself is reasonable. The Respondent father has not attended at the mother’s home since July 2018. Contact between the parties, when necessary to promote the best interests of C.S-W., can and should be managed by strict court-ordered terms. This does not require a formal Restraining Order. To the extent possible, the comprehensive Order below attempts to minimize contact and communications between the parties in general, and at access exchanges, and at C.S-W.’s special activities and events. In my view, these very detailed restrictions are necessary in C.S-W.’s best interests, and must be strictly adhered to.

[170] Face-to-face contact between the Applicant and Respondent should be avoided to the extent that this is possible. Communications between the parties must be reduced to writing, pertain solely to issues regarding C.S-W., and shall not be excessive or harassing in nature. Given this court’s concerns about (a) the conduct of this litigation (i.e. excessive, disorganized, relentless pursuit of relief), and (b) the manipulation of electronic records in this proceeding, it is best for all parties that communications take place through an online platform, such as Our Family Wizard, where communications can be managed and monitored and there is no risk of electronic manipulation. There will be detailed orders to this effect, as outlined below.

Therapy

[171] The Applicant mother has engaged therapy for C.S-W. This court supports the Applicant’s decision in that regard. Moving forward however, in order for C.S-W.’s therapist to be in a position to fully support her and understand the context of the challenges she faces, both parents should be invited to engage in dialogue with any mental health professionals involved in her care. Further, the therapist should be provided with and encouraged to review the content of this decision, and may wish to consider referring C.S-W. to a mental health professional with significant experience in high conflict parenting disputes if the extreme levels of conflict present in this family dynamic persist.

Mobility

[172] It is apparent that the future living arrangements for C.S-W. will be impacted by this court’s decision on financial issues, not yet rendered. As such, it is premature to mandate the jurisdiction in which C.S-W. must reside at this time. However, it is important that the Respondent be provided with sufficient notice of any proposed changes to C.S-W.’s primary residence, and such terms will be included in the Order below.

Enforcement

[173] The Order below attempts to contemplate scenarios where visits might be missed, and where make-up time for missed visits should or should not be provided. Likewise, the Order attempts to compel strict compliance with the terms therein, providing sanctions for tardiness, etc. Every effort has been made to provide governance on problematic incidents of access, but no Order can predict every contingency.

[174] It is not too late for both parties to put aside their past differences and to allow C.S-W. to enjoy a childhood free from further conflict between the two persons she cares about most. In the event that disagreements arise, or the parties encounter difficulties in the interpretation and implementation of the terms of this Order, they are strongly encouraged to consider engaging professional assistance in the form of a certified family mediator/arbitrator with strong qualifications in parenting coordination and high-conflict parenting, before seeking the assistance of the court.

[175] The conduct of this litigation has caused a grossly disproportionate use of court resources, and undue emotional drain on the parties. This court has a positive obligation to promote the primary objective of the Family Law Rules, to deal with cases justly, including ensuring that the procedure is fair to all parties, saving expense and time, dealing with cases in ways that are appropriate to their importance and complexity, and giving appropriate court resources to a case while taking account of the need to give resources to other cases: Rule 2(2), 2(3). To prevent future abuse of court resources and the unnecessary exposure of C.S-W. to the detrimental effects of further litigation it is appropriate to place restrictions on any future return of this matter to court.

[176] First and foremost, it is appropriate to prohibit the parties from initiating a Motion to Change the terms of this Final Order prior to August 31, 2022 (a period of approximately 18 months) without leave of the court. The Applicant and Respondent must give due opportunity for C.S-W. to enjoy the benefit of these carefully crafted terms. Due to my familiarity with the facts of this case, any such motion for leave should be scheduled before me if I am sitting. Likewise, if enforcement or relocation issues arise in relation to the terms of my order, those issues should be brought to my attention if I am sitting. Both parties are forewarned that efforts to exhaust other dispute resolution and therapeutic options will be considered and will weigh heavily in any request for leave for leave to change the terms of this Final Order.

[177] To be clear, the Applicant and Respondent both need to adjust their mindset to understand that (1) together they comprise C.S-W.’s only immediate family, and (2) together they must strive to keep their family’s affairs out of court.

