COURT FILE NO.: FS-19-00014030

DATE: 20210730

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

N.S. Applicant

– and –

A.N.S. Respondent

A. Sam Zaslavsky, for the Applicant

A.N.S., acting in person

HEARD at Toronto: June 14, 15, 16, 17, 18, 21 and 24, 2021

WARNING

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

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

87 …

Order excluding media representatives or prohibiting publication

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

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

Prohibition re identifying child

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

Prohibition re identifying person charged

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

142 …

Offences re publication

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

CORRECTED Reasons for judgment

Correction explanation - August 23, 2021: At page 87, item 7 under subparagraph (l), line 2, “… the 30-day period in (k) 4 above” and line 4, “… is required in (k) 5 above”, the reference to (k) in the original decision is now changed to read “(l)”.

C. HORKINS J.

Overview

[1] This is a case about family violence, whether a father’s parenting time should be supervised or terminated and whether a mother and child should be allowed to relocate to Israel.

[2] The applicant (“mother”) and the respondent (“father”) were married in 2004 and divorced in September 2007. They subsequently remarried on June 8, 2010 and separated on June 28, 2016. They have one child who is eight years old.

[3] After the June 28, 2016 separation, the mother commenced a second divorce application in this Court. In that application, the father’s pleading was struck by Justice Stevenson.

[4] The Jewish Family and Child Service (“the Society”) first became involved with this family in January 2016. The Society closed their file in February 2016. In October 2017, the Society became involved again. There were concerns that the child was exposed to emotional harm due to adult conflict, and concerns that the father was not meeting the child’s basic needs. The Society offered protection services to the family. The father’s concerning behaviour and the conflict between the parties escalated. The father refused to work with the Society.

[5] On October 22, 2018, the mother proceeded to an undefended trial and Justice Paisley issued a final order (“Paisley order”). The Paisley order grants the mother sole custody of the child and gives the father unsupervised overnight access to the child every other weekend. As well, the order provides that summer vacations and Jewish holidays are shared, the father’s telephone access with the child is at the mother’s discretion, the mother is permitted to travel with the child outside of Ontario and Canada and the mother may apply for the child’s passport without the father’s consent. The order requires the father to pay the mother child support of $654 per month based on a yearly salary of $70,000.

[6] The Society concluded that the Paisley order, specifically the part which granted the father unsupervised access (now called parenting time), was insufficient to protect the child. This was based on the Society’s investigation that revealed ongoing concerns about the father’s mental health, the state of his home, the child’s exposure to adult conflict and the resulting emotional harm.

[7] On October 30, 2018, the Society commenced a protection application in the Ontario Court of Justice (“OCJ”). In this application, the OCJ has made orders placing the child in the mother’s care and limiting the father’s access to the child to the discretion of the Society. The father was ordered to undergo a mental health assessment by Justices Sager and Spence. He refused to comply.

[8] On November 13, 2019, Justice Spence found that the child is in need of protection pursuant to ss. 74(2)(f) and 74(2)(h) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, having suffered emotional harm and being at risk of suffering further emotional harm.

[9] Since the protection order was made, the father’s access to the child has largely been supervised. He has had some unsupervised access, but it always reverts to supervision because of his conduct. There have been many instances when the father’s conduct has caused a suspension of access as well.

[10] While the child protection proceeding continued in the OCJ, the mother returned to the Superior Court of Justice (“SCJ”) and commenced this application. She seeks a variation of the Paisley order to limit the father’s parenting time and require the parenting time be supervised. The mother also seeks new relief allowing her to relocate to Israel with the child. The father seeks a multitude of relief. In particular, he seeks a variation that will provide him with full parental rights including shared decision making and parenting time, no supervision and full access to his child’s school.

[11] The Society has exhausted all avenues to help the family and specifically has exhausted all attempts to remediate the father’s behaviour that is causing the child emotional harm. The Society has concluded that the father’s access to the child must be supervised. In the summer of 2020, the Society informed the father that they would no longer provide him with supervision services and that he must pay for a private supervision company to supervise his visits with the child.

[12] The child protection proceeding is currently stayed pending the mother’s request before this Court to vary the final order of Justice Paisley. If this Court varies the Paisley order to require supervised parenting time, the Society will close its file and the Society services will not be provided to the family.

Position of the parties

[13] It is the mother’s position that the father’s parenting time must be supervised to protect the child from the father’s behaviour and the emotional harm that results. The father has been given numerous opportunities to correct his behaviour, get the help he needs and comply with court orders. The father’s conduct has caused emotional harm to the child and continues to do so today. The father continues to be abusive, threatening and completely defiant of boundaries and court orders. As a result, the child remains a child in need of protection.

[14] The mother feels threatened and unsafe because of the father’s conduct. She seeks an order allowing her to relocate to Israel where her family lives, and she grew up. It is her position that this is the only way she can safeguard the child’s emotional and physical well-being.

[15] The father’s position is that all court orders made against him are “illegal” and based on “fraudulent evidence”. He states that the mother is “mentally ill and neurologically damaged” and the child can only be protected if he is given equal parenting rights.

[16] The father describes the court orders and the actions of the mother and the Society as “theft of his role as a parent”. The divorce orders are in his view “total frauds”. The father states that the Society workers have “embellished and exaggerated” the mother’s complaints against him and treat him as “Satan”. They have “stolen” his telephone access with his son and have no “sincere care” for the child. He states that their actions are “grotesque,” “selfish” and “disgusting”.

[17] The father claims that the mother is a “parental alienator”. Nothing that the Society workers say is “100 percent truthful”, “nothing they have said can be relied upon”, they have done “everything to block movement on this case” and they have “exaggerated every single incident that they falsely claim has happened”.

[18] At a minimum, the father wants “50/50” access and a “return of his full parental rights”. He wants the parties to make all parenting decisions together and asks the Court to “block” the mother’s request to relocate to Israel.

[19] Lastly, the father argues that the mother’s actions are not motivated by the best interests of the child. He argues that this litigation and her “lies” are revenge for not being able to secure a Jewish religious divorce from him, known as a Get.

The Facts

[20] The evidence in chief from the mother and her six witnesses was submitted through affidavits with some supplemental viva voce evidence. Each witness at some point dealt with the parties and the child before or during the child protection proceeding, as an employee of the Society. The affidavits from the Society witnesses were those that were filed in the OCJ during the child protection proceeding.

[21] The father did not rely on any affidavits for his evidence in chief. He chose to testify in person and did not call any witnesses.

[22] As explained in these reasons, the father’s evidence is unreliable, exaggerated or untruthful. He takes no responsibility for his extreme behaviour and has no insight into how his extreme behaviour causes harm to the child. The father’s response to those who challenge him is simple: they are frauds and are lying. He is fixated and obsessed with a narrative that has no basis in fact: that the child has been stolen from him and the mother is using this litigation against him because he will not give her a Get.

[23] While the father views the court orders against him as wrong, illegal or fraudulent, he has not appealed any of them. Instead, the father refuses to comply with the orders. For example, he has paid no child support and now owes the mother arrears in excess of $40,000. He has not paid any of the cost orders that now total in excess of $16,000. He has also refused to comply with multiple court orders that require him to obtain a mental health assessment.

[24] The mother is a reliable witness. She did not exaggerate or lie. She cooperated with the Society and followed their directions.

[25] The facts as I find them are set out in these reasons. Where the evidence of the father differs from the evidence of the mother and the Society workers, I reject the father’s evidence.

[26] To appreciate the depth of the father’s serious and extreme behaviour and the resulting harm to the child and mother, I start at the beginning of this lengthy dispute. It is important to review the long-term involvement of the Society and the Society’s commendable efforts to try to help this family.

The Alleged “Illegal” Divorce Orders

[27] On September 24, 2007, Justice Backhouse issued an uncontested divorce order. The parties subsequently remarried on June 8, 2010 and separated again on June 28, 2016. The second divorce order was issued by Justice Paisley on October 22, 2018.

[28] There is no evidence to support the father’s allegation that the divorce orders are “illegal”. The orders were not appealed. They are valid orders.

The Get

[29] A Get is a religious Jewish divorce. The father refuses to give the mother a Get. He says that the mother is not entitled to receive a Get because of her conduct.

[30] The father obsessively believes that the mother’s evidence in the child protection proceeding and the litigation in this Court is a lie and that she is using the litigation to retaliate against him for not providing a Get. There is absolutely no evidence to support this belief and I reject it as fact.

[31] The facts surrounding the Get and what has occurred show that the father uses the Get to harass, threaten, intimidate and control the mother. This exposes the child to emotional harm.

