COURT FILE NO.: FS-19-3225

DATE: 20210706

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bogdan Chmielewski

Applicant

– and –

Agueda Gallego Gonzalez

Respondent

Audrey A. Shecter, for the Applicant

In Person

HEARD: May 3^rd, 4^th, 5^th, 6^th, 7^th, 10^th, 11^th, 12^th, 13^th, 14^th, 17^th, 18^th and 21^st, 2021

M. Kraft, J.

REASONS FOR DECISION

Table of Contents

Overview.. 3

Family Background. 4

Relevant Litigation History. 7

Witnesses Called at Trial 9

The Positions of the Parties. 9

Relevant Evidence. 11

The 2017-2018 Academic Year. 12

Dr. Marcovitch’s 1^st Psycho-educational Assessment of G. – June 2018: 14

The 2018-2019 Academic Year. 14

Kimberley Blanchet – Then Vice Principal at St. Brigid’s (at present, Principal). 14

The January 16, 2019 Incident – Agueda charged with Assaults on S. 16

Detective Laura McFatridge - Police Officer Involved in the laying of the Assault Charges. 17

Bogdan’s Actions after Agueda was charged with Assault. 20

Debra Levin – Director of Purple Tree Daycare. 21

Leslie Fraser –CAS Worker. 25

Bogdan’s Motion for G. and S. to attend Private School for the 2019-2020 Academic Year. 28

2019/2020 Academic Year: 30

Attempts by the Parties to find G. a new school for Grade 1. 30

Alexander Stanley – S.’s Junior Kindergarten Teacher at RDS. 33

Larissa Ruderman (Bogdan’s Partner). 34

Voluntary Psychological Assessment of Agueda. 36

Dr. Douglas S. Saunders – Psychological Assessment of Agueda. 36

Dr. Howard Waiser – Critique of Dr. Saunders’ Psychological Assessment of Agueda. 38

OCL Report – Eva Casino – OCL Clinician. 39

A. Identification of Each Parent’s Concerns about the Other: 39

B. Process, including the arranging of Home Observation Visits. 43

C. OCL’s Findings. 45

D. OCL’s Parenting Recommendations. 47

ANALYSIS: 54

The Parenting Order that is in the best interests of G. and S. 54

Issue One: Parenting. 65

Application of the Law to the Facts. 65

Issue 1(a): Decision-Making Regime: 78

Issue 1(b): Parenting Time. 86

Issue Two: Child Support. 88

ORDER: 91

Overview

[1] This was a thirteen-day trial, the focus of which was almost entirely on the parenting arrangements for the parties’ two children, G., ages 7, and S., age 5.

[2] The parents separated on September 15, 2015.

[3] They entered into a partial separation agreement on March 14, 2016. The agreement contains a 6-stage, graduated parenting schedule for the children, which settled the custody/access issues on a final basis, except only for the sharing of time on holiday, which issue was to be mediated.

[4] A number of unfortunate events transpired in 2018 and 2019, which led to the applicant, Bogdan Chmielewski (“Bogdan”), commencing this case, contrary to the dispute resolution mechanisms provided for in the parties’ partial separation agreement. Most of the steps in this case arose from disputes between the parties as to how to manage the school placement for G., who has specific challenges.

[5] G. has been diagnosed as gifted and also has Attention Deficit Hyperactivity Disorder (“ADHD”) and oppositional behaviours. G. requires ongoing supports from third parties in terms of his self-regulation skills and redirection as a result of his difficulties with attention. Given his various diagnoses and specific needs, consistency and predictability, both in G.’s schedule, routines and behavioural expectations is critical. S. does not present with any special needs.

[6] The current parenting schedule is a 2-2-5-5 schedule, where the children reside with the respondent mother on Mondays and Tuesdays; with the applicant father on Wednesdays and Thursdays; and they alternate their weekends with each parent. The parties are to rotate the Monday/Tuesday and Wednesday/Thursday residency annually.

[7] In addition to the challenges caused by G.’s special needs, this case became a particularly high-conflict case, after an incident took place in January 2019. The incident led to the respondent, Agueda Gallego Gonzalez (“Agueda”) being charged with two accounts of assault against the parties’ daughter, S. S. was 3 years old at the time. These criminal charges were ultimately withdrawn. However, the assault charges led to an abrupt and significant change in both the power dynamic between the parties and the parenting of the children. The children were immediately placed in the sole care of Bogdan when Agueda was charged. As will be seen, below in these Reasons, the parenting decisions Bogdan made during the six-week period that followed the incident created an environment of mistrust between the parties and clearly demonstrated that Bogdan has little, if any, regard for the role that Agueda plays in their children’s lives. The conflict led to a year-and-a-half of litigation, resulting in this 13-day trial before me over parenting issues.

[8] The issues to be determined at trial were to be:

a. The decision-making regime that is in the children’s best interests,

b. The parenting-time order that is in the children’s best interests, and

c. The child support arrangement that is appropriate, considering, among other things, the parenting-time arrangements that I order.

[9] At the end of the trial, I reserved my decision. My decision and the reasons for it are found below.

Family Background

[10] Currently, Bogdan is 45 years old and Agueda is 38 years old.

[11] The parties were married on February 25, 2011, in Toronto.

[12] G. Chmielewsky Gallego (“G.”) was born on […], 2013, and S. Chmielewsky Gallego (”S.”) was born on […], 2015.

[13] As stated above, the parties separated on September 15, 2015. G. was 3 and S. was 2 months old at the time of the separation. [The parties were divorced in April 2017.]

[14] Agueda was born in Spain.

[15] Bogdan was born in Poland. His family subsequently moved to Germany. Their family then moved to Canada when Bogdan was 8 years of age, in 1983.

[16] The parties met in 2009 at a software conference in San Francisco when Bogdan was 34 years of age and Agueda was 26 years old. Agueda was living in Spain when the parties met. They began a long-distance relationship. In 2010, Agueda moved to Canada.

[17] Bogdan has a computer engineering degree from Waterloo University and a Masters in Business Administration from the University of Toronto. He finished his post-secondary studies in 2007. He is a software engineer and has been self-employed for the past 8-10 years. He earns income through a corporation he owns.

[18] Agueda is also a computer engineer and a software developer. She has been both employed and self-employed throughout her career. She is currently employed by a company, known as Myamt. Both parties work full-time.

[19] In 2013, the parties jointly purchased a home, located at 61 Woodmount Avenue in the Beaches neighbourhood of Toronto. The children attended daycare, school and extra-curricular activities in the parties’ neighbourhood. Agueda does not have a driver’s licence. As a result, all of the children’s activities, their daycare and school were located in the catchment area of the matrimonial home, within walking distance. The children were each enrolled in daycare as of age 1, to enable both parents to work full-time.

[20] Agueda took a maternity leave for 1 year when each of the children was born. After the separation, Agueda had the primary care of G. and S. The time the children spent with Bogdan increased over time in accordance with the terms of their partial parenting agreement. It was in June 2018, that G. came to spend one-half his time with each parent. It was in July 2019, that S. began to spend one-half of her time with Bogdan as well.

[21] Agueda has a sister and a large extended family, all of whom reside in Lorca, Spain. Bogdan’s parents reside in Sarnia, Ontario. He is an only child.

Separation and Agreements Reached by the Parties after Separation

[22] Bogdan described some conflict in the relationship after G. was born, and an incident in Summer of 2014, which led to him contact the police. [Agueda also testified that the parties argued in the Spring/Summer of 2016, which led to the police being called.]

[23] Ultimately, Bogdan moved to the basement in September 2015, when S. was only 2-3 months old and G. was just over 2 years old.

[24] In March 2016, Bogdan moved out of the matrimonial home, after the parties signed the partial separation agreement. The agreement addressed the parenting issues (the parenting schedule and decision-making) on a final basis. This agreement did not include a holiday schedule. Pursuant to the parenting agreement, the parties have joint decision-making authority over all important decisions that affect G. and S.[^1]

[25] Again, the parenting agreement contained a six-stage, graduated parenting schedule, which Agueda designed from literature about children and their responses to parental separation, based on their ages and stages of development.[^2] Given the young ages of G. and S. at the time of separation, the children resided in Agueda’s primary care. Again, it is since July 29, 2019, that the parenting schedule graduated to the point where both children reside with the parents on a 2-2-5-5 basis. The children have never lived less than half of their time with Agueda.

[26] During her examination-in-chief, Agueda testified about an incident that occurred in early July 2016, when according to her, Bogdan grabbed her on the forearm when she was holding S. (who was a 1 year old at the time), in a stroller. She said that this left bruising and blood on her arm, and a neighbour called the police.[^3]The following day, when the police contacted the parties, the police recommended that the parties begin to effect access exchanges at the nearest police station.[^4]The parties’ Agreed Statement of Facts, filed at trial, confirms that the access exchanges took place at a police station for about 6 months, followed by exchanges taking place at a local bank.[^5]

[27] Notwithstanding arguments the parties had, on October 19, 2016, the parties signed a separation agreement, which addressed the outstanding financial issues between them arising from their marriage breakdown. The partial parenting agreement was attached to it.[^6] As a term of the separation agreement, Agueda purchased Bogdan’s half-interest in the matrimonial home. Agueda and the children continue to reside in the matrimonial home, in the Beaches neighbourhood of Toronto.

[28] Both the partial parenting agreement and the separation agreement contain dispute resolution mechanism clauses. For parenting disputes, the parties are to try and resolve any issues directly, failing which a mental health professional who deals with parenting, such as a psychologist, was to mediate or arbitrate unresolvable issues. For financial-related issues that arose, such as income calculations for support purposes or child support, the parties were to try and resolve any issues directly, failing which the parties were to mediate and arbitrate with a lawyer (Dani Frodis). Despite these terms, neither party followed the dispute resolution mechanisms.

[29] Again, the parties had resolved all of the outstanding issues arising out of the breakdown of their marriage by way of negotiated agreements, without resort to litigation, with the exception only of how they would share the children’s holiday time. To resolve how they would share it, the parties attended three separate mediation sessions in 2017, with Christine Kim. They reached a Holiday Agreement, which was signed on December 1, 2017. It is to be read in conjunction with the parenting agreement.[^7]

[30] After the separation, Bogdan had moved to a rental condominium at Woodbine and Danforth, which was about 400m from the matrimonial home. This enabled both parents to remain involved in the children’s lives and participate in the pick-ups and drop-offs of the children at school and their activities. Again, Agueda does not drive and does not have a driver’s licence.

[31] At some point after the separation, Bogdan became involved with his current partner, Larissa Ruderman (“Larissa”). They moved in together in December 2017. In January 2018. Bogdan moved out of the Beaches area; he moved into a home registered in Larissa’s name, at 305 Belsize Avenue, in the Bayview and Davisville area (“305 Belsize”). Bogdan and Larissa have since had a child, L. who was born on […], 2019 (at present 1 ¾ years of age). During the course of Larissa’s testimony at trial, she advised the court that she was pregnant and is expecting another baby in the Fall of 2021. Bogdan did not advise the Court about the new baby during his testimony. Agueda learned of this information while Larisa was testifying.

Relevant Litigation History

[32] On June 15, 2018, six months after Bogdan and Larissa began to live together, he commenced this case, seeking, among other things, sole custody, with primary residence of the children; and an order that Agueda pay child support to him in accordance with the Child Support Guidelines. In June 2018, the parties were in Stage 5 of their parenting plan; G. was residing equally with the parties and S. was residing primarily with Agueda and having 4-5 overnights with Bogdan out of a 14-day schedule.

[33] On July 16, 2018, Agueda filed an Answer and Claim. An Amended Answer was filed on February 1, 2021.

[34] Some important orders made by the Court during the course of this case are as follows:

a. On November 30, 2018, Shore, J. ordered Bogdan’s motion to determine the children’s school placement for the 2018/2019 academic year to proceed by way of a long motion on April 11, 2019; Agueda’s motion for child support to proceed on February 7, 2019; Bogdan was permitted to take G. and S. out of school/daycare to attend pre-admission processes, such as open houses and/or admission interviews for up to four schools; and either party could register the children at a school of his/her choice in order to secure a spot pending the return of the long motion.[^8]This motion was brought because Agueda would not agree to removing G. from school during the day to attend open houses or admission events for private schools;

b. On April 17, 2019, Gilmore, J. made an order that G. and S. were to attend the Rosedale Day School (“RDS”) for the 2019/2020 academic year; Bogdan was to pay the tuition for the 2019/2020 and 2020/2021 years. (There was to be a review of the reasonableness of the cost of the children continuing to attend RDS in January 2021). An order was made that the Office of the Children’s Lawyer (“OCL”) “provide such services as the OCL deem[ed] appropriate. If the OCL determined to provide an investigation and report under s.112 of the Courts of Justice Act, then the OCL was to have the right to conduct an independent investigation into all the circumstances relating to the best interests of the child[ren]”. Further, S. was to remain at Purple Tree Daycare (“Purple Tree”) until the 2019 academic year began. Agueda was not to remove S. from Purple Tree during regular school hours. This motion was necessary both because the parties did not agree on the school placement for the children for the 2019/2020 academic year and Bogdan was unhappy that Agueda was removing S. from Purple Tree during her scheduled parenting time;

c. On May 2, 2019, Gilmore, J. made an order that Bogdan pay Agueda arrears of child support and s.7 expenses in the sum of $2,502.29; Bogdan’s income for child support purposes was to be imputed at $160,752 for 2017; and the parties were to share s.7 expenses for daycare and karate, with Bogdan paying 63% and Agueda paying 37%.;

d. On June 4, 2019, Gilmore, J. ordered Agueda to pay costs to Bogdan in the sum of $20,000, inclusive of HST and disbursements, for the school and support motions. Gilmore, J. deducted Bogdan’s retroactive monthly child support arising from the order referred to in c. above, and s.7 expenses from the costs orders and ordered that Agueda was free to elect to offset the balance of the costs she owed against the child support and s.7 expenses Bogdan was to pay her on a monthly basis; and

e. On December 20, 2019, Paisley, J. made an order, on consent, among other things that: a) G. attend Maurice Cody Junior Public School as of January 6, 2019, or as soon as an IEP was in place, whichever occurred first; b) G. attend Maurice Cody for the remainder of the 2019/2020 academic year, with the parties to review G.’s school placement for the 2020/2021 academic year on June 1, 2020; c) if G. was diagnosed with ADHD by Dr. Marcovitch on December 5, 2019, and she recommended medication to treat G.’s ADHD, the parties were to follow the doctor’s recommendations; and d) G. was to attend for individual therapy with a therapist at the Willow Centre, with Agueda to select three candidates by December 6, 2019 and Bogdan to then select one of the three candidates to be G.’s therapist, by December 13, 2019. This motion was brought after G. had been asked to leave the RDS six days after the school year began in September 2019 (He was in Grade 1).

[35] The parties had a disclosure meeting with the OCL on October 21, 2019. On November 12, 2019, the OCL released their final report (“OCL Report”), which was prepared by the clinical investigator, Eva Casino.

[36] On November 26, 2019, the OCL provided an Addendum to its report, as a result of having received further information from a collateral, the Toronto Police Services, on November 21, 2019.

[37] On December 5, 2019, Dr. Marcovitch completed her psychoeducational assessment report regarding G.

[38] On December 12, 2019, Agueda filed a Dispute to the OCL’s Report.

[39] On January 6, 2020, the OCL responded to Agueda’s Dispute. In the report, the OCL took the position that there were no factual or omissions errors in the Report or additional information that Agueda had put forward in her Dispute, which would cause the OCL to change their recommendations.

[40] On February 24, 2020, Paisley, J. presided over a Trial Management Conference (“TMC), during which he ordered the Questioning of Bogdan to take place on April 24, 2020; Agueda to bring her motion to question the OCL’s clinician; and the parties to complete the Trial Scheduling Endorsement Form.

[41] On April 21, 2020, Paisley, J. ordered, on consent, that both parties be permitted to question Eva Casino for a total of two full days. Such questioning took place.

[42] On February 12, 2021, Agueda served a Notice of Change in Representation, dated February 1, 2021, indicating that Jaret Moldaver was no longer her counsel. She appeared In Person at trial, although Mr. Moldaver acted as her agent and cross-examined both Bogdan and Ms. Casino on her behalf.

Witnesses Called at Trial

[43] In addition to providing his own testimony, Bogdan called the following witnesses:

a. Larissa Ruderman (his girlfriend/partner);

b. Detective Laura McFatridge (the Toronto Police Services Officer who had investigated and decided to charge Agueda with assaults on S. in January 2019);

c. Eva Casino (the OCL clinician who conducted the OCL’s s.112 investigation and reported to the court);

d. Danielle Maingot (a Child and Youth Worker who works in G.’s classroom);

e. Debra Levin (the Director of Purple Tree Daycare, which S. attended from the end of January 2020 to the summer of 2020); and

f. Dr. Howard Waiser (a psychologist who critiqued the assessment of the report of Dr. Robert Saunders, a psychologist who testified about Agueda’s mental health).

[44] In addition to providing her own testimony, Agueda called the following witnesses:

a. Dr. Sharon Marcovitch (a psychologist who completed a psycho-educational assessment of G.);

b. Leslie Fraser (the Children’s Aid worker assigned to this matter at the time that the assault charges were laid and was involved with the family from February 2019 to May 2019);

c. Dr. Douglas Saunders (again, the psychologist who assessed Agueda’s mental health);

d. Lisa Stanley (S.’s Junior Kindergarten Teacher at RDS); and

e. Kimberley Tamar (a daycare supervisor at Childspace daycare where both G. and S. attended).

The Positions of the Parties

[45] The following are the parties’ respective positions on the major issues to be decided:

a. Bogdan seeks:

i. a parenting-time schedule order that follows the OCL’s recommendations, such that the children reside with him primarily and spend time with Agueda (5 days out of 14, with 2 overnights out of 14 ) on a two-week rotation as follows:

1. During Week One:

a. Tuesdays, after school to 7:00 p.m., with Agueda picking up the children at school and Bogdan picking up the children at 7:00 p.m.; and

b. Weekends, from Friday, after school to Sunday, at 7:30 p.m., with the pick up and drop off to be done by Agueda.

2. During Week Two,

a. Tuesdays and Thursdays, for three-hour periods, with Agueda picking up the children from school to 7:00 p.m., with Bogdan picking up the children.

3. Agueda can choose an activity on any of the weeknights the children are scheduled to be with her, and in that event, the return time on weeknights can be extended to 7:30 p.m.

b. an order granting him sole decision-making authority in relation to all decisions that impact the children, with Agueda being offered the opportunity to have input into such decisions;

c. An order that he be the parent to take G. and S. to regular medical and dental appointments and to advise Agueda if something important emerges;

d. A Holiday Schedule, as follows:

i. Summer: Alternating weeks, with up to 2 weeks for a special vacation (such as a visit to Spain). Pickup by the parent who has the week on the Sunday evening at 7:00 PM.

ii. Parents are to request dates as far in advance as possible and no later than one month before. If there is an overlap in desired dates, Agueda will have the first choice and even years and Bogdan in odd years.

iii. Christmas Holiday School Break: To be divided equally, with Agueda to have the first half of the holidays on which Christmas falls.

iv. March Break: If the break is two weeks (as with private school), then each parent is to have a week. If there is only one week, then parents are to alternate weeks with Agueda to have it in even years and Bogdan, in odd years.

v. Birthdays: To be celebrated on the next day you have the children.

vi. Mother’s Day: If it doesn’t fall on Agueda’s weekend, then Agueda to have the additional day, from 9 AM to 7 PM.

vii. Father’s Day: If it doesn’t fall on Bogdan’s weekend, then Bogdan to have the additional day, with drop-off by Agueda at 9AM on Sunday and children to remain him.

e. An order setting out communication and travel rules as per the OCL’s recommendations and guidelines; and

f. Child support to be paid by Agueda to him, based on the Child Support Guidelines, and an order that the parties proportionately share the children’s s.7 expenses, based on the formula for his income that Gilmore, J., set out in her Endorsement, dated May 2, 2019.

[46] Agueda seeks:

a. a parenting-time schedule order where the children continue to reside with the parties on an equal time-sharing basis, but changing the current 2-2-5-5 schedule to a week-about one, also known as a week-on/week-off schedule;

b. an order for joint decision-making authority with Bogdan; in the alternative, an order dividing the decision-making authority between her and Bogdan, such that Bogdan has final decision-making authority over educational decisions and she has final decision-making authority over medical decisions, also known as a parallel- parenting decision-making regime; or, in the further alternative, sole decision-making authority in her regarding the major decisions affecting the children;

c. The same holiday schedule that Bogdan requests, except that both parents be permitted to spend time with the children on their birthdays and the children be permitted to spend time with each parent on a parent’s birthday; and

d. An order that Bogdan pay her child support for the children, be based on the parenting schedule ordered, in accordance with the Child Support Guidelines, and using the formula for calculating Bogdan’s income that is set out in the Endorsement of Gilmore, J., dated May 2, 2019.

[47] Again, the parenting schedule sought by Bogdan (and which was recommended by the OCL) is a significant departure from the equal time-sharing schedule that has been in place over the past 2 ¼ years. Again, after March 2016, when Bogdan moved out of the matrimonial home, the children initially resided primarily with Agueda. In the 3 years that followed, Bogdan’s time with the children increased, such that as of July 2019, the parties were sharing the time with their children equally. If Bogdan is successful in obtaining the parenting schedule he seeks, G. and S. will go from spending 7 overnights with their mother out of a 14-day period, to 2 overnights over a 14-day period, which is 4 or 5 overnights a month. As of the time of the trial, the children had never spent less than half their time in their mother’s care.

Relevant Evidence

[48] During the marriage, the parties both worked full-time in the computer software industry. G. and S. were born two years apart.

[49] Neither party testified that S. has any health, educational or other issues of concern. She is described by both parents as happy, well-adjusted, verbally articulate and social.

[50] Both parents describe G. as having been very active as an infant. There were no noticeable issues about G. until the summer of 2016. At that point in time, G. was attending Childspace Daycare (“Childspace”) and, as Kimberley Tamar (the Director of Childspace) testified, the parties were contacted and asked to meet with the daycare workers, to discuss some of G.’s concerning behaviours, such as his being aggressive with other students and hitting. The Child Development Institute (“CDI”), is the agency that the City of Toronto used to deal with Childspace’s concerns. Ms. Tamar contacted CDI, with the parents’ consent, and CDI sent a consultant, Helen Renner, to the daycare. Ms. Renner observed G. and gave the daycare staff suggestions in terms of how to redirect and manage G.’s behaviours. CDI (Ms. Renner) also met with the parents.

[51] The parties had agreed to send G. to the local Catholic school in their catchment area, St. Brigid’s, for kindergarten. St. Brigid’s is located across the street from the matrimonial home. G. started Junior Kindergarten at St. Brigid’s in September 2017. They both testified that they had jointly decided not to have CDI involved with G.’s kindergarten class, to give G. an opportunity to have a “fresh start” at a new school.

The 2017-2018 Academic Year

[52] During the 2017-2018 academic year (when G. was in Junior Kindergarten at St. Brigid’s and S. began to attend Childspace but later moved to Woodbine Children’s Centre (“the Woodbine daycare”), the parties began having difficulties concerning their sharing of the children’s holidays, including school holidays and the summer. It required 3 mediation sessions to sort these issues out. As previously mentioned, a Holiday Agreement was ultimately signed (by one of the parties on November 24, 2017, and the second party on December 1, 2017).

[53] On December 20, 2017, Bogdan and Larissa Ruderman (“Larissa”) moved in together. During Larissa’s testimony, she confirmed that she and Bogdan chose to move to a neighbourhood, which is close to Larissa’s siblings and parents. Larissa bought 305 Belsize. Again, it is in the Bayview Avenue and Davisville Avenue neighbourhood. 305 Belsize Avenue is just under 8 km from the matrimonial home but for the reasons set out in the next paragraph, the move was a consequential one for Agueda and the children.

[54] Given that Agueda neither drives nor has a driver’s licence, this move requires Agueda to commute on public transit with the children whenever she has to pick them up at Bogdan’s house. The commute from the matrimonial home to 305 Belsize on public transit takes about 45 minutes to 1 hour, depending on the time of day.