C. Issue #3: Immunizations

[178] The Respondent father seeks an Order for C.S-W.’s immunization and relies upon the following cases in support of his position: Diserio v. DiSerio, 2002 49568 ONSC, C.M.G. v. D.W.S. 2015 ONSC 2201, P.W. v. M.M., 2-17 NSSC 91, and B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC). The only case relied upon by the Applicant mother is Temporary Order of Justice Brown in this proceeding, dated June 11, 2020, wherein Justice Brown declined to Order that C.S-W. be immunized on motion by the father. The Applicant mother argues that this court should not consider granting the requested relief as the issue has been determined.

[179] I disagree with the position of the Applicant. The endorsement of Brown J. clearly identifies that “a determination as to whether or not it is in the child’s best interests to be immunized in the face of a custodial parent’s opposition is an important and complex issue and cannot be resolved based on competing affidavits filed by the parents, without the benefit of some expert evidence from qualified health professionals, except on clear evidence of urgency”: para. 25. Justice Brown concluded that the Respondent had not made out a clear case for urgency. This court has had benefit of 11 days of viva voce evidence, including the medical evidence of C.S-W.’s Developmental Pediatrician. This trial court is not precluded from granting relief by reason of the Temporary Order of Justice Brown.

[180] The analysis begins with acknowledgement that the Applicant mother is the sole custodial parent. The parties agreed to her legal decision-making authority over major issues pertaining to the best interests of C.S-W. on December 30, 2016. This decision-making authority includes decisions on medical care. This Separation Agreement is binding upon the parties pursuant to Part IV of the Family Law Act, however, the court may disregard any provision of a domestic contract where, in the opinion of the court, to do so is in the best interests of a child: R.S.O. 1990, c F.3, as amended, s. 56. Furthermore, this court has parens patriae jurisdiction over children where their best interests are at risk: see for example B.(R.) v. Children’s Aid Society of Metropolitan Toronto. The bests interests test is as per s. 24 of the Children’s Law Reform Act, as reproduced above.

[181] In Ontario, in order for a child to attend school a parent must complete the prescribed program of immunization for designated diseases unless (a) the child has a medical exemption, or (b) has filed a statement of conscience or religious belief and has completed an immunization education session with a medical officer of health: Immunization of School Pupils Act, R.S.O. 1990. C. I.1, as amended. C.S-W. attends public school. The mother has obtained an exemption from immunization under the Immunization of School Pupils Act. She did not specify the grounds upon which the received this exemption.

[182] Judicial notice is the acceptance by a court of a truth of a particular fact or state of affairs, without the requirement of proof. Facts which are so notorious as not to be the subject of dispute among reasonable persons, or capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by a party: R. v. Williams, [1988] 1 S.C.R. 1128 at para. 54. Neither party brought to the court’s attention the very thorough analysis of court-requested intervention and the role of judicial notice in immunization cases, written by Justice Finlayson in the case of B.C.J.B. v. E-R.R.R., 2020 ONCJ 438, recently cited with approval in A.P. v. L.K., 2021 ONSC 150. In B.C.J.B. after conducting a thorough review of vaccine-related caselaw, the court took judicial notice of the following adjudicative facts:

1. Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society; and

2. The harm to a child, flowing from contracting a vaccine preventable disease, may even include death; at paras. 186-187.

[183] I adopt the comments of Justice Finlayson, and take judicial notice of the same adjudicative facts.

[184] In assessing the best interests of C.S-W., against the backdrop of these accepted truths, I have also considered the following:

1. The Applicant alone has made all major decisions pertaining to C.S-W.’s medical care, education, therapeutic interventions, etc. since December 30, 2015. Aside from the mother’s decision not to vaccinate C.S-W. in accordance with Ontario’s Routine Immunization Schedule, there is no compelling evidence to suggest that the Applicant mother has made any such decisions that are questionable or otherwise contrary to C.S-W.’s best interests. I accept that the mother has a stable history of making otherwise conscientious decisions in relation to C.S-W.’s health care needs.

2. There is no evidence of C.S-W.’s views and preferences on the issue of immunization. This is a good thing – it would be a reflection of poor parenting to invite a young child to opine on this complex topic.

3. The Applicant’s opposition to C.S-W.’s immunization is two-fold based upon her past personal experiences: (a) her adult son having had a serious reaction to a vaccine when he was one month old (which suggests a doubt that vaccines are safe); and (b) her own purported contraction of the measles despite immunization (which suggests a disbelief in the efficacy of vaccines in the prevention of such illnesses).

