COURT FILE NO.: 18-379

DATE: 2021 03 22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.D.

Applicant

– and –

D.C.

Respondent

Audrey A. Shecter, for the Applicant

D.C., in person

HEARD: November 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, December 2 & 7, 2020, and February 25, 2021.

Justice G.D. Lemon

I. The Issue. 3

II. Agreed Background. 4

III. The Authorities. 6

IV. Material Change in Circumstances. 13

A. July 13, 2015 Transcript 19

B. April 5, 2016 Transcript 21

C. May 28, 2019 Transcript 27

D. May 25, 2020 Transcript 28

E. November 3, 2020 Transcript 30

V. The Evidence. 36

A. Evidence of P.D. 37

B. Evidence of D.C. 40

VI. Best Interests Factors. 41

A. The Children’s Need for Stability. 41

B. Strength of the Relationship. 41

C. Willingness to Support the Development and Maintenance of the Child’s Relationship with the Other Spouse. 42

D. History of Care of the Children. 46

i) Family Involvement 46

a) Evidence of P.D. 46

b) Evidence of Brenda Graham.. 48

c) Evidence of Keegan Docherty. 53

d) Evidence of D.C. 56

e) Evidence of Angie Stratigakis. 60

ii) State Involvement 61

a) Milton Driving Event 61

b) Evidence of Keegan Docherty. 61

c) Evidence of P.D. 62

d) Evidence of D.C. 62

e) Evidence of Peter Clarke. 63

f) Analysis. 64

iii) Section 30 Assessment 65

a) Analysis. 66

iv) The Children’s Education. 66

a) Evidence of P.D. 66

b) Evidence of D.C. 68

c) Evidence of Greg Hawkins. 70

d) Evidence of Paul Tribe. 72

e) Evidence of Audrey Slater 74

f) Evidence of David Cadman. 75

g) Analysis. 77

v) The Children’s Health. 79

a) Evidence of Dr. Sochoka. 79

b) Evidence of P.D. 80

c) Evidence of D.C. 80

d) Analysis. 81

vi) Summary of History of Care. 82

E. Children’s Views and Preferences. 83

i) Evidence of Howard Hurwitz. 83

F. Heritage and Religion. 89

G. Plan for the Children’s Care. 89

H. Ability and Willingness to Meet the Needs of the Children. 90

I. Communicate and Cooperate. 90

J. Family Violence. 92

K. Summary. 94

VII. Motion Pending Judgment 94

VIII. Access Terms. 95

IX. Result 114

X. Costs. 114

reasons for Judgment

I. The Issue

[1] P.D., the father, seeks to vary a final order that had granted custody of the children of the marriage to D.C., the mother. P.D. wishes an order that he shall have custody of the children E.D., born September 2006, and G.D., born February 2008, and that the children shall reside primarily with him. D.C. says that P.D.’s motion should be dismissed; however, she also seeks to renew or add a variety of access terms to the original order.

[2] This is, and has been, a highly conflicted dispute. It has been so for all of the children’s lives.

II. Agreed Background

[3] By agreed statement of facts, the following is not in issue.

[4] P.D. and D.C. separated on March 1, 2011.

[5] There are two children of the marriage, namely E.D., born September 2006 (now 14), and G.D., born February 2008 (now 13).

[6] The marriage was filled with acrimony.

[7] A 12-day trial was held in 2012 and 2013 before Donohue J., who released her reasons for judgment on August 15, 2013.

[8] At the time of the trial, E.D. was 6 years old and G.D. was 4 years old.

[9] Pursuant to the Donohue order, D.C. has custody of the children and they reside with her. P.D. has access every other weekend from Friday to Monday morning, every Thursday overnight and every alternate Tuesday after school (3:00 p.m. to 7:30 p.m.), on a 2-week rotating schedule, plus holidays.

[10] Donohue J. ordered the children’s primary residence to be not more than 30 kilometers from Milton.

[11] On August 19, 2015, P.D. brought a Contempt Motion before Mr. Justice Price. Price J. found D.C. in contempt of the Donohue Order. On March 30, 2016, Mr. Justice Price ordered D.C. to pay costs in the amount of $19,046.12.

[12] Price J. gave D.C. leave to bring a motion to vary the Donohue order but that application did not proceed.

[13] A request was made to the Office of the Children’s Lawyer to update the investigation that it had conducted for the purpose of the trial in 2013 but that investigation did not proceed.

[14] P.D. commenced this Motion to Change in September 2018 seeking to vary the custody and residential terms of the Donohue Order. At the time the Motion to Change was commenced, E.D. was 12 years old and G.D. was 10 years old.

[15] The children have audio-recorded incidences of conflict. Those records were entered into evidence on consent of the parties.

[16] The Family and Children’s Services (CAS) was involved with the parties and the children on at least 10 occasions.

[17] Both children want the conflict between the parties to end.

III. The Authorities

[18] This case is under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). Section 17(5) of that Act states:

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[19] The test for a variation is set out in the Supreme Court of Canada decision of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. The Court states the following, at paras. 11-13:

11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued.

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way. The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place."

13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [Citations removed; emphasis in original.]

[20] Accordingly, for me to have jurisdiction to vary this custody and access order, I must find that there has been a material change in circumstances since the previous order was made. If P.D. fails to meet this threshold requirement, I can go no further.

[21] However, if I find such a material change, I must then enter into a consideration of the merits and make the order that best reflects the interests of the children. A judge on a variation application must consider the findings of fact made by the trial judge as well as the evidence of changed circumstances.

[22] In Goldman v. Kudelya, 2017 ONCA 300, at para. 41, the Ontario Court of Appeal succinctly said:

A continuation of the conflict does not establish a material change in circumstances.

[23] In Gray v. Wiegers (2008), 2008 SKCA 7, 47 R.F.L. (6th) 1, the Saskatchewan Court of Appeal considered whether a child's increase in age and maturity would qualify as a material change in circumstances. At para. 25, the Court stated:

It is my view that mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change of circumstance as is required by s. 17(5) of the Divorce Act and the case law that has interpreted that section. Were it otherwise, there would be an automatic right to seek variation of custody orders on a regular basis every few years. This is clearly contrary to the established law. While the reviewing judge may, of course, take into account that a child’s needs may change as he or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before the reviewing judge, made the original order inadequate.

[24] The original order was a divorce proceeding. This application is therefore under the Divorce Act. This trial and decision straddle the amendments to this Act. Below, I lay out the relevant old and new provisions of the Divorce Act. The new provisions went into effect March 1, 2021 If I were to find a material change in circumstances, the new provisions would apply since the decision was made after March 1.

[25] The relevant old provisions of the Act are:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[26] On March 1, 2021, the relevant amendments that came into force include the following changes to ss. 16 and 2(1) of the Act.

[27] Section 16 now reads:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(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.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

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

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

(d) the history of care of the child;

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

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(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;

(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;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Maximum parenting time

(6) In allocating parenting time, the court shall 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.

[28] Section 2(1) now includes a definition of “family violence” that reads:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property; (violence familiale)

[29] The parties provided me with a host of cases to consider. By and large, they apply these principles to the facts before the judge who wrote the decision. Each case is to be decided on its own facts. The best interests of the children are what drives them all.

IV. Material Change in Circumstances

[30] Before making an order to change, I first look to Justice Donohue’s reasons of August 15, 2013, reported at 2013 ONSC 5220. There, she said:

[3] The parties married on July 25, 2009. Their time together in cohabitation was rife with argument. They separated on March 1, 2011, after only a year and a half of marriage. The litigation has been highly conflicted. The matter took 12 trial days and each party did lengthy written closing submissions. There was very little common ground.

[4] Their time together has been punctuated by various physical assaults between them. Foul language in their communication has been a common occurrence….

[27] Eileen Spraggart, clinical investigator for the Office of the Children’s Lawyer (“OCL”) testified and was cross-examined by both parties.

[28] Ms. Spraggart conducted her investigation and recommended sole custody to [D.C.] and unsupervised access to [P.D.].

[29] The evidence of the OCL investigation is that the children did not exhibit signs of alienation, that they have a strong relationship with both parents.

[30] Ms. Spraggart did two interviews with the children. She interviewed some collateral witnesses. She had read the extensive Children’s Aid Society (“CAS”) records. She concluded that the children had witnessed domestic violence.

[31] Her concern was the violence that [P.D.] had shown in front of both boys. G.G.D. had told her that he saw his father throw a remote at his mother.

[32] Ms. Spraggart described [P.D.] as a “competent and caring parent”. She found that he has a good relationship with his children and appropriately used boundaries.

[33] On her observation visit with [D.C.] she found both children had a “strong and loving relationship with D.C. who seem attuned to the children’s needs.”

[41] [P.D.]’s evidence and that of his family and friends described a man who was gentle, not a heavy drinker, and the victim of a hysterical wife who constantly called the police and the CAS to create the illusion that he was an abusive husband.

[42] [D.C.] described, in contrast, a powerful man who used physical aggression against her, in the presence of the children, often under the influence of alcohol.

[43] To discern which description is most likely the most accurate one I look to [P.D.]’s plea of guilty to facts read into criminal court and admitted on June 29, 2011:

Between January 16, 2011, and January 31, 2011, [P.D.] and complainant were in the master bedroom of their residence at 975 Lancaster Drive, in the Town of Milton, watching television with both children lying in bed with them. While they were watching T.V., a person on the show they were watching called another character in the show a “bitch” and upon hearing this, their son stated, “That’s what daddy calls mommy when he’s mad.” [P.D.] began to laugh, which upset his wife and she told [P.D.] it wasn’t funny, and [P.D.] told his wife to “shut up”. The verbal argument escalated and the two argued over who would get out of the bed. [P.D.] then walked around and pushed two fingers into the complainant’s clavicle bone with force, causing her pain. He then raised his fist in a motion that made the complainant believe that he was going-about [sic] to punch her. Both the children were crying and asking their father to stop as they were both awake and still in the bed. The wife fled the bedroom and stated that she was going to call the police. [P.D.] followed and took away the phone, and began to plead with her not to call the police. She then attempted to get the phone in their office, and [P.D.] continued to follow, asking her not to call the police. [P.D.] then fell to the floor, claiming that he was having a heart attack, and due to all the drama and how upset the children were, the complainant decided not to call the police. As a result of the assault, the complainant suffered bruising to her arm and leg, and she advised the police that during the incident her husband was intoxicated. [[P.D.] admitted the facts were substantially correct with a “very minor variation”; the children were crying; but not crying for him to stop. They were present in the room at the time].

[44] P.D. admitted in one courtroom these facts were true. In this courtroom he denies them. I do not find him credible particularly as he gave no other presentation to the facts of the violent incidents recounted by [D.C.] other than to say “they did not happen”. [Emphasis in original.]

[31] Donohue J. went on to consider some text messages entered into evidence:

[46] [D.C.] - “I will tell u what drama is … you ordering me to drive where u want yelling at me in a car with our children in the back, bad roads and calling me names and then if that’s not bad enough hitting me in the face. Then while I’m bleeding down my face tell me ‘see what you made me do’ keep driving and ‘can’t u talk to this kid to get him to stop crying’ and [E.P.D.] saying ‘daddy don’t hit mommy’ that is Drama.”

[47] [P.D.] - “I need you to come home. I’m not feeling well.”

[48] Mr. Guest’s description of karate, making [P.D.] more controlled and disciplined, is not compatible with this behaviour.

[49] A text message between the parties on June 2, 2008, is also illuminating.

[50] [P.D.] - “Are you coming home tonight?”

[51] [D.C.] - “No, you strangled me right in front of [E.P.D.]. And by the way u know he pushes me away because of the way you treat me and that’s why I’m not coming home. Because you are calling me names and yelling at me. Not to mention all of the physical violence. You have to recognize you have a problem.”

[52] [P.D.] - “[D.C.], I realize you push my buttons as I do you. The other night, things got out of hand, again, I am sorry for my party. It takes the two of us to fix this. I need your co-operation as well. There will be no shouting or arguing. We can order in some dinner, I would just like to see you all before I go. Will you please come on? The new bed came, you can sleep in our room and I will sleep in the front room, K?”

[53] [D.C.] - “No I didn’t want [E.P.D.] around you, badmouthing me like usual. U have anger issues and you have to make changes. No matter what I ask of you, you can’t lay your hands on me. Or for that matter yell at me for calling u or asking you to help me or anything. There is appropriate behaviour and you do not talk like an adult. You are not committed to me or the kids as a responsible adult. I deserve better.”

[54] [P.D.] - “Your right, we both deserve better. There is a strain with these two kids and we have both acted inappropriately. I usually take the crown though, I am sorry for that, come home with the kids and let’s have a nice night before I leave.”

[55] In this intimate correspondence I see [P.D.] admitting to bad behaviour within the marriage.

[59] There was uncontradicted evidence at trial of [P.D.] calling [D.C.] a “bitch” and a “fucking retard” on more than one occasion.

[60] I am satisfied on a balance of probabilities that the history as presented by [D.C.] to the police, the CAS, and the OCL, is largely correct.

[66] As noted above, I have concluded that [D.C.] has not created the background of violent confrontations for the police and CAS.

[72] In light of my findings of the violence and conflict between these parents the proposal for joint custody with parallel parenting is not appropriate. Such a custody order is likely to bring these two parents back into more conflict.

[81] However, [P.D.] has demonstrated domestic violence in the past under family stress. His relationship with his sons will thrive best if he were not the parent with the children in his care for the bulk of the time.

[87] With generous access time, [P.D.] will have the opportunity to schedule extra-curricular activities and be in involved in their lives to their benefit.

[91] To ensure that both children profit from as much time as possible with their father I find it appropriate to make an order for access as proposed by [P.D.] which will generally provide five overnights and one evening, in a two week period, for the children to spend with their father.

[32] Before me, the parties consented to a variety of recordings to be placed in evidence. Despite courts’ continuous objection to recordings in family proceedings (see: Seddon v. Seddon, 1994 CarswellBC 1409 (B.C.S.C.); Hameed v. Hameed, 2006 ONCJ 274), both sides thought that the best interests of the children would be best served by filing extensive recordings. The following will give an idea of the communication between the parties since the Donohue order. P.D. argues that the transcripts in evidence are only some select conversations and should not carry great weight in the analysis. However, he does acknowledge being profane and inappropriate. He does not deny the accuracy of these transcripts.