[55] In January 2018, shortly after his move to 305 Belsize, during one of the holiday mediation sessions and without prior notice, Bogdan advised Christine Kim (the mediator) and Agueda that he wanted to move G. from his school, St. Brigid’s to Maurice Cody Public School, the local neighbourhood school where Bogdan now lived. This came as a complete shock to Agueda. G. was already half-way through his Junior Kindergarten year at St. Brigid’s. The parties’ Statement of Agreed Facts, filed at trial, confirms that Bogdan had not communicated this with Agueda directly before the mediation session. This issue was the first of several very serious issues, which arose between the parties regarding the children. Agueda did not agree with a school change for G. G. remained at St. Brigid’s for the balance of his Junior Kindergarten year.

[56] At the end of G.’s Junior Kindergarten year (spring of 2018), the parties engaged Dr. Sharon Marcovitch to complete a psycho-educational assessment of G., in order for them to better understand G.’s cognitive, social-emotional, attention and behavioural profile. This assessment was initiated by Agueda. When the assessment report was completed in June 2018, Dr. Marcovitch reported that she found G. to be average in most areas, but in the high-average range in numerical operations and very superior range (99th percentile) in math problem-solving. Dr. Marcovitch also found that G. was borderline ADHD, which she indicated could account for his behavioural issues. Specifically, in her written report, Dr. Marcovitch noted that G.’s behavioural issues might be exemplary of poor impulse control and self-regulation, both of which are symptoms of ADHD.

[57] During his testimony, Bogdan indicated that he is seeking a parenting time schedule where the children reside with him primarily, along with sole decision-making authority in relation to the major decisions that impact the children, so there is no lag time when important decisions need to be made and to avoid conflict. Bogdan believes that when the children were in his primary care after the January 2019 incident, they were much better behaved, were more regulated emotionally, doing better in school and overall, more settled. He concludes that this improvement arises from his parenting style, an earlier bedtime, and a more regimented routine which he can offer. He also testified that overnight time is not “quality” time, but having one stable home where the children wake up and go to sleep is very important for the children, particularly G. Bogdan believes he is the more rational parent who tries to de-escalate conflict and who openly communicates with Agueda, whereas according to Bogdan, Agueda does not do so with him.

[58] During her testimony, Agueda indicated that she is seeking a parenting time order that is in line with what the parties agreed to in their parenting agreement: equal time-sharing (albeit a change from 2-2-5-5 to a week on/week off) and joint decision-making regime, with an arbitration clause if the parties cannot agree. Alternatively, Agueda seeks a parallel parenting decision-making regime where specific decisions are the responsibility of either her or Bogdan. Agueda believes that further conflict between her and Bogdan is detrimental for both G. and S. Bogdan does not accept responsibility for any of the parental conflict and instead blames Agueda. Yet, Bogdan made decisions unilaterally for the children; failed to communicate or consult with Agueda; and brought motions before the Court to push his own agenda. Bogdan seeks a parenting schedule for the children that is draconian, according to Agueda, and is such a dramatic change from what they have always known, making him the primary parent and Agueda spending only 2 overnights with them out of 14. Bogdan relies on the January 2019 incident, which led to charges of assault of Agueda against S., to try and discredit Agueda as a parent. The police were told a story by a passerby witness, a witness Bogdan did not call on to testify at this trial. These charges were withdrawn by the police. Yet, Ms. Casino placed a lot of weight on these charges [the charges were withdrawn after the assessment] and other things that brings her process and, therefore, her recommendations, into question.

Dr. Marcovitch’s 1^st Psycho-educational Assessment of G. – June 2018:

[59] During her testimony at the trial, Dr. Marcovitch explained that it was her opinion that G.’s profile needed to be understood by his teachers, so that they would understand that he is gifted but has trouble with attention. According to Dr. Marcovitch, an Individual Education Plan (“IEP”) was needed for G., to be certain that the school understood his entire profile, including his oppositionality and tendency to be impulsive. She explained that G. needed help both with learning and his behaviour.

[60] In her June 2018 report[^9], Dr. Marcovitch recommended, among other things, as follows:

a. G. work with a teacher with experience in working with gifted children;

b. Her report be shared with G.’s school;

c. G. would benefit from an Educational Assistant or Child and Youth Worker in the classroom;

d. Her report be shared with G.’s paediatrician so that G.’s impulse control would be monitored and a possible discussion be held with the paediatrician regarding pharmacological intervention;

e. G. be exposed to organizations and activities for gifted children;

f. G. have preferential seating and challenging subject-matter academic activities outside of class, such as math groups; and

g. A communication journal, behaviour chart, structure, consistency, and the setting of boundaries and limits be put into place, to manage G.’s behaviour.

[61] In accordance with Dr. Marcovitch’s recommendations, Bogdan enrolled G. in a weekly, three-hour program at the ROM and Agueda enrolled G. at the Russian School of Mathematics, which he attended twice a week, to provide G. with both challenging math and extra-curricular environments. Further, the parties signed G. up for a therapy program at SickKids.

The 2018-2019 Academic Year

[62] In September 2018, G. began Senior Kindergarten at St. Brigid’s. The parties gave a copy of Dr. Marcovitch’s assessment report to St. Brigid’s in September 2018.

Kimberley Blanchet – Then Vice Principal at St. Brigid’s (at present, Principal)

[63] Kimberley Blanchet, the Vice Principal at St. Brigid’s when G. attended there, testified at trial. She testified that, as is the policy with the Toronto Catholic District School Board (“TCDSB”), when parents bring a psycho-educational assessment, which has been conducted of a student, to the school, St. Brigid’s asks the parents for permission to have the school psychologist review the report, after which a file note is produced, identifying needs and recommendations for the student. After this, an IEP is crafted and the parents are called to an Identification, Review and Placement Committee (“IRPC”) meeting.

[64] On October 29, 2018, a case conference was held at St. Brigid’s, with the parents and administration present, to evaluate G.’s needs and develop an IEP for him. Bogdan attended the meeting with an educational consultant, Cori Stern, without first consulting with or informing Agueda about his intention to do so. At the meeting, Bogdan introduced the consultant as “Cori” to Agueda, failing to mention her role and qualifications or that she was not part of the St. Brigid’s team. At the meeting, when Agueda asked the principal who “Cori” was, she learned that Bogdan had brought her. Agueda advised the school and Bogdan that she was not agreeable to “Cori” being part of the meeting or receiving confidential information about G. As a result, Ms. Stern did not join the meeting.

[65] Bogdan apparently arranged a separate meeting with the school, which he and Ms. Stern attended without Agueda. The details of what was discussed at that meeting did not form part of the evidence at trial.

[66] An IEP was put into place for G. at the end of November 2018.[^10] While the IEP recognized some of G.’s strengths and weaknesses, it did not refer to his giftedness, as reflected in Dr. Marcovitch’s report.[^11] [To be clear, children cannot be identified as exceptional and/or be eligible for placement in a gifted class until Grade 5 in the TCDSB.]

[67] Bogdan scheduled his own meetings with Dr. Marcovitch in September or October of 2019, to talk with her about school placement for G. At this point in time, according to Agueda, Bogdan also notified St. Brigid’s that Bogdan was no longer Catholic. Even though the parties did not have the IRPC meeting with St. Brigid’s until October 2018, Bogdan had already been looking into other schools for G. on his own. Agueda’s position is that this lack of communication on Bogdan’s part was typical, demonstrating to her that he does not communicate openly with her and was not truly prepared to give St. Brigid’s an opportunity to try and meet G.’s need through the implementation of an IEP. Agueda testified that she was not prepared to give up on St. Brigid’s at this point in the year. She felt it was important to allow the school to attempt to implement the IEP and put supports in place for G.

[68] Regrettably, in Senior Kindergarten, G.’s aggressive and oppositional behaviours escalated. He was sent home 12 times on account of bad behaviour; He was not permitted to attend a class trip due to his behaviour; and was suspended.[^12] On November 13, 2018, G. had destroyed his classroom, throwing chairs and toys all over the room. He was suspended for one day. Bogdan appealed the suspension to ensure that G’.s Ontario School Record did not contain suspensions on it. [It is noteworthy that when Ms. Blanchett (who was the Vice-Principal of St. Brigid’s when G. attended it), testified, she confirmed that it is no longer permissible for the TCDSB to suspend students below Grade 3.]

[69] Thus, when Bogdan commenced this Application in August 2018, seeking sole custody and primary residence of the children, G. was in Senior Kindergarten at St. Brigid’s and there was significant conflict between the parents. Much of the conflict arose because the parties did not agree on how to approach G.’s education going forward or how to best manage G.’s troubling behaviours. Bogdan had unilaterally decided that St. Brigid’s was not meeting G.s’ needs and wanted to move him to a private school. It is noteworthy, that the private school(s) he proposed were located significantly closer to 305 Belsize than they were to the matrimonial home. Agueda did not agree with the move. According to Agueda, it was her understanding that more resources would be available for G. in the public school system. Agueda also did not believe that they could afford private school. Bogdan’s position was that G.’s difficulties were emanating from St. Brigid’s not providing a sufficiently enriched program for G. Agueda saw G.’s behaviours as the problem, as opposed to a deficiency in the school’s ability to assist G. In October 2018, Bogdan brought a motion, seeking an order allowing the children to participate in various admission/open house processes at private schools because Agueda would not agree to them doing so.

[70] On November 30, 2018, Shore, J. made the order referred to in paragraph [34]a. above, allowing Bogdan to remove the children from St. Brigid’s during the school day, to attend up to 4 sessions at various private schools. Shore, J. noted that there was significant conflict between the parties; G. was in crisis; and something had to change from the current situation.

[71] Bogdan testified that in December 2018, he took both children to visit both the York School and Rosedale Day School (“RDS”). Agueda also attended the schools.

[72] In the meantime, in January 2019, (half-way through G.’s Senior Kindergarten year and when S. was at the Woodbine daycare), an incident took place, which dramatically changed the landscape of the parenting issues in this case.

The January 16, 2019 Incident – Agueda charged with Assaults on S.

[73] In January 2019, Agueda would typically walk with G. (then 5 ½ years old) and S. (then 3 ½ years old) to school, dropping G. off first and then dropping S. off at daycare. On January 16, 2019, an individual contacted 911, having apparently observed Agueda struggling with S. According to Children’s Aid Society (“CAS”) reports, the witness [“reported that Agueda was having challenges with sending S. to school and observed some “raucous”]. The witness reported that she saw that the child did not want to go and at one point saw Agueda carrying S. by her feet, head down. The witness had told a police officer that S. had been pushed to the ground, which is what the witness said had caused her to call 911 out of concern. The witness also observed Agueda drop S. off at the daycare centre.

[74] As a result of the 911 call, Emergency Medical Services (“EMS”) officers were dispatched to the Woodbine daycare. The EMS attendant described S. as having an “abrasion on the right cheek at the right eye,” along with redness and mild swelling. Given that S. may have been pushed to the ground, a decision was made to take S. to Sick Kids for a precautionary assessment, to rule out any internal injuries.

[75] The CAS assigned a worker to the case; the daycare supervisor accompanied S. to the hospital; Bogdan was called; and Agueda was asked to meet them at the hospital.

[76] The initial CAS worker assigned to the case was Theodora Turner. The file was subsequently transferred to Leslie Fraser, a family service worker at CAS.

Detective Laura McFatridge - Police Officer Involved in the laying of the Assault Charges

[77] Police Detective Laura McFatridge was assigned to the case. Detective McFatridge testified that she works at the Child and Youth Advocacy Centre, a multi-disciplinary team dedicated to the prevention of child abuse, the mandate of which is to investigate abuse of children under 16 years of age by a care giver.

[78] Detective McFatridge testified as follows about her involvement in the January 16, 2019 incident:

a. She met S., G., Bogdan and Larissa at Sick Kids on January 16, 2019. S. was waiting to be seen by a doctor;

b. She conducted a video interview with Bogdan about the history of parenting, the custody agreement, how the children seemed and any concerns he had. She found Bogdan to be pleasant, forthcoming and a bit nervous. She did not interview Agueda. Agueda had come to the hospital but had been asked to go home during the investigation;

c. She then interviewed S., who told her that she and G. had been at home and had then been walking to G.’s school and to her daycare. S. was upset about not getting the treat she wanted. She said that she had been hit in the face by her mother and been dragged and held upside down by Agueda. S. said that she had been slapped, dragged and been hanging by her feet. S. used the word “Casque”. Bogdan told the Officer that “Casque” meant “slap” in Spanish;

d. Her overall impression of S. was that she was bright and articulate for a 3 year-old. She felt that S. was able to communicate the context in and around why she had been slapped, but not for why she had been dragged or where that had happened;

e. She had also spoken to the individual who had called 911. The witness was a TTC driver who said that she had seen a child being held upside down and being hit. The witness pulled over and called the police. The witness said that she was very upset by what she had seen – she was “almost traumatized” (the witness’s words). She said she saw the mother smack the child on the back of her head and witnessed the child being dragged on her knees and being picked up and thrown on the ground very hard. She then saw the adult walk away from the child;

f. After her investigation was complete, she decided to lay two assault charges against Agueda - one for the alleged slap and the second for allegedly picking S. up and throwing her on the ground. She arrested Agueda on January 21, 2019.[^13]

g. During the course of her cross-examination, Detective McFatridge testified that she was aware that when the witness called 911, she was using profanities and was highly emotional, saying “If you don’t get someone here quick, I am going to kill her [Agueda]”. She also said, “My first instinct is to kill the bitch”. Detective McFatridge acknowledged that the witness was angry with the mother. Nevertheless, the Detective found the witness to be credible.

h. Detective McFatridge acknowledged during her cross-examination that she was not aware that an independent interview of the witness had occurred after Agueda’s arrest and the witness had a) not mentioned the slap or strikes she earlier said she had witnessed; b) said she heard a little child crying and then looked around; c) said people walk around on the street assaulting their kids all the time and that is why she turned around to investigate; d) said she saw a kid’s face with its head inches from the concrete from the side mirror of her bus ; e) told 911 that she drove up and was right beside the child and said, “You’re ok sweetie, I am calling the police.”; and said that the mother said, “I don’t give a fucking shit.”; and f) admitted that the mother never said “I don’t fucking care.”; and

i. She was not aware that the Crown had withdrawn the assault charges [on February 5, 2021].[^14]

[79] As a result of the criminal charges, Agueda was initially not permitted to have any contact with the children in person. Daily telephone calls were permitted to take place on speaker phone, to be supervised by Bogdan. Agueda’s parenting time with the children was to be at the discretion of CAS.

[80] Again, at the time of this incident, G. was attending St. Brigid’s and S. was attending the Woodbine daycare. The parties were in Stage 5 of the parenting schedule agreed to in March 2016. Stage 5 ran from July 30, 2018 to July 26, 2019. In Stage Five, G. was residing with both parents equally and S. (who was only 3 ½ years old) was residing with Agueda primarily and spending parenting time with Bogdan on alternate weekends, from after school on Fridays until Sunday evenings, at 7:00 p.m.; alternate Wednesdays, from after daycare to a Friday morning drop-off at daycare; and alternate Mondays, from after daycare to a Tuesday morning drop-off at daycare. Stage Five translates into S. spending 5 overnights with Bogdan out a 14-day schedule and 9 overnights in her mother’s care. [Stage Six was scheduled to commence on July 26, 2019, at which point both G. and S. would be residing with the parties pursuant to an equal time-sharing schedule].

[81] Agueda testified before this Court that, on January 16, 2019, S. was having a temper tantrum and did not want to go to daycare. She was trying to pick S. up because S. was crying and had thrown onto the ground in the snow. S. was wearing snow pants. Agueda testified that she did not pick S. up by her feet but was holding her at S.’s legs.

[82] Agueda expressed that she believed that the witness was someone Bogdan had arranged to make a complaint about her. She did not adduce any evidence which supported that belief.

[83] Agueda maintains that she did not assault S. However, Agueda testified that she understood that S. experienced Agueda’s discipline and anger toward her as an assault. The CAS records indicate that the agency was of the opinion that Agueda had taken responsibility for what happened, as follows:

a. On January 22, 2019, in a supervisory consultation with Irving Kideckel, Ms. Tuner (the initial CAS worker assigned to the family), advised him that Agueda was taking responsibility for the incident, in the sense that Agueda was “saying that she is unaware of how her daughter experiences her”; she is open to parenting support; and agrees to not use any type of physical discipline;[^15]

b. On January 30, 2019, Ms. Turner, in a supervisory consultation, noted that Agueda had demonstrated that she wanted to make changes;

c. On February 4, 2019, a Supervisor (“Pat”), noted that Agueda “is remorseful for her actions, injuries were minor, and is prepared to change her parenting strategies [sic] therefore [sic] her name will not be sent to the child abuse register at this time. Mom is prepared to work with CAST”.[^16]

d. On February 7, 2019, in a supervisory consultation, Ms. Turner noted that Agueda had taken responsibility for the impact that her actions had on S. She noted that Agueda said that she heard the way her actions were experienced by S. and wants to make changes; she had already identified strategies and techniques she would use to more effectively manage tantrums, she had been searching for a parenting course and had begun the “Nobody’s Perfect” parenting course;[^17] and

e. On March 11, 2019, Leslie Fraser (the CAS worker who took over from Ms. Turner), noted that Agueda had worked diligently to locate parenting supports for herself and had recently started to attend a Nobody’s Perfect parenting program at a local community centre. She noted that Agueda denied that she hit S. but acknowledged that she had been trying to physically move S. during S.’s temper tantrum. According to Ms. Fraser, “She says that she did not hold her upside down but was trying to move her as it was very cold outside and Agueda did not feel that it was safe for S. to remain outside on the ground. Agueda believes that the mark on S. occurred during their physical interaction and it was not the result of being struck”.

Bogdan’s Actions after Agueda was charged with Assault

[84] The result of the charges laid against S. was that the children were in Bogdan’s full-time care. Bogdan testified that for a few days after the January 16^th, 2019, incident, he tried to take S. to the Woodbine daycare. He testified that S. had tantrums, resisting attending the daycare. During Bogdan’s examination-in-chief at trial, he testified that S. started having major tantrums 2 to 3 times a day after the January 16^th incident. He specifically stated that he “would have an issue when he took S. to daycare in that S. would have a major, poor reaction and tantrum in the car and there was a different quality to it. “It was a higher pitch than normal” and he also said that he had “tried a number of different ways,” but when he would get near the daycare, S. would have a very negative reaction. According to Bogdan, as a result of S.’s resistance, he decided to register S. in a new day care, which is the daycare referred to as Purple Tree earlier in these Reasons. Purple Tree is located near 305 Belsize.

[85] Bogdan testified that he had made the decision to change S.’s daycare with Larissa. He did not tell Agueda or communicate with Agueda in any manner about a proposed change in S.’s daycare despite the fact that the parties had joint custody. There was nothing in Agueda’s bail conditions that prevented Bogdan from communicating or sharing information with her. The only restrictive bail condition at that time was that Agueda’s visitation with the children was at the discretion of the CAS.

[86] In terms of Bogdan’s unilateral move of S.’s daycare from the Woodbine daycare to Purple Tree within days of the January 16th incident. Bogdan gave the following evidence during cross-examination:

a. He agreed that he had breached the terms of the parties’ parenting plan in not consulting with Agueda before changing S.’s daycare, but said that he felt justified in changing it;

b. Moving S.’s daycare was a significant decision and a “call” that “he had to make” and thought was minimal to Agueda.

c. At the time that he changed S.’s daycare, he had understood that S. would be living with him primarily for at least 6 months [In fact, she lived primarily with him for 6 weeks only];

d. He considered the decision to move S.’s daycare to be a major decision and understood that it fell under the category of a decision to be made jointly by the parties under the parenting agreement;

e. He believed he had the right to overrule the agreement and it was “ok” not to abide by the joint decision-making term of the agreement when he subjectively thought that something was not in the best interests of the children;

f. He had decided on his own that the daycare change would be the right move;

g. No authority figure, such as a judge, had given him permission to move S.’s daycare;

h. No mental health professional had given him advice to move S.’s daycare;

i. CAS was involved with the family at the time but he did not approach the CAS worker to discuss a change in S.’s daycare;

j. There was nothing preventing him from calling, texting or emailing Agueda or having his lawyer email her about such a proposed move, he could have said something to Agueda;

k. He did not contact the Woodbine daycare, to talk to them about removing S. from their daycare or switching her daycare; and

l. He discussed moving S.’s daycare from the Woodbine daycare to Purple Tree with Larissa but not with Agueda.

Debra Levin – Director of Purple Tree Daycare

[87] Debra Levin, the supervisor of Purple Tree, testified at trial. She confirmed that she met Bogdan and S. on January 22, 2019 (6 days after the incident involving Agueda and S.); Bogdan registered S. at Purple Tree on January 23, 2019; and, in the application form that Bogdan had completed, to enrol S. at Purple Tree, he had removed Agueda’s last name (a part of S.’s name) from S.’s name in the application and also listed Larissa as “Parent/Guardian #2” and himself as her “Parent/Guardian #1”.[^18] [To be clear, S.’s full name is S. Chmielewsky Gallego]. Agueda’s name is not on the Purple Tree Application form.

[88] When one considers the evidence regarding the change in S.’s daycare, and most particularly, the evidence that Bogdan gave to explain why he made the change, Bogdan’s evidence was not at all credible. There were three days, at most, on which Bogdan could have tried to take S. to the Woodbine daycare and concluded that he should change S.’s daycare because of her purported resistance to it after the incident involving S. and Agueda (namely, Thursday, January 17th; Friday, January 18th, and Monday, January 21st, 2019) given that he took S. to “visit” Purple Tree on January 22, 2021. During Bogdan’s cross-examination, he admitted that he did not try to take S. to the daycare on Thursday, January 17th, or on Friday, January 18th, 2019. Bogdan further testified that he could not recall whether he tried to take S. to the Woodbine daycare on Monday, January 21^st, 2019. He said it was a “bit of a blur” but he believed he made some attempts the following week to take S. to the Woodbine daycare.

[89] Further, on January 22^nd, 2019, less than a week after the incident, Bogdan served a notice of motion on Agueda, in which he also sought sole custody and primary residence of G. and S. It was from the motion material that Agueda learned that Bogdan had unilaterally removed S. from her daycare and registered her in Purple Tree. Ultimately, the parties lost the subsidy for the Woodbine daycare because S. had only been permitted to miss 35 days, and as a result of Bogdan’s unilateral decision she had missed more than 35 days.

[90] Over the six weeks that followed the January 16, 2019 incident, Bogdan did not permit any supervised telephone calls to take place. In fact, Agueda’s first supervised visit with the children did not take place until January 25, 2019, 9 days after the incident.

[91] After four supervised, scheduled visits, which Agueda had with the children, the CAS caseworker told the parties to come up with a plan for access so that the children could spend more time with Agueda. The events that transpired in this respect were as follows:

a. On January 28, 2019, in accordance with CAS’s direction, Agueda proposed to Bogdan that she see the children in accordance with the Stage 5 parenting plan, which had been in place prior to January 16, 2019, but without the overnights, and with supervision. She asked Bogdan to respond by the following Monday (February 4, 2019). Bogdan did not respond;

b. On January 31, 2019 and on February 4, 2019, Agueda wrote to Bogdan again, asking him to respond to the access proposal she had made on January 28, 2019. As Agueda had only seen the children on 4 occasions since January 16, 2019, she also asked Ms. Turner for assistance;

c. On February 5, 2019, Bogdan wrote to Agueda, indicating that she was only permitted to see the children twice a week, supervised, as per the advice CAS had given to him. Both Agueda and the CAS responded, advising Bogdan that CAS had not placed any restrictions on how often she could see the children;

d. On February 7, 2019, Bogdan wrote to Agueda advising her that she could see G. and S. on alternate Saturdays or Sundays, from 9:30 a.m. to 7:00 P.M., or on Wednesdays or Thursdays, from 3:00 p.m. to 7:00 p.m. Knowing that Agueda does not drive, he indicated that he could not drive the children to her home, but if he was asked to do so, her parenting time with G. and S. would have to be reduced accordingly;[^19]

e. On February 8, 2019, CAS told Bogdan that they did not believe that two visits a week was sufficient access for the children with Agueda;[^20]

f. On February 17, 2019, Ms. Turner called Bogdan and explained that the then current arrangement of two visits a week was not enough time for G. and S. to be with their mother. Accordingly, CAS advised Bogdan that the children should see Agueda as per the regular schedule, minus the overnights, and with supervision, which is what Agueda had proposed on January 28, 2019. [Again, at this point, the parties were in Stage 5 of the parenting schedule under which S. would have been in Agueda’s care 10 nights out of a 14-day period and G. would have been in Agueda’s care 7 nights out of 14]; and

g. Pursuant to the parenting agreement, the children were permitted to telephone the non-resident parent whenever they wished to do so. As well, until Stage 6 of the parenting plan commenced, the non-resident parent was permitted to call the resident parent, if a parent did not see the children on a particular day, for 5-10 minutes between 7:30 p.m. and 8:00 p.m. Regardless of this agreement, as of January 25, 2019 Agueda had gone about 9 nights without speaking to the children. She tried to reach them by telephone nightly, between 7:30 p.m. and 8:00 p.m., Bogdan did not answer the phone.