[32] The father’s refusal to give the Get and his surrounding conduct led Justice Stevenson to strike his answer and claim in the last application. This order was made on June 20, 2018. The application then proceeded to an undefended trial and Justice Paisley’s order was issued.

[33] Justice Stevenson’s order was made pursuant to s. 21.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Under this section, the Court has the discretion to prevent a spouse from obtaining relief under the Divorce Act if that spouse refuses to remove a barrier to religious remarriage.

[34] Justice Stevenson’s decision was not appealed. The decision is relevant and important to the issues before this Court because it is further proof of the father’s threatening, controlling and abusive behaviour directed at the mother and child.

[35] As Justice Stevenson noted, the Court has no jurisdiction to order the father to give the mother a Get. Only a husband can give a Get.

[36] The Divorce Act was amended to include s. 21.1 to address those husbands who use the Get as a “bargaining tool for child custody and access or monetary support”. This was explained by Justice Abella, writing for the majority of the Supreme Court of Canada, in the decision of Marcovitz v. Bruker, 2007 SCC 54. Justice Stevenson relied on the following passage from paras. 3-7 of Bruker and I do as well:

A get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a get unless her husband agrees to give it. Under Jewish law, he does so by “releasing” his wife from the marriage and authorizing her to remarry. The process takes place before three rabbis in what is known as a Beth Din, or rabbinical court.

The husband must voluntarily give the get and the wife consent to receive it. When he does not, she is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an agunah or “chained wife”. Any children she would have on civil remarriage would be considered “illegitimate” under Jewish law.

For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.

The vast majority of Jewish husbands freely give their wives a get. Those who do not, however, represent a longstanding source of concern and frustration in Jewish communities (Talia Einhorn, “Jewish Divorce in the International Arena”, in J. Basedow et al., eds., Private Law in the International Arena: From National Conflict Rules Towards Harmonization and Unification: Liber Amicorum Kurt Siehr (2000), 135; H. Patrick Glenn, “Where Heavens Meet: The Compelling of Religious Divorces” (1980), 28 Am. J. Comp. L. 1; M. D. A. Freeman, “Jews and the Law of Divorce in England” (1981), 4 Jewish Law Annual 276; Bernard J. Meislin, “Pursuit of the Wife’s Right to a ‘Get’ in United States and Canadian Courts” (1981), 4 Jewish Law Annual 250; Mark Washofsky, “The Recalcitrant Husband: The Problem of Definition” (1981), 4 Jewish Law Annual 144; M. Chigier, “Ruminations Over the Agunah Problem” (1981), 4 Jewish Law Annual 207; Shlomo Riskin, A Jewish Woman’s Right to Divorce: A Halakhic History and a Solution for the Agunah (2006); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); and J. David Bleich, “Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement” (1984), 16 Conn. L.R. 201).

In response to these concerns, after consultation with the leaders of 50 religious groups in Canada and with the specific agreement of the Roman Catholic, Presbyterian and Anglican churches, in 1990 the then Minister of Justice, Doug Lewis, introduced amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Bill C-61, giving a court discretionary authority to prevent a spouse from obtaining relief under the Act if that spouse refused to remove a barrier to religious remarriage (s. 21.1). At second reading, the Minister outlined the motivation for these amendments, explaining:

The bill before us today is an amendment to the Divorce Act which would provide a court with discretionary powers to preclude a spouse from obtaining relief or proceeding under the Divorce Act where that spouse refuses to remove a barrier to religious remarriage and where the power to remove the barrier to religious remarriage lies solely with that person. Where the court is satisfied that the spouse who refuses to remove the barrier has genuine grounds of a religious or conscientious nature for doing so, it need not exercise its discretion to grant the remedy provided for in this legislation.

... A spouse should not be able to refuse to participate in a Jewish religious divorce — called a Get — in order to obtain concessions in a civil divorce. The Get should not be used as a bargaining tool for child custody and access or monetary support.

... I am concerned about protecting the integrity of the Divorce Act and preventing persons from avoiding the application of the principles contained in the act. For example, a wife may feel compelled to agree to custody arrangements which are not truly in the best interests of a couple’s child in order to obtain a Get.

I want to take a few minutes to describe briefly the dilemma certain Jewish persons face because of their religious divorce procedures. In the Jewish religion divorce is accomplished by the delivery of a Get from the husband and its acceptance by the wife in the presence of a Rabbinical Court. According to the Jewish religious traditions, the procedure cannot be changed. Without a Get, a Jewish woman cannot remarry in her own faith. Children of a subsequent civil marriage suffer religious disabilities. While difficult remarriage within the Jewish faith for a man in the same circumstances is not impossible,

... the government is moving where it can and where it is brought to the government’s attention to eliminate sexism and gender bias in the law.

It is the case that in some religions, the Roman Catholic, Greek Orthodox and Islam, annulment or divorce may proceed more easily and faster if the couple agree.

However, in all these cases, the authority to grant the annulment or divorce rests with the religious tribunal, not the couple.

An un-co-operative spouse may delay a decision, but ultimately he or she cannot prevent the religious tribunal from rendering its decision.

In these religions, the spouse initiating the action can ask the religious authorities to deal with this problem.

The Jewish spouse does not have that recourse.

(House of Commons Debates, vol. VI, 2nd Sess., 34th Parl., February 15, 1990, at pp. 8375-77)

[Italics in original.]

[37] Justice Stevenson described the father’s conduct that led to her decision at paras. 25-30:

The Applicant’s evidence supports that she has been requesting a Get since at least September 4, 2016 when she attended the meeting with Rabbi Ochs and in front of the Respondent and the Rabbi she expressed that she wanted a Get. On this occasion, the Respondent refused and indicated that he had demands that needed to be met before he would give the Get. A few days were provided to the Respondent in order for him to produce a list of demands. On September 15, 2016, a telephone call was made to the Respondent in the presence of two Beit Din Rabbis. On this occasion, the Respondent did not have his list of demands ready and replied that he may produce his demands within 10 days or 10 years. It is the Applicant’s evidence that the Rabbis then advised her to pursue a legal remedy. Although hearsay, this was not challenged by the Respondent.

The Applicant clearly sets out in writing in her Application that she is seeking a Get. Additionally, the Applicant deposes that she renewed her request on a number of occasions either directly herself, through family, friends or rabbis - all to no avail. The Applicant’s evidence is that the more she requested a Get, the more the Respondent escalated his demands and conditions. This resulted in the Applicant providing the Respondent with a car that he was requesting, rings and keys to the matrimonial home. Concessions were extracted from the Applicant. None of this evidence is refuted by the Respondent, but rather he takes the position in his submissions that he is being coerced by the Applicant into providing the Get. In his submissions, there was no indication that he is prepared to give the Get. Additionally, he provided no affidavit as set out under section 21.1(3) of the Act of an intention to provide the Get. The Respondent was very clear that it is within his power to give the Get and that he will decide when to do so.

The Respondent stated in his submissions that he firmly believes that the Applicant will be paying him spousal support, that he will be successful in his custody claim, and that it is the Applicant who will owe him money. He expressed to the Court that the issue of the Get should not be dealt with until the issues in this litigation are dealt with first. In my view, it is the Respondent’s desire to dictate what will transpire in this litigation and then he will decide when it is appropriate to give the Get. As is evident from his submissions, it is also his desire that there be no third-party intervention.

I echo the concerns of Tannenbaum J. in his decision of Droit de la Famille - 2296, 1995 CarswellQue 2162 at paras. 10 and 11:

… [i]t is not too difficult to imagine that the above situation has, over the years, led to many instances where the threat of withholding consent, has forced many women into accepting unfair agreements with respect to either custody, access, or financial arrangements in the civil divorce.

With respect to people of the Jewish Faith, who are divorcing, section 21.1 of the Divorce Act is a way of leveling the playing field. The Jewish husband who threatens to withhold consent, is subject to being denied the right to petition for corollary relief or even a civil divorce itself.

I am concerned that the Respondent will continue to make demands of the Applicant in order to obtain concessions in this litigation in exchange for the Get, which is exactly what Parliament sought to avoid as set out in Bruker. The Respondent’s actions necessitate the striking of his pleadings while this matter is ongoing.

