COURT FILE NO.: FS-19-010594

DATE: 20210311

ONTARIO

SUPERIOR COURT OF JUSTICE

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87 …

Order excluding media representatives or prohibiting publication

(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

Prohibition re identifying child

(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Prohibition re identifying person charged

(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 …

Offences re publication

(3) A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Contents

The Trial 3

Closing Submissions in writing. 5

Positions of the parties. 6

Background. 6

Witnesses at the trial other than about the child protection file. 28

Jewish Family and Child Services file and evidence. 30

School reports. 36

Draft orders. 37

Divorce Act as amended. 44

Analysis: Ms. D.’s mental health.. 45

(a) The evidence. 45

(b) The relationship between Mr. S. and Ms. D. 49

(c) JF&CS.. 51

(d) Conclusion with respect to Ms. D.’s mental health.. 51

Analysis: Principles of the parenting plan.. 53

Conclusion: Decision-making. 59

Analysis: Comments on the parenting order. 60

Analysis: Child Support. 63

(a) Mr. S.’s income and disclosure of financial information.. 64

(b) commencement date of child support payments. 66

(c) s. 7 special and extraordinary expenses. 67

Publication ban.. 68

Costs. 68

Divorce. 69

PURSUANT TO THE DIVORCE ACT S.C. 2019, C. 16, S.12, FINAL ORDER TO GO AS FOLLOWS: 69

March to June 2021. 75

Child Support. 76

BETWEEN:

Y.M.S.

Applicant

– and –

M.D.

Respondent

Applicant, self-represented

Paul D. Slan and Annie Yektaeian, counsel for the Respondent

HEARD: November 16, 17, 18, 19, 20, 23 and 25, 2020 and submissions in writing

REASONS FOR DECISION

Kiteley J.

[1] This trial concerned parenting and support arrangements for the parties’ nine year old child, E.S.

The Trial

[2] The trial was conducted by videoconference. Mr. S. gave evidence in examination-in-chief, in cross-examination and in response to my questions. With the consent of Ms. D., he had obtained the contents of the file of the Jewish Family & Child Services Agency (JF&CS) over the period 2012 to March 2020. Because Ms. D. did not agree that the contents of the file were admissible as evidence without proof by relevant witnesses, Mr. S. arranged for witnesses from the JF&CS to attend namely Michelle Cukier, Michelle Elsner, Eden Filonov and Cilla Archa. In addition, he called a friend to speak about her acquaintance with Mr. S. and Ms. D.

[3] Ms. D. gave evidence in examination-in-chief, cross-examination and in response to my questions. Mr. Slan also called as witnesses two counsellors who had been consulted by Ms. D., namely E.S-H. and J.S.

[4] In his initial list of witnesses for the Trial Management Conference on September 9, 2020, Mr. Slan had included C-J.P. who is E.S.’s therapist. At the Trial Management Conference on October 26, 2020, Mr. Slan advised the court that he did not intend to call her and it was left that Mr. S. might call her. For reasons he explained about not being able to communicate effectively with her, Mr. S. did not call her as a witness. In the expectation that she would give evidence, she had written a letter dated August 27, 2020 that contained her assessment of E.S. I did not read that letter and it was deleted from the Brief.

[5] Dr. M.L. is E.S.’s psychiatrist. In the Trial Management Endorsement dated September 9, 2020, he is listed as a witness to be called on behalf of Ms. D. Mr. Slan reported as to the arrangements he had made to secure Dr. M.L.’s attendance at the trial, but Dr. M.L. did not participate. The Trial Scheduling Endorsement Form indicates that “by naming a witness below, the party undertakes to make the witness available to the other party without summons even if the party decides not to call the witness”.

[6] Mr. Slan had served a letter dated September 23, 2020 from Dr. M.L. Understandably, Mr. S. did not agree that Dr. M.L.’s letter (or other communications from Dr. M.L.) would be received as evidence in his absence.

[7] Given the direction in the Trial Scheduling Endorsement, Mr. S. was entitled to rely on Ms. D.’s commitment to make Dr. M.L. available. He submitted that his testimony would have shed light on E.S.’s condition and needs. If Mr. S. had had a lawyer, he might have asked that the court draw a “negative inference” against Ms. D. for her failure to ensure the attendance of a witness. In other words, he might have asked that I infer from his non-attendance that Dr. M.L.’s evidence would not have been helpful to Ms. D. and may, in fact, have been harmful to her case.

[8] In the case of a participant expert witness involved in the care of the child in circumstances in which Mr. Slan provided information as to his unsuccessful attempts to reach him, I will not draw that negative inference. I am satisfied with counsel’s effort to ensure that Dr. M.L. participated. It is not in the child’s best interest to draw a negative inference.

[9] In the absence of Dr. M.L., the letter from him dated September 23, 2020 was deleted from Ms. D.’s exhibit brief. I did not read that letter. In my ruling dated November 17, 2020 with respect to the admissibility of some of the contents of Mr. S.’s Evidence Brief, I allowed Mr. S.’s email communications to Dr. M.L. but not Dr. M.L.’s responses.

[10] Mr. S. had filed a Trial Record and an Evidence Brief in advance. At the outset of the trial, his Evidence Brief was marked Exhibit A. It consisted of over 700 pages of which approximately 400 were the contents of the file of the JF&CS agency that Mr. S. had obtained in June 2020. In a ruling dated November 17, I ordered that the documents authored by and identified by each of the four JF&CS witnesses were admissible. During the trial, various witnesses were asked to comment on some of the contents of the Evidence Brief.

[11] At my request, after the trial finished, Ms. Yektaeien communicated with Mr. S. to identify those pages of his Evidence Brief to which no witness made reference on the basis that they would also be deleted. After obtaining Mr. S.’s input, Ms. Yektaeien sent an email to the Trial Co-ordinator dated November 29, 2020 in which she listed the pages that the parties agreed would be removed. She also identified 4 pages that Mr. S. was opposed to deletion. I have reviewed my own notes and I am satisfied that pages 56-57 are not to be deleted.

[12] In the Trial Management Conference, the judge had allocated 7.5 days for the hearing, assuming closing submissions would be in writing. In order to conclude the hearing in the allotted time, it was not possible to read the entire email, text message, letter, or contact log while the witness was giving evidence. I assured Mr. S. that before writing these reasons for decision, I would read all to which any witness referred. I have done so.

[13] Ms. D. filed an Exhibit Brief that included two versions of a Statement of Agreed Facts. Mr. S. had objected to some aspects of the statement and Ms. D. had made modifications. Mr. S. had not formally accepted the changes and it was deleted from the Exhibit Brief.

[14] In this trial, both parties referred to hundreds of pages of emails and text messages between them and hundred of pages of emails and contact logs in the JF&CS file. In these reasons, I do not intend to refer in detail to all of that documentation. I have selected or excerpted those I consider necessary.

[15] The trial was conducted remotely. The technology worked consistently and there were no audio or visual interruptions with the exception of the afternoon of November 19. Mr. S. had called Ms. Archa as a witness and she had responded to his questions by identifying pages from the JF&CS file. Mr. Slan was asking questions when Mr. S. disappeared. The Registrar spoke with him by telephone and he re-joined using the telephone without video for the few minutes remaining in her evidence. Mr. S. said he was content to proceed in that fashion.

[16] From the Office of the Official Guardian I received a Voice of the Child Report dated November 19, 2019.

Closing Submissions in writing

[17] At the conclusion of the evidence on November 25, I directed Mr. S. to make his written closing submissions by December 8 and Mr. Slan to make his responding submissions by December 18. I did not include a direction that Mr. S. provide reply submissions, but he did so. That led to email communication directly to the court both by Mr. Slan and Mr. S. I directed the Trial Co-ordinator to inform the parties that I had received and read Mr. S.’s reply submissions.

[18] This was a case where Mr. S. and Ms. D. both requested orders. To allow for reply submissions from Mr. S., it would have been necessary to allow for sur-reply submissions from Ms. D. I did not consider it necessary to do so. In her responding submissions, Ms. D. pointed out the many statements in Mr. S.’s submissions for which he did not disclose a source in the evidence. In his reply submissions, Mr. S. supplied some references. He also repeated some of what was in his original submissions. In my view, there was nothing in his reply submissions that required that Ms. D. be given the opportunity to make further submissions. Mr. S. ought not to have made those reply submissions but no prejudice to Ms. D. arose because of it.

Positions of the parties

[19] There are fundamental differences between the parents as to E.S.’s needs and as to the ability and willingness of each parent to care for and meet the needs of the child. In summary:

(a) Mr. S. takes the position that, in 2012, Ms. D. was diagnosed with Asperger’s, Obsessive Compulsive Disorder (OCD), then Obsessive Compulsive Personality Disorder (OCPD) and that she has continued to suffer from those serious mental health illnesses that required professional intervention that Ms. D. never accessed. As a result of that diagnosis, he says she is incapable of identifying E.S.’s needs and responding to them. He believes that Ms. D. exaggerates E.S.’s problems. He said that, while not 100%, “most of E.S.’s problems are attributable to the surrounding created by her mother”. On the other hand, he says he is more analytical, more questioning of professionals, and more capable of providing a stable and organized home in which E.S. will thrive.

(b) Ms. D. takes the position that she has always been the primary decision-maker with respect to E.S.’s health, education and religious upbringing and she should continue to do so. While she acknowledges that in 2012 a doctor used diagnostic terms such as OCD and OCPD and Asperger’s, she does not accept that she was formally diagnosed with any of them. She said that she now understands that she does not suffer from a mental condition. She takes the position that Mr. S. has created such conflict between the parents, including by not supporting her efforts or collaborating with her to respond to E.S.’s needs, that it is creating anxiety on E.S.’s part. Other than the issue of conflict, she has not significantly challenged Mr. S.’s parenting.

(c) The parents agree that they cannot share decision-making and that one parent or the other must be responsible for non-day-to-day decisions.

Background

[20] Mr. S. was born in Israel in 1968. He lived in Belgium for several years and then returned to Israel at age 18. He postponed his military service to attend university in a mathematics program. He summarized his education and military training and some of the challenges he faced. He left university without completing his degree and he became a designer in his brother’s jewellery business.

[21] Ms. D. was born in 1970 in Jerusalem. She has an engineering degree from a university in Israel and had worked for about seven years as a technology engineer in hardware systems. She left engineering and attended the academy where she obtained a Bachelor of Music with a goal of becoming an opera singer.

[22] The parties met in 2004 or 2005 at which time she was at the academy and he was in the jewellery business. They married on March 28, 2006 in Israel.

[23] The parties emigrated to Canada in 2007. Mr. S. became involved in the jewellery business, wholesale in the United States market and retail in Canada, such as the One of a Kind show. Ms. D. made efforts to pursue her music career including being a member of a professional choir at her synagogue and teaching.

[24] The parties do not have any family in Canada. Their extended families live in Israel, Belgium, Holland and the United Kingdom.

[25] There are events or periods of time that anchored much of the evidence:

(a) between E.S.’s birth in May 2011 and August 2012 when her parents separated;

(b) between the separation in August 2012 and the end of December 2014;

(c) between early 2015 when correspondence was exchanged as to the contents of a separation agreement and early 2017;

(d) between the “library incident” in late March 2017 and the involvement of the police and the Jewish Family and Child Services to November 2017 when JF&CS closed the file;

(e) 2018;

(f) Mr. S.’s report to the JF&CS on January 14, 2019 with respect to his concerns about E.S. and Ms. D.’s parenting;

(g) the Flex psychological assessment testing of E.S. in August 2019 and the report dated October 22, 2019;

(h) the Voice of the Child Report dated November 17, 2019;

(i) the “garage incident” in February 2020;

(j) the consent endorsement June 19, 2020 to trial.

(a) Between E.S.’s birth in May 20, 2011 and August 2012 when her parents separated

[26] Mr. S. focuses on Ms. D.’s mental health. He said that before E.S.’s birth, Ms. D. had “fits of rage” and “depression”. He said she was “very dysfunctional”, “obsessive”, and an “extreme perfectionist”. He gave examples of her perfectionism as to how she cleaned the house and how she did the laundry. He said that in “the background of the dysfunction at home”, he suggested that Ms. D. go back to engineering but she was not agreeable.

[27] Ms. D. agreed that their relationship was dysfunctional. After she was pregnant, she said Mr. S. told her he had been thinking about divorce before she got pregnant and told her that she had to “get fixed”. She said it was a very confusing time.

[28] After a period of infertility challenges, E.S. was born May 30, 2011. Mr. S. said that Ms. D. exhibited “more rage and dysfunctionality”. Her mother came to Canada briefly. Ms. D. said she had challenges with breastfeeding. She decided that E.S. had thrush, which he described as a “fixation and obsessiveness”. He said that her “rages were very bad”.

[29] Ms. D. agreed that her emotional well-being was affected by the birth of E.S. She said she had post partem thyroiditis that affected her emotional state. She agreed that the relationship between her and Mr. S. continued to be dysfunctional and was very stressful. She had challenges with breastfeeding and was experiencing pain.

[30] Mr. S. said that, at his insistence, Ms. D. eventually agreed to go to the doctor. Mr. S., Ms. D. and E.S. went to Women’s College Hospital where he said they met three psychiatrists. He said that Ms. D. was examined for six or seven hours by, among others, the head of the department. Mr. S. said that they left the hospital with the doctors having diagnosed Ms. D. with Asperger Syndrome and Obsessive Compulsive Disorder. After a few additional visits to the hospital by Ms. D., Mr. S. said that the OCD diagnosis was modified to be OCPD. Mr. S. said the difference was that people with OCPD do not have insight.

[31] This “diagnosis” informs Mr. S.’s belief and opinion as to Ms. D.’s mental health status and his insistence that she is not able to care for E.S. In his Evidence Brief, Mr. S. provided a six-page excerpt called Asperger Syndrome Fact Sheet apparently prepared by a psychologist and a two page summary from the International OCD Foundation that describes Obsessive Compulsive Personality Disorder (OCPD). In my ruling dated November 17, 2010 I directed that they were not admissible and would be removed from his Brief.

[32] Mr. S. said that the doctor at Women’s College had prescribed medication but Ms. D. refused to take it because she was breastfeeding. He said that he became “completely frustrated”. He was “walking on egg shells” with her “rage and obsession”. He cancelled (jewellery) shows to be present with E.S. He looked after E.S. three days a week, Ms. D. looked after her 3 days a week and they had a nanny one day a week. He became concerned about Ms. D.’s care of E.S. and gave an example of what he considered an inappropriate and unsafe response when E.S. vomited while in her mother’s care. He described Ms. D.’s “fits of rage” as acting like a three year old on the floor, and slamming doors.

[33] In her examination-in-chief Ms. D. acknowledged that a physician at Women’s College Hospital had made a “verbal diagnosis” of Asperger’s and OCD. She said the doctor raised Asperger’s as an “option”. She said that after she went home and thought about it, she went back to the hospital because she “felt it didn’t really add up”.

[34] Before the separation, Ms. D. said she had made inquiries about a marriage counsellor. They met with a psychiatrist Dr. Khorassany who was a specialist in communication. She also met with D.G., a counsellor at the Jewish Family and Child Services with whom she consulted for five years.

[35] Mr. S. said that as a result of what he understood from the psychiatrist, that he ought not to stay in the home. He said he had the impression that he could trigger Ms. D. into fits of rage and slamming doors. Having slept in the basement for three months, he told the psychiatrist that Ms. D. would be better without him.

(b) Between the separation in August 2012 and the end of December 2014

[36] Mr. S. bought a house in Oshawa and he moved there in August 2012. Ms. D. remained in the home in the Don Mills neighbourhood. Neither parent provided the distance between their homes but based on an email exchange on May 13 and 14, 2015, I infer that the distance between their homes is approximately 50 km and, outside of rush hour, takes about 30 minutes.

[37] E.S. was 14 months old and was still breast-feeding. It is unclear from the evidence what the arrangements were for Mr. S. to maintain his relationship with E.S. It is not crucial to the outcome so I need not be more precise. It appears he saw E.S. initially in her home two or three times a week. He said was able to take her away with him three days a week and he accompanied Ms. D. to doctors’ appointments. By at least the fall of 2013, E.S. was staying overnight at her father’s house.

[38] Mr. S. said that they continued to consult with Dr. Khorassany who he said suggested strategies for him to deal with Ms. D.’s rages and what he described as her “perception of reality”. Mr. S. said that everything he said was perceived by Ms. D. as criticism. I overruled Mr. Slan’s objection to that evidence on the basis that Mr. S. asserted that, as the evidence would disclose, Ms. D. insists that he always criticized her and he wanted to disagree with that description. He insisted that he did not criticize her but was trying to “manage their communications”.

[39] Mr. S. said that Ms. D. was distraught and was writing 5-page emails once or twice a week. He said he had deleted most of the emails until 2015 when he decided he should keep them. Mr. S. sent a letter to Ms. D. dated September 7, 2012 that he translated from Hebrew into English. In that letter, he described his “values”, he informed her what he intended to do about child support, and he told her she should start working. Under the heading of “Communication” he wrote that he did not want to have any conversation with her except on matters related to E.S. and that he did not want to analyze their relationship and determine blame. He also wrote that he wished that she “would find the power to set sail and steer your life into more productive territories”. He listed the dates in September, October, November, December and January that he wanted to care for E.S. which he said averaged three days a week, with more in October when his mother was visiting.

[40] Mr. S. referred to an email from him to Ms. D. dated May 20, 2013 in which he described an incident that had happened at her door when he had picked up E.S. He described her yelling at him and having thrown a book at him. His email included 8 numbered points of description and 6 numbered points of his comments. Ms. D. responded by saying that she had not meant to hit him, only to throw the book into his car but he had caught it in his hand. She said she would respond on another day with respect to the other points raised in his message. I was not given her response.

[41] Ms. D. said that after investigating and making inquiries, in September 2014, Ms. D. started E.S. at a nursery school. She said that Mr. S. went for a visit in November or December and he insisted that she take E.S. out of that nursery school.

[42] Mr. S. referred to an email from Ms. D. dated December 9, 2014 at 12:41 a.m. He said that while E.S. was a toddler, Ms. D. would “go on a tangent in a second” and “get in a rage” with her. In her message she appeared to respond to an earlier message from him about the nursery school and about her yelling at E.S. She wrote that Mr. S. should “get out of [his] mind that [E.S. is] in danger of emotional trauma from me” and she gave her perspective on his personality and his parenting. She wrote that “it is a rare occasion when it happened, and I apologize immediately and tell E.S. that it’s not right to yell”. In his response dated December 9, 2014 at 3:03 a.m., he noted, among other things, that E.S. had told him three months earlier that she would rather stay with him than go back to her mother because her “mother yelled at her during the night”. In his evidence, Mr. S. emphasized that “the important thing is the rage”.

(c) Between early 2015 when correspondence was exchanged as to the contents of a separation agreement and early 2017

[43] Ms. D. said that, at Mr. S.’s insistence, in January 2015, Ms. D. removed E.S. from the nursery school and E.S. started at Kinderschool and continued there until June 2017.

[44] Ms. D. said that in the fall of 2014, she had suggested mediation in order to get a schedule and a long-term plan. Because Mr. S. had been busy with jewellery shows in November and December, she made the arrangements early in the new year.

[45] In February 2015, the parents met with a mediator at 393 Mediate. Mr. S. said that they had one session where they each met separately with the mediator. The discussion included E.S.’s school and whether the parenting schedule should change from E.S. seeing her father on weekends that began on Friday afternoons. He wanted to maintain that status quo. Ms. D. insisted that E.S. not start her weekend until Saturday morning. After the mediation, he said Ms. D. followed him and got into his car and she started yelling at him and she threatened suicide if he persisted in his position.

[46] Mr. S. provided copies of emails he initiated at 12:19 a.m. on February 23, 2015 in which he noted that while he thought the current Friday schedule was best for E.S., since it caused Ms. D. so much stress that it would eventually drive her to suicide, he decided to accept her demand and pick up E.S. on Saturday.