A. July 13, 2015 Transcript

[33] Here, P.D. is speaking with 8-year-old E.D. about his maternal grandfather. Donohue J. had ordered that both parties “will not harass or speak ill of each other in the presence of the children.”

P.D.: But the reality is, [E], I’m not gonna take your shit.

E.D.: Don’t say that.

P.D.: You’re the shit.

E.D.: And him.

P.D.: Well, of course and him, I wouldn’t treat-, do I treat one of you different than the other?

E.D.: No.

G.D.: No.

P.D.: Do you know that papa and your mother put in papers to the court that I treated you two differently?

E.D.: Wait, so which papa?

P.D.: The fat one, disgusting one, the one that lives in Alliston. You know what he said?

E.D.: No?

P.D.: G? Do you know what he said?

G.D.: What?

P.D.: He said that I treated E different than you.

G.D.: Well, maybe I gave up some stuff to get something that you said that’s okay to. Like when I…

P.D.: No.

G.D.: Like when I gave up my iPhone…

P.D.: No.

G.D.: …’cause that-, that’s what I meant.

P.D.: That’s my son, you’re my son. Two.

G.D.: Two is one.

P.D.: Two sons. Never treat them differently.

G.D.: So…

P.D.: You tell that fat cunt, sorry, you tell that fat little fucking bloated papa jelly bear that you know that he put on paper this-, I’m telling you things that you shouldn’t know.

E.D.: Oh, so what you’re saying is that you treat us as one, not two.

P.D.: Yeah. And I would never fight in court, I would never have to if your fat little fucking papa, which I would drive my thumb through his heart…

E.D.: Who?

P.D.:…with this (inaudible), through his heart and Blair’s (ph).

E.D.: Why would you do that?

P.D.: Because he’s a fucking arsehole. He doesn’t, he doesn’t understand how you-, how, how I love you. And how he just-, you know what he said? He said that I love you more than G.

G.D.: That’s not true.

P.D.: Do, do you know that wholeheartedly?

G.D.: No, but I…

P.D.: Do you believe that?

G.D.: Um, no.

E.D.: No, no, no, no, I thought you were saying that, uh, you don’t believe that like I don’t believe what papa said.

P.D.: So do you believe that I love G as much as you?

E.D.: Yeah.

G.D.: Yeah.

P.D.: You shut it, you don’t…

G.D.: Yeah.

P.D.: Okay well, fucking fat boy, Delberto (ph), papa, told the courts that I favored you more than him.

G.D.: Isn’t that lying to the court?

P.D.: Oh whatever, who cares about court. These fucking [C.s]. Your last name is.

E.D.: No, I’m not, no, I’m not.

P.D.: Oh, no, you’re not, none of you are [C.s] but…

B. April 5, 2016 Transcript

[34] This is a recorded conversation between P.D., E.D and D.C. E.D would be nine years old at this point.

P.D.: Like everybody else. [E.D.], she's stolen from my account.

E.D.: That's not true.

P.D.: Oh, yeah, well, we'll see what happens with that. Don't tell me it's not true.

E.D.: But it's not. She never stole from your account. Why would she steal?

P.D.: 'Cause she's a thief.

E.D.: Mommy never steal.

P.D.: You know, [E.D.], get away from your mother, I don't want to talk about this, I want to talk about what your day's like in school.

E.D.: But mommy's not bad.

P.D.: [E.D.], I'm not saying she's bad, she's a great mother.

E.D.: But she never stole from you.

P.D.: Yes, she has. Oh, yes, she has.

E.D.: No, she didn't.

P.D.: [E.D.], let's talk about what happened school and how fun school was.

E.D.: But why did yesterday you call me a little f-er?

P.D.: Because you told me that I was forcing you out of your ho-, house, which is not a conversation that we should have.

E.D.: But you should ...

P.D.: By the way I never said that.

E.D.: You-, yes, you did. You called me a little fucker.

P.D.: [E.D.], do not use that kind of language in my presence, ever. Are we clear?

E.D.: Yeah.

P.D.: You better stop that kind of anger that's apparently a, a-, allowed around your mother, it's not a family, you will not even come to my house with that kind of language, do you get it?

E.D.: Our house.

E.D.: So you don't care about me?

P.D.: Oh, shut the-, your mother is conning you.

E.D.: No, she isn't.

P.D.: I won't put up with your shit, kid.

E.D.: But I didn't even do anything.

P.D.: Oh, yeah, they [sic] why you asking me if I don't care about you?

E.D.: 'Cause you said you don't care about me.

P.D.: I never once said I don't care about you. When did I say that?

E.D.: I asked you if, if-, I said if I don't behave you said that yeah, I don't care about you.

P.D.: No, I said you won't come to this house with your swearing that your mother gets away with because your mother there is conning you, 'cause your mother won't let you see a doctor. You mother tells you that I'm liening the property for money she owes me. Let me ask you a question as a nine-year-old. If I owe you 20 grand, would you want your money?

E.D.: Yeah.

P.D.: Yeah, okay. So if you owned a car and you wouldn't pay and the only way I could get your money-, my money was I put a lien on the car, is that fair?

E.D.: A little bit.

P.D.: Or should I just forget about the money you owe me?

E.D.: Just forget about it.

P.D.: Your-, if you owed me 20 grand?

E.D.: Dad.

D.C.: Ask him how much money your brother stole from him?

P.D.: What about if I owe you 20 grand.

E.D.: What?

D.C.: How much money did Chris (ph) steal from him? He's still in the house.

P.D.: Tell her to shut up. She has no business listening on this conversation. She's taken me for hundreds of thousands of dollars. Put your face back in the picture or I'm hanging up. She's taken me for hundreds of thousands of dollars, a conversation that you should never know about but I'm forced to say to you because she fills your head full of shit but you know what at the same time she won't allow you to go see a doctor.

D.C.: Just stop the language.

P.D.: (Inaudible.)

D.C.: Stop the language.

P.D.: I'm gonna put a lien on your home, I'm gonna fucking do you in until my boys get help, that's it, it's over.

D.C.: What do you think your boys need help from? You, you, you are the problem here.

P.D.: Oh, yeah, well, you, you were...

D.C.: Listen to yourself.

P.D.: You read the judge's order.

D.C.: The judge’s order is what? Based on lies.

P.D.: [G.D.] actually said something that was...

D.C.: Are you drunk right now? What are you on?

P.D.: You.

D.C.: What are you on right now?

P.D.: You.

D.C.: What is it that you're taking?

P.D.: [G.D.] sent a, a text that was quite prevalent. I put-, I knew when he says it and he understood English and I'll tell you something right now, if my kids read the last 60 pages ...

D.C.: I'm leaving the room, I'm not dealing with this.

P.D. ...on Justice Price...

D.C.: Okay, bye.

P.D.: ...they're gonna know.

E.D.: Dad, could you stop swearing, please .

P.D.: Oh, whatever, the fuck, I swear, so what?

E.D.: So then I could swear.

P.D.: No, you can't swear.

E.D.: Why can't-, why can you then?

P.D.: 'Cause you're not an adult, you don't swear.

E.D.: But you don't care. You always say oh, I don't care.

P.D.: You can swear when you're 16. Now I've asked your mother for months, years to allow you to see a doctor.

D.C.: You need to stop, [P.D.], you're-, the reason why he needs a doctor is-you.

P.D.: Shut the fuck up and get, get away.

D.C.: Tell him the, tell him the truth, [E.D.].

P.D.: Get the fuck away. You said you were leaving the room, leave the room. You know I'm gonna, I'm gonna show the kids my weekend, which is this weekend, Justice Price's reasons for you to take them away from the kids last we-, summer and now the reason for the judgement, substantial cost. You know substantial cost never happened. You shoved it up your ass and you're gonna pay for it and that's a judge, it's not my reasoning, [E.D.], it's somebody who is smarter than me, smarter than mommy, smarter than the lawyers that said mommy was wrong, mommy was wrong for taking you away from me last summer and now mommy's gotta pay for that.

E.D.: Well, why ...

P.D.: And that's what's going on here.

E.D.: ...why do you keep on having to call names?

P.D.: I don't, I can't stand her. You know everything you see around that house you live in was mine, she, she, she stole it. She stole the front living room furniture, she stole everything. She wasn't nice, you know that. She took you to a shelter and then she lied to everybody.

E.D.: But it's-, why did you guys get divorced?

P.D.: Because I can't stand her, because I didn't like her, you know. It was because she wasn't very nice.

E.D.: Then why did you get married with her?

P.D.: I never got married with her. I got married with her under duress, I had a prenuptial agreement which is something you'll understand later that she refused to fricken sign, uh, within five days...

E.D.: What?

D.C.: We loved each other, honey.

P.D.: ...of me getting married. There's so much you-, you'll learn when you're older.

D.C.: We loved each other.

C. May 28, 2019 Transcript

G.D.: but you can pick us up first ---

P.D.: What? What did you say, [G.D.]? I can't hear you. What'd you say?

G.D.: You' re cutting out.

P.D.: Yeah, but, go outside the garage.

G.D.: Dad. Never mind .

P.D.: I want to hear what you said.

G.D.: But Mom won' t say yes for you coming to pick me up.

P.D.: For what?

G.D.: For 300 bucks.

P.D.: So, I come to pick you up for 300 bucks.

G.D.: No, and she wants 6,000 a month.

P.D.: Why is she talking to you about money?

G.D.: I don't know. Can you just come and pick me up? Or can I get an Uber?

P.D.: No, you can't get into a taxicab alone. Tell her that she can drop you off for 300 bucks, both you and your brother, and I'll get you to school in the morning. Tell her not to talk to you about finances. It's not appropriate. And she really should be contacting me and not talking through an 11-year- old .

G.D.: Okay. I'll ask her .

P.D.: All right. Love you, boy. What a fucking ---

D. May 25, 2020 Transcript

P.D.: [E.D.]?

E.D.: Mm-hmm.

P.D.: Stop-, you know what, you need to start to chirp up in front of her, you really do.

E.D.: Why?

P.D.: Because you, you-, she, she beats you down.

E.D.: No, it's not there.

P.D.: It's something that Howard's (ph) will, will...

D.C.: I, I don't beat him down, I'm asking him why he's saying things about [E.D.].

E.D.: Or about [G.D.].

D.C.: About [G.D.].

P.D.: Because you bully [E.D.].

D.C.: No, I don't, [P.D.].

E.D.: Oh, my gosh, can we just stop.

P.D.: You do.

D.C.: Like this is not about them right now.

P.D.: And you-, hold on, hold, hold on a second.

D.C.: You're not gonna tell ...

P.D.: [G.D.]-, [G.D.]-, [G.D.] ...

D.C.:...[E.D.] to start talking back to me.

P.D.:...[G.D.], [G.D.], [G.D.]? You should listen to your mother when she tells you to do your homework. I've said this for years.

D.C.: You just told [E.D.] to talk back to me.

G.D.: Dad, I've been doing my homework.

P.D.: Oh, yeah, he does need to 'cause you beat him up. And it'll come out.

D.C.: I d-, do I beat you up, [E.D.]?

E.D.: I'm not getting into it.

P.D.: It's on the verge of coming out, you have no idea what's going on.

D.C.: What?

P.D.: Zero.

D.C.: You're just telling him to talk back to me.

E.D.: Dad?

P.D.: No, I'm not. I'm telling...

E.D.: Dad?

P.D.:...him to speak his fucking mind 'cause you're a bully.

D.C.: You know what he does speak his mind and I'm not a bully.

P.D.: You're a bully.

E.D.: Dad. No, can you both just let me speak for a sec.

P.D.: And you're a bully, [D.C.], and you know you're a bully.

G.D.: Dad? Dad?

P.D.: It's terrible, it's horrible, it's abuse actually.

D.C.: Yeah, okay.

G.D.: Dad, can I speak, can I, please, speak?

P.D.: And you know what, it's all gonna come out, it's all gonna come out. You're abusive just like your mother and your father was abusive to you.

D.C.: What are you talking about?

P.D.: And I told you that. Oh, come on...

E. November 3, 2020 Transcript

P.D.: You know what [G.D.]? If you don’t fucking tone your voice down and start using a little respect to me, I’m going to jam my foot my fucking foot in your ass.

G.D.: Dad. I can’’t –

P.D.: Do you understand that?

G.D.: Yes but I can’t do that if you’re threatening to hit me and tell me to shut up and F off.

P.D.: (inaudible) it’s a full stop.

D.C.: Okay guys, that’s enough. You know, enough of the threats. Enough of the threatening behaviour. Okay? Both of you.

P.D.: Are you kidding me?

D.C.: Come on.

P.D.: Are you kidding me? This is at your house.

D.C.: What do you mean?

P.D.: He should. He should not be talking to me through a phone. He would never dream of talking to me the way he talks to me right now at your house if he was here. I can guarantee you that.

D.C.: Is that true?

G.D.: You’re 100% right Dad because you’ll just say “I’m getting up” and then you’ll…like…I don’t know what you’ll do. Like you always say “I’m getting up”.

P.D.: Yeah? And what?

G.D.: Implying that you’ll hit me. Like what else am I supposed to do?

P.D.: What do I do when I get up? Do I hit you?

G.D.: But you (inaudible) Dad you lie too.

P.D.: Are you suggesting I hit you?

G.D.: You stand over me.

P.D.: Yeah, I …put the fear of God into ya, yup.

G.D.: Dad, that’s not how you parent. You don’t parent while smacking the crap out of your kid.

P.D.: I don’t put my hands on you (inaudible).

G.D.: But you threaten it right?

P.D.: Are you saying that I do?

G.D.: I’m saying that you threaten it.

P.D.: No it’s a simple question.

G.D.: No but you threaten it.

P.D.: Well you deserve to be threatened and you better fucking fear me when you’re acting intolerable and right now you’re acting intolerable and right now you should know that you should’ve brought your battery charger and you should do your homework.

G.D.: No let me speak. Everyone just shut up for everyone.