Further, I do not agree with the Respondent’s submission, that section 21.1(6) of the Act is applicable and, as a result, this court has no jurisdiction to strike his pleadings. It is evident under Jewish law that only the Respondent, as he is the husband of the Applicant, has the ability to give the Get. The rabbinical court only facilitates the Get and it is within the sole control of the Respondent to give the Get. This is reinforced by the comments made by former Minister of Justice Doug Lewis when this amendment to the Divorce Act was introduced as set out by Abella J. in para. 7 of Bruker. The authority to grant the divorce does not rest with the religious tribunal. The Applicant cannot ask the religious authorities to deal with the problem. Therefore, section 21.1(6) of the Act is not applicable. The Respondent also made submissions that he cannot be forced into giving the Get and that only he can give the Get. The Applicant also agrees with this submission.

I am also concerned with the Respondent’s failure to comply with two costs orders of this Court which orders he deems were not ordered legally. The Respondent indicates that he now is seeking to appeal the orders and that he will appeal any fixture costs orders. The Respondent blames others for his failure to appeal the two orders within the prescribed time allowed. The order of Faieta J. was made on October 21, 2017 while the order of Goodman J. was made on December 6, 2017. The Respondent would not only have to seek leave to appeal these two orders, but given his delay, he will also have to seek an order to extend the time for the leave motion.

[Emphasis added.]

[38] The father’s behaviour that Justice Stevenson described has continued. The father continues to state that orders made against him are illegal and it is always someone else’s fault. The father continues to use the Get as a threat. He says that the mother will be “tied to him forever” and that he will never provide her with a Get until he receives everything he wants.

[39] On March 12, 2020, Rabbi M. Z. Ochs, Rabbi E. G. Schochet and Rabbi A. Assayag of the Rabbinical Court of Toronto issued a letter “To Whom it May Concern”. The father admits that he received this letter. He calls it a “fraud” and says that a previous letter that he did not produce proves his point.

[40] The letter is not a fraud. The “RE” line of the letter refers to this application and the father’s refusal to give the mother a Get. The Rabbinical Court states as follows:

It is clear, beyond any question, that [the father] is in contempt of Beis Din, and that all halachot … are applicable to him.

As such, it is unconscionable that [the father] be permitted membership in any Synagogue, or other Jewish institution, or be granted honors or consideration of any kind, until such time that he will remove the religious barriers to [the mother’s] remarriage, or satisfactorily explain to the Beis Din why he not be required to do so.

[Italics in original.]

[41] The Rabbis who authored this letter did not testify. The content of this letter is hearsay. I accept that the letter was sent and received but do not accept the letter for the truth of the contents. The father’s reaction to the Rabbinical Court’s letter is relevant. It is consistent with how he reacts to the court orders: they are all fraudulent but never appealed.

The Society’s Involvement

[42] Six witnesses who are or were employed with the Society testified: Sarah Wall, Nicole Khaitman, Gene Chodos, Ashley Moses, Alana Persaud and Jody Sadinsky.

[43] Ms. Sadinsky is the Child Protection Manager who oversaw the work of the Society Child Protection Workers (“workers”) involved with the family. She consulted with the workers on a regular basis and supervised them. As well, from the outset Ms. Sadinsky has had direct and consistent involvement with the family.

[44] I accept the evidence of all Society witnesses as fact. Each witness presented her evidence in a credible manner that was not undermined by cross-examination. The witnesses documented their involvement and what transpired in Contact Logs. They testified without exaggeration. On the few occasions when the father’s behaviour improved, it was fairly acknowledged.

[45] The chronological review of the Society’s evidence that I accept as fact proves the following: the child is in need of protection because of the father’s conduct and the resulting emotional harm; the mother has cooperated with the Society and the Society has no concerns about the child while in the mother’s care; the father has threatened the safety of the mother and the Society workers; the father has refused to have a court-ordered mental health assessment; and the Society has exhausted its efforts to remediate the father’s conduct and have concluded that the safety of the child requires supervised access.

January 2016 to February 2016 – Initial Society Involvement

[46] The Society was first involved with the family in January 2016 when they received a call from the mother who reported that the father was verbally abusive. The mother described him swearing and punching things, and said the child witnessed these actions. The mother was looking for support to safely leave the father. The Society provided appropriate referrals, but also explained to the mother that a referral had to be made to child protective services based on the information that she shared. This investigation was completed by Nicole Khaitman, a worker who met with the mother and child on February 2, 2016. The case was closed on February 16, 2016 because the mother appeared to be taking the appropriate steps to protect her son and connect with the required services.

July 2017 to October 2018 – Ms. Wall and The Society’s Efforts to Voluntarily Work with the Family

[47] On July 21, 2017, a Society social worker contacted the Society with concerns that her client, the mother, had shared. The mother disclosed that the father was emotionally and verbally abusive and controlling. He was also verbally abusive towards the child. The father was swearing at the mother in the child’s presence. The father called the child names. In addition, the father would not let the child speak to the mother by telephone when he was with the father. At this point in the timeline, the parenting time was shared.

[48] As a result of this report, the Society assigned Sarah Wall as the worker for the family. She was assigned on July 21, 2017 and remained in this role until November 2018.

[49] Ms. Wall was not able to meet with the mother and child until August 30, 2017 because they were in Israel visiting her family.

[50] The child was four years old at this point. During the August 2017 interview, Ms. Wall described the child as happy and playful. While it was difficult to interview a child of this age, the child told Ms. Wall that sometimes his parents fight and that he does not like his paternal grandparents.

[51] The mother shared a list of concerns with Ms. Wall that included the following:

1. The child witnesses the father calling the mother names like “cunt,” slamming the door on the mother, raising his voice and talking like a bully.

2. The child witnesses the father making threatening remarks to the mother such as “I am going to get you”.

3. The father makes degrading remarks to the child like “he is such a shit and a schmuk”.

4. On July 13, 2017, the mother worried about a rash on the child’s body. The father would not take the child to the doctor. At that point, the parents had an alternating week schedule and the mother had to wait until her access week to take the child to a doctor. It was determined that the child had chicken pox.

5. The child wets the bed during visits with his father.

6. The child is exposed to conflict between his father and paternal grandparents.

[52] Ms. Wall met the father on September 25, 2017 at his family's paint store. This was where the father worked at the time. The father told Ms. Wall that he is “working with the worst department in [the Society] that are filled with scumbags that are brainwashing [the mother]”.

[53] Ms. Wall found the father to present with hostility. He shared his belief that the separation and conflict were the result of conspiracies among advocacy groups. He also told Ms. Wall that during a trip to Israel in 2010, the mother became ill which impacted her neurologically. He complained that the mother has been “sucked into” attending women’s groups at the Society that seek to destroy marriages.

[54] The father agreed that there was a lot of conflict between him and the mother that the child was exposed to. He gave examples of both parents creating conflict.

[55] The father then took Ms. Wall to see his apartment and the child’s living environment. The apartment was cluttered with papers, empty boxes and televisions that covered the floor, tables and cabinets. The apartment had no useable living space due to clutter. However, the child’s bedroom and the kitchen were clean, and there was no odour or insects to suggest that the home was not clean.

[56] On October 16, 2017, the mother reported that the father “burst out in a rage at her over the phone”. That day, a temporary court order was issued that seemed to trigger the rage. During the father’s telephone call with the mother, he was swearing, yelling and threatening her. The child was with the father that day. After the mother hung up, she received 45 phone calls from the father. Going forward, the father continued to use repetitive calls and emails to harass the mother.

[57] Based on Ms. Wall’s investigation, the Society opened a child protection case. The child was being exposed to mental and emotional harm as a result of exposure to adult conflict. Ms. Wall also verified that the child was at risk of harm due to neglect of his basic physical needs and having a caregiver (the father) with a mental/emotional condition.

[58] When the father was informed of this decision, he asked Ms. Wall if her department was related to “blood suckers who ruin families”.

[59] During a home visit with the father on February 14, 2018, Ms. Wall observed a “decompensation in [the father’s] coping and well-being as displayed by his demeanour and the state of his home”. Items were piled up in the home and the father was having more difficulty following through with Ms. Wall’s requests. As well, he had difficulty remembering the scheduled home visits. His mother had died the previous month, and this was an understandable stress for him.

[60] The conflict between the parents escalated in March 2018. The mother began sending Ms. Wall multiple emails with concerns. The child told his mother what the father said to him: that the mother will pay for everything she is doing. Both parents reported arguments over wanting to speak to the child when the child was with the other parent.

[61] On March 14, 2018, Ms. Wall met privately with the child at his mother's home. The child told Ms. Wall that his father “blames his mother”. This indicated that the child was aware of the conflict occurring in his home.

