COURT FILE NO.: FS-17-420321
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTIAN MORETON
Applicant
– and –
DOUANGTA INTHAVIXAY
Respondent
Self-represented and acting in person
Michael H. Tweyman and Ashley Waye, lawyers for the Respondent
Jean Hyndman and Nicole Stewart-Kamanga, lawyers for the Office of the Children’s Lawyer (“OCL”)
HEARD: February 16, 17, 18, 19 and March 25, 2021
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] In accordance with Justice Shore’s Endorsement dated September 1, 2020, the trial of this proceeding was bifurcated. The first trial of the issues of (i) mobility and (ii) residential schedule of the children proceeded before me on September 29, 30 and October 1, 2020.
[2] The first trial resulted in my Reasons for Decision released on October 22, 2020. In those Reasons, I ordered that the trial of the balance of the issues (custody and financial matters) proceed before me on December 14, 2020.
[3] As a result of the respondent retaining counsel in early December 2020 (ie. on the eve of the second trial), I granted the respondent’s request to adjourn the second trial, and ordered it to proceed before me in mid-February 2021.
[4] In his Trial Management Conference Endorsement dated January 8, 2021, Justice Hood set out a fixed schedule for the allotment of trial time during the week of February 16, 2021. The second trial proceeded as scheduled before me via Zoom video conference, with one additional half day subsequently scheduled to allow the parties to complete their closing submissions.
[5] Regrettably, only the issue of custody was addressed during the second trial, although both the parties are hopeful that the remaining financial issues can still be resolved between them.
[6] At the conclusion of the second trial, I took my decision under reserve. These are my Reasons for Decision.
The Task at Hand
[7] During the second trial, I heard evidence from both parties and eight additional witnesses. While the time allotted for the evidence of each witness varied, all of the witnesses were substantively cross-examined upon their evidence in chief.
[8] I note that I also had the benefit of the evidence from the first trial. While that evidence was geared towards the issue of the applicant’s request to relocate with the children (Olivia and Alexa as described in my original Reasons) to Lindsay, Ontario, I nevertheless heard testimony that was still relevant to the issue of custody (now “decision making authority” as described hereinafter) of the children.
[9] As I will endeavour to explain in these Reasons, after presiding over both trials, the Court finds itself in a somewhat unenviable position of deciding which party should be granted final decision making authority. The applicant and the respondent are located on opposite ends of the spectrum when dealing with their two children, and neither location is strategically advantageous.
[10] While the respondent is an advocate for the children, her approach and overall attitude towards her children are replete with hypervigilance and illness anxiety carried out from the proverbial parental helicopter. The respondent often refuses to work cooperatively with those who do not agree with or question her observations and/or conclusions. As put by the OCL in its closing submissions, her attitude towards the children’s health and education results in her consistently pathologizing the children.
[11] On the other hand, even after being permitted by the Court to relocate with the children to Lindsay in the fall of 2020, the applicant has not demonstrated the type of maturity or responsibility which one would expect arising from the relocation. Historically, the applicant has involved the children in the conflict between the parties, although those actions have seemingly decreased over the last few years. While the respondent is hypervigilant, the applicant appears aloof in some key areas such as ensuring that Alexa’s educational needs are adequately met. The applicant has yet to even secure a new doctor or dentist to treat the children on a go forward basis.
[12] The Court, much like the parties’ children, is caught in the middle. The applicant wants sole decision-making authority over both children. The respondent wants the same thing, but is prepared to have the applicant take care of the routine medical appointments for Olivia on the condition that the respondent is granted sole decision making responsibility for Alexa in all aspects – in other words, split decision-making authority.
[13] The respondent’s request would translate into divided responsibility with respect to major decisions for the children. The OCL does not support such a result, as it would invariably lead to further conflict and delay in decision making; this is not in the children’s best interests.
[14] All parties agree that joint decision-making responsibility is virtually impossible. The Court accepts this unfortunate concession on the part of both parties. Nevertheless, a decision must be rendered bearing in mind, as always, the best interests of Olivia and Alexa.
[15] The Court is aware that each party loves both of their children, and each party believes that their respective conduct, actions and decisions have all been carried out in good faith and with their children’s best interests in mind. That said, it is important to review the evidence with a view to highlighting, and hopefully explaining to the parties, numerous examples of where each party’s respective approach is simply not grounded in the children’s best interests.