[47] Ms. D. said it sounded ridiculous that he said she had threatened suicide. She was upset with him for insisting on starting the weekend on Friday and insisted that it change. She responded in an email dated February 23 at 7:29 a.m. in which she wrote that she had not threatened suicide but had used the expression “over my dead body”.

[48] Mr. S. replied to Ms. D. in an email on February 23, 2015 at 10:37 a.m. in which he wrote that he was “glad to hear” that, “over my dead body” was a “pale expression in comparison to the yelling and drama that went on in my car Friday evening.” In his evidence, he said that, during the event in his car, Ms. D. had put her fingers to her temple in a manner that suggested suicide. In his email, he also wrote that “with a loaded family history like yours this kind of expressions are very concerning. I hope you’ll get help. I think you need it.”

[49] Ms. D. said she told Mr. Slan that mediation would not work.

[50] Mr. Slan sent a letter dated March 10, 2015 to Mr. S. in which Ms. D. proposed that E.S. be with her father from Friday after school to Sunday night on 3 out of every 4 weeks. Ms. D. said that it was important that E.S. have a good relationship with her father and E.S. wanted to see him. But she wanted some weekend time with E.S. and therefor she proposed that E.S. would be with her one weekend out of 4. Ms. D. also said that she felt strongly that E.S. had to come back on Sunday afternoons so as to manage the transition between different expectations in each parent’s home and to be ready for school. It was also an opportunity for her and E.S. to look ahead at the calendar for the week and plan. She was strongly opposed to E.S. staying with her father Sunday evening because it would involve a commute on Monday morning from Oshawa to her school in the Don Mills area. The letter included a provision that Ms. D. would make major decisions regarding E.S.’s education and religious upbringing after consultation with Mr. S. and consideration of his views and opinions.

[51] This led to a series of emails between Mr. S. and Ms. D. In his email to Ms. D. dated April 22, 2015 at 11:18 p.m., he enclosed his three page responding letter, in which he explained why he was accepting her proposal (including because of her repeated threats of suicide) and why he thought her proposal was bad for everyone. He referred repeatedly to Ms. D.’s mental condition. He said he was making two “minor adjustments” to her proposal. On major decision-making, he wrote that since she “showed clear signs of paranoia towards [him] (in the clinical sense)”, that it was “more likely that she would consult her daily horoscope rather than him”. Because of that, he wrote that he would leave her to make the choice of school without even consulting with him but he would keep the right to veto her decision. The second “minor adjustment” was with the weekend schedule in which he wrote that he would return E.S. on Monday morning (not Sunday afternoon) and that Ms. D. would have E.S. one weekend each month, not every 4th weekend.

[52] In her email dated May 11, 2015 at 7:15 p.m. she said she did not agree with his adjustments and wanted to negotiate. On May 13, 2015 at 1:02 a.m., Ms. D. elaborated in detail on her position. On the issue of commuting, Ms. D. proposed that the commute would be limited to a minimum during school week and will only be acceptable on Monday mornings (and other weekday mornings) if it will be no more than 40 minutes and less than 50 km so that E.S. could begin her day refreshed. On May 14, 2015 at 11:11 p.m. he responded and on the commute issue, he wrote “whether the commute takes 37 (minutes) or 45 (minutes), 50 or 57 km does not change much”. On May 15, 2015 at 12:21 a.m. she replied. No consensus was reached.

[53] Mr. S. said that they had reached an agreement on both of his “minor adjustments”. He pointed out that he had never exercised the veto he said he had.

[54] In cross-examination when pressed by Mr. Slan that an agreement had not been reached, Mr. S. insisted that they had reached a “cordial accord”.

[55] Mr. S. said that he operated on the basis that they had made an agreement consistent with his “minor adjustments”. He insisted on returning E.S. to school on Monday mornings rather than returning her on Sunday afternoon. That was an ongoing conflict as Ms. D. tried to have E.S. return on Sunday and be with her on weekends more frequently.

[56] Ms. D. said that Mr. Slan’s letter was an offer that Mr. D. did not accept, that his adjustments were not “minor” and that she had never accepted them. As far as she was concerned, they had not made an agreement. She thought that it was a proposal from which they might continue to negotiate but that did not happen.

[57] Mr. S. asked her why she had not finalized the agreement at that time and she said that she was afraid of him, that his emails to Mr. Slan were very aggressive, and she tried to keep the conflict down. She wanted to refer to emails and although Mr. S. did not want her to do so, I allowed her to do so. She said his letter dated April 22, 2015 was “very intimidating” because he had said that any agreement could be re-opened. She said she did not know what information he had but she understood that he was “collecting information” about her so that any agreement could be “opened up.” She said that she knew she could go to court but she “didn’t have the emotional energy to do that.”

[58] E.S. finished at Kinderschool in June 2017. In September 2017 she started grade 1 at D. Public School and is currently in grade 4.

(d) Between the “library incident” in late March 2017 and the involvement of the police and the JF&CS to November 2017 when the JF&CS closed the file

[59] In late March 2017, Ms. D. and E.S. made one of their usual visits to the library. E.S. was then almost 6 years old. While they were there, Ms. D. was making inquiries about books she had ordered and E.S. said she wanted to go to the children’s section on the second floor. Ms. D. agreed and E.S. went up stairs to watch kids play video games. When E.S. came back, Ms. D. sat with her to read a book. Ms. D. touched E.S.’s sleeve and it was wet. She asked E.S. about it and E.S. would not answer. Ms. D. smelled the sweater and thought it smelled like semen. She was concerned that E.S. had been assaulted. She went to the library desk to report her concern. The police were called and they called the JF&CS. The police investigated but there was no CCTV in the area where E.S. had been. The police did not identify anyone and did not lay charges.

[60] In an email dated March 30, 2017 at 11:38 p.m., Ms. D. informed Mr. S. about what she said had happened at the library.

[61] In his email on March 31, 2017 at 3:11 a.m. Mr. S. expressed his alarm and insisted that Ms. D. had been “irresponsible, negligent and over confident” in her actions.

[62] In her responding email at 6:58 a.m. that day, Ms. D. provided more explanation including that the whole event lasted seconds. She promised she would never lose eye contact with E.S. again. She said that she was “sooooooo sorry” and she said she would get the best psychologist if needed.

[63] In her evidence, Ms. D. was asked if she had a “parenting philosophy” and she said she was relaxed and agreed with the “free range” principle, namely that a parent ought not to monitor in a playground but let the child be and that this incident at the library fell within a “range of acceptable parenting”. In that way, kids would learn to educate themselves because kids do not learn and develop skills because they are too contained. She agreed with the principle that the child should be allowed independence on a gradual basis. Ms. D. said that the events at the library, allowing E.S. to go to a different floor and be out of her mother’s eyesight, was an aspect of that parenting philosophy. In her examination-in-chief, she said that “in hindsight”, perhaps she ought not to have let E.S. leave her sight.

[64] The JF&CS conducted an investigation.

[65] Ms. D. agreed that she was highly anxious about the police investigation and about the involvement of the JF&CS. She said she was “googling all night” (i.e. researching) and she was exhausted. She spoke with her family doctor. She spoke with her counsellor D.G. who referred her to a program for kids. She said that she did not understand that the JF&CS were mandated to become involved and she just wanted to be alone. She had a trip planned for Passover and was worried she would not be able to take E.S. Seeing accusatory emails from Mr. S. made her feel guilty. Ms. D. agreed that her house was “a mess”. She said that she reached out to her friends for support. In the JF&CS contact log, the worker had described Ms. D.’s behaviour as alternating between crying and laughing. She said she was crying as a relief because of what E.S. went through. She said she was laughing as an attempt to release tension and because of her concern that “they” wouldn’t let her take E.S. to see her relatives. She said that she “wasn’t at her best” and she “wasn’t looking at her own well-being” and there were a lot of “important things” happening at the synagogue.

[66] On resumption of her examination-in-chief on the following Monday, Ms. D. was asked what steps she took in 2017 in response to what had occurred with E.S. She said that she went to her family doctor for a psychological evaluation. She discussed with him the reason for it and she said that the “family doctor said it was not necessary”. She said that she continued to meet with D.G. until June 2018. She said that before 2017 she thought D. had sent her for a psychiatric evaluation She said she saw a psychiatrist at the Flemingdon Community Health Clinic and told that psychiatrist about the previous psychiatric evaluation at Women’s College Hospital. She talked about self-care.

[67] The JF&CS decided to maintain contact with Ms. D. and E.S. and that led to a consent Plan of Service Agreement so that JF&CS provided services to Ms. D. and E.S. for the period June 2017 to November 2017 when the service agreement ended.

(e) 2018

[68] In the school year September 2017 to June 2018, Mr. S. learned that E.S. was frequently late or absent from school which confirmed his belief that Ms. D. could not be punctual and that her inability to provide a structured and organized home was harmful to E.S. He said that E.S. was complaining to him about her mother yelling at her. He said Ms. D. became “fixated” about him returning E.S. on Sunday, not on Monday morning to school. Mr. S. also became concerned because Ms. D. had enrolled E.S. in so many after school activities and she insisted that E.S. be involved in activities when she was with him.

[69] In the fall of 2018, both parents observed that E.S. was getting anxious but they did not agree on the cause. Mr. S. blamed Ms. D. for exaggerating E.S.’s problems, for her excessive interference in E.S.’s life, and for her own inability to provide an organized home. The emails became increasingly dense and demanding on her part and increasingly critical and hostile on his part.

[70] Mr. S. said that in October 2018, when E.S. was in grade 2, she started to show signs of anxiety and was having difficulties at school. Although she did not cry when she was with him, when she was going home to her mother, he saw a change in her behaviour that included crying and sometimes she yelled at her mother. He observed that she was not finishing her work at school and was dreaming. He said he spoke with Ms. D. and she said the teacher was bad. Ms. D. wrote a critical piece on social media about the teacher. Ms. D. arranged for them to meet the principal.

[71] Ms. D. said that she was increasingly concerned about E.S. She thought the fact that they did not have a written agreement was “getting in the way”. Mr. S. and Ms. D. attended the meeting at the school. He described Ms. D. as speaking very loudly and being very stressed out and it became a shouting match between Ms. D. and the principal. He said that the principal criticized Ms. D. for having sent a 10-page letter to the teacher. He referred to emails that he said demonstrated Ms. D.’s obsessiveness during the period November 2018 to January 2019.

[72] In her email dated November 12, 2018 at 1:14 p.m., Ms. D. wrote the following about the meeting at the school:

Despite the meeting not going as planned, there are many successes. One of them was actually initiated by the principle [sic]. She said they will help her deal with her [E.S.’s] attitude (lack of confidence, being able to deal with failures, frustrations, unrealistic goals and perfectionism). I don’t count on them solving it, but we can hold them accountable for promising to help work on that.

[73] In Mr. S.’s response dated November 12, 2018 at 10:10 p.m., he wrote the following:

Regarding the meeting, you made a very bad impression. You were aggressive, and in case you didn’t get it, the teacher is physically afraid of you. IMHO you’ll do well to send both the teacher and principal a letter of apology blaming culture differences, misunderstandings, your state of mind and whatever, keeping it very short (without ifs or buts).

[74] In her email dated November 13, 2018 at 3:53 a.m. Ms. D. wrote that the teacher “is afraid of her own shadow, so, yes, she is also afraid of me.”

[75] In his email dated November 29, 2018 at 12:26 a.m. Mr. S. expressed his concerns about Ms. D.’s parenting style. He wrote:

I hope that your extreme attention and super control over everything she does will not shatter her confidence or give her a sense that she’s not good enough. I personally think I was much better off without the supervision of my parents or teachers . . . I hope you’ll be very careful with your interaction with E.S. Constantly correcting and overlooking every [she] did might counteract.. . . Just remember that the way to hell is paved with good intentions.

[76] In his jewellery business, Mr. S. was often occupied in November and December with retail shows such as One of a Kind. That meant there were weekends when he missed seeing E.S. In an email dated December 4, 2018 at 11:15 p.m. Ms. D. took him to task for taking E.S. from school to his home for an overnight visit because he was interrupting her school work and not supporting the learning processes she had introduced. This is an example of her reaction:

Today she had an easy Math page that took more than 3 hours to complete. WITH help. We couldn’t even light the candles today. A little exercise of independence, getting her used to taking her stuff from her bag, using the zipper, putting it back in the bag, organising her room, and, in general, taking responsibility for her life and her work – is so important. Things were beginning to move smoothly and it all fell apart today. I was being nice to allow you to have extra time with her, and not take her after piano and gymnastics, but I shouldn’t have done that.

[77] His email on December 5, 2018 at 12:44 a.m. was typical of his response:

M.D., I do appreciate your work and dedication.

I took E.S. at 16:10 we talked about school during the drive and she was very offended by you calling her a sloth. . . I think on a good day, in 3 hours, E.S. can be taught most of the math curriculum of second and third grade and probably some of 4th grade with reasonable success (but she might not remember it all). If she has spent 3 hours on homework (with help) I think she and you have waisted [sic] most of this time and just increase her frustration.

[78] Ms. D. responded on December 5 at 12:58 p.m. and described in some detail her perspective on E.S.’s many challenges including how to hold a pencil, how to erase, how to plan her work, the weakness in her absorption and retention etc. She explained her approach to E.S.’s learning, making it clear that Mr. S. was not only not supportive but was interfering with her efforts.

[79] Mr. S. referred to emails between December 7, 2018 and January 14, 2019 including the following:

Ms. D. December 7, 2018 at 11:44 a.m.: . . . Many, if not all parents struggle with the stresses of raising kids. . . I am trying to balance, it’s not east [sic], but it’s a lot harder without your cooperation. . . I expected a more egalitarian approach between us. I can’t force you to do anything. I can ask. But I can also decide that you’re not doing enough with your time with her to help her in the areas she needs help, and limit that time. . . She will spend weekends with you, but not 3 nights in a row. [referring to return on Sunday, not Monday morning] Having a strong bond and a good relationship with her dad is important to E.S., but it’s not the only important thing. And I’m done having E.S. pay the price of me being afraid to stand up to you.

Ms. D. December 19, 2018 at 3:10 p.m.: information about her trip with E.S. to Israel for the first week of winter break. ..more on her expectations of Mr. S.

Mr. S. December 20, 2018 at 11:51 p.m.: Like you said, “E.S. doesn’t have a day or a night so much is the work that needs to be done”, but you subscribe her to ice skating, she has sport, Piano, Hebrew, Shakespeare, Gardening club. I hope I didn’t left [sic] anything. (I probably did). IT is sad to see that you are unable to provide her with basic things like sleeping hours. You are unable to bring her to school on time and above all, you leave her with sense of failure. . . It appears that you’ve lost any sense of proportion, you had very little to start with. You have no grasp of time. You don’t know or understand what is important and what’s not (prioritization). You are excessive in every possible way. You are aggressive and arrogant. You are unable to conduct any civilized conversation with me or with anyone else who has a different view. . . . You are in full OCD mode, since I’m part of it, there’s no sense in reasoning with you. For the sake of E.S., I ask you to get some medical help concerning your mental condition. . . . E.S. will stay with me Sunday nights unless I decide otherwise. . . I will pick up E.S. from school tomorrow, and bring her to your place, since you’re having apparently a new ceremony about bag packing.

Ms. D. January 7, 2019 at 6:17 p.m.: her observations about how E.S. writes and that she wants the school to see E.S. regarding an occupational therapist with a detailed description of the mechanics of how E.S. uses her arm, her elbow, her wrist, the palm of her hand and her fingers.

Mr. S. January 10, 2019 at 4:17 a.m.: . . . Unfortunately you are unable to conduct a civilized conversation. . . talking to you proves to be pointless and time consuming. . . I saw the email regarding the occupational therapist, you are absolutely obsessed with the eraser. . . you are no longer able to successfully communicate with [E.S.]. I hope you can see, although I doubt it, how you undermined her self-confidence . . . and sending her to an unnecessary ADHD assessment. You should look closely at yourself, something is very wrong with you and your life these days. You are frustrated, aggressive, unfocused and obsessed. I’d like you to consider E.S.’s moving to Oshawa next year and spending the weekends with you. I hope you understand that she will end up hating you and for very good reasons.

Ms. D. January 10, 2019 at 11:46 a.m.: . . . I was afraid you would get mad that you don’t get enough time with E.S. But I’m not afraid of you anymore. I use the month that you are on [jewellery] shows to catch up on a whole year, because I can’t count on you. So, yes, I’m frustrated now. You refusing to try to collaborate with me on E.S. education and learning skills because I get frustrated at time, show how little you are willing to put into it. Deal with it. I don’t like talking or apologising to you either. I do it for E.S.’s benefit.

Ms. D. January 10, 2019 at 12:41 p.m.: detailed list of school expectations related to E.S.’s learning.

Ms. D. January 10, 2019 at 12:44 p.m.: starting with the content of the message at 12:41 p.m. as to the school expectations and continuing over six pages as to her expectations for E.S.

Ms. D. January 14, 2019 at 12:19 a.m.: focus on transitions on Friday and insisting on E.S. being returned on Sundays.

Emphasis in original

[80] In that exchange of emails, I have quoted more extensively from Mr. S.’s emails than from Ms. D.’s emails. In general, Ms. D.’s emails are more detailed and repetitive and include her suggestions as to how Mr. S. should address E.S.’s needs and his rejection of almost everything she wrote.

(f) Mr. S.’s report to JF&CS on January 14, 2019 with respect to his concerns about E.S. and Ms. D.’s parenting

[81] Based on the email exchanges he had had with Ms. D. and his concern about her parenting of E.S., Mr. S. said that in January he was “in complete panic mode” because E.S. was crying and she was experiencing all these “invasive things” from her mother. He had become so concerned about E.S.’s wellbeing and her mother’s inability to care for her that he contacted the JF&CS. I refer to the following in the Intake Case Information:

. . . Y.M.S. explained that M.D. displays OCD and Bipolar Disorder behaviours (this worker was unsure if these are formally diagnosed) and that he feels her mental health has been deteriorating for the past 2-3 months. He is concerned about the impact on E.S.

Y.M.S. explained that M.D. wastes time on obsessive behaviours and spends a lot of time with E.S. on pointless things that have negative outcomes for E.S. For example, recently she has been obsessed with her belief that E.S. does not know how to use an eraser properly and has been spending significant time trying to teach her how to use the eraser and e-mailing Y.M.S. with specific instructions for how she wants E.S. to do this. He stated that sometimes M.D. will spend too much time at night trying to teach E.S. things and she will go to bed quite late causing her to go to school late the following day because she needs to sleep in. Y.M.S. stated that she goes to school late “often”.

Y.M.S. stated that on Friday it took M.D. 1 hour to pack E.S.’s bag and was so focussed on the activity that they actually ended up leaving without the bag. When Y.M.S. and E.S. went back for it after dinner, it took M.D. an additional 30 minutes to bring the bag outside.

[82] Following its investigation, the JF&CS entered into a Plan of Service Agreement with Ms. D. The JF&CS has been involved with the family for two years. The file is still open.

[83] Ms. D. said she was upset about the prospect of renewed involvement by the JF&CS. She contacted North York General Hospital and was referred to a psychiatrist whom she met on January 24, 2019.

[84] Ms. D. said she decided to resume efforts to reach a separation agreement and Mr. Slan contacted Mr. S. She said that, in general, Mr. S. was not receptive and was critical about the involvement of her lawyer. The question of whether he brought E.S. home on Sunday evening or Monday morning was a source of disagreement and conflict that was reflected in emails and texts during the weekend.

[85] For example, Ms. D. sent an email to Mr. S. on Thursday February 21, 2019 at 1:50 p.m. insisting that he bring E.S. home on the following Sunday around 4 p.m. so that she could prepare for the week. Mr. S. responded at 3:59 p.m. in which he began by writing that Ms. D. “confuses reality, wishful thinking, self deception or plein lie?” And then he listed his three numbered points about return time and pick up on Friday. This is an example of the ongoing conflict over when E.S. should return to her mother’s home.