[62] The conflict continued to escalate. The mother called the police on March 22, 2018 to report that the father had called her 40 times in a row. The father explained that he was just trying to speak to his son. He threatened to restrict the child from speaking to the mother if she did not pick up his phone calls. In fact, he followed through with this threat and later called the mother 50 times. Once again, the mother called the police. The mother proposed that they only communicate by email and set a time each day to speak to the child.

[63] When Ms. Wall spoke to the child on April 20, 2018, the above concerns were verified. The child disclosed that when he is at his father’s home, his father will not let him speak to his mother because his father is angry about things his mother did. The child shared that sometimes, when he is with his mother, he does not want to speak to his dad because his dad makes him angry. He does not like his father squeezing his feet and gets mad when his dad calls his mother a “pig”.

[64] On May 10, 2018, the child told Ms. Wall that his father spanks him.

[65] On May 31, 2018, Ms. Wall spoke to the father by phone and observed that the father’s anger and paranoia were escalating. His tone of voice sounded angry during the phone call and he ranted to her about what had occurred in court. The father talked about the lawyers and judges involved in his court proceeding and called everyone names such as “retarded,” “brain damaged,” “stupid,” “fucking mental case,” “loser” and “disgusting filth”. He called the mother a “selfish pig,” “mind screwed,” “retard” and “scum bag”.

[66] Ms. Wall found the father’s presentation on the phone to be concerning and his views about the legal system working against him sounded “paranoid”. During this call, the father told Ms. Wall that he would never give the mother a Get:

I will never let her have a kosher kid with some degenerated Israeli filth like the disgusting pukes I've seen her hang out with and their shit bag kids are bullying my son. There is zero chance in hell that's happening. I will never give her a Get. She isn't mentally stable and doesn’t have proper thought process so even if I gave her a Get she wouldn’t even be able to understand it. I won’t let her infest my son’s area with the Israeli filth that I have seen her hang out with so far.

[67] At the time, the father’s own father was in the hospital having suffered a heart attack. This was no doubt a stressor, but it does not explain the father’s abusive language. The father’s use of abusive language continued without abatement throughout the Society’s involvement and every day during the trial.

[68] Photographs of the father’s home depict the extreme clutter that concerned the Society. On occasion, the clutter was cleaned up. During the trial, the father presented photographs of his home free of clutter. It is not known when the photographs were taken. I accept that at times the father’s home was free of clutter, but this was not a consistent state. The Society workers who the father allowed to see his home recorded that it was an ongoing problem that created a risk of harm to a young child. Frequently, the father refused to allow Society workers to inspect his home.

[69] Ms. Wall told the father that his home was becoming more cluttered and that she was concerned about his mental health and well-being. The conflict was escalating and for this reason, the Society asked the parents to sign a Voluntary Service Agreement (“VSA”). A group meeting was arranged to discuss the VSA with the parents. In the interim, the Society paid a private service to have the father’s home cleaned and organized.

[70] The Society made every effort to work with the family on a voluntary basis. These efforts failed because of the father’s conduct and his refusal to cooperate.

[71] At a group meeting on July 4, 2018, the Society reviewed the VSA with the parents. They were told that if it was not signed and if they did not follow the recommendations, the Society would commence a child protection proceeding.

[72] During the meeting, the father stated, “this court case will go on for 20 to 30 years as I will play games with [the mother] forever”. He refused to sign the VSA. He took issue with the cleaning service describing the piles of items in his home as a fire hazard. To move the matter ahead, the Society agreed to remove this reference from the VSA. The VSA was amended but the father again refused to sign it.

[73] The terms of the VSA were reasonable and necessary, given the conflict and risk to the child. The terms focused on the safety of the child and included the following:

1. Parents to allow the Society worker to attend the home on a planned or unannounced basis every 30 days.

2. Parents to allow the Society worker to meet privately with the child during each home visit.

3. Parents to sign any release of information form required to allow the Society to exchange information with service/treatment providers.

4. Parents to maintain a home environment that is free of any hazards.

5. Parents to refrain from exposing their child to conflict which includes discussing each other negatively with the child and having arguments on the phone or in person in front of the child

6. Parents to attend Toronto Meditation.

[74] During the Society’s efforts to secure a signed VSA, the father’s concerning behaviour escalated, and the child’s awareness of the conflict was recorded.

[75] On July 13, 2018, Ms. Wall attended a home visit at the mother’s home and met with the child privately. Speaking about his parents, the child (now five years old) said “they will never get along”. The child told Ms. Wall that his father made his mother cry and he knew this because she just got off the phone with him and was crying. The child told Ms. Wall that his “dad said something not nice” and says “not nice things” about his mother and swears. The child said he was trying to “forget these things in my head”.

[76] Ms. Wall spoke to the child privately during a home visit with the father on June 14, 2018. Once again, the child’s words revealed his acute awareness of the conflict and his exposure to it. He knows his parents do not like each other and that they are fighting over him. The child thinks it would be better if his parents had two children and each parent had one so they could stop fighting over him. The child told Ms. Wall that his father is the problem because he slaps him on the bum.

[77] On July 20, 2018, Ms. Wall called the father to follow up on the VSA. The father refused to sign the VSA. He said it was “filled with blatant lies and untruths”. On August 1, 2018, the father again refused to sign the VSA and on this call stated that the mother was a “blood sucking piece of shit that destroyed my family”. Ms. Wall urged the father to clean up his home while the mother and child were visiting her family in Israel that summer.

[78] When Ms. Wall spoke to the father on September 5, 2018, his theory that the Society was conspiring against him had strengthened. They spoke again on September 21, 2018, but the father had not changed his mind about signing the VSA. His verbal attacks on the mother escalated. He called her a “blood sucking cunt”, a “disgusting cow” and a “money grubbing self-interested brainwashed liberalized piece of trash”.

[79] Ms. Wall told the father that she was moving to a new position in the Society and wanted to set up a meeting to introduce him to the family’s new worker. He refused and called Ms. Wall a liar.

[80] Around late September 2018, the Society asked the parents to attend a meeting to discuss the breakdown of the Society’s voluntary involvement. The Society wanted to try one last time to engage the father in voluntary services before escalating their involvement with a child protection proceeding. The mother agreed to meet, but the father never responded to the request.

[81] On October 22, 2018, Ms. Wall and her replacement, Ms. Khaitman, met with the mother and child. During the meeting, the mother reported that the father had called her over 40 times and filled up her voicemail with sounds of him watching television.

[82] The child disclosed the following to the Society workers: that his parents do not get along and that they are never happy to see each other; that his father “says swear words” and his “life is never normal”; that his father spanks him and the last time this occurred was a “really long time ago”; that sometimes his father squeezes his legs and he does not like it when his father does this; that his father calls his mother an “asshole” and a “pig”; that he sees his parents argue on the phone and sometimes, when his mother hangs up, his father “keeps calling and calling and calling”; that he misses his mother when he is at his father's, but his father will not let him see her or speak to her on the phone; and that sometimes he feels like his parents are going to “rip him in half” because of how they fight over him.

[83] The same day, Ms. Wall, Ms. Khaitman and the Society managers met to discuss the increasing concerns and the need to proceed with a child protection proceeding. Ms. Wall described that their discussion focused on: “[The father’s] declining mental health; his refusal to allow Society workers into his home for a safety check; and the disclosures directly from [the child] about his father’s negativity towards his mother and the ongoing conflict between them”. She also explained:

We considered the report from the school expressing concern that [the child] was showing signs of emotional distress as well as the chronic lateness. We determined that it would be unsafe for the child to be in an unsupervised setting with his father; particularly since Society workers had been denied access into the father's home. On that basis, we determined that a Protection Application would be necessary in order to ensure that the child's access with his father could be supervised, monitored and controlled. However, we decided to give [the father] one final opportunity to cooperate with the Society. Should the father refuse, we would proceed with a protection application.

[84] On October 23, 2018, Ms. Wall phoned the father to request a home visit. She explained the intention to work with him on a voluntary basis and the father told her that he would not work with the Society voluntarily. The father was reminded that if they could not work together voluntarily, a child protection application might be commenced. The father said that he understood and would not change his mind.

[85] The next day, the Society received a copy of the Paisley order giving the mother sole custody of the child and the father unsupervised access. A decision was made to move forward with a child protection application because the order did not protect the child while in the father’s care. There is no evidence that Justice Paisley was aware of the Society’s involvement or the concerns about the father when he issued his order.