The Applicant
[16] As with all trial witnesses, I listened attentively during the applicant’s testimony. Ironically, even though the applicant opposed the respondent’s request to adjourn the trial on the basis that he was “adamant to have the custody issue determined”, he spent very little, if any, time during his evidence in chief speaking about the parties’ children and/or his relationship with them. The applicant focused upon denigrating and criticizing the respondent for most, if not all, of his testimony. He described the conflict between himself and the respondent, including its origins, history and continued existence. He described the respondent as uncompromising (which, in my assessment, is an apposite conclusion) while he is “willing to adapt and learn”.
[17] There was virtually no mention of the children’s bond with him during his evidence in chief. He did not speak about Alexa’s specific needs, including her occupational therapy, individual educational planning (“IEP”), or attention deficit issues. It was not until the OCL began its cross-examination that the applicant was able to plug the significant holes in his testimony by answering the OCL’s questions about the children. Even then, the testimony given by the applicant was not always helpful. Since relocating with the children to Lindsay in the fall of 2020, in addition to not securing a new doctor or dentist, the applicant has not yet registered Alexa for speech or occupational therapy.
[18] When asked whether Alexa should be held back a school year given her needs and the transition to a new school, the applicant did not offer an opinion and simply stated that he would “follow the school’s advice.” At one point, when the applicant was asked about whether Alexa’s needs were being met in her new school, he indicated that the reason he wanted her reading skills to improve was so that she would not get “bullied by other students”.
[19] While the applicant has understandably grown quite frustrated with the respondent’s insistence upon labelling Alexa with some form of autistic diagnosis, there was medical evidence from Dr. Douglas Campbell (a pediatrician at St. Michael’s hospital who the respondent sought out) that Alexia exhibited behaviour consistent with attention deficit hyperactivity disorder (“ADHD”). Rather than move forward with steps to explore Dr. Campbell’s preliminary diagnosis, the applicant testified that he wanted to “reset the entire process” because of his distrust in the respondent. The applicant’s decisions and opinions about Alexa seem to be based upon his rejection of the respondent’s views, rather than whatever evidence about Alexa was objectively available.
[20] Dr. Campbell sent a questionnaire to the applicant to be completed in an order to assist with Alexa’s needs going forward. Only when pressed by the Court during his cross-examination did the applicant acknowledge that he did receive the questionnaire, but delayed in completing and returning it.
[21] The applicant has done very little to fulfil or follow any recommendations from Dr. Campbell or Alexa’s occupational therapist.
[22] When the applicant registered the children in their new school in Lindsay, he omitted including the respondent’s contact information at all.
[23] At the conclusion of the first trial, while my decision was under reserve, the applicant forced the respondent to bring a motion to return the children to Toronto pending the release of my original Reasons. It appears that the applicant was simply expecting a favourable result, and took matters into his own hands.
The Respondent
[24] While I heard new evidence at this trial, I cannot ignore the findings I made in the first trial (in particular paragraphs 56-62 of my original Reasons). Indeed, despite the respondent’s attempts to gloss over the facts which led to those findings, her testimony and performance in the witness box at this trial only served to highlight my prior concerns.
[25] The respondent is stubborn and obstinate. If the respondent forms an opinion, those who do not share her opinion are “against her”. In its closing submissions, the OCL was correct to highlight the respondent’s conduct throughout this litigation, which consisted of consistently creating significant delays, and then filing voluminous materials and pursuing appeals in the face of her stated position that she was unable to participate in the litigation. While the respondent sought to characterize this as her “overcoming the odds”, in reality it was really about her “playing the system”.
[26] Since the parties’ children have relocated to Lindsay, the respondent has sought to involve herself in the children’s schooling (which is completely understandable), but has done so in a quite adversarial and contrary manner. When the respondent attempted to ensure that Alexa’s IEP was transferred from her Toronto school to her new Lindsay school, she was told that the IEP could not be finalized in Lindsay until the fall of 2021, and that a psycho-educational assessment would not be considered until grade 2 based on the policy of the local school board. This did not sit well with the respondent, who proceeded to inundate the Lindsay school personnel with lengthy emails evidencing her non-acceptance of that decision and reality.
