COURT FILE NO.: FS-17-00089840-0000

DATE: 2021 04 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.G.

Natacha R. Leite, for the Applicant

Applicant

• and -

A.A.

A.A, Self-Represented, for the Respondent

Respondent

Archana Medhekar, for the Child, Office of the Children’s Lawyer

HEARD: February 16, 17, 18, and 19, 2021; and March 16, 2021.

REASONS FOR JUDGMENT

FRAGOMENI J.

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

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

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Introduction

[1] This trial dealt with the parenting time and parenting decision making as it relates to the child of the marriage, J.A., born […], 2008.

[2] The parties were married on January 8, 2002. They separated on January 9, 2016.

[3] The Applicant Mother, Dr. M.G. is a family physician. The Respondent Father, A.A. is an Engineer. I will refer to the parties as Mother and Father. The Mother is 49 years of age, and the Father is 56 years of age.

[4] This matter has been in litigation since the parties separated, culminating in the trial before me.

[5] The Office of the Children’s Lawyer (“OCL”) was appointed in this matter to obtain the views and preferences of the child. The OCL was assisted by a Social Worker, Mr. Mahesh Prajapat. Mr. Prajapat swore an Affidavit dated February 11, 2021, outlining his investigation and setting out the position of the OCL on behalf of the child.

[6] Each of the parties filed a Draft Order setting out their respective position as to what Order they wish the Court to make.

[7] The Mother’s Draft Order:

1. The Applicant shall have sole custody of the child, J.A., born […], 2008 (“J.A”).

2. The parties may make inquires and be given information by J.A.’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with J.A.. This Order shall be sufficient authority for all third parties to release any information or documentation to which a parent of a child would otherwise have a right of access. Should Consent from the Applicant be needed, she will sign any necessary Consent form from the release of information as ordered herein.

3. Neither parent shall speak ill or in a derogatory manner about the other parent, nor allow any of their family members to do so in the presence of the child.

4. The Respondent/Father shall have access to J.A. every Saturday from 11:00am to 5:00pm.

5. The Respondent shall ensure that J.A. attends and/or participates fully in his religious classes as scheduled.

6. The Respondent/Father shall have access to J.A. on the following Holidays, which overrides the regular access schedule:

a. Orthodox Easter Sunday from 2:00pm (or after church activities) until 6:00pm. The parties will share this holiday. As such, the Applicant will have care of J.A. from 6:00pm onward;

b. Father’s Day from 11:00am to 5:00pm;

c. Summer: 3 consecutive days in the month of July and of August, from 11:00am to 5:00pm;

d. During March Break, for 3 consecutive days from 11:00am to 5:00pm.

7. The Respondent shall respect J.A.’s wishes with respect to access and shall return him home to the Applicant’s residence when requested.

8. The Applicant and J.A. may travel to Egypt during the Christmas break. The Respondent’s missed access time shall be made-up on J.A.’s return to Ontario. The Applicant shall provide the Respondent a detailed itinerary with details of dates, flights and address of accommodations, where J.A will be staying while in Egypt, at least 15 days before departure.

9. The Respondent may have telephone access with J.A. once per week, which at this time is occurring on Wednesday evenings keeping in mind J.A.’s bedtime and schedule. Frequency of calls shall be something discussed through counselling. J.A. is free to contact and telephone the parties when he wishes. The parties shall support telephone contact between J.A. and the other parent.

10. Counselling with Ms. Jacqueline Iafrate shall continue and focus on the re-unification of the child’s and the Respondent/Father’s relationship. The parties shall cooperate and participate in the counselling as recommended by the counsellor.

[8] The Father’s Draft Order:

1. The child, J.A. born […], 2008 (“J.A.”) shall reside primarily with the Applicant mother. He shall reside primarily with the Respondent father, A.A., as follows:

a. On alternate weekends overnight from Saturday at 10:30am to Sunday at 2:00pm;

i. Pick-up to be extended to 10:30am on Fridays if Friday is a statutory holiday;

ii. Drop-off to be extended to 2:00pm on Mondays if Monday is a statutory holiday.

b. On alternate Saturday from 10:30am to 9:00pm;

c. On holidays and special events, regardless of the regular schedule, including:

i. Father’s day from 10:30am to 9:00pm;

ii. Orthodox Easter Sunday eve/day – to be divided equally and rotating each year;

iii. Orthodox Christmas eve/day – to be divided equally and rotating each year;

iv. During school winter break, for no less than an additional 3 consecutive days to be agreed upon between the parties from year to year;

v. During March break, for no less than an additional 3 consecutive days to be agreed upon between the parties from year to year; and

vi. During summer break, for no less than an additional 7 consecutive days to be agreed upon between the parties from year to year.

d. Such further and other time as may be agreed from time to time.

2. Alternatively/Instead of subparagraph 1(a) & 1(b), above, J.A. shall reside with the Respondent father, A.A., as follows:

a. On alternate weekends overnight from Friday at 3:00pm to Sunday at 7:00pm;

i. Pick-up to be extended to 3:00pm on Thursdays if Friday is a statutory holiday;

ii. Drop-off to be extended to 7:00pm Mondays if Monday is a statutory holiday.

b. On alternate Friday evenings from 5:00pm to 9:00pm.

3. The overnight schedule at paragraph 1 or 2, above, shall commence gradually during the first six months, as agreed upon by the parties. The Applicant mother shall encourage J.A. to spend more time with the Respondent father and spend overnights with him and facilitate it.