[86] One of Ms. Wall’s final tasks on the file was to attend a meeting at the child’s school to document his progress. Ms. Wall learned that the child gets upset easily and has difficulty expressing his emotions. He often comes into school looking angry with his arms crossed and a frown. The school noted their concern about the child’s self-esteem because he does not participate in class and does not push himself to the fullest of his abilities. He has problems focusing and following directions. Overall, the school was concerned with the child’s social and emotional well­being. It was recommended that the child see a counsellor.

[87] What teachers told Ms. Wall is hearsay. No one from the child’s school testified. The father did not cross-examine Ms. Wall on the information she gathered from the school and did not object to this evidence. The father acknowledged that the child had difficulties at school. He blamed the mother and viewed himself as the one who should be helping the child. The reports from the school were information that the Society received and recorded. Further, the Society acted on this information and arranged for the child to receive counselling. The parents agree that the child was having problems at school. Therefore, I accept as fact the problems that the school reported to Ms. Wall.

[88] After the school meeting, the mother showed Ms. Wall the threatening text messages that she had received from the father. In these texts, he told her that because of her behaviour, he will continue to refuse a Get and that she will pay for her actions. As well, the father continued to repeatedly call the mother. The calls were excessive and harassing.

[89] The Society had exhausted all efforts to secure the father’s cooperation. Ms. Wall described the status as follows:

Despite the Society’s ongoing efforts to work voluntarily with the … [f]amily to address the protection concerns for [the child], the Society has been unable to engage [the father]. Coupled with [the father’s] determined resistance to prevent the Society's involvement, are the serious concerns about the recent decline in the state of [the father’s] mental health, his growing hostility to the [Society], and his expressed view that the Society is in collusion with other agencies to provide [the mother] with an advantage.

As [the child] has matured, his ability to articulate his concerns and distress has resulted in direct disclosures to workers. His ability to voice what has been happening in his home has increased. [The child] has disclosed his unhappiness with his parent's relationship as well as his awareness of their arguments over him.

October 2018 to January 2019 – Ms. Khaitman and the Start of the Child Protection Proceeding

[90] On October 30, 2018, the Society filed a protection application in the OCJ, on the basis that the child was in need of protection due to a risk of physical and emotional harm and having suffered emotional harm already.

[91] On November 1, 2018, the Society brought a motion for an order placing the child in the mother's temporary care and custody with access to the father at the Society's discretion. Justice Sager adjourned this motion to give the father time to respond. As a term of the adjournment, Justice Sager granted a without prejudice order, placing the child in the temporary care of his mother, subject to the Society’s supervision, with access to the father at the Society's discretion “as to location, duration, frequency, level of supervision and whether access is to take place at all”. The motion was adjourned twice to give the father time to respond. The Society’s motion was ultimately heard on March 29, 2019.

[92] When Ms. Khaitman took over the file in November 2018, she called the father to discuss the option of supervised in-person visits with the child. He declined this option. In his view, it would be too hard on the child because the child would want to remain with him. The Society then booked a four-hour supervised access visit for the father and child through Inner Stages Consulting Child and Youth Worker support. The father declined the opportunity to visit with the child. He told Ms. Wall that he had no interest in seeing his son if the visit was supervised. Ms. Wall encouraged the father to proceed with the access visit, explaining that he should not allow his anger with the Society to impact his decision and the child’s best interests. Ms. Wall further explained that the goal was for the father to eventually have unsupervised access. The father argued that the Society was damaging his son and then proceeded to call the mother a “blood-sucking leech that is brain damaged” who “got lucky with an anti-Semitic liberal judge who was so brain damaged that [she] shouldn’t even be working at a 711.”

[93] Early in November 2018, the father was informed that his telephone calls with the child would be supervised. Initially, the Society arranged for the mother to supervise the calls. However, the Society decided on November 16, 2018 to provide the supervision to avoid the history of conflict surrounding the father’s constant calls to the mother.

[94] Meetings and calls between Ms. Khaitman and the father continued and he continued to refuse supervised in-person visits. Ms. Khaitman repeatedly urged the father to have in-person supervised visits with the child because the child was asking for this. The father declined.

[95] During Ms. Khaitman’s time as the Society worker for this family, there were numerous examples to support her concerns about the father and the child’s well-being. The father was fixated on his refusal to give the Get and his view that the court system was biased, rather than trying to improve his relationship with the child. He continually told Ms. Khaitman that Ms. Wall lied and was biased. He called the mother a “perjuring pig”. After he was served with the child protection application, he told Ms. Khaitman that the Society are “retards” for taking him to court with no notice and that Ms. Wall is “brain damaged” and can “go fuck herself”.

[96] As explained above, the Society gave the father multiple opportunities to work together cooperatively and he refused. He was told many times that if he refused to work with the Society voluntarily, that a child protection application would be necessary. He was given ample notice of the child protection proceeding.

[97] In October 2018, the mother made the father aware of the child’s difficulties with math at school. His email reply to the mother was shared with Ms. Khaitman on November 12, 2018. It is an example of the growing concern with the father’s behaviour. The father blamed the child’s math struggles on the mother who he said, “destroyed his family and stole [the child’s] father from him”. He repeated his claim that the mother has multiple sclerosis that is “rotting out her brain”. While acknowledging that doing homework with the child is difficult, he told the mother that she can barely count herself and to “have fun with that, wifey”.

[98] Ms. Khaitman’s private discussions with the child confirmed that the child was increasingly aware of the conflict between his parents and exposed to his father’s disturbing behaviour. At this point, the child was six years old. The child’s statements revealed information about the legal process. The child told Ms. Khaitman that he was with the better parent because his father makes a big deal about everything all the time. The child said that he was annoyed that the law was keeping him away from his father. He called the law “troublemakers”. When the child was asked where he learned this from, he told Ms. Khaitman that he just knows that he is not allowed to see his father. The child said he avoided bringing up the idea of an in-person visit with his father because his father would get angry and uses the “F word” and “pig” to describe his mother. The child said that he was sick of his father telling him that his mother broke up the family and is brainwashed. He stated that his father is always angry with his mother and swearing at her on the phone.

[99] Ms. Khaitman and the other workers did their best to address the child’s concerns. Ms. Khaitman told the child that it was best for the visits with his father to be supervised to make sure that he is not hurt in any way. Ms. Khaitman told the child that his mother is right when she tells him that safety comes first. She also told the child that this did not mean that his father loved him less. She made it clear that his father loved him and recognized that the child loved his father.

[100] During November 2018, the father refused to meet with Ms. Khaitman in his home and told her that there was clutter in the home. They spoke by telephone on November 16 and met once at the father’s family paint store on November 22. During the call and the meeting, the father’s disturbing conduct continued.

[101] The father remained fixated on what he called the “illegal divorce”, his view that the mother was neurologically damaged, that she was manipulated and brainwashed by a worker at an agency called Act to End Violence Against Women, that the mother was a “puppet” who has to “wake up”, that he was being set up by everyone including the mother’s “liberalized retarded lawyers” and that “they are all blood sucking filth”. He called the mother’s lawyer a “piece of shit who writes garbage”. He called the judge a “moron”. When Ms. Khaitman told the father that the child reported that he had called the mother a “pig”, the father did not deny this. Instead, he called the child a “genius who remembers everything”.

[102] When Ms. Khaitman arrived at the paint shop, the father presented as cooperative, polite and humorous, but appeared to be restless. He was constantly in motion, gathering, stacking and organizing all the items around him and then he started to voice the same complaints about the same topics, “almost word for word”. He berated Ms. Wall for her “lies” and complained that the mother was being “brainwashed”. He repeated that he will never give the mother a Get until he first gets everything he wants: primary access to the child until he is 18 years old, $250,000 and retroactive pay of $1,000 a day because he was the child’s primary caregiver.

[103] Ms. Khaitman repeatedly tried to focus the father on his relationship with the child. She asked if he would move ahead with in-person supervised visits. She encouraged him to read and respond to the child protection application that had been served. He said the court order was made by a “moron” judge. He had not read the application material because he was too busy in the family business. Despite her efforts, the father remained fixated on matters other than the child.

[104] In December 2018, the Society was preparing to respond to the father’s request for production of their file. When the father complained about the delay, the Society expedited the production.

[105] During a December 4, 2018 telephone call, the father told Ms. Khaitman that the judge “is retarded and working for the [Society] as a puppet”. He accused the Society of “fraud and covering up the truth”. The father had read the child protection application and Ms. Wall’s affidavit. He described the documents as “trash” and “lies” and said that “the whole system was meaningless”.