[92] Bogdan stopped taking both G. and S. to their extra-curricular activities after the January 16, 2019 incident. Specifically, he neither took S. to her ballet class nor G. to his Russian math class, both activities the children had been regularly attending with Agueda. Agueda testified that she believed that Bogdan refused to take the children to activities in the Beaches neighbourhood, where the parties had lived before the separation and where he had also lived after the separation before moving to 305 Belsize.

[93] On February 28, 2019, CAS communicated that the parties’ parenting terms of Stage 5 could resume in full, but subject to supervision. [Thus, CAS within about six weeks of the incident, supported a return to the schedule according to which the children had been residing with each parent].

[94] By March 1, 2021, Agueda’s mother had come to Toronto from Spain and would be able to supervise Agueda’s parenting time with the children. Bogdan testified that he nevertheless had serious concerns with the overnight access resuming only 6-7 weeks after the incident.

[95] According to Agueda, when her overnight time with the children resumed, she began to pick up S. early from Purple Tree when the children were in her care so that S. could spend time with her mother. Bogdan had only enrolled S. in Purple Tree for 17 hours a week. [Prior to the January 2019 incident S. had been enrolled in full-time daycare]. Further, since Agueda had not consented to the change in S.’s daycare or in how the change of S.’s daycare had been handled by Bogdan (and Larissa apparently), she felt that it was more important for S. to spend time with her and her maternal grandmother, as opposed to attending the new daycare, one to which she had not consented. Ms. Turner was aware that Agueda was picking up S. from Purple Tree after Bogdan dropped her off at Purple Tree at the end of a period of his parenting time with the children. According to Agueda, Ms. Turner at no time suggested to her that it was not in S.’s best interests to spend the time with her mother.

[96] Much was made of the fact that Agueda had picked S. up early from Purple Tree in March and April 2020. Bogdan suggested that this was an indication that Agueda had placed her own needs ahead of S.’s needs and also created chaos for S. in doing so. Agueda testified that she would have preferred to have the access exchanges occur directly at Bogdan’s house but he had refused to do that, which is why, on her scheduled parenting days, she was retrieving S. from Purple Tree. There had been no agreement between the parties that S. would attend Purple Tree. Agueda testified that she felt that it was in S.’s best interests to be with Agueda and her maternal grandmother, as opposed to spending the morning at Purple Tree. The evidence demonstrates that, in total, S. missed daycare about 16 times over a two-month period due to Agueda picking her up early.

[97] Debra Levin (the Supervisor at Purple Tree) testified as follows:

a. S. was happy, talkative, got along well with other children and followed the rules;

b. In her observations of S. interacting with Bogdan, S. looked happy and loved him very much;

c. In her observations of S. interacting with Agueda, S. looked happy and loved her very much;

d. Her interactions with Bogdan were casual and cordial;

e. Agueda was upset the first time that she visited Purple Tree, after she asked to see the Application form that Bogdan had completed when he had enrolled S. Agueda was upset when she saw that her surname “Gallego” had been omitted from S.’s name and Larissa Ruderman had been listed as “Parent 2” (after Bogdan) on the application form;

f. On February 19, 2019, she was notified by Agueda that Larissa was not S.’s mother and had no parental rights with regard to S.;

g. Once she met Agueda and spoke with her, she added Agueda’s information to the Purple Tree records as Parent 2;

h. Her interactions with Agueda did not start off great and she did not have a great impression of her because Agueda did not want S. at Purple Tree. Agueda lived in the Beaches area, which was very far from Purple Tree; and

i. After the one negative interaction with Agueda, they kept things professional and cordial.

[98] In March 2019, St. Brigid’s implemented a School Support Team (“SST”) to work with G. The parents met with the SST on March 26, 2019. Kimberley Blanchett (the Vice-Principal at St. Brigid’s at the time) testified at trial that a Behavioural Support Plan was put into place by the SST because G. was exhibiting strong behavioural indicators in S.K. Ms. Blanchett testified that the SST would have used zones of regulation to try and understand G.’s triggers. Ms. Blanchett also explained that there is a de-escalation room at St. Brigid’s, which is a room with a different sensory load than a regular classroom, and a student would be sent there, never alone but with an educational assistant. At that point in the school year, an Educational Assistant was also working with G. on his behaviours and self-regulation skills. For two months, the SST was made available to G. once a week.

[99] On April 9, 2019, the CAS changed its conditions to require semi-supervision only of Agueda’s time with the children. Agueda was permitted to be alone with the children for a few hours while her mother continued to stay with them.

[100] In April 2019, Bogdan suggested that G. begin to see a therapist from the BOOST clinic at Sick Kids.[^21] BOOST is a child abuse clinic. There were neither counsellors at BOOST who specialized in ADHD and/or oppositional behaviors, nor had G. been involved in the January 16th, 2019 incident. Yet, for a reason not known to Agueda, Bogdan was insisting that G. begin to see a therapist at BOOST. Agueda would not agree to it; however, she did agree to counselling for G. The parties attended an Intake appointment at Sick Kids on May 22, 2019. On May 30, 2019, Sick Kids referred them to Families in Transitions for co-parenting and counselling support. Although, Families in Transition had a waiting list, to both parties’ credit, they attended an Emotion-Focused caregiver workshop in September 2019.

Leslie Fraser –CAS Worker

[101] Leslie Fraser, the CAS worker who took over the family’s case from Ms. Turner, testified as follows at trial:

a. Bogdan had raised concerns that Agueda did not have sufficient supports. However, Ms. Fraser found that Agueda had a lot of support; was well known within the school community; and had many people who could help supervise her access to G. and S. She was not worried that Agueda did not have supports in place;

b. She confirmed that after consultation with her supervisor, on February 28, 2019, she had advised both parties that overnight visits with G. and S. and Agueda could resume in accordance with the regular schedule, which was to be supervised by Agueda’s mother;

c. The police had not placed a condition on Agueda, requiring her to take a parenting course;

d. The January 16, 2019, incident appeared to be out of character. No issues regarding Agueda had arisen from their contact with collaterals or third parties, in terms of Agueda’s parenting. She believed the January 16th incident to be an isolated incident;

e. She had met with Agueda on March 1, 2019, and found that Agueda had taken responsibility for the way in which her anger during the January 16th incident had impacted S. and was willing to work on it. Ms. Fraser acknowledged that Agueda had an account of how S.’s injuries occurred, which was not consistent with the information that the witness had given the police. Notwithstanding this, she believed that Agueda was reaching out; was prepared to work with the CAS; and was prepared to try and address the issues, even if her account was different than what the witness reported seeing;

f. In terms of Agueda taking S. out of Purple Tree, Ms. Fraser viewed this as a situation where there were a lot of variables to consider. S. was 3 years old and not yet school-age. It was up to the parents to decide if S. was to go to school. S. had previously attended daycare near Agueda’s home. Agueda did not drive. S. had not been enrolled at Purple Tree on a full-time basis. There was contention between the parents as to whether S. should be at that particular daycare; the issue was being determined by the court. For all these reasons, she did not take issue with Agueda taking S. out of Purple Tree, to spend time with her or the maternal grandmother;

g. Ms. Fraser had had short chats with G. and S. privately during which she would try and talk to them about their homes. However, she did not ask leading questions about physical discipline issues. The children’s responses showed that they were overwhelmingly healthy and felt safe with both parents;

h. When asked whether there was anything she would change with either of her parents, S. had said that she didn’t have any “ouchies”;

i. Bogdan had told Ms. Fraser that S. had made another disclosure on April 24th, 2019 that Agueda had hit her in the eye. She had attended at Bogdan’s home that evening. S. told her that her mother hit her in the eye when they were “playing Barbies” and said, “She’s [Mom’s] so strong.” S. said that G. was there with her and had seen it. She asked G. about this. G. told her he had not seen it. During the visit (at Bogdan’s home), she learned that Bogdan had taken S. to the emergency department at Sick Kids earlier that day. She could not say for certain whether it was reasonable for Bogdan to have done so, when A. had no injuries or pain, and he knew that she was coming over that night and could have reported the allegation at that time, if necessary. Further, the protocol for reporting an incident through BOOST was not to do so through the emergency department;

j. CAS had allowed the children’s overnight parenting time with Agueda to resume because CAS did not see the sense in G. and S. not having overnights with their mother, if Agueda’s mother would be there to supervise;

k. When asked how CAS managed supervised parenting in this case, she testified that, once she had worked with the family for a period of time; seen Agueda with the children; and talked to collaterals, and no new worries were reported, they moved to a semi-supervised parenting schedule. In May 2019, when Agueda’s mother was going to return to Spain, CAS was of the opinion that supervision was no longer required. The CAS had no active worries about Agueda and had seen a lot of positive parenting;

l. She never found Agueda to need much support. She found Agueda to be “terrific”. Agueda was aware of G.’s issues; never blamed G. for his behaviours; was actively seeking out support for G.; was aware of his issues; and tried to find a placement and other services for G. and services to help herself;

m. She spoke with the collaterals at Purple Tree, the former Vice Principal at St. Brigid’s, and the staff at both Childspace and RDS. They all had positive things to say about the family, especially St. Brigid’s and RDS;

n. In response to whether a call Debra Levin had made from Purple Tree, in which she had reported that S. had hit a child, concerned her, Ms. Fraser testified that S.’s hitting did not cause her any concern because it is typical for children of that age to hit, and G. and S. had told them that they sometimes hit each other. S.’s hitting didn’t mean anything necessarily; and

o. Ms. Fraser did not recall ever having had to intervene during an observation visit involving Agueda. She had talked with Agueda about what had led to the involvement of CAS and she was of the view that Agueda had taken ownership of parts of the incident. There was never anything about which she would have been worried. She saw positive and sensitive interactions between A. and both children. No collaterals had experienced any concerns about Agueda’s care of the children. She said both that there was a lot of warmth between Agueda and the children and there had been appropriate interactions all the way through.

[102] On April 11, 2019, Bogdan brought a motion, seeking an order that G. and S. attend the Rosedale Day School (again, “RDS”), for Grade 1 and JK respectively, for the 2019/2020 academic year. RDS is a private school. He also sought an order requiring Agueda to keep S. at Purple Tree and to stop her removing S. from daycare on her scheduled parenting days. Agueda brought a cross-motion for child support.

[103] In order to respond to Bogdan’s motion, Agueda reached out to Dr. Marcovitch, asking her to confirm the advice that she had previously given to the parents. In support of Bogdan’s position that the children should be moved to either RDS or Maurice Cody Public School (again, well into the school year), he had apparently represented that Dr. Marcovitch had told the parents that a private school would be the “gold standard” for G. At trial, Dr. Marcovitch testified that, contrary to statements that Bogdan may have made in his affidavit, sworn on March 12, 2019, in support of his school placement motion:

a. She would never have said that St. Brigid’s was not meeting G.’s needs, but she would have said that he may need a behavioural classroom;

b. She would never have said that a public school would ask G. to leave; she would have said that the Catholic School Board would have tried hard to work with G. and if the strategies they employed did not work and they did not have the support they needed, they would have worked with the family and other agencies to find another school for G.;

c. She would never have said that behavioural interventions are not the correct resources for G. These are the strategies the school would have used;

d. She would never have said that putting G. in a private school was the “golden scenario” for him. She would not have said that for a child with behavioural problems. She made it very clear that, if behaviours are too difficult for G. to manage, then a private school could ask him to leave; and

e. She would have suggested to the parents that a private school is one alternative, if G.’s behaviours were not excessive. However, a private school is not a place where behavioural issues will be tolerated.

[104] Dr. Marcovitch recalled discussing certain private schools with the parents, including RDS, as having the capacity to provide a more individualized curriculum, but she also testified that she had cautioned the parents that private schools would not work, if G. was behaviourally difficult to deal with because a private school cannot be forced to keep a child who is difficult, whereas public schools have to find a place for a child.

Bogdan’s Motion for G. and S. to attend Private School for the 2019-2020 Academic Year

[105] Agueda was opposed to the children attending RDS because she believed that the school would not be able to support G. and his academic or behavioural needs. Agueda emailed RDS in April and May 2019, asking RDS to advise as to how they would address G.’s various needs. She did not receive a response to her emails. Bogdan was upset about her request for a response to her inquiry; he believed that Agueda was trying to sabotage G.’s success at RDS by raising “red flags” about him before he started to attend the school.

[106] Agueda testified that she was also opposed to the children attending RDS for the following reasons:

a. The parties could not, in her view, afford to pay for private school. While Bogdan had offered to pay for the tuition for two years, without contribution from her, she was concerned that this arrangement was not sustainable and that after two years, the parties would not be able to continue to keep the children at the private school and a further change in schools would become necessary;

b. To address the fact that G. is gifted, G. was being enriched through both the ROM program and the Russian School of Math. These activities kept him challenged, as per Dr. Marcovitch’s recommendations;

c. The public school system has more resources and funding available to address G.’s behavioural and academic needs; and

d. The children were both tied to the community associated with St. Brigid’s, which included their community of friends there. The school is located across the street from the matrimonial home, where the children had lived most of their lives and continued to live when in her care. Agueda was concerned that it would affect the children negatively, if they attended school outside of their known community.

[107] Notwithstanding Agueda’s position, on April 17, 2019, Gilmore, J. made the order referred to in paragraph [34] b. above that the children start attending RDS as of the 2019-2020 academic year, with Bogdan paying the fees for two years. The parties were to review the children’s school and the economic feasibility of this school placement in January 2021. Gilmore, J. also ordered that S. continue to attend Purple Tree and not continue to be removed by Agueda during her parenting time. On consent, the parties agreed that the OCL was to be asked to conduct a s.112 custody and access assessment. Gilmore, J. made the request.

[108] According to Agueda, both Sick Kids and CAMH had recommended family therapy.[^22] She was anxious to move forward with the therapy and on July 31, 2019, her counsel at the time, Gillian Hayes, wrote to Bogdan’s counsel, proposing that Joanna Seidel be the family therapist. According to Agueda, Bogdan would only agree to start family therapy, if she agreed that G. could commence individual therapy with a therapist from BOOST.

[109] On July 23, 2019, the parties attended an Intake at CAMH for the Dinosaur program, which had been recommended by St. Brigid’s to address G.’s persistent behavioural issues at school. CAMH had also recommended that the parties attend Families in Transition, which, as I have stated previously, they did.

[110] In early July 2019, the OCL agreed to become involved in this case and appointed Eva Casino as the clinical investigator who would conduct a s.112 custody and access assessment. Bogdan agreed to commence family therapy with Joanna Seidel. Agueda believed that he only did so in order to impress the assessor. According to Agueda, once Ms. Seidel said that she wanted to have a joint session with the parties, Bogdan withdrew from the family therapy process. Agueda testified that she did not understand why he had withdrawn from this process.

[111] On June 12, 2019, an incident took place at St. Brigid’s, while G. was on the playground. G. had pushed a number of children, one of whom broke his arm. Given how close the timing of the incident was to the summer school break, G. was not suspended. (Both parents tend to believe that G. was not suspended because St. Brigid’s knew he was leaving the school in September, 2019 and Bogdan would likely to appeal the suspension, as he had done before.)

[112] On both parties’ evidence, G.’s experience in S.K. at St. Brigid’s was not positive.

2019/2020 Academic Year:

[113] As per the Order of Gilmore, J. dated April 17, 2019, G. and S. began school at RDS in September 2019, in Grade 1 and J.K. respectively. Very regrettably, after only 6 days at RDS, RDS asked G. to leave. S. has remained at RDS and is thriving there.

[114] Essentially, Agueda’s worries about G. attending a private school were realized. RDS had determined that they were not able to address and/or deal with G’s ADHD profile and/or his oppositional behaviour.

[115] This left G. without a school to attend. Agueda immediately took steps to speak with St. Brigid’s. They were prepared to have G. return there. Bogdan refused to consent to it, citing G’s. negative experiences. Instead, Bogdan began to research alternative school placements.

[116] G. was out of school from September 2019 until March 2020, about 7 months. As a result, this was a very difficult time for G. Agueda testified that G. felt ashamed and sad about him being asked to leave RDS. Agueda had felt that being in school was most important for G., even if St. Brigid’s was not the “perfect fit”. During the time that G. was not in school, he was completing school work from workbooks and attending some private tutoring sessions at Forest Hill Tutoring, which Bogdan had arranged.

Attempts by the Parties to find G. a new school for Grade 1

[117] During the fall of 2019, the parties considered other school options for G. On October 22, 2019, Bogdan asked Agueda to look into a school known as the Junior Academy.

[118] Bogdan testified that Agueda sabotaged G.’s opportunity to attend the Junior Academy. He asserts that it was after she had met with the principal and administration, that the school was no longer prepared to meet G. Agueda testified that she had simply advised the Junior Academy about G.’s complicated needs and behaviours, to be sure that they understood what would be required in order for a school to support G. The last thing Agueda wanted was for G. to begin another school and be forced to leave it. Agueda testified that she felt it was important that G.’s next school fit G. and his needs rather than the parties trying to fit G. into a school that was not right for him.

[119] The parties also reached out to Dr. Marcovitch in order to have G. reassessed and to discuss school options for him with her. Both parties testified that Dr. Marcovitch met with them on October 16, 2019, at which she set out a hierarchy of the best available school options for G. It was her opinion that given G.’s behaviour, (1) the best option for G. would be a “s.23 classroom”, followed by (2) a public school with accommodations, followed by (3) a behavioural classroom in a public school, and followed by (4) the least desirable recommendation, which was a private school. A “s.23 classroom” is a Day Treatment classroom which provides an educational program and mental health services for students whose circumstances or needs prevent them from being successful within their community school. Intensive supports are available through a partnership between the Ministry of Education and other ministries, such as the Ministry of Community and Social Services, Ministry of Children and Youth and Ministry of Health.

[120] Bogdan testified that he asked Agueda to consent to G. attending Maurice Cody Junior Public School (Maurice Cody”) for the second time on November 18, 2019. According to Agueda, before she had an opportunity to respond to his request, Bogdan served here with a motion, seeking the relief. Agueda testified that it had been totally unnecessary for Bogdan to bring a motion for the relief. She consented to the school on November 20, 2019. According to Agueda, Bogdan’s motion brought unnecessarily only added to the conflict between them, for which he blamed her entirely.

[121] G.’s updated psycho-educational assessment took place over several appointments with Dr. Marcovitch in November 2019. On December 5, 2019, Dr. Marcovitch provided a psycho-educational report to the parties.[^23] In it, she confirmed that G. both has ADHD and is gifted in a variety of areas. Dr. Marcovitch testified as follows:

a. G. is a gifted child and, as such, he was very aware and advanced. However, his ADHD made him immature and dysregulated, which was a frustrating combination for G.;

b. A meeting with G.’s paediatrician, Dr. Garfield, ought to occur, to see whether medication could be helpful. If the hyperactivity G. was experiencing could be reduced, then G. ought to respond to the behavioural management strategies;

c. G. should be placed in a classroom that would help manage his behaviour, such as a behavioural-management classroom or a “s.23 classroom.” A team approach to meeting G.’s academic and behavioural needs could be undertaken;

d. G. needed a team approach, which included a Child and Youth Worker who would know how to handle G. such that he can learn more positive reactions to and from people;

e. The parents could reach out for support; and

f. Preferential seating in the classroom; classroom breaks; voice dictation; the use of a computer; individual therapy; and well-supported behavioural management strategies would be needed in order to assist G.

[122] Once the ADHD diagnosis was confirmed, Agueda agreed with Bogdan that G. should begin a trial of ADHD medication. Prior to it being confirmed that G. has ADHD, Bogdan had wanted G. to be placed on ADHD medication and the children’s paediatrician, Dr. Garfield, had not been opposed to starting a trial of medication to treat ADHD. However, Agueda had wanted an ADHD diagnosis to be confirmed before placing G. on medication, given his young age.

[123] On September 23, 2019, Ms. Hayes wrote to Ms. Shecter, asking Bogdan to consent to G. to seeing a behavioural therapist and to the parties asking Dr. Marcovitch to recommend a therapist. In November 2019, Bogdan brought another motion, in which he sought an order for therapy for G. According to Agueda, she had already agreed to therapy for G. and also agreed that, if Dr. Marcovitch’s assessment came back with a formal diagnosis of ADHD, with a recommendation that G. begin medication to treat it, then she would agree to G. beginning to take ADHD medication. On December 20, 2019, Paisley, J. made the consent order referred to in paragraph [34] e. above. Agueda was to provide Bogdan with the names of three therapists at the Willow Centre; Bogdan was to then choose one of the three therapists. G. was to start taking medication for ADHD.

[124] In his notes, dated January 7, 2020, Dr. Garfield indicated that both parents had met with him and agreed that G. would start a two-week trial of a medication called Concerta. They were to attend a follow-up meeting with Dr. Garfield two weeks later, in order to assess how G. was doing.

[125] On January 21, 2020, the parties attended the follow up appointment. It was agreed that G. would continue taking Concerta for a further three-month trial period. Bogdan had advised Dr. Garfield during the meeting that G. had been having trouble swallowing the Concerta pills at his home. However, Agueda had not been having the same problem. Agueda testified that she sent Bogdan a video, which showed him how she had got G. to swallow the pills.

[126] Yet, two days later, without advising Agueda that he was doing so, Bogdan met with Dr. Garfield. In her absence, they decided to change G.’s medication from Concerta to Biphentin. Bogdan had apparently asserted that he and Larissa had found Concerta pills in the garbage. G. was apparently not taking the medication.

[127] Given Bogdan’s refusal to communicate or share information with her, Agueda was giving G. Concerta at her home, supervising him as he took and swallowed the pills. At Bogdan’s home, during the same week, Bogdan had been giving G. Biphentin. Agueda did not find out about this until January 28, 2020, when Bogdan told Agueda that he had found a number of Concerta pills in the garbage and he could not with any certainty tell how many days G. had taken the Concerta. Agueda testified that she was distressed to realize that neither Bogdan nor Larissa was apparently with G. when he was taking this medication. [On the evidence before me, I have a real concern that the responsibility for G. taking the ADHD medication had been delegated to a third party caregiver(s) in Bogdan’s home and that Bogdan and Larissa were unaware that G. had not been taking the medication until one of them had discovered pills in the garbage.]

[128] G. was never placed in a classroom at Maurice Cody, as the parents had hoped. The principal had required that G. attend an intake meeting and assessment, and that a behavioural classroom placement be made before he started the school. As well, an intervening school strike delayed matters. In March 2020, G. obtained a behavioural classroom placement at George Symes Community School (“George Symes”), the school which hosts behavioural students from Maurice Cody. So very regrettably, just after G. began attending George Symes, the Covid -19 health crisis began and the school switched to online learning. G. completed Grade 1 year at George Symes online.

[129] Although Bogdan had delayed in responding after Agueda had given him the list of three therapists at the Willow Centre, by mid-January 2020, G. started to see Dr. Rokeach, a therapist at the Willow Centre. He continues this therapy at this time.

[130] It is noteworthy that at the beginning of the pandemic, the parties agreed that it would be in the children’s best interests to reside with them on a week on/week off parenting schedule. The schedule would minimize their transitions between households.

Alexander Stanley – S.’s Junior Kindergarten Teacher at RDS

[131] Again, pursuant to Gilmore, J.’s April 2019 order, S. started J.K. at RDS in September 2019 and appears to be thriving there. Alexandra Stanley, S.’s J.K. teacher, testified. Ms. Stanley taught S. during the 2019/2020 academic year, in person until mid-March 2020, and then online from March to June 2020 due to the Covid-19 health crisis.