4. J.A. shall continue to attend counselling with Ms. Jacqueline Iafrate or another counselor, as agreed upon by the parties. The parties shall cooperate and participate in the counselling as recommended by the counsellor.

5. In the event that J.A. misses time with his father as scheduled, for reasons other than the failure or inability of the father to attend, J.A. shall have make-up time with his father within 14 days of the missed parenting time unless the parties otherwise agree, in writing. In the event that at least 7 days’ notice is provided of a cancellation, the Applicant mother shall provide make-up time within 14 days.

6. The parties may have telephone access with J.A. at any time, keeping in mind J.A.’s bedtime and schedule. J.A. is free to contact and telephone the parties when he wishes. The parties shall support telephone contact or any other means of communication between J.A. and the other parent.

7. Either party may travel out of Canada with J.A. for vacation purposes with the consent of the other party, which shall not be unreasonably withheld. The Applicant mother shall hold J.A.’s passport and she shall provide it to the Respondent as needed.

8. The Applicant and the Respondent shall have joint custody/decision-making over major health, educational, religion and extra-curricular activities for J.A..

9. Neither parent shall speak ill or in a derogatory manner about the other parent, nor allow any of their family members to do so in the presence of the child.

10. The parties shall proceed with mediation to address any conflict that arises, and before initiating any court proceedings. The parties will select a mutually agreeable mediator, and the cost of same shall be equally shared. The parties are free to share any information received from the counsellor with the mediator to ensure productive settlement discussions, and consent that the mediator can communicate with counsellor, if needed.

11. The pending issue of costs before Justice LeMay shall be determined by His Honour.

[9] Order recommended by the OCL:

49. The OCL takes the position on behalf of J.A. that the Applicant mother to have sole custody of J.A.. The father to have right of information about J.A. directly from the professionals or service providers involved with J.A. and make direct enquiries and obtain information. If necessary, the Applicant mother to sign the consents.

50. The access between Mr. A.A and J.A should be in accordance with J.A.’s wishes i.e. the regular access schedule for every Saturday from 11 AM to 5 PM be continued and the parents could work with the counsellor Ms. Iafrate to extend that time until 9 PM. Other holiday access be from 11 AM to 5 PM i.e. day time access, on specified days, that would not involve any overnights at this time.

51. As per J.A.’s wishes, there be no overnight access visits between J.A. and Mr. A.A at this time

52. Counselling: J.A. should continue receiving counselling with Jacqueline Iafrate. Based on J.A.’s views and preferences, Mr. A.A. and J.A. should work on improving their relationship, reducing the conflict in their relationship, and improving their communication and the father’s parenting skills – with professional assistance of Ms. Iafrate and come up with a plan for expansion of access, including overnights and travel. Both parents should support J.A. and cooperate with the counsellor.

53. Telephone / video calls: (As per the Court Order of May 27, 2020), the Applicant Mother shall facilitate telephone and/or video calls between J.A. and the Respondent Father no less than once daily between the hours of 7:00 p.m. to 8:00 p.m.. Each parent will cooperate to facilitate reasonable telephone and virtual video call with J.A. at reasonable times while in others care.

54. Counselling: J.A. should continue receiving counselling with Jacqueline Iafrate.

55. Neither parent to speak ill about the other parent, particularly in earshot of J.A.. Each parent would ensure that neither of their family members makes any disparaging remarks about the other parent.

56. Based on the above information, the OCL takes a position that is consistent with the views and preferences of J.A..

[10] For reasons that follow, I find and conclude that it is in the best interest of the child to make an order in accordance with the terms set out in the Mother’s final Draft Order. The terms set out are supported by the OCL and reflect the views and preferences of the child.

[11] I begin my reasons with a review of the evidence of Mr. Prajapat. Mr. Prajapat’s Affidavit was sworn February 11, 2021. It was marked as Exhibit 1 in the trial. Mr. Prajapat was also made available for cross-examination at the trial and as such he gave oral testimony in addition to his sworn Affidavit. Before I deal with the cross-examination of Mr. Prajapat, I will review his Affidavit in some detail as it sets out a context to the discussion that follows.

Affidavit of Mahesh Prajapat

[12] Mr. Prajapat is a very experienced Social Worker. He obtained his Masters of Social Work from the University of Toronto in 1991 with a focus on Addiction and Mental Health. He has been a member of the OCL Clinical panel since 2004 and conducts custody/access investigations pursuant to section 112 of the Court of Justice Act R.S.O. 1990, c. C.43.

[13] Mr. Prajapat has also had a private practise since 2004. He has worked as a:

a. Chief Operating Officer with the Toronto Children’s Aid Society; and

b. Director of Service with the Peel Children’s Aid Society.

Summary of OCL Contacts with the Family

[14] Since August 2020, Mr. Prajapat and Counsel, Ms. Medhekar, had the following contacts:

a) Mother – two interviews

b) Father – two interviews

c) Child – four interviews total of approximately 3.45 hours: October 14, 2020 (virtual for 45 minutes), October 29, 2020 (in-person for 60 minutes), November 10, 2020 (in-person for approximately 1.5 hours), February 4, 2021 (virtual for 30 minutes).