4. C.S-W.’s pediatrician highly recommends immunization for everyone. C.S-W. is not an exception to this recommendation, and she has no specific medical issues which would contraindicate vaccination against preventable diseases. At the same time, the pediatrician acknowledges that there is no medical evidence that C.S-W. urgently needs to be vaccinated. He does not have the authority to compel the mother to immunize C.S-W. I note that C.S-W.’s pediatrician was not asked to opine on a safe timetable for the administering of vaccines for a child who has not received any of the usual childhood vaccines in accordance with Ontario’s Routine Immunization Schedule.

5. The mother does not have a concrete plan regarding C.S-W.’s immunizations in future. She simply states that she does not wish to vaccinate C.S-W. at this time and advises that, if C.S-W.’s health situation changes, she will reconsider. It is unknown what such circumstances would cause the mother to reconsider; if C.S-W. contracts a deadly childhood illness, it will be too late to reconsider vaccination as an intervention. The mother’s current plan, or lack thereof, must be considered in the context of her ability and willingness to provide C.S-W. with the necessaries of life. In my view, providing a child with an increased likelihood of basic survival, in this case in the form of decreased risk of contracting preventable life-threatening illnesses and diseases, ought properly to be considered as a factor under s. 24(2)(d) of the Children’s Law Reform Act.

[185] In my view, the best interests of C.S-W., and the potential harm that could be caused to her in further delaying this potentially life-saving form of preventative medicine outweigh the deference that should be given to the mother’s decision-making authority and anecdotal objections. I note that the mothers two noted objections are directly countered by the judicial notice that has been taken: routine vaccinations are safe and effective.

[186] I am not prepared to fully remove the mother from further participation and involvement in this important aspect of C.S-W.’s medical care. The process of immunizing C.S-W. should begin forthwith, but with the following caution: as in A.P. v. L.K., there is no evidence before the court as to the mechanics of commencing the routine immunization schedule for a child who is six-years delayed in starting the process. C.S-W.’s future immunization schedule must be devised in consideration of the pacing and dosage recommended by C.S-W.’s Family Physician and/or Developmental Pediatrician. It appears to the court that the mother has a well-established and familiar rapport with C.S-W.’s current health care professionals. I am hopeful that the mother will work collaboratively with this medical team to ensure administration of C.S-W.’s routine vaccinations in a safe and efficient manner. The mother shall share the details of C.S-W.’s immunization plan with the father through Our Family Wizard, and the father shall be entitled to consult with and receive information from C.S-W.’s medical team. In the event that C.S-W.’s immunization schedule has not progressed satisfactorily, in accordance with the recommendations of C.S-W.’s medical team by August 31, 2022, the father may initiate a review of this decision and may seek sole decision-making authority over C.S-W.’s medical care.

D. Issue #4: Homeopathic Treatments

[187] There is insufficient evidence before the court to conclude that the mother has subjected C.S-W. to homeopathic treatments that have been contrary to her best interests or have in any way caused her harm. I see no basis upon which to interfere with the Applicant mother’s decision-making capacity in this regard.

[188] The father’s request for an Order restricting the mother from engaging in any homeopathic treatments for the child is dismissed.

ORDER

[189] For clarity and ease of reference of the parties there shall be a Final Order to go which confirms and incorporates the custodial terms agreed to between the parties pursuant to the Separation Agreement dated December 30, 2016. Furthermore, the (1) the Final Order of the Honourable Mr. Justice R. Nightingale dated June 16, 2017, and (2) the separate Restraining Order of the Honourable Mr. Justice R. Nightingale dated June 16, 2017, shall both be terminated and all parenting issues shall be governed by the following Final Order of the court:

Custody

1. The terms of custody contained within the parties’ Separation Agreement dated December 30, 2016 shall remain in full force and effect. Specifically:

a. The Applicant mother continues to have sole custody of the child C.S-W. born March 1, 2015;

b. The child continues to reside primarily with the Applicant mother;

c. The Applicant mother may remove the child from the province and Canada without the Respondent father’s written consent; and

d. The Applicant mother may apply for and obtain a passport for the child without the consent or signature of the Respondent father.