[86] As a result of steps taken by Ms. D., she identified Dr. M.L. as a psychiatrist for E.S. She met Dr. M.L. on January 29, 2019 and again on March 4. She said that he made a diagnosis of ADHD. She kept Mr. S. informed and encouraged him to meet with Dr. M.L. In an email dated March 29, 2019 at 12:59 p.m. she said that Dr. M.L. had suggested a treatment plan that included medication and contact with the school social worker.

[87] Mr. S. met with Dr. M.L. He understood that Dr. M.L. had diagnosed E.S. with ADHD and anxiety. Mr. S. provided some of the email communications between and among Mr. S. and Ms. D. and Dr. M.L. In an email from Ms. D. dated April 8, 2019 at 7:34 a.m. Ms. D. listed four questions that she wanted Mr. S. to ask Dr. M.L. at the meeting scheduled that day. In his email on April 8, 2019 at 11:36 p.m. Mr. S. responded to her four points and he wrote this:

Please read carefully.

I agree with the Dr that E.S. has some absentmindedness that can be attributed to ADHD however this condition as he said, is also influenced by the surrounding and in this case, it’s highly influenced. If it was up to me, I would deal with the surrounding conditions first and then use medications or do both at the same time. By “surrounding” it means you; your obsessive behaviour, the atmosphere in her house, the rage, the constant control and undermining of her self confidence and constant pressure that you relate to her. Emphasis in original

[88] In that message, he told her he had given consent to medication although he thought it was wrong.

[89] In an email to Dr. M.L. dated April 10, 2019 at 8:02 p.m. Mr. S. set out in considerable detail his perspective on Ms. D. He referred to her as an “extreme hypochondriac” and gave as an example, Ms. D. being convinced that E.S. had thrush as an infant. He then gave a detailed description of what he considered E.S.’s “surrounding” including the following:

E.S. lives in a chaotic filthy house . . . M.D. doesn’t have any grasp of time and can’t prioritise properly; E.S. is constantly late to school. . . E.S. doesn’t have any regular routine due to her mother [sic] mental condition; . . . M.D. has recurrent outbursts of rage;. . . I will not go into detail of M.D.’s other OCD rituals but she insists that E.S. perform them as well. . . M.D. is an extreme perfectionist. . . . She is mentally unable to compromise; M.D. has an obsessive concern with “transitions”; . . . M.D. insists that E.S. be back Sunday afternoon in order to “prepare” for school. . . E.S. has after-school activities every day of the week. . . M.D. is obsessed with controlling every minute of E.S.’s time whether in her place or in mine.

[90] He ended the message by apologizing for the long email.

[91] Subsequently, there was communication between and among Dr. M.L., Ms. D. and Mr. S. and Dr. M.L. directed the parents to stop the medication.

[92] Ms. D. reached out to the school and, in April, E.S. met with the school social worker Eric Solis.

[93] Mr. S. said that, if he was “in panic mode” in January 2019, it was even more so in May. He described his concern around E.S.’s bike-riding in that she was operating the bicycle properly and with confidence before she went with her mother to Holland but when she returned she was fidgety, crying, starting to melt down, unable to sit and do the work in French that he asked her to do and unable to ride the bike at all. Relating this evidence upset Mr. S. sufficiently to require a brief recess in his testimony. He reported that E.S. said that, when they were in Holland, her mother had fits of rage and she had to run to her room to get away from her mother.

[94] He said that Ms. D. was calling him all the time and sending lengthy emails. He said he was worried about E.S., and he “couldn’t take it any more”. He provided many emails between them in the period May 1, 2019 to May 21, 2019. In his email dated May 6, 2019 at 5:14 p.m. he established what he described as “reciprocal” communication rules in which he would only speak by phone for urgent issues which he listed. He asserted that those steps would reduce the friction between them. In her message at 8:52 p.m., she wrote that he could not make rules for both of them and that she would write or call as she thought appropriate. She suggested that his emails should reflect more collaboration and she provided text that reflected that suggestion.

[95] In his email at 10:00 p.m. he insisted that his email had been polite and did not include “offending language, offending suggestions or disrespect”. He wrote that the “bottom line is that I don’t need to hear your abusive language or waste my time.”

[96] In his email on May 7, 2019 at 1:40 a.m. he started with this introduction: “It was amazing to see how you’ve misinterpreted and distorted my harmless email about communication.” And he responded in enumerated points to her email and then referred to Dr. M.L.’s reference to E.S.’s “surrounding circumstances” being a factor. He wrote as follows:

4. It’s only in the last few months that I understood that the most harmful and abusive feature is your perfectionism. Your natural ability to systematically trash E.S.’s self-confidence by constantly looking for mistakes and imperfections. The only right way is your way. This is by far the most toxic behaviour and the probable cause of her anxiety.

The worst part is that you are blind, to most of your shortcomings and especially to #4.

[97] Some of the emails then refer to day-to-day issues. In an email dated May 10, 2019 at 1:05 p.m. Ms. D. wrote the following;

. . . I just left you a voicemail. I understand what you are saying and I understand your frustration. I’d like to apologise for my one-sided communication (that I told you and did not consult). I agree that this is not an acceptable form of communication. Neither of us should force the other. We have to rely on mutuality. Please leave E.S. out of it as much as possible. I will happily discuss this in a relaxed manner over the phone to find a compromise that is fair, appropriate and acceptable.

[98] He responded in an email dated May 10, 2019 at 1:17 p.m.:

Thank you for your response. There won’t be any phone or direct conversation with you (a relaxed discussion with you is an oxymoron).

[99] In her email dated May 10, 2019 at 1:21 p.m. Ms. D. wrote:

I am not reading nor responding to e-mails that include insults, cynicism, threats, intimidation and one-sided decisions. Please rephrase.

[100] In his email dated May 16, 2019 at 4:29 p.m. he wrote that “all your conversations are recorded”.

[101] In his email dated May 18, 2019 at 12:31 a.m. he wrote the following:

To make it clear, I will never talk to you ever again in person except “have a nice day”. . . E.S. is very emphatic. Your “tearful goodbys” and emotional blackmail deeply affects her, she’s now showing signs of depression. This is incredibly selfish of you and devastating with long term effects. If you care for her, stop this toxic behaviour at once. Get yourself treated ASAP.

[102] Mr. S. did not refer to any reply that Ms. D. likely made.

[103] There are many more emails in May 2019, some dealing with day to day issues. Some included a similar exchange with Mr. S. refusing to communicate except by email and Ms. D. refusing to respond to emails she considered threatening.

[104] In May 2019, Ms. D. began individual counselling with E. S-H.

[105] Mr. S. started these proceedings on June 13, 2019.

[106] In the fall of 2019, Ms. D. began individual therapeutic counselling with J.S.

(g) the Flex Psychological assessment testing of E.S. in August and the report dated October 22, 2019

[107] As arranged by Ms. D., a psychological assessment of E.S. was conducted on several dates in August 2019 and the report is dated October 22, 2019. The following excerpts are from the “Summary and Formulation”:

E.S. is an eight year old girl who has previously been diagnosed with Attention-Deficit/Hyperactivity Disorder and Anxiety Disorder. . . E.S. emerged with a clear pattern of strengths and weaknesses, despite the occasional outlier result. . . .

she does not have a Learning Disability. . . .

E.S.’s parents agreed that she lacks confidence, that she is fearful of making mistakes, that she appears to daydream, and that she often does not complete her work. However, they disagreed about the number and severity of concerns, as well as their belief about the underlying nature of these concerns. The majority of findings indicate that E.S. experiences significant inattentive features; . . . Altogether, findings support her pediatrician’s prior diagnosis of Attention-Deficit/Hyperactivity Disorder (ADHD).

. . . It is not unusual for those with attention challenges to also experience anxiety and to have trouble managing their emotions. This is partly because similar parts of the brain are implicated, and partly because attention problems create extra challenges and stressors for people. In E.S.’s case, she presents with significant generalized anxiety across many areas of her life (according to E.S., her teacher, and her mother). Prominent aspects of E.S.’s presentation include her fear of failure, her fatigue and difficulty sleeping, her fear of getting into trouble and desire to please, her lack of confidence, and her tendency to internalize her feelings. At this time, E.S. meets criteria for Generalized Anxiety Disorder.

[108] The report included more than 5 pages of detailed recommendations.

(h) Voice of the Child Report November 17, 2019

[109] The Office of the Official Guardian provided a Voice of the Child report dated November 17, 2019. E.S. was then 8.5 years old. The Clinician met with E.S. on two occasions in November 2019, once when she was brought by her mother and once when she was brought by her father. The Clinician reports in some detail about her conversations with E.S. The Report includes the following:

. . . She stated that she is not sure why she has a social worker at her mom’s house but stated that this person makes her rate her mom and dad’s house out of 10. She reported that she usually rates her mom’s house as a 7/10 and her dad’s house as a 9/10.

. . . She stated that she doesn’t like that her mom yells a lot and makes her do homework everyday.. . . She stated that when she does homework her mom yells at her and says she is doing things too slow. E.S. stated that she doesn’t really do anything fun with her mom. ---

E.S. indicated that sometimes she hits her mom when she gets mad at her. . .

E.S. stated that what she likes about her dad’s house is that she has her own computer there and she has a cat named Felix. . .

E.S. indicated that her parents don’t get along very well and they dislike each other. . . .

E.S. indicated that she doesn’t know if she likes the way her time is set up now in terms of where she lives but then stated that she likes it “so-so”. She then proceeded to say that she wants more time with her dad (100 times more). E.S. then stated that she wants more days at her mom’s house too and then stated that she actually wants fewer days at her mom’s house and more days at her dad’s house. . . .

E.S. reported that she wishes her parents would get back together and that she could have 100 more cats. She stated that if she could change something about her life it would be to have more time with her dad. . .

E.S. stated that if she were talking to the person making decisions for her she would want them to know that she is, “half miserable, half good.” She stated that she is “half miserable” because her mom and dad are always fighting. She stated that she has never seen them fight but she knows that they fight. . . .

E.S. stated that she wants her living situation to be different. She would like to live with both of her parents together, her cat Felix and her old cat that died (she would like to bring him back to life). She stated that if none of this were possible, she would want to live at dads sometimes and at her moms sometimes. She stated that she would like to see her dad on weekdays and weekends. She stated that she would now rate both homes at 7/10 and she feels the same about both homes now. She stated that if her parents can’t live together then she wants equal time in each home. She stated that right now she gets more time at mom’s house and that makes her sad because it means she gets less time at dad’s house.

E.S. indicated that when she has to change back and forth between homes it makes her sad and each time she has to get used to the change again. She stated that it is hard to move back and forth and indicated that less changes are better for her.

E.S. stated that she would like her parents to know that she wants them to live together. . .

SUMMARY:

E.S. presented as a bright, energetic young girl who still holds out hope that her parents will reconcile. She is aware of the animosity between her parents and expressed how difficult it is to transition back and forth between her parents home, especially knowing that they don’t like each other. She was not consistent in her views and preferences during the two interviews regarding the parenting arrangement although she did express wanting to see her father more in both interviews.

I confirm that I have reviewed my notes with the child for accuracy.

[110] On November 22, 2019 at 10:04 a.m., Ms. D. sent a text to Mr. S. in which she wrote the following:

Given the VOC report and Dr. M.L.’s letter and Flex Psychology report all showing how E.S. is affected negatively by the conflict, please consider reading this and other articles on effects of high conflict on children. . . Dr. M.L.’s letter clearly shows his views. I’m attaching it again. Please sign consents and begin collaborating ASAP, for E.S.’s well-being. Also please reconsider proven strategies that work to reduce conflict (for E.S.’s sake): 1. Use OurFamilyWizard + tone meter. 2. Hiring a competent mediator with experience in high conflict (Howard Hurwitz).

[111] On November 23, 2019 at 10:24 a.m. Ms. D. sent a text in which she wrote the following:

Please call Ms. P. today. She works on Saturdays. E.S. suffers from the CONFLICT. She needs someone out of the conflict to provide her with unconditional positive regard . . . you have good intentions, I have good intentions, but we need help, professional help, to allow our good intentions to help E.S. and not hurt her. Nobody’s perfect. Howard Hurwitz can help. Dr. Khorassany can help. Don’t let things escalate even further. This is not a game. E.S. already has suicidal thoughts. . . .

[112] Mr. S. pointed to this text message sent by Ms. D. on November 28, 2019 at 10:21 a.m.:

. . . It is a stressful time, and we all have to deal with it. But it won’t be on my expense anymore, and definitely not on E.S.’s expense. She needs two strong stable parents. Please stop the blame game. JF&CS did not apprehend E.S., which means she is safe with me. She is not safe because of the conflict and the emotional burden and toll that it creates on everyone. And because she has difficulties, and she’s not getting the proper help to deal with them. I’m not sure if E.S.’s symptoms are ADHD or trauma related, and not even sure if there are ways to find that out for sure, even with all the professionals involved. I AM sure that there are steps to help heal, that I have done above and beyond what any parent would do for a child, that E.S. is really trying, but needs help, that I’m pushing for solutions, and trying to avoid the blame game. You are not. Make no mistake, calling you was not a sign of weakness. This morning E.S. said to me that she thinks that if both parents lived closer it would be easier for her. I asked her who told her that and she said she thought about it herself.

[113] Mr. S. relied on the November 23 and the November 28 texts to conclude that he and Ms. D. “agreed that E.S. did not have ADHD”.

[114] In an email dated January 13, 2020 at 3:02 p.m. Ms. D. asked, again, that Mr. S. consent to E.S. attending a program (as the Flex report had recommended) called “1 Family, 2 Homes”. He refused.

[115] In January 2020, as a result of Ms. D.’s efforts, E.S. started seeing C-J.P., a Registered Psychotherapist. In an email dated September 17, 2020 at 4:39 p.m., Ms. D. said that C-J.P. was willing to meet with them to see if anything could be done to avoid the high costs of a trial. Ms. D. said she was open to other options. Mr. S. responded that evening at 8:52 p.m. In rejecting her suggestions, this is what he wrote:

I believe that E.S.’s condition or problems are a direct result of your behaviour and the environment you’ve provided her from an early age. I don’t think you did it on purpose. I understand that you believe that it is the result of “high conflict”. My view is that there was never a conflict, except in your false perception of reality. Your behaviour toward E.S. derives from your pre-existing mental conditions, not anything else.

(i) The “garage incident” February 2020

[116] E.S. was playing on the street with two or three neighbourhood boys. They locked her into a dark garage for a few minutes. E.S. was upset and immediately told her mother.

[117] Mr. S. has provided emails starting on February 12, 2020 at 6:09 p.m. in which he wrote that E.S. had told him that she was bullied the previous day and that he did not consider it “appropriate that E.S. goes with boys, 3 years older than her, let alone unsupervised”.

[118] This led to an extended exchange of emails between the parents to which I need not refer in detail.

[119] In his evidence, Mr. S. was critical of Ms. D.’s lack of supervision of E.S. when on the street and out of clear eyesight and critical of Ms. D. for allowing E.S. to play with three older boys.

[120] In her email on February 14, 2020, Ms. D. agreed that E.S. had been bullied. She said that she (Ms. D.) had taken responsibility for it, and that he should respect her judgment about how much supervision E.S. needed.

[121] In her examination-in-chief, Ms. D. explained how, after the incident, she and E.S. went to the home of one of the boys, and together they spoke with the boy and his father. She described it as an empowering opportunity for E.S. to tell the boy that his behaviour was unacceptable. The father agreed that his son’s behaviour had been unacceptable.

[122] In cross-examination, Mr. S. asked Ms. D. if she had been wrong in letting E.S. play unsupervised. She said that when she lets E.S. play without supervision, she is worried but “torn inside”. She said that when she came and told her, E.S. was angry about the garage, but not scared which Ms. D. thought was a good emotion. Ms. D. wanted to support her so that E.S. would feel safe talking to her mother and so that E.S. can speak up to the boys. In the end, after going to the home of the boy, she thought it as a good experience because E.S. learned that it was something she had overcome and it had built her resilience. Having not answered the question, I asked her whether she thought she had made the wrong decision. After pausing, she said she felt conflicted about it. She asked rhetorically, “am I allowed to make parenting mistakes? Yes.”

[123] Suffice it to say that this event triggered significant conflict between Mr. S. and Ms. D. about parenting style including Mr. S. repeating the criticism he made following the library incident that Ms. D. was following the “free range philosophy” and thereby endangering E.S.

(j) Consent endorsement by Nishikawa J. dated June 19, 2020 to the trial

[124] In a consent endorsement dated June 19, 2020, Nishikawa J. made a temporary, without prejudice order that the parents would each have E.S. during alternating weeks for the summer of 2020 and, after September 7, 2020, Mr. S. would have care of E.S. for three weekends each month commencing after school on Friday to Sunday afternoon. The parties were directed to cooperate to agree to the three weekends. That endorsement also indicated that Ms. D. would have the care of E.S. for all of the Jewish holidays including but not limited to Rosh Hashanah, Yom Kippur, Hanukkah, Sukkot.

[125] Within a few days, a conflict erupted as to whether summer started on the Friday which was the last day of school, which was Mr. S.’s position, or on the Sunday which was the end of the weekend. In the end, Ms. D. kept E.S. with her for the weekend.

Witnesses at the trial other than about the child protection file

(a) C.S.

[126] Mr. S. called C.S., who had been a friend of the family. She and her family had lived in the Don Mills neighbourhood and met Ms. D. and E.S. at the early years centre. Her family moved in 2015 but kept in touch. Her daughter and E.S. are friends.

[127] She described Mr. S. as kind, patient with E.S. and a good father. She said that he was not aggressive and used his skills to make her listen. She described his home including that E.S.’s room was cozy.

[128] She said she had been good friends with M.D. over their 10 year relationship. She said that M.D. had closed her on the wall by which I understood she had been unfriended. She no longer had a relationship with her. There was some evidence as to the reason for that which I do not consider relevant. She was asked her opinion as to E.S. living with her mother or with her father. I am not satisfied that her “opinion” is of assistance given that she has no current relationship with Ms. D.

(b) E. S-H.

[129] Ms. D. called E.S-H.as a participant expert. She is a social worker who works with the JF&CS. She has been Ms. D.’s individual counsellor since May 2019. In the Trial Management Conference counsel indicated that she would give evidence as to Ms. D.’s ability to parent but in her letter dated September 16, 2020 and in her evidence she said that that was not within her scope of practice.

[130] She said that the focus of the sessions was on Ms. D.’s goals and involved talking about boundaries and “letting go”. She said that Ms. D. felt overwhelmed with the court and concerned that her parenting was being looked at by child protection authorities. Ms. S-H. said that Ms. D. had developed a lot of insight and made progress about being able to talk about these things and being aware of these things. She had talked about her parenting being under a microscope and how she had to hold everything up 100% of the time and that caused her stress. She said that Ms. D. spoke about discussing with E.S.’s teachers about assigning less homework and zeroing in on certain questions and subjects.

[131] In cross-examination, Mr. S. asked whether Ms. D. had discussed her past diagnosis. She said that Ms. D. had some anxiety and she had mentioned some concern about OCD. Mr. S. asked her about OCPD and Asperger’s. After looking at her notes, she said that she did not find reference to either. She was familiar with Asperger’s but she was not sure what OCPD was.

[132] She agreed that she relies on what her clients tell her and she cannot know 100% what is going on. She said she does challenge clients when needed.

[133] Mr. S. asked her if Ms. D. had “some obsession on parenting”. She said that Ms. D. has “hyper-focused on parenting”.

[134] Mr. S. asked her if Ms. D. tries to control what E.S. does with him. She said that one of the things that they were working on is “letting go of things she can’t control”.