Family History

[15] Mr. Prajapat succinctly sets out the Family History at paragraph 11 of his Affidavit as follows:

Based on information provided by Mr. A.A. and Dr. M.G., my understanding of the family history is as follows:

a. The Applicant mother is a medical doctor and works in various walk-in clinics.

b. J.A. lives primarily with his mother. His maternal grandparents live with him as well.

c. The mother’s work schedule is presently impacted due to the pandemic.

d. The Respondent father is an Engineer and works from home.

e. The parties were married in Egypt in 2002 in an arranged marriage.

f. The child of the marriage J.A. was born […], 2008 through artificial insemination.

g. They separated on January 9, 2016, after approximately 14 years of marriage.

h. After the separation, the mother asserts she was the primary caregiver and cared for J.A. on a daily basis and that the Father never spent any time with J.A. alone.

i. The mother has taken all major decisions for J.A. since his birth and continues to do so since separation.

j. The parties are unable to have communication with each other.

k. J.A. has access visits with his father in accordance with the court orders dated November 3, 2017 and October 19, 2019 in this matter. Currently, the access visits are happening on Saturdays but from 11 AM to 5 PM, and not until 9 PM, in spite of the court order. The Sunday makeup visits are not taking place regularly. Both parents have different versions on that issue.

l. J.A. is currently in grade 7 at Philopateer Christian College – a private French Immersion School.

m. The parents were unable to resolve the custody and access issues.

[16] At paragraph 17, Mr. Prajapat reviews the child’s education status confirming that the child is doing well academically and is very well engaged at school activities and extra-curricular activities.

[17] At paragraph 18, Mr. Prajapat reviews the child’s medical status confirming that the child is doing well from a medical perspective.

[18] Each of the parents described their child to Mr. Prajapat as follows:

23. When I asked Ms. M.G. to described J.A., she told us the following:

i. J.A. is very smart, kind, sensitive;

ii. He does not like loud noises;

iii. He loves people;

iv. He is open to friendship;

v. He is raised as Orthodox Coptic Christian;

vi. He loves going to church;

vii. He is a nominated deacon at the church;

viii. He goes to church every Sunday when church is open.

24. When I asked Mr. A.A. to describe J.A., he told us the following:

i. J.A. likes to play and laugh;

ii. He is social;

iii. He likes to talk and likes stories and playing;

iv. He likes playing video games;

v. He played soccer last summer, training for tennis and likes table games.

[19] At paragraph 25 and 26 the child describes his family and his activities with each parent as follows:

25. When I asked J.A. to describe himself and his family, he told me the following:

i. I go to private school Philopateer Christian College since Senior Kindergarten. Currently I am in grade 7 – French Immersion.

ii. Some of my school teachers are very nice.

iii. I like Mathematics and French.

iv. I do not like French Immersion.

v. I do have friends but not too many.

vi. Before Covid, I was on school council.

vii. I do not study hard but get good grades.

viii. J.A. describes his mother as: She is nice and smart, and her best quality is that she helps me with things, such as homework and building.

ix. I spend most time with my mom.

x. J.A. describes his typical school day as: I wake up in the morning, change clothes, at 7:30 to 8 a.m. my Grandma gives me breakfast; my mother drives me to and from school (both ways). When I come home, I finish work and then play online with friends on laptop. My grandparents, mom and I have dinner together and then I go to bed.

xi. I get along very well with my maternal grandparents, who live with us. I call them ‘Teta’ and ‘Gedo’.

xii. I have a fish pet.

26. When asked, J.A. describes father as follows:

i. My dad is very smart, because he is an engineer and knows about radiation.

ii. He is selfish because if he gives me something and then wants to keep it and will not give it to me. For example, he gives me cell phone and then takes it back from me so that I do not waste his data. When he got computer for me, he would not allow me taking it to mom’s home.

iii. I get along with dad but we have conflicts. If given a choice, he would change one thing in his dad i.e. selfishness.

[20] At paragraphs 27 to 31 the child sets out, in some detail, a description of time spent with his Father:

27. When I asked J.A. what needs to happen if he has to spend more time with his dad, J.A. described it as follows:

a. If I have to spend more time with dad, he should not be stubborn with me and should be nice, gentle, caring and more kind.

b. His action and behaviour does not match, he gives me gift but then keeps it from me.

28. J.A. described his access visit with dad as follows:

a. I have access with dad every Saturday from 11 a.m. to 5 p.m..

b. At 11 a.m. I ring doorbell multiple times, then I would go to his apartment.

c. I am usually on computer or watch TV, we do our own things, but we do not do things together.

d. Sometimes I have meal at dad’s home but not always.

e. We have gone fishing or gone to museum – I like these activities.

29. When I asked J.A. about the Sunday make up access visits with dad he told us the following:

a. The makeup visits with dad are on Sunday, but I do not want to go.

b. I am not seeing dad on a Sunday, even though there are make-up visits.

c. I do not feel comfortable.

d. Dad fights with me.

e. He pushes me, he pulls me, he shouts a lot, he keeps on arguing with me, he squeezes my hand very tight.

f. My mom does not put pressure on me, but I feel that dad is going to do that.

g. I do not want to go on Sundays as we will just argue more.