[27] The respondent’s evidence surrounding her approach to pursue an autism diagnosis for Alexa’s tried to show contrition, but ended up exposing the respondent as hyper-focused upon the diagnosis she truly believes. She admitted telling both Olivia and Alexa that Alexa potentially has autism and learning disabilities, even though no diagnosis has ever been obtained.
[28] During her examination in chief, the respondent testified in a calm and organized manner. On cross-examination, when her positions were challenged (with contrary documents or the respondent’s own words and actions), she became adversarial, and her ailments (which she described as part of an auto-immune disorder in support of her request to adjourn the original trial) appeared out of nowhere despite not being present for the first three days of this trial. While there is no medical evidence before me to conclude as to the causes, symptoms or treatment of the respondent’s medical condition, her inability to participate in her cross-examination without requesting and taking numerous breaks (coupled with her sudden inability to read documents) calls her ability to parent the children during stressful times itself into question.
[29] While the respondent refused to allow Michelle Nagy (“Nagy, the social worker retained as the OCL’s clinical investigator) to enter the respondent’s home to interview the children, the respondent was anything but cooperative in making the children available during her own parenting time. The respondent advised the OCL that if any interviews with the children were required, they should be carried out during the applicant’s time with the children due to the respondent “being in the hospital every other weekend”. How can the respondent care for the children if she is purportedly ill for half of each month?
[30] Since the conclusion of the first trial, Nagy interviewed Olivia and Alexa on four occasions: November 18, 2020, December 5, 2020, January 8, 2021 and February 14, 2021. All those interviews were conducted either via Zoom or GoogleMeet.
[31] In the first interview, Olivia advised that the respondent was not taking my original Reasons well, and was trying to “guilt Olivia about it”.
[32] In a subsequent interview, Olivia advised that the respondent only wanted the applicant to have two visits of two hours a week with the children.
[33] Despite the respondent’s denials, I find that she provided some misinformation to the children’s medical practitioners and the schools. This misinformation was either inaccurate or exaggerated. Dr. Hartley Garfield (the children’s Toronto pediatrician) gave evidence that both Olivia and Alexa are generally healthy children, and that there were no indicators of autism for Alexa. Despite Dr. Garfield giving evidence that neither child had been diagnosed with any gastroenterological conditions (such as celiac disease or lactose intolerance), the respondent was adamant that the children did suffer from such conditions. Dr. Garfield’s actual diagnosis of Olivia was in fact constipation.
[34] On one occasion, the respondent took the position that in this litigation Alexa was not able to fly due to some nasal issues from which Alexa was suffering. The medical records filed with the court disclose that Alexa was prescribed a nasal steroid spray in November 2016, and that approximately two months later an examination of her ear was normal. The applicant’s request for Alexa to fly was made two years later, and there were no medical records indicating any issues with Alexa’s nose or throat during those two years. Notwithstanding, the respondent was not satisfied with Dr. Garfield clearing Alexa to fly. It is as if the respondent sought to create or revisit her daughter’s prior health conditions to suit the respondent’s own personal needs.
Governing Legal Principles
[35] One of the issues raised by the parties in their closing submissions was whether the provisions of the new Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) and/or the new Children’s Law Reform Act, R.S.O. 1990 c. C.12 (“CLRA”) apply to this trial. The amendments to the Divorce Act are essentially identical to the new amendments in the CLRA.
[36] The evidentiary portion of this trial concluded on February 19, 2021. The new amendments to the Divorce Act and the CLRA came into effect on March 1, 2021. Section 35.3 of the Divorce Act expressly provides that the amendments therein apply to any case decided on or after March 2, 2021.
[37] Both the respondent and the OCL submit that the Court ought to consider and apply the new CLRA amendments, including any factors and criteria set out therein, in determining the issue(s) in this case. I agree, and there is recent jurisprudence to support this position. In Wiafe v. Afoakwa-Yeboah 2021 ONCJ 201, Justice Sherr relied on his own recent decision in L.B. v. P.E. 2021 ONCJ 114 and concluded that where a trial is completed before March 1, 2021, but a decision is released after March 1, 2021, the Court will apply the approach set out in the amendments to the Divorce Act and the CLRA.