[135] Mr. S. asked if she knew that E.S. had been diagnosed with “high anxiety”. He also asked about what he referred to as Ms. D.’s “habit of yelling and the rage”. Ms. S-H. said that Ms. D. had talked about the fact that she raised her voice and that she was monitoring that herself.

[136] Mr. S. asked whether they had talked about anger management issues and Ms. S-H. said that they talked more about her feelings and her need to “take a breath” and “come up with some mindful solutions”. She said that Ms. D. reported feeling like E.S. has to get to the school on time and get homework done. She said the “theme” was that she felt like she was under a microscope.

(c) J.S.

[137] Ms. D. also called J.S. as a participant expert. She is a social worker with particular experience with high conflict family law matters and extensive training in the field of separation and divorce, dispute resolution, and post separation conflict. She had provided a letter dated September 24, 2020.

[138] Ms. S. started counselling Ms. D. on October 11, 2019, having been referred by her previous therapist D.G. Ms. D. reported that she was in a high conflict separation, that there was a court proceeding and that she needed support, that she needed help in communicating with her husband and that she needed some parenting support. Their appointments had continued weekly or several times a month with some hiatus because of the pandemic.

[139] Ms. S. said that Ms. D. asked for support for helping E.S. in a separated family. Ms. D. would present a concern around her parenting or an issue raised by Mr. S.’s parenting and Ms. S. said she would give her guidance. She said that Ms. D. was very receptive to her guidance.

[140] Ms. S. understood that Ms. D. was in constant communication with the school to get E.S. support. Ms. D. referred to the Individual Education Plan and the IPRC. She said that she helped E.S. with her homework and there was some “frustration” because E.S. would not always listen. Ms. D. noted that she had no family in Ontario but she reported that she had friendships with other mothers who were quite supportive, she had a therapist, she had Ms. S. and different professional over the years. She talked about having a supportive network in her community.

[141] Ms. S. said that Ms. D. talked at length about how she had tried over the years to make an agreement with Mr. S. and that her goal was for E.S. to have two loving parents. She said that Ms. D. had been flexible when they maintained 50/50 during parts of the pandemic. She reported that Ms. D. wanted to make sure Mr. S. was involved and that his voice was heard. Ms. S. noted that her report was “one-sided” in that she had not met Mr. S.

[142] Based on her observations, Ms. S. said that Ms. D.’s strengths were that she a friendly, warm individual. She is very expressive, very communicative, very interested in making good decisions for E.S., very thoughtful about making decisions about E.S. and she put a lot of thought into her day-to-day decisions.

[143] In cross-examination, Mr. S. asked whether Ms. D. had shared her past diagnosis. Ms. S. reported that Ms. D. said that Mr. S. alleged she had mental health issues and that, after E.S. was born, she went to see a psychiatrist at Women’s College Hospital but that Ms. D. thought that the assessment the doctor made was not fair and the diagnosis was not accurate. She said that Ms. D. had shared the diagnosis of OCD and ADHD but not of OCPD.

[144] Mr. S. asked about Ms. D.’s habit of yelling especially while E.S. was doing homework. Ms. S. said that Ms. D. did report that there was yelling on occasion in the past but Ms. D. said that she generally has a louder voice because she is a singer and what is generally perceived as yelling is her loud voice. She said that Ms. D. acknowledged that she had made some mistakes. She said Ms. D. said she yells less but sometimes slips up. She said they talked about not being perfect.

[145] Mr. S. asked if she had noticed any obsessive behaviour or fixations. Ms. S. said she noticed that Ms. D. was “quite focused” on the things they needed to discuss.

Jewish Family and Child Services file and evidence

[146] At Mr. S.’s request and with the consent of Ms. D., Mr. S. obtained a copy of the JF&CS file that covered these periods:

(a) April 2017 to November 2017

(b) January 14, 2019 to the present.

[147] In June 2020, Mr. S. received more than 400 pages from JF&CS and indicated that he intended to rely on the contents of the file at the trial. Mr. Slan did not agree that it would be admitted without identification by the authors. The file is in chronological order starting with the most recent events. Mr. S. called Ms. Archa who is the supervisor, and Ms. Cukier, Ms. Elsner and Ms. Filonov all of whom are Child Protection Workers. Ms. Cukier was involved in 2017. Ms. Elsner was involved in the period between January to May 2019 and Ms. Filonov took over from Ms. Elsner and remains involved. The witnesses were asked to identify documents that each had authored:

Michelle Cukier: pages 687-661; 658-650; 649-633; 630-602; 629; 601-595; 594-577;

Michelle Elsner: pages 502-499; 497-491; 487-480; 475-470; 465; 443-440; 425;

Eden Filonov: 423-424; 426; 421-402; 400; 385-383; 381-354; 353-317; 315-299; 297-290; 274-271;

Cilla Archa: pages 632-616; 613; 609; 498; 491; 477; 469; 422; 402; 384; 354; 316; 298; 289; 276; 545.

[148] In each case, he asked that the witness identify the contact log or report that she authored. A few additional questions were asked either by Mr. S. or Mr. Slan.

[149] Mr. S. relies on the contents of the file to support his narrative about the failures by Ms. D. and to confirm his assertions about her mental health challenges. He does not agree with 100% of the contents but pointed to what he thought indicated support for his evidence and his position. Mr. Slan relies on many excerpts to highlight entries that appear to reflect positively on Ms. D.

[150] The JF&CS was involved in 2017 following the library incident and has been involved since Mr. S. made his report on January 14, 2019. Ms. D. has entered into voluntary service agreements with the JF&CS. E.S. was never apprehended.

[151] As indicated above, the Trial Management Endorsement noted that the trial was set for 7.5 days. It was not possible to ask any one or more of these four witnesses with respect to the extensive involvement with Ms. D., Mr. S. and E.S. Having read the entirety of the file, I do not intend to address all of the details to which the parties have referred. What follows is a framework within which the JF&CS dealt with the issues presented.

(a) JF&CS file 2017

[152] The police were called while Ms. D. and E.S. were at the library. Once involved, the police contacted the JF&CS. Ms. D. alerted the principal of the school and she too contacted the JF&CS.

[153] The case notes indicate the steps that the JF&CS took. In his evidence, Mr. S. emphasized the case notes that indicated the condition of Ms. D.’s home, described in detail following the first visit to the home. Clutter was identified as a safety concern. There were also some cleanliness concerns. The case notes indicated that the workers were concerned about the state of the home, Ms. D.’s mental health issues, the fact that Ms. D. had let E.S. be alone in the library, and Ms. D.’s insistence that something of a sexual nature happened in the library.

[154] Following that investigation in early 2017, the JF&CS prepared the Ontario Verification Conference/Investigation Summary found at pages 650-658. Ms. Cukier prepared the Summary and Ms. Archa reviewed it. The Verification conference was held on May 8, 2017. The verification decision was that the original eligibility reason code 2.1B was verified and the secondary eligibility reason code 5.3B was also verified. In the summary, the report details the original referral on account of the library incident and then the attendances by various JF&CS personnel at Ms. D.’s home. At page 654 appears the following:

Worker has concerns about M.D.’s fixation on the events which M.D. believed to take place. Worker is concerned around mother’s mental health. Despite this, M.D.’s professional supports do not have concerns around her mental health. M.D. is going to Holland for the Passover Holidays. Worker will reach out to her family supports to support her remotely while she is away.

Child was safe at the present moment. Although mom was exhibiting concerning behaviours the child ended up going with dad that day. Child also made no concerning disclosures about caregivers. Mom has since calmed down and has been cooperative with a safety plan concerning her trip overseas.

Risk Assessment:

Neglect Score: 2

Abuse Score: 1

Final Risk Level: Moderate

. . . Ms. D. did leave E.S. unattended in the library as she often loses track of timing. Ms. D. has reported that she has historically been diagnoses [sic] with Obsessive Compulsive Personality Disorder although is not currently being treated for it.. . . Ms. D. has the support of her friend as well as a therapist through Flemingdon Health Center, D.G. as well as her family doctor. E.S. is well supported by her school who has no concerns. Ms. D. is open to the support of the JF&CS in attending her home.

. . . as police have informed this worker that according to library security cameras E.S. was left alone in the library, the concerns around inappropriate supervision are being verified. Additionally, both E.S. and Ms. D. spoke about E.S. being alone in the library. Concerns around Ms. D.’s mental health are being verified at this time due to the current state of the house as well as Ms. D.’s fixation on the alleged events.

CASE DISPOSITION PLAN: Transfer to ongoing services to work ongoing with Ms. D. and her family to ensure the state of the home improves and that E.S. is not effected by mother’s mental health.

Worker recommends that Ms. D. look into a psychiatric assessment for her mental health needs. Worker also recommends that the family access an individual support for E.S. to deal with any events in her life. Worker recommends that Ms. D. attend to the state of the home. The family was made aware of the services available through JF&CS and that they can call Intake if necessary.

[155] The JF&CS worker had met with Mr. S. and had visited his home. The case notes indicate that there was no concern about the father’s home or E.S.’s relationship with her father.

[156] Ms. D. entered into a Plan of Service with JF&CS dated June 8, 2017 for five months. In the section “Overall Review”, the following appears:

CP [child protection] concerns were explained to parents, and they agreed to these goals. M.D. is prepared to address the concerns and reach out to the appropriate [sic] and recommendations for the children, [sic] as well as getting a referral for a psychiatrist and addressing her own mental health needs.

[157] The closing summary is dated November 9, 2017. In the risk assessment dated November 9, 2017 the risk was rated “low”. It notes that the case is to be closed because there were no longer child protection concerns. At page 603 the following appears:

Upon closing, JFCS is recommending that mom seek psychiatric help for a formal diagnosis if she deems appropriate. This worker feels the heightened level of chaos that was present when we met her has been resolved.

Ms. D. is able to put the needs to E.S. before hers and is working with her supports to set limits and boundaries.

[158] In those excerpts, the JF&CS had recommended that Ms. D. seek psychiatric help for a formal diagnosis. There are no clinical notes and records and no medical reports to indicate that she took that step.

[159] Ms. D. did have some “supports”. Before or at the time of the separation, she had consulted with a social worker D.G. and that continued for approximately five years. In June 2018, she stopped seeing Ms. G., as I understand it, because she had exceeded the allotment of time that the social worker was ordinarily available.

[160] When that service was no longer available, Ms. D. contacted the North York General Hospital and was put in touch with a psychiatrist, Dr. Hunda. Ms. D. said that a lot of things were happening, that E.S. had finished grade 1, that E.S. was getting confused. Ms. D. thought she needed as much support as she could get, having finished with D. G. She said that she had seen Dr. Hunda three times in person and two times over the phone. In September 2018, she began a 12 session program with Genevieve McMath, a psychiatric nurse at North York General Hospital. That program ended in May or June 2019.

(b) JF&CS file 2019

[161] The Safety Assessment dated February 22, 2019 provides a summary of what occurred. The “reason for eligibility” was code 5.3B namely “Caregiver has problem causing risk that the child is likely to be harmed”. In the section requiring the “Rationale for Safety Decision” the following appears:

This worker attended the family home to complete the safety [sic]. Allegation was called in by the father who expressed concern about mom’s mental health and the impact on E.S. During the home visit, M.D., mother, presented as quite distraught regarding the state of the home. This was addressed and worker advised M.D. that certain areas needed to be dealt with immediately as these could pose safety hazards to E.S.; ie. Clutter on floor and stairs. E.S. presented well, however, she did say that she was aware that her parents did not get along as she once overheard mom arguing with dad on the phone (she advised that mom was outside, however, she could hear her). E.S. also disclosed that she wished she had a more organized home to live in. Although there are not significant concerns at this time regarding M.D.’s emotional stability seriously impairing her ability to care for E.S., E.S. did disclose that she is often late for school as mom has made her a list she must go through every morning before leaving for school. Worker had mom sign consents for E.S.’s school and professionals with whom mom is connected and worker will be following up with these individuals.

[162] Ms. Archa noted that in February 2019, the risk assessment was high. The risk assessment report dated May 8, 2019 indicates the following:

Neglect Score: 3

Abuse Score: 5

Scored Risk Level: High

[163] In May 2019 the file was transferred to Michelle Elsner and an investigation summary was prepared that included verification of code 5.3B namely “Caregiver has problem causing risk that the child is likely to be harmed”. The file was transferred to ongoing service.

[164] Ms. D. entered into a Plan of Service Agreement effective from June 6, 2019 to December 12, 2019. Under the goal of “well-being”, appears the following:

For M.D.’s mental health to not affect E.S. in any negative manner. To better address the communication relationship between M.D. and Y.M.S. M.D. to continue to attend her appointments and seek counselling services for her mental health needs and feelings.

[165] The file contains the Flex Psychological Assessment with respect to E.S. dated October 22, 2019 as well as contact notes where a JF&CS worker interviewed the mental health “supports” whom Ms. D. was consulting.

[166] As indicated above, the file of the JF&CS is in excess of 400 pages that Mr. S. received in mid-June 2020. Mr. S. sent an email to Eden Filonov dated June 21, 2020 in which he said he had reviewed the file. He complained about information from the police about the 2017 “library incident” that had not been shared with him at the time. He described the events of the 2020 “garage incident” as he understood them from E.S. He was critical of Ms. D.’s parenting and he asked that the JF&CS explain to Ms. D. what he thought were proper parenting approaches. He referred to the evaluation by three psychiatrists at Women’s College Hospital in 2011 and he asserted that “M.D. herself confirms this diagnosis during a home visit with Michelle on 28/06/2017.” Mr. S. also wrote that while Ms. D.

wants the best for E.S., however, her judgment and parenting is deeply impaired by her mental issues. M.D. is a recidivist. The chaos and clutter in her home will be back as well as her fits of anger. From the JFCS files, it is clear that M.D. avoided new psychiatric evaluation and all her therapists for the past 8 years attests that she’s just coming to rant and does not engage in any meaningful therapy. In view of the last incident [the garage incident], and added concerns I ask that JFCS perform a new risk assessment of this file as soon as possible.

[167] Ms. Filonov responded in an email dated June 26, 2020 indicating, among other things that she would have another virtual check in with Ms. D. and E.S. on June 30th and would look into the state of the home again.

[168] Mr. S. responded in an email dated June 27, 2020 reiterating his request that the JF&CS intervene in Ms. D.’s parenting.

[169] Mr. Slan asked Ms. Archa about risk assessments. She said that the risk assessment is done every six months. He asked her to look at the most current one and she said that Ms. Filonov had done an assessment dated July 23, 2020 in which she assessed the risk as “moderate”.

[170] The file produced by the JF&CS did not contain any contact logs after April 24, 2020. Following the hearing of the evidence, I could not locate a Plan of Service Agreement that extended beyond December 12, 2019 although services are still being provided.

[171] In examination-in-chief Ms. D. was asked about the extent of JF&CS involvement. She said someone visits her once per month. At the outset of COVID-19, the visits were virtual but since July, the worker had attended at her home. In addition, there is some email communication about events that are happening, such as the tutor. The workers had provided her with information such as a homework club for E.S.

School reports

[172] E.S.’s report card dated June 27, 2017 at the end of kindergarten year 2 indicates that she was absent 34 days and late 38 times.

[173] E.S.’s report card dated June 26, 2018 at the end of grade 1 indicates that she was absent a total of 26 days and late 45 times. In the category of Learning Skills and Work Habits, she scored “excellent” or “good” on responsibility, independent work, initiative, organization, collaboration and self-regulation.

[174] E.S.’s report card dated June 25, 2019 at the end of grade 2 indicates that she was absent 25.5 days and late 38 times. In the category of Learning Skills and Work Habits, her score was “good” in responsibility, independent work, initiative and organization. In collaboration her score was “excellent”; and in self-regulation, her scores were “satisfactory” and “good”.

[175] E.S.’s report card dated June 23, 2020 at the end of grade 3 indicates that she was absent 2 days and late 5 times. In the category of Learning Skills and Work Habits and based on evidence from prior to the school closure period, her scores were “good” in responsibility, initiative and self-regulation, “satisfactory” in independent work and organization and “excellent” in collaboration. That report card has three additional pages with respect to subjects taught. In French listening, speaking, reading, and writing her scores were A, A+, A+ and B. In mathematics in French, for three of the five components there was “insufficient evidence to assign a grade”. In the other two components her score was A. In French language instruction, in Science and Technology her grade was A; in Social Studies and Health there was “insufficient evidence to assign a grade”; in Physical Education she scored a B; in the Arts, for drama and visual arts, she scored A-.

[176] E.S.’s report card dated November 18, 2020 for grade 4 reflects learning that has occurred in the modified learning environment required by pubic health guidelines. It indicates that she was not absent any days and she was late one time. In the category of Learning Skills and Work Habits, she scored “satisfactory” in responsibility, organization, initiative and self-regulation; “needs improvement” in independent work; and “good” in collaboration. In her subjects, she was either “progressing well” or “progressing very well”.

[177] E.S.’s lates and absences have improved dramatically. That is consistent with the evidence of Mr. S. that Ms. D. has made improvements.

[178] In the absence of evidence from an educator, given the interruption caused by the pandemic and the modified learning environment since March 2020, one must be cautious about reaching conclusions. I observe that there has been a modest decline in her scores on Learning Skills and Work Habits, which has been a focus of much attention by Ms. D. Without quoting from the observations of the teacher, where available, E.S. appears to be stable. I understood that she had an Individual Education Plan but I see no indication in the school reports in 2018, 2019 or 2020. Ms. D. made a few comments about E.S.’s IEP including a recommendation that E.S. use technology, but not in class.

[179] After she finishes grade 5 in June 2022, E.S. must change schools.

Draft orders

[180] In his draft (amended November 22, 2020) Mr. S. asks for a parenting order containing these terms:

1. The Applicant shall have sole custody and decision-making authority.

2. Following the trial, E.S.’s primary residency will be with the Applicant.

3. E.S. will continue at her current school in North Toronto until February when she will switch to online schooling. After the school year, E.S. will attend a French Immersion school near her primary residency.

4. E.S. will have free access to call the Respondent daily. The Respondent will have daily access by phone to E.S.

5. The Respondent will have E.S. in her care one out of two weekends from Friday after school until Sunday evening. The Respondent will collect E.S. from school and the Applicant will pick up E.S. at the Respondent’s home an hour before sundown.

6. The parents equally share March and winter breaks.

7. The Respondent will have E.S. in her care for two weeks during summer vacation and one out of two weekends.

8. The Applicant will decide the exact dates of visitations.

9. All communication between the parties will be by email or text messages, using telephone in urgent cases.

10. E.S. shall always be in M.D.’s care on the Jewish High Holidays, namely Rosh Hashanah and Yom Kippur, Purim, and for at least one Passover Seder as well as a Tu BiShvat dinner (5pm to 8pm) every year. In addition, M.D. will choose a day were E.S. shall be in her care, one day of Sukkot and one day of Simchat Torah and one day of Hanukah.

[181] In her proposed parenting order, Ms. D. suggests the following:

1. The Respondent shall have sole decision-making authority; she will consult with Mr. S. on all issues related to E.S.’s health and education and religion, but the final authority to make such decisions shall rest with the Respondent.

2. E.S. shall continue to reside primarily with Ms. D. Mr. S. shall have parenting time with E.S. every Tuesday from after school until 7 pm.

3. The parties shall share weekend parenting on an alternating basis, with E.S. being in Y.M.S.’s care on alternating weekends, from Friday at 4 pm until Monday morning, at which time Y.M.S. shall return E.S. to school, save and except on those weekends that E.S. has Scouts, in which case Y.M.S. will return E.S. by no later than 4 pm on Sunday by dropping her off at the Schwartz Reisman Centre.

4. If E.S.’s weekend with Y.M.S.is a long weekend where the Friday is a PA Day or holiday, E.S. shall be in Y.M.S.’s care from Thursday at 4pm where he will pick her up from the school playground until Monday morning when she will be returned to school.