30. J.A. was upset about an incident between him and his dad, which he described as follows:

a. I was in the bathroom, dad pushed door open while I was in the washroom.

b. It was my private space.

c. He opened the washroom door from one bedroom so I opened the door to go out from the other exit door to another bedroom. There is access to washroom from two bedrooms.

d. Dad followed me and pushed me out of the room, it was not a friendly push, but not hard to make me fall down.

e. Dad grabs me a lot of time, he pushes me.

f. I never had any bruises, mark or injury.

g. I push back sometimes.

h. On the scale of 1 to 10, the level of push is on Level 6.

i. When dad pushes and grabs me it makes me feel unsafe.

j. When Dad is pushing or grabs my arm, which happens a lot, I tell him to stop. He stops, but next week, if I do something, then he pushes me again.

k. The frequency of physical incidences is every other weekend.

l. J.A. says that over the last 2 years, it is becoming harder. Dad knows that I am stronger and he gets it harder on me.

m. Over the past 2 years it is getting worst as dad is getting older and he may be less patient.

n. I do not talk to my Grandmother or mother about it, as it is private, so I do not talk to others.

o. I have not told my mom and grandma but not to teachers or friend about it.

p. I think that it is private so do not tell others about it.

q. J.A. says that my mom may not have this information because he has not been this specific.

r. Between our verbal and physical contact, physical is worst.

s. J.A. describes verbal contact involves shouting – dad shouts and I get angry and I shout back.

t. Dad and I had disagreements over many things; he gives me gifts but does not give it to me.

31. J.A. expressed his disagreements with his father over many things such as:

a. I may want to go somewhere and dad may want to go somewhere else.

b. Dad takes me to someplace I am not comfortable.

c. One night, Dad took me to graveyard on a cliff. Dad told me that it was a surprise, but he parked his car in the graveyard. I did not want to go. There was nothing there except grave stones. We looked at the river. Also, it was the night time so it made it worse.

[21] The child does not wish to have overnight access with his Father. The child set out his reasons for this position and Mr. Prajapat sets out those reasons at paragraphs 32 and 33.

The Child’s Views and Preferences

[22] The child’s views and preferences are set out at paragraph 35 to 41 as follows:

35. On February 4, 2021, Ms. Medhekar and I met with J.A. to determine if his views and preferences had changed.

36. J.A. has expressed and reiterated his views and preferences regarding the issue of access with his father to us as follows:

i. I like the things how they are, I have time to do stuff, I want to do. The access visits with dad to continue on Saturdays from 11 AM to 5 PM.

ii. I have time to see both of them, sleepover will make my time larger with Dad, but I do not agree to that.

iii. No one is influencing me.

37. When I asked J.A. if his maternal Grandmother is making it difficult for him to see his dad, he says ‘No’. J.A. was very firm and said that – “my grandma says things but it does not influence me, it is her opinion. It is okay if she gets angry, I do not know why she gets angry, but my opinion is not her opinion and she is not changing mine, I am old enough to make me choice.”

38. I asked J.A. that if he was told that in spite of his views and preferences of not having overnight visits with his father, if he is told that there should be overnight access – how would you handle it? J.A. responded “I will still not go. I want to see Dad from 11 to 5 every Saturday but no overnight.”

39. Counselling is helping me and I want to Jacqueline for a few months but not forever.

40. J.A. does not want to have overnight access with the father but is open to working with his counsellor on improving their relationship. He is unwavering in his answers and has been clear and consistent.

What J.A. would like the court to know?

41. J.A. message to judge is: I would not like to have overnight or extended hours with Dad, I want it to be it to be how I said. I like it. I want to leave as it is.

Cross-Examination of Mr. Prajapat by the Mother

[23] Mr. Prajapat confirmed that he has been on the OCL panel since 2004 and has conducted between 200 to 300 assessments for the OCL. He is very experienced with children.

[24] Mr. Prajapat testified that he was able to ascertain the child’s independent views and preferences. The child was consistent in his views and preferences. The child is smart, intelligent, and mature. At no time did Mr. Prajapat get the impression that the child was making things up. He had no worries about the child being truthful. The child was telling him his truth.

Cross-Examination of Mr. Prajapat by the Father

[25] Mr. Prajapat took notes during his interview with the child. Mr. Prajapat does acknowledge that there are conflicting versions of the incidents described by the child, but the fact is the child was telling him his truth.

[26] The child trusted Mr. Prajapat. Mr. Prajapat explained to the child that they would like to know about his safety and that the safety of children is important. That is why the child provided him with the concerns he has when he was with his Father and some of the interactions with his Father that do not make him feel safe.

[27] Mr. Prajapat also testified that the child does not see his Father’s behaviour changing.

[28] With respect to being influenced by his grandmother, paragraph 37 of his Affidavit sets out the following:

When I asked J.A. if his maternal Grandmother is making it difficult for him to see his dad, he says ‘No’. J.A. was very firm and said that – “my grandma says things but it does not influence me, it is her opinion. It is okay if she gets angry, I do not know why she gets angry, but my opinion is not her opinion and she is not changing mine, I am old enough to make me choice.”

[29] Mr. Prajapat indicated that the sentences with quotation marks are verbatim as to what the child said.

[30] Mr. Prajapat agreed that, as set out at paragraph 45 of his Affidavit, the child does love his father. Paragraph 45 states:

Based on my interviews with J.A., I believe that J.A. would resist overnight access even if ordered to and resist contact with his father. J.A. loves his father and was reluctant to let me share information that he thought might hurt his Dad’s feelings. I believe that he is concerned about how his father will react to what he has told us.

[31] At paragraph 47 of his Affidavit, Mr. Prajapat states: “Although it may be understandable that Mr. A.A. is upset that he does not have overnight access visits with J.A., he appeared to be incapable of or unwilling to modify his behaviour to make J.A. more comfortable.”

[32] Mr. Prajapat told the Father that he focuses on everyone else and not himself. The Father has not reflected on himself and is really blaming everyone else.

Testimony of the Mother

[33] The Mother testified that the Father was uninvolved with the child from the very beginning of the child’s life. He did not participate in bathing, changing diapers, showing affection by carrying him or kissing him. The Father was detached and disengaged.