[38] At paragraph 43 of the L.B. decision, Justice Sherr sets out comprehensive reasons to support his conclusion, including (a) the fact that the results in the case before him would be exactly the same no matter which best interest considerations were applied, (b) the amendments modernize the best interest language and are much clearer than the previous terminology, and (c) the amendments, to a large extent, codify the existing jurisprudence relating to the best interests of a child.
[39] I also adopt Justice Sherr’s conclusions in Wiafe with respect to the applicability of the new amendments:
“Language in the Act is modernized with these changes. Terminology related to child custody and access is replaced with terminology related to parenting.
Custody now becomes decision making responsibility. Decision making responsibility is defined as responsibility for making significant decisions about a child’s well-being, including with respect to,
a) health,
b) education,
c) culture, language, religion and spirituality, and
d) significant extra-curricular activities.
Access by a parent to a child now becomes parenting time. Parenting time is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.
And access by a non-parent to a child becomes contact. This is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.
The amendments set out who can apply for two different kinds of orders – parenting orders and contact orders. It establishes a list of non-exhaustive criteria with respect to determining the best interests of a child. It introduces provisions to assist the courts in addressing family violence. And it establishes a framework for determining when one parent will be permitted to relocate with a child and the amount of notice that must be provided to another parent.
The amendments are aligned, for the most part, with the changes made to the Divorce Act (Canada) that also came into force on March 1, 2021.”
[40] Having concluded that the amendments to the Divorce Act and CLRA apply to the issue(s) to be decided in the case before me, my determination of whether the applicant or the respondent should have a final decision making responsibility over the children is premised upon an assessment of the best interests of Olivia and Alexa.
[41] Section 24(2) of the CLRA requires the Court to give primary consideration to the children’s physical, emotional and psychological safety, security and well being. Section 24(3) of the CLRA sets out the factors which the Court may consider in its assessment of the said primary considerations:
“Factors related to the circumstances of a child include,
(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;
(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 co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child,
(l) 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,
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.”
The Children’s Best Interests
[42] To begin, I agree with the respondent that the needs of Olivia and Alexa are quite different. The respondent submits that she should have sole decision-making responsibility for Alexa, but is content (at least on an alternative basis) that the applicant have decision making responsibility for Olivia with consultation with the respondent. As stated, the respondent is asking for the parties to divide responsibility with respect to major decisions for Olivia and Alexa in the form of a split decision-making authority order.
[43] The applicant and the OCL oppose such a result. While each of them argue for sole decision-making responsibility to rest with the applicant, they both take the position that a split decision-making responsibility order is simply unworkable in the circumstances of this case given the parties’ inability to communicate and co-parent to date. The conflict between the parties is simply too high to make any such order work.
[44] The order sought by the respondent provides the right of one party to make decisions about either a specific child, or a specific major decision about a specific child. The respondent is not seeking what is known as a traditional “parallel parenting” order, but an order dividing the major decisions about Olivia and Alexa between the parties. The respondent relies upon Justice Doyle’s decision in Ascani v. Robert 2015 ONSC 4585 in support of her position, and in particular the following passages:
“ Both parties have been verbally and physically aggressive with each other. Their disdain and utter annoyance with each other seeps through any exchange that they have. Both have spoken negatively to each other. Father speaks to the mother as if she is ignorant and mother blows up and lashes out at the father with extreme emotion and frustration.
The Court finds both parties are equally responsible for the conflict and it would not be in Vanessa’s best interests to give one party the sole decision making power. This could result in the access parent being marginalized if one parent were granted sole custody.
Only by dividing the power, can the Court be assured that Vanessa will have both parents involved in her life in a meaningful way.
This is not a situation where one parent has been the main caregiver and the other parent has been the access parent who is suddenly attempting to play an active role. Nor is this a situation where a parent has a serious addiction issue.
Both parties are good parents. I am not convinced that mother has serious alcohol issues that impede her ability to parent Vanessa. Nor am I convinced that the father is so opinionated that it prevents him from participating in Vanessa’s life in a split decision making role.
The Court determines that the conflict that exists between the parties may continue but taking away the right of the father to participate in decisions is not good for Vanessa.