[132] Ms. Stanley testified as follows:

a. S. is a happy child who is very adaptable. She was easy-going; loved playing with all the students; was a great eater; was friends with everyone; and an asset to the classroom;

b. S. was a detail-oriented student who performed academically exactly where she should be.

c. She never had any behavioural concerns about S. [S. could get frustrated like any 4-year old].

d. She remembered being questioned by Ms. Casino (the OCL clinical investigator) and felt that her words had been taken out of context. She had told the clinician that she thought that the lunches that Agueda had prepared for S. were “sweet”. She meant “sweet” as in “thoughtful”, given the lunch that had been prepared. She had never had any nutritional concerns about S.’s lunches. The lunches that Agueda prepared had “many options”.

e. No matter which parent picked up S., she observed that S. was very excited and happy to see them. She saw a lot of affection from S. and her being positive with both parents;

f. She testified that Bogdan had approached her, wanting to know where a bruise on S.’s arm had come from and whether it had appeared after S. had been at Agueda’s house. Ms. Stanley explained to Bogdan that she was trained [in such matters] and if she had been concerned at all about abuse, she would have contacted the proper authorities. She confirmed that she had circled back and advised Bogdan that the school had no concerns that S. was being abused. In cross-examination, Ms. Stanley said that she believed that Bogdan never gave Agueda the benefit of the doubt. Four-year-olds fall and get bruised. Her impressions as S.’s teacher, that this was a situation where two parents love their child deeply, but that Bogdan appeared to be on a “witch hunt”, to try and find negative things to say about Agueda’s care of S. She described it as Bogdan “searching for something wrong”;

g. She testified that, in talking to S., she believed that S. had been questioned a lot about what was happening at her mother’s house or what her mother was doing at her home. This had been evidenced by S. saying things like, “Daddy asked if mommy did it,”;

h. She testified that when Agueda and Bogdan were in the classroom, she and the staff at RDS could feel a tension between them. They would try and move S. away so that she would not feel the tension. As an example, she said that Bogdan would say, “Mom lost her uniforms.” She gave a further example - on an occasion when Bogdan came to pick S. up and she was wearing a different coat. He said, “I can’t believe how many coats I have bought, she [meaning Agueda] lost her uniforms, her coat, etc.” By contrast, she testified that Agueda was always positive and never made comments about Bogdan to the teachers. She also remarked that when the parties were in the classroom with S., Agueda made a real effort with Bogdan. However, she did not see Bogdan doing likewise when both parents were present with S. in the classroom. This was sad because S. was a wonderful child who did not deserve to be “in the middle of this”.

Larissa Ruderman (Bogdan’s Partner)

[133] Bogdan’s common law partner, Larissa, is a labour and employment lawyer.

[134] During the course of her testimony, Larissa confirmed that she met Bogdan at the end of 2016 and moved into Bogdan’s rental apartment at Woodbine and Danforth in the summer of 2017.

[135] Larissa and Bogdan’s daughter, L. was born on […], 2019, and is about 22 months old.

[136] Larissa testified that when G. was asked to leave RDS in September 2019, she and Bogdan hired a caregiver to look after G. when he was at their home because she and Bogdan were working full-time. Larissa confirmed that the caregiver they hired, along with a second caregiver, continue to work for their family and look after L.

[137] In cross-examination, Larissa made the following admissions:

a. When she and Bogdan decided that Bogdan would introduce her to G. and S., they did not openly communicate about it with Agueda because the children meeting her was about her and Bogdan’s life during his parenting time;

b. She did not reach out to Agueda, to see how the children had reacted to meeting her, because, in her view, it was up to Bogdan to communicate with Agueda;

c. She was not aware that Bogdan had not told Agueda that he had a new partner whom he was going to introduce to the children;

d. Agueda had found out from the children that Larissa was looking after G. and S. for short periods of time, while Bogdan was not present;

e. She and Agueda had a pleasant first meeting on October 20, 2017, which Agueda had initiated, and a second pleasant interaction in person during parent-teacher meetings on November 15, 2017;

f. She and Agueda had an unpleasant interaction on November 20, 2018 when Bogdan and Agueda were talking at an access exchange at 305 Belsize;

g. She was aware that, after that unpleasant exchange, Agueda asked that parenting exchanges take place at a neutral location, but she and Bogdan insisted that the exchanges take place outside of 305 Belsize;

h. She believes that how Agueda transports the children is a matter of Agueda’s choice (meaning, in effect, that the fact that Agueda does not drive and transports the children on public transit is of no concern to Larissa);

i. Put another way, perhaps, the commute time for the children between Agueda’s home and Larissa’s home does not result from Bogdan moving away from the Beaches neighbourhood but from the means of transportation that Agueda has chosen to use;

j. She admitted that having a new baby sister was a big change for G. and S. but a new sister was an important issue for Larissa and Bogdan to discuss with one another; it was not an issue that she should have had with Agueda;

k. Neither she nor Bogdan was obliged to tell Agueda that they were having a second baby because they had told G. and S. of the news and believed that the children would advise Agueda about it;

l. Neither she nor Bogdan advised Agueda that she was pregnant with their second child, information which Larissa believed that it was important for the Court to know that she is pregnant.

m. Larissa had also communicated the fact that she was pregnant with L. in material filed earlier in this case. Neither Bogdan nor Larissa had told Agueda that the children would be having a new sibling;

n. She expected G. and S. to tell Agueda about L.’s birth and name;

o. Larissa did not believe that Agueda was entitled to receive any information about the caregivers, even though they also look after G. and S. in her home; and

p. Although Bogdan had insisted that Agueda had kept relevant information from him when she had not responded to his request that she advise him who was looking after G. and S. during this trial, neither Bogdan nor Larisa believes it is necessary to communicate with Agueda about the caregivers in their home looking after G. and S.

Voluntary Psychological Assessment of Agueda

Dr. Douglas S. Saunders – Psychological Assessment of Agueda

[138] Dr. Douglas Saunders, the senior psychologist at Clear Path Solutions, was retained by Agueda, to conduct a psychological assessment regarding her mental health and capacity to parent the children from a mental health perspective.[^24]

[139] Agueda voluntarily undertook a psychological assessment to respond to Bogdan’s allegation that he had concerns about Agueda’s mental health and its impact on her ability to parent G. and S. Agueda testified that she decided to be proactive and have psychological testing because such testing was not done during the course of the CL ‘s assessment and she wanted to respond to any suggestion that she was not fit to parent the children.

[140] Dr. Saunders met with Agueda on March 4th and 9th, 2020. He had a follow-up meeting with her on August 10, 2020.

[141] Dr. Saunders administered the Personality Assessment Inventory (“PAI”) test and the OMNI personality test. He testified that the PAI test is a measure of personality traits, disorders and current mental health in general. The OMNI personality test is a more comprehensive measure of normal and abnormal personality markers/traits and personality disturbances. He also conducted the Anger Disorder Scale (“ADS”) test on Agueda. This test measures anger in adults and specifically measures forms of anger and aggression, physiological arousal, and resentment. In addition to administering these various tests, Dr. Saunders conducted two clinical interviews of Agueda.

[142] The overall summary of Dr. Saunders’ findings is that there was a lack of evidence indicating that Agueda had any psychological or emotional difficulties, or a degree of volatility or instability, in her personality profile. Although Dr. Saunders acknowledged that the profile was limited by the positive image management indicator, which identified that Agueda was not entirely forthright in her responses and was somewhat guarded when she was assessed, the assessment nevertheless did not disclose that Agueda had any psychological difficulties or instability in her personality that would cause concern for her parenting G. and S.

[143] Dr. Saunders testified that his psychological assessment report is a reliable interpretation of the sophisticated assessment tools he used and was overall consistent with the clinical interviews he had conducted of Agueda, confirming to him that Agueda was cognitively able to look after the children and be stable.

[144] As referred to below in these Reasons, Bogdan had retained Dr. Howard Waiser to critique Dr. Saunders’ report. When asked about Dr. Waiser’s critique of his report, Dr. Saunders confirmed that Dr. Waiser had quite rightly raised some questions about Agueda’s profile, in that, again, the profile was limited because she had not been forthright in giving answers. Notwithstanding Dr. Waiser’s critique, however, Dr. Saunders maintained that the overall question he was asked to assess was whether Agueda presented with any mental health issues or instabilities, which would seriously affect her ability to parent the children? His consistent answer was no.

[145] In cross-examination, Dr. Saunders was asked about the fact that the measures from the test indicated that Agueda sees herself as meek and believes she has difficulty standing up for herself. Among other thins, Ms. Shecter asked Dr. Saunders whether he recalled reading a comment of the children’s paediatrician, Dr. Garfield, which was contained in Dr. Garfield’s file notes, in which note Dr. Garfield referred to Agueda in a meeting with the parents when they were discussing ADHD medication for G. as having presented as aggressive and “seething”. Dr. Saunders responded as follows:

“In general, when people feel they are not being heard and listened to, they can over-react to a situation, particularly if they feel that their own opinion and the needs of the children are not being looked after.”

[146] Ms. Shecter then asked whether Dr. Saunders still agreed that Agueda was “meek” when he read that Agueda had yelled at Ms. Levin, the daycare supervisor at Purple Tree, in front of the children. Dr. Saunders responded that, “as a description from the test measures, when people think of themselves as meek and unassertive, then in situations when they feel overwhelmed, not listened to or their children are not being well protected, in that sincere belief, they can react very strongly.”

[147] In cross-examination, Dr. Saunders confirmed that his assessment was undertaken in order to learn whether Agueda has any severe mental health or personality issues, which might incapacitate her as a parent, and his conclusion was that she did not.

Dr. Howard Waiser – Critique of Dr. Saunders’ Psychological Assessment of Agueda

[148] Dr. Waiser, an experienced clinical psychologist, confirmed that he had been retained by Ms. Shecter on Bogdan’s behalf, to critique Dr. Saunders’ report.[^25]

[149] He confirmed that he did not meet with either of the parties. He simply reviewed Dr. Saunders’ report.

[150] In his professional opinion, Dr. Saunders’ report contained a number of shortcomings. He referred to the document as a “scant” report. According to Dr. Waiser, Dr. Saunders did not evaluate any parenting measures. Further, his report did not contain a personal history section, which he believes is an important part of a report.

[151] In looking at the raw data from the PAI test, Dr. Waiser testified that Agueda’s answers indicated that she had tried to paint herself in a better light than 98% of people who took this test did, which, in his view, signified that it was not a realistic self-impression. Dr. Waiser felt that it is “not typical of people not to acknowledge their shortcomings”.

[152] In cross-examination, Dr. Waiser was asked about the impact on the “positive impression scale” of a belief by Agueda that Bogdan was on a “witch hunt” where he was trying to find negative things to claim about her parenting. Dr. Waiser answered, “it is not unusual to have a high score because the person would be trying to present themselves in a positive light”.

[153] Dr. Waiser acknowledged in cross-examination that he had not met with either Agueda or Bogdan, and did not have a context; did not do any personality or psychological testing of Bogdan; and was only presented with Dr. Saunders’ report.

[154] In answer to my question whether there was any evidence in the psychological tests that had been administered which indicates that Agueda has a mental health disorder, Dr. Waiser said that there was no such evidence in the tests, but again referred to the fact that Agueda was defensive when the tests were administered. Thus, the results of the tests should be taken with a “grain of salt”.

OCL Report – Eva Casino – OCL Clinician

[155] Section 112 of the Courts of Justice Act sets out the authority under which the OCL can conduct an investigation on all matters concerning decision-making responsibility and parenting time of children. Eva Casino is the clinician who conducted the s.112 custody and access assessment, which was requested by Gilmore, J. on April 17, 2019. Ms. Casino became involved in this case on July 5, 2019.

A. Identification of Each Parent’s Concerns about the Other:

[156] Between July 5, 2019 and November 12, 2019, Ms. Casino conducted an investigation under s.112 of the above-mentioned Act. She released her report, dated November 12, 2019, at approximately the same time.

[157] In her Report, Ms. Casino identified Bogdan’s parenting concerns, including concerns about Agueda, as follows:

a. Since age 2 ½, G. had had significant behaviour problems, including being defiant, physically aggressive and unruly;

b. When the children were residing with him primarily for 6 weeks in January and February, 2019, he observed a significant improvement in their behaviour; S. stopped having temper tantrums and hitting others, which she was initially having twice a day, when the 6-week period began; and G. did much better behaviourally as he was getting more sleep;

c. He believed that the children’s behavioural problems are partially due to the experiences the children have while with their mother;

d. In November 2018, the children started to play a game where G. and S. would hit each other and say to each other, “I’m going to give you a “casque” [a slap in Spanish] and when asked about this by Bogdan, they told him that “Mommy hits us on the bum.”;

e. The children had told him that Agueda was often angry and yelled at them a lot;

f. The children told them [meaning Bogdan and Larissa] that Agueda has called them “fucking idiots”;

g. On January 13, 2019, S. told him that Agueda gave G. a “super casque” on the mouth and his nose bled at Christmas time. Bogdan spoke to the paediatrician on January 15th, 2019, Bogdan took G. to see Dr. Garfield on January 17th. Dr. Garfield saw no sign of injuries and G. did not say anything to the doctor about it;

h. On January 16, 2019, the police told him that Agueda had been charged with two counts of assault because she had allegedly hit S. on the head and face and a witness had reported seeing Agueda holding S. upside down, dragging her and slamming her onto the ground;

i. The children were placed with him for 6 weeks, at which time, CAS resumed Agueda’s overnight access with the children, although it was to be supervised by her mother, who came to Toronto from Spain;

j. On April 24, 2020, S. reported to him that Agueda had hit her and that she hits her a lot. He took S. to the hospital and S. told the doctor that her mother had hit her in the eye. That week, S.’s daycare expressed a concern about S. “hitting a lot”, an unusual behaviour for her;

k. The CAS report was “inconclusive”;

l. G. was telling him they are often out late in their mother’s care;

m. The current shared parenting structure involved many transitions, much more travel [than initially contemplated], less sleep, and exposure to different schedules for the children; and

n. He was concerned about Agueda’s mental health as she had taken 70 days off work in 2018.

[158] Ms. Casino identified Agueda’s parenting concerns, and concerns about Bogdan, as follows:

a. Bogdan unilaterally removed S. from the daycare, which S. had attended for over a year, and put S. in a daycare that was 10 km away from her home;

b. Bogdan had removed the children from their community. She believed he was trying to “erase” her from the children’s lives. He started this application, seeking sole custody of the children, only five days after she was charged with assault. He made numerous false claims to CAS; coached the children to make false allegations in an effort to gain custody; and she was sure that “witness” to the assault had been part of a set-up;

c. When on a phone with G. on a speaker phone when G. was in Bogdan’s care, G. had called Agueda a “fucking idiot” and Bogdan had done nothing to intervene.

d. The children had told her that Bogdan and Larissa tell them that Agueda is not their real mother;

e. G. had told her that Bogdan had erased her from a drawing he had made;

f. G. had told her that he knew he would be punished by Bogdan for talking to Bogdan’s parents (G.’s paternal grandparents);

g. She was concerned that Bogdan was coaching the children to keep secrets from her;

h. Bogdan had given Larissa’s name to Purple Tree as S.’s mother and custodian in the application that Bogdan had completed in order to move S.’s daycare, a decision that Bogdan had made and had chosen not to communicate to her;

i. Bogdan had excluded her from school admission tours he took for G.;

j. Bogdan booked doctors’ appointments for the children behind her back;

k. Bogdan had kept G. out of school multiple times in June 2019, without her consent;

l. She always involved Bogdan in discussions about the children but he did not always include her in such discussions;

m. Bogdan had cut off his parents from seeing the children;

n. She and Bogdan had had a lot of disputes over the interpretation of the Holiday Schedule, which had caused conflict;

o. Bogdan had told G. that God does not exist, which had been confusing given that G. was attending a Catholic school at the time;

p. Bogdan had unilaterally decided that scheduled phone calls with the non-resident parent were no longer necessary and, as a result, he would no longer answer her telephone calls when the children were in his care.

[159] Agueda filed a Dispute to the OCL report pursuant to Rule 21(e) of the Family Law Rules[^26], for 65 stated reasons. Some of these reasons include the following:

a. She took issue with the collaterals with whom Ms. Casino chose to consult. For example, Ms. Casino failed to consult with the CAS worker who had had extensive involvement with the family and, instead, relied on the worker’s written notes;

b. Ms. Casino acknowledged that Bogdan had attempted to cut his parents out of the children’s lives but failed to appreciate that Bogdan’s parents’ support of Agueda was telling in terms of credibility issues and otherwise and failed to consider the impact on the children of Bogdan’s choice to cut his parents out of their lives and his prioritization of his anger toward his parents over the children’s best interests;

c. Ms. Casino failed to consider and/or properly weigh the fact that Bogdan had repeatedly breached the parties’ separation agreement by refusing to facilitate her telephone calls with the children when they are in his care, and by unilaterally changing S.’s daycare without consultation;

d. Ms. Casino failed to consider or properly weigh the fact that Bogdan had refused to follow many recommendations of professionals involved with G., including his attending for personal therapy and agreeing for the parties to attend family therapy; and that Agueda had followed every recommendation made by professionals with respect to G. to date;

e. Ms. Casino declared that the January 16, 2019 incident was an “assault” notwithstanding the fact that there was no conviction and she was told that the Crown would be withdrawing the charge; Ms. Casino criticized Agueda for note being “remorseful” for the “assault” notwithstanding Agueda’s explanation for the events of that day were told to her; and Ms. Casino disregarded the fact that both parents had described that S. had tantrums regularly, some of which were “out of control”, much like what Agueda had described transpired on January 16, 2019;

f. Ms. Casino accepted Bogdan’s version of events that G.’s behaviour had improved in the 6 weeks following the January 16, 2019 incident when the children were in his sole care;

g. Ms. Casino failed to consider or appropriate weigh the fact that the CAS did not make a finding of abuse or neglect and that the children were happy, and well-cared for in both homes;

h. Ms. Casino accepted Larissa’s statements that Agueda had had “meltdowns” with her, even thought this was not accurate and she failed to discuss Larissa’s statement with Agueda;

i. Ms. Casino failed to acknowledge Agueda’s culture and typical meals of Spanish families (i.e. Nesquick for breakfast) and misunderstood the types of foods Agueda prepared for the children;

j. Ms. Casino failed to acknowledge Agueda’s stated concern that Bogdan was alienating the children given that for the 9 days following the arrest, Bogdan failed or refused to facilitate any contact between Agueda and the children;

k. Ms. Casino failed to consider the distance between the parties’ homes and school when she recommended that Agueda had weekday dinner visits with the children; and

l. In finding that the children were “calmer” when with Bogdan, Ms. Casino failed to acknowledge the differences in the time of day in which she observed the children with each parent and that dysregulation was typical for G. in both parties’ homes.

B. Process, including the arranging of Home Observation Visits

[160] In reviewing the general procedures, which she follows for a custody and access assessment, Ms. Casino confirmed that, with respect to home observation visits with parents and children:

a. When she schedules observation visits, she is available “24-7 for these visits and she’s available when the parents and kids are available”;

b. It does not make any difference to her what day of the week home observation visits are done; she lets the parents decide the dates and times of these visits;

c. The information she obtains during the home visits and interviews are factors she considers, as well as the strengths and concerns she observes about the parent and the wishes of kids;

d. She does not care about the activities in which children engage during a home observation visit; she only asks that children not watch television and that the visit not take place in a fast food restaurant. She also does not place limitations on the time(s) of the home observation visits; and

e. She gives quite a bit of weight to interviews with children, depending on their age.

[161] Ms. Casino confirmed that she met with G. twice, once in Bogdan’s home and once at RDS. According to Ms. Casino, neither interview was helpful to her in terms of having a better understanding G.’s needs; his wishes; or his worries.

[162] In terms of meeting with Agueda, Ms. Casino met her once at the beginning of the process in her office and had two telephone interviews with her.

[163] In addition to the above contact, Ms. Casino had two home observation visits with Bogdan and Larissa. The first visit took place on a weekend day (July 27, 2019), mostly outside while the children were doing an art activity, which was supervised by Bogdan and Larissa. The second home observation visit took place on another weekend day (September 21, 2019), when Ms. Casino accompanied Bogdan, Larissa, G., S. and L (who was two months old), on a visit to The Brickworks. [Neither visit took place while the children were engaging in routine activities in Bogdan’s and Larissa’s home at the end of a weekday, such as the children doing their homework, the children having their dinner, or the children getting ready to go to bed.]

[164] During his examination-in-chief, Bogdan testified that he did not want Ms. Casino’s home observation visit to occur on a transition day because on those days, the children are the “most dysregulated, would not be at their best and [he] did not think it would be a fair assessment of the house”. In answer to a question from this Court, Bogdan confirmed that Ms. Casino gave him a choice as to when the home observation visit could take place.

[165] Ms. Casino attended the first home observation visit at Agueda’s home on a weekday evening (August 22, 2019), starting at 7:00 p.m., after Agueda and the children had arrived home from the daycare after having travelled home on public transit. Ms. Casino observed Agueda feeding G. and S. dinner and participating in their nighttime and bedtime routines: Ms. Casino testified that she noted that G. was more oppositional with Agueda than he had been with Bogdan; S. and G. had more conflict than they had had with Bogdan. She reported that it had struck her that when Agueda was trying to get G.’s attention, she had snapped her fingers and rapped the table. The second home observation visit Ms. Casino attended with Agueda and the children took place on a weekend day (September 29, 2019). She met them at the matrimonial home and accompanied them to the local neighbourhood park.

[166] In terms of the first home observation visit which took place at Agueda’s home, in her Report, Ms. Casino had noted as follows;

a. Agueda encouraged G. in a loving way as well;

b. Agueda used a point ritual, which highlighted positives. Agueda put on a timer for G. to eat and reminded him about the point system they had in place. She explained that if he didn’t finish, he would lose 5 points. They did a point ceremony at bedtime, which was a routine at bed time;

c. G. was very affectionate with Agueda. He told her that he loved her, and she said it back to him.

d. G. did an unsafe manoeuvre on the stairs and Agueda intervened;

e. She felt that Agueda had clear and reasonable expectations and that Agueda was supportive;

f. It also struck her that G. was “way more oppositional” when with his mother than he had been with his father; and

g. S. and G. had more conflict when with their mother, but they also had affectionate relationships.

[167] During the second visit, which was at the park, G. had arrows with him and was shooting them indiscriminately. Agueda reminded him not to shoot them at people; and

[168] During the second visit, G. was doing things that were unsafe, including climbing on play equipment and pushing a girl out of the way, but there were other nice interactions as well.

[169] During cross-examination, Ms. Casino was asked why she had been struck by Agueda trying to get G.’s attention by snapping her fingers close to his face. She answered that “[i]t seemed aggressive”. However, in her Report, Ms. Casino had noted that Agueda had also tried other methods of getting G.’s attention.

[170] Ms. Casino also admitted that she did not have an opportunity to spend time with G. or S. separately at Agueda’s home, as she had been able to do when she observed them at Bogdan’s home.

[171] When asked how the “one parent” vs. “two parent” scenario had factored into Ms. Casino’s recommendations, she admitted that it had been an important factor in her assessment because G. requires more attention (given that he is inattentive and aggressive), and she acknowledged that, in her view, having two parents was helpful.

C. OCL’s Findings

[172] In her Report, Ms. Casino made the following findings:

a. “There is a lot of anxiety in this case, which is fueling the conflict, with Bogdan worried about Agueda’s parenting and Agueda worried that the Bogdan is trying to “erase” her and his parents from the children’s lives”;

b. “This Investigation did not find that Bogdan was attempting to alienate the children. However, there appears to be evidence that both parents have put the children in the middle at times and shared adult issues with them and that communication between them has been poor”;

c. “There have been a lot of hurt feelings, which has led to cut-offs between Bogdan’s parents and the children, in large part due to the grandparents’ actions. For example, they rejected Bogdan’s partner [Larissa], supported Agueda over their son and expressed their uninformed views too vehemently”;

d. “Her investigation raised significant concerns about Agueda’s parenting, including physical discipline and yelling at the children, which has likely had a significant impact on G.”;

e. “The CAS worker said Agueda is remorseful for her actions, but Agueda reported to this clinician, that she never hit S. and that Bogdan probably set up the witness to make a false statement. This is not remorse and is a very serious allegation that is not substantiated by S.’s consistent statements”.

f. “S. made consistent statements to CAS, the police, EMS and doctors that her mother hit her, dragged her and is often angry”;

g. “It was notable that S. refused to go back to the day care where the assault occurred and started to bed-wet when overnight access started again with her mother”;

h. “Bogdan’s concerns about Agueda’s anger is valid, based on Dr. Garfield describing her as aggressive and saying she was “seething” in a recent discussions about ADHD medication’ and the supervisor at Purple Tree Day Care saying that Agueda yelled at her in front of S”.

i. “While [she] noted a lot of loving interactions of the children with both parents, a contrast between the homes was also noted, with G. more oppositional with his mother than his father and with more sibling conflict. This is consistent with father’s stated concerns”.

j. “A concern that should be addressed in counselling is the fact that G. called his mother a “fucking idiot” and the fact that G. told his mother than he lied about saying she hit him “because [he] [doesn’t] want to talk and it’s faster if [he] says [she] hit [him]”.

k. “Although parents have recently agreed on several issues, there are still major disagreements about a home school and the possibility of medication.”

l. “Having a primary home for G. will likely be helpful for him”;

m. “Mother reported that she and the children travel several hours a day on access days, without a car. The proposed access schedule reduces overnights in order to provide the children with more stability, but ensures continued regular contact with their mother”.

n. “The noted concerns about physical discipline and mother’s anger are consistent and it is likely that Bogdan will be able to provide a calmer home”;

o. “This clinician observed the children to be more settled with their father and Larissa, who was observed to be a calm, loving and attentive caregiver”.

p. “In contrast, when the mother gave up her job in November 2018 to be more available for G., his behaviour seems to escalate”.

q. Agueda “appears to hold more rigid positions” than Bogdan, “which are likely grounded in her fear that she will be eliminated from the children’s lives. This leads her to make decisions that do not appear to be in the children’s best interests, such as taking S. out of the day care an hour after her father dropped her off, until there was a court order to stop this, and insisting on St. Brigid’s, as the home school, even though G. was clearly not managing there.