[34] With respect to his schooling, she was the parent who assisted the child with homework, meeting and speaking to the teachers. She would be involved in his extra-curricular activities.

[35] At this time the child is attending a Christian College Private School. He is thriving and the Report Cards filed demonstrate what an excellent student he is. He is a model student. He is involved in public speaking; writing stories (he had one of his stories published); he is involved in Chess; he is on the school council. The Mother stated that her son is thriving academically and in all of his extra-curricular activities.

[36] With respect to medical issues she was mostly responsible for taking him to medical appointments. Exhibit 2 at Trial is the Affidavit of Dr. Odetta Wahba, their family doctor, confirming that the Mother was the one who took the child in for appointments.

[37] The Mother describes the child’s relationship with his Father post-separation as challenging, stressful and conflicted. The child tells her after an access visit that there are fights and arguments with his Father. The child also describes the visits as boring. They do nothing together.

[38] On one occasion the Father left the child in the car while he went to do grocery shopping. The Mother questioned why the Father would do his grocery shopping on the one day he has parenting time with his son.

[39] The Mother was also made aware of an occasion when the Father took the child to a cemetery and this frightened the child.

[40] The Mother recognizes that the Father blames her for not encouraging the child to have parenting time with him. The Mother states, however, that she has encouraged the child to see his Father. The child, however, is now very verbal and has expressed to her that he does not want more time with his Father. He does not want overnight access. He is not comfortable with having more time with his Father. He is bored. He does not like the conflict and the fighting and arguing and physical aspects on some of the visits.

[41] The Mother testified that when the child comes home with his complaints, she talks to him and tries to convince him and encourage him to see his Father. However, she also realizes that she has to understand and respect the child’s views about his time with his Father. For example, the child would return from a visit and tell her that the Father was very mean this time and he would not go next time. The OCL Affidavit confirms these concerns that the Mother became aware of.

[42] The Mother describes a troubling event that occurred in the summer during the Egyptian Festival. In September 2018, on the Saturday, the Father had his parenting time, from 11 AM to 5 PM. The Mother was going to pick up the child at 5 PM. At 4:30 PM the Father called the Mother and asked her if she had the child. The child was missing.

[43] The Mother’s understanding was that the Father dropped the child off at the Festival and then returned to his apartment. The child was alone at the Festival all day. When she did arrive, she found him red, as he had no hat, and he was dehydrated. The same thing happened at the Festival in 2019.

[44] The Mother states that when she tries to talk to the Father about these things, he blames her.

[45] In the fall of 2019, the Father brought a Motion for extended access. At Exhibit 17 is the endorsement of Bloom J. dated October 3, 2019 which dismissed the Father’s Motion. The endorsement of Justice Bloom sets out the following:

1. The Respondent moved to vary the interim order for access dated November 3, 2017 and made on consent by Justice Bielby of this court.

2. The test for this variation requires as the first step that the Respondent demonstrates a material change in circumstances,

3. The child in question will be eleven years old next week.

4. The Respondent has put forward a number of bases alleged to constitute a material change in circumstances, including the passage of time, alleged repeated breaches of the order by the Applicant, and an agreement of the parties.

5. The threshold of a material change of circumstances should also be considered in the context of the order of Justice Bielby having been made on consent.

6. The Applicant contends that there has been no material change in circumstances demonstrated by the Respondent.

7. I agree with the Applicant. Further, the Respondent sought to reframe his motion as a motion under FLR 1(8) during argument. I did not allow that recharacterization to take place, because it would have fundamentally changed the applicable legal framework in a manner unfair to the Applicant.

8. If the Respondent has difficulties with the compliance by the Applicant with an order of this court, he may seek appropriate remedies. He has already availed himself on a prior occasion of FLR 1(8) before Justice Shaw of this court.

9. Accordingly, I dismiss the motion at bar, save for ordering the two forms of relief agreed to by the Applicant: (1) the Holiday access set out in para. 1.(d) of the Notice of Motion dated September 19, 2019 but only 11:00 am to 5:00 pm on the days covered by this provision; and (2) 6 make-up access dates are to take place in accordance with para. 3. Of Justice Bielby’s order.

Costs

10. In addressing costs I have regard to the concern of the Applicant. However, I temper that further with my concern that her conduct has not been exemplary in amicably providing a solution to access issues. I have also considered the offers of the parties.

11. Accordingly, I order costs of $2000 inclusive of fees, disbursements, and applicable taxes to be paid by the Respondent to the Applicant within 60 days.

[46] With respect to the Affidavit of Mr. Prajapat, the child shared more details with him and Ms. Medhekar that she did not know about, especially relating to the physical abuse. The Mother is very concerned about that issue.

[47] In conclusion, the Mother stated that she accepts all of the OCL recommendations.

Cross-Examination by the Father

[48] The Father cross-examined the Mother about details surrounding certain events and how she described them in earlier Affidavits that had been filed by the Mother. I will not review them in detail, but some are necessary to illustrate the areas of concern that the Father had with the Mother’s testimony;

• When their son was born, they both took him for his circumcision – she couldn’t remember if he was there.

• He did attend Sick Kids Hospital (“Sick Kids”) when the child had to attend. She stated that the child went to Sick Kids over 20 times and he only attended twice.

• They bought the crib together, but he refused to help her put it together, so her parents helped her. In an earlier Affidavit she stated she assembled the crib on her own.