Here, the evidence demonstrates a clear picture of two parents, although not cordial, equally involved in their daughter’s life.
Allowing the mother to make all major decisions regarding their daughter will not be in Vanessa’s best interests. The father has been involved from the pregnancy in a meaningful and qualitative way and it is in Vanessa’s best interests to have his involvement continue.
The father’s approach in life is usually cool and measured. This reasoned approach can be contrasted with the mother’s rather emotional response to issues.
On the other hand, the mother must also be fully involved with Vanessa. She has a warm nurturing relationship with her daughter. Vanessa greatly benefits from all that her mother can provide as a parent who has been equally involved in her life from the beginning.”
[45] As held in Perron v. Perron 2010 CarswellOnt 6948 (S.C.J.), an order for split decision-making is dependent upon, inter alia, the extent to which each parent is able to place the needs of the child above their own needs and interest. On the record before me, I am not satisfied that both parents are equally competent, and more importantly I find that their persistent lack of cooperation adversely affects the best interest of Olivia and Alexa.
[46] The responsibility for the parties’ inability to agree on the majority of matters is shared between them. However, I find that the applicant’s views are, at least in part, born from a growing frustration with the respondent’s unilateral approach to most, if not all, decisions affecting the children. While I am not here to apply a “chicken vs. egg” approach to the history of the conflict between the parties, the respondent’s actions during the currency of this litigation display a standard default opposition to positions taken by the applicant (or for that matter, anyone who disagrees with her).
[47] On a practical basis, it would be difficult to order split decision-making responsibility when both children reside with the applicant in Lindsay. I am cognizant that my mobility decision arising from the first trial is presently under appeal, and it is possible that the current living arrangements may in fact change. However, as both children now reside primarily with the applicant in Lindsay, it is hard to imagine a workable situation where major decisions for Alexa rest with the respondent in Toronto.
[48] In addition, it would be difficult for one party to make decisions with respect to one child that would not impact the other child given the fact that they primarily reside together in Lindsay. The respondent argues that such concerns can be addressed by way of the Court ordering prohibitions against certain specific, potential decisions such as a change of school. While I appreciate the respondent’s argument, on the facts of this case and given the current situation, in my view there is too much of a risk of overlap if a split decision-making responsibility order was issued.
[49] At paragraph 18 of her Reply Submissions, the respondent agrees with the OCL’s submission that the need for stability includes a need to minimize the conflict between the parties. The respondent however disagrees that the fact that the children reside with the applicant acts against a potential split decision making responsibility order, and submits “this is exactly the reason why custody should not have been decided after mobility” as it “put the cart before the horse”. While this is an argument that the respondent can pursue in her appeal of my original decision, the fact remains that Justice Shore made an order bifurcating this trial so that the issue of mobility proceeded first as the family was in desperate need of closure.
[50] For those reasons, I am not prepared to make the order requested by the respondent and must therefore decide which of the two parties should be granted full decision-making responsibility over both children. Accordingly, I will now consider the relevant factors prescribed in the amendments to the Divorce Act and CRLA.
The Children’s Needs Given Their Age and Stage of Development
[51] It is trite to state that the less conflict arises, the more stability the children will experience. According to Nagy, both Olivia and Alexa have consistently expressed a desire to minimize their exposure to conflict between the parties. The children have always wanted their parents to simply get along, and despite these reasonable requests, the parties have been unable to make that happen.
[52] This factor slightly favours the applicant, as it is in the children’s best interests to minimize the interactions and risk of conflict between the parties. Such a result would have a better chance of occurring if the applicant had final decision-making authority on issues upon which he and the respondent could not agree.
The Nature and Strength of the Children’s Relationship with Each Parent, Their Siblings, Grandparents or Any Other Persons who Plays an Important Role in Their Lives
[53] In my view, both Olivia and Alexa have strong, but different, bonds with each of their parents. The children have expressed as much to Nagy during the numerous interviews conducted to date.
[54] Dr. Garfield gave evidence that, in his view and experience, both children were comfortable with each of their parents and he had no concerns about those relationships.