P.D.: Shut the fuck up before I clap your ears.

G.D.: Threaten me more Dad.

P.D.: Don’t you tell everyone to shut up. Don’t you spaz out like a fucking spastic and think it’s okay. It’s not okay.

G.D.: I’m trying to speak.

P.D.: And you wouldn’t be yapping off if you were in front of me. So this is what you gotta do. Get your ass to bed. You’re not getting the phone. You can pick up your…(inaudible) and I bet, [D.C.], I bet the fucking the charger for [E.D.]’s phone is the same. I bet it is.

what …

[35] At the end of the trial, I made some interim orders until I could complete my deliberations. At that time, among other orders, I said:

1. This matter is presently under reserve. Pending my judgment, I order:

a) Both parties shall immediately register with, and download, Our Family Wizard and shall communicate with one another only through this platform. The parties shall check Our Family Wizard at least every 12 hours and respond promptly to any message or indicate when a response will be forthcoming. The parties shall also use the online calendar function.

b) Save for communications by Our Family Wizard or through counsel, there shall be no communication between the parties in any other way except for medical emergencies.

c) Paragraph 5 of Donohue J.'s order of August 15, 2013 shall be amended to delete "The children may communicate with either parent as desired."

d) Both parties shall advise the children that they shall, on arrival, give any cell phones or forms of communication to the parent caring for them. The parent in care shall determine the child's use of those forms of communication while in their care.

e) Donohue J's orders otherwise remain in effect unless otherwise agreed to in writing. Given the evidence at trial I remind the parties of paragraph 13 of that order:

D.C. and P.D. will not speak ill of each other in the presence of the children.

f) I shall remain seized of any custody and access issues that arise prior to the release of my judgment. If necessary, either party may contact the Guelph trial coordinator, with notice to the other party, to arrange a conference call to schedule any issue.

[36] I then referred the parties to Jackson v. Jackson (2008), 2008 CanLII 3222 (ON SC), 50 R.F.L. (6th) 149 (Ont. S.C.), where Murray J. set out the harm to children that results from high conflict custody disputes.

[37] Before I could release my judgment, P.D. brought a motion to vary the Donohue order on an interim basis to have the children reside with him. He described further turmoil between the boys and D.C. For reasons set out below, I dismissed that motion. Both parties agreed that I could rely on the affidavit material in this judgment. One item of evidence from P.D. stands out:

I cannot deny that I have continued to call D.C. names. It would be false of me to try to claim otherwise. Even though it may be to my detriment to admit this, I do so because it is important to me that this Honourable Court know that I am being completely honest. As I stated at trial, D.C.’s treatment of the boys and the turmoil they suffer as a result of her negative parenting cause me angst, grief and frustration and in turn, leads me to speak inappropriately. However, this should not and does not overshadow the tumult that E and G experience while they are with D.C.

[38] Further, D.C. stated in her affidavit that P.D. said the following to the boys:

“Don’t let her take your phone, tell her don’t take my fucking phone. [E], you hear me say it, say it to her a few times, she can’t take your fucking phone” . . “Your mother is a fucking retard.”

[39] In reply, P.D. could not deny that he said that.

[40] While P.D. may be given credit for admitting his harm to the children, he still continues to harm the children by ignoring important legal principles and court orders meant to assist in their best interests.

[41] I had ordered that the children were to deliver up their phones in order to reduce the strife within D.C.’s home. Much of the turmoil relates to P.D. speaking with or coaching the children while they are with her. Given his admission of speaking ill of D.C., his conduct can only add to the children’s uncertainty of who to respond to. P.D.’s disregard of a court order cannot be ignored.

[42] As will be set out in more detail below, D.C. is not innocent in the damage to the children. As shown above, there are transcripts of D.C. swearing and yelling at the children. She admits to having spoken ill of P.D. She has failed to pay costs orders in a timely fashion or at all. It appears that she has not kept P.D. advised of all caregiver information related to the children. She has been found in contempt for failing to allow P.D. his access to the children.

[43] From the police and CAS records admitted on consent, the authorities have regularly been involved with the family. No year has gone by without state involvement with the family.

[44] Each parent accepts some blame for some of these events and both blame the other. However, neither denies the reality that, between them, the conflict carries on. For the purposes of my analysis, I need not parse each event and lay blame. That would require me to rely too heavily on untested notes without evidence to support the statements. After each investigation, the CAS closed its files and the police have laid no charges. Most files included advice to the parents to keep the children out of the conflict.

[45] In any event, it is P.D.’s onus to satisfy me that there has been a material change and that it would be in the children’s best interests to be in his custody. He has not met that onus. Indeed, I find on P.D.’s own admissions that the conflict and upset to the children is driven by his conduct. P.D.’s denigration of the children’s mother in a foul-mouthed bullying fashion has turned the boys into foul-mouthed bullies.

[46] There has been no material change since the Donohue order. Even if there had been such a change, for reasons set out below, it is not in the best interests of the children to be in the custody of P.D. Were it in my power, I would restrict P.D.’s access to the boys in order to give them the stability they need; however, no such order was requested.

[47] I appreciate that, with the amendments of the Divorce Act coming into force on March 1, 2021, the terms “custody” and “access” have finally come to an end. However, since I am not changing the Donohue order, I have continued to use the outdated terms for simplicity in this case.

V. The Evidence

[48] I shall first summarize the evidence of P.D. and D.C. for the general areas of dispute. From there, as an organizing principle, I shall consider the rest of the evidence under the various considerations of best interests set out in the legislation.

A. Evidence of P.D.

[49] P.D. resides in Milton and is presently unemployed. He was employed in his own company as a master electrician but sold his business on November 1, 2019. He is now in litigation over that sale and his termination.

[50] P.D. had a heart attack after selling the company. He had open heart surgery on December 24, 2019 but he says that his health is now strong and that he is in generally good health. His mental health is “solid.”

[51] P.D. lives with his nephew, Keegan Docherty.

[52] P.D. is in a relationship with Brenda Graham. They have been together for 7 years but do not live together. He is now engaged to Ms. Graham and they are looking for a home together.

[53] P.D. was married prior to his marriage with D.C. He testified that he was not involved with the police with his first two relationships and there was no violence in those relationships. He denies any domestic violence against his former spouses.

[54] He agrees that he was charged with aggravated assault in 1994 but that was stayed when his brother told the police what actually happened. He is not aware of any convictions in 1992 through 1997 but there may have been one in 1997 when he and his cousin were “horsing around” and the police came by.

[55] Despite Donohue J.’s findings, P.D. testified that he has no criminal convictions or charges outstanding.

[56] When they first separated, D.C. made a number of criminal allegations against P.D., but it appears that he was not convicted on any of them. He denied that he assaulted her. At times, the admitted records set out that he has admitted to other convictions, but he denies them.

[57] He has exercised access “100% of the time” except when he was unavailable for business, but those times have been “few and far between.” For years, he has had access Tuesday overnight and every other weekend.

[58] P.D. said that he brought this application in 2018 because there was too much going back and forth for access and too many calls to him from the children. They were having sleep problems and swearing at their mother. There was too much police interaction and he is worried that his sons will assault D.C.

[59] Because of that, he thinks that it would be best to change the custody of the children to essentially switch the time in each household each week from what it is now. He believes that the children will listen to him and do their homework in his care.

[60] Although D.C. says the conflict is initially caused by him, P.D. denies that.

[61] P.D. denied that he was physically or emotionally abusive to D.C.. When they argued, she was able to give as much as she got. He does not believe that she is afraid of him as she has come to his house and asked for money.

[62] He denies that he abuses alcohol or drugs. He did see a doctor for addictions and continues to see him regularly but not with respect to alcohol since 2011. He drinks wine but not liquor or beer although he did in the past.

[63] Although his child support may go down if he has the children for more time, that is not his motivation. Rather, it is because the children need more discipline. He hopes that with time, their relationship with their mother will improve and grow.

[64] P.D. is not aware of the children’s activities but believes that they are not enrolled in anything at the present. E.D. went to boxing and P.D. has taught the boys karate and the use of weights and an exercise bag. He would like to see them have more activities, particularly baseball.

[65] E.D. and G.D. have a healthy relationship with P.D.’s fiancée, Ms. Graham. Ms. Graham is not involved in disciplining the children and she is seldom alone with them.

B. Evidence of D.C.

[66] D.C. is 48 years old. She was most recently employed at a local cabinet maker but was fired while she was on short-term disability in 2019. She has been diagnosed with rheumatoid arthritis. That prevents her from working and she has been receiving Ontario Works since September 2019. She has applied for a disability pension. She has a human rights complaint underway with respect to her former employer.

[67] As a result of her lack of employment, she has had more time to be focused on the children. She has placed them in group counselling. She tried other therapy, but they refused to go.

[68] She describes herself as emotionally, physically and financially exhausted by this litigation and the care for the children.

[69] Most of D.C.’s evidence was a response to P.D.’s allegations and records along with her own records. I shall therefore summarize her evidence under the various best interests factors.

VI. Best Interests Factors

A. The Children’s Need for Stability

[70] There is no doubt that the children need stability; they are in turmoil as a result of the conduct of their parents. However, only their parents can resolve this turmoil. The plans put forward by both for access still have the children moving between the warring camps. Making those changes will not change the children’s underlying needs.

[71] The children have been living with D.C. since separation. They have a safety plan and IEP at their present school. I have no evidence of whether they would have similar plans if their residence moved to P.D.

[72] I find that the children will have greater stability in the custody of their mother.

B. Strength of the Relationship

[73] As will be set out in reference to the children’s wishes, the boys wish to continue to see both parents. They have said that they wish to live with their father but still wish to have contact with their mother. That relationship has not materially changed since the Donohue order.

[74] I find that both parents have a strong relationship with their children.

C. Willingness to Support the Development and Maintenance of the Child’s Relationship with the Other Spouse

[75] At trial, P.D. agreed that he could have been more appropriate in his choice of words towards D.C. He agrees that he called her names such as “pig”, “retarded” and “bitch.” He agrees that he has often given D.C. the finger when she is late for access transfers.

[76] P.D. agrees that he has spoken badly of D.C. in front of the children. He agrees that children should not hear parents speaking badly about each other.

[77] He agrees that the children have heard him say these things; however, P.D. notes that he was upset by her allegations and by seeing the children caught in the turmoil. They have both used similar terms. He agrees that he could choose better words but that he did not wish to speak with her at all.

[78] P.D. agreed that his language has added to the conflict, but he disagrees that it was its cause. He does not hate D.C, but he believes that her parenting skills are not appropriate.

[79] He agrees that he swears - “I’m from Glasgow” - but claims that is how he speaks generally. And yet, as set out below, his witnesses denied that he swore inappropriately.

[80] P.D. denied that he was alienating the children from D.C. He has not attempted to buy the children’s affection but has bought a number of things for them, including clothes, beds, TVs and computers, which have remained at D.C.’s house. He does not buy them everything they want and does not buy them things to control them. He provides them with spending money and bank cards to protect them. They call him, say that they are hungry, and he sends them funds electronically.

[81] From this evidence and the transcripts above, P.D. has no intention of supporting D.C.’s relationship with the children. While Price J. found D.C. in contempt of the Donohue order in July of 2015, she paid a heavy costs order at that time. P.D. described the basis for that contempt as D.C. cutting off his access for 5 to 8 days. There has not been a repeat of that activity by D.C.

[82] The reasons for Price J.’s decision were filed in evidence on consent.

[83] At the same time that Price J. found D.C. in contempt for obstructing P.D.’s access to the children, he said the following:

43. Children are entitled to have access to both their parents, to the extent consistent with their best interests. However, this principle is not a license to non-custodial parents, however, to act in an abusive manner toward the custodial parent. While custody and access issues are to be determined based on the best interests of the children, and not the interests of roles of the parents, abusive conduct by one parent toward another cannot help but be injurious to the long term interests of the children.

44. The separation of parents deprives children of their major source of security, derived from an intact family. That security can only be replaced by the security they derive from strong and healthy relationships with each parent separately. Children’s positive self-image, crucial to their ability to navigate the changes in their family successfully, depends in large measure on the positive regard they have toward each of their parents. If their respect for either parent is diminished, their regard for themselves may also suffer.

[84] Price J. went on to educate the parties that thwarting the relationship between the children and the custodial parent could lead to the denial of access entirely.

[85] As can be seen by Price J.’s endorsement, he did not absolve P.D. of his conduct. From the trial evidence, P.D. is not encouraging the relationship between the children and D.C.

[86] P.D. testified that although D.C. was to provide an authorization for release of information to doctors and care providers, she did not. Accordingly, he had a problem getting information from the school. In evidence was a release from D.C. dated August 19, 2013. P.D. denied seeing it until it was produced to his lawyer in 2019. He denies getting it in 2014 or 2015. He submits that it was backdated.

[87] He asked many times by email to get the information, but D.C. did not provide it. Although he gave the order to the children’s counsellors, doctor and teachers, he was advised that they still needed the authorization.

[88] D.C. testified that she sent the authorization February 4, 2015. However, this does not explain why it was not given when ordered by Donohue J. in August 2013. Given the difficulties that P.D. had in getting the information to which he was entitled, I find that D.C. has not been providing information as quickly as she should. However, that failing pales in comparison to P.D.’s admitted conduct.

[89] As between the two, I find that D.C. has been more willing to support the children’s relationship with P.D. than P.D. has with respect to D.C.

D. History of Care of the Children

i) Family Involvement

a) Evidence of P.D.

[90] P.D. testified that his parenting style is “soft and hard”. He will threaten by saying “if I get up, you’re going to be sorry”. However, he never does follow through on such a threat. He denied that he parented from “a place of fear”. He does raise his voice and the boys obey and comply.

[91] He agreed that he “gives a little cuff” to the back of the children’s head. This is more often in relation to G.D. The last time he did this was in 2014 or 2015. He denied that he “hits my children” and has said, “I don’t need to hit my children”.

[92] However, P.D. agrees that he has always used profanity and he agreed that there should be an element of fear in properly raising the children.

[93] In his view, his home is quiet, pleasant, relaxed and there is no tension. He has a pool, hot tub, basketball net and him and the children play catch with each other. He says that E.D. is happy to be at P.D.’s home because there is no yelling at his house.