• When they bought the stroller, they went together – she does not remember the details.

• She confirmed that he was never involved with the child. She did not contemplate separation hoping things would change. When things did not change, she had to leave.

• They did not visit four pre-schools together. He went with her for Senior Kindergarten.

• She does not remember that he attended the first Parent-Teacher interview in Junior Kindergarten (“J.K”).

• She would take the child to Wonderland and the Science Centre. Most times he would not go with them. He would be home alone or with his parents.

• They did go to Ottawa once together.

• They did travel to Egypt and he was with them for only 3 days.

• She denies saying to the Father, “you do not deserve to be the child’s father.”

• Regarding Father’s Day in 2019, she does not know if the child gave him a handmade card.

• Regarding hiring a French language tutor, she did not reply to his email. She spoke to the child who indicated he did not need a tutor; he would just work harder – now his marks are around 90 and he is doing great.

Testimony of the Father

[49] The Father states that when the child was born, he did share the responsibilities. He purchased the diapers, formula, medicine, toys and strollers.

[50] He attended with the Mother for the child’s circumcision. He attended at Sick Kids with the Mother and child on three or four occasions. He attended with the Mother to the Pediatrician’s office.

[51] He attended on one occasion to Dr. Wahba’s office with the Mother and child but did not go into the office. That is why Dr. Wahba does not recall seeing him.

[52] The Father states that he bought and assembled the crib.

[53] With respect to the separation, he never expected it. He believes that the Mother thought about it some five years prior.

[54] The Father did not spend time alone with the child because the Mother would not allow it.

[55] The Father states that he did participate in looking at schools and they went together to see four schools.

[56] With respect to getting a French tutor, he proposed that to the Mother, but he received no reply from her.

[57] After the separation, the Mother damaged his relationship with the child. She told him “you have no right to be his father.”

[58] The Father described the cemetery event as follows:

• He had a Tuesday visit from 6 PM to 7 PM.

• As the time was brief, he took the child to a nearby park.

• The only place to park was in the cemetery parking lot.

• The child refused to walk to the park.

• They got back into the car and left.

[59] The Father states that both the Mother and the child exaggerated what happened. The incident occurred at 6:45 PM so it could not have been dark.

[60] The Father filed a series of photos for 2017, 2018, and 2019 depicting the child in a very positive and happy light.

[61] Exhibit 46 is a chart produced by the Father setting out in detail the notes he made with respect to the scheduling difficulties he encountered with parenting time. I note that contrary to the rule in Brown v. Dunn, this chart was not put to the Mother in cross-examination by the Father.

[62] I permitted the chart to be filed as evidence and ruled that the Mother could be recalled as a witness to address the chart. The Mother chose not to give further evidence on that issue.

[63] The chart that has been filed at this trial was before Justice Bloom at the October 2019 Motion brought by the Father to extend access. The Father’s Motion to extend access was dismissed.

[64] Justice Bloom found there was no material change in circumstances to warrant an order for extended access.

[65] With respect to the version of events the child told to Mr. Prajapat, the Father states that the child lies, exaggerates, and has a good imagination. The child revises events. The child is a good writer and watches movies, so this results in the child having a lot of imagination.

[66] With respect to leaving the child in the car while he did groceries, this only happened once. Although it was hot in the car, the child was able to open the car door. He apologized for doing this.

[67] With respect to leaving the child alone at the Egyptian Festival the Father explained it this way:

• The event took place at Square One.

• The Festival is a safe place.

• Children at the Festival go back and forth.

• While he was talking to friends, the child went up to the front to see performers.

• As he did not see the child, he started to look for him.

Cross-Examination by the Mother

[68] In cross-examination, the Father confirmed or acknowledge the following:

• The Mother has done a good job with the child, except for the child’s moral and spiritual health.

• The child is a good student, not an excellent student.

• Of the more than 20 times the child had to attend Sick Kids, the Mother brought him most times.

• He did not spend time alone with the child because the Mother would not allow it. She did that as she was planning to separate from him for five years. In addition to that he worked long hours and had to help his parents. His mother had Alzheimer’s.

• He again reiterated that the child is only a good student and not an excellent student, despite the Report Cards showing that the child is an excellent student. He added that in his opinion this Private School inflates the marks.

• The child has told him that he does not want to increase access or go for overnight visits.

• The child was rarely bored during the visits.

• There were minimal issues before Covid but after Covid the issue became significant, despite the fact that he brought three Motions before Covid dealing with parenting time.

• The Mother was always obstructing his access, despite the fact that she consented to four orders relating to the Father’s access Motions.

• The child is very religious. He attends Religious classes on most Sundays and Saturdays. He takes Coptic classes to learn the language. He is in the choir. He is a Deacon at the church. Despite all of this the Father maintains that the Mother has not done a good job with the child’s spiritual life.

• The child is sensible, reasonable, and kind.

• He denies what the child told Mr. Prajapat about the excessive fighting. The child is exaggerating, and he is getting the information from his Mother.

• The child is hurt about his Father going to Court, so he makes these things up.

• With respect to the bathroom incident set out at paragraph 30 of Mr. Prajapat’s Affidavit, the Father states that the child has revised the story as he has a good imagination.

• The Father acknowledges there is a problem with the relationship and that the focus should be on repairing it.

• The Mother is the obstructionist and the child is following his Mother.

• The Father does acknowledge that he does have things to work on. He has to be more gentle and patient and understand the child more.

• Although the child has worries that could come from many things, he, as the Father, is not a source of the child’s worries.