5. If E.S.’s weekend with Y.M.S.is a long weekend where the Monday is a PA Day or holiday, E.S. shall remain in Y.M.S.’s care until Tuesday morning at which time she will be dropped off at school.

6. Y.M.S. shall ensure that E.S. attends those extracurricular activities of E.S. that are scheduled to take place during his parenting time.

7. E.S. shall spend every Mother’s Day weekend in the care of M.D. and every Father’s Day weekend in the care of Y.M.S.

8. If E.S.’s birthday falls on a weekday, Y.M.S. shall have parenting time with E.S. from 4pm to 7pm; if E.S.’s birthday falls on a weekend, the parent who does not have access during that weekend will receive a 3 hour parenting time during the afternoon (3pm to 6pm).

9. E.S. shall spend every Labour Day with M.D.

10. The parties shall alternate the Family Day weekend, with E.S. spending same with M.D. in odd-numbered years and Y.M.S.in even-numbered years.

11. During the summer months, Y.M.S. shall have parenting time with E.S. on alternating weekends from Friday at 4pm until Monday morning. Y.M.S. shall also have E.S. in his care for 7 consecutive days in each of July and August, provided that the weeks are non-consecutive.

12. The above summer schedule shall not be in place during the COVID-19 pandemic, during which time the normal schedule shall be in place.

13. E.S. shall always be in M.D.’s care on the Jewish High Holidays, namely Rosh Hashanah and Yom Kippur, Purim, and for at least one Passover Seder as well as a Tu BiShvat dinner (5pm to 8pm) every year. In addition, E.S. shall be in M.D.’s care for Sukkot in odd-numbered years and Simchat Torah in even-numbered years.

14. The parties shall share the Winter break equally, which shall commence after school at 4pm on the last day of school and ending Sunday at noon before school re-commences. In even-numbered years, E.S. shall spend the first week in the care of Y.M.S.and the second week in the care of M.D. In odd-numbered years, E.S. shall spend the first week in the care of M.D. and the second week in the care of Y.M.S. The transition shall occur at noon on the Saturday after the first week. The parties shall each accommodate the other’s request to travel with E.S. during the Winter break, provided that said travel is to a country that is a contracting party to the Hague Convention on the Civil Aspects of International Child Abduction.

15. During the winter school break, the weekend schedule shall be overridden. Notwithstanding the school winter break schedule, M.D. shall have E.S. in her care for at least one day of Hanukkah each year, save and except if such day falls on Y.M.S. winter break week, and he has chosen to travel with E.S.

16. The parties shall alternate March break, with E.S. being in the care of Y.M.S. for March Break 2021. The parent who has E.S. for March Break in a given year shall have her in his/her care from the last Friday before March break until noon on the Sunday prior to her return to school. The weekend rotation schedule shall be overridden during March Break.

17. During the school year, Y.M.S. shall commence his parenting time by retrieving E.S. at her school playground at 4pm.

18. For exchanges during the school winter break, March break and summer months, the exchanges shall occur at the parking lot of Food Land, located at 107 Parkway Forest Drive from which Y.M.S. shall pick up and drop off E.S.

19. Both parents shall be at liberty to travel with E.S. during their parenting time, inclusive of travel across international borders and the non-travelling parent shall be provided with a travel consent containing the particulars of such travel, inclusive of flight numbers, destination, duration and contact numbers for E.S. during the trip, for his/her execution. The non-travelling parent shall provide an executed travel consent to the travelling parent by no later than 30 days prior to the departure date.

20. During those times that E.S. is with Y.M.S. for a period exceeding 24 hours, M.D. shall have telephone access with E.S. for a period not exceeding 15 minutes.

21. When E.S. is in M.D.’s care, she shall have telephone access with Y.M.S., for a period not exceeding 15 minutes, except on those days that involve a parenting exchange.

22. The parties shall ensure that E.S. is kept on a kosher-style diet and that she is not fed bread during Passover.

23. Ms. D. shall refrain from returning E.S. to M.D.’s residence with any items that may be out of the norm for a child of E.S.’s age, or which are not age appropriate items, or items that may conflict with M.D.’s parenting views, unless Y.M.S. first communicates his request to provide E.S. with such items and receives written permission from M.D. to do so.

24. M.D. shall retain E.S.’s birth certificate, passports and health card. If required for travel, M.D. will provide E.S.’s passports to Y.M.S., who will promptly return the passports to M.D. upon his and E.S.’s return from the trip that necessitated the provision of E.S.’s passports.

25. All communication between the parties shall occur via Our Family Wizard, save and except in the event of an emergency related to E.S., in which case the parties may communicate via text message or telephone or e-mail.

26. E.S.’s name shall be changed to E. D. S.

[182] Ms. D.’s draft order is more detailed than is Mr. S.’s, I assume in an effort to anticipate areas of conflict. What is common to both of them is that each wants to secure control over every aspect of E.S.’s relationship with the other parent.

[183] Mr. S. takes the position that Ms. D. cannot provide appropriate parenting for E.S. because of her mental health issues which he says she has never treated. He sees no prospect of change, although she has consulted many mental health professionals and been subject to JF&CS supervision for about 7 months in 2017 and continuously since January 2019. He is asking that he be the primary decision-maker and that E.S. have her primary residence with him during the week and see her mother on alternate weekends. The terms of his order are meant to give him control.

[184] In her evidence with respect to his draft order, Ms. D. said that she did not trust that Mr. S. would consult with her. She gave an example of the spring when she and E.S. both had symptoms of COVID-19 and she wanted E.S. to remain with her. The parents did not agree on the appropriate public health recommendation. In the end, she kept E.S. isolated for two weeks. She said that lots of times she hears things from Mr. S. after the fact. She said that if she does give her opinion on something, he disagrees. She disagrees with his proposal that they communicate by email and text. She says that the emails that she sends are time consuming because she has to think about every word. She wants their communications to be through Our Family Wizard+ to prevent the communications becoming consuming. She asserts that children are affected by the conflict between their parents, not by having two homes.

[185] In her draft order, Ms. D. seeks to secure primary decision-making and primary residence. She said that she needed sole decision-making because it has been difficult to set up supports for E.S. As an example, it took her two years to get therapy for E.S. that had been recommended. Mr. S. refused to consider the “1 Family 2 Homes” program that she thought would be of benefit for E.S. She says that if she and Mr. S. did not have to make decisions together, it would not take so long to provide what E.S. needs. She said that she should be the decision-maker because she consults professionals and others and he keeps his opinions to himself and, as far as she knew, he has not consulted professionals.

[186] In respect of paragraphs 2 and 3 of her draft order, she said that E.S. would benefit from seeing her dad more frequently. She said there was a time when E.S. saw her dad on Tuesdays and she liked it even though it involved a commute. She said she had always said E.S. should return on Sundays but if it was only alternate weekends, she would “allow him to have longer weekends”, unless she had arranged scouts on Sunday which would require that E.S. be returned on Sunday afternoon.

[187] In respect of paragraph 11, she said she did not suggest splitting the summer 50/50 because Mr. S. was not doing things to support E.S. emotionally and she wanted to send E.S. to camp to learn independence. Furthermore, E.S. is exposed to more travel and more social interaction when she is with her mother.

[188] Although not in response to a question, Ms. D. said that during COVID-19 they had tried alternating weeks but E.S. would come back from her father’s “not regulated”.

[189] In respect of paragraph 13, she said that Mr. S. was not taking initiative in celebrating the religious holidays so she wanted E.S. to be with her.

[190] In respect of other paragraphs of her draft order, she said PD days needed to be arranged in advance because she wants E.S. to go to camp. She said that Mr. S. always puts E.S. in the middle of extra-curricular activities and gave as an example skating that Ms. D. had arranged but that she stopped wanting to go because of Mr. S.’s attitude. She said that if extra-curricular activities are “open for discussion” E.S. will avoid it. She said Labour Day was important because of school, and there was a Labour Day picnic at the synagogue.

[191] Mr. S. acknowledged that Ms. D. was introducing E.S. to her Jewish heritage and would do so to a greater extent than he would. The parents agreed that E.S. would be with her mother for “Jewish holidays” but they did not agree what that meant. For example, Ms. D. says Mr. S. says that Hanukah is a one day celebration. She says that it is an eight day holiday and she wants at least two. She adds her birthday, and Shavuot and, although Israeli Independence Day is not a religious holiday, she says it is important to celebrate it with E.S.

[192] In respect of paragraph 23 of her draft order she gave as an example that Mr. S. had made a bow and arrow and had given it to E.S. and she brought it home. Ms. D. did not agree with E.S. having it, considered it unsafe, and did not want it in her house. She said that it was not “according to my values” for her to use the bow and arrow. She said she got the JF&CS involved. In the end, he took it back.

[193] In respect of paragraph 18, she said she wanted to change the location of pick up and drop off to a grocery store plaza because she wanted her privacy. She said that Mr. S. parks in the visitors’ section and she objects to him being able to observe her. Furthermore, by him parking there awaiting E.S., he is “eating into [her] parenting time”.

[194] In respect of paragraph 17, she said she wants the pick up after school because E.S. plays there with her friends and she wants to be there to see E.S. and that is an opportunity for the parents to pass information while E.S. is playing with her friends and to speak with Mr. S. about issues that she might not otherwise find out.

[195] In respect of paragraph 19, Ms. D. said that it was good that E.S. has opportunities to travel. She agreed to consult with Mr. S. in advance but she did not want him to use it as a bargaining chip.

[196] In respect of paragraph 20 and 21, she wanted regular contact with E.S. while she was with her father because he did not take the initiative to have E.S. contact her mother.

[197] In respect of paragraph 22, she said that Kosher is part of the tradition and it has become an aspect of the conflict. She wants E.S. to have a strong identification as Jewish.

[198] In respect of paragraph 24, she said she has always been the parent to keep the official documents. She said E.S. has three passports (Canadian, Dutch, and Israeli). She wants to be able to renew them.

[199] In respect of paragraph 26, she asks for the formal name change because E.S. is both “D.” and “S.”.

[200] In respect of paragraph 27, she said that she wants E.S. to be enrolled in activities and she does not want financial issues to get in the way.

[201] In respect of paragraphs 28 to 30, she said she wanted both parents to take responsibility; she wanted Mr. S. to pay table child support because she is not working and has more expenses than income. If there is something she wants to do, she will take financial responsibility.

[202] Mr. S. made few comments on Ms. D.’s draft order. I infer that that is because he sees it as unlikely that the court will make an order in her favour. Aside from his opposition to decision-making and primary residence, he is opposed to some of the details. For example, he is opposed to using Our Family Wizard because he does not want to be “censored”. He is opposed to meeting in a plaza. He is opposed to Ms. D. planning extra-curricular activities on his time. While he supports E.S. maintaining her Jewish heritage, he is opposed to Ms. D. making or asking to make changes that deprive him of opportunities to maintain his relationship with E.S. He disagreed with Ms. D.’s list of religious and cultural events and provided his own list in his revised draft order. He made no comment about the addition to E.S.’s name.

Divorce Act as amended

[203] In his 2019 Application, Mr. S. asked for sole custody of E.S. pursuant to the Divorce Act. In her 2019 Answer, Ms. D. asked for custody and child support pursuant to the Divorce Act. At the commencement of trial on November 16, 2020 I pointed out that, effective March 1, 2021, the Divorce Act would be amended to alter the framework from “custody and access” to “parenting decisions” and “parenting schedule” and that the criteria for making such orders had been modified. At my request, Mr. Slan provided to Mr. S. a summary of the amendments. In his proposed (revised) draft order and in his closing submissions, Mr. S. continued to use custody and access vocabulary while Mr. Slan used the vocabulary of parenting decision-making and parenting schedule.

[204] These reasons for decision will be released coincidentally with the proclamation into force of the amendments to the Divorce Act. I apply the Divorce Act as amended. Ms. D.’s Exhibit Brief contained the form 35.1 affidavits of Mr. S. (sworn June 1, 2019) and of Ms. D. (sworn July 31, 2019). While it is expected that the parties update those affidavits for trial, I am satisfied that I have all of the information that would have been provided if the parties had updated those affidavits.

[205] Pursuant to s. 16.1, the court may make an order providing for the exercise of parenting time or decision-making responsibility. Pursuant to s. 16.1(4) the court is permitted to making an order that allocates parenting time in accordance with section 16.2; that allocates decision-making responsibility in accordance with section 16.3; that includes requirements with respect to any means of communication that is to occur during the parenting time, and provide for any other matter that the court considers appropriate.

[206] Pursuant to s. 16.2, the court may allocate parenting time by way of a schedule. Unless the court orders otherwise, a person to whom parenting time is allocated has exclusive authority to make, during that time, day-to-day decisions affection the child.

[207] Pursuant to s. 16.3, the court may allocate decision-making responsibility, or any aspect of that responsibility, to either or both spouses.

[208] Pursuant to s. 16.4, unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons.

[209] Pursuant to s 16.6, the Court is required to include in a parenting order any parenting plan submitted by the parties unless the court finds the plan or plans are not in the best interests of the child. The court may make modifications to the parenting plans.

[210] Pursuant to s. 16, the court is required to take into consideration only the best interests of the child in making a parenting order. Pursuant to s. 16(2), when considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[211] Pursuant to s. 16(3), the court is required to consider all factors related to the circumstances of the child, including 11 enumerated factors.

[212] Pursuant to s. 16(4), the court is required to take into consideration factors in respect of family violence. Those factors are not a consideration in this case.

[213] Pursuant to s. 16(5), the court is not to take into consideration the past conduct of any person unless the conduct is relevant to the exercise of that person’s parenting time or decision-making responsibility.

[214] Pursuant to s. 16(6), in allocating parenting time, the court is required to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Analysis: Ms. D.’s mental health

(a) The evidence

[215] The focus of the evidence from Mr. S.’s perspective was that Ms. D. suffers from serious mental illness, namely OCPD and Asperger’s, and that those conditions have had and will continue to have a detrimental effect on E.S. to such an extent that Ms. D. cannot be the primary decision-maker nor be primarily responsible for E.S.’s care.

[216] The focus of the evidence from Ms. D.’s perspective was that the persisting conflict caused by Mr. S. affected her and her parenting. If the conflict was eliminated, there would be no challenges in her parenting of E.S.

[217] To arrive at my conclusions, I repeat some of the evidence referred to above with emphasis on the impact on E.S.

[218] In her examination-in-chief, Ms. D. acknowledged that a physician at Women’s College Hospital had made a “verbal diagnosis” of Asperger Syndrome and OCD. She said the doctor raised Asperger Syndrome as an “option”. She said that after she went home and thought about it, she went back to the hospital because she “felt it didn’t really add up”.

[219] In examination-in-chief, Ms. D. was asked what steps she had taken in 2017 with respect to mental health concerns after the JF&CS became involved. She said she went to her family doctor for a psychiatric evaluation. After discussing the reasons for it with him, the family doctor said it was not necessary. She said she continued to meet D.G. until June 2018. She thought that before 2017, D. had sent her for a psychiatric evaluation. She said she saw a psychiatrist at the Flemingdon Community Health Centre. Her evidence was unclear whether anything had come of that. This was an example of an answer that was not responsive to the question.

[220] Mr. S. asked many questions in cross-examination on the subject of the diagnosis. Ms. D. said that the doctors at Women’s College Hospital had “raised those options”. She said that they told her she had OCD and a trace of OCPD but not a full diagnosis of OCPD, and that Asperger was a possibility. She said it was not a full diagnosis. She said she was prescribed medication but for other reasons. In answer to Mr. S.’s question, she said that she had checked the definition of OCPD and Asperger on-line. He asked if she was familiar with the term “lack of insight” and she provided this definition: not able to understand how they are behaving, not able to understand what other people are saying, not perceive how others perceive you.

[221] Mr. S. asked questions about the extent to which Ms. D. had disclosed that “diagnosis” on the many occasions on which she was asked about her health history by her counsellors, her psychiatrist, E.S.’s psychiatrist, E.S.’s therapist, and numerous JF&CS workers. He used the contact logs from the JF&CS to challenge her on what information she had provided. In his email to Ms. Filonov dated June 21, 2020, he insisted that Ms. D. had confirmed the diagnosis of OCPD and Asperger’s during a home visit on June 28, 2017.

[222] Ms. D. said that she had been diagnosed with OCD and that there was a suggestion of Asperger’s and possibly OCPD. She said it was confirmed by a psychiatrist to whom D.G. had sent her and by Dr. Hunda (whom she consulted in 2019) that she did not meet the criteria. She said she had been doing therapy and knew that symptoms change and based on her understanding, she does not now have symptoms.

[223] Mr. S. asked if she had attended stress and anger management workshops. Ms. D. said she had attended two workshops on stress and anxiety but that anger management was not offered and she was not told she needed it. She said that at the time of the separation she had attended six workshops offered by JF&CS one of which was how to channel anger. She offered that Mr. S. keeps telling her she has anger management issues.

[224] Mr. S. asked her about a contact log (at page 419) in which Eden Filonov made notes of her conversation with D.G. Mr. S. referred to a passage attributed to D.G. Amongst other things, in that passage, Ms. Filonov noted that Ms. G. “couldn’t put a finger on it and at first I thought ADHD.” In responding to his questions about that hearsay, Ms. D. said that D. had referred her for a psychological evaluation in 2017 but that she did not know where it was because “nothing came out of it”. She also said that they were involved in a high conflict case and she was trying to take steps to reduce the high conflict.

[225] Mr. S. asked her about a contact log (at page 427) dated May 9, 2019 in which Genevieve McMath (Ms. D.’s therapist at North York General) was interviewed by Michelle Elsner. Mr. S. referred to the statements attributed to Ms. McMath about Ms. D.’s lateness, scheduling issues, obsessional behaviour and pressure and anxiety. In response, Ms. D. said she was late a few times and that she is “not punctual”. She said she thought she was not being believed that E.S. had anxiety.

[226] Mr. S. asked her about a contact log (at page 492) dated February 22, 2019 made by Michelle Elsner after a home visit in which E.S. made a reference to E.S. hitting her mother. Ms. D. agreed that E.S. did that sometimes and that hitting her mother is “beyond the boundaries”. She said that she had needed to let E.S. know that she should express emotions but not hurt her mother. She observed that that happened because E.S. was dealing with her parents who were in conflict.

[227] Mr. S. asked her about a statement attributed to E.S. in response to a question by Ms. Elsner in that home visit to the effect that, if she could wave a magic wand what would she want and E.S. said she wanted the house to be more organized. In response, Ms. D. said that she preferred to have a more organized home and she and E.S. talked about it. She said she had consulted professionals about how to accomplish that.

[228] Mr. S. asked Ms. D. how she expected E.S. to learn organizational skills (which was an aspect of her psychological assessment) if her home was a mess. Ms. D. said that she was helping E.S. in her organization skills by teaching her how to set and clear the table, how to bake, including creating an agenda for how to organize baking, on how to organize her bag (that she takes with her when she visits her father), how to create a calendar with activities, how to make lists for things to do such as brushing teeth and dressing. Ms. D. said that the clutter was not ideal but she was teaching E.S. organization skills.

[229] Mr. S. referred to E.S.’s bag frequently as an example of what he considered Ms. D.’s obsessional behaviour. He asked her about a contact log (at page 430-431) dated May 8, 2019 written by Ms. Elsner as a result of the home visit transferring from Ms. Elsner to Ms. Filonov, where there is reference to E.S.’s unpacking her bag taking 5 to 45 minutes. Mr. S. asked why it took so long. In response, Ms. D. said that sometimes its 5 minutes and sometimes its more and that she now understands that, at the end of a day, E.S.’s anxiety “affects her focus”.