[94] Although the children required a tutor, D.C. only recently agreed to a tutor. They have not been able to agree on a psychoeducational assessor for the children. P.D. does not believe that such an assessment is necessary. He did, however, agree during cross-examination that such an investigation would not hurt.

[95] P.D. has concerns about D.C.’s parenting. On one occasion, D.C. dropped the children off at Canada’s Wonderland but would not pay for them. He was therefore required to send them funds. There are also entries that they bought food at Zehrs, a grocery store, from his contributions.

[96] On another occasion, P.D. had to cancel a trip to Jamaica because D.C. did not take one of the children to the doctor and the child was too sick to get on the flight. He had already booked the flight and the hotel and had to cancel them. This incident was yet another when the police were called. The report of that incident discloses that each blamed the other for the confusion and the couple were advised to seek legal assistance to confirm access times. The report ends with the following sentence:

CAS was notified and are very familiar with the family.

[97] The record indicates that on December 25, 2018,10-year-old G.D. got into an argument with his mother over whether he would take a shower. A physical altercation took place. G.D. phoned his father; P.D. recommended that G.D. phone 911. The police came and investigated. No evidence of abuse came forward. G.D. was advised that he should follow house rules. P.D. spoke with the police thereafter. The notes suggest that P.D. was unhappy with the result.

[98] The parties wish me to rely on the police and CAS records to make findings of fact. I decline that offer. In any event, this incident does not assist P.D.’s case.

[99] E.D. and G.D. have also called the police six or seven times. P.D. denied that he has encouraged them to do so, except for when they feel unsafe as a result of D.C.’s hitting them, yelling at them, throwing things at them or being “completely out of control”.

[100] P.D. agrees that E.D. has had “high anxiety” for some time.

b) Evidence of Brenda Graham

[101] Ms. Graham is 50 years of age and lives in Oakville. She is an elementary school teacher with the Peel Board of Education and has been with the same school for 20 years. She teaches grade 6.

[102] She is engaged to P.D., but there is no date yet set for the wedding. They have known each other for six and a half years and were engaged about a year and a half ago.

[103] Ms. Graham describes P.D. as the “softest and toughest person”. He is a “sweetheart” but also protective of those he loves. On the other hand, he will stand up for what he believes in.

[104] She noted that they do not argue a lot. Although they do get upset and talk back and forth, one will eventually walk away to end the argument. They do not call each other names and P.D. has not sworn at her. He has not been abusive to her in any way.

[105] With respect to alcohol, the two of them will have a couple of glasses of wine with dinner, but not every day. On holidays or if they have family over, they may have more to drink at the pool. They may drink more in the summertime or on holidays. She does not believe that P.D. has any alcohol issues. Ms. Graham claims that her brother-in-law is a recovering alcoholic and she would therefore recognize the problem if it existed. They do not use recreational drugs.

[106] Ms. Graham met E.D. and G.D. about six months after her relationship with P.D. started. The boys were six and eight then and the four of them spent a lot of time together.

[107] She described E.D. as more social: he has a lot of friends. He is also stressed and insecure. That shows by his physical mannerisms and he also speaks about his stresses. He has asked “do you think I’m fat”. He is not. He has not always been like that, but she remembers a call when he was concerned that D.C. said that he was fat. He is also concerned about his independent education plan and is worried that he is “the dumbest kid in the class”.

[108] E.D. is very happy at P.D.’s house. He needs time to decompress when he gets home but then he is calm and relaxed. The atmosphere at P.D.’s house is relaxed.

[109] The boys’ relationship with P.D. is that they love each other. They give each other hugs and the boys compete for the last hug when they leave the house. There is no fighting, swearing or yelling between the three of them. On occasion, P.D. will yell at E.D. He swears, but not at the boys. Although he “cuffs” the boys, it is not an abusive hit and he does not hit them for discipline.

[110] She helps the boys with their homework. They do not confide in her, but she is in the room when they confide in P.D.

[111] G.D. is not as social as his brother and is more private. He also has anger issues and loses his temper easily. When he loses his temper, he cries and yells uncontrollably. Otherwise, he is jovial and has a close relationship with his brother and with the rest of the household.

[112] G.D. has changed over time because he is more frustrated and angrier. He does not yell or scream at P.D. He has not tried to run away from P.D.

[113] G.D. has a good sense of humour. They watch movies together, go to the cottage together and spend time by the pool together.

[114] Both boys have a good relationship with their father, and neither is favoured over the other. P.D. does not attempt to influence the children.

[115] P.D. does discuss D.C. in front of the children. Ms. Graham has heard the boys crying and upset over FaceTime from D.C.’s residence. She has watched P.D. calm them down. Ms. Graham denied that P.D. uses FaceTime to control the children and see what is going on in D.C.’s home. She does not get involved with the parenting.

[116] The boys have complained about their schedule and now want more time to spend with their father.

[117] She has no relationship with D.C.

[118] She was only aware of the police coming to the home once. This was in relation to a complaint by D.C. that P.D. was harassing her.

[119] P.D. is a supportive parent and the boys are number one in his life. They have a structured life and he sits down with them to end any argument. He is more a mediator than a dictator. Both of the children benefit from the structure.

[120] While she could not say that P.D. has never sworn, it has never occurred in front of the children. She agreed that P.D. uses profanity, but not directed at her. She denied that P.D. was a bully.

[121] She agrees that it there is no need to scare the children to get obedience. There is no need to use threats of violence to get obedience. She does not believe that P.D. tries to instill fear in the children. The children are not afraid of P.D., but they have a “healthy respect” for him.

[122] She has not heard P.D. speak badly of D.C. to the children.

[123] She is aware that P.D. has had conflict with the CAS and the school authorities. Part of that was because D.C. removed him from the school’s contact list.

[124] She denied that P.D. is controlling. She believes that she has the whole story, or at least all of the information firsthand at home. She has not read the CAS reports.

[125] She is aware that P.D. calls D.C.’s house a “pit” in front of the children. She agreed that such comments are not “okay.” She has called D.C. an “incubator” to P.D. but not to the children. She describes that term as having a “lack of maternal instinct”.

[126] Ms. Graham came across as a truthful and supportive witness but her evidence conflicts with the objective record of transcripts along with the police and CAS records. She is not credible in her evidence that P.D. does not speak ill of D.C. P.D.s conduct towards D.C., police, teachers and CAS workers is completely at odds with the calm and reasonable home she describes with P.D. To that extent, I reject her description of P.D.

c) Evidence of Keegan Docherty

[127] Keegan lives with P.D. and describes the atmosphere at P.D. ’s home to be “laid back” or “chilled”. He finds it to be a “normal household.”

[128] Keegan treats E.D. and G.D. as brothers. Before the COVID-19 pandemic, they went to movies together or to the Playdium. He treats them both the same.

[129] The boys have spoken to him about the residential schedule. At first, they wanted to spend half their time with each parent; however, over time, that has changed such that they wish to spend more time with their father and less time with their mother.

[130] He describes P.D.’s parenting as “direct but soft in a way”. He has been present when P.D. disciplined the children. He usually does that by talking with them. Although the boys yell at each other, they do not yell at P.D.

[131] Keegan has picked up the children from school and from D.C.’s house. It has often been from D.C.’s house because P.D. is in a meeting or on a conference call or “really busy.” When he picks up the boys, they talk about school or what they did over the weekend. Their mood is calm when he picks them up.

[132] He is aware that the police have come to the house, perhaps 10 times.

[133] He has overheard conversations between the boys and D.C. They are usually arguing, and he can hear D.C. yelling over the phone.

[134] He has been present when P.D. speaks to them about D.C. That is sometimes good and sometimes bad. He tells the boys to respect her, but he sometimes also swears about her. He has not heard P.D. try to influence them and has not heard him be abusive to the boys.

[135] He has seen P.D. occasionally have a drink of wine with dinner or by the pool. He has not seen him drink hard liquor or appear drunk. He has not seen P.D. use drugs.

[136] He has picked up the boys almost every day since March. He has sometimes driven P.D.’s car. He has been asked to drive because P.D. was working but not because P.D. was drinking. He has also picked up the boys early when they were sick at school.

[137] Keegan has never been in D.C.’s house. He has heard the children say that they loved her.

[138] P.D. swears in conversation and has sworn at the children but not at him. P.D. has never hit the children. He denies that P.D. has been aggressive with them.

[139] He agrees that there is a running joke that P.D. “cuffs” the children to the head. They do it back to him and to each other.

[140] Again, I cannot accept Keegan’s description of home life with P.D. Given the objective evidence from the admitted records, I find that Keegan is wisely giving evidence in support of his uncle to maintain his own residence. Further, it appears that Ms. Graham has not been in the residence or aware that the police have been at the house ten times. The conflict in their evidence hurts the credibility of both.

d) Evidence of D.C.

[141] D.C. acknowledges that the children swear at her because they have learned that from P.D. His telling them to call the police undermines her.

[142] Although school is a priority to her, the children are often out of school when they are with P.D.

[143] With respect to whether she yells at the children, D.C. acknowledged that she does raise her voice if speaking with them or making compromises does not work. While she yells at the children, she denies that she yells at them too much. She describes that practice as her exercise of parental authority rather than a threat of physical violence as P.D. does.

[144] Because of P.D.’s conduct, the children have been conditioned to disrespect her and to call her names. His use of FaceTime with the children has invaded her privacy. He has had the children take photos of what is in the fridge.

[145] Rather than co-parenting, P.D. is allowing the children to manipulate both of the parents. She believes that the parents should work together.

[146] The way that P.D. is raising the children, he is creating turmoil. He should not be telling them to call the police or refuse to give up their phones. The effect of this is that G.D. is more defiant at school. Both children have run away from her as a result of his advice.

[147] With respect to the contempt motion, D.C. takes responsibility for breaching the court order but wanted to keep the children safe. She wanted to stop the alienation and decided to keep the children. Because of the costs order, she could not afford to proceed with a motion to change. She was also advised that she would be unsuccessful in an effort to change the order because there had been no change in circumstances since the Donohue order. P.D. had been abusive before and was still abusive.

[148] She believes that the 2016 contempt order enabled P.D., and he was worse through 2016. Through 2016, there are a variety of incidents with the police, the CAS and various recordings. This was while her father was in chemo and dying of cancer. At that time, both she and the children were vulnerable.

[149] Although the OCL was ordered to do an update, both she and P.D. failed to file the necessary documents in time and the order expired.

[150] The records support her testimony that P.D. did not agree with counselling and was upset about the children going to counselling.

[151] The CAS records and police records show that he believes that those agencies have a female bias. He has suggested that the CAS is a mechanism for abused women.

[152] D.C. testified that P.D. has withheld financial support in an effort to control her; she has therefore missed making payments necessary for she and the children.

[153] In the past, E.D. and G.D. have come home from an access visit with their father and complained that she let them stay with him while he drank. The children were mad at her and said that they would never go again unless someone else was there. E.D. still gets stressed about going with his father without supervision.

[154] D.C. filed an extensive list of emails from June 19, 2017 to January 18, 2018. These showed how P.D. cancelled access or changed the manner of picking up the children.

[155] In 2018, E.D. swore at D.C. and threatened to call the police on her. As a result, she obtained support from a family violence counsellor and learned new parenting skills. She learned to set new boundaries in the home, including taking the children’s phones away from them at 9:00 p.m.

[156] The children now go with her to the Y. D.C. has taken them on a variety of events and trips through 2019 and 2020. She filed a number of pictures showing the positive nature of their relationship.

[157] D.C. believes that P.D. has been intoxicated many times but does not know what it is that has intoxicated him. She agrees that he does not drive while impaired. She acknowledged that she does not know what goes on in the house, in contrast to Keegan and Brenda’s evidence.

[158] D.C. believes that P.D. has to take responsibility for causing the conflict. She blames P.D. for the conflict.

[159] P.D. has not been cooperative to get a psycho-educational assessment for E.D. and without P.D.’s approval, she cannot access his benefits. She has, however, been able to get on the waiting list for a psycho-educational assessment paid by the school.

[160] She does have arguments with the boys, and she did chase G.D. when P.D. told G.D. to call 911.

[161] She agreed that she had difficulties controlling the boys because they are teenagers and because of their father’s influence.

[162] The boys are getting better now, although E.D. was suspended from school in 2020.

[163] D.C. does not believe that she is encouraging the conflict. She has tried to resolve it, but P.D. cannot see past his anger.

e) Evidence of Angie Stratigakis

[164] Ms. Stratigakis is D.C.’s sister. Her evidence was filed as an affidavit and there was no cross-examination on her evidence.

[165] Ms. Stratigakis swears that she is close to the children and spends time with them and D.C. The affidavit has much inadmissible hearsay but, in summary, supports the position that the boys have a good relationship with their mother, although they are rude, disrespectful and challenging to her.

ii) State Involvement

a) Milton Driving Event

[166] In October 2018, an incident occurred when the children got out of D.C.’s vehicle on a busy street. It is a confusing incident that both parties allege was caused by the other. In general terms, it is alleged by D.C. in her pleadings that:

In October 2018 during a transition the Applicant followed the Respondent and the children from the transition location and incited the children to leave the Respondent’s car and go with him during her parenting time. The Applicant encouraged and supported the children in jumping out of the vehicle.

[167] I pause here to consider this event. The event raises serious concerns about D.C. if the children were so upset as to jump out of a car on a busy street while in her care.

b) Evidence of Keegan Docherty

[168] Keegan’s evidence was that P.D. received a Facebook call from G.D. on a Tuesday night. They were in a vehicle with D.C. They were fighting with D.C. and jumped out of the car. Both boys were on Steeles Ave. near a warehouse. He and P.D. drove to them and P.D. was able to calm them down.

[169] When they showed up to find the boys, both children were outside the car. D.C. was inside the car. Keegan stayed in the vehicle. P.D. went to E.D. and spoke with him and D.C. got out of the car. He did not hear the conversation between the two of them. He did not see D.C. crying and did not see her run back to the car. Both boys got in the car with them and stayed the night.