• The Father thinks that if the child does not want overnight visits, the Court should force him to go. Forcing, convincing, encouraging and supporting him to go is all needed.

• The child has gone to Egypt with his Mother every year since he was born. The Father always consented to these trips.

LEGISLATION AND CASELAW

[69] The issues of parenting time and parenting decision making are dealt with in accordance with the best interest of the child.

[70] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 states the following :

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

[71] The legislation also lists factors to be considered when determining the best interest of the child, such as, inter alia:

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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;

(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 co-operate, in particular with one another, on matters affecting the child;

Joint Parenting

[72] In Kaplanis v. Kaplanis, 2005 CanLii 1625 (ON CA), the Court sets out the following at paragraph 11:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[73] Kaplanis and the decision in Ladisa v. Ladisa, 2005 CanLii 1627 (ON CA), the following factors are set out when considering joint parenting:

• There is no default position in favour of joint custody in Ontario.

• Each case is fact-based and discretion driven.

• The quality of past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether joint custody is appropriate.

• Where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.

View and Preferences of the Child

[74] In this case the child’s views and preferences were ascertained through Mr. Prajapat, the Social Worker assigned to assist OCL Counsel.

[75] In Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 297 the Court set out the following at paragraph 72:

The foregoing is to be tempered if a child has a legal representative in the proceeding. This is almost always a counsel appointed by the Office of the Children’s Lawyer. The court presumes that an OCL counsel has the proper training to elicit these views and wishes from a child client, if they can express them, and to present them properly to the court. In fact, information about views and wishes of a child presented by the child's legal representative is preferable as it is more likely to be objective, less likely to be skewed by partisan interests, and is expected to be more accurate and more detailed than if the source is a party which has a partisan interest in the proceeding.

[76] Article 12 of the United Nations, Convention on the Rights of the Child (2009) states that children’s views should be expressed and heard, including in judicial and administrative bodies.

Weight to Be Given to The Child’s Views and Preferences

[77] There are several factors the Court must consider in determining how much weight to afford the views and preferences of the child:

• Level of maturity;

• Ability to communicate clearly;

• Intelligence;

• Consistency;

• The views and preference were obtained through the investigation of the OCL with a Social Worker;

• The views and preferences of the child were given independently and without influence.

[78] Section 24 (2)(b) of the Children’s Law Reform Act states that in considering the best interests of the child the child’s needs and circumstances must be considered including, “b) The child’s views and preferences, if they can be reasonably ascertained.”

[79] In Eustace v. Eustace, 2016 ONSC 5004, Justice Emery stated at paragraph 103 and 104:

J.M. also gave evidence at a judicial interview under Section 64 of the Children's Law Reform Act. The court, where possible, is mandated to take into consideration the views and preferences of the child to the extent that the child is able to express them.

Although there is no comparable section in the Divorce Act, I found Section 64 to be applicable as J.M. is the subject of the conflict between his parents. His views and preferences are of central importance as he is 13 years of age and aware of himself and his place in the world. Section 24(2)(b) directs the court to consider the views and preferences of the child if they can be reasonably ascertained. J.M.'s views and preferences were therefore given, and he was clearly heard.

Maximum Contact Principle

[80] The last legal principle I wish to deal with refers to the maximum contact principle. In Berman v. Berman, 2017 ONCA 905 the Court noted the following at paragraph 20:

The best interests of the child test is the only test under the Act, and paternal preferences and “rights” play no role in issues of custody and access. It is a legal test, albeit a flexible one, and is to be applied according to the evidence of the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. Despite the maximum contact principle, contact is to be restricted if it conflicts with the child’s best interests.

Analysis and Conclusion

[81] The OCL submits to the Court that the views and preferences of the child must be given full weight. I agree with that position for the following reasons:

• The child’s views and preferences were clear and consistent, and they were ascertained by a Social Worker with extensive experience in dealing with children.

• The views and preferences of the child were independent, as found by Mr. Prajapat. He found no evidence that the child was being influenced by the Mother or the grandmother.

• The level of intelligence and maturity of the child is high.

• The answers he gave to Mr. Prajapat were clear and informed and age appropriate.

• The child’s wishes were consistent and strong, and he did not change his views throughout the four meetings he had with Mr. Prajapat.

[82] The Affidavit filed by Mr. Prajapat is detailed and outlines clearly the concerns raised by the child in his relationship with his Father. I have reviewed the contents of his Affidavit earlier so I will not do so again here. There is no doubt in my mind that the child’s concerns are real, and I accept what he said to Mr. Prajapat that he is not being influenced to make those statements.

[83] The Father’s position is that the child’s version of events is made up and exaggerated. He was lying. The child has a vivid imagination. The child watches movies and is a good writer so he has the ability to make up stories.

[84] I find the Father’s characterization of the child’s narrative of what happened during some of the visits troubling. The Father has essentially invalidated the child’s feelings and narrative about what happened. This is especially true with respect to the incidents relating to being taken to the cemetery, being left in the car, the bathroom incident, and being left alone at the Egyptian Festival. It is not necessary for me to resolve the conflicting versions.

[85] Something happened and it had a significant impact on the child.

[86] It is also troubling that the Father takes no responsibility for any of his actions. He submits that the Mother has engaged in a process of alienating the child from him. I cannot accept that submission and the evidentiary record does not support it. The OCL position does not support it. Paragraph 47 of the Affidavit of Mr. Prajapat states: “Although it may be understandable that Mr. A.A. is upset that he does not have overnight access visits with J.A., he appeared to be incapable of or unwilling to modify his behaviour to make J.A. more comfortable.”