[55] The OCL submits that the children’s recent interviews with Nagy tips the balance of this factor in favour of the applicant. According to Nagy, Olivia was asked who she talks to in the event she is sad, and in response she advised that she talks to herself, Alexa, the applicant or her friends. The OCL highlights the omission in Olivia’s response, namely that she did not mention the respondent at the time she was asked.
[56] In my view, the answers Olivia gave are, at least in part, influenced by the fact that she spends more time with the applicant given her current residence. I do not find those answers to amount to evidence of a stronger bond with the applicant than the respondent.
[57] The OCL further argued that during the children’s time with the respondent, they were either “left at daycare for too long”, went out with their maternal grandparents while the respondent stayed at home, or were left alone while the respondent “worked on court things”.
[58] I am wary to find that this tilts the balance of this factor in favour of the applicant. The applicant resides with his own father, who is available to assist when the applicant is working or otherwise occupied (with this court proceeding as an example).
[59] Alexa complained to Nagy that she did not do “fun stuff” with the respondent, but just stayed home as the respondent made her do homework. The OCL argues that the applicant is simply more engaged with the children. I do not agree. As previously stated herein, while I have reservations about the respondent’s approach, she is nevertheless more concerned with the type of matters that require a “less fun” experience such as school and medical needs.
[60] I therefore find this factor to be neutral.
Each Parent’s Willingness to Support the Development and Maintenance of the Child or Relationship of the Other Parent
[61] The respondent argues that the evidence supports a finding that the applicant has and continues to place the children in the middle of the conflict. I do not find this to be the case. From the date of separation onward, the respondent did not show a willingness to allow the applicant to have access with the children, and placed roadblocks in the applicant’s way on several occasions, forcing the applicant to bring interim motions. As I have found, and as Nagy has confirmed, both children want to see their parents equally, and at the time raised by the respondent, they wanted to see the applicant more often with additional overnight visits. The respondent did not cooperate.
[62] While I find that the applicant has also taken steps that placed the children in the middle of the conflict (such as raising legal issues with the children), the respondent is guilty of such errors in judgment as well. When the COVID-19 pandemic began, the respondent seemingly used every possible angle and excuse not to have the applicant see the children given the presence of “health risks” that, to my review, were exaggerated to say the least.
[63] Since becoming the primary resident parent, the applicant has displayed more flexibility to ensure that the respondent has and enjoys additional parenting time. I agree with the OCL that while neither parent typically speaks positively about the other, the applicant is likely more open to fostering the children’s relationship with the respondent.
[64] Accordingly, I find this factor favors the applicant.
The History of Care of the Children
[65] Until 2019, the respondent had been the primary parent dealing with the traditional decision-making responsibility topics, namely school and medical needs. The witnesses called at trial confirmed this to be the case.
[66] It is troubling that the applicant has yet to arrange for medical and dental appointments in Lindsay for the children. Historically, while the respondent was more responsible for the children’s medical care and educational needs, there is some evidence that the applicant had been excluded from those decisions by the respondent. There was also evidence that, at least with respect to medical needs, the respondent has tried on occasion to involve the applicant in setting up various medical appointments.
[67] However, and drawing upon a theme in the first trial which continued into the second trial, no one but the respondent could ever keep up with her hypervigilant attitude towards the children’s medical and educational needs. The respondent has displayed a tendency to overstate the children’s symptoms, needs and feelings with a view to taking control of those aspects of their lives. This has permeated, and in fact pathologized, many areas of the children’s lives including alleged autism, food allergies, IEP requirements and occupational therapy.
[68] In addition, and as previously stated, I have concerns about the respondent’s ability to care for the children when her own evidence throughout this entire proceeding, including her testimony at trial, confirms her difficulty in carrying out everyday activities for herself. The respondent has sworn numerous affidavits in this proceeding setting out the history and extent of her own disabilities (which were not confirmed by medical evidence to my review at either trial) which prevented her from allegedly ever participating in this case and formed the basis of her numerous requests to adjourn the proceedings.
[69] For these reasons, this factor slightly favours the applicant.
The Children’s Views and Presences Given Duly to Their Age and Maturity
[70] The OCL submits that Nagy did not discuss the children’s views and preferences with respect to decision-making responsibility with them, and in my view this was a sensible decision.
[71] Once again, it is clear that both children want both parties involved in their lives, and if possible equal time with each parent.