[173] In her testimony at trial, Ms. Casino said that when she observed G. and S. at RDS, waiting at the principal’s office (which occurred at a time when the children were in Agueda’s care), she was struck by the fact that both children were eating snacks and S. said that she had had two brownies and a hot chocolate that morning for breakfast and G. had had a brownie. Ms. Casino testified that she always thinks its important to look at what children eat. G. had been identified with ADHD and sweets are not helpful. She said that the night before, when she had observed them at their mother’s home, they had also had a lot of sweets. Ms. Casino testified that the sweets, in her view, could be a factor in their behaviour.

[174] Ms. Casino also testified that when she spoke with the children’s paediatrician, Dr. Garfield, he had just had an “intense” meeting with the parents, to discuss trying ADHD medication for G. Ms. Casino said that she was struck by the fact that Dr. Garfield told her that Agueda had been aggressive in her presentation - she was “seething” with anger. Ms. Casino also testified that Dr. Garfield had told her that Bogdan was “passive aggressive”. According to Ms. Casino, Dr. Garfield had stated that, “G. [was] strung out by the discord in the family.”

D. OCL’s Parenting Recommendations

[175] The OCL made the following parenting-time and decision-making recommendations:

a. “Sole custody of G. and S. to [Bogdan]:

i. [Agueda] is to be offered the opportunity to have input into major health and education decisions.

ii. [Bogdan] will take the children to regular medical and dental appointments and advise Agueda if something important emerges.

iii. [Agueda] shall be entitled to obtain information regarding the children directly from any service providers involved with them, including but not limited to educational institutions, counseling and medical professionals. [Bogdan] shall sign any documents, if necessary, in order to allow such information sharing.

iv. With respect to health, the on-duty parent shall make sure the children are given any prescription medication and follow all prescribed health-care treatments.

v. In medical emergencies, either parent can consent to emergency medical treatment for the children as needed and shall notify the other parent of the emergency as soon as it is possible.

b. Access: Primary residence to Father with access to mother based on a two-week schedule with alternating weekends and midweek access.

i. Week one: Tuesday evening from pickup at school by mother to 7:00 PM (with father to do the pick up); the weekend from after school on Friday (pick up by mother) until Sunday night drop off by Mother at Father’s home at 7:30 PM. [italics added]

ii. Week Two: Tuesday and Thursday evening from school (pick up by mother) to 7:00 PM with father to pick up. [italics added]

iii. On these weeknights, any activity can be chosen that will allow the children to arrive home by 7:30 PM.

iv. When the parties have a weekend where there is a holiday Monday or PD Day that precedes or follows (e.g. Family Day, Victoria Day, Easter, Labour Day and Thanksgiving Day) it should be extended to the person (instead of Friday for a PD day). Drop offs to be at father’s home on Sunday’s at 7:30 (or Monday at 7:30 on a long weekend).

v. Make-up access is discouraged. If there is a legitimate reason, then make-up access will be tacked on to the next available weekend (i.e. within two weeks).

vi. Phone calls with the children: If there is [sic] longer than 3 days of no contact and if the children request a call, there should be a call. The phone call should occur between 6 and 7 PM unless an alternate time is arranged.

c. Holiday Access and other access separate from the regular schedule:

i. Summer alternating weeks with up to 2 weeks for a special vacation (such as a visit to Spain). Pickup by the parent who has the week on the Sunday evening at 7:00 PM.

ii. Parents are to request dates as far in advance as possible and no later than one month before. If there is an overlap in desired dates, [Agueda] will have the first choice and even years and [Bogdan] in odd years.

iii. Christmas Holiday School Break: Parents are in agreement that it should be divided equally, with [Agueda] to have the first half of the holidays on which Christmas falls. In 2019, the dates will be from December 20 to January 5. Thus, [Agueda] will have the children from December 20, 2019 after school pick up until December 27, 2019 at 7:00 PM (with [Bogdan] picking the children up) and [Bogdan] will have the children from December 20 at 7:00 PM until January 5^th.

iv. March Break: If the break is two weeks (as with private school), then each parent is to have a week. If there is only one week, then parents are to alternate weeks with [Agueda] to have it in even years and [Bogdan], in odd years.

v. Birthdays are to be celebrated on the next day [the parent] [has] the children.

vi. Mother’s Day: If it doesn’t fall on mother’s weekend, then mother to have addition day with drop-off by father at 9 AM on Sunday and children to be returned by 7 PM by mother.

vii. Father’s Day: If it doesn’t fall on father’s weekend, then father to have an additional day with drop off by mother at 9AM on Sunday and children to remain with father.

d. Travel: Father to renew and hold the children’s passports and release them to mother when requested if she wishes to leave the country and leaves details of the trip. Father does not need mother’s consent to travel but should provide details of the trip in advance. Address, flight information, duration etc. Father to sign the consent for travel when mom requests vacation plans on her time.

e. Communication: In general, the only information to be shared is to update important information with respect to the children. All communication should be in writing, should be concise, information-based, child-centered, non-speculative, non-interpretive, and non-accusatory. It should be present or future- oriented and never rehash past events. It should be non-critical of the motives of the other parent and devoid of insults and inflammatory comments.

i. Sometimes children may share exaggerated or distorted information. Concerns should be checked out with the other parent.

ii. Each parent needs to know about anything significant that has happened in the other parent’s care, including information about the child’s health and medication, daycare information or an accident.

iii. If there is a child protection concern with respect to abuse or neglect the CAS should be contacted.

iv. There are to be no derogatory messages to the children about the other parent.

v. The children are not to be made a party to the adult issues.

f. Counselling and Medication: Family therapy, individual therapy for G. and a trial of ADHD medication (if indicated). As well [Agueda] may benefit from ongoing supportive counselling.

g. Extra-curricular Activities: Both parents said they would be open to takin the children to a combination of extracurricular activities based on each of their choices. It is recommended that they each choose one activity, which would allow the children to be back at [Bogdan’s] home at 7:30 PM.

h. Religious Practice: Parents to follow whatever religious practice they would like with the children on their time.

[176] When asked for an explanation as to why Ms. Casino made parenting time recommendations where G. and S. would only reside with Agueda on alternate weekends (for 2 overnights) and spend time with her during the week for two three-hour periods, Ms. Casino advised that she felt there needed to be a way to reduce the conflict between the parents and increase the stability for the children - especially G., who was really struggling. Ms. Casino testified that she felt that this could be accomplished by having one primary parent and sole decision-maker. She recommended that Bogdan be that primary parent.

[177] When asked to explain the basis for her recommendations, Ms. Casino expressed concerns about Agueda, as follows:

a. She found that there was a hostility and rigidity to Agueda;

b. She was concerned that Agueda was struggling most in terms of anger and was parenting from stress, noting that the distance between the homes was a struggle;

c. She believed that one decision-maker was needed because there had been endless struggles about decisions, which had required that the parties go to court;

d. G. was struggling. He was 6 years old and attacking teachers; cutting up other children’s work; being sent home from school repeatedly; and had been asked to leave RDS;

e. G. required multi-levels of support, meaning that G. required individual therapy, medication and family therapy;

f. In her opinion, it was in G.’s best interests to spend more time with the parent who had less difficulty with self-regulation. She had concluded that Bogdan was that parent; and

g. In her opinion, a reduction in the conflict between the parents and stability for the children (most particularly G.) could be accommodated by having one primary parent and decision-maker, Bogdan.

[178] In terms of the incident in January 2019, which had led to Agueda being charged with assaulting S., Ms. Casino did not agree with the CAS worker who had found that Agueda was remorseful for the incident. Ms. Casino testified that Agueda had denied that she had assaulted S. and thus in her view, Agueda had not accepted responsibility for the incident.

[179] In terms of concerns Ms. Casino had about Bogdan’s parenting, she noted that he had issues communicating with Agueda; had unilaterally removed S. from the Woodbine daycare without advising Agueda; had blamed Agueda for not buying him a recital ticket to S.’s ballet recital, despite the fact that Agueda had shared the information with him and clearly explained how he could purchase a ticket; and had declined to bring G. to S.’s birthday party in an effort to punish Agueda.

[180] On May 21, 2020, Ms. Casino was questioned by Agueda’s then counsel, Jaret Moldaver. Agueda relies on evidence that Ms. Casino gave during her Questioning. Ms. Casino made a number of admissions, which are particularly relevant to the evidentiary basis, which supported her parenting-schedule and decision-making recommendations. Admissions made during her Questioning, include the following:

a. Ms. Casino admitted that she did not have a rapport with S. at the time that she interviewed her and was, therefore, unable to obtain verification from S. directly about what had transpired during the January 16, 2019 incident, which had led to Agueda being charged with assaulting S.[^27]

b. She admitted that she had never considered whether G. and/or S. had been coached during the CAS process by Bogdan to say or report that Agueda was hitting them, even though Agueda had expressed this concern to Ms. Casino. [^28]

c. She admitted that she had never considered that there may have been reasons for S.’s [purported] resistance to returning to the Woodbine daycare after the January 16th, 2019 incident, other than that Agueda had assaulted her at the daycare location, even though Ms. Casino acknowledged that there may have been a multitude of possible reasons for S.’s [alleged] resistance.[^29]

d. She acknowledged that it concerned her that Bogdan had not consulted with Agueda before changing S.’s daycare, but, took the position that it was more important that the children have a home where there was more peace and there were less behaviour problems.[^30]

e. She admitted that she did not take steps to speak with the CAS worker assigned to the file, even though the CAS worker believed that Agueda has been remorseful about the January 16, 2019 incident and had positive things to say about Agueda’s parenting.[^31]

f. During the course of her Questioning, Ms. Casino was insistent that it is her usual practice to allow the parent to choose the day and time of the home observation visits and that she is available “basically Monday to Sunday for observational visits” and that [she does] “these all the time, and [she’s] available seven days a week, any time”. When counsel further challenged her evidence that it would have been Agueda who had chosen the Thursday night first home observation visit, she ultimately conceded that when Agueda had suggested a particular day for the first visit, Ms. Casino would be on holiday and it was she who then determined that the first home observational visit would take place on a weekday evening, at around 7 p.m. [^32]

g. She admitted that the time of day that an observational visit takes place is important and that children ages 4 and 6 do better during the day than they would closer to bedtime.

h. She admitted that it had not been “completely fair” when she compared Agueda’s observation visit to Bogdan’s observation visit, given the difference in the time of day and the fact that the children were participating in daily end-of-day routines with her and daytime recreational time with Bogdan. Ms. Casino acknowledged that doing so did not permit a fair comparison of each party’s parenting of the children. Her evidence was as follows:

Q581. So, you’ll agree with me that you never observed but the children, but the same variables of it being a weekday, routine, school, daycare, dinner time, getting ready for bed?

A. Right. That’s correct.

Q582 You have nothing to compare that to. Correct?

A. That’s correct, yes

Q583. And now that I pointed that out to you, do you think that it was… It’s a fair comparison?

A. Yes, I think, I think you’re right about that, it’s not completely fair.[^33]

[Emphasis added]

i. Ms. Casino admitted that when recommended that the children live with Bogdan on a primary basis, she gave weight to the fact that Bogdan had a new partner and Agueda did not.[^34]

j. She said that it was okay with her that the children would be put to bed and wake up to their father’s partner more often than they would be and to by their mother.[^35]

[181] Although in her Report, Ms. Casino had indicated that on the weekdays when Agueda would have the children from after school/daycare, Bogdan would pick them up at her home at 7:00 p.m., when testifying at trial, she said that in recommending the weekday access, she expected that Agueda would arrange to have meals with or take the children to activities close to Bogdan’s residence during the two after-school visits, in order to have maximum time with G. and S. She effectively admitted to Mr. Moldaver at the Questioning that the parenting-time schedule that she had recommended would not include time with Agueda at her home during the school week, as follows:[^36]

A. ……. Both parents told me that joint custody isn’t working. Both of them wanted sole custody, that’s impossible. They both told me it wasn’t working and there was a lot of evidence of a lot of conflict and difficulty making decisions that are in the best interests of the kids. And I try to recommend as much access from him as I possibly could. I notice in the Dispute, she neglected to… I mean, what I talked about in the disclosure meeting was at the evenings that she has during the week, she should try and have a meal or extracurricular activities close to dad, dad’s residence so that she would have as maximum amount of time with the kids. But in the dispute she said she would be spending most of the evenings traveling to her home. So that…

Q. You think it’s appropriate for mother to use the 9 hours that you’ve given her every 2 weeks during the week, to spend it at a restaurant? You think that’s a meaningful visit?

A. Well, a restaurant and extracurricular activities, yes.

Q. You think that’s a meaningful and normal family time visit? I would like an answer to that.

A. Meaningful and normal, I think those are 2 different things. I think it could be meaningful. It’s unfortunate that the situation is the way it is and it gives me no pleasure to make this recommendation.

Q. What do you envision in terms of, is Mom supposed to pick them up at dad’s house and drop them off at dad’s house?

A. Pickup from school

Q. Yes. And dropped off at dad’s house?

A. With father to do the pickup at 7

[182] Ms. Casino testified that, according to her, Bogdan had “real strengths”; there was less oppositionality between him and the children; the children connected well together at his home; and he was willing to “go all out” and investigate school options.

ANALYSIS:

The Parenting Order that is in the best interests of G. and S.

[183] Effective March 1, 2021, the terms “custody” and “access” in the Divorce Act were repealed and replaced with the terms “decision-making responsibility” for a child and “parenting time”. In addition to a change in the terminology, the amendments to the Divorce Act provide the Court with an enumerated set of factors to consider when determining which parenting order is in a child’s best interests.

The relevant provisions of the Divorce Act relating to parenting are set out below:

Best interests of child

7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Factors to be considered

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

[184] The report that the OCL produces upon the completion of it’s investigation is not an expert report such as might be had, pursuant to an order made under section 30 of the Children’s Law Reform Act (“CLRA”) or other legal authority. The author of an OCL report is a fact finder. Although s.112 of the Courts of Justice Act gives the author of the report, on behalf of the OCL, the authority to make recommendations on the resolution of the issues, the recommendations are only a starting point; they are not the last word: Van Bilsen v. Van Bilsen et al.[^37]

[185] In Van Bilesen, supra, neither party had filed a Dispute to the OCL’s Report and the relevant facts were not in dispute; the parties agreed that the father should have more time with the children than he had at the time of the trial; there were many ways by which an expansion of his time with the children could be accomplished; and the OCL’s recommendation had represented a compromise, intended to enable the parties to settle the case rather than continue to litigate (litigation often creating friction and animosity). Aston, J. agreed with the mother that there were valid reasons to opt for a different residential regime. He ordered a residential regime that was different than that recommended by the OCL.[^38] Aston, J. appears to suggest that, prima facie, a recommendation of the OCL, which has been provided pursuant to an order under s.112 of the Courts of Justice Act will not have the same evidentiary value as a report provided by a person “who has technical or professional skill to assess and report to the court on the needs of the child[ren] and the ability and willingness of the parties or any of them to satisfy the needs of the child[ren]”, pursuant to an order made under s.30 of the CLRA.

[186] In Ganie, supra, in considering the issue of whether the court should consider the CL’s Report on a motion for a temporary custody/access order, the motions judge confirmed that the court should not delegate its decision-making authority on parenting arrangements to an assessor: Strobridge v. Strobridge.[^39] Further, he confirmed that in Woodhouse v. Woodhouse,[^40] the Court of Appeal upheld a trial judge’s observations that an assessor’s evidence was not determinative of the issue before him, but was merely one piece of evidence for his consideration, and that it was up to the him, not the assessor, to determine the facts. In other words, it is up to the court, and not the assessor, to determine both the facts and the parenting order that is in the best interests of the children.

[187] Price, J. confirmed that “the weight that the court assigns to the clinical investigator’s recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based his/her recommendations”: at para. 20. Quoting the Court in Tacit v Drost [^41]and Woodhouse, supra, at p. 435, he further confirmed that the court “should examine the assessment process, how many visits were involved, what tests were used, whether the standard assessment guidelines were met. The court must thus examine how the assessment was conducted, including the process used, how many visits there were, and, again, whether the standard assessment guidelines were met, when determining what value, if any, to place on the assessment and its recommendations. Ganie, supra; See also, Lerner v. Lampkin [^42].

[188] After confirming the principles that are applicable in relation to the evidentiary value of an assessment, Price, J. then went on to say that a OCL’s Report “differs from a full CLRA s.30 expert assessment” in that an “OCL report is, in its nature, a fact-finding report”[^43] and the recommendations of the OCL are “a starting point; not the last word”.[^44]

[189] I appreciate that the facts as found by Eva Casino, the clinical investigator, appointed by the OCL to conduct an investigation and report in this case, and the recommendations that she made, are not determinative of any facts or issues in this case, and her report and recommendations resulted from steps she took in an investigation under s.112 of the Courts of Justice Act and not as an expert appointed to complete a parenting assessment under s.30 of the CLRA or other legal authority. On the other hand, I also appreciate that the investigation arose from a request for the assistance of the OCL in this case, which had become a very contentious dispute between the parents, which involved, among other things, medical and educational issues relating to G. and allegations of family violence by Agueda against the children, and most particularly, alleged assaults by Agueda against S. during the January 16, 2019 incident. Further, I note that the OCL determined that this matter merited an investigation and report under s.112.

[190] Ms. Casino has a Masters of Social Work degree and has 35 years of experience as a children’s therapist in mental health centres, working with families and children, and also working as a clinician with the OCL.

[191] The steps that Ms. Casino took during the course of her investigation are set out in her Report, dated November 16, 2019. In general terms, she conducted two home observational visits with each parent. She observed the children in Agueda’s home on a weekday night, at 7 p.m. and on a weekend day (at a park). She observed the children in Bogdan’s home by way of two weekend visits. The first visit was a family outing to Brickworks; the second was in the backyard of Bogdan’s home. Bogdan’s partner, Larissa, was present during both of the visits that Ms. Casino observed when the children were in Bogdan’s care. Ms. Casino met with each child separately at Bogdan’s home but said that she had been unable to do that at Agueda’s home. Ms. Casino also interviewed numerous individuals and reviewed material such as CAS’s notes; doctors’ reports and school-related reports and plans relating to G., in particular.

[192] The parenting order that the OCL recommends is dramatically different from the terms of the partial parenting agreement into which the parties entered in 2016, which was a final agreement. The parties followed the partial parenting agreement in terms of the graduated increase in time that Bogdan would have with the children. The parties had also agreed to a joint custody arrangement. While Agueda takes the position that the parents have, for the most part, been able to agree on the significant issues affecting their children and that the children should continue to live with each parent one-half the time, she seeks to adjust the schedule from the current 2-2-5-5 schedule to a week-on/week-off schedule. Bogdan takes the position that, despite their final agreement, the Court should make an order under the Divorce Act, providing that he has the sole decision-making responsibility for the children and the children are to live with him, according to the residency schedule that the OCL recommends (effectively, that the children’s time with their mother be reduced from one-half the time to two overnights out of 14 nights plus mid-week access after school until 7 p.m. on three days in the first week and on one day in the second week of the 14-day schedule).

[193] Bogdan did not file a Dispute to the OCL’s Report. Again, he seeks a final parenting order, in accordance with the OCL’s recommendations. Agueda filed a Dispute to the OCL’s Report. [The OCL did not change her Report or the recommendations in it after receiving the Dispute.] At the end of the trial, Agueda submitted that the Court ought to give little weight, if any, to the OCL’s recommendations, for reasons, which I have considered in the context of all the evidence that was before me and generally categorize as follows:

a. Ms. Casino’s process was flawed as a result of the way in which she had scheduled the home observational visits with each parent; her failure to interview material third-party collaterals involved with the family; her failure to adequately investigate concerns that third parties raised about each party; and she failed to adequately investigate concerns that she had about Agueda.

b. Ms. Casino demonstrated that she was biased in favour of Bogdan; and

c. Ms. Casino failed to consider or give appropriate weight to material and significant facts.

[194] For clarity, in arriving at the conclusions I have regarding the facts in this case and the parenting order that is in the best interests of the children, I have considered all of the evidence adduced before me, including the OCL’s Report and Ms. Casino’s evidence. It is after having done so that I have concluded that the parenting order that is in the best interests of G. and S. is the order that I have made in paragraph [257] below of these Reasons for Decision.

[195] To be clear, on a review of all of the evidence that was adduced during the trial; the parties’ submissions; and the applicable “best interests” test under the Divorce Act; I have concluded that the recommendations of the OCL, made on November 16, 2019, are not in the best interests of the children.

[196] There is no doubt that Ms. Casino is an experienced social worker who has had substantial experience as a children’s therapist, working with children and families, and a clinician with the OCL, conducting hundreds of assessments on behalf of the OCL over her 35-year work history. It was clear from her testimony before me that Ms. Casino took this matter seriously and believed that, notwithstanding the challenges being made to her report, the recommendations in it were in the best interests of the children. I do not doubt her good faith. I also appreciate that she met the children and also spent some time with the children and each of their parents. I have neither met the children nor had an opportunity to personally observe their interactions with the parents (or others such as Bogdan’s partner, Larissa, or their sibling, L.). I also accept that Ms. Casino attempted to be independent and thorough in the manner in which she conducted the investigation.

[197] Although the amendments to the Divorce Act were not in force at the time that the OCL conducted her investigation in this case, a clinician conducting an investigation into the issues of custody and access in an application under the former provisions would have required the clinician to be live to and reasonably consider all of the matters that are relevant to the factors contained in the Act as it now stands.