[106] Ms. Khaitman told the father she did not want to have an adversarial discussion with him, but he continued to raise his voice. The father threatened that if he did not receive his file, there would be zero communication with the Society going forward. When Ms. Khaitman asked if this meant he did not wish to continue the supervised calls with the child, he replied that the Society has no authority and he will absolutely see his child in person if he wants to.

[107] While the father refused in-person supervised visits, telephone visits continued. As of December 11, 2018, the father and child had enjoyed 11 supervised telephone calls. All were positive. The father was “very appropriate” with the child on the telephone and discussed age-appropriate topics. However, there were concerns about mixed messaging that the father gave the child. While he promised to see the child soon, he was refusing the Society’s offer of in-person supervised visits.

[108] On one occasion, the mother was cautioned not to speak to the child during his calls with the father. The mother explained that she only speaks to the child when he needs encouragement to stay on the call. There had been two occasions when the child put the phone down and walked away. The mother was receptive to Ms. Khaitman’s suggestions to address this problem.

[109] Despite a series of positive telephone calls between the father and child, Ms. Khaitman had concerns about the stability of the father’s mental health and his ability to move forward with the Society in a productive way. Her interactions with the father indicated that he did not understand the implications of his own actions and was unable to recognize or take any responsibility for them.

[110] The father did not comply with the order requiring his access to be supervised. On November 13, 2018, he approached the child at school and made attempts to enter the school. The Society had informed the school that the child protection order precluded any contact between the father and child, unless supervised by the Society. The school informed the father that he was not allowed on school grounds without a pre-arranged appointment and that security would be called if he appeared without an appointment. On December 7, 2018, the father appeared at a Synagogue event involving the child, in breach of the order. The father admits that he went to the school and Synagogue.

[111] The Society continued to meet with the child and check on his progress at school. With supervised access, the child was happier and less frustrated at school. He was more involved and eager to participate. Homework was organized and done on time. The child was more resilient and able to find solutions rather than getting frustrated and acting out. This evidence is consistent with the mother’s evidence about the child’s progress at school.

[112] What the teachers told the Society is hearsay. However, the father did not object to this evidence. He did not cross-examine Ms. Khaitman on this evidence, nor did he disagree with the various reports from the school concerning the child. As a result I the school reports about the child’s progress as fact.

[113] The child longed to see his father. He missed him and expressed his love for him to Ms. Khaitman. The child told Ms. Khaitman on November 12, 2018 that the distance between him and his father was like a “portal”. If he went through the portal, he was bounced back to his mother. He said he wants to go through the portal but understood why he could not do this. Ms. Khaitman told the child that his description was very insightful and suggested that he write his father a note. His note said, “sorry you can’t see me today, dad”.

[114] Ms. Khaitman observed that the mother had done a good job shielding the child from the court conflict and the circumstances. The mother was eager to ensure that the child was safe and looked for resources to help him at school and with his behavioural growth. It was agreed that the Society would arrange individual counselling for the child through play therapy.

[115] Supervised access telephone calls continued in December 2018 and some were positive. However, later in the month the father’s conduct led to suspension of his access.

[116] On December 20, 2018, the child continued to express his wish to see his father in person. The Society supervisor observed that the child was tormented by not being able to do so. The child told his father he wanted him in his life at least once or twice a week. The father could not appreciate that his refusal to have in-person supervised parenting time was causing the child emotional harm.

[117] A call on December 21, 2018 was positive. On December 24, the call was mostly positive. The access call time had been moved from 6:00 p.m. to 5:00 p.m. and the father was fixated on this change. He asked the child whose decision it was to change the time and the child did not answer. The father asked the child if the mother had made the change and the child replied, “please don’t tell me the same thing again,” indicating that the child did not like his father talking about his mother. During the access call, the child told the father that he was going to play a video game called Fortnite with his cousin and the father replied that it is a “really annoying game”. The child’s response was “but dad I like it”. The call ended.

[118] The same day, the father contacted the Society’s on-call child welfare worker and complained that the Society was “screwing around” with him. He called Ms. Wall a “viper snake scum” who wrote a load of “horse shit” for the courts. Ms. Khaitman was a “snake” and he accused her of working against him behind the scenes. When Ms. Khaitman was away with the flu, he thought she was hiding from him. He believed that the Society had tampered with this disclosure and said that they lie and are manipulative.

[119] During the December 27 telephone access call, the father’s tone, attitude, volume of his voice and cadence changed. This was triggered a few minutes into the call when the child asked the father if he could talk to him later because he was busy at his cousin’s home watching them play Fortnite. The father repeatedly asked the child in a stern and loud voice why he was playing an inappropriate game that was for ages 12 and up. He demanded that the child take the phone to a private room and speak to him there, but the child wanted to get off the phone. The father tried to distract the child by asking him about camp. He then began to threaten the child that he would cancel all their telephone calls if the child did not speak to him that night. The child replied “okay”. The father asked him aggressively “do you hear me?” and the child apathetically replied “yup”. The father then said, “If you don’t want to talk or listen, then I’m not going to talk to you for three weeks”. The child kept saying “okay”. The father then yelled very loudly on the phone “This is all your mother’s fault. This is how your mother raised you”. Ms. Khaitman intervened and ended the call.

[120] That evening, Ms. Khaitman called the father to discuss what had happened and explained to him that what he said to the child was unacceptable. The father continued to blame the mother for the “set up” and for allowing the child to be around a “violent game” with his cousins. Ms. Khaitman tried to redirect the father and told him that he had to stop assuming everything is everyone else’s fault. She stressed that he must stop being angry at the world and start taking responsibility for what he says and how he makes people feel, especially the child.

[121] Ms. Khaitman explained to the father that he needs appropriate parenting skills to deal with his child who might do lots of things he does not like. He cannot yell at his child and blame the mother. The father started talking about his conspiracy theories about the Society. Ms. Khaitman urged him to focus on what had happened on the call and accept that his response to the child was concerning. She told him that his conduct could have an impact on the child and explained that future telephone calls may have to be cancelled. The father did not express any remorse or awareness of the severity of what had occurred. The father’s response was that he did nothing wrong and he wanted a new Society worker. A new worker was being assigned, not because of the father’s request, but because Ms. Khaitman was going on maternity leave.

[122] Ms. Khaitman spoke to the child the same evening. His aunt answered the phone and Ms. Khaitman heard the child say in the background that if it was his father calling, he did not want to speak to him. The child spoke to Ms. Khaitman and told her that he was not doing well because his father yelled at him for no reason. She reminded the child that there was another call with his father the next day. The child did not want to talk to his father.

[123] Ms. Khaitman reviewed the supervised call with her manager. They decided to check in with the child again to see if he was still opposed to speaking with his father and call the father to see if he would apologize to his son.

[124] Ms. Khaitman could not speak to the child the next day because he was at winter break day camp. She discussed the father’s concerns about the Fortnite video game with the mother. The mother explained that the child was not playing the game and that she would look into a censorship filter on video games. The mother said that after the supervised call, the child shut down and would not talk about the call. Ms. Khaitman asked the mother to give the child a message to explain why the supervised calls were put on hold. The message relayed the concern about the father’s conduct, that the Society would help the father to make better choices, that it was not the child’s fault and that he could relay messages to his father through the Society worker.

[125] When Ms. Khaitman and her supervisor spoke to the father on December 28, 2018, he lashed out and called all Society staff “biased filth,” “liberalized trash” and “brainwashed fools” who do not listen to him. The father refused to apologize to the child because the child was acting like a “rude little brat”. He said that the child should apologize to him. The father was told that the Society would not allow the child to be exposed to the father because of how he described his son and his inability to see his role in what had occurred.

[126] Ms. Khaitman called the mother on December 29, 2018 because she was concerned that the situation was escalating, and she thought the father might take unauthorized actions to contact the child. Steps were taken to ensure that the mother and child were safe and had the necessary supports around them.

[127] The Society’s lawyer, Ms. Westreich, sent the father a letter outlining the Society’s decision to suspend all access between father and son, until the father engaged in anger management and parenting support programs that the Society approved. The letter stated that this decision was in the best interests of the child.

[128] The father responded to the letter the same day. His response was a continuation of his concerning behaviour and fixations. He stated the he had been set up, that the child was rude, that this was because of the mother’s poor parenting and that Ms. Khaitman exaggerated what happened during the December 27 access call and was biased against him. He said that the Society is “pure utter filth” and do not care for the children placed in its control. The father complained that the disclosure was missing all the audio recordings. He was told more than once that the Society does not record discussions.