Access Schedule

2. The Respondent father shall have unsupervised access to the child as follows:

a. Commencing immediately, C.S-W. shall be in the care of the Respondent father every Tuesday and Thursday from 3:25 p.m. until 7:00 p.m., and every Sunday from 10:00 a.m. until 7:00 p.m. During the Respondent father’s first three unsupervised access visits with the child, the Respondent’s partner, L., shall not be present;

b. Commencing May 1, 2021, C.S-W. shall be in the care of the Respondent father every Tuesday and Thursday from 3:25 p.m. until 7:00 p.m. and on alternating weekends from 10:00 a.m. on Saturday morning until 7:00 p.m. on Sunday evening;

c. Commencing September 1, 2021, C.S-W. shall be in the care of the Respondent father every Tuesday and Thursday from 3:25 p.m. until 7:00 p.m. and on alternating weekends from Friday at 3:25 p.m. until Sunday at 7:00 p.m. In the event that the father’s access weekend falls upon a long weekend due to a Statutory Holiday or a Professional Activity Day from school, the father’s access weekend shall be extended such that it shall commence on Thursday at 3:25 (if Friday is the school holiday) and/or ends on Monday at 7:00 p.m. (if Monday is the school holiday).

COVID-19: Special Provisions

3. In the event that C.S-W. is required to attend school remotely, due to the COVID-19 health crisis, C.S-W.’s Tuesday and Thursday time in the care of the Respondent father shall be extended to commence at 8:30 a.m. and end at 7:00 p.m.

4. The Respondent father shall contact C.S-W.’s teacher(s) in advance of such weekday access to confirm that he has the necessary technology and access to applicable learning platforms to assist C.S-W. in her remote learning, if applicable.

Summer Holidays

5. During C.S-W.’s summer vacation from school in 2021, the regular access schedule outlined above shall continue to apply save and except that:

a. C.S-W.’s weekday time with the Respondent father on Tuesdays and Thursdays shall commence at 10:00 a.m. and end at 7:00 p.m. in the evening.

b. The Respondent father shall have eight days of uninterrupted vacation time with C.S-W. in August 2021, on dates selected by him, and he shall be permitted to travel with the child to Eastern Canada during this vacation period, without supervision.

c. The Applicant mother may have three weeks of uninterrupted vacation time with C.S-W. (for purposes of travel) during the 2021 summer months as follows:

i. The mother’s selected vacation period shall commence at 7:00 p.m. on a Thursday which precedes her own parenting weekend, and shall end at 10:00 a.m. on Saturday of the father’s second parenting weekend (i.e. only one weekend of the father’s parenting time will be missed);

ii. The mother’s selected vacation shall not interfere with the father’s August 2021 travel plans as permitted above.

d. The Respondent father shall advise the Applicant mother of his intended week of vacation with the child by May 1, 2021. The Applicant mother shall advise the Respondent father of her intended weeks of summer vacation with the child by May 15, 2021.

e. Unless otherwise agreed between the parties there shall be no make-up time for any missed visits or parenting time with C.S-W. resulting from either party’s vacation.

6. Commencing in July 2022, and during C.S-W.’s subsequent summer vacations from school, the regular access schedule shall continue to apply save and except that:

a. C.S-W.’s regular weekday time with the Respondent father on Tuesdays and Thursdays shall commence at 10:00 a.m. and end at 7:00 p.m.

b. The Respondent father shall have two non-consecutive weeks of vacation with C.S-W., each consisting of seven uninterrupted days of vacation time with C.S-W. each summer as follows:

i. The father’s selected vacation period shall commence at 3:25 p.m. on the Friday of his own scheduled parenting weekend and shall end at 3:25 p.m. on the following Friday.

c. The Applicant mother may have three weeks of uninterrupted vacation time with C.S-W. (for purposes of travel) during the summer months as follows:

i. The mother’s selected vacation period shall commence at 7:00 p.m. on a Thursday which precedes her own parenting weekend, and shall end at 3:25 p.m. on the Friday of the father’s second parenting weekend (i.e. only one weekend of the father’s parenting time will be missed).

d. The Applicant mother shall have first choice as to vacation weeks in even-numbered years and the Respondent father shall have first choice as to vacation weeks in odd-numbered years.

e. Unless otherwise agreed between the parties there shall be no make-up time for any missed visits or patenting time with C.S-W. resulting from either party’s vacation.