[198] On a consideration of the shortcomings of the investigation; the failure of the investigator to reasonably consider all factors related to the circumstances of the children in determining the terms that would be in the best interests of the children; and evidence regarding post-investigation facts of which the investigator would not have been aware, the recommendations should be given minimal consideration. On the evidence as a whole, I am satisfied that a parenting order in the terms proposed by the OCL would not be in the best interests of the children. The recommendations in this case are certainly not a starting point as a viable proposal, which, with the adjustment of some of its terms, perhaps, would result in parenting terms that are simply not in the best interests of the children. Given that the OCL had effectively been asked by the Court to conduct a s.112 investigation; the time and effort the OCL took to conduct such an investigation; and the fact that one of the parties has relied on the OCL’s Report and recommendations in support of the relief he sought at trial, I intend to describe the material shortcomings of the investigation and resulting Report in detail below:

a. Ms. Casino accepted Bogdan’s statement that when G. and S. were residing with him primarily for 6 weeks in January and February 2019, after the “incident”, there was a significant improvement in their behaviour. This information was not verified by any third parties or collaterals;

b. Ms. Casino accepted Bogdan’s statement that teachers had reported that G. was better behaved and more compliant at school during the 6 weeks he was residing primarily with Bogdan. During cross-examination, however, Ms. Casino admitted that she was not able to verify this with G.’s teachers;

c. Ms. Casino accepted Bogdan’s statement that during the week of April 24th, 2019, S. reported that her mother had hit her and that S.’s daycare expressed a concern about S. “hitting a lot” that week, an usual behaviour for her. During cross-examination, Ms. Casino admitted that she was not able to verify this with S.’s daycare. In fact, when Debra Levin (the Director of Purple Tree) testified, she stated that S. had hit another child once in April, which was “normal” conduct for a child of that age in daycare;

d. Ms. Casino either disbelieved or ignored Agueda’s explanation of what had transpired on January 16, 2019, between her and S. Agueda had told Ms. Casino that S. had been having a tantrum and Agueda was picking her up off the ground;

e. Ms. Casino either disbelieved or gave insufficient weight to the fact that Agueda had told her on October 17, 2019, that the Crown had advised that the Crown would likely withdraw the assault charges. The assault charges against Agueda were withdrawn;

f. Despite Agueda’s explanation regarding the incident, and in the face of CAS’s findings that Agueda was remorseful about the incident, Ms. Casino found that she was not remorseful. Ms. Casino testified that she elected not to speak to the CAS worker because she had the CAS worker’s notes. Ms. Casino ignored or gave insufficient weight to the CAS worker who advised her that Agueda was remorseful for the incident, when she found in her custody and access assessment that Agueda was not remorseful.[^45]

g. She accepted Bogdan’s assertions and found that it was “notable” that “S. refused to go back to the day care where the assault occurred and started to bed-wet when overnight access started again with her mother”[^46] (emphasis added). If S. had any tantrums during the week after the January 16, 2019 incident, it may have been because she had been abruptly removed from the primary care of her mother, with whom she was residing primarily at the time. S.’s bedwetting upon return to her mother’s home may have been the result of several emotional causes, including a concern that she would be moved again or that her father had been or would be upset that she had returned.

h. Ms. Casino placed weight on the fact that Agueda had strongly advocated against G. starting a trial of medication for ADHD prior to a formal diagnosis being given and Dr. Garfield had described her as “aggressive” in a meeting he had had with both parents about ADHD medication for G. before a formal ADHD diagnosis had been made. Further, Ms. Casino placed significant weight on the fact that the supervisor at Purple Tree had told her that Agueda had yelled at her in front of S. In fact, during cross-examination, the supervisor at Purple Tree, Ms. Levin said that Agueda was upset about how Bogdan had improperly registered S. at the day care but that their dialogue did not take place in S.’s presence.

i. Ms. Casino either disbelieved or ignored Agueda’s statements that Bogdan’s issues with St. Brigid’s school arose only arose when he moved out of the Beaches neighbourhood and moved with Larissa to Bayview and Davisville;

j. Ms. Casino ignored or did not give sufficient weight to the fact that Bogdan changed S.’s daycare from the Woodbine daycare to Purple Tree within a week of the January 16, 2019 incident and did not advise Agueda of this unilateral decision. Ms. Casino did not give sufficient weight to the fact that in registering S. at Purple Tree, Bogdan completed a registration form in which he eliminated Agueda’s surname from S.’s last name and listed Larissa as Parent Two.

k. Ms. Casino either ignored or gave insufficient weight to the fact that in the summer of 2018, Bogdan enrolled G. and S. in a summer camp at the Downtown J.C.C. even though the children were already participating in a summer program at their daycare. He neither discussed nor advised Agueda of this.

l. Ms. Casino either ignored or gave insufficient weight to the fact that Bogdan refused to allow Agueda to call the children on days when she was not scheduled to reside with them, as per the parties’ partial parenting plan.

m. Ms. Casino gave insufficient weight to the fact that the parties had consented to engage in family therapy and that after agreeing that Joanna Seidel would be the family therapist, Bogdan went to two sessions but then refused to continue with the counselling. This was an indicator that Bogdan was only prepared to support whatever therapeutic interventions he believed were important or productive but that if he did not agree with Agueda, he would not be cooperative.

n. Ms. Casino did not seem to appreciate that the first home observation visit that took place at Agueda’s home commenced at 7:00 p.m. after a day of daycare for the children, after a commute on public transit from daycare, and before they had dinner. Ms. Casino noted that G. was more oppositional with his mother than he was with his father., was equivalent to comparing applies to oranges, given that her first. She had no evidence upon which to compare how Bogdan and Larissa dealt with the children at he end of a work/school day;

o. Ms. Casino placed considerable weight on a snack she saw G. and S. eat on the day that she interviewed G. at the RDS, commenting that the children ate two chocolate brownies for breakfast. In fact, during cross-examination, Ms. Casino admitted that she had concerns about sweets that Agueda gave the children but that she had not verified these concerns with the school or teachers.

p. Ms. Casino gave little consideration to the fact that all disagreements between the parents occurred around G.’s behaviour management and ADHD. Her findings indicate that “although parents have recently agreed on several issues, there are still major disagreements about a home school and the possibility of medication.”[^47] Subsequent to the delivery of the OCL’s Report, the parents agreed on G.’s placement at Lumenus, in a s.23 classroom. As well, subsequent to the delivery of the OCL’s Report, G. was given a formal diagnosis of ADHD by Dr. Marcovitch and the parties were able to agree on G. beginning ADHD medications. Finally, and more importantly, subsequent to the delivery of the CL’s Report when the Covid-19 health crisis began in March of 2020, the parents themselves were able to agree that it was in the children’s best interests to move to a week on/week off schedule, in order to reduce the number of transitions for the children for Covid safety.

q. Ms. Casino concluded that her recommended parenting schedule “reduce[d] overnights in order to provide the children with more stability, but ensure[d] continued regular contact with their mother.”[^48] Although the proposed schedule provided for one home where the children would wake up and go to bed at, it also severely reduced Agueda’s parenting time with the children. Two weekday visits with the children after school for 2.5-3 hours, including travel time on public transit was effectively little more than a couple of visits to McDonalds. The suggestion that she envisioned that Agueda could use the time to take the children to activities was not sensible, given that she would have both children in her care, and she gave no examples of such activities in her Report or in her evidence at trial. It is difficult to imagine what activities she could take both G. and S. to, in which both could be able to participate. Unless that activity were an activity that would benefit G., in particular, at the end of a school day, it is difficult to imagine how G. (with his medical challenges and intellectual differences) would behave. Further, given the time required to travel with the children by public transit from one place to another, having dinner with the children would not be possible. Nowhere in her explanation of the schedule did the CL indicate where or when the children would do their homework, if any, or the impact on G. in particular, of not returning home to Bogdan’s home until 7:00 or 7:30 p.m. on 2 school nights a week. It is clear to me that Ms. Casino prioritized waking up and going to bed in one home, at the expense of the children’s after-school and dinner routines on three of the children’s school nights during the school week in Week Two. For a child like G. who requires structure, routine and predictability, the proposed parenting schedule recommended by Ms. Casino did not allow G. and S., for that matter, to have any downtime until 7:00 or 7:30 p.m. on three schools nights in one week and one school night in another weeks. It also left the most difficult time of day, after G.’s medication has worn off, to Agueda at a time when she would apparently be at public activity, a public restaurant or on the TTC with G.

r. Understandably, Ms. Casino gave weight to the fact that G. told her that having two homes is confusing for him, when he stated, “I don’t know which house I am going to”. She concluded that having a primary home with Bogdan would likely be helpful for G.[^49] In my view, Ms. Casino’s parenting schedule not only does little address G.’s stated concerns, given that he would then not know who was going to be with him on each school day when he got off the bus or he would be going when he was dropped off.

s. In fact, prior to 2019, they had always been in her primary care. A comment Ms. Casino made during the course of her cross-examination said it all. In defending her plan, she stated that the plan would still give Agueda “a fair bit of access”. It was wholly unnecessary to reduce the children’s time with their mother to respond to the coming-and-going nature of a 2-2-5-5 schedule. The children love each parent. There is no evidence that they are not happy at either’s parent’s home. If the children reside with the parents on a week-on/week-off basis, G. will easily be able to know where he will be living as he is spending all week with the parent he is on Friday, when he comes home from school. He will have a proper opportunity to settle into each parent’s home at the beginning of a weekend.

t. Ms. Casino concluded that Bogdan’s and her concerns about physical discipline and Agueda’s anger are significant and that “it is likely that Mr. Chmielewski will be able to provide a calmer home”.[^50] Again, Ms. Casino clearly considered the observational visit that she had in Agueda’s home at the end of a long weekday, but did not do so in such circumstances in Bogdan’s case. Furthermore, it is now known that Bogdan and Larissa are expecting a 2nd child. A home with four children, two of whom are under 2 ½ years of age, is not the circumstances Ms. Casino envisioned by her when she took the position that Bogdan had the benefit of having extra hands available to care for the children.

u. Ms. Casino gave too much weight on Agueda taking S. (then 3 years old) out of Purple Tree in the months of March and April 2019 on her scheduled parenting days when she concluded that this decision did not appear to be in the children’s best interests. Ms. Casino failed to consider the facts that a) Agueda was removing S. from daycare, a fact known by the CAS worker, because S. had been deprived of being with her for 6 weeks prior; b) Agueda was also removing S. from daycare to enable her to spend time with her maternal grandmother who was in Canada from Spain; and c) Agueda had not agreed and was not consulted when S. was placed in Purple Tree, an issue which was before the Court at the time. The conclusion that this was not in her best interests is not supported by the evidence. In any event, once Gilmore, J. made an order that S. no longer be removed from daycare during school hours, Agueda complied with the order.

v. Ms. Casino gave too much weight on Agueda asking Bogdan to agree to return G. to St. Brigid’s after he was expelled from the RDS in finding that this decision did not appear to be in G.’s best interests because he clearly was not managing there. Ms. Casino failed to consider the facts that a) Agueda did not “insist” that G. return to St. Brigid’s nor did she believe it was the perfect school fit for him. Rather, Agueda thought it was better for G. to be in a school program than be at home, and since St. Brigid’s knew G. and had been accommodating his academic and behavioural needs to the best of their ability, it was a feasible stop-gap option to propose; and b) although G.’s behaviour at St. Brigid’s did not improve, the school did provide G. with an IEP and a behavioural plan, and brought an Educational Assistant into his class. Agueda had, at that point in September 2020, agreed to G. attending a new school, but was trying to make arrangements for G. on an emergency basis, while the parties found the “right” school placement for him.

w. Ms. Casino either ignored or gave insufficient weight to Bogdan’s father’s, Mr. Paul Chmielewski’s comments that “it is so unlikely that [the assault event] happened that way”. The paternal grandfather confirmed that S. has had tantrums and thrown herself on the ground, corroborating Agueda’s version of what transpired on January 16, 2019.

x. Ms. Casino either ignored or gave insufficient weight to, Dr. Garfield’s, views of Bogdan at the “intense meeting” that took place about placing G. on ADHD medication prior to a formal diagnosis being given. While Dr. Garfield reported to Ms. Casino that Agueda was “aggressive” in her presentation at the meeting and “her anger was seething”, he also reported that Bogdan was “passive aggressive” and “sits back in his seat and is not forthright in his views”. Both parents were dealing with a stressful period of time with G. having been expelled at school; the assault charges and this ongoing litigation. It is not surprising that Agueda was aggressive at a meeting where medication for ADHD was being recommended without a diagnosis, Bogdan’s “passive aggressive” style only adding to her anxiety that he was trying to either eliminate or discount her views as a parent. Ms. Casino did not consider the fact that by this point in time, Bogdan had unilaterally begun to limit Agueda’s telephone access to the children; deny her supervised access to G. and S., despite being told by the CAS that such time had to be organized; moved S.’s daycare without consulting with Agueda or even advising her that he had done so; and started this case seeking sole custody of the children. By all accounts, I find that Bogdan saw the unfortunate set of circumstances regarding the incident, which gave rise to the criminal charges, as an opportunity to set himself and be seen as the parent best able to manage the children. The decisions Bogdan made during this time period are indicators to the Court that he completely discounted Agueda’s role in the children’s lives.

y. Ms. Casino devoted 19 sentences to Bogdan’s therapy with Dr. Kimberly Watson, a psychologist he saw on only 4 occasions, despite the fact that she did not consider Bogdan’s passive-aggressive approach; did not look into the issue of Bogdan’s Post Traumatic Stress disorder issue, which concerned CAS; and did not speak to Bogdan’s parents, to determine why they and Bogdan had ceased to have a relationship.

z. Ms. Casino gave insufficient weight to or ignored the decisions Bogdan made once CAS became involved with the family in January 2019. Ms. Casino’s Report confirms that on January 30, 2019, the CAS told the parents to come up with an access schedule together, to be approved by the agency. Bogdan sent an email to Agueda in which he said the CAS worker suggested that Agueda see the children 2 times a week. Agueda and CAS confirmed that CAS did not suggest 2 days a week. Further, on February 7, 2019, the CAS worker advised Bogdan that two days a week was not enough and asked him to follow the court ordered schedule, without overnights and with supervision. Bogdan’s refusal to cooperate with Agueda and arrange for her access with the children, knowing that such access would be supervised, clearly placed his own needs ahead of the children’s needs and best interests. Agueda had only seen the children 11.5 hours out of the 23-day period. Bogdan’s decision-making with respect to the children during this period of time showed an effort to limit the children’s time with their mother when any alleged risk of harm could be addressed by supervision.

aa. Ms. Casino gave no weight to the fact that Bogdan brought a motion, seeking an order that G. and S. reside primarily with him, five days after the January 16, 2019 incident. This is an indicator that Bogdan was attempting to gain a tactical advantage over Agueda in terms of his custody claim;

bb. Ms. Casino gave insufficient weight or ignored the CAS worker’s opinion that Agueda was “terrific” with the children and displayed a lot of positive parenting. The parenting plan recommended by Ms. Casino did not sufficiently consider positive findings and information about Agueda. It was inconsistent with CAS’s observations. It had been CAS’s role to investigate the issue of whether the children were at risk of harm. Ms. Casino’s own report recognizes many positive parenting strategies and skills shown by Agueda. However, Ms. Casino supports her conclusion by highlighting Agueda’s anger and lack of self-regulation skills. [The evidence overall before the Court did not support the emphasis she had placed on these issues.]; and

cc. Ms. Casino gave no weight to any cultural considerations in terms of Agueda’s heritage or Spanish upbringing and how that may relate to her parenting style, food choices and typical meals of a family in Spain and/or discipline. When I asked Ms. Casino what cultural considerations she had employed in her findings and parenting recommendations given that Agueda had moved to Canada as an adult, Ms. Casino did not have an answer. This criticism was raised by Agueda specifically in relation to Ms. Casino’s stated concerns about Agueda’s food choices for the children, in item #39 of her Dispute of the OCL report.

Issue One: Parenting

Application of the Law to the Facts

(a.) Determining what is in the best interests of G. and S.

[199] Turning to the factors contained in s.16 of the Divorce Act, to determine what is in the best interests of G. and S., the court must consider all factors related to the circumstances of the children, and, in doing so, must give primary consideration to their physical, emotional and psychological safety, security and well-being. These factors include the following:

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

i. The children initially lived with Agueda primarily. However, they have both now resided with their parents equally for more than two years. They are bonded to both parents and love each of them. Ms. Casino did not question this. They need to continue to live with both parents in a meaningful way.

ii. Since birth, other than for the 6-week period following the January 2019 incident, the children have never been in their mother’s care for less than half the time. There is a real risk that their need for stability, consistency and continuity would be undermined by a significant, let alone dramatic, reduction in the time they live with their mother. G.’s specific need for predictability can be addressed without incurring this risk.

iii. Both G. and S. need stability, consistency and continuity, but predictability is critical for G.’s needs. Ms. Casino indicated that G. found having two homes confusing when he said, “I don’t know which house I am going to”. It is not surprising that a 2-2 period following the two 5-5 period under the parenting schedule would leave a young child wondering when the shifts in the schedule were going to change. There is no evidence whatsoever to suggest that either child feels that he/she is spending too much or too little time with either parent.

iv. The confusion clearly had to come from the change from the 5-5 periods to the 2-2- periods, then back to 5-5- periods. The parenting schedule, which the OCL has recommended does little, in my opinion, to respond to G.’s confusion. Over and above the immediate confusion that a schedule reducing the children’s time in their mother’s home from 7 nights our of 14 to 2 out of 14 will cause, the result of the proposed school-week time that they would be with her is that in “Week One”, Agueda would pick them up after school on Tuesday and on “Week Two”, she would pick them up after school on Tuesday and Thursday. To have any certainty as to who will be picking them up on a particular day, G. would have to think about what day it is and whether they are in “Week One” or “Week Two”. In addition, G. would not necessarily know where he would be going when picked up, if, as Ms. Casino testified, dinner or activities near Bogdan’s home would be taking place. G. has ADHD. Even if Agueda were able to speak to the children the night before or the morning of such visits (which is doubtful, given Bogdan’s prior cessation of phone calls between Agueda and the children when at his home), G. would not necessarily remember the plan by the end of the school day. G. clearly needs a plan that is relatively easy to remember and thus less stress free.

v. All of the professionals agree that G. does not do well with transitions. Transitioning from the end of a school day to a public place to have dinner or to both have something to eat and participate in an activity of some kind, which would have to engage G. (due to his ADHD), with a return to Bogdan’s home, as late as 7:30 pm, if an activity had taken place, would involve several transitions on a school night, particularly when public transit would also be involved. It would not bode well, in my view, for G.’s next day at school.

vi. The parenting schedule that has been in place since March of 2019, for the last two years and four months, confirms that the children are able to spend 5 days a week with each parent, without difficulty. The children are used to spending the school week in their parents’ respective homes on a week-on/week-off basis. Further, when the Covid-19 pandemic began in March 2020, the parties agreed that it would be safest for the family if the children resided with each parent on a week-on/week-off basis. Neither party testified that the children had experienced any difficulty with such an arrangement.

vii. The recommended parenting schedule neither reasonably permits the children to have downtime after school or engage in extra-curricular activities. It does not take into consideration the fact that Agueda does not drive, which means that the children will have to spend these visits in a restaurant setting for the most part. While the CL’s plan envisioned more stability for the children because they would be sleeping in Bogdan’s home at night, rather than the children sleeping in two different homes half the time, there is no indication in the evidence that this is problematic for the children.

viii. During the course of his evidence, Bogdan said that he had chosen the times for his home observational visits (both taking place on weekends) because he did not want the visit to occur on a transition day; on those days, the children were the “most dysregulated, would not be at their best and [he] did not think it would be a fair assessment of the house”.

ix. This visit followed the first home observational visit with Bogdan and the children, which was not a weekday visit at the house but a weekend trip to Brickworks. Unlike Agueda’s circumstance, Bogdan had been able to select the day, which Ms. Casino ultimately and begrudgingly admitted had not been “completely fair”. In addition to this flaw in the process, Ms. Casino acknowledged that she had interviewed the children separately during one of Bogdan’s home observational visits but she had not had time to do that when she was at Agueda’s.

x. The OCL’s parenting recommendations were based, as well, on Ms. Casino’s additional concern that G. had exhibited more oppositional behaviour in Agueda’s care, a seed which had clearly been planted during the first home observational visit, which took place in Agueda’s home on a weekday and time, which Ms. Casino had selected, even though Agueda would have preferred another day. The visit took place at 7:00 p.m. at the end of a day where the children had been in daycare all day; taken public transit home; and arrived home with Agueda at 7:00 p.m. , with Ms. Casino waiting for them. The children had not yet had dinner.

xi. Danielle Maingot, the CYW worker who works with G. in his classroom, has had the opportunity to make the observations she did and her evidence was clear and convincing that the school observes no differences with G. whether he is taken by his mother or his father and/or whether he was at his mother’s home or his father’s home the night before. Further, Ms. Maingot recognizes that for online learning, G experiences difficulties in both parents’ homes.

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:

i. The children are strongly bonded to both parents, who love them.

ii. Agueda’s family lives in Spain. When the incident in January 2019 resulted in Agueda being charged with assault, her mother came to Toronto and supported her, acting as the supervisor during the weeks when Agueda’s time with the children had to be supervised.

iii. Bogdan’s relationship with his parents is problematic. According to Agueda, it was her understanding that Bogdan had cut his parents’ time with the children off. As a result, she has ensured that the children have continued to maintain their relationship with their paternal grandparents.

iv. Ms. Casino appeared to accept as true, Bogdan’s position that his parents were largely to blame for “cut-offs” (Ms. Casino’s terms) in their relationship due to their actions. As an example, she stated that the paternal grandparents had “rejected Bogdan’s partner [Larissa], supported Agueda over their son and expressed their uninformed views too vehemently”. During the trial, Larissa testified that Bogdan’s father had only met L. (his new granddaughter) once, for 30 minutes, despite the fact that L. was 20 months old. Bogdan’s mother had never met L. Ms. Casino did not interview either of Bogdan’s parents.

v. As between Agueda and Bogdan, Agueda has been the parent who has ensured that the children continue to maintain their relationship with their paternal grandparents. I am satisfied that she will continue to be, unless there is a repair to Bogdan’s relationship with his parents.

vi. Given that the children live with Bogdan half-time, Larissa and L. obviously play an important role in G.’s and S.’s lives. As I have previously expressed in these Reasons, I have serious concerns about the lack of respect that both Bogdan and Larissa have shown for Agueda role in the children’s lives as their mother. I am particularly concerned about the apparent lack of insight that they have into the negative impact that this lack of respect and insight will have on G. and S., let alone their own children as they get older. Both Bogdan and Larissa ought to have appreciated the impact that actions, which Bogdan has taken since he moved out of the Beaches area and in with her at 305 Belsize, would have such as the move of S.’s daycare from the Beaches to a daycare closer to her home; placing the children in a summer camp outside of the Beaches area, when the children had been attending a daycare program; proposing schools for the children outside of the Beaches area after Agueda was criminally charged and in the middle of the school year; and hiring an additional caregiver in their home to assist with G. when G. was asked to leave the RDS, rather than agree that G. would return to St. Brigid’s (which was in the Beaches area) until they found a better placement, showed a complete disregard for the fact that Agueda does not drive; did not have the financial resources that would enable her to handle G.’s absence from school in the same way that Bogdan had decided to; and would naturally and understandably have felt threatened by the steps taken that would further remove the children’s ties to the Beaches and thus to her.

c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

i. Both parents testified that they are willing to support the children having meaningful relationships with the other.

ii. The evidence before this Court is clear that Agueda support supported and fostered the children’s relationship with Bogdan. She agreed to a parenting plan in 2016, which over time would result in Bogdan having the children in his care half-time. She complied with the terms. Further, she supported the children’s relationship with Larissa, despite feeling shut out of the children’s lives by decisions they have made. This, again, was evidenced early on when Agueda reached out to Larissa, to arrange a direct meeting with her once it was clear that Bogdan had introduced both children to her.

iii. Prior to moving to 305 Belsize, Bogdan sold his half-interest in the matrimonial home to Agueda. He resided about 400 meters away from her and the children in the Beaches. He was aware that Agueda does not drive. The children attended daycare or school in the Beaches. Agueda had moved her job to a location in the Beaches, to be able to pick the children up from school when she had them and when asked to pick them up by the school on Bogdan’s time.

iv. While I appreciate that Bogdan loves the children and wants what is best for them, Bogdan became involved in a new relationship, which resulted in his moving out of the Beaches.

v. Bogdan has failed to keep Agueda informed about important issues, which impact the children’s lives, such as failing to advise her that he was moving from the Beaches neighbourhood in advance of doing so; failing to advise her that the children would be having a new sibling, not only once but a second time (when he clearly aware that knowing about such issues in advance was important to Agueda); and failing to advise her when L. was born.

vi. He subsequently terminated Agueda’s right under their parenting agreement to speak to the children by phone when they were at his home.

vii. While I am not satisfied that Bogdan had a conscious plan to remove Agueda from the children’s lives completely, I have concluded that, after Agueda was charged criminally, Bogdan saw the situation as an opportunity to gain custody of the children and immediately took steps to further his position.

viii. Bogdan made or attempted to make numerous decisions, which eliminated Agueda from important parental decisions, such as changing S.’s daycare and summer arrangements.

ix. He took advantage of the unfortunate January 2019 incident, in not proactively working with Agueda to re-establish her contact and meaningful time with the children, even when directed to do so by CAS. Regrettably, I do not believe that Bogdan moved S.’s daycare due to S.’s resistance to returning to the Woodbine and Danforth daycare. His evidence at trial demonstrated that he lied when he had said that he had tried to take S. to the daycare on a number of days after the incident and she had essentially refused to go. This false evidence undoubtedly had an impact on Ms. Casino’s belief that Agueda had assaulted S. This very significant lie rendered his evidence about improvements in S.’s conduct in his home suspect. Ms. Casino had also accepted that evidence. What is of most concern about the change in S.’s daycare is not that he moved S. out of the daycare in the Beaches area to a daycare, which would have felt foreign to her, within a week of the incident, but that when Bogdan completed the Purple Tree application/registration form, he both excluded Agueda’s surname from S.’s legal name on the form and listed Larissa as “Parent Two”. Agueda is not shown as a parent on the form.