[230] Mr. S. referred to that same contact log where Ms. Elsner had asked E.S. how were things with her dad, to which she said, “been pretty good”. And in response to “how’s it going at mom’s house” she said “not that good”. When asked “how come”, she said “because sometimes mom yells at her”. Mr. S. asked Ms. D. whether she yells at E.S. Ms. D. agreed that she did yell at her but it was not a habit. She said that it was a struggle to get her to focus on homework but that now E.S. has a tutor. When pressed, Ms. D. said she agreed that “yelling isn’t a good thing and E.S. knew it wasn’t a good thing but that she is human”. Mr. S. asked her if she continues to yell at E.S. and she said that she wasn’t saying that she didn’t yell at her but that sometimes E.S. was confused and exaggerating and sometimes it is just Ms. D.’s firm voice.

[231] Mr. S. also referred to the Voice of the Child Report dated November 17, 2019 where E.S. again mentioned her mom yelling at her. Ms. D. said that sometimes when she uses a “stern voice”, E.S. thinks she’s yelling. Mr. S. asked whether yelling helps with a child with extreme anxiety and ADHD and she said no but “sometimes yelling allows a child to release it”.

[232] Mr. S. asked her about the bicycle issue, namely that before E.S. went to Holland in May 2019 she was able to ride her bicycle when she was with her father but by the time she came back, she couldn’t ride anymore. Amongst other things, Ms. D. said that, in the context of an email at page 123, “E.S. is an expert at finding excuses”. She did not agree with Mr. S. that it was serious that E.S. could not ride the bike. She said that he was making a big deal about it. She also explained how she had taught her differently and that put E.S. in a position of conflicted loyalty whether to ride her bike the way one parent or the other taught her.

[233] Mr. S. referred to the school reports in June 2017, 2018 and 2019 and she confirmed the reported lates and absences that are referred to above.

[234] In re-examination, Mr. Slan asked Ms. D. to explain the possible diagnosis of OCD and OCPD and Asperger’s and her association with conflict between E.S.’s parents. She said that their marriage was not a supportive one and it was difficult. She said that sometimes people have different coping mechanisms to deal with stresses in life. She said that it gives her “joy to organize the books on the shelf and she does it for herself because she believes it is a good healthy coping mechanism”. She also said that if she wanted to do the laundry (in a specific manner), she would do it and not ask Mr. S. to do the laundry. She said that she now understands that this isn’t a mental condition but a symptom of the conflict [between her and Mr. S.]. She repeated that her position was that the conflict between them affects her emotional well-being.

(b) The relationship between Mr. S. and Ms. D.

[235] Having listened to and observed the parties for 7.5 days, it was apparent that there is considerable antagonism between them. Both were civil, including during Mr. Slan’s cross-examination of Mr. S. and Mr. S.’s cross-examination of Ms. D. They gave evidence in a manner similar to how they communicate electronically. Mr. S. made a point and moved on. Ms. D. gave long answers to most questions, some of which were not responsive to the question but appeared to be opportunities she took to get her point across. I had to instruct her repeatedly to be responsive. Each believes everything he or she says and does not accept what the other parent says. That does not mean that either parent is deliberately lying to the court. It means that the reliability of their evidence is in issue. However, there are so many records of the communications between them, and between them and others, that I look to those records to address the reliability issues.

[236] I have included extensive excerpts from emails and texts between the parents. I have included more excerpts from his messages than from her messages partly to demonstrate the tone and content of his messages and partly because her messages are so lengthy. I have omitted many including some of those to which Ms. D. referred and to which Mr. Slan referred in his cross-examination of Mr. S. In my view, the evidence and their email and text communications lead to these conclusions.

[237] First, while some of their communications are not remarkable, most of them reflect persistent conflict and demonstrate patterns. Mr. S. writes in short, often numbered sentences. Ms. D. writes in long, often rambling and repetitive text. Their communications are often late at night and early in the morning and are exchanged rapidly leaving little opportunity for the receiver to consider and digest before responding. Mr. S.’s communications are almost uniformly critical of Ms. D. Earlier, Ms. D.’s messages were informative and often engaging, seeking to have Mr. S. buy-in to her approach. However, the “eraser” emails demonstrate how Mr. S. used her email to castigate her. Mr. S. said that Ms. D. writes as she speaks, which was demonstrated in how she gave evidence. He writes as he speaks, short and to the point. Ms. D.’s persistent attempts to persuade him to do what she asks, to collaborate with her, to support her in what she thought was best for E.S. were regularly disregarded or rejected by Mr. S. The more dismissive he was, the more intense she was.

[238] Second, Mr. S. has no insight into the nature of his communications. He takes exception to Ms. D. insisting that he has been critical of her. In his written submissions he took the position that, from 2012 to 2019 he had “refrained from criticizing the Respondent aiming to reduce the stress”. He insists that Ms. D. “could not provide a single email or proof that the Applicant had criticized her or undermined her parenting during that period.” He also said that “starting in December 2018, [he] saw his duty toward E.S. to alert the Respondent of her deteriorating mental health, her obsessive and aggressive behaviour” which he “did not consider criticism because Ms. D. has no insight and because E.S.’s “well-being is on the line”. He said that he was not critical of Ms. D.; he was “just managing their communications”. In the extensive and sometimes lengthy quotations above, it is clear that he has been persistent in his criticisms of her. I agree with Ms. D. that many of Mr. S.’s communications are properly described as patronizing, angry, blaming, insulting, intimidating and threatening.

[239] Third, Mr. S. has resisted virtually all of Ms. D.’s efforts to assist E.S. He did agree with Dr. M.L.’s early recommendation for medication for E.S. but he was reinforced in his hesitancy when Dr. M.L. stopped the medication. Mr. S. was non-responsive, delayed in his response or dismissive of Ms. D.’s requests for interventions such as the program 2 Homes 1 Family, the school board counsellor, and the therapist C-J.P. His attitude toward the professionals appears to be based on two factors. The first is he has no respect for any suggestions that Ms. D. might make. And second, he considers himself more discerning and analytical. He rejects the input of any professional whom he feels has not been provided comprehensive information about Ms. D.’s diagnosis of OCPD and Asperger’s and has not accepted that information from him. He insists that it is Ms. D.’s serious mental health issues that cause any problems E.S. has and that has blinded him to the possibility that E.S. may have genuine neurological issues including ADHD and to the possibility that the conflict between the parents, for which he bears some responsibility, contributes to E.S.’s anxiety.

[240] Fourth, because of his preoccupation with Ms. D.’s serious mental health issues as causing any problems E.S. has, he has refused every suggestion Ms. D. made about parent counselling. She made various suggestions over the years which he dismissed out of hand because he did not need to participate and it was up to Ms. D. to get herself “fixed”. Over all these years since separation, he has refused opportunities to engage with professionals who might be able to assist the parents in addressing persistent conflict because he refuses to accept he may bear some responsibility for it.

[241] Ms. D.’s communications with Mr. S. are equally problematic for different reasons. Her lengthy, detailed and repetitive emails can only be described as insulting and demeaning of his role as E.S.’s father. She did not perceive that any more than he perceived that he was being critical of her.

[242] Based on the evolution of their communications since the separation over eight years ago, the prospect of significant improvement in their interpersonal relationship in the foreseeable future is dim.

(c) JF&CS

[243] As indicated above, on several occasions, particularly in the 2017 JF&CS records, the workers expressed concerns about Ms. D.’s mental health, which concerns were verified, and the JF&CS included a recommendation that Ms. D. obtain a psychiatric assessment. In 2017, the JF&CS closed the file without Ms. D. having followed that recommendation.

[244] It was the police (and the principal) who referred the matter to the JF&CS in 2017. It was Mr. S. who referred the matter in 2019. In both cases, the JF&CS has conducted an investigation, entered into one or more Plans of Service with Ms. D., and has followed up. Indeed, two years after his report on January 14, 2019, the JF&CS is still involved with Ms. D. and E.S. The JF&CS never apprehended E.S. But the fact that the JF&CS has persisted in supervision in 2017 and from early 2019 to the present confirms that at least some of the concerns raised by Mr. S. were reasonable and confirms that some interventions were required in E.S.’s best interests.

(d) Conclusion with respect to Ms. D.’s mental health

[245] Mr. S. was critical because he said he had asked Ms. D. and her counsel for access to her medical records and they had refused. Mr. Slan pointed out that Mr. S. had never brought a motion to compel disclosure.

[246] Ms. D. has reached out to professionals – many of them. She said assessments had been done but none were produced. There is likely a considerable volume of records that would have assisted the Court in understanding Ms. D.’s mental health status.

[247] It was in E.S.’s best interest that an assessment pursuant to s. 30 of the Children’s Law Reform Act or an investigation pursuant to s. 112 of the Courts of Justice Act had been provided to the Court. It was in E.S.’s best interest that the two professionals involved in her care, Dr. M.L. and C-J. P., would have participated as witnesses. But none of that happened.

[248] I cannot second-guess Mr. S.’s or Mr. Slan’s litigation strategy. Mr. S. was present when a doctor (or doctors) at Women’s College Hospital said that Ms. D. suffered from OCD and Asperger’s. He was not present when the OCD was modified to be OCPD but accepts and relies on it. There is no medical opinion evidence in this trial to confirm that Ms. D. suffers from OCPD and Asperger’s. Mr. S. said that “if I state facts, they are facts”. Courts do not make decisions on that basis. Mr. S.’s insistence that those are the facts is not a basis for a court making such findings of fact.

[249] In my view, “obsessiveness” in this case is a word that is used to suggest mental illness and in the context of the definition of OCPD that Mr. S. included in his Exhibit Brief that I directed be deleted. Because that word is the basis upon which Mr. S. relies in his case, I will not use it.

[250] I use the word “preoccupation”.

[251] Ms. D. is preoccupied with almost every aspect of E.S.’s life including her “ritual” about the bag, her insistence on compliance with the structures and routines she has established that she believes comply with the recommendations in the Flex Report, her insistence that E.S.’s teacher and principal provide the learning environment that she demands and her persistent attempts to have Mr. S. comply with what she decides in E.S.’s best interests.

[252] Ms. D. acknowledges some of the concerns about her parenting but she rationalizes them. For example, she agrees that she is late, but that is just her; she is not a punctual person. She agrees that she yells at E.S. but less now and sometimes, she is not yelling, it is just her loud voice or E.S. exaggerates. She accepts that she demonstrates some behaviour such as how to arrange a bookshelf or do the laundry but that is just her. She acknowledges that she was yelling at the meeting at the school but insists that the teacher was not doing her job and, in any event, is an apprehensive person. She agrees that she let E.S. play alone in a library at age 6.5 years and, at age 8.5 years, she let her play with the neighbour boys who locked her into a dark garage but those were her parenting decisions that Mr. S. disagrees with, or that she is just human. She agrees that E.S. has demonstrated anxiety but attributes it to the conflict between E.S.’s parents. She is preoccupied with her insistence and belief that Mr. S. is the cause of the conflict, the cause of any emotional challenges she might have, and the cause of E.S.’s anxiety.

[253] Mr. S. informs every professional with whom he has contact as to the diagnosis at Women’s College Hospital. He distrusts any professional involved with E.S. or Ms. D. if they fail or refuse to consider what he insists is her relevant mental health history. Based on his review of the Flex report, he notes that Ms. D. was not accurate in reporting her mental health history and that contributes to him dismissing the report. He provided extensive “surrounding” information to Dr. M.L. The contact logs in the JF&CS file indicate that he describes what he considers her mental history in detail whenever he has the opportunity. He raised it in cross-examination with Ms. J. S. and E. S-H. He repeated his strongly held beliefs many times during the trial. As he said in his written submissions, he “gladly considered any third party guidance as long as this party shows some integrity and critical thinking”. He says that that demonstrates acuity of thinking. In my view, it also demonstrates that he is preoccupied by and committed to his belief that Ms. D. suffers from serious mental illness that impairs her ability to parent E.S.

[254] On the record before me, I do not find that Ms. D. suffers from serious mental illness such as OCPD and or Asperger Syndrome. While E.S. experiences the conflict between her parents, I do not accept that that conflict is the cause of E.S.’s anxiety.

[255] However, I accept that aspects of Ms. D.’s behaviour may be impacting E.S. and contributing to her anxiety. Indeed, Ms. D. concedes that. But, on the record before me, I cannot make findings as to (a) the extent of that impact on E.S. and (b) the extent of the impact on E.S. of the conflict between the parents.

[256] In my view, whatever impact Ms. D.’s behaviour has on E.S., it does not justify changing an almost 10 year status quo and moving her from her mother’s primary care, the home she has consistently occupied, her neighbourhood, her school, her social contacts, and her religious and cultural environment.

Analysis: Principles of the parenting plan

[257] The parties have not negotiated the terms of a “parenting plan”. At the outset of the trial on November 16, 2020, given the imminent proclamation date of the amendments to the Divorce Act, I considered making an order directing the parties to attempt to negotiate the terms of a parenting plan and postponing this decision until those attempts were concluded. I have decided against that course of action for these reasons.

[258] First, their evidence and their detailed draft orders suffice for me to have a comprehensive record from which I can derive the key elements for a parenting plan as contemplated by s. 16.1. Second, as their evidence makes clear, they are incapable of negotiating anything significant, let alone a detailed parenting plan particularly since each is so opposed to decision-making by the other parent. Third, the evidence is also clear that it is in the best interests of E.S. that this decision not be delayed.

[259] One of the few things on which the parents agree is that E.S. experiences anxiety. Mr. S. blames Ms. D. Ms. D. blames the conflict which, in effect, blames Mr. S. The fact that the Court in this decision does not accept either is unlikely to change that blaming. I do not see any change in the perspective of either parent in the foreseeable future. To promote change in perspective, I will make orders requiring the parents to engage in counselling.

[260] In my view, the priority is to shield E.S. from the parental conflict. To address that priority, these are the principles that inform a parenting plan that will respond to E.S.’s needs and work in her best interests:

(a) E.S. has meaningful and important relationships with both her parents that must be continued.

(b) Each parent, in isolation from the other, has provided E.S. with a loving, nurturing home and should continue to do so.

(c) E.S. should not be exposed to the conflict between her parents and should not be in the presence or hearing of both parents at the same time.

(d) The parenting time schedule should be created so as to eliminate, not minimize, but eliminate, opportunities for the parents to engage in conflict.

(e) E.S. should transition between her parents as infrequently as possible.

(f) Rigidity in establishing decision-making and parenting time is essential. The parents are not capable of being flexible without conflict.

(g) E.S.’s religious upbringing and heritage is important But facilitating access to all religious or Jewish cultural events as defined by Ms. D. has created conflict. At this stage in her life, access to all the religious and cultural events sought by Ms. D. must be secondary to the principle of rigidity.

(h) In establishing a parenting schedule, the issue is the time that E.S. spends with each parent. The issue is not “dad’s time” or “mom’s time”.

(i) As E.S. gets older and achieves more independence, she will likely want more flexibility than is now possible but, at this point, the rigidity required by the current circumstances is essential.

[261] With those principles in mind, I turn to s. 16(2) and (3) of the Divorce Act that requires the court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining E.S.’s best interests.

s. 16(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[262] E.S. will be 10 in May 2021. Mr. S. appeared to initially accept the conclusions and recommendations in the Flex Psychological Report dated October 22, 2019 namely the diagnosis of ADHD and Generalized Anxiety Disorder. He continues to accept that she experiences anxiety, although he might not subscribe to it be a “disorder”. However, as indicated above, more recently Mr. S. has rejected the conclusions and recommendations and indeed takes the position that he and Ms. D. agree that E.S. does not have ADHD. That is not the evidence. Ms. D. continues to accept and implement the recommendations. Mr. S. does not.

[263] The parties agreed that the Flex report would be filed as evidence without the author of the report attending as a witness. Mr. S.’s primary objection to the report is that Ms. D. failed to fully disclose what he considered her medical history and specifically what he insists is a “diagnosis” of OCPD and Asperger’s. In my view, his challenge on that basis does not undermine the test results, the conclusions drawn from the test results and the clinical analysis or the recommendations. Ms. D. has been and is committed to following the recommendations of professionals to respond to E.S.’s needs as identified in the Flex report.

[264] One of the recommendations of the Flex report was that E.S. should have the benefit of a therapist. C-J.P. has been her therapist since January, 2020. Based on his email to Ms. D. dated September 17, 2020 at 8:52 p.m. (and prior communications), he is critical of C-J. P. from which I infer that he will not support E.S.’s need for therapy.

s. 16(3)(b) the nature and strength of the child’s relationship with each spouse, each of the child’s grandparents and any other person who plays an important role in the child’s life

[265] The parents’ extended family members live in England, Belgium, Holland and Israel. Mr. S. made reference to some travel with E.S. Ms. D. has regularly travelled to visit her family for religious events and others such as Ms. D.’s father’s birthday. Since the pandemic was declared on March 11, 2020, neither parent has travelled with E.S. although that is likely to resume. Ms. D. indicated that she and E.S. communicate remotely with her family. Neither parent has any family members in Canada. I am satisfied that all the relationships with E.S.’s maternal and paternal families are important.

s. 16(3)(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

[266] Occasionally in his emails, Mr. S. has acknowledged something that Ms. D. had done, for example, in his email dated December 5, 2018 at 12:44 a.m., although it is not possible to determine if that is an honest comment or tongue in cheek. In the middle of talking about the garage incident and bullying, Mr. S. said the following: “I must say M.D. has improved somewhat. E.S.’s school attendance last year was much better. Almost no lates. And E.S. reports mom doesn’t yell so much. E.S. has fidelity issues so she won’t tell me if there are problems.” A few minutes later, in the middle of talking about the JF&CS file, he said the following: “the school is not complaining too much about E.S.’s performance. E.S. attends school on time. The teacher is quite pleased with E.S.”.

[267] Other than the few emails and those rare observations he made, Mr. S. does not acknowledge that Ms. D.’s parenting has been beneficial to E.S. Indeed, the thrust of his evidence and his submissions is that Ms. D.’s mental health issues are causing serious and prolonged harm to E.S. It is unlikely that he will change that opinion as a result of this decision. I have no confidence that he will meaningfully support the development and maintenance of E.S.’s relationship with her mother.

[268] On the other hand, as indicated in various emails and in her evidence, referred to in paragraphs 50, 79 and 141, Ms. D. made various references to the importance of E.S.’s relationship with her father. I am optimistic that she will continue to support the development and maintenance of E.S.’s relationship with her father.

s. 16(3)(d) the history of care of the child

[269] Ms. D. has been the primary caregiver. Mr. S. has offered and would gladly have accepted more of the caregiving responsibilities. He suggested more than once that E.S. move to Oshawa to live with him and see her mother on weekends. That did not happen. E.S. has lived her 9+ years in the care of her mother. She has been in nursery school, kindergarten and primary school in her neighbourhood. She is engaged in activities in her area.

[270] Mr. S. has introduced E.S. to some aspects of residence in the Oshawa area. Based on the evidence, he would have done more locally but has been hampered by uncertain pick up and return times and activities that Ms. D. scheduled that meant that she insisted that E.S. be returned Sunday afternoon. Longer periods of time with E.S. in Oshawa will provide the opportunity to explore more locally.

s. 16(3)(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[271] The Voice of the Child Report and the records of the JF&CS corroborate the concerns raised by Mr. S., namely that Ms. D. persistently yelled at E.S.; that E.S. wanted a more organized home; that E.S. was often late for school at least partly because of the rigorous procedures imposed by Ms. D. just to get out the door. Both the VOTC report and the records of the JF&CS demonstrate how E.S. has been confronted with the antagonism of each parent toward the other and that E.S. wants it to stop.

[272] E.S. wants to continue her relationships with both her parents and have more time with her father without being confronted with the fact that her parents don’t like each other. She wants as few changes as possible.

[273] The Voice of the Child Report was prepared when E.S. was 8.5 years old. But it shows considerable insight. She said what so many children do, namely that she wishes her parents would get back together.

[274] Recognizing that that wish cannot be fulfilled, she was clear that there were aspects of each of her parents’ home that made her want to spend more time with each parent. On balance, the clinician reported that E.S. wants to see more of her father.