Miscellaneous Holidays

7. During the Christmas holidays C.S-W. shall spend time with each of the parties as follows:

a. During odd-numbered years, C.S-W. will be in the care of the Applicant mother from 12:00 noon on December 22^nd until 12:00 noon on December 25^th, and in the care of the Respondent father from 12:00 noon on December 25^th until 12:00 noon on December 28^th;

b. During even-numbered years, C.S-W. will be in the care of the Respondent father from 12:00 noon on December 22^nd until 12:00 noon on December 25^th, and in the care of the Applicant mother from 12:00 noon on December 25^th until 12:00 noon on December 28^th; and

c. Unless otherwise agreed, the balance of C.S-W.’s school holidays shall follow the regular schedule.

8. During C.S-W.’s 2021 Spring Break from school the parties will follow the regular access schedule as per above, save and except that the Respondent father’s weekday time with C.S-W. will commence at 10:00 a.m.[^15]

9. In subsequent years, the Applicant mother may travel with the child over the child’s Spring Break from school in odd-numbered years and the Respondent father may travel with the child over the child’s Spring Break from school in even-numbered years. The period of permitted travel shall include 7 consecutive days and shall not include the other parent’s regularly scheduled weekend.

10. C.S-W. will always spend Mother’s Day in the care of the Applicant mother, from 10:00 a.m. to 7:00 p.m., regardless of the regular access schedule.

11. C.S-W. will always spend Father’s Day in the care of the Respondent father, from 10:00 a.m. to 7:00 p.m., regardless of the regular access schedule.

12. All other holidays shall follow the regular access schedule as ordered above.

Travel

13. If either party intends to travel with the child, outside of Ontario or Canada, he or shall provide written notice to the other parent, a minimum of 30 days’ in advance of the travel. The written notice shall include specifics as to flight information, travel itinerary, address of accommodations, and emergency contact information.

14. If either party requests written travel authorization from the other parent, confirming permitted travel in accordance with the paragraphs above, the non-travelling parent shall provide such written consent within 14 days of the request for same. In the event that the travelling parent requests that the travel consent be notarized, that party shall be responsible for the cost of the notarization.

15. The parties shall both pre-arrange and facilitate one video call per week (of approximately 30 minutes’ duration) between the child and the non-travelling parent during any period of travel with the child.

Access Exchanges

16. All access exchanges shall take place at [the child’s school].

17. When C.S-W. is physically attending school, the Respondent father shall pick up C.S-W. directly from the school at the commencement of his access period, and the Applicant mother shall not attend.

18. Access exchanges which do not take place at the natural end time of C.S-W.’s school day shall take place in the playground or parking lot of [the child’s school].

19. There shall be no contact or communication whatsoever between the Applicant and Respondent at access exchanges, and the parties and/or their agents shall maintain a physical distance of no less than 10 metres at all times.

20. In the event that the Respondent father is more than ten minutes late for an access exchange at the commencement of his access period, his visit will be cancelled.

21. In the event that the Applicant mother is late for an access exchange at the commencement of the father’s access period, C.S-W.’s time with her father shall be extended for that visit at a 2:1 ratio. For example, if the access exchange occurs 30 minutes later than ordered herein, the father’s parenting time for that visit will be extended by 1 hour.

22. In the event that the Respondent father is late in returning the child at the end of his scheduled access period, C.S-W.’s time with the Respondent father at the next visit shall be reduced at a 2:1 ratio. For example, if the access exchange occurs 30 minutes later than ordered herein, the father’s parenting time for the next visit will be delayed by 1 hour.

Make-Up Time

23. Unless otherwise agreed, there shall be no make-up time for access visits missed by the Respondent father due to his own personal commitments, travel, etc.

24. The Applicant mother shall not cancel any access visits between the Respondent father and C.S-W. unless she first produces a doctor’s note which confirms that C.S-W. is too sick to travel between residences. In such circumstances the Respondent and C.S-W. will be granted equivalent make-up time for any missed visits.

Therapy

25. Both parties shall be involved in any mental health counselling or therapy arranged for the child. Specifically, the selected therapist shall be requested to:

a. Review this court’s decision pertaining to the parenting of C.S-W.;

b. Discuss important information pertaining to C.S-W.’s mental health with both parents;

c. Receive and consider information from both parents;

d. To the extent possible, arrange for therapeutic sessions with C.S-W. on both parties’ parenting time (preferably on an alternating basis); and

e. If advisable, refer C.S-W. for further support by a social worker or therapist experienced in the counselling of children in situations of high-conflict parenting.

Access to Information

26. The Respondent father’s right of access includes a right of access to information and records pertaining to the child from all third-party care providers, including but not limited to doctors, dentists, teachers, therapists, etc. The Applicant mother’s consent for the release of such information by third parties is not required.