x. In her evidence, Ms. Stanley (S.’s the RDS teacher) advised the Court that Bogdan treated Agueda in such a manner when they were in the classroom together, that they moved her away from him. Agueda had acted appropriately. She testified that he made negative comments about Agueda in front of S., who was also present.

xi. A parenting schedule and decision-making regime which gives Bogdan sole authority, after consulting with Agueda, does not make sense in these circumstances. There is no track record, whatsoever, of Bogdan communicating or consulting with Agueda over important decisions that impact G. or S. Rather, it is clear that Bogdan does everything he can to avoid communicating with Agueda.

d. The history of care of the child;

i. The evidence is clear that both parents have taken full responsibility for the medical and educational aspects of the children’s care, including taking them to their medical and dental appointments; attending and arranging parent-teacher meetings; comforting and soothing the children when they are upset in the middle of the night or when they are sick; addressing all of their physical and emotional needs and nurturing them.

ii. Agueda alone has cared for the children when they are with her.

iii. On the other hand, it is somewhat of a mystery as to who cares for G. and S. in Bogdan’s home. In arriving at her recommendations, Ms. Casino stated that Bogdan’s and her concerns about physical discipline and Agueda’s anger were significant and “it [was] is likely that Mr. Chmielewski [would] be able to provide a calmer home”. During her trial testimony, she referred to the benefit that Bogdan has in that Larissa provides another pair of hands.

iv. Yet, prior to September 2019, Bogdan and Larissa had a caregiver in their home. When B. was asked to leave the RSD, they hired a second caregiver. The second caregiver has remained with them. Thus, they have had two caregivers during the time that they have had L., plus G. and S. half the time, in their care.

v. It appeared from the evidence regarding G.’s Concerta medication, that a caregiver other than Bogdan and Larissa may well have been responsible for giving G. his medication.

vi. Ms. Casino’s report is silent about the existence of any third-party caregivers in the home. It is possible, then, that four adults have been involved in the care of L., plus G. and S. on a half-time basis. Bogdan seeks to have the children in his care for all but 4 to 5 nights a month. In addition, Bogdan and Larissa are going to have a second baby shortly. Thus, G. and S. would be residing in a home in which two other children under the age of 2 1/2 will require significant attention. It is not at all clear that the environment in which G. , in particular, would be living be a calmer one for G. than it would be in Agueda’s home. This is particularly the case, given that I am not satisfied that physical discipline by Agueda is a present concern. Not only did Agueda seek assistance to deal with the manner in which she had reacted to S.’s tantrum on January 16, 2019, the evidence as a whole suggests that there have been no alleged incidents of improper discipline or inappropriate anger on Agueda’s part since April 2019. I am satisfied that a week-on/week-off arrangement and the decision-making terms that I am ordering will alleviate the apprehension and fear that Agueda has understandably had more or less since Bogdan moved out of her area. Third parties who were asked, during their testimony, about Agueda’s expressions of anger, expressed that they understood that it had come out of such apprehension.

e. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage:

i. The evidence demonstrates that Agueda is committed to encouraging the children to speak the first language of both parents, being Polish and Spanish.

ii. Further, Agueda has been committed to encouraging the children’s religious heritage, which was common to the parties. Larissa has a different religious heritage. Since the fall of 2018 (around the time when Bogdan wanted G.’s to leave St. Brigid’s and move to Maurice Cody Public School), Bogdan has abandoned his religious faith, preferring to be an atheist. Although this raised some questions for G., who was attending a Catholic school when Bogdan informed him of his atheism, I have no concerns in this regard. So long as the parents inform them about different religions or atheism in an age-appropriate, it is generally in the best interests of children to learn about religions other than their own.

iii. During the course of the trial, I first heard about a game, which Agueda had been playing with the children, in which she apparently gave the children a “casque” on their bottoms. Bogdan testified about a game that the children began playing in his home in November 2018, G. and S. were hitting each other. The children told him that their mother would hit them on their bum. Between then and the end of April 2019, S., in particular, advised Bogdan on several occasions that Agueda had given one or the other them a casque. Three days before the incident, she told Bogdan that her mother had given G. a “super casque” in the mouth and that G. had bled. Dr. Garfield found no evidence of injuries and G. did not say that he had been hit by Agueda. When she was interviewed by Detective McFatridge about the incident involving S. on January 16, 2019, S. told the officer that she had been given a casque. While Ms. Casino referred to the children’s references to “casques”, it is not clear whether she asked Agueda about the game itself. Further, Ms. Casino did not discuss the issue with CAS, to determine whether the issue of this game had been addressed with Agueda. Agueda came to Canada from Spain as an adult. In a case such as this one, asking about issues such as to what extent physical discipline is acceptable in a party’s country of origin or a game such as “casque” is played in the person’s country. Such questions may lead to valuable information regarding a parent’s conduct, including whether a parent is prepared to and able to cease particular behaviours on request.

iv. Even though Agueda had moved to Canada from Spain to pursue her relationship with Bogdan as an adult, Ms. Casino’s report contains no comments or information about any cultural considerations that may impact Agueda’s parenting, parenting style, discipline practices, food choices and communication style with Bogdan. One would have thought that it was incumbent on Ms. Casino and, any clinical investigator, conducting a s.112 custody and access assessment to consider all cultural factors that may affect Agueda’s parenting since cultural competence is critical to assess Agueda’s parenting abilities especially in relation to those of Bogdan and to ensuring that both parties have access to justice, given that Canada is culturally complex and a multicultural society.

f. Any plans for the child’s care;

i. Bogdan seeks to have the children reside with him on a primary basis, subject only to Agueda having weekend parenting time with the from Friday after school until Sunday evening every other week and the three after-school visits during every 14-day period. The roles that the four adults in the home will play in the care of G. and S. is not known.

ii. Agueda seeks to have the children continue to reside with each parent, but on a week-on/week-off basis.

iii. Both parents testified that they want what is best for the children. Despite the conflict that has existed between them, particularly since Bogdan moved to 305 Belsize and even more so after Agueda was charged criminally and Bogdan began to take steps that would reduce the children’s ties to the Beaches area, the parents have been able to arrive at numerous major decisions for the children that are in their best interests. The parents are both committed to G. continuing in the s.23 classroom at Lumenus and to obtaining as much access to supports for him as possible. To date, S. has not required the support of third-party professionals; she appears to be thriving at the RDS. I believe both parents are well-suited and capable of caring for the children.

iv. After hearing the evidence of Dr. Marcovitch, in particular, I was persuaded that the parties should ensure that G. receives behaviour management therapy so the expectations in both of his homes are consistent and predictable Toward the end of the trial, I advised the parties that I was disposed to make such and order but asked that they consider this and provide me with their submissions after having done so. After having an opportunity to consider my thoughts about such a step, I was advised that both parents had input and agreed to the order that I have made for the intensive behavior management therapy.

g. 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. While each parent expressed that he/she is willing to care for and meet the children’s needs, they do so in different ways. Both Agueda and Bogdan are able to look after and meet the needs of G. and S. in their respective households. Agueda’s approach appears to be one in which she takes the least intrusive step first. I say this because Agueda wanted to try therapy and other methods to address G.’s oppositional behaviours before trying ADHD medication. Bogdan, on the other hand, was prepared to start G. on a trial of ADHD medication, even though a formal diagnosis had not yet been made. Neither parent was right. Neither was wrong. Rather, different parenting styles would lead one to choose one approach as opposed to another. I believe, together, the children can benefit from both parties’ parenting styles.

ii. Despite the concerns of Bogdan and Ms. Casino about Agueda, which are contained in the OCL’s report, I accept the evidence of Leslie Fraser of the CAS. Her evidence was clear, convincing, and cogent. She had no motive to lie. She found Agueda to be a “terrific” parent with positive parenting skills. Of all of the third-party professionals who testified, she was observing Agueda at a time of extraordinary stress – shortly after Agueda was charged. None of the other third-party professionals expressed any concern about Agueda’s ability to parent G. and S., let alone any concern that would justify a parenting-time order reducing her time with the children from 7 nights out of 14 to 2 nights.

iii. Again, Ms. Maingot’s evidence was that the school observes no differences with G., whether he is taken to school by his mother or his father and/or whether he was at his mother’s home or his father’s home the night before, was clear and convincing. She added that G experiences difficulties with online learning in both parents’ homes.

iv. According to Ms. Stanley, it appeared that Bogdan was on a “witch hunt”, in an attempt to “catch” Agueda in some undesirable parenting situation and not giving her the benefit of the doubt. Ms. Stanley’s evidence - that Bogdan spoke negatively about Agueda to the teachers in front of S. rings true. Bogdan’s actions after the January 16, 2019 incident demonstrate that he felt empowered by the immediate impact of the unfortunate January 16, 2019 incident on Agueda and used it in ways that were certainly not in S.’s best interests.

v. The evidence adduced at the trial did not prove that Agueda has a mental health issue that affects her ability to parent G. or S.

h. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

i. As I have found above, the evidence demonstrates that Bogdan is not willing to communicate openly with or consult with Agueda on all matters regarding the children. It is for precisely this reason that I decline to make the decision-making order recommended by the OCL. The court does not have confidence that either Bogdan or his partner will willingly share information with Agueda regarding the children.

ii. When Bogdan decided that he was going to introduce the children to Larissa fairly early on in his relationship with her, he did not tell Agueda of his intention to do so or communicate this decision with her. The introduction of children to a new partner is a significant decision and one about which many separated parents disagree and seek outside advice from mental health professionals. There are some professionals who believe that children ought not to be introduced to significant partner until the relationship is, at a minimum, 6 months old. There are other professionals who believe that children should not be introduced to new partners for at least a year. Whatever parents decide to do, this is certainly an important issue that warranted a dialogue between Bogdan and Agueda. Bogdan, however, did not seem to seek Agueda’s consent to introducing G. and S. to Larissa, nor did he give her a heads-up that he was doing so. That was a decision Bogdan made that, in my view, was not in the children’s best interests. Surely, it would have made sense for Agueda to know that G. and S. were being introduced to Larissa, so that she would be prepared to address any questions or worries they might have, in a child-focussed manner. Instead, Agueda was taken by surprise when she learned this important information from the children. In response to learning that Larissa would be part of the children’s lives and vice versa, Agueda took the initiative and arranged a direct meeting with Larissa. It was a decision step that, in my view, was child-focussed and demonstrated an ability on Agueda’s part to set her own needs and emotions aside in order to do what is best for the children.

iii. Bogdan refused to communicate openly with Agueda when he decided to move with Larissa to 305 Belsize, which is not in the Beaches neighbourhood. Bogdan advised Agueda when the move was about to happen. Surely, Bogdan knew that Agueda would have concerns about the move, given that he knew that she does not drive or have a driver’s licence.

iv. When Bogdan and Larissa were expecting L., neither of them felt it was important to tell Agueda about it. Agueda found out about it from his lawyer when she was in court on a matter in this case. While Bogdan’s and Larissa’s life is not an open book, it is always in the best interests of the children that information relevant to them be communicated between the parents. The decision by Bogdan and Larissa not to do so, is indicative to me that they placed their own needs ahead of the children’s needs and best interests. G. is 7 years old but has ADHD. Suggesting that children, ages 5 and 7, should be the messengers of important information is the opposite of co-parenting. Young children may forget or not think to pass on the information. Further, children may have an innate sense of the way certain information will be received and choose not to impart it to the other parent. Bogdan had to have known that Agueda would have a reaction to learning such information from one of the children, even if only a negative reaction to having told been the last person to know. This does not bode well for Bogdan in terms of him having sole-decision making authority.

v. Larissa’s testimony was helpful in the sense that it informed me that she does not see Agueda as an equal in terms of parenting G. and S. In particular, during her testimony, Larissa informed the court, as well as Agueda, that she and Bogdan were expecting a second child. Although in cross-examination, Larissa admitted that the arrival of a baby is an important and significant event in the lives of G. and S. and, could cause a period of adjustment for them, Larissa testified that this important information, from her perspective, was only relevant for her to discuss with Bogdan and not with Agueda. Specifically, Larissa testified that she thought the news of the new baby “would come up and [she] didn’t think [she] needed to report it to [Agueda]”. Upon further questions in cross-examination, Larissa admitted that she and Bogdan had communicated the news of a new half-sibling to G. and S. directly but had not thought it was important to communicate this information with Agueda.

vi. Larissa admitted that she had also announced the birth of her first child with Bogdan during a court proceeding and that neither she nor Bogdan notified Agueda when their baby, L., was born or told her the name of the baby. Larissa was clear in her testimony that she believes it was appropriate for G. and S. to come back to Agueda’s house and tell her that they will be having a new sibling as opposed to having Bogdan or Larissa telling Agueda directly. It was clear that Larissa completely de-values Agueda’s role as G. and S.’s mother.

vii. Bogdan’s action regarding the Concerta medication issue is alarming. When the parties met with Dr. Garfield and addressed the fact that G. had apparently not been swallowing the Concerta pill at Bogdan’s house, Agueda went to the trouble to prepare a video in which she showed how she had been able to address the issue successfully. Without advising Agueda, Bogdan went back to see Dr. Garfield the next day and was able to convince him to prescribe a different medication. He did not disclose to Agueda that this had happened. G. had been taking two different medications for approximately five days before Agueda learned what had occurred. G. was taking a different medication in each party’s home. The joint custody agreement was in force at the time (as it still is). His conduct was high-handed and disregarded G.’s best interests rather than further them. I was not provided with evidence about the danger, to G., if any, of his taking two different ADHD medications. Even if it was not dangerous, if it was an easier pill to take, I cannot understand why he would not have provided the information to Agueda.

viii. Agueda takes steps that for the sole purpose of finding out about and then engaging the best possible health-related and educational professionals and educational programs for the children - most particularly until this point in time, G. She has shown that she informs herself about and understands what will or will not assist Bogdan. She was adamant that G. should not attend the RDS for the very reasons that G. was asked to leave the school so soon after starting it. She exercises sound judgment in relation to the children’s needs. She must be involved in decision-making, given Bogdan’s actions in the winter of 2019. In January 2019, at a time of great stress for S., he removed her from the daycare she knew and placed her in a new daycare. Bogdan’s actions after the January 2019 incident raised issues about his motives for the proposals he made. Purple Tree, Maurice Cody Public School and the RDS are all located outside of the Beaches area. Agueda does not drive. Decisions relating to professionals, schools and programs must take into consideration their accessibility to the children when they are with Agueda. I have no confidence that the reasonable accessibility of services, schools and programs to both parties would be considered by Bogdan, if he were to have sole decision-making authority.

ix. In summary, the children’s best interests will be assured as much as possible by a parenting plan where the children move back and forth between their parents’ homes. Bogdan and Larissa cannot be counted on to provide information about the children’s lives to or to discuss issues about the children in an effort to both keep her informed and obtain her input. Agueda has much to offer in terms of the parenting of their children. When Bogdan pushed to have G. attend the RDS, Agueda was correct when she asserted that a private school was not appropriate. Bogdan would not, unfortunately, listen. G. was asked to leave the school almost immediately after he started it, for the reasons that Agueda had given. As a result, a joint decision-making regime with clear parameters on how the parties are to consult with one another is ordered to ensure that communication occurs and a process that requires the parties to cooperate.

i. Any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child;

i. Having considered the evidence as a whole, I am not able to reach a conclusion as to whether Agueda engaged in family violence during the January 16, 2019 incident. It is clear that an incident occurred, which it raised child protection concerns. The matter was investigated. Criminal charges were laid and subsequently withdrawn. It is impossible to know what role the focus on the casque game after November 2018 may have played when S asserted that her mother had used a casque on her on January 16, 2019 (3 days after she had asserted that she had used a “super casque” on G.’s mouth, which neither Dr. Garfield verified or G. indicated had happened.) Agueda denied hitting S. during the incident but admitted to the CAS worker that she recognized that she had not dealt with S.’s tantrum well and needed to engage in personal counselling. She took a parenting course and went for personal therapy. To my understanding, no further allegations regarding unacceptable forms of discipline or improper expressions of anger by Agueda have been made since S.’s April 24, 2019 assertion that Agueda had hit her in the eye. Nor was there any evidence at trial that the casque game continued to be played by either Agueda or the children. Bogdan’s assertion that S. had been hitting a lot at school at the end of April 2019 was disputed by S.’s teacher.

ii. Ms. Casino had indicated that she had been “struck” by the anger that Agueda had shown at meeting with Dr. Garfield. While Dr. Garfield had indicated that Agueda had been angry, he indicated as well that Bogdan’s passive-aggressive manner had been part of the problem. When Bogdan’s counsel asked Dr. Saunders about such anger, Dr. Saunders responded that, “as a description from the test measures, when people think of themselves as meek and unassertive, then in situations when they feel overwhelmed, not listened to or their children are not being well protected, in that sincere belief, they can react very strongly.” Bogdan had expressed concern about the anger that Agueda had shown when she attended at Purple Tree after learning that he had registered S. in their daycare. The daycare worker, however, had appreciated why Agueda was so upset.

iii. Six weeks after being charged, CAS had agreed that the parenting schedule was to return to normal.

iv. As previously stated, I accept Ms. Fraser’s evidence that Agueda presented as a “terrific” parent.

v. Both parents have spoken negatively about the other in front of the children.

vi. It is time for this family to move forward and beyond the casque game and the January 16, 2019 incident. It is time for each parent to stop looking for the other parent to fail or “mess up”; to attempt to defeat her/his rights as an equal parent; or to otherwise expect the worst of the other parent. It is also time for Bogdan and Larissa to first communicate with Agueda, rather than the children, about issues in their lives, to the extent that they have an impact on G. and S. The children are entitled to move between their parents’ home smoothly, without feeling the need to hide information or report information to a parent. As I have indicated above, both Bogdan and Agueda are sufficiently skilled and able to meet the needs of and care for G. and S. B. can benefit from both parties’ input. He deserves to have parents who are able to do that for him.

vii. Unlike Ms. Casino, I had the benefit of a complete record, which included the testimony of individuals referred to in her report, which was tested via cross-examination. Significant information upon which she had relied was shown to be untrue or inaccurate. I do not have the same concerns about the use of physical discipline by Agueda or her anger that Ms. Casino had. I am satisfied that the January 16th, 2019 incident was an isolated incident and out of character for Agueda. It has not been a recurring issue, which amounts to “family violence”, even including the expanded definition of “family violence” set out in section 16(4) of the Divorce Act. Nor do I anticipate it will be. The incident was an unfortunate one, which took place during a contentious period of time.

j. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child;

i. The criminal charges were withdrawn. There are no other proceedings which have been brought to the Court’s attention, which are relevant to the safety, security and well-being of the children.

Issue 1(a): Decision-Making Regime:

[200] In determining the responsibility that the parties are to have over decision-making, the sole issue is what is in the children’s best interests. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interests of the children, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well being. evidence has demonstrated that the children have been exposed to conflict. To date, they have been unable to easily communicate civilly about and/or plan for the children together, particularly in relation to G. Bogdan has not valued the children’s relationship with Agueda, which Bogdan unfortunately has demonstrated by failing to inform Agueda of important and pertinent information about the children. Agueda’s response to the disregard that Bogdan has for her role as the mother to their children and the perceived threat to her role Bogdan’s actions cause her to experience has been anger. Dr. Garfield (the children’s doctor) and other witnesses appeared to understand the cause of Agueda’s anger. Nothing in the evidence before me suggested that either Bogdan or Ms. Casino had considered his role in the problem. While Ms. Casino devoted significant attention to reports, which Bogdan had obtained from professionals with whom he had had a relatively limited relationship only, she did not appear to have considered or followed up on issues that were raised about him, in an effort to understanding both parents’ role in the conflict between them and thus their respective abilities to act in the best interests of the children. She did not follow up with Dr. Garfield or consider Dr. Garfield’s observation regarding the passive-aggressive manner in which Bogdan dealt with Agueda; issues of concern that CAS had included in its notes regarding Bogdan’s Post Traumatic Stress Disorder; or follow up with Bogdan’s parents to obtain information to verify whether they were largely to blame for the breakdown in their relationship with Bogdan, as Bogdan had apparently claimed.

[201] Bogdan purposefully chooses not to communicate with Agueda when it suits him. When Bogdan has information to share with Agueda, which he believes create issues for him, or when he is concerned that Agueda will be resistant to a decision he has made, he avoids sharing the information or decisions with her entirely.

[202] In recommending that Bogdan have sole decision-making authority over the children, Ms. Casino failed to consider or consider sufficiently Bogdan’s track record in terms of the nature of his communication with Agueda. It likely that decisions about the children will be made and Bogdan will not inform Agueda of them, particularly if he believes that she would not be happy with them. Given G.’s issues, it is essential that decisions made about his treatment or education be shared so that he will have continuity in his treatment and care in both homes. His failure to inform Agueda that he had obtained a different prescription for ADHD medication than the prescription that had been prescribed is instructive. Her knowledge of decisions relating to the children would depend on Bogdan’s perception of what she needed to know. Bogdan has demonstrated that his view of what Agueda needs to know is not child-focused.

[203] One only need to look at Bogdan’s actions in arranging to put S. in Purple Tree to fully appreciate the extent to which he would go to achieve what he wants in relation to G. and S. His conduct in relation to this issue goes so far as to demonstrate that in pursuing what he asserts is in the best interests of a child, he would ignore the child’s best interests. It is not questioned that the January 16, 2019 incident was traumatic for S. Yet, in order to justify his decision to move S. to a daycare close to his home, he had to give reasons, which were false. The allegation that he had to move S. because she had reacted so badly to returning to the day care over the next few days was false. Thus, in order to achieve his goal, which was undoubtedly to move her daycare to one closer to the home, he removed S. from the daycare she knew and placed her in an environment with which she was unfamiliar. This happened at a time when S. had little contact with her Agueda as a result of the charges. He, further, did little to attempt to restore S.’s contact with Agueda. In addition, he ensured that there was no information on the application, which suggested that Larissa (“Parent Two”) was not S.’s mother. All of this occurred when he knew that Agueda had joint custody of S. under the partial parenting agreement. Simply put, on Bogdan’s record thus far, the Court has no reason to believe that Bogdan would exercise the authority he would have under an order granting him sole decision-making authority in a manner that is in the best interests of the children. While he and Ms. Casino had concerns about Agueda’s purported anger issues, that anger was an expression of understandable indignation and fear. Agueda’s involvement in the decision-making responsibilities of the parties is essential to her maintaining her role as the children’s mother. It is imperative that she continue to be part of the children’s lives in a meaningful and substantial way. The children need more than Bogdan and his new family. They need their mother.

[204] Larissa de-values Agueda’s role as the mother of G. and S. Regrettably, my concerns about Bogdan having sole decision-making authority over the children are not lessened by the likelihood that Bogdan will discuss important decisions that he would have to make with Larissa.

[205] Bogdan’s position is that he should have sole decision-making authority respecting major issues affecting the children. He submits that, in addition to relying on the fact that the OCL recommended that had sole decision-making authority, during the relationship and since the separation, the parties have demonstrated that they do not have effective communication skills and are incapable of co-operating in order to make decisions concerning the children. He maintains that Agueda is rigid and inflexible in her positions, which delays important parenting decisions that have to be made. He further submits that for a child who has special needs, such as G., it is imperative that there be one parent who is consistent and can make decisions in that child’s best interests, without delay. He submits that he is that person.

[206] Agueda, on the other hand, seeks to continue a regime where the parties make important decisions about the children jointly. If the court is not prepared to make such an order, Agueda then seeks a parallel parenting regime, where the decision-making authority for certain decisions are divided between the parents, so that Bogdan have sole authority over education-related decisions and Agueda have sole authority over health-related decisions. As a last alternative, Agueda seeks sole decision-making authority over important decisions that impact the children. Agueda submits that, of the two parents, she has demonstrated a willingness to communicate openly with Bogdan and to consider the advice of third-party professionals, as opposed to Bogdan, marginalizes her role with respect to G. and S.

[207] The evidence demonstrates that both parents are capable of making important decisions about the children in an informed way, but they may differ as to how they approach issues that arise. I am truly concerned, however, about the likelihood that Bogdan, with Larissa’s support, will entirely discount Agueda’s opinion or advice in relation to important decisions for G. and S., if it does not suit him.

[208] Bogdan was during the trial either not prepared to or unable to see how the way in which he made parenting decisions for the children during the six-week period when the children were residing with him after the January 2019 incident was unilateral and dismissive of Agueda’s parenting role, or that his conduct contributed to Agueda’s increasing mistrust of his motives and anxiety over the threat to her role in the children’s lives that his actions posed.