[170] He agreed that it was not normal for a child to jump out of the vehicle. He did not hear P.D. tell them to do so.

c) Evidence of P.D.

[171] P.D. said that this event occurred on a night when D.C. picked the children up and they did not want to go with her. His evidence is that they jumped out of the car in Milton. G.D. gave him a recording of what occurred and said that their mother was “freaking out.” He drove over to pick them up. He calmed them down and she drove the children back to his residence.

d) Evidence of D.C.

[172] D.C. says that when she was taking the boys out for something to eat, G.D. was in the back seat and on his phone. She could hear him naming the streets they were on. E.D. said that G.D. was on the phone with his father. G.D. would not put down the phone. At a red light, E.D. got out of the car and remained on his phone. P.D. arrived shortly afterwards. After much discussion, D.C. drove the children back to his residence.

e) Evidence of Peter Clarke

[173] As set out above, the parties filed voluminous records from both the local police and CAS. D.C. called Peter Clarke from the Guelph CAS.

[174] Mr. Clarke is employed by the Guelph CAS. Mr. Clarke is an after-hours child protection worker and his notes were filed in evidence.

[175] Mr. Clarke’s first involvement was October 18, 2018. At the time, he was aware that P.D. had made allegations against D.C. with respect to verbal abuse toward the children when they had got out of the car at the light. He was provided with a copy of E.D.’s recordings.

[176] He did not verify any type of abuse. When he spoke to the boys, they appeared comfortable and not concerned. He listened to the recording but did not find it abusive. Rather, it confirmed that D.C. was anxious and upset.

[177] He spoke with P.D. afterwards. P.D. wanted to have him interview the children again and tried to convince him that there had been abuse. He also gave negative comments about D.C. Mr. Clarke was concerned about those comments because P.D. was loud, and the children were nearby. P.D. did not appear to be careful about his comments and Mr. Clarke was concerned that it would make the situation worse. He thought that the boys were caught in the middle. He told P.D to be cautious and P.D. said that he was. It was Mr. Clarke’s impression that the events had been set up because the children had Keegan’s phone.

f) Analysis

[178] From my review of the transcript and the evidence of the witnesses, I put little weight on this event. At best, it is an unfortunate event of the boys caught again in the middle. At worst, it was, as Mr. Clarke thought, an event staged by P.D. While the parties place great weight on the event, I do not. This is not an example of an error on the part of D.C. It is an example of how the children are impacted by the parents’ conflict.

[179] To continue with Mr. Clarke’s evidence, he was taken through the investigations he was involved in on October 29, 2018, November 21, 2018, November 30, 2018, December 25, 2018 and January 4, 2019. He did not verify abuse by either parent.

[180] When allegations of abuse against D.C. were not verified, P.D. was angry and did not think that the finding was correct. He accused Mr. Clarke of lying, being unprofessional and not doing his job. He agreed that it is not uncommon for parents to disagree with his findings.

iii) Section 30 Assessment

[181] D.C. called Michelle Hayes as one of her witnesses. Ms. Hayes was retained to do an assessment of the couple pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. She understood that she was doing an assessment with respect to claims by P.D. that D.C. was emotionally abusive to the children and D.C.’s claim that P.D. was alienating the children from her.

[182] Ms. Hayes received P.D.’s child protection concerns and advised him to contact the CAS. It is her practice that if there is an active CAS file, she will not proceed with the section 30 assessment.

[183] Ms. Hayes’ evidence was that the assessment was then collapsed because of the child abuse claims that needed to be referred to the CAS and the fact that the boys had been “chronically interviewed by various workers from several child welfare agencies, the Office of the Children’s Lawyer clinician, and most recently, conversations with the school principal . . . it is clear that the boys’ level of distress is rising.” She did not interview either boy before the assessment was collapsed.

[184] Both parties blamed the other for the collapsing of the assessment. Ms. Hayes found no fault with either.

[185] I can make no finding one way or the other. Ms. Hayes’ evidence is of no assistance to me.

a) Analysis

[186] The transcripts do not show D.C. to be blameless. The police and CAS records show her failings. She disappeared one weekend in 2018 and left the children with the belief that she would commit suicide. Whether she meant to do that is a finding I cannot make, but there is no doubt that was the effect upon the children.

[187] From the state involvement, it appears that the children have had a steady residence with D.C. But for the conduct of the parents, they have been well cared for. Neither the police nor the CAS became involved as a result of any concerns of theirs, other than the conduct of the parents toward each other.

iv) The Children’s Education

a) Evidence of P.D.

[188] P.D. says that if he had custody, E.D. would be able to walk to school and go to school with one of his best friends. If the children were to be with him, G.D. would be able to eventually go to the same high school with his brother.

[189] He believes that D.C. yells at the boys rather than providing them help with their schoolwork. In contrast, his fiancée is a teacher.

[190] P.D. said that he could not tell how many times he got the children to school late, but they most often missed school while they were with D.C.

[191] He was not allowed to go to the parent-teacher meetings. On one occasion, D.C. told him about such a meeting, but it was the same day of the meeting and he was on his way to catch a plane. He has never received notices from the school about such meetings.

[192] He has had difficulty getting information from the school principal and teachers. At first, he had conflict with the principal, Mr. Tribe, though that has been resolved. He was not aware that Mr. Tribe had called the police on him. He was not aware that Mr. Tribe had called the CAS about concerns of his drinking.

[193] He had spoken to Ms. Slater, the teacher for both of the boys, but she would not give any information to him. She would not provide him with report cards. He cannot remember the exact conversation with her. He now gets group emails about G.D. He has not met Ms. Slater but has spoken to her on the phone.

[194] Mr. Hawkins was also one of the boys’ teachers and P.D. received pushback from that teacher as well. He and Mr. Docherty were not “as confrontational” or “adversarial” as he was with Ms. Slater. He has met Mr. Hawkins twice. He was just asking for information and did not receive any.

[195] He was not aware that E.D. required a psycho-educational assessment. D.C. had asked for a psycho-educational assessment from Dr. Cadman, who was concerned about ADD and hearing issues. Although Dr. Cadman recommended a psycho-educational assessment, P.D. did not agree, nor did Mr. Tribe. P.D. was aware that D.C. wanted one, but he did not think that any teacher wanted one for E.D. He now agrees that a psycho-educational assessment would do no harm.

[196] The children see a tutor 3 to 4 times per week since COVID-19 started and they are improving. P.D. pays for that tutoring. He says that he has given D.C. information about the tutor.

b) Evidence of D.C.

[197] In response, D.C. states that the children do not get to school when they are left with P.D. or Keegan.

[198] She has been involved with the school and even volunteered to assist the boys and the school. D.C. called four witnesses related to the children’s education.

[199] D.C. attempted to file records related to these witnesses partway through the second week of trial. I did not allow her to do so for written reasons to follow. These are those reasons.

[200] On the morning of November 24, 2020, D.C. served three batches of documents. The first, at 8:58 a.m., related to Ms. Slater and was 118 pages. At 8:59 a.m., 112 pages arrived with respect to Mr. Hawkins. Between 9:00 a.m. and 9:20 a.m., 501 pages arrived with respect to Mr. Tribe. If the records were admissible, P.D.’s counsel would need time to review them and the trial could not be extended beyond what had been fixed for the trial. As can be seen from the evidence above, it was important for the trial to be heard. Further, in response, D.C. said that she had just received the records today as well. A “will say” had already been served with respect to these witnesses and D.C. had prepared her questions on the information that she had already received. However, she wished to have a recess so that she could review the records. It was her belief that she had one hour to examine Ms. Slater and would not need all of that time.

[201] However, Ms. Slater was only scheduled for one half hour in chief. Second, D.C. was as unprepared about these records as was P.D. A delay may not have benefited either party or the children.

[202] A number of trial management conferences were held with D.C.’s counsel prior to trial. Both counsel were aware that if there was a delay in producing relevant documents, it was unlikely that they would be allowed.

[203] The loss of the records would not lose the evidence of the school witnesses.

[204] Balancing all of those factors, I found the records to be inadmissible.

c) Evidence of Greg Hawkins

[205] Mr. Hawkins is an elementary school teacher who taught G.D. for parts of three years. G.D. struggled to focus in the classroom and to complete his work. He did not have a positive interaction with his peers. By that, Mr. Hawkins meant that he had observed G.D. regularly pushing, punching and kicking other classmates, in addition to name-calling. G.D. was also defiant in that he was not listening to his teachers or following regular routines. This behaviour included walking away from them, walking out of the classroom and not listening.

[206] Mr. Hawkins also had to speak with G.D. about his cellphone use; G.D. breached the school policy of phone use by texting.

[207] As a result, a “behaviour plan” was put in place in the second half of the 2018/2019 year. Mr. Hawkins also recommended a psycho-educational assessment to assist both the teachers and G.D.

[208] D.C. attended parent-teacher meetings with him and Mr. Hawkins also communicated with her by phone and email. D.C. also volunteered for school trips.

[209] Mr. Hawkins met with P.D. in the fall of 2018. When they met, P.D. said that Mr. Hawkins could use P.D.’s name to motivate G.D. to get his work done and blamed D.C. for her parenting. D.C. also blamed P.D. for the problems but Mr. Hawkins could not remember the circumstances.

[210] Mr. Hawkins also informed both parents of problems with G.D.’s attendance. G.D. was late, not in attendance at all or left early. Although Mr. Hawkins had no recollection of specific dates, he remembers that those visits may have been closer to the end of the week.

[211] Mr. Hawkins received a number of phone calls from P.D. about G.D. He also arranged a meeting with himself, P.D., G.D. and the principal. At that meeting, P.D. said that Mr. Hawkins was “the boss” and that G.D. needed to listen to him. P.D. did not challenge Mr. Hawkins’ authority. Mr. Hawkins thought that P.D. was appropriately concerned about G.D.’s education.

d) Evidence of Paul Tribe

[212] Mr. Tribe has been an elementary school principal for 30 years and was the principal when G.D. and E.D. were at his school.

[213] From his review of the attendance reports for 2018 and 2019, the children were often late on Fridays and absent on Mondays. There were also times when they were absent on Fridays and late on Mondays. In the 2018/2019 year, they were late 40 times and absent 17 times. Mr. Tribe was not aware of the reason for lates or absences; however, the number of times the children were late or absent was a concern to the teachers and they brought that to his attention. He spoke to both parents. He was advised that some of the difficulties were associated with snow days or weekend activities or because the children were away at the time. He was also advised that P.D. sometimes “just couldn’t make it”.

[214] D.C. was actively involved in the children’s education. She attended at performances and other special days. She had regular contact with teachers about the children’s homework and behaviour. Mr. Tribe had positive interactions with her.

[215] On the other hand, there were issues with P.D. and the faculty. The staff had concerns about negative interaction with P.D. and there had been a number of staff who complained. That included homeroom teachers and the pizza day organizer.

[216] Accordingly, in February 2017 Mr. Tribe provided a direction to P.D. that any contact would have to be with him rather than the teachers. After that, there were no other interactions between P.D. and the staff.

[217] After this directive, he met with P.D. and Mr. Hawkins. That meeting was successful. It was productive and calm. P.D. was polite and respectful and told G.D. that he should listen to both the principal and the teacher. There was no challenge to his authority or threats to G.D. P.D. was “properly parental”. Since that meeting, the relationship with P.D. changed for the better and they have talked more frequently.

[218] Mr. Tribe agreed that if P.D. had not received information including school records, a copy of the assessment, an ADHD diagnosis and the recommendation for a psychoeducational assessment, that could explain his frustration. Mr. Tribe did not know whether that had occurred and it would surprise him if P.D. had not received the information.

[219] Mr. Tribe also raised concerns about the children’s safety with P.D. and, on one occasion, he called the CAS. P.D. was upset about that. Mr. Tribe did not recall the date that he made that complaint. The CAS did not follow-up with him about that. He does not know the result of the investigation.

[220] E.D. had an individual education program for the years 2017/ 2018. There were also behavioural concerns about E.D. with respect to opposition to authority and noncompliance. E.D. was referred for a psycho-educational assessment and placed on the waiting list for 2017/ 2018. Some parents pay for it independently or through their benefit suppliers.

[221] G.D. had a “safety plan” during the 2018 2019 year. He had been suspended up to three days because of “opposition to authority.” As a result, E.D.’s behaviour and education has been more successful over the last year.

[222] Both G.D. and E.D. have been suspended. E.D. was suspended on February 7, 2020 for commenting about another child’s “heritage”.

e) Evidence of Audrey Slater

[223] Ms. Slater has been a schoolteacher at the children’s school for 17 years. She had taught both children and been their homeroom teacher.

[224] E.D. has an individual education plan. Such a plan is put together for a student with significant education difficulties. This is to alter the education goals so that the child is more successful. This was first recommended for E.D. in grade six.

[225] G.D. does not have an individual education plan. He does, however, have a safety plan as of last year. This is a plan set up when there are concerns about the safety of the student or others around them, such as if a student is defiant or noncompliant on a consistent basis, or if there are specific behaviour problems.

[226] She has had a good start to the 2020/2021 school year with G.D. and it appears that she has a better relationship with him. With respect to E.D., he has matured a great deal and made significant progress with his behaviour.

[227] She did not have a parent-teacher meeting with P.D., though she has met him informally. All of his emails have been appropriate. They mostly dealt with academics. He told her that his fiancée was a teacher in June of this year. He appears to be a concerned parent about the children completing their homework.

f) Evidence of David Cadman

[228] Dr. Cadman is a pediatrician and has assessed E.D. for autism, ADHD, intellectual abilities, anxiety, mood issues, depression and OCD. His opinion evidence went in on consent.

[229] He met with E.D. and D.C. on three occasions. He has no recollection of meeting with them other than his notes. E.D. was referred by his family physician in March 2016; Dr. Cadman first saw him on December 7, 2016.

[230] On December 7, 2016, Dr. Cadman met with D.C. and then E.D. He had reviewed the records ahead of time. He relied on the parent questionnaire from D.C. He also had the teacher’s checklist. From that material, he had a concern about family separation issues as one of the factors. As E.D. said, “I’m in the middle of it”.