[275] E.S.’s insights should be given considerable weight.

s. 16(3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage

[276] One of the few things the parents agreed when she started school was that E.S. should be enrolled in French immersion. On the evidence, Mr. S. promotes the use of French, Ms. D. promotes the use of Hebrew, and they both promote the use of English.

[277] The parents agree that, before E.S. was born and before they separated, there was no discussion about the extent to which she would become engaged in her Jewish heritage.

[278] Since then, Ms. D. has ensured that E.S. is deeply engaged in her Jewish heritage and her Israeli culture. Ms. D. has had the resources to take E.S. to visit her extended family for High Holidays, family birthdays and other occasions.

[279] Mr. S. is not involved in practicing his Jewish heritage but has enabled E.S. to pursue it by agreeing to parenting time adjustments so that she can participate with her mother. He also said that he maintains a Kosher home.

[280] The parents agree that E.S. should spend the “High Holidays” with her mother. They disagree on the duration of those events and whether other religious or cultural events should be accommodated, for example, Israel Independence day.

[281] While Mr. S. is agreeable that Ms. D. continue to promote E.S.’s Jewish heritage and that E.S. have opportunities to do so, he resists the many events demanded by Ms. D. because they are so frequent that it means considerably less opportunity for E.S. to be with him and requires adjustments to a regular schedule which create conflict.

[282] As indicated in the principles listed above, E.S.’s opportunities to experience religious and cultural events must be secondary to the rigidity of the parenting schedule. In my view, the way forward is to accept a less comprehensive list of events than Ms. D. wants so that E.S.’s time with her father is not affected as much as it has been in the past.

[283] E.S. will be 10 in May 2021 and 11 in May 2022. Ms. D. intends that E.S. train for and have a Bat Mitzvah which, for girls, is at age 12. It involves six to twelve months of studying so that she can read Hebrew passages in public as well as taking on responsibilities in the community.

[284] Ms. D. and Mr. S. have not had a discussion about E.S.’s Bat Mitzvah. In her evidence, Ms. D. said that she thought that E.S. would want a more egalitarian synagogue for her preparation year and for the celebration, but she had not yet investigated options.

[285] Regrettably, I foresee a significant increase in opportunities for conflict during that preparation period. That must be managed in keeping with the principles of the parenting plan. The parties did not ask for any specific arrangements with respect to E.S.’s Bat Mitzvah training. Ms. D. will have the parenting decision-making with respect to whether and when E.S. has her Bat-Mitzvah, but only to the extent that those arrangements do not impact on E.S.’s time with her father.

[286] Ms. D. has routinely taken E.S. overseas to visit family in the winter break and the March break. The dates of these events are known in advance but are fluid year to year. I agree that those trips are valuable opportunities for E.S. to maintain her relationships with her extended families, including her elderly maternal grandparents. However, they must be considered in allocating all of the holiday time available throughout the year, not in addition to holiday time.

s. 16(3)(g) any plans for the child’s care

[287] Neither parent gave specific evidence with respect to their plans of care assuming E.S. was living primarily with him or her. But I draw these conclusions from the evidence and their draft orders.

[288] Mr. S.’s plan is to ensure that E.S. is protected from the excesses of her mother caused by his conviction that she suffers from serious mental illness.

[289] Mr. S. has no plan to address E.S.’s documented needs. I infer that is because he does not think a plan is needed and to the extent that she may have any needs, he is capable of addressing them.

[290] He does not agree anymore with the diagnosis of ADHD. He has not detailed any approach to E.S.’s education and learning other than he will continue to work with her and support her. He has not investigated local schools, including whether there is a French immersion program available in his Oshawa community.

[291] Ms. D.’s plan is to continue to consult professionals and be in a position to carry out recommendations without opposition from Mr. S.

s. 16(3)(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

[292] Ms. D. has consistently searched out resources. As Mr. S. observed, she would have researched every aspect of the diagnosis of ADHD. As she said after the library incident, she blamed her tiredness and distractedness on having googled all night investigating what she should do.

[293] Mr. S. takes the position that Ms. D. keeps E.S. far too occupied and that, instead of after-school activities every day, E.S. should be given down time. Mr. S. argues that Ms. D. is over-regulating and imposing rigorous approaches to learning that do not work. There clearly are differences in parenting styles as demonstrated by the “free range parenting” approach on the one hand and teaching E.S. how to use a bow and arrow on the other hand. How each parent manages the child’s time when with the child is up to that parent.

[294] I am satisfied that Ms. D. will continue to be responsive to E.S.’s needs. Because Mr. S. denies that she has the needs identified by Ms. D. or insists that her needs are exaggerated, I am not satisfied that he will be responsive to E.S.’s needs.

s. 16(3)(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child

[295] In the section above on the relationship between the parents, I have made observations about the nature, content and tone of the communications between the parents. Mr. S. does not want to communicate with Ms. D. except on limited subjects dealing with E.S. He will not speak with her on the telephone unless it is an emergency dealing with E.S. and then he records the call. He has no regard for the two professionals that Ms. D. has provided for E.S. and has not supported her on those interventions.

[296] Mr. S. has neither the ability nor the willingness to communicate and cooperate with Ms. D.

[297] Ms. D. ostensibly has willingness although her method of communication amounts to repeatedly insisting that he adopt her way of parenting E.S. On balance, once Ms. D. is in the position to make decisions, and when the protocol for communications is adopted, I am optimistic that the nature, content and tone of her communications will improve.

Conclusion: Decision-making

[298] The parents agree that they cannot make joint decisions. I agree with their conclusion.

[299] Mr. S. is expecting that the court will accept his evidence and make orders in his favour that vindicate him. In his written submissions, Mr. S. agreed that Ms. D.’s parenting had somewhat improved in the last few months, while [she] was under the scrutiny of the JF&CS and the legal procedures were in full swing. However, he wrote that given years of neglect and abuse, and despite the recent improvement, he has “strong convictions that [Ms. D.] will not successfully parent E.S. as a growing teenager.” Therefore, he asks that court “accept his position in full.” His closing comment was that his “long-term policy of appeasement toward the Respondent ended up being harmful to E.S.” and he has ”faith that Her Honour will make a better choice”.

[300] Ms. D. is also expecting that the court will accept her evidence and make orders in her favour that vindicate her. Indeed, when I asked her what parenting schedule she requested if Mr. S. became the primary parent, she appeared to be taken aback even by the prospect of that happening.

[301] While both parents have been motivated to do what they think is in E.S.’s best interests, neither of them has demonstrated that in their conduct. Neither parent has been able to put E.S.’s interests first. Both parents have deficits. Each parent has some legitimate reasons for blaming the other. Neither parent should feel vindicated by this decision.

[302] If the interpersonal relationship is unlikely to be improved in the immediate future and if Ms. D. is more likely to take steps to identify and respond to E.S.’s needs, it is in E.S.’s best interests that her mother be responsible for E.S.’s primary residence and non-day-to-day decision-making, with one exception referred to below.

Analysis: Comments on the parenting order

[303] I turn to how those considerations impact the details of the parenting order.

[304] One of the principles listed above is that it is in E.S.’s best interests that she not be exposed to the conflict between her parents and that she not be in the presence of both parents. Since 2012, the parents have operated without a schedule. There have been periods of time when something like a status quo was created. There was a period of time after March 2015 when Mr. S. insisted there was a “cordial accord” if not an agreement. No such agreement existed. The absence of a written agreement has created significant conflict. In my view, the way to resolve that is to establish a schedule that is detailed and inflexible and that leaves no opportunities for negotiating changes. That means that E.S. will miss out on certain opportunities but she will benefit by the reduction in conflict.

[305] The three categories of decision-making are education, health and religion. The exception to decision-making is respect of education. The one area of agreement is that E.S. should be in French immersion. E.S. must change schools in September 2022. Mr. S. should have an opportunity to participate in that decision-making process.

[306] As for health, Ms. D. must consult with Mr. S. on non-day-to-day medical and health issues and, after giving him an opportunity to provide his views, she may decide.

[307] In this case, “religion” encompasses both religion in the usual sense of faith and participation in faith-based events as well as cultural events. Mr. S. acquiesces in Ms. D. pursuing both with E.S. His concern is the ever-broadening list of events that Ms. D. says are encompassed in these concepts. The temporary consent endorsement dated June 19, 2020 indicates that E.S. would be in the care of her mother for “all of the Jewish holidays including but not limited to Rosh Hashanah, Yom Kippur, Hanukah, and Sukkot”. That order is replaced by this final order. The words “all” and “including” would appear to allow Ms. D. to decide what a “Jewish holiday” is. During her evidence, I asked Ms. D. to list for me the religious and cultural events for which E.S. should be with her and she listed nine, plus a later addition of Israeli Independence Day. Mr. S. disagreed partly because some items were not necessary and partly because it reduced “his” time with E.S. As indicated above, the proper approach is E.S.’s time with each parent, not the proprietary time claimed by each parent with E.S. Having said that, I agree that Ms. D.’s list is expansive, susceptible to further expansion and does create significant conflict when so many of them conflict with the regular parenting schedule.

[308] For that reason, I adopt the list in Mr. S.’s revised draft order.

[309] E.S.’s Bat Mitzvah would typically occur when the child is 12 years old. This is a challenging issue because the parents have had no discussion. While I am guided by the rigidity principle, it is difficult to predict how that could apply to this once in a lifetime event. Ms. D. will have decision-making as to whether E.S. has a Bat Mitzvah and when. The weekend when it takes place will be an exception to the regular schedule. However, I anticipate that the preparation in advance will create countless opportunities for conflict. If E.S. is with her father three weekends out of four, that may have an impact on her participation in the training and that may have an impact on when she has a Bat Mitzvah. I have established a framework within which the arrangements will be made. I am optimistic that for this event in E.S.’s life, that the parents may be able to reach consensus. I encourage, but cannot order, the parents and E.S. meet together with the Rabbi at the synagogue that Ms. D. and E.S. choose for the celebration.

[310] With respect to holidays, E.S. has benefited from visiting her grandparents overseas and other extended family members. The year 2020 was an exception because of COVID-19. As of early March 2021, it is unknown when, if ever, such regular travel opportunities will arise. I am confident that neither Ms. D. nor Mr. S. will travel internationally until it is safe to do so and I place no restrictions on that. However, E.S.’s travel time must be spread evenly between the parents. I have established a regime whereby all non-school time will be shared equally so that E.S. spends 50% of winter break, spring break and summer with each parent.

[311] The most controversial aspect of the parenting schedule is the “regular” schedule. The “status quo” pursuant to the temporary consent endorsement dated June 19, 2020 is that Mr. S. has care of E.S. for “three weekends each month”. That too has caused conflict over how to interpret it. Mr. S. proposes that E.S. be with him three weekends out of four while Ms. D. insists that one weekend out of four does not give her enough opportunity of having weekend time with E.S. In her draft order, she proposes to alternate weekends. That is less than the status quo and insufficient to respond to E.S.’s desire to see more of her father.

[312] I am satisfied that it is in E.S.’s best interests that she spend time with her father three weekends out of four; that is not three weekends each month. I agree with Mr. S. that it is not desirable that he see E.S. during the week because of the commute between Don Mills and Oshawa. I agree with Ms. D. that Mr. S. could move closer to the former matrimonial home. However, based on his financial statement, I can understand why that is not viable. The reality is that E.S.’s time with her father must continue to be on weekends. After the temporary without prejudice order was made in June 2020, there was conflict over which weekends E.S. spent with which parent. That will not happen because the schedule will be fixed and there will be no negotiation.

[313] E.S. will be with her mother during the school week. Ms. D. believes that E.S. should be in a significant number of extra-curricular activities. This has caused conflict because she has scheduled some of them at times that happen during E.S.’s weekend with her father and because he believes E.S. should not be kept occupied all of the time but should be able to do nothing. It is Ms. D.’s choice what activities to arrange while E.S. is with her. E.S. will have more time with her mother during the week if she is registered in fewer activities.

[314] Indeed, Ms. D.’s draft order makes it clear that she wants sufficient control to ensure she can arrange activities when E.S. is with her father, even if he is opposed. That is not in E.S.’s best interests. How Mr. S. manages his time with E.S. is up to him. Neither parent is permitted to schedule any activities on E.S.’s parenting time with the other parent. This includes activities such as swimming lessons and scouts unless they are finished 30 minutes prior to the start or commence 30 minutes after the parenting time ends.

[315] The other controversial issue arising out of the weekend time is when the weekend starts and ends. Ms. D. is adamant that she have the opportunity to touch base with E.S. on Friday at the school yard. For years there has been conflict about return on Sunday (as Ms. D. wished) or return to school on Monday (as Mr. S. wished). Ms. D. insisted that E.S. had to be back Sunday afternoon so that she had the opportunity to “manage the transitions” and to “get E.S. organized for the week”. In her draft order, she acquiesced in return on Monday mornings to school but she qualified that with imposing conditions that would require that she usually return on Sunday. Mr. S. said that during the periods of time when he insisted on taking E.S. back to school on Monday, that they were never late, notwithstanding the commute, and he values the shared time in the car.

[316] At both pick up and return there has been significant opportunity for conflict between the parents and that will stop. The arrangements for pick up and return must not be in the presence of both parents. That means that on three weekends out of four Ms. D. will say goodbye to E.S. on Friday morning before school and see her again at the end of the school day on Monday. At E.S.’s age, that is reasonable.

[317] Mr. S. will pick up E.S. at the school at the end of the school day; that is not at 4:00 p.m. If Mr. S. wants to watch E.S. play with her friends in the school yard, that is up to him. The return will be at the school. Ms. D. is not to be at or near the school at pick up or return.

[318] Much has been said about how long it takes to organize E.S.’s bag. E.S. has her own belongings at her father’s house. Even if it is desirable to Ms. D. that E.S. carry her bag back and forth, it is not necessary that E.S. do so. If Ms. D. wants E.S. to carry a bag, she must ensure that E.S. takes it with her in the morning to school.

[319] Given the interruptions to school caused by COVID 19, at the trial E.S. was participating remotely. It is unknown whether that will change during this academic year but that cannot be an opportunity for conflict or an opportunity for Ms. D. to delay returning E.S. to in-person school so as to delay the “regular weekend schedule” pick up and return at school. As soon as children in her class are allowed back in schools, E.S. will resume on-site learning and all pick up and return will be at school. Until then, pick up will be at 4:00 on Friday and return will be on Monday at 9:00 a.m., both at E.S.’s home with her mother.

[320] Ms. D. had asked that the transitions be in a neutral place such as a plaza. I disagree. Ms. D. agreed that she is not punctual. She cannot be counted on to have E.S. ready when the pick up is at home. Adding the dimension of travel will exacerbate her tardiness. At any rate, given that regular pick up and return will be at school, there is less need for a neutral location.

[321] If either parent is occupied during his or her parenting time and cannot care for E.S., that parent cannot ask for make-up time or exchange.

[322] E.S. will be 10 years old in May. It is appropriate at that age, and it will reduce the conflict between the parents, if E.S. spends half of the summer with each parent. The parent with whom E.S. is residing will decide whether she attends camp, where and will pay the costs.

[323] Mr. S. is opposed to using Our Family Wizard because he does not want to be “censored”. I need not decide whether there is any merit to that position. I will establish the elements of a communication protocol.

[324] In her order, Ms. D. asked that E.S.’s name be changed to E. D. S. The request was not to change to E. D-S. Mr. S. made no comment. That is a reasonable request.

Analysis: Child Support

[325] In his draft order, Mr. S. takes the position that he overpaid child support in the years 2012 to 2014 and he asks for a refund in the amount of $33,728 which he calculates as the difference between what he says he paid ($1500 per month) and what he should have paid based on his income. While Mr. S. provided income tax documents for the years 2014 to 2019, he did not provide a calculation of the overpayment, nor did he provide any documentation to support the payments he asserts he made from separation in August 2012 to October 2014. That claim is dismissed.

[326] In view of the parenting order below, Mr. S. is obliged to pay child support to Ms. D. Mr. S. takes the position that if required to pay child support, it should be based on his line 150 income, not on imputed income.

[327] In her submissions, Ms. D. has asked for an order for child support on the basis of imputing income to Mr. S. of $25000 per year. She acknowledges that he has provided notices of assessment for the years 2014 to and including 2019 but, because he has been self-employed, she takes the position that the court ought not to rely on them to establish Mr. S.’s child support obligation. She points out that in the consent without prejudice order dated June 19, 2020, Mr. S. agreed to pay table child support of $199 per month based on his estimated annual income of $25,000. She asks that the order be retroactive to October 2014 because, on his evidence, he has made no contributions since then. That amounted to arrears in the amount of $14,364 as of December 2020.

[328] In her draft order Ms. D. also asks that, no later than June 1 of each year, Mr. S. must provide the financial disclosure listed in s. 21(1) of the Child Support Guidelines.

(a) Mr. S.’s income and disclosure of financial information

[329] Mr. S. has provided an information return for electronic filing for the year 2014, tax return for 2018 and notices of assessment for 2014, 2015, 2016, 2017, 2018 and 2019 that indicates as follows:

Year

Line

Amount

2014

150 total income 260 taxable income

$21,945 $21,032

2015

150 total income

$30,779

2016

162 gross business income 150 total income

$16,908 $ - $997

2017

162 gross business income 150 total income

$57,248 $17,937

2018

150 total income

$ 7,354

2019

15000 total income

$ 6,320

[330] In Ms. D.’s Trial Record is Mr. S.’s form 13 financial statement sworn June 12, 2019. In that financial statement, he deposed that “last year” his gross income was $20,000. For his “current income” in 2019, he indicated that it was self-employment income in the monthly amount before expenses of $2,775 and the amount received $1,666 for a total annual income of $19,999. He also listed Part 2 expenses in the amount of $19,533 yearly. In other words, for 2019, his income and expenses were the same. Mr. S. owns a townhouse in Oshawa that he valued at $300,000 and he had no debts. His other assets include RRSP’s in the amount of $142,610, business tools and inventory valued at $9,000, a business bank account of $8,000, U.S. cash of $3,349 and personal bank accounts of approximately $13,000. His total net worth is $479,190 as of June 2019.

[331] Mr. S. has been self-employed since separation. I agree that his line 150 income should not be the basis for establishing his child support obligation for these reasons.

[332] First, I infer that, if his situation had deteriorated, Mr. S. would have provided current information. I assume that his current circumstances are the same if not better. He said he had largely changed from the jewellery business to his luthier business. Several instruments were displayed on the wall behind him in his home. The income reflected in his form 13 financial statement sworn June 12, 2019 does not reflect the change in his business. He provided no information about his current income.

[333] Second, because a self-employed person is allowed to deduct expenses, including some portions of personal accommodation and other expenses, it means that the line 150 income does not reflect the income that is the basis of the typical table amount of child support.

[334] Third, because his expenses of $19,533 in 2019 derive from his calculation of his gross income less undisclosed expenses. That is permissible for tax purposes but is not transparent in revealing his standard of living and the income he must have to support it.

[335] Fourth, as of June 2019, he had accumulated a net worth of $479,190 which he could not have done if his available income was what is reflected in his income tax documentation.

[336] Fifth, at the hearing on June 19, 2020 he agreed to an order imputing income from which I infer that he conceded that his income exceeded the amount disclosed in his 2019 form 13 financial statement and 2019 notice of assessment.

[337] I agree with Ms. D. that Mr. S.’s income should be imputed to the amount to which he agreed in June 2020.