[87] The Father’s position is that the child’s thoughts are not his own as they are being influenced by his Mother. At paragraph 37 of Mr. Prajapat’s Affidavit, it states:

When I asked J.A. if his maternal Grandmother is making it difficult for him to see his dad, he says ‘No’. J.A. was very firm and said that – “my grandma says things but it does not influence me, it is her opinion. It is okay if she gets angry, I do not know why she gets angry, but my opinion is not her opinion and she is not changing mine, I am old enough to make my choice.”

[88] The OCL did not find any evidence of alienation. Further throughout the numerous Motions brought by the Father, the Mother consented to his requests on four occasions.

[89] In her submissions, Counsel for the OCL asked two important questions:

a. Why is the Father questioning the child’s integrity?

b. Why is the Father dismissive of how the child feels?

[90] It is a serious concern that the Father is unable to accept any responsibility for his actions.

[91] Counsel for the OCL stated that the child’s message to the Court is that he wants to leave the parenting time the way it is. He does not want to increase parenting time or commence overnight visits. The child does not feel comfortable expanding access and the reasons he feels this way were provided to Mr. Prajapat as he set out in his Affidavit filed with the Court.

[92] Both the Mother and the Father testified about their relationship and what roles each played in parenting the child both during the marriage and post-separation. Their evidence was conflicting on all material aspects of the events they testified about.

[93] Again, it is not necessary for me to resolve the conflicting evidence on those details. For example, it is of no moment whether the Mother put the crib together alone or with the help of her parents. Whether the parties attended together to see schools for J.K or not is not a significant detail when I consider the totality of the evidence and the issues I have to decide.

[94] The Father filed a chart he prepared regarding communication and scheduling issues. The contents of this chart were not put to the Mother in cross-examination and it did contain some inaccurate details. I do not attach a great deal of weight to the chart or the text messages filed. There is no doubt that there have been communication issues and scheduling issues.

[95] Even with those difficulties that have taken place over the four years this matter has been before the Court, it does not impact on the Court’s duty to now consider what is in the best interest of the child.

Conclusion

[96] I have no doubt that the child loves his Father.

[97] I have no doubt that the child’s views and preferences are his own, independently formed and without influence from this Mother or grandmother.

[98] I have no doubt that the Father loves his son. However, the Father must accept responsibility for why the child feels the way he feels. The Father cannot be dismissive of the child’s feelings or concerns about the time he spends with the Father.

[99] Counselling should continue and hopefully the father/son relationship can be strengthened over time.

[100] The child is 12 years old. The child is mature and intelligent. He has been clear and consistent with his views and preferences. His voice must be heard by the Court. He is not an invisible participant in these proceedings.

[101] On the evidentiary record before, I am satisfied that the following order shall issue:

1. The Applicant/Mother shall have sole parenting time and decision-making authority for the child, J.A., born […], 2008, except as provided for in this order.

2. The parties may make inquires and be given information by J.A.’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with J.A.. This Order shall be sufficient authority for all third parties to release any information or documentation to which a parent of a child would otherwise have a right of access. Should Consent from the Applicant/Mother be needed, she will sign any necessary Consent form for the release of information as ordered herein.

3. Neither parent shall speak ill or in a derogatory manner about the other parent, nor allow any of their family members to do so in the presence of the child.

4. The Respondent/Father shall have parenting time with J.A. every Saturday from 11:00am to 5:00pm.

5. The Respondent/Father shall ensure that J.A. attends and/or participates fully in his religious classes as scheduled.

6. The Respondent/Father shall have parenting time with J.A. on the following Holidays, which overrides the regular access schedule:

a. Orthodox Easter Sunday from 2:00pm (or after church activities) until 6:00pm. The parties will share this holiday. As such, the Applicant/Mother will have care of J.A. from 6:00pm onward;

b. Father’s Day from 11:00am to 5:00pm;

c. Summer: 3 consecutive days in the month of July and of August, from 11:00am to 5:00pm;

d. During March Break, for 3 consecutive days from 11:00am to 5:00pm.

7. The Respondent/Father shall respect J.A.’s wishes with respect to parenting time and shall return him home to the Applicant/Mother’s residence when requested.

8. The Applicant/Mother and J.A. may travel to Egypt during the Christmas break. The Respondent/Father’s missed parenting time shall be made-up on J.A.’s return to Ontario. The Applicant/Mother shall provide the Respondent/Father a detailed itinerary with details of dates, flights and address of accommodations, where J.A will be staying while in Egypt, at least 15 days before departure.

9. The Respondent/Father may have telephone parenting time with J.A. once per week, which at this time is occurring on Wednesday evenings keeping in mind J.A.’s bedtime and schedule. Frequency of calls shall be something discussed through counselling. J.A. is free to contact and telephone the parties when he wishes. The parties shall support telephone contact between J.A. and the other parent.

10. Counselling with Ms. Jacqueline Iafrate shall continue and focus on the re-unification of the child’s and the Respondent/Father’s relationship. The parties shall cooperate and participate in the counselling as recommended by the counsellor.

Costs

[102] The Mother shall serve and file written submissions on costs within 20 days. The Father shall serve and file his responding submissions on costs 20 days thereafter. The Mother shall serve and file any reply within 10 days thereafter.

[103] The OCL shall serve and file its submissions on costs with 10 days after the parties have completed all of their submissions.

Fragomeni J.

Released: April 22, 2021