[231] After the first meeting, Dr. Cadman had concerns with respect to ADHD, adjustment anxiety, hearing, and peer bullying. He also had concerns related to the family dispute. He ordered a test for central auditory processing and that came back within normal ranges.

[232] At that point, he was uncertain of the nature and extent of the problems. The “gold standard” for the next step was a psycho-educational assessment. It could be paid for by the school with a delay or the parents could pay for a private assessment that would come earlier.

[233] They had a third meeting, but he was left uncertain about the nature of the problems.

g) Analysis

[234] It appears that D.C. has been successfully involved with the children’s education. She has been attentive and responded appropriately.

[235] While P.D. has now resolved his conflict with the schoolteachers, most parents can get through their children’s education without complaints from teachers that require contact only through the principal. Even allowing for the frustration of a lack of information about his children, this history confirms the behavior that is shown by the transcripts above.

[236] Mr. Tribe made a complaint about P.D. driving with the children while impaired. There are a number of vague allegations about P.D’s use of alcohol or drugs. None are of sufficient weight for me to find that P.D. has an alcohol or drug addiction that affects his parenting. I have ignored those bits of evidence for my analysis.

[237] I have reviewed the school records that were admitted into evidence on consent. Many have handwritten notations, but I do not know who made them; I have ignored them. There are many typed parts of the school record that I do rely upon. Many relate to P.D.’s time with the children. From those records, I can make some calculations of when P.D.’s weekend time with the children would have been. There was no dispute to Mr. Tribe’s evidence that P.D. “just couldn’t make it” to get the children to school. It appears that much of the children’s time away from school occurred while it was P.D.’s obligation to get them to school. Given the children’s difficulties in school, there is no excuse for them to be late or absent.

[238] D.C. has been involved with the children’s school to the children’s benefit. P.D. has been hampered in his involvement because of his work commitments and D.C.’s lack of reporting important information. All of the school witnesses confirmed that not showing up at the school does not mean a lack of interest in the children’s school progress. However, there is no reason to change D.C.’s involvement by changing custody.

[239] Finally, I have no information with respect to the Milton schools, independent education plans or similar supports that may or may not be available in a timely fashion.

[240] I find that it would not be in the children’s best interests to change parenting with the result that their present education plan would change.

v) The Children’s Health

a) Evidence of Dr. Sochoka

[241] D.C. called her family physician as part of her case. Dr. Sochaka has been a family doctor in Milton for the last 15 years. She was E.D.’s doctor since he was two and G.D.’s doctor since birth. They have come for regular visits two to three times per year.

[242] In Dr. Sochaka’s opinion, D.C. is a good parent. She brought the children with problems or for regular checkups and followed up with specialists. She was properly anxious and worried. D.C. followed up as she was requested. She did not reject Dr. Sochoka’s advice. She did not fail to give immunizations. Her impression was that D.C. was taking care of the children.

[243] She saw P.D. only once. He had brought his son to the office at D.C.’s request.

[244] In January 2017 she referred G.D. to Dr. Cadman.

[245] She acknowledged that P.D. made a complaint to the College of Physicians and Surgeons about her but could not remember any details about that complaint.

b) Evidence of P.D.

[246] P.D. believes that D.C. has not taken the children to a doctor or followed up on their medicines since 2013. She has cut off their antibiotics before the end of term and has used the leftovers for other reasons. D.C.’s family doctor would not speak to him and since then D.C has changed doctors. To P.D.’s knowledge, D.C. only takes the children to clinics. She has signed the boys up for braces without notice to him. He has asked for information and not received it.

[247] He would like the boys to go to a counsellor or therapist, but D.C. has refused to do so.

[248] P.D. complained that he has not been able to get information from the children’s doctor. When he went in to see that doctor, the end result was that he made a complaint to the College of Physicians and Surgeons. He is not sure if he spoke to her about the complaint before he made it.

[249] He did not speak with the doctor, nor did she speak with him. He did not receive an opinion or any information from the doctor.

c) Evidence of D.C.

[250] In September 2020, G.D. broke his arm at school. The day before, G.D. had hurt his arm but not broken it. D.C. took him to the hospital on this first date. The doctor told G.D. what activities he should or should not do to care for the arm. D.C. told G.D. to tell his father what had occurred and what advice he received from the doctor at the hospital. D.C. testified that she relied on G.D. to tell his father.

[251] In particular, G.D. was specifically told not to use his longboard, but did so anyway and broke his arm again while in the care of P.D. When that happened, E.D. called D.C. to obtain G.D.’s health card. D.C. could hear P.D. say that he would not take G.D. to the hospital and hung up. As a result, she called the police and an ambulance.

[252] When she did not get further information, she called the local police and found out that G.D. was at the Credit Valley Hospital. She drove there and arrived at 12:30 a.m. because the doctor needed her consent for G.D. to have surgery. Keegan was there but not P.D.

[253] D.C. denied that she has failed to provide P.D. with the results of tests. She testified that her lawyer gave him the dates and times of appointments and names of doctors in both 2016 and 2017.

d) Analysis

[254] While Dr. Sochoka was not a particularly impressive witness, she did confirm that D.C. has provided the boys with proper medical care. In almost all other areas, she was vague and forgetful. Her lack of memory in some areas seemed convenient.

[255] She was particularly unhelpful with respect to the nature of the complaint made by P.D. to the college. I am unable to determine if the fault lies with her or P.D.; I place no weight on those events.

[256] On all of the evidence, I find that D.C. has failed to provide P.D. with the information that he needs and to which he has a right. D.C. admits that she left vital information about G.D.’s broken arm to be communicated to P.D. by her son. That is a serious abdication of her responsibilities. It also lends credence to P.D.’s ongoing complaints about information and the signing of the release. Given my findings of P.D.’s conduct, D.C.’s failure to comply with that obligation may be understandable but it is not excusable.

vi) Summary of History of Care

[257] Taking all of that evidence into consideration, D.C. has provided proper care for the children. I find that this factor confirms that custody should remain with D.C.

E. Children’s Views and Preferences

[258] P.D. says that the boys do not want to be with D.C. He testified that the children know about the litigation. They are presently 14 and 12 and “get the game”. They know that they are recorded when they are at her house.

[259] He hopes that they are not in a “loyalty bind” but they will have different phases of their choice and preference. He agreed that they may have been in such a bind in 2014; however, he knows that they know what they want now and that is peace in the house. He thinks they should be loyal to both parents.

[260] In response, D.C. believes that E.D. and G.D. are coached and manipulated by P.D. She believes that he buys things for them that she cannot afford so as to gain their support. To that end, she denies that the Voice of the Child report is valid. She does agree that the boys told the CAS in December 2018 that they wanted to live with P.D.

i) Evidence of Howard Hurwitz

[261] Mr. Hurwitz was retained to provide a Voice of the Child report. His curriculum vitae, notes of interviews and report were filed on consent.

[262] The instructions that Mr. Hurwitz received from the order of January 28, 2020 were contrary to his usual practice. He normally would meet with the parents both before and after meeting with the children. However, in this case, he was not allowed to have contact with the parents. He also had difficulties in contacting the children.

[263] Mr. Hurwitz testified that he would normally meet with each parent with the children to observe the nature of the relationship between the parents and the children. By doing that, he would be able to see if there was any influence or fear or the need to please the parent by the child. When he sees the children with the parents, he can see if there is threatening, abusive or nurturing conduct between the parent and the child. He could also have learned more if there had been a family meeting. He was unable to do so in this case.

[264] As a result of these novel conditions, there was a meeting by conference call with Mossip J. to resolve his interview difficulties. However, he was still unable to have a meeting with the children and either parent.

[265] However, he met with both children twice, in February and July of 2020.

[266] Mr. Hurwitz did not find any evidence of alienation of D.C., since the children did not demonize their mother and did not have extreme views against her. They wished to continue to have contact with her. They were still positive about her but both children preferred their father over their mother.

[267] Mr. Hurwitz found P.D. to be focused on the best interests of the children and wished to protect them from parental conflict. He made no negative comments directed to D.C.

[268] Mr. Hurwitz does not believe that either child was influenced by the parents or their sibling.

[269] There was much cross-examination of Mr. Hurwitz, suggesting that he failed to obtain and interview collateral sources. However, Mr. Hurwitz’s role was not to assess parenting but only to obtain the voices of the children. I find no fault in his procedure, given that any limitations were outside his control; the unusually toxic relationship between the parents prevented Mr. Hurwitz from observing their interactions with the children.

[270] Mr. Hurwitz agreed that if the children were not truthful, that could affect the weight of his opinion. Both children said nothing about being afraid of their father and he knew of no evidence to suggest otherwise. The boys told him that their father did not say anything bad about their mother in front of them. It would cause him concern if that was not true because it would be possible that they lied to him about other matters.

[271] He was then provided with the excerpts from the November 3, 2020 transcript set out above. Mr. Hurwitz said that this would not change his conclusion of the boys’ wishes in July because this recording was at a different time than his interview. The children’s views may change with the change in circumstances. It may also be that the recording evidenced isolated comments.

[272] The children had no negative comments about their father but that did not make him suspicious of their views.

[273] When I consider this evidence, it is important to remember that Mr. Hurwitz’s opinion is not an assessment. It is simply the views and preferences of the children at a particular time.

[274] I do not discount the significance of the expressed wishes of a 13- and 14-year-old child but I am also to consider those wishes within the context of all of the evidence.

[275] In Abbott v. Meadus, 2014 NBQB 18, at paras. 67-70, Baird J. stated the following:

[67] In this case, the children are now 14 and 12 years of age. Their views and preferences, although not determinative, do play a role in the ultimate decision to be made.

[68] Here I wish to refer to the Voice of the Child Assessment. Professor Nicholas Bala, a professor of law from the University of Toronto in an article titled, “The Voice of Children in Canadian Family Law Cases” established criteria that he believes the judiciary should consider when assessing the significance of a child’s wishes. The reason why I am including these criteria in this decision, is to demonstrate to the respondent mother in this case, the imperative we have as judiciary to consider those expressed views when children are at an age where their views should have some weight.

[69] In this case, the responding mother does not accept that these children have the requisite maturity to fully comprehend their choice.

[70] The criteria are as follows:

1. Whether both parents are able to provide adequate care;

2. How clear and unambivalent the wishes are;

3. How informed the expression is;

4. The age of the child;

5. The maturity level;

6. The strength of the wish;

7. The length of time the preference has been expressed for;

8. Practicalities;

9. The influence of the parent(s) on the expressed wish or preference;

10. The overall context;

The circumstances of the preference from the child’s point of view.

[276] Considering those factors, I find that the wishes of both boys are clear and strong. I have no real evidence of their maturity but given their age, those wishes are significant.

[277] However, given the conduct of P.D. the rest of the factors result in me placing little weight on the children’s views and preferences in the best interests analysis. P.D. has been denigrating D.C. for years. He has been interfering in her parenting, causing strife at her home. Given his influence, I am unsure of how informed the boys’ expression is.

[278] Mr. Hurwitz agreed that if the boys were not telling the truth, there could be less weight put on their views and preferences. All of the evidence shows that P.D. has made negative comments about D.C. The fact that the boys deny that causes me concern.

[279] Given my findings above, it does not surprise me that the boys prefer to live with their father who does not get them to school on time or at all.

[280] The views and preferences were put forward in February and July of 2020; the transcript of November 2020 show that the boys are dismayed with their father. While two interviews by a trained individual are significant, the later views undermine that professional opinion.

[281] As set out below, despite these professed views, the boys’ relationship with their mother will be harmed – if not destroyed - if they are in the custody of P.D.

F. Heritage and Religion

[282] The heritage and religion of the parties or the children was not mentioned at trial.

G. Plan for the Children’s Care

[283] P.D. submits that having the children reside with him will give the children greater stability; however, there is nothing to suggest that the battle will end until P.D. has his way. Changing the number of days in the care of the other will not assist the children.

[284] Both parties agree that the children need counselling, yet neither are prepared to agree on who the counsellor should be. D.C. has the authority to make the decision, but P.D. would not access his benefit plan if he did not agree. And now the children need counselling more than ever and P.D.’s benefits are apparently gone.

[285] Without the conflict between the parents, both plans are reasonable. However, with the conflict, I find that there is no benefit in accepting P.D.’s plan over D.C.’s.

H. Ability and Willingness to Meet the Needs of the Children

[286] P.D. has been told by Donohue J., Price J., and me that this conflict is harmful to the children. Each of us have quoted at length from other cases to attempt to persuade P.D. of the error of his ways and the harm he is causing his children. He disagrees with us.

[287] The records indicate that the Halton CAS, Wellington CAS and Wellington OPP have attempted to persuade both parties of the errors of their ways. As it relates to him, P.D. disagrees.

[288] The evidence leads me to conclude that P.D. simply refuses to meet the children’s needs for the conflict to end. Again, D.C. is not blameless in this piece, but the bulk of the blame and the continuation of the conflict lies with P.D.

I. Communicate and Cooperate

[289] The transcripts are eloquent in setting out P.D.’s inability to communicate or cooperate. On the basis of the evidence set out above, I find that P.D. is unable to communicate and cooperate in a reasonable fashion.

[290] In the interim motion brought by P.D. to change custody pending my decision, much of the upset was generated by P.D. speaking directly to the children while in the care of D.C. He defended himself by saying that the children reached out to him and he needed to calm them and solve the difficulties. The record was silent on why he did not contact D.C. by OFW to resolve the issues with her.

[291] One of the children contacted P.D. to have P.D. send hamburgers to D.C ’s home. P.D did so without contacting D.C. Arguments within the home followed. P.D. got involved again by phone. Police ended up at D.C.’s home. P.D. says that is the fault of D.C. and denies any responsibility. It is clearly his interfering in D.C.’s parenting time that was the instigation of the problem.

[292] P.D. said in his most recent affidavit:

I do not want to ever see the boys battle with D and nor do I want to know that they are upset while they are with her. My message to them is always that they need to listen to their mother and that they must stop fighting with her.

[293] As can be seen from the above, that is simply not true.

[294] In the motion for interim variation of the custody term, D.C. said that P.D. said within the hearing of the children:

“How much do you want [D.C.] to fuck off? How much money do you want to fuck off? Look at what you are doing to the kids”

[295] P.D. responded:

[D.C.] and I had had prior discussions about settling the issues in exchange for a payment to her and in my comments to her I was trying to see if that was still on the table.