[72] Olivia, who is not just older but seemingly far more mature than Alexa, advised Nagy that she thought it would be difficult for the parties to make decisions together due to the fact that they “always fight”. Olivia did indicate that she would be agreeable with the applicant making final decisions and the respondent having input. This was due to Olivia thinking that the respondent’s decisions were “sometimes a bit off”.
[73] The respondent argues that Olivia has been influenced by the applicant, and Olivia’s opinion that the respondent’s decisions were “sometimes a little off” must have come from the applicant as it matches up with his view of the respondent’s historical decision making.
[74] Alexa is very close with Olivia, and advised Nagy in the fall of 2020 that while the respondent was “hardcore” about staying at her house, perhaps Alexa could get a “fresh start” if she started living with her dad in Lindsay. Again, these answers seemed to emanate from the applicant, as they do not feel like organic answers coming from a young child.
[75] In my view, this factor is neutral at best.
The Ability and Willingness of Each Party in Respect to Whom the Order Would Apply to Care for and Meet the Needs of the Children
[76] While the Court questions the extent and reasonableness of the respondent’s efforts, there is no question that she is an advocate for the children. The respondent argues that if she was granted sole decision-making authority, she would ensure that the children would receive the best care that she can find, as she is in a better position to address the children’s needs and give them the attention they deserve.
[77] As I have summarized already, the same cannot be said for the applicant. However, the applicant seems to argue that his approach is simply alternative to that of the respondent in that the children are so used to the respondent’s hypervigilance that they need something different. In my view, this is somewhat understandable.
[78] The OCL agrees that the applicant has “not been entirely child focused”, but the respondent has demonstrated “deep investment in keeping the litigation and the conflict going to the detriment of the children”. There is some truth to that submission. At paragraphs 5 through 13 of my original Reasons, I set out the extensive history (which was originally summarized by Justice Kraft in her Endorsement dated August 25, 2020) of the respondent’s persistent efforts to adjourn and delay the hearing of this trial, which only served to prolong the children’s involvement in this conflict.
[79] The respondent has attempted to downplay her hypervigilance, and to recast her focused efforts to have Alexa diagnosed as autistic as “something that only occurred to me as a possibility”. I do not accept this turnaround in position. The respondent admitted telling Alexa herself that she may be autistic. Why would a parent say that before a medical diagnosis unless the parent was focused upon obtaining that diagnosis?
[80] That said, the respondent’s approach has to be compared with the applicant’s inaction in refusing to arrange for basic medical needs and concerns, and “laissez faire” attitude towards Alexa’s educational needs. Perhaps the applicant’s attitude could be due to fatigue in historically having to deal with the respondent’s aggressive approach. The applicant considers the respondent’s efforts to be more disruptive than beneficial, and while there may be a kernel of truth to that position, the opposite approach is obviously also not in the children’s best interests.
[81] I do not find that the applicant has failed to meet the children’s basic needs as alleged by the respondent. Overall, I find that this factor is neutral at best. I come to this conclusion because the right approach is effectively somewhere in the middle of the two parties’ attitudes towards their children.
The Ability and Willingness of Each Party to Communicate and Co-operate, in Particular with One Another, on Matters Affecting the Child
[82] There is evidence that the respondent has made some efforts through the use of the Two Houses program (which was a term previously ordered by the Court) to advise the applicant of medical appointments in advance, provide him with any forms that require his input and signature, and update him on any missed appointment. The applicant has not been as receptive as he should or could have been to date, claiming the Two Houses program to be difficult to navigate even though he is well trained in the technological field.
[83] The Two Houses program is designed to lower the conflict between parents. In the within case, it had the opposite effect. From my review of the record, this factor slightly favours the respondent. Even though some of the communications were adversarial and critical, the respondent did show efforts to keep the applicant “in the loop”, even though that loop was on occasion designed to address concerns solely raised by the respondent.
Conclusion
[84] There are more factors in favour of the applicant than the respondent, and as such final decision-making responsibility should rest with the applicant. That said, I wish to advise the parties that this was a difficult decision for the reasons expressed. Granting the applicant decision-making authority over both children does not bestow any licence upon him to continue with his approach to date, or exclude the respondent from meaningful decisions.