Contact and Communication

27. The parties shall forthwith sign up for an Our Family Wizard (“OFW”) account. The Respondent father shall commence the registration process, and the Applicant shall cooperate in the creation of the account.

28. The cost of the parties’ OFW account shall be a s. 7 expense and shared proportionately between the parties. The Respondent father shall fund the creation of the account at first instance and shall reimbursed the Applicant’s proportionate contribution to same following the release of this court’s decision on the financial issues.

29. Save and except in the event of an emergency, or as otherwise specifically provided in this Order, all communications between the parties shall occur through the OFW Platform.

30. Communications between the parties on the OFW platform shall follow the following parameters:

a. Communications shall pertain only to parenting issues.

b. The parties shall exchange important information relating to C.S-W.’s welfare, including her education and schoolwork, health and dental care, counselling, etc.

c. The Applicant mother shall post C.S-W.’s scheduled events and appointments in the OFW calendar.

d. The Applicant mother shall post the names and contact information for C.S-W.’s third-party care providers on the OFW platform.

e. All communications between the parties shall be brief, informative, child-centered, and respectful.

f. Each party shall be limited to 3 OFW ‘messages’ to the other parent per week.

g. All requests for contribution to C.S-W.’s s. 7 expenses and confirmation of payment, shall occur through the OFW platform.

h. Neither party shall permit any third-party, including C.S-W., to access the information shared between them on the OFW platform.

31. In the event of an emergency only, the parties may communicate by way telephone or by text message. There shall be no other contact or communication between the parties.

32. Unless pursuant to an express written invitation through OFW, neither party shall attend within 50 metres of:

a. The other party’s known residence;

b. Any other real property owned by the other party;

c. The other party’s place of education or employment.

33. In the event of unexpected contact, or incidental contact between the parties at C.S-W.’s special events, the parties shall at all times maintain a physical distance of 10 metres from one another. The parties shall encourage all associated third-party friends and family members to maintain the same physical distance at C.S-W.’s events and activities.

34. Neither party shall photograph or videotape the other party or his or her associated friends and family members (excepting C.S-W.) without that person’s explicit consent.

35. Neither party shall denigrate the other parent, nor permit any other third party to do so, in the presence of C.S-W.

36. Neither party shall discuss parenting issues which arise between the parties with C.S-W., nor shall they request C.S-W. to communicate messages between them.

C.S-W.’s Activities and Events

37. Unless otherwise agreed between the parties through the OFW platform, each party may schedule activities and events for C.S-W. on their own parenting time only.

38. Each party may attend C.S-W.’s regular activities and events on their own parenting time only.

39. Both parties may attend at C.S-W.’s special events, which may include graduations, awards ceremonies, recitals or end of year productions and presentations, championship games, etc., regardless of parenting time, but both parties shall at all times ensure a physical distance between them in accordance with the terms of this order.

40. Both parents may schedule their own parent-teacher interviews.

C.S-W.’s Official Documents

41. The Applicant mother will maintain physical possession of C.S-W.’s official documents, including but not limited to her passport, health card, birth certificate, etc. The Applicant mother shall within 14 days provide the Respondent father with copies of these official documents through OFW.

42. The Applicant mother will provide the Respondent father with the child’s Canadian passport a minimum of 14 days in advance of any scheduled international travel with the child (in accordance with the terms of this Order). The child’s passport will be returned to the Applicant mother immediately upon the return of the child into her care.

43. The Applicant mother shall be responsible for renewing C.S-W.’s official documents as required. The Respondent father will cooperate with all requests to renew official documents if requested by the Applicant, and shall reimburse the Applicant mother for one-half of the cost of maintaining these documents in good standing.

Mobility

44. In the event that the Applicant mother proposes to change her residence to anywhere within the jurisdiction of Hamilton, Halton, Peel or Toronto, she shall provide the Respondent father with the new address and intended date of relocation a minimum of 30 days’ prior to the move.

45. In the event that the Applicant mother seeks to relocate the primary residence of the child outside of the jurisdictions of Hamilton, Halton, Peel or Toronto she shall provide the Respondent father with a minimum of 90 days’ written notice of her intention to relocate and such written notice shall include:

a. The municipal address of the child’s proposed new residence;

b. The name of the child’s proposed new school, and details of any significant changes in programming (e.g. religious, language, funding, etc.);

c. The Applicant’s proposal as to how to reduce the impact of the proposed relocation on the relationship between the child and the Respondent father, including any proposed revisions to the access schedule and/or support arrangement.