[296] P.D., at best, is blind to his own conduct.

[297] P.D. went on:

I am also concerned that [D.C.]’s propensity to call the police will lead to either [E.D.] or [G.D.] being charged criminally.

[298] And yet P.D. admits that he has told the boys to call 911 when they are upset at their mother.

[299] P.D. agrees that he is foul-mouthed. He apologized a number of times. He says that he “is from Glasgow.” But he does not stop swearing and denigrating D.C. He refuses to cooperate with court orders while under scrutiny of the trial. I can see no reason to think he will cooperate with D.C. at any other time.

[300] As set out above, I find that D.C. has also failed to communicate and cooperate with respect to important information. However, D.C.’s failure to do something is less harmful to the children that what P.D. does to the children.

J. Family Violence

[301] P.D. continues to deny the conviction found by Donohue J. He points out that while he was charged with threatening the children’s grandfather, he was not convicted; he entered into a peace bond. Conviction or not, P.D.’s threats – intended to be acted upon or not – are violence that cannot be condoned. Those threats related to the children and their grandfather. That will no doubt cause fear to those members of the family, including D.C. P.D. denies any physical assaults upon the boys but agrees that he “cuffs” them to the head on a regular basis. Again, it is submitted that he should be credited with candour, but he has been assaulting his boys for most of their childhood. While P.D. said that he no longer cuffs the children, his fiancée and nephew confirmed that he still did.

[302] While P.D. denies a criminal record, the reports in evidence disclose convictions for assaults. Donohue J. found him to be guilty of assaultive behavior. A criminal record check would put that to rest, but none was received.

[303] The undisputed transcripts show that P.D. has said the following to the boys:

“Shut the fuck up before I clap your ears”

“I put the fear of God into ya, yup”

“I’m going to jam my foot my fucking foot in your ass”.

“I would drive my thumb through his heart”.

[304] That is family violence and cannot be tolerated.

K. Summary

[305] Even if I were persuaded that there had been a material change in circumstances, I would still not change custody or parenting to P.D.

[306] There is no doubt that P.D. loves his children and that he has been, by and large, truthful. He misguidedly thinks he is doing the right thing for his children. He is wrong in that belief.

[307] There are two substantial factors to weigh in support of P.D.’s case; the age of the children and their stated wishes as late as July of 2020. However, those factors cannot outweigh the balance of the evidence. A change in custody would not be in their best interests.

VII. Motion Pending Judgment

[308] As set out above, P.D. brought a motion to change the final order while this decision was under reserve. I dismissed that motion for reasons to follow. These are those reasons.

[309] P.D. asked that I order that the children reside with him pending the release of my judgment. He submitted that D.C. would continue to have the access that he had under the Donohue order.

[310] Both parties agreed that in order for me to change a final order on an interim basis, the moving party had a high onus to meet. Such a variation can only be made in “sufficiently compelling circumstances” on “cogent and compelling evidence”: Lonsdale v. Smart, 2018 ONSC 3991, at paras. 10-12; J.J.S. v. P.P, 2020 ONSC 1038, at paras. 23-25.

[311] The evidence in support of P.D.’s motion relied on hearsay statements from the children as to what occurred. D.C. responded to the allegations from her own knowledge in detail. As set out above, one interpretation of the events was that P.D. was the problem in this event. It may also be that D.C. added to or started the problem. Either way, this battle of affidavits does not meet the threshold as cogent and compelling evidence required to make such a change.

[312] Further, even if all that P.D. said were true, the conflict would still continue with the turn-around in access.

[313] For those reasons, the motion was dismissed.

VIII. Access Terms

[314] The parties also sought changes to the terms of access. In Dunn v. Shaw, 2014 ONSC 1953, Minnema J. found no material change with respect to custody and did not change custody but did change access terms. I am not persuaded that I should do so here.

[315] Donohue J. ordered that access was to be as follows:

[193] [P.D.] shall have access on the following schedule:

(a) Week 1: Tuesday from after school (3:00 p.m.) to 7:30 p.m.; and Thursday from after school (3:00 p.m.) to Monday morning drop-off at school, daycare, or camp;

(b) Week 2: Thursday from after school (3:00 p.m.) to Friday morning drop off at school, daycare or camp;

(c) All mid-week pick-ups at school, daycare or mutually arranged location.

(d) All weekend drop-offs shall take place at [D.C.]’s residence on the condition that [P.D.] remain curbside when dropping off the children;

(e) The children shall spend Father’s Day from 10:00 a.m. until 6:00 p.m. with [P.D.] and Mother’s Day 10:00 a.m. until 6:00 p.m. with [D.C.];

(f) Christmas: In even numbered years, [D.C.] shall have the children in her care for the first half of the Christmas holidays including Christmas Day until 4:00 p.m. [P.D.] shall have the children in his care for the second half of the holidays including New Year’s Day until 4:00 p.m. In odd numbered years, [P.D.] shall have the children in his care for the first half of the Christmas holidays including Christmas Day until 4:00 p.m. [D.C.] shall have the children in her care for the second half of the holidays including New Year’s Day;

(g) Summer holidays: Each parent shall have three non-consecutive weeks during the summer. In odd numbered years, [D.C.] shall have the first choice of weeks. In even numbered years, [P.D.] shall have the first choice of the weeks. The person with the first choice shall provide the dates by no later than March 30^th of each year;

(h) Easter: In even numbered years [P.D.] shall have the children in his care from 10:00 a.m. until 6:00 p.m. on Easter Sunday and in odd numbered years, [D.C.] shall have the children in her care from 10:00 a.m. until 6:00 p.m.;

(i) March Break: [P.D.] and [D.C.] shall share the March Break evenly by adding on two and a half days to their weekend with the children, with the transfer occurring at 1:00 p.m. on the Wednesday of March Break;

(j) Family Day: In even numbered years [P.D.] shall have Family Day from 10:00 a.m. to 6:00 p.m., and in odd numbered years [D.C.] shall have Family Day from 10:00 a.m. to 6:00 p.m.;

(k) Thanksgiving Weekend: Shall be shared, such that the parent whose weekend it is, shall have the Sunday evening until 8:00 p.m. and the other parent shall have the children from Sunday at 8:00 p.m. to return to school Tuesday morning; and,

(l) Other Holidays: For other holidays, including statutory holidays, and school professional development days on Monday, the children shall remain with the parent they were with on the preceding weekend until Tuesday morning.

[194] There shall be no make-up time for either parent in the event of missed visits or holiday time.

[195] The children shall speak by phone with [P.D.] sometime between 7:30 p.m. and 8:00 p.m. when they are in [D.C.]’s care and shall speak by phone with [D.C.] sometime between 7:30 p.m. and 8:00 p.m. when they are in [P.D.]’s care. [P.D.] and [D.C.] shall not telephone, text, email or otherwise contact the children during their time with the other parent. The children may communicate with either parent as desired.

[196] [P.D.] and [D.C.] may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. D.C. shall sign and provide each other with any information and/or documentation necessary to enable this, including providing notice of all appointments at the time of scheduling.

[197] In the event of an emergency, [D.C.] or [P.D.], as the case may be, shall notify the other parent immediately.

[316] P.D. asked that access change to

1. The children shall reside with D.C. on a two-week rotating schedule with terms that:

a. Week #1: Wednesday from pick-up after school or 3:00 p.m. if not in school to Thursday morning drop-off at school or 9:00 a.m. if not in school; and Friday from pick-up after school or 3:00 p.m. if not in school to Monday morning drop-off at school or 9:00 a.m. if not in school;

b. Week #2: Wednesday from pick-up after school or 3:00 p.m. if not in school to Thursday morning drop-off at school or 9:00 a.m. if not in school.

c. If the children are not in school, any drop-offs and pick- ups shall be done by D.C. and shall be to and from P.D. 's residence.

2. The children shall reside with the parties in accordance with the following holiday schedule, which shall override the residential schedule set out in paragraph 3, above:

a. Christmas: in even-numbered years, with D.C. for the first half of the school holiday and with P.D. for the second half of the school holiday. For clarity, the holiday period extends from the end of school for the break until return to school in January and the transition to the other parent shall take place at 2:00 p.m. on the mid-point day.

b. Summer holidays: with P.D. every July 1-15 and August 1-15 and with D.C. every July 16-31 and August 16-31 of each year.

c. Easter: In even-numbered years with P.D. from Thursday after school until return to school on Tuesday morning and in odd-numbered years with D.C. Thursday after school until return to school on Tuesday morning.

d. March Break: In odd-numbered years, with P.D. or March Break and in even numbered years with D.C. for March Break. For clarity, March Break shall mean from Monday to Friday with the regular residential schedule weekends remaining intact;

e. Father's Day and Mother's Day: with the appropriate parent from 10:00 a.m. until return to school on Monday morning;

f. For other holidays and long weekends, and school professional development days on Mondays, with the parent the children were with on the preceding weekend until return to school on Tuesday morning or at 9:00 a.m. if not in school.

3. There shall be no make-up time for P.D. or D.C. in the event of missed visits or holiday time.

4. Any requests by either party to change the regular residential schedule or holiday schedule shall be made to the other party at least 5 days prior to the requested change. The responding parent shall reply within 2 days and shall not unreasonably withhold consent to the requested change.

5. P.D. and D.C. shall not initiate telephone, text, email contact with the children during their time with the other party. The children may communicate with either party as desired.

6. P.D. and D.C. may make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, or others involved with the children. P.D. shall sign and provide D.C. with any information and/or documentation necessary to enable this.

7. In the event of an emergency, P.D. or D.C., as the case may be, shall notify the other party immediately.

8. P.D. and D.C. may take the children on vacations within or outside of Canada. The non-travelling party shall execute a travel consent letter upon being provided with a copy of the itinerary, including dates and mode of travel, and contact information at the destination. The travelling party shall provide the non-travelling party with a consent at least 14 days prior to the travel. The non-travelling party shall sign and return the consent at least 7 days prior to the travel.

9. P.D. shall be the librarian of the children's important documentation such as birth certificates, social insurance cards and passports and shall provide D.C. with notarized copies of same. P.D. shall provide D.C. with the children's passports if or when she needs them for travel. At the end of the travel, D.C. shall promptly return the passports to P.D.

[317] In return, D.C. seeks an order that:

1. She have sole custody and final decision authority concerning the children.

2. The names on this Court order and decision be the Initials of D.M.C for D.C.

3. The children shall continue to attend their existing schools in Guelph, Ontario.

4. G.D. shall be enrolled in Centennial CVI when he completes Elementary School.

5. If tutoring is required, or any other aspect of educational decision-making (perhaps a specialized program, summer school courses etc.), the parties shall support the decision made by D.C. Tutoring to support the children's academics should be fully transparent and each parent should be aware of, and have the ability to engage with, the tutors at the respective parents' homes, in order to ensure continuity and consistency in support of the children's educational needs.

6. The children shall obtain a psycho educational report started in January 2020. P.D. shall pay for the report of E.P.D, immediately.

7. Both parties shall be fully informed of the educational decision-making of the children so that they can monitor whatever the issues are and have full access to information from the service provider in question.

8. Both parties shall be fully informed of the medical decision-making of the children so that they can monitor whatever the issues are and have full access to information from the service provider in question. D.C. shall post all medical/dental appointments to Our Family Wizard on a timely basis so that P.D. father may attend if he desires.

9. All medical and dental care shall be put through P.D.’s benefit plan. The benefit card shall be provided immediately to D.C. Any other amount shall be covered by both parties proportionate to their income.

10. The children's passports shall be returned to D.C. D.C. shall hold the passports and renew and sign the passports. P.D. shall give the passports back to D.C. Both parents shall give an itinerary to the other parent within three weeks of travel and a letter for travel will be drafted to allow travel. Then passports shall be given one week prior to travel unless the other party is travelling that week.

11. The parties and the children shall engage in a program of family therapy meant to foster healthy relations amongst all members of the family and in support of the orders of the Court. D.C. shall have the right to make the selection of the family therapist and the expense of the family therapy shall be shared as a Section 7 expense pro rata to the parties' incomes. Each parent shall engage fully and in good faith and on a timely basis with the directions and pursuant to the agreements with the family therapist and their instructions in the course of the conduct of family therapy, including prompt payment of their invoices and attendance at scheduled sessions. Each parent shall ensure that the children similarly participate in good faith, attend the sessions, with a view to solutions and not anchor on past grievances, in full support of family harmony. Family therapy appointments shall be given priority in the children's scheduling.

12. The provisions of Paragraph 5 of the Final Order of Justice Donohue shall be carried forward subject to the following change: contact initiated by the children to the non-residential parent shall be similarly limited to urgent matters that cannot await a return to the other parent and shall be brief and nonintrusive. Specifically, it is not anticipated that the children will be in communication with the non-residential parent of their own initiative, except on a rare situational basis, in support of the prohibition against non-residential parent contact with the children during their time with the other parent.

13. P.D. and D.C. will have access to the cell phone account. Neither party will force the children to Facetime.

14. The children shall be enrolled in one major extracurricular activity that may straddle both parents' parenting schedule. D.C. shall choose the activity in consultation with E.P.D. and G.G.D.

15. The parent who is caring for the child/children that day shall be responsible for picking up and dropping off the child/children to/from their activity.

16. The children shall be enrolled in no more than two activities during that caregiver's parenting time. The parent who enrolled the child/children in the activity, shall be responsible for all transfers to and from the activity.

17. The parents shall support the children at their activities, which includes but are not limited to, attending to watch them at their activity and positively engaging with coaches and getting them to their activity on time.

18. The parties shall immediately register with Our Family Wizard and shall only communicate with one another through this platform. The parties shall download this Application to their mobile phones and communicate to one another about non-urgent matters concerning the children.

19. If a matter is urgent, the parties shall contact one another directly via email.

20. The parties shall check OFW at least every 48 hours and respond promptly to a message or indicate when a response will be forthcoming. The parties shall also use the online calendar function.