[129] On December 31, 2018, Ms. Khaitman sent the father a list of supports that he could use if he wanted access reinstated. In particular, she suggested an anger management program called Caring Dads, any workshop offered by Families in Transition and a workshop that the Society offered on High Conflict Divorce. He responded that day and told Ms. Khaitman that she is not his worker and that she is a “biased disgrace”.

[130] Dealing with the father’s claim that the mother has some form of neurological disorder, Ms. Khaitman explained that this has never been brought to her attention aside from the father’s claims. She confirmed that the Society has no evidence that the mother suffers from a health condition or that her care of the child has been impacted.

[131] On January 2, 2019, the father called Talyah Breslin, the Society Director of Service, Child Welfare and shared the same complaints including that Ms. Wall was biased and lied to him, that his child was stolen from him and that Ms. Khaitman was a “low-life worker”. Ms. Breslin invited the father to meet with her and the manager, Ms. Quezada, if he remained respectful and refrained from using such language as “cancer of a worker” and other derogatory statements.

[132] The meeting took place on January 9, 2019. The father repeated his request for a new worker who had never touched his file before. Referring to the Society disclosure, he said that the Society was fed a lot of lies. He complained about the termination of his access and when asked if he wanted to talk about it, he focused on the child playing the Fortnite video game. Ms. Breslin explained that the Society had looked into this and confirmed that the child was not playing the game and the mother was investigating censorship/filter programs. Instead of talking about the child, the father complained about Ms. Wall and others. He complained that the judges lacked impartiality and were against all fathers. Aside from his complaints, he told them he had nothing else to discuss. He was given a drawing from the child with a message that read “I love my dad”.

[133] Ms. Khaitman had her last home visit with the child on January 4, 2019. The child told her that he was doing great and had enjoyed winter camp. They talked about the last access call. The child said he knew his father was going to freak out and so he hung up. The call made the child very angry because his father had screamed at him for no reason. As well, the child told Ms. Khaitman the following: that his father had yelled at him like that plenty of times; that his father swears about his mother a lot; that he could not repeat the words but one began with “F” and the other “SH”; and that he could not believe how rude his father was to his mother, uncle and paternal grandfather. The child expressed strong feelings to Ms. Khaitman that he does not want to talk to his father.

[134] Ms. Khaitman asked him if he wanted to send his dad a picture. He said no, then changed his mind. He gave Ms. Khaitman a picture with the message “I love my dad”.

[135] During Ms. Khaitman’s last home visit, the child’s views revealed his growing awareness of the conflict. The child hoped that his father would not “go crazy on him again” because he “gets mad at very little problems and thinks everything is done to him on purpose”. Ms. Khaitman asked the child what he meant. He replied that he always thought it was his mother’s fault for ruining the family because his father would always tell him that, but he now sees that it is his father’s fault.

[136] Ms. Khaitman summarized the status of the child protection file as she was departing on maternity leave. The father’s erratic conduct and verbal outbursts posed a risk of harm to the child. A mental health assessment was essential to address his behaviour and his distorted beliefs about systemic bias, the Society’s bias, lack of judicial impartiality and his view that the Society was withholding disclosure from him. The father did not recognize his contribution to and responsibility for the deterioration of his access to the child. He continued to involve his child in the conflict, despite repeated advice that it was harmful to the child.

January 2019 to March 2020 – Ms. Chodos and the Start of the SCJ Application

[137] On January 16, 2019, Gene Chodos took over as the Society worker on the family’s file. She remained in this role until March 2020.

[138] In January 2019, the father’s access was still suspended. Ms. Chodos’ goal was to move the working relationship between the Society and the father to a more positive place. She stated that everything was stuck, and she wanted to find a way though the conflict for the child’s sake.

[139] Ms. Chodos was able to build a rapport with the father. The father describes Ms. Chodos as a “valid” worker and the only Society worker who is not a “liar, a fraudster, or biased”. In his words, she was fair with him, though “not 100 percent fair”. He says that they agreed to work together, and they worked “very well”. Supervised visits were implemented and, in his perception, “the visits were going well, and they got expanded … no issues and we get to a point and convert over to unsupervised”.

[140] As explained in these reasons, the father’s evidence that there were “no issues” is not correct. Ms. Chodos, whose evidence the father testified is “95 percent true”, clearly explained the numerous issues that the father’s behaviour caused.

[141] The father testified that Ms. Chodos “lied about me on occasion but nothing serious”. The father said he can “trust” her records even if she said something bad about him because she also said bad things about the mother.

[142] Ms. Chodos’ evidence is detailed and extensive. She filed four affidavits in the child protection proceeding and this was her evidence in chief for the trial, supplemented with some viva voce evidence.

[143] Ms. Chodos fairly acknowledged that success during her involvement was mixed. There was some improvement in the father’s conduct, but then it would go backwards. The progress that Ms. Chodos achieved was not without difficulty. While the father insists that they worked well together, his behavioural problems continued to create roadblocks and setbacks.

[144] When Ms. Chodos assumed the file, she noted that the father’s affidavit in the child protection proceeding focused on the issues before the court. This focus was a positive change. But at the same time, the father continued to take no responsibility for the escalation of his behaviour with the child and he offered no explanation for why he had insisted on telephone access, when the Society had offered him in-person supervised access.

[145] The father continued to allege that the Society was colluding with the mother to force him to give her a Get and brainwash the child. Ms. Chodos explained that his allegations reflected his lack of personal insight into how his outspoken animosity towards the mother, words, choices and behaviour have impacted the Society’s concerns about his ability to ensure the welfare of the child.

[146] The father’s supervised access could not resume until Ms. Chodos had assessed the issue of his access.

[147] Ms. Chodos met privately with the child on January 31, 2019. The child told Ms. Chodos that sometimes he does not remember his father nor feel like his father is part of the family because he has not seen him in a long time. The child missed his father and wanted to talk to him. If he saw his father again, he would tell him “don’t you dare freak out at me”. The child knew that his father would not apologize.

[148] On February 16, 2019, Ms. Chodos and Ms. Sadinsky met the father at his home. While the home was clean, the eating and living areas were filled with clutter and there was no useable space. The father explained that he was not motivated to clear the clutter when the child could not visit. Ms. Chodos offered to help arrange a service to make the area more comfortable for the child and she urged the father to seek counselling. The Society was not prepared to pay for the third-party counselling that the father suggested. Ms. Chodos offered the father four counselling sessions with Rabbi Chemel who provided in-house counselling for the Society.

[149] Ms. Chodos spoke to the child’s doctor and teacher to see if there were any concerns. The doctor had no concerns. At school, the child’s academic skills were growing although his Hebrew was weak. The child remained distracted in structured learning environments and was slow to complete tasks. His school attendance had improved since the mother gained sole custody. The child had been consistently late when his father brought him to school. The child was more organized and calmer. He was not as angry or upset and his reactions were not as extreme. The school was watching the child’s academic skills and distractibility. Again, what the teacher told Ms. Chodos is hearsay and cannot be accepted as fact. It is evidence that the Society relied upon during the child protection proceeding to support their view that the child was safe in his mother’s care. The father denied that he was responsible for the child’s late attendance. He did not dispute the evidence about the child’s academic progress which I accept as fact.

[150] The school expressed concerns about the father who was borderline abusive at a recent parent-teacher meeting. The teachers had to redirect the father to focus on the purpose of the meeting. They expressed concerns about meeting with him in the future because of his aggressive presentation and language. The father admits that the school principal called him and told him about these complaints.

[151] On February 11, 2019, the child protection matter was before Justice Sager. Justice Sager told the mother it would be helpful to disclose information about her medical condition and whether she had multiple sclerosis, as the father alleged. Justice Sager told the parties that if a motion was brought for the mother’s medical records, she would have to be persuaded that the production was necessary.

[152] There is no evidence to support the father’s allegation that the mother has a condition that puts the child at risk. None of the Society workers nor anyone else have observed that the mother’s ability to care for the child was or is impacted by some neurological condition, assuming she had one, or some other cause. The Society had no reason to be concerned about the mother’s ability to care for the child. This remains so today.

[153] The mother followed Justice Sager’s direction and provided a letter, dated February 1, 2019, from her neurologist, Dr. Michael Angel, addressed to the Society. The letter states that “there is no neurological evidence to suggest the [the mother’s] condition would affect her ability to parent [the child]”. The letter does not state what “condition” the mother has. There was no motion seeking further disclosure about this condition.

[154] At the court appearance on February 11, 2019, the father agreed to participate in some counselling. Later that month he agreed to four anger management sessions with Rabbi Chemel.