[209] Even prior to the January 16th, 2019 incident, Bogdan had begun to engage in a pattern of conduct where he was avoiding communicating with Agueda when he knew or likely knew that she would not agree with his decisions or approach to parenting. As Dr. Garfield noted in a joint parenting meeting, Bogdan is passive aggressive. He avoids having direct confrontation with Agueda (even to the extent of not providing her with information that he must provide, given that she is the children’s mother), but has no difficulty taking oppositional positions and then blaming Agueda for being rigid. This is evidenced by the following examples:

a. Bogdan waited to tell Agueda that he was moving from the Beaches neighbourhood to 305 Belsize with Larissa;

b. He failed to advise Agueda in advance of advising the children of information such as his relationship with Larissa; Larissa’s pregnancies; and the birth of L.;

c. He failed to Agueda that he had enrolled G. and S. in a summer camp program until just before Agueda had to pick up them up there;

d. He participated in school meetings with Agueda about G. and his behavioural difficulties at St. Brigid’s during G.’s S.K. year, keeping from her the fact that he had been in the process of actively looking for schools over the prior two months;

e. He brought an educational consultant to the IRPC meeting in October 2018 at St. Brigid’s without having, at a minimum, provided her with information about the consultant in advance;

f. As discussed elsewhere in the Reasons, after the January 2019 incident, he removed S. from the daycare in the Beaches area and moved her to another one, without any notice, let alone her consent. He also failed to advise her that he would not be taking the children to the extra-curricular activities, one of which had been arranged to supplement G.’s education because he is gifted. He yet further failed to advise her that he had removed G. from school for 3 days, to tour private schools; and

g. He failed to tell Agueda that he had returned to Dr. Garfield on January 23, 2021, to change G.’s ADHD medication from Concerta to Biphentin, even though it resulted in G. being given different medications in two households for a few days.

[210] Bogdan has deliberately failed to consult with Agueda about significant issues and unilaterally made decisions; it is not that the parties had been unable to reach agreement on those issues.

[211] The ability or inability of parents to communicate generally determines whether a sole or joint decision-making order will be made. While the case law has generally established that in order for a joint decision-making order to be made, there must be solid evidence that, despite their differences, parties can still communicate effectively with each other. Case law also exists, in which the Court has recognized that just because one party says that the parties cannot communicate does not preclude the court from finding otherwise and ordering joint decision-making.

[212] Parallel parenting is a parenting arrangement that has evolved, in order to address high conflict cases where neither a sole decision-making order to one parent nor a cooperative joint decision-making order will meet a child’s best interests. Parallel parenting orders generally take one of two different forms. A “divided parallel parenting” regime, in which each parent is given separate areas of parental decision-making authority, independent of the other parent, or a “full parallel parenting” regime, in which parents are given the right to make major decisions regarding the child while the chid is with them without the consent of the other parent.

[213] In V.K. v. T.S.[^51], Chappel, J. thoroughly reviewed the case law and set out the factors that the court should consider in determining whether a parallel parenting regime, rather than sole decision-making authority custody, was appropriate. at paragraph 96, as follows:

a. “The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.”[^52]

b. “The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.”[^53]

c. “Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent [sic] and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate. [italics added]”

d. “Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.”

e. “The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.”

f. “The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.”

[214] In Batsinda v. Batsinda,[^54] Chappel, J. refers to a case, H. (K.) v. R. (T.K.), decided by Sherr, J. in which he adopted the above-noted factors and added the following further considerations:

a. The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counselling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

b. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?

c. The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

d. The family dynamics. The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents’ conflict[^55].

[215] As I have already found above, both Bogdan and Agueda are loving parents and clearly committed to G. and S. Each parent has very strong ties to both children and each parent is actively involved in the lives of G. and S. Furthermore, I believe that each parent is capable of making decisions that are in G.’s and S.’s best interests.

[216] Agueda submits that an order for joint decision-making responsibility is appropriate.

[217] Joint custody should not be ordered where there is poor communication between the parties and they fundamentally disagree on too many issues affecting the children’s best interests.: Graham v. Bruno, 2008 ONCA 260.

[218] Courts do not expect communication between separated parties to be easy, comfortable or free of conflict. A standard of perfection is neither required nor achievable: Griffiths v. Griffiths[^56]. The only issue is whether a reasonable measure of communication and cooperation is in place and achievable in the future so that the best interests of the child can be assured on an ongoing basis: Warcop v. Warcop.[^57]

[219] On a consideration of the evidence adduced at trial, I have no confidence that maintaining the joint custody agreement between Agueda and Bogdan will result in any change in their current relationship or improve the status of how they communicate. Agueda and Bogdan do not have a history of positive communication or a history that persuades me that they have been able to work together in a sufficiently proactive and productive manner. The evidence supports the conclusion that to impose joint custody would only perpetuate the hostility and lead to further inaction rather than to the concerted effort that is often required in urgent or pressing circumstances, to address G.’s behavioral challenges and needs.

[220] G. has behavioral and attention issues, which impact his ability to regulate his own behaviour and makes transitions and changes in routine difficult for him. He needs parents who are able to work together in a respectful and supportive way, to put forth a concerted effort to engage the supports that he requires. Regrettably, this has not been G.’s or S.’s, for that matter, experience. The acrimony between Bogdan and Agueda and the lack of communication and cooperation between them are the norm. It is impacting G. negatively and I have no doubt that it impacts S. negatively as well.

[221] Bogdan is a competent and loving father but by reason of his behaviour toward Agueda, as articulated in great detail above in these Reasons, Bogdan cannot be given sole decision-making authority for G. and S. I cannot be certain that, even after reviewing these Reasons, he will respect Agueda’s importance in the children’s lives and the valuable input she has provided in attempting to assist G., most particularly. Bogdan has demonstrated that he neither trusts nor respects Agueda as a parent or individual. Before this trial began, neither he nor Larissa had told Agueda that they were expecting another child. It is clear that he would neither consult with Agueda nor seek any input she might be able to offer.

[222] By contrast, Agueda views Bogdan as a competent and loving parent and values his role in the children’s lives. If not for the fact that Bogdan and Agueda approach G. and his issues in different, but equally beneficial ways, I would have seriously considered giving Agueda sole decision-making authority over the children. I am satisfied that she would respect Bogdan’s importance as the children’s father, despite such empowerment. I have concluded however, that it is not in the children’s best interests for either parent to have sole decision-making authority.

[223] It is important for G. and S. that both parents continue to be involved in their lives. If at all possible, G. and S. are entitled to receive as much support as possible from their parents. Despite the conflict and differences that the parties have had about G. and how to manage his academic and behavioural needs, G. is now in a s.23 classroom, accessing the supports he needs. Further decisions will have to be made as time passes, including when G. will be ready to transition out of a s.23 classroom into a regular classroom and how to best manage his behaviours going forward. As G. and S. continue to get older, issues that arise as they mature will have to be made about both of them.

[224] It is in G.’s and S.’s best interests that a parallel-parenting order, which contains clear rules and boundaries. Although the conflict between the parties is too high for a joint decision-making order to be made, it is not so high that the imposition of a detailed parenting order will lead to increased conflict. Agueda, in particular, has been respectful and considerate of Bogdan’s views about the children’s best interests. As a result, I find that she is the parent who would be prepared to consider and accommodate any scheduling difficulties or overlaps in appointments – that is, she would use her decision-making authority responsibly and not in a way that would increase the conflict. I am hopeful that after a review of these Reasons, Bogdan will reflect on them and do the same.

[225] Despite the fact that Bogdan has moved away from the Beaches neighbourhood, the parties still reside sufficiently close enough to each other that a parallel parenting order is workable with respect to health care providers and activities. The issues arising from his move to 305 Belsize relate to the need to maintain a balance in terms of the children’s connections to both neighbourhoods, and not just one neighbourhood, as well as an appreciation of the additional time that the children will spend on public transit as a result of proposed plans and decisions. If both parents were to move forward, keeping these concerns in mind and sincerely trying to address them, the level of conflict would likely abate. Where some of the children’s needs might necessitate the needs being met in one area, consideration should be given to having extra-curricular activities, for example, take place in the other parents’ neighbourhood.

[226] Both parents are competent and responsible. The parents who has G. and S. in his/her care under the parenting schedule shall have the responsibility of making any day-to-day or emergency decisions. Each parent shall keep the other fully informed of any day-to-day decisions they have made or information they have received regarding G.’s or S.’s health, education or general well-being.

[227] With respect to longer- term decisions, such as school-placements and medical treatment, the parents shall consult with each other and attempt to arrive at a timely consensus. Given that they will not always be able to agree, then to ensure that a decision gets made so that it can be implemented in a timely way, I have determined which parent is to have the ultimate decision-making authority.

[228] Agueda shall be the parent who ensures that G.’s and S’s health needs are met. Dr. Garfield is to continue as the children’s paediatrician. For clarity, if an issue arises about his continuing to be the children’s paediatrician, it is to be dealt with as a health-related issue over which, absent agreement, Agueda would have the ultimate authority to make the decision. Agueda shall be the parent to make any medical and health-related decisions, after consultation with Bogdan and in accordance with the recommendations of the health providers.

[229] Bogdan shall be the parent who ensures that G.’s and S.’s educational needs are being met. However, I am concerned that he will use this authority to marginalize Agueda. As a result, Bogdan shall consult with Agueda, the school personnel at the child’s school; Dr. Marcovitch and G.’s therapist before making any changes to G.’s or S.’s school placements and/or school programs. If, after consultation with Agueda and the various third parties involved with the children, the parties cannot agree on an education-related decision, Bogdan will have the ultimate authority to make the decision. However, he shall not implement the decision for 21 days, to enable Agueda to apply to a court, if she takes the position that the decision he made is not in the child’s best interests.

[230] Given that I am ordering the children to reside with the parties on a week-on/week-off basis, any extra-curricular activities in which the children may be involved are to overlap with each parent’s time with the children. Accordingly, each parent may choose up to one activity for each of G. and S., one to take place during the school week and one to take place on the weekend. Accordingly, each child will have, at most, two mid-week activities in a school term and, at most, two weekend activities in a school term. When making the choice for extra-curricular activities for the children, the children’s views and preferences are to be considered and the parents are to consult with one another so that they do not choose similar activities on similar days and the activities take place in an area, which ensures that the children are not more closely tied to one parents’ neighbourhood than the other’s. If a child’s attendance at a school, which meets the child’s needs results in a child going to school closer to one parent’s home than to the other, then the parents are to place the children in activities in a location, which reasonably reflects the children’s residences in both areas. neither parents’ neighbourhood has . Further, and equally importantly, extra-curricular activities chosen for the children must be located within easy access of the subway line, acknowledging that Agueda does not drive and the children will be taking public transit to their activities during their weeks with her.

[231] Each shall be entitled to share their religious preferences with the children during his/her time with them.

[232] With respect to communication, it is critical that there be a mechanism for the parties to share information about G. and S. The parties are to each subscribe to the Our Family Wizard platform and only communicate with each on this platform.

[233] I also order that all transportation relating to changes in the residential schedule be shared equally by the parties. Since the majority of the exchanges will take place at school, the sharing of transportation ought not to be onerous.

Issue 1(b): Parenting Time

[234] In terms of the parenting schedule, Agueda has proposed a parenting schedule where the children reside with the parents on a week on/week off basis.

[235] Again, Bogdan has proposed the parenting schedule recommended by the OCL, which as follows:

a. In Week One,

i. The children will reside with Agueda on Tuesdays, from 4:00 to 7:00 p.m. ; and

ii. The children will reside with Agueda on alternate weekends, from Friday at 4:00 p.m. to Sunday, at 7:00 p.m.; and

iii. The children will reside with Bogdan at all other times.

b. In Week Two,

i. The children will reside with Agueda on Tuesdays, Wednesdays and Thursdays, from 4:00 p.m. to 7:00 p.m.; and

ii. The children will reside with Bogdan at all other times.

c. If Agueda enrolls the children in extra-curricular activities during her scheduled days, the return time can be extended from 7:00 p.m. to 7:30 p.m.

[236] As referred to above in these reasons, G. and S. need stability, predictability and consistency . This does not mean that the children must instead be cared for in only one single environment, but rather, that in some circumstances, the need for predictability may require that a schedule involving less shifting back-and-forth between homes be ordered.

[237] If the Court awards Bogdan the parenting schedule that Bogdan has proposed, the children would end up having two overnights with Agueda out of a 14-day period, despite the fact that they have been residing equally with both parents for the past two years and 4 months. In my view, this is clearly not a child-focussed parenting schedule and demonstrates how little insight Bogdan has into the children’s needs. The schedule that the OCL recommended is not in the children’s best interests. Particularly given that the OCL’s concerns (relied on by Bogdan) were not supported by the evidence adduced at trial, there is no basis whatsoever for the imposition of a parenting plan containing the terms Bogdan asks the Court to order.

[238] The evidence did not satisfy me that G. is more oppositional in Agueda’s home than he is in Bogdan’s. Ms. Casino did not observe G. in Bogdan’s home in the same end-of-day circumstances that she did in Agueda’s. Given G.’s special needs, this ought to have occurred. Further, the evidence did not satisfy me that G. would be living in a calmer home when he is at Bogdan’s home. At the present time, it appears that, in addition to Bogdan, Larissa and L. (a toddler), two caregivers work in the home. Shortly, a new sibling will be born. If G. and S. were to reside full-time with Bogdan, four children would be living in the home, two of whom will be under 2 ½ years of age. Further, the evidence does not justify a finding that the children will be exposed to an atmosphere of anger of be treated with inappropriate discipline, if they continue to reside with Agueda half-time. Given the children’s bond to both parents, I have little doubt that the children will react negatively to an arrangement where they suddenly see her four nights a month (occasionally 5). I also find that the weekday visits that the OCL recommended are, practically speaking, unworkable. Ms. Casino’s recommendation at trial changed from the recommendation in her report. Even if the children were to be picked up at Agueda’s home at 7 p.m. on those days, the time proposed for such visits does not take into consideration the time that Agueda would return home and the little time left for the visit before the children would be picked up. The visits would be equally confusing for G. in terms of knowing when they would take place. Ms. Casino’s position at trial – that she envisioned Agueda taking the children out or to activities, with her ending near Bogdan’s home at 7:00 or 7:30 pm – is less workable. At the end of a school day, G., particularly, needs downtime, not activities intended to keep the children busy when with their mother. Further, finding activities that would involve both children for a limited period of time would be a challenge. Put shortly, the proposed visits did not take into consideration issues such as the children’s ages and circumstances and the additional time pressure that public transit causes at the end of a weekday. Further, they in no way provided additional meaningful time for the children to be with their mother, to supplement the minimal time that they would otherwise be in her care. There is no justifiable basis upon which to reduce the children’s time with their mother to any degree, let alone to reduce it to a level equivalent to access orders made decades ago.

[239] The parenting plan, which I have ordered below, continues the sharing of the children’s time equally, as agreed on in 2016, but has changed the schedule, to satisfactorily G.’s concerns about it. It will be easy for the children to remember whether they are with their mother of father that particular week. Further, the children will feel that they only have one home each week. It also reduces the likelihood of contact between the parents during the week, other than when attending activities in which the children are involved and which parents normally attend to watch. The plan is in these children’s best interests.

[240] The children will reside with each parent on a week on/week off basis. The exchange day will occur on Fridays, after school, daycare or camp. If the children are not in school, at daycare or camp, the exchange will take place at the resident parent’s home at 5:00 p.m. on Friday. If the children are not in school, then when the children are coming from Agueda’s home to Bogdan’s home, she will be responsible for bringing them to Bogdan’s home; when the children are coming from Bogdan’s home to Agueda’s home, he will be responsible for bringing them to Agueda’s home.

[241] The parties for the most part agreed on a holiday schedule for the children, except for the children’s birthdays and the parents’ birthdays. The holiday schedule set out in the Holiday Agreement reached by the parties remains in full force and effect, except as modified by the Order below.

Issue Two: Child Support

[242] As the children will be living in a shared parenting arrangement, section 9 of the Child Support Guidelines applies.

[243] In terms of child support, the parties have agreed that Bogdan’s income for child support purposes be calculated pursuant to a formula that Gilmore, J. had set out in an Endorsement, dated May 2, 2019. The formula is to add Bogdan’s salaried income plus the pre-tax corporate income from his numbered company, plus 50% of the expenses run through his corporation, which are to be treated as personal, grossed-up. Gilmore, J. found that Bogdan’s income for support purposes in 2017 was $160,752, using this formula.

[244] Bogdan is self-employed and earns income through a numbered corporation. For the period July 1, 2016 to January 2, 2017, Bogdan earned income through 7908245 Canada Inc. On August 8, 2016, Bogdan incorporated 9859121 Canada Corporation, through which he earned his self-employment income from August 8, 2016 to December 31, 2016.

[245] Exhibit 32 at Trial is a letter from Bogdan’s accountant, which breaks down the sources of income earned by Bogdan in 2016, 2017 and 2018. The information is as follows:

a. From July 1, 2016 to January 2, 2017, 7908245 Canada Inc. paid salaries and wages to Bogdan of $15,425; had corporate pre-tax income of ($572); and had other operating expenses of $147;[^58]

b. From August 8, 2016 to December 31, 2016, 9858121 Canada Inc. paid salaries and wages to Bogdan of $60,290; had corporate pre-tax income of ($10,036); and other operating expenses of $7,511;[^59]

c. From January 1, 2017 to December 31, 2017, 9858121 Canada Corporation paid salaries and wages to Bogdan of $97,091; had corporate pre-tax income of $39,901; and had other operating expenses of $17,797;

d. For the period January 1, 2018 to December 31, 2018, 9858121 Canada Corporation paid salaries and wages to Bogdan of $117,054.80; had corporate pre-tax income of $23,858.81; and had other operating expenses of $35,069.53.[^60]

e. For the period January 1, 2019 to December 31, 2019, 9588121 Canada Corporation paid salaries and wages to Bogdan of $119,963; had corporate pre-tax income of $2,153; and had other operating expenses of $25,534.[^61]

[246] Applying this formula to 2019, Bogdan’s income would be $119,9630+$2,153, plus 50% of personal expenses of $25,534, grossed up for a total of $144,675 in 2019. The court does not have any income information for Bogdan for 2020.

[247] Agueda proposed that, if the Court orders that the children reside with each parent equally, there be a set-off arrangement, pursuant to s.9 of the Guidelines. (Bogdan’s proposal related to his having the children in his primary care.) Bogdan did not take issue with her submission. As a set-off calculation is a means of determining child support in a equal-time parenting regime and Bogdan did not take issue with is, I am content to order that child support be dealt with on a set-off basis.

[248] Agueda was self-employed beginning in March 2019 until the end of December 2019.

[249] From January 1, 2020 to December 7, 2020, she was self-employed. She had a numbered corporation. Since December 7, 2020, she has been employed by Myamt.

[250] The court has no information about Agueda’s income for 2019 or 2020.

[251] Agueda’s income, as reported to CRA in 2016 to 2018, inclusive was: in 2016, her Line 150 income was $66,251; in 2017, her Line 150 income was $96,548; and; in 2018, her Line 150 income was $79,599.

[252] Agueda has not filed her 2019 Income Tax Return because she was self-employed for part of that year and her corporate taxes were due September 30, 2020 and she did not have an accountant and due to Covid-19 she has been delayed. As well, Agueda’s corporate income tax return has not been filed. As well, she has not filed her 2020 Income Tax Return. Accordingly, the most recent and best evidence the Court has as to Agueda’s income information is from 2018 and is $79,599.

Bogdan’s Income

[253] Bogdan’s income for the years 2016-2019 based on his Notices of Assessment was as follows: in 2016, his Line 150 income was $140,824; in 2017, his Line 150 income was $114,736.33; in 2018, his Line 150 income was $115,886; and in 2019, his Line 150 income was $118,602.

[254] Using the formula prescribed by Gilmore, J., to which both parties agreed at trial, Bogdan’s income for child support purposes is $144,675 and Agueda’s income based on the 2018 income information was $79,599. Accordingly, the set-off child support owing from Bogdan to Agueda amounts to $810 a month.

[255] Particulars of my order respecting child support is contained in the Order below, which is self-explanatory.

ORDER:

[256] Based on all of the above, this Court orders as follows, on a final basis:

1. Decision-Making Responsibilities of the Parents

a. Pursuant to ss. 16.1(1), 15.1(4)(b) and 16.3 of the Divorce Act, the significant decisions affecting G. and S. shall be decided pursuant to a parallel-parenting regime, as follows:

(i) Health-Related Decisions

1. Major decisions affecting G.’s or S.’s medical care and treatment (e.g. surgery, long term medication, major diagnostics, counselling, therapy) shall be made in consultation with the child’s current paediatrician or physician, dentist, therapist, and other health-care providers. The parties shall consult with each other about all significant health-related issues that have to be decided by sending each other emails and taking into consideration the other parent’s position and opinion on the issue. Health-related decisions include, but are not limited to, all decisions regarding G.’s and S.’s physical and emotional health, such as wellness appointments, illness-related appointments, dental appointments, orthodontic appointments, eye doctor appointments, vaccinations, flu shots, prescriptions for coughs, colds, nausea, constipation, diarrhea, eye infections, skin infections, prescriptions for ADHD, ODD, anxiety, depression or any mental health condition; treatment for any bodily infections, appointments with specialists; therapeutic supports for G. or S., individual counselling, group counselling, in-person or virtual therapy, brief or long-term.

2. If a health-related issue must be decided and the parties cannot agree on it, then within 10 days of a parent confirming in writing that they were unable to agree on the issue, they shall each present to the other in writing via Our Family Wizard his/her proposed decision. If an agreement cannot be reached within 15 days of the date on which the later of their proposed decisions was delivered in writing, then Agueda shall have final decision-making authority and her decision shall prevail. If Bogdan does not provide his proposed decision in writing to Agueda within the 10 days, then he shall be deemed to have agreed to her proposed decision and she may proceed to implement it immediately.

3. Each parent shall, while he/she is the resident parent, ensure that G. and/or S. are given any prescription medication that has been prescribed for him/her and shall follow all prescribed health-care treatments.

4. G. shall continue to receive therapy through the Willow Centre, with Dr. Alan Rokeach, and the parties shall fund the cost of this ongoing therapy as a section 7 expense in proportion to their respective incomes after using any available extended benefits available to cover a portion of the fees.

5. Each parent shall sign any and all required consent forms that a health-related professional dealing with G. and/or S. requires him/her to sign. Agueda shall be the parent to take the children to all regular health-related appointments and she shall notify Bogdan by email via Our Family Wizard at least 24 hours before they occur, providing him with the reason for the particular appointment. Promptly after health-related appointments, she shall advise Bogdan of any diagnoses made, if any, and provide details of any treatment recommended or ordered, including medications that may have been prescribed, with instructions regarding the medication, if he will be giving such medication to the children when he is the resident parent. Agueda shall hold G.’s and S.’s health cards and provide a copy of both to Bogdan. Any appointment that a health professional requests regarding G. or S., to discuss a major decision such as whether to proceed with a course of long-term treatment or whether a child requires surgery, shall be attended by both parents. Agueda shall inform Bogdan of the appointment immediately by via Our Family Wizard after being contacted about it by the health professional. For clarity, major decisions that must be made as a result of appointments requested by the health professional shall be made in accordance with paragraph ii. above, unless the health professional requires a more immediate decision, in which case, Bogdan shall ensure that he provides his proposed decision to Agueda in writing via Our Family Wizard within 48 hours of the appointment. Agueda shall then make the decision and promptly advise Bogdan of the decision that she has made.

6. If a parent has to schedule a health-related appointment because a child is ill when in his/her care, the then resident parent shall notify the other parent that the appointment is taking place and the reason for the appointment. The resident parent shall attend the health-related appointment on his/her own unless he/she invites the non-resident parent to attend the appointment, but both parents shall be entitled to obtain a copy of the health-professional’s notes and records relating to the visit. Promptly after the appointment, the resident parent shall provide the other parent with details of any diagnoses made, if any, and provide details of any treatment recommended or ordered, including medications that may have been prescribed, with instructions regarding the medication, if he will be giving such medication to the children when he is the resident parent, via Our Family Wizard.

(ii) Education-Related Decisions

1. The parties shall share decision-making authority for all significant education-related decisions for G. and S., such as school placement, psycho-educational assessments, class placement, tutoring. If the parents cannot agree on a significant issue relating to G.’s or S.’s education, then they shall follow the advice of the school-related professionals involved in the issue. If an education-related decision has to