Immunizations

46. The Applicant mother shall forthwith devise and implement a schedule for C.S-W.’s routine immunizations (as recommended by Public Health Ontario) with C.S-W.’s current health care practitioners.

47. The mother shall share all relevant details of C.S-W.’s immunization plan with the Respondent father through Our Family Wizard.

48. The Respondent father shall be entitled to consult with and receive information from C.S-W.’s health care providers in relation to her immunization plan.

49. In the event that C.S-W.’s immunization schedule has not progressed satisfactorily by August 31, 2022, in accordance with the pacing and dosage recommendations made by C.S-W.’s health care professionals, the father may initiate a review of this decision and seek sole decision-making authority over all aspects of C.S-W.’s medical care.

Enforcement

50. Neither party shall initiate a Motion to Change the terms of this Final Order prior to August 31, 2022 without leave of the court. Any motion for leave to bring a Motion to Change shall be scheduled before Justice L. Bale, if sitting.

51. If any motion pertaining to the enforcement of the terms of this parenting order is commenced prior to August 31, 2022, that motion shall be scheduled before Justice L. Bale, if sitting.

52. If any motion pertaining to the relocation of the child is commenced prior to August 31, 2022, that motion shall be scheduled before Justice L. Bale, if sitting.

53. The clerk of the court is requested to forward a copy of this decision to the Children’s Aid Society of Hamilton, attn: Ms. S. Bernacki.

Costs

54. The issue of how to pursue any request for costs arising from this litigation will be addressed in this court’s subsequent decision regarding financial issues when released.

Bale J.

Released: February 19, 2021

[^1]: The parties do not agree as to C.S-W.’s actual date of birth. This issue will be discussed more fulsomely below. [^2]: The parties dispute the nature of their relationship during that 6-month time period. The issue of the nature of parties’ cohabitation will be explored more fulsomely in my subsequent decision on the financial issues. However, for purposes of determination of the parenting issues, it is sufficient to note that for the last six months of 2017 the parties were both generally residing in the family residence with the child. [^3]: The Applicant has, in the course of this litigation, sought to set aside the financial terms of this domestic contract. The court’s decision on this issue is under reserve. [^4]: The Respondent’s Amended Motion to Change also included a request for variation of child support. [^5]: The mother also brought her own request for variation of child and spousal support. [^6]: As per the endorsement of Pazaratz J. dated May 22, 2019, with the consent of both parties. [^7]: As per the endorsement of Lafrenière J. dated July 2, 2019, as agreed through onsite mediation. [^8]: As per the endorsements of Pazaratz J. dated December 4, 2019 (on consent), and Lafrenière J. dated January 17, 2020, as agreed through onsite mediation. [^9]: The court was advised by the Respondent father in closing submissions that this criminal charge was withdrawn at the request of the Crown following the close of evidence in these proceedings. This information was neither confirmed nor denied by the Applicant mother in her submissions. [^10]: I note that at the time of the release of this decision, the province has permitted children to return to schools for in-person learning, potentially rendering this issue academic in nature. [^11]: In the Applicant’s viva voce evidence this event was said to have occurred in November 2014. [^12]: The father also cites this decision in support of the Benotto J.’s sage critique of the use of highly charged-terminology, “custody” and “access”, in family law proceedings. The Respondent further refers the court to the case of Ascani v. Robert, 2015 ONSC 4585. However, as confirmed at the outset of this proceeding, the issue of decision-making authority, is not an issue before this court for determination. Further, until the Moving Ontario Family Law Forward Act, 2020 comes into force, this court’s jurisdiction to make a substantive parenting order continues to be guided by the terminology contained within the Children’s Law Reform Act in its current form. [^13]: Note: This is not intended to be an exhaustive list of inconsistencies in the Applicant’s evidence. Given the nature of the Applicant’s testimony and the history of this file it would be an impossible task to trace all of the changes in narrative. This list is but a sample of the problems noted in each category of concern. [^14]: The evident happiness on the child’s face on May 4, 2019, as depicted in a photograph taken by SAC staff, on reunification of the father with C.S-W. after a nine-month period without access, is compelling. [^15]: Note: Due to COVID-19 C.S-W.’s Spring Break has been rescheduled from March to April 12-16, 2021.