[338] When an order is made requiring a payor to pay table child support based on an imputed income, that, in itself, becomes controversial going forward. Section 25 of the Child Support Guidelines requires a payor to produce annually, not more than once a year after the making of the order, disclosure referred to in s. 25 and in s. 21(1). As indicated below, I am modifying the disclosure he is required to provide to avoid disclosure becoming yet another area of conflict. As long as he remains self-employed, his documentation will continue to reflect a line 150 income that ought not to be the basis of establishing his table child support payment. I agree that Mr. S. must comply with s. 25 and s. 21(1) and provide disclosure. However, the amount that Mr. S. is now ordered to pay for table child support will not change automatically dependent on his line 150 income because, so long as he is self-employed, his line 150 income may be below the minimum income and he would assert that he has no obligation to pay table amount of child support. That would not reflect his actual financial circumstances. While he will be required to disclose annually, the table child support amount will not change automatically each year. The amount ordered below will not be subject to change unless Ms. D. brings a motion to change final order that is granted. On that basis, Ms. D. will receive the annual disclosure but will decide whether it is worthwhile emotionally and financially to press for additional table amount of child support.

(b) commencement date of child support payments

[339] Mr. S. said that he had not complied with the consent endorsement because he discovered after that hearing that his obligation to pay child support should be based on his income tax return. He took the position that since his income as reflected in the tax return was less than that, he ought not to be required to pay any child support and, in effect, that that endorsement ought not to be enforced.

[340] I disagree. I see no reason to allow him to resile from the consent order.

[341] The endorsement dated June 19, 2020 did not specify a start date. Ms. D. takes the position that it should start at separation in August 2012. I do not agree. In the absence of a start date, particularly in the case of a temporary without prejudice consent endorsement with a trial scheduled to start within months, the start date cannot be earlier than June 2020. It should be the first of the month in which the order was made.

[342] I do not accept the submission that Mr. S. should be ordered to pay child support retroactive to September 2012. Ms. D.’s evidence was that she did not press the issue of child support at least partly because she knew it would be a source of considerable conflict. A payor ought not to be permitted to avoid his responsibilities to pay table chid support because the recipient is wealthy. However, on this record, it would be a challenge for Ms. D. to obtain an order for more than three years, or before January 2018. In this case, the conflict which undoubtedly would occur if the court ordered Mr. S. to pay retroactively to January 2018 would exceed the value to Ms. D. of the retroactive order given the legal expenses she would likely incur to enforce it; the value would pale in comparison to her own circumstances.

(c) s. 7 special and extraordinary expenses

[343] In his draft order, Mr. S. asked that in future, the parents equally contribute to E.S.’s medical and dental expenses but there would be no other s. 7 expenses shared.

[344] In her draft order, Ms. D. took the position that each parent should be solely responsible for payment of any extracurricular activities in which the parent enrols E.S. She also proposed that the parents be required to contribute equally towards E.S.’s medical and dental expenses as they may arise, inclusive of expenses related to E.S.’s therapy, and annual eye exams and the costs associated with vision care, including glasses if required.

[345] Until now, Ms. D. has paid virtually all of the expenses that would constitute s. 7 special and extraordinary expenses. With the exception of those listed, she is prepared to continue and has the means to do so.

[346] Ms. D. provided a form 13 financial statement sworn June 11, 2020. She indicated that she has been unemployed since July 2018. She did not know her gross income from all sources because she had not filed her income tax returns for several years. She said she had to file in more than one jurisdiction and that she had recently retained an accountant who spoke Hebrew who would be assisting her. Her expenses totalled approximately $77,000 per year including rent of approximately $1,800 per month. She has net worth of over $2 million that she said included significant assets provided by her family.

[347] Table child support requires disclosure only from the payor. Before making an order for s. 7 expenses, both parents must provide disclosure because the Court is required to fix a ratio between the parents based on “income” as defined in the Child Support Guidelines. Based on the limited information about Ms. D.’s financial circumstances with income from outside Canada, that will not be a straightforward calculation.

[348] Both parents suggest that whatever s.7 expenses the court orders now, each parent would pay 50%. That avoids the necessity of annual disclosure and conflict. And it enables each parent to decide what s. 7 expenses he or she offers to E.S. I agree with that approach.

[349] As E.S. gets older, no doubt expenses that qualify as “special and extraordinary” expenses will increase. Ms. D. may bring a Motion to Change Final order to incorporate additional s.7 expenses but to do so, she will be required to provide the necessary disclosure.

Publication ban

[350] At the outset of these reasons, I have inserted the publication ban required pursuant to the Child, Youth and Family Services Act. The JF&CS did not start protection proceedings but in my view, the content of the file that has been included as an exhibit in the trial ought to be protected from publication.

Costs

[351] Typically, after release of the reasons for decision, the parties would be asked to make written submissions as to costs. I will not do so for these reasons.

[352] First, pursuant to rule 24(1), the “successful” party is presumptively entitled to an order for costs. As indicated above, each parent expected to be vindicated. Neither parent is vindicated. It is not in E.S.’s best interests to allow the parties to make written submissions in which each will insist that in important respects each has been “successful”.

[353] Second, the court is required to consider offers to settle and whether one parent obtained a result that was more or less favourable than his/her offer to settle. The antagonism between the parents is such that I consider it so unlikely that offers, if any, will have any meaningful impact on costs, that I will not afford the parents the opportunity to analyze their “success” in relation to offers.

[354] Third, having heard extensive evidence from the parties, I have not observed any conduct that might be considered “bad faith” or “unreasonable”, both of which may have an impact on costs. It is not in E.S.’s best interests that the parents be given the opportunity to make submissions on that issue.

[355] Fourth, if the parents are given the opportunity to make written submissions, it will extend the time during which conflict will continue. It is in E.S.’s best interests that the conflict be reduced as soon as possible.

[356] Fifth, if written submissions are permitted, they will no doubt engage the issue as to the significant differential in the means each parent has to pay his/her own costs or recover costs. Mr. S.’s net worth is substantial but considerably less than Ms. D.’s. Ms. D. has had the advantage of having been represented by counsel. It is not in E.S.’s best interests to create an opportunity for the parents to focus on their financial circumstances, particularly when they have managed not to do so for over eight years. That may have been because Ms. D. did not pursue Mr. S.’s obligation to pay child support because she did not want to create inevitable conflict. But the fact is that their respective financial circumstances have not been a subject of conflict for years and that ought not to start now.

[357] Pursuant to Family Law Rule 2(2), the primary objective of the rules is to enable the Court to deal with cases justly. For those reasons, I am satisfied that an order that neither party pay or recover costs is both just and in E.S.’s best interests.

Divorce

[358] Both parties gave evidence as to the marriage and as to the date of separation. It is implicit in their evidence that there is no prospect of the resumption of co-habitation. Neither party asked for a divorce judgment. That was deliberate or an oversight. Either party may, at his or her expense, serve and file with the Trial Co-ordinator the usual documents required for an order granting the divorce, including the clearance certificate from the Central Divorce Registry.

PURSUANT TO THE DIVORCE ACT S.C. 2019, C. 16, S.12, FINAL ORDER TO GO AS FOLLOWS:

[359] The principles upon which this order is based are as follows:

(a) E.S. has meaningful and important relationships with both her parents that must be continued.

(b) Each parent, in isolation from the other, has provided E.S. with a loving, nurturing home and should continue to do so.

(c) E.S. should not be exposed to the conflict between her parents and should not be in the presence or hearing of both parents at the same time.

(d) The parenting time schedule should be created so as to eliminate, not minimize, but eliminate, opportunities for the parents to engage in conflict.

(e) E.S. should transition between her parents as infrequently as possible.

(f) Rigidity in establishing decision-making and parenting time is essential. The parents are not capable of being flexible without conflict.

(g) E.S.’s religious upbringing and heritage is important but facilitating access to all religious or Jewish cultural events as defined by Ms. D. has created conflict. At this stage in her life, access to all the religious and cultural events sought by Ms. D. must be secondary to the principle of rigidity.

(h) In establishing a parenting schedule, the issue is the time that E.S. spends with each parent. The issue is not “dad’s time” or “mom’s time”.

(i) As E.S. gets older and achieves more independence, she will likely want more flexibility than is now possible but, at this point, the rigidity required by the current circumstances is essential.

[360] The parents shall engage in counselling on these conditions:

(a) By June 1, 2021, each parent shall provide to the other parent the names of two parenting counsellors whom s/he suggests, provided that neither parent shall interview or otherwise speak with his/her proposed parenting counsellor.

(b) If by June 15, 2021 the parents have not agreed to the choice of a parenting counsellor amongst those four, then the choice shall be the counsellor whose surname is closest to the letter “L” in the alphabet.

(c) The parents shall begin that counselling no later than August 1, 2021.

(d) Each parent shall pay 50% of the cost incurred.

[361] E.S.’s name is changed from E.S. to E.D.S.

[362] M.D. shall have primary residence and sole decision-making authority in respect of the child E. S. born May 30, 2011 (“E.S.”) on these conditions:

(a) On all non-day-to-day and non-emergency issues related to E.S.’s health, after consulting with Y.M.S.by (a) in writing, describing the issue and the options available and (b) waiting for at least 7 business days for his response;

(b) On all issues related to E.S.’s religion, after consulting with Y.M.S.by (a) in writing, describing the issue and the options available and (b) waiting for at least 7 business days for his response; and provided that, other than the religious holidays to which reference is made below, M.D. is not permitted to make any arrangements that impact on any of E.S.’s time with her father;

(c) On all issues related to E.S.’s education, after consulting with Y.M.S.by (a) in writing, describing the issue and the options available and (b) waiting for at least 7 business days for his response; and provided that:

(i) M.D. and Y.M.S. shall make reasonable efforts to agree on the selection of the school at which E.S. will attend starting in September 2022 and until and including grade 8; and

(ii) if by January 15, 2022 Y.M.S. and M.D. have not agreed on the selection of school, then M.D. has sole decision-making authority in respect of the school; and

(iii) E.S. will remain in French Immersion unless the parents agree in writing otherwise;

(iv) both parents may attend all school functions;

(v) the parents will attend parent-teacher meetings together, if they agree; if no agreement, individually;

(vi) each parent will obtain his or her own school calendar and school notices;

(vii) the parents will alternate school field trips.

[363] Y.M.S. shall have parenting time with E.S. based on the following “regular weekend schedule”. Commencing in 2021, on the Friday in September of the first week of school and ending on the last day of school in June, E.S. will be with her father for three weekends out of four and with her mother for the fourth weekend provided that:

(a) in the period commencing with Friday of the first week of school in September 2021, E.S. will be with her father weekend 1, 2 and 4 and with her mother weekend 3;

(b) in the period commencing with Friday of the first week of school in September 2022, E.S. will be with her father weekend 1, 3 and 4 and with her mother weekend 2;

(c) alternating from year to year thereafter.

[364] “Regular weekend schedule” begins on Friday at the end of class at school and ends on Monday at 9:00 a.m. at school provided that, so long as E.S. continues remote learning, “weekend” begins on Friday at 4:00 at her mother’s home and ends on Monday at 9:00 a.m. at her mother’s home.

[365] M.D. shall ensure that E.S. attends in-person school as soon as it becomes available.

[366] When pick up and return resume at school, M.D. shall not be present at or near the school at the time for pick up or for return. If E.S. wants or needs anything for the weekend with her father, she must take it with her when she leaves her mother’s home that morning.

[367] When the regular weekend falls on a long weekend due to statutory holidays or professional development days or other reason, the weekend starts at the end of class on the last day of school and ends on the return to school at 9:00 a.m.

[368] The only exceptions to the “regular weekend schedule” are as follows:

(a) E.S. shall always be in M.D.’s care on Rosh Hashanah, Yom Kippur, Purim, for at least one Passover Seder, as well as a Tu BiShvat dinner (5 p.m. to 8 p.m.), and M.D. shall choose a day where E.S. shall be in her care for one day of Sukkot, one day of Simchat Torah and one day of Hanukkah;

(b) M.D. shall have a substitute for the weekend of E.S.’s Bat Mitzvah if it does not coincide with her regular weekend, provided that if the parents are unable to agree on the substitute weekend, Y.M.S. choice for the substitute prevails.

[369] Other than those events in the penultimate paragraph the “regular weekend schedule” shall not change to accommodate special events including E.S.’s birthday, either parent’s birthday, long weekends, school disruption due to, for example, teachers on strike, and any other reason. Neither parent is permitted to ask the other to make any change to the “regular weekend schedule”.

[370] With respect to “school breaks”, namely the winter break, spring break and summer break:

(a) the break starts at the end of class on the last day of school (whether it is Friday or otherwise) and ends at the beginning of class on the morning of the day before school starts;

(b) E.S. will be with her father for 50% of the total days in those breaks;

(c) E.S. will be with her mother for 50% of the total days in those breaks;

(d) if either parent travels with E.S., travel days count as part of the 50%;

(e) if there is a conflict between the “regular weekend schedule” and the school break schedule, the school break schedule prevails;

(f) by September 1st in odd numbered years commencing in 2021 M.D. shall propose a schedule for the equal division of the winter break in December 2021 and the spring break in 2022 and Y.M.S. shall accept her proposal. In even numbered years commencing in 2022, Y.M.S. shall propose a schedule for the equal division of the winter break in December 2022 and the spring break in 2023 and M.D. shall accept his proposal. If either parent misses the deadline, the other parent shall make a proposal no later than September 31st of that year and the receiving parent shall accept the proposal.

[371] Commencing in 2021, E.S. will be with her father for one half of the summer break and with her mother for one half of the summer break provided that:

(a) E.S. will not be with either parent for more than 14 consecutive days including the pickup date and the return date. Each year E.S. will be with M.D. on Labour Day Monday;

(b) By April 1, 2021, Y.M.S. shall pick 14 days, consecutive or not and by April 14, 2021 M.D. shall pick 14 days, consecutive or not. Those selections shall apply;

(c) By April 21, 2021, M.D. shall pick the remainder of the 50% that E.S. is with her; by April 28, 2021, Y.M.S. shall confirm the remainder of the 50% that E.S. is with him. Those selections shall apply;

(d) starting in 2022, the deadline for starting will be March 1 and M.D. will start; and alternating which parent starts the process from year to year.

[372] During parenting time, each parent has exclusive authority to make day-to-day decisions affecting the child.

[373] Each parent is entitled to request from the other parent information about the child’s well-being, including in respect of the child’s health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable law.

[374] Each parent shall accommodate the travel arrangements made by the other parent in his/her parenting time provided that:

(a) the travelling parent shall provide an itinerary to the other parent no less than 30 days prior to the day of departure which itinerary will include transportation details such as flight numbers, destination, duration and contact numbers for E.S. during the trip;

(b) the non-travelling parent shall sign the necessary travel consents within 3 business days of receiving the itinerary and proposed consents;

(c) M.D. will retain all government documents including E.S.’s passports except when needed by Y.M.S. for a specific vacation;

(d) neither parent is permitted to travel to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

[375] If E.S. is invited to attend an event on a weekend that she is scheduled to be with the other parent, then the invited parent shall, with permission of the invitor, send the invitation to the scheduled parent and the scheduled parent shall respond to the invitation.

[376] Neither parent is permitted to schedule any activities on E.S.’s parenting time with the other parent. This includes activities such as swimming lessons and scouts unless they are finished 30 minutes prior to the start or commence 30 minutes after the parenting time ends.

[377] If either parent is unavailable during his or her parenting time and cannot care for E.S., that parent cannot ask for make-up time or exchange time.

[378] On the rare occasion where school is closed or otherwise not available, pick up and return will be at E.S.’s mother’s house at 4:00 at the beginning and 9:00 a.m. on the return. M.D. shall ensure that E.S. will not be late and will rendezvous with her father in the visitors’ parking area in M.D.’s neighbourhood no later than 4:15.

[379] For each day when E.S. is with a parent, the other parent may call E.S. on the telephone and speak for no more than 15 minutes. “Day” includes Friday, Saturday, and Sunday when E.S. is with her father on regular weekends.

[380] E.S. may telephone either of her parents at least once each day.

[381] The parents shall comply with the following communication protocol:

(a) emergency communications will be by telephone or text;

(b) all other communications will be by email;

(c) neither parent will send an email more than once in any 24-hour period;

(d) the receiving parent will respond within 24 hours;

(e) neither parent will send an email between the hours of 10:00 p.m. and 7:00 a.m. both EST;

(f) neither parent will exceed 400 words in 10 or 12 font in each email;

(g) neither parent will use bolding, underlining, larger font or any means of emphasis;

(h) each parent will be polite.

March to June 2021

[382] For the period March 12, 2021 to the last weekend before the final day of school in June, 2021, to eliminate the conflict with respect to the impact of the school break in April, postponed from March because of COVID-19, the following is the schedule for parenting time:

(a) until and including Monday April 5, 2021, such weekends as the parties have agreed since the conclusion of the trial;

(f) with Y.M.S.: for the “spring break”, at the end of class on the last day of school, whether Friday April 9, 2021 or earlier, to Wednesday April 14, 2021 at noon, return to M.D.’s home;

(g) with M.D.: for the balance of the spring break including the weekend of April 16;

(h) for the balance of the school year, the “regular weekend schedule” is as follows:

(i) Y.M.S.: the weekend of April 23 to April 26

(ii) Y.M.S.: the weekend of April 30 to May 3

(iii) M.D.: the weekend of May 7 to 10

(iv) Y.M.S.: the weekend of May 14 to 17

(v) Y.M.S.: the weekend of May 21 to Tuesday May 25

(vi) Y.M.S.: the weekend of May 28 to May 31

(vii) M.D.: the weekend of June 4 to 7

(viii) M.D.: the weekend of June 11 to 14

(iv) Y.M.S.: the weekend of June 18 to 21

(x) Y.M.S.: the weekend of June 25

provided that

(i) if there are any professional development or other days that are adjacent to the weekend, that day is included in the “weekend”;

(ii) the weekend of June 25 is the start of the “summer break”, the first week of which will be with Y.M.S.in 2021.

Child Support

[383] Commencing June 1, 2020, Mr. S. shall pay to Ms. D. table child support for E.S. in the amount of $199.00 per month based on imputed income of $25,000 per year.

[384] Regardless of their respective incomes, each parent shall pay 50% of the following expenses for E.S.:

(a) medical expenses not covered by OHIP;

(b) routine dental expenses not covered by any insurance. “Routine” includes check-ups and cleaning;

(c) routine eye care not covered by any insurance. “Routine” includes check-ups and eye glasses and or contact lenses;

(d) updated psychological assessment reports;

(e) therapist fees provided that each parent has provided consent in writing in advance;

(f) non-routine dental expenses such as orthodontics provided that each parent has provided consent in writing in advance;

(g) neither parent is required to pay any other s. 7 special or extraordinary expense.

[385] Each parent shall be responsible for whatever expenses for extracurricular activities each arranges during his/her parenting time.

[386] Support Deduction Order to issue.

[387] Within 7 business days of receipt of the Support Deduction Information Form, Mr. S. shall complete and return it with all necessary information.

[388] Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[389] If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.

[390] By December 1 of each year commencing December 1, 2021, Mr. S. shall provide to Ms. D. by email a copy of the income tax return (and all attachments) he has filed for the preceding year and Notice of Assessment for that year. For example, by December 1, 2021, he shall provide a copy of the income tax return (and all attachments) and the Notice of Assessment for calendar year 2020.

[391] Ms. D. may bring a Motion to Change Final Order to seek an increase in table child support or to seek an order for s.7 expenses not listed above, without proving that there has been a material change in her circumstances or in Mr. S.’s circumstances provided that Ms. D. provide financial disclosure required for the s. 7 claim.

[392] Neither parent shall pay or receive costs of the case from the other parent.

[393] The temporary order dated June 19, 2020 is no longer in effect.

[394] This order takes effect immediately.

[395] Counsel for Ms. D. may forward to Mr. S. a draft order incorporating paragraphs 359 to 394. If within 15 business days of receipt of the draft order Mr. S. does not approve it, counsel for Ms. D. may forward to my attention through the Trial Co-ordinator an unapproved draft order with an affidavit of service.

Kiteley J.

Released: March 11, 2021

COURT FILE NO.: FS-19-010594

DATE: 20210311

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Y.M.S.

Applicant

– and –

M.D.

Respondent

REASONS FOR JUDGMENT

Kiteley J.

Released: March 11, 2021