[85] I am hopeful that after having reviewed these Reasons, the applicant will be able to take this Court’s findings and concerns into account, and adapt his parenting approach accordingly on a go forward basis (in particular dealing with the children’s medical, dental and educational needs). In my view, there is a greater chance of the applicant making those changes than the respondent adapting her approach given her history of consistent rigidity.
[86] I am thankful to the OCL for its suggestions as to the terms of a final order. Accordingly, I make the following order:
Subject to the consultation process set out below, the applicant shall have final decision-making authority with respect to major decisions concerning Olivia and Alexa, including but unlimited to education, non-emergency medical care, religion/spirituality and extra-curricular activities.
Prior to making any final significant decisions, the parties shall consult with one another in the following manner:
(a) In the event the parties do not agree upon any major decisions, the applicant shall provide the respondent with his proposed decision in writing, together with all other options (if they exist) and brief reasons for his preferred option. The applicant shall provide this information in writing at least 21 days before the decision must be made, except in the case of an emergency;
(b) The respondent shall review the applicant’s information, and shall provide her responding input and proposed course of action in writing to the applicant within seven days of the receipt of the applicant’s information, failing which she shall be deemed to be in agreement with the applicant’s proposed decision;
(c) If the respondent responds in writing, and suggests a different option than suggested by the applicant, the applicant shall consider it and may consult with any professional (doctor, educator, etc.) suggested by the respondent for a second opinion in order to fully consider the option(s) proposed by the respondent; and,
(d) After taking the steps set out in (c) above, the applicant shall provide his own response, in writing. to the respondent within ten days of the receipt of the respondent’s response, and advise her of the final decision that he wishes to make, in writing.
The applicant is precluded from making final decisions regarding any extra-curricular activities or after school child care that occurs during the respondent’s parenting time with the children without her written consent. In addition, the respondent shall not make such decisions without the applicant’s written consent.
The respondent shall not make any appointments for the children without the prior written consent of the applicant except in the case of an emergency that arises during her parenting time in which case the respondent shall advise the applicant forthwith after making the appointment with the reasons the appointment was required. If any treatment is prescribed as a result of any emergency, the respondent shall provide the instructions, medication or treatment information to the applicant when the child/children are returned to him.
With respect to booking to any specialist appointments/assessments or non-routine school meetings, the applicant shall advise the respondent of same and invite her to attend or request that the specialist/school extend that invitation. In the event the specialist/school agrees to notify the respondent, the applicant shall provide the specialist/school with the respondent’s contact information and/or provide the respondent with notice of those appointments or meetings forthwith.
The applicant shall be responsible for routine medical/health care decision regarding both children, but shall provide any information about such decisions to the respondent through the use of Our Family Wizard unless the respondent has been provided with the said information by the health care professional. Both parties shall otherwise be responsible for day-to-day decisions regarding the children while in their respective care.
Both parties shall have the full authority to obtain information directly from the children’s doctor, dentist, teacher(s) and other school personnel in accordance with the policy and resources of those third party care providers.
Both parties shall provide their respective contact information and email addresses to their children’s school and shall be responsible for obtaining their own copies of progress reports, report cards, parental notices and similar items.
Except in the case of an emergency, the parties shall communicate about the children through Our Family Wizard. In the event of an emergency, the parties are permitted to communicate by telephone and/or text message.
Final Matters
[87] As this trial did not address the outstanding financial issues between the parties, in the event they are unable to resolve that issue, they may contact the Family Scheduling Office to arrange for a further trial date or motion for summary judgment if necessary. As I remain on the Civil team for the balance of 2021, that trial or motion for summary judgment may be heard by another judge subject to the Family team leader’s input.
Costs
[88] If either party seeks costs of these two trials, they may serve and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule
(a) the applicant shall serve and file his written costs submissions within 10 business days of the release of these Reasons for Decision; and,
(b) the respondent shall serve and file her written costs submissions within 10 business days of the release of the applicant’s written costs submissions.
Diamond J.
Released: April 23, 2021
COURT FILE NO.: FS-17-420321
DATE: 20210423
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTIAN MORETON
Applicant
– and –
DOUANGTA INTHAVIXAY
Respondent
REASONS FOR DECISION
Diamond J.
Released: April 23, 2021