21. The parties shall equally share the cost of OFW.

22. The residential parenting schedule shall remain unchanged from the final Order of Justice Donohue dated August 15, 2013, except that the alternate (every two weeks} Tuesday parenting time for P.D. shall be an overnight with return to school the next morning.

23. All pick-ups and drop-offs of the children shall occur at school or extra-curricular activity whenever possible or, alternatively, at a mid-point location to be specified by the Court.

24. P.D. shall drop the children off at school and pick up the children at school or alternatively drop at D.C. ’s home for access to the bus.

25. Holiday and special occasion access times shall be shared equally, including but not limited to Easter, Christmas, Mother's Day, Father's Day, Birthdays, with the exception of the Summer Break, as set out in the Final Order of Justice Donohue dated August 15, 2013, with the following changes:

26. March Break - The parties shall care for the children during the five weekday March Break on an alternating annual basis. P.D. shall have the children during the entire March Break in odd numbered years. D.C. will have the children during the March Break in even numbered years. The weekend parenting schedule shall continue during the March Break.

27. Christmas Break - The parties shall equally share the children’s Christmas Break with P.D. having the first part in odd numbered years and D.C. having the second part. In odd numbered years, D.C. shall have the first part of the Christmas Break in even numbered years with P.D. having the second part in even numbered years. Drop off and pick up should occur at a court ordered location at 4pm. Each respective parent shall give the parent that does not have Christmas morning the children on the 25th of Dec in the afternoon at 4:00pm until the 26th at 1pm.

28. Summer Schedule - The parties shall each have the children in their care during three non-consecutive weeks during the summer school vacation. The vacation period must include the travelling/vacationing parent's regular alternating weekend, in order to ensure that there are no large gaps from the other parent. The regular parenting schedule shall continue during any non-allocated summertime. The selection of the weeks shall be as per the existing order. Transitions after vacation time shall take place at 9:00 a.m. with return to the receiving parent at the court ordered location.

29. imposing various covenants on the parties responsive to paragraphs 45 and 55 of the Decision of the Justice Price released August, 2015 including, in particular:

a. The parents shall ensure that the children attend school on the days the school is open, and P.D. shall cease the practice of keeping the children home from school on Friday

b. The parents shall communicate with each other if they are to be more than 10 minutes early or more than 15 minutes late for an inter-parent transfer of the children. Parents shall remain at the transfer location for up to 15 minutes past the specified court ordered time for transition and if they are informed that the other parent is minutes away an exception should be made. Once the other a parent has not been able to attend by the 15 minute­ late mark, the pickup shall revert for the transition to the home of the parent who was at the transfer location on time;

c. Telephone contact between the parties shall be restricted to only urgent/emergency matters and the balance of communications shall take place by Our Family Wizard. Calls late at night or which do not comply with civil productive discourse shall be specifically prohibited;

d. Each parent is required to ensure that the children attend all classes and extracurricular activities except in the event of a medical emergency, which must be documented by a doctor's report to be delivered to the school and to the other parent;

e. Both parents shall be given full access to the children's cell phones for direct communications, however such direct communication during the other parent's time shall be limited to a level which is not intrusive in the other parent's home;

f. Neither parent will allow themselves to be used as a methodology or forum for complaints or overruling parenting decisions made in the other parent's home;

g. Neither parent shall contact the Police, Children's Aid Society or other authority about a matter involving the children unless and until they have given the other parent a full opportunity to explain and comment upon whatever the issue is and, if a Parenting Coordinator or Family Therapist is involved at the time, such matter is also run by such third party professional; and

h. The children's equipment and clothing necessary for their extracurricular activities shall be promptly given to the children for to ensure their timely participation and transferred to the other parent at the appropriate time for the children to participate in the activity while with the receiving parent.

30. The parties shall exercise all required guidance, boundaries, incentives and consequences in their parenting of the children to ensure compliance with the terms of the court orders concerning parenting time and contact and the parties shall never accept any assertion by the children that they do not, or will not, comply with the terms of such court orders.

31. Neither parent shall make derogatory remarks about the other parent to the children or within earshot of the children, nor will either party discuss the litigation herein with the children. For greater certainty, each parent will refrain from speaking ill of the other parent, their partner, their families and their friends, always. The parents shall not share or discuss with the children inter-parental communications or disputes, nor shall they permit anyone else (other than the duly appointed therapists) to do so. The parents shall not engage in any manner of conflict, subtle or open, in the presence of the children and, accordingly, shall relate to one another in a reasonable le and cordial manner in all instances in which the children are present or nearby.

32. Each parent shall be entitled to have a full and active role in providing a sound moral, social, economic and educational environment for the children. The custodial or decision-making or access powers shall only be exercised in a way that is in the best interests of the children. Neither parent shall make any statement nor take any action with the intent or effect of portraying the other parent as marginalized in the life of the children because they are not the "custodial" parent. Rather each parent shall in all communications to or relating to the children message that both parents are to be considered full and involved parents in the children's lives.

33. Each of the parents shall exert every effort to maintain free access to an unhampered contact between the children and the other parent and to foster a feeling of affection between the children and the other parent. Neither parent shall speak to, or in the presence of, the children in a derogatory manner concerning the other parent, nor permit anyone else to do so. Neither parent shall do anything which would estrange the children from the other; which would injure the opinion of the children as to their mother or father; or which would impair the natural development of the children's love and response for each of the parents.

34. Each parent shall continue to communicate to, and foster in, the children a concept of the other parent as (I) safe; (II) loving; (Ill) available; (IV) that each parent can make a substantial contribution to the upbringing of the children; (V) that each parent is supportive of the children's relationship with both parents; and (VI) that each parent is fully supportive of the terms of their agreed parenting arrangements as being in the best interests of the children.

35. The parents shall be provided with copies of school, activity or special occasion pictures of the children that they have not previously been provided with and copies of such family mementoes, school reports, extra-curricular activities' pictures and awards and similar child-focused items as they may reasonably request, at the requesting parent's cost.

36. The parents shall be required to utilize all appropriate guidance and boundaries, incentives and consequences and escalate them on a timely basis, so as to require the children to: (I) comply with the living arrangements and other parental contact prescribed by Court Order consistent with this agreement; and (II) to require of the children the healthy behaviour contemplated below:

a. The children have the right to love and express love, verbally and through hugs, to each of their parents equally, free from any feelings of disloyalty or upset of the other parent.

b. The children have the right to cherish and think highly of each of their parents and the right to be free from any disparagement, negative opinions or criticism of one parent by the other parent or by members of a parent's extended family and friends.

c. The children have the right to demonstrate affection to each of their parents in the presence of the other and in the presence of their respective extended families.

d. The children have the right to describe positively and with enthusiasm their life with one parent to the other parent and the right to expect that this expression will be received openly and warmly and encouraged.

e. The children have the right to not have to manage the feelings of a parent by demonstrating loyalty or conveying dislike of the other parent or parent's home.

f. The children have the right to see their parents get along and be cordial with each other.

g. The children have the right to be free from pressure or lobbying from their parents or extended families regarding their living arrangements between the two homes.

h. The children have the right to not be exposed to the matters described in the Court Decisions that resulted in the current situation in the family.

i. The children are responsible for dealing with each of their parents fairly, respectfully and with love and affection.

j. The children should not seek to use one parent to intervene or overrule parenting decisions made at the other parent's house.

k. The children are responsible to respect the privacy of each of their parent's homes.

l. If the children are exposed to disparagement of one parent by the other or by their extended family, the children have the responsibility to assert themselves and ask that their right to think highly of both parents be respected.

m. The children are responsible for managing their own behaviour in a manner which will support their rights and responsibilities and their parents' parenting plan.

n. The children have the responsibility to maintain a balanced, fair and independent attitude towards their parents and to not take sides on any issues with one parent against the other.

o. The children have the responsibility to not behave in the manner depicted in the Court Decisions that resulted in the current situation in the family.

37. Neither child shall record either parent, nor shall either parent record either of the children. The parties shall not record one another.

38. The parties shall cease all unhelpful actions and narratives (as determined by the Family Therapist) and educate and cause the children to immediately cease all such unhelpful narratives. In particular, without limitation, the following actions and narratives shall be prohibited on the basis of their impairing the family reconciliation process:

a. Inquiring of the children whether they were safe in the care of the other parent;

b. Suggesting or permitting or failing to curb behaviour of the children that is disrespectful of the other parent or non-compliant with the court orders concerning the family;

c. Telling the children or suggesting to the children, that they should run away from the other parent;

d. Suggesting or permitting or failing to curb behaviour of a particular child that is negatively impacting the other child's relationship with a parent;

e. Telling the children or suggesting to the children that the other parent is singularly or primarily the cause of the marital relationship break down;

f. Asserting to anyone in any forum that a parent abandoned the children;

g. Asserting to anyone in any forum that a parent abused the children;

h. Asserting to anyone in any forum that a parent's presence at the children's academic or extracurricular or social events or in the community is inappropriate;

i. Asserting to anyone in any forum that a parent is mentally ill;

j. Asserting to anyone in any forum that a parent is not capable of meeting the children's needs; or

k. Asserting to anyone in any forum that a parent is a danger to the children.

39. An Order that neither party shall suggest or warn or express concern for the children to "be safe" in the care of the other parent. Neither parent shall inquire whether they were safe in the care of the other parent and/or that they should call the non-residential parent if they feel unsafe in the care of the residential parent.

40. An Order that the parents shall not permit, and shall actively disabuse the children of, the following false narratives:

a. That D.C. only cares about money;

b. That D.C. caused or has led to the children becoming injured and/or sick;

c. That D.C. is a "retard" and/or "retarded", or mentally ill;

d. That D.C. is not safe;

e. That the. D.C. doesn't care about the children as much as P.D. ;

f. That D.C. doesn't love the children as much as P.D. ;

g. That the maternal family are pigs and dirty;

h. That D.C. needs to get a job;

i. That D.C. was merely an incubator for childbirth.

41. An Order that neither parent shall instruct, permit, authorize, acquiesce or support directly or indirectly the children recording the other parent and, if any further incidents come to their attention, they shall exercise their full parental authority to ensure that this practice ceases.

42. That the Court shall remain seized for this matter for a one-year period of time to monitor compliance and assist the family with any requisite procedural or substantive orders in support of this parenting plan.

43. For child support based on P.D.’s income of 450k per year.; current payment of 5350 per month to continue until the review in 2021.

[318] Many of the access terms depend on whether I change the Donohue order. Having dismissed that request, P.D.’s access requests are dismissed as well.

[319] Many of D.C.’s requests are unnecessary while Donohue J.’s order remains in place and many are subsumed in that order. Most of her final requests were not set out in her Answer; I cannot make an order for things that are not claimed at the outset of trial. Many of the requests are common sense and do not require further orders. I have no doubt that if I add further orders, further arguments will follow. I need not add to the fire.

[320] I had hoped that my end-of-trial interim orders would assist in calming the waters. That failed, primarily as a result of P.D. ignoring them. D.C. advised that she could not afford to register with Our Family Wizard.

[321] In M.A. v. N.M., 2017 ONSC 2112, at para. 94, Hood J. said:

[94] At some point the parties have to take some responsibility rather than relying upon the court to do what they should be able to do themselves.... The court can only go so far in giving direction. It is an impossible task for the court to delve into the minutiae of day-to-day living and to tell parties how to behave and in effect make orders compelling grown-ups to act as such. At some point the court has to become less of a crutch for the parties. There is also the risk that the more the court is asked to make detailed orders the more the parties will find a way to have something else to fight over and to cast blame on the other.

[322] I cannot say that better. I make no order to change the access terms of Donohue J.’s order.

[323] As can be seen from this judgment, I have accepted D.C.’s request to initialize the proceedings. I cannot unwind the past court proceedings, but I can do this small bit to protect the children.

[324] While the open courts principle generally militates against initializing proceedings, many courts have held that such a step is a minimal impairment to the openness of judicial proceedings. See: B.G. et al. v. H.M.T.Q. in Right of B.C., 2004 BCCA 345, 242 D.L.R. (4th) 665; J.B. Trust (Trustees of) v. J.B. (Litigation Guardian of) (2009), 2009 CanLII 33033 (ON SC), 97 O.R. (3d) 544 (S.C.); D.J. v. S.F., 2017 ONCJ 879.

[325] In M.D. v. L.L. (2008), 2008 CanLII 9374 (ON SC), 90 O.R. (3d) 127 (S.C.), at para. 81, Justice Nelson said:

[81] This court possesses the jurisdiction to use initials or pseudonyms to protect the identity of parties pursuant to Rule 2.03 of the Rules of Civil Procedure, which enables the court, in the interests of justice, to dispense with the general rule that the names of parties be identified in the title of the proceeding (Rule 14.06). The use of initials to identify the parties was ordered in R. (J.) in the absence of submissions on the point. In this case, the identification of the parties by initials is entirely appropriate, given the privacy interests that the parties and E.D. have in this matter. [Citations removed.]

IX. Result

[326] P.D.’s motion to change the custody of the children is dismissed. As a result, Donohue J.’s order remains in place.

X. Costs

[327] If costs cannot be agreed upon, D.C. shall provide her costs submissions (for the proceeding, including the motion to change the children’s residence pending my judgment) within the next 20 days. P.D. shall provide his response within 20 days thereafter. There shall be no reply submissions unless I ask for them. If I do not receive submissions, or a request for an extension, within those time periods, I make no order for costs.

[328] I ask that both parties reference any outstanding costs orders so that all of the orders can be resolved at once.

[329] I have recently received costs submissions with respect to a support motion. Those submissions shall be dealt with separately from these submissions.

[330] Each submission shall be no more than five pages, not including any Bills of Costs or Offers to Settle.

[331] All submissions shall be forwarded to my office in Guelph by electronic transfer to GuelphOffice.SCJ@ontario.ca or by mail to Guelph Superior Courthouse, 74 Woolwich St., Guelph, N1H 3T9.

“Justice Lemon”

Justice G. D. Lemon

Released: March 22, 2021

COURT FILE NO.: 18-379

DATE: 2021 03 22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.D.

Applicant

And

D.C.

Respondent

REASONS FOR JUDGMENT

Justice G.D. Lemon

Released: March 22, 2021