[155] During a private visit on March 13, 2019, the child told Ms. Chodos that he wanted to see his father in his home. The child acknowledged that there was a lot of “stuff” in his father’s home. The child said that his parents hated each other, and his father was not good to his mother. His father used swear words. Despite this, he still wanted to see his father.

[156] The Society agreed to resume the father’s in-person supervised visits as of March 20, 2019. Visits were supervised at the Society’s offices and offered for one hour per week, with make-up visits for those that could not take place. The Society also agreed to provide and pay for some additional services and access time: a Society worker to supervise the father’s attendance at the child’s end of school year picnic and a Child and Youth Worker from Bartimaeus to supervise a Father’s Day visit in the father’s home and the community from 11:00 a.m. to 5:00 p.m.

[157] When the in-person visits resumed, the father and child were excited, affectionate and appropriate with each other.

[158] On March 26, 2019, the Society paid for Fresh Start to help declutter the father’s home. When Ms. Chodos saw the home on April 4, 2019, she noted that there was a significant improvement in the living room clutter. However, the child’s bedroom was filled with boxes of toys and there were areas of clutter elsewhere in the apartment that the father acknowledged he needed to address.

[159] On March 29, 2019, the Society’s motion that was adjourned on November 1, 2018 was heard by Justice Sager. The father contested the Society’s temporary care and custody motion. Justice Sager issued a temporary with prejudice order that placed the child in the mother’s care. The father’s access remained in the discretion of the Society.

[160] The following excerpt from paras. 51-60 of Justice Sager’s March 29, 2019 decision discusses the father’s conduct, the resulting harm to the child, the father’s inability to control his offending behaviour and the mother’s inability to protect the child with the father’s unsupervised access. Sadly, the concerns that Justice Sager identified more that two years ago still exist.

As stated above, I find that [the child] was in the charge of his mother just prior to the commencement of proceedings by JFCS as contemplated by the Act. Therefore, I must first consider whether [the child] can remain in his mother's care with or without terms of supervision.

For reasons set out below, l find that [the child] can and should remain in his mother's care subject to the society's supervision. Therefore, I dismiss the father's request for an order granting him care and custody of [the child] as he will remain in the care of the mother who had charge of [the child] at the time of the society's intervention.

There is a substantial amount of credible and trustworthy evidence that establishes reasonable grounds to believe that there is a real possibility that if [the child] continues to visit his father alternate weekends unsupervised it is more probable than not that he will suffer harm. As the mother is unable to protect [the child] from the harm associated with visiting his father, a supervision order is required.

The evidence demonstrates that the father has conducted himself in a manner that is harmful to [the child]. He is unable to control his anger towards the mother in front of [the child] and goes into rages. Afterwards, he is unremorseful and incapable of considering the harm he has or may cause to [the child].

The father is unable at this time to identify not only the cause of his anger but the actual existence of his anger. He does not believe that he has any difficulty controlling his emotions and that what he has said and done has a negative impact on [the child]. As a result, he is incapable of curtailing the offending behaviour because he has not been able to identify any of his behaviour as offensive or harmful to [the child].

The conversations the father has subjected [the child] to can be extremely detrimental to [the child’s] emotional well-being. Consistent denigration of the mother to or within earshot of [the child] is emotional abuse. Unfortunately the father does not understand this to be the case as he continually engages in this behaviour.

The evidence demonstrates that the father harbors a tremendous amount of anger and resentment which when triggered scares the people around him. When that anger is directed at the mother in front of [the child] or at [the child] directly, it has an enormously negative impact on [the child] who loves both parents.

There is no doubt that the father has been unable to control his anger and emotions and his lack of control puts [the child] at a real risk of emotional harm. [The child] is sadly extremely aware of his parents' conflict and the fact that it centres around him. This is an incredibly large burden for an eight year old child to carry. The evidence strongly suggests that the father is primarily responsible for [the child’s] knowledge of the conflict.

The risk of emotional harm to [the child] is elevated as a result of father's complete denial of any wrongdoing and no insight into his own behaviour which is further complicated by his insistence that the society is colluding with the mother and therefore he will not cooperate with JFCS.

As the mother has been unable to protect [the child] from the risk posed by his father, a supervision order with reasonable terms and conditions is necessary to provide that protection.

[Emphasis added.]

[161] Justice Sager ordered the father to undergo a mental health assessment with a registered mental heath professional approved by the Society. Pursuant to the order, the Society gave the father the names of three approved assessors. The father immediately claimed that this was not part of the order. He remained unwilling to undergo a mental health assessment and would not accept any of the assessors that the Society identified.

[162] Ms. Chodos continued to remind the father that he must shield the child from his negative comments about the mother (as ordered by Justice Sager on March 29, 2021). However, during an interview with Ms. Chodos on April 10, 2019, the child expressed his thought that the judge should be fired for deciding that his father needed help and for not allowing him to see his father in his home. The child also insisted that his father had called his mother a “pig”. It was obvious from the child’s comments that the father was not complying with the court order.

[163] At this point, the father was attending the anger management sessions with Rabbi Chemel that Ms. Chodos had arranged. On April 12, 2019, the Rabbi notified the Society that during a session with the father, he had in a threatening manner expressed anger at the Society for restricting access to the child. Rabbi Chemel reported that the father said:

One of these days, I am going to find out who is directing these workers. I asked the workers who is instructing them and they say that the directive comes from the court, but I know that there is someone at JFCS who is directing things … and when I found [sic] out who it is I am going to come into JFCS and find them and security is not going to be able to stop me.

[164] What Rabbi Chemel reported to Ms. Chodos is hearsay. The Rabbi did not testify. The father did not object to this evidence. When the father was cross-examined about this threat, he did not deny it outright. He said the Rabbi “misheard what I said”. The Rabbi “thought he heard a threat”. This is what he “thinks was said”, but the father insists it was a “misunderstanding” of his ramblings. The father accepts that the Rabbi had a duty to report. He says, “it was dealt with as soon as we had a meeting with JF&CS” and “there is no recording”. The father calls the comment a “potential thought threat”.

[165] The Society did deal with this threat. The father’s access was suspended until his intentions could be ascertained and a safety plan put in place. The threat is part of the narrative and explains why the Society suspended access at this time. This threat is consistent with the father’s conduct as set out in these reasons.

[166] On April 29, 2019, while the father’s access was still suspended, the child’s school notified the Society that the father attended the child’s school without prior Society approval and without an appointment. Once inside the school, he found the child in the hallway. This was a breach of the court order.

[167] On May 16, 2019, Ms. Chodos and Ms. Sadinsky met with the father. They told him that the Society would no longer tolerate any use of vulgar language or verbal threats towards staff, and further cautioned him that if he could act as a partner with the Society, a cooperative process to expand access would not happen. The father agreed that he would act as a partner. Access was then reinstated with the same supervised schedule.

[168] Slowly, the Society allowed the supervised visits to take place in various locations (the father’s home, a school picnic and a park). There were four supervised visits and they went well. As the visits progressed, the mother was extremely cooperative. However, once again the father’s concerning conduct became a problem.

[169] On May 26, 2019, the mother and child participated in a Walk for Israel. The father appeared on the walk and proceeded to walk with the mother and child. This contact was not approved by the Society. While the father’s behaviour was not threatening, it was a breach of the court order.

[170] On May 29, 2019, Justice Sager clarified that the father’s mental health assessment was part of her March 29, 2019 order. The father was disputing this fact.

[171] On June 5, 2019, Ms. Chodos spoke to the father by telephone. He told Ms. Chodos that if his access was not expanded, he would not have a mental health assessment. Ms. Chodos told him that the Society would consider reducing the level of supervision and allowing longer access visits off the Society premises, but he needed to cooperate with the mental health assessment before unsupervised visits could be considered.

[172] On June 11, 2019, the Society served the father with a draft copy of a s. 98 endorsement for a mental health assessment with a psychiatrist under the Child, Youth and Family Services Act. The draft included questions for the assessor to answer. The father replied and made it clear the he would not cooperate. He stated, “I will not be cooperating on questions of my ability to parent my son, when I have been the only stable thing he had until you infested our life like the cancer you and your organization are.”

[173] Ms. Chodos explained that the Society was never able to move past the father’s refusal to cooperate with the court-ordered mental health assessment.

[174] On June 24, 2019, a serious incident happened. The father had a scheduled visit with the child at the Society’s office from 11:30 a.m. to 1:30 p.m. As a result of his conduct, the visit was cancelled.

[175] At 11:42 a.m., the child and supervisor were waiting for the father to arrive when a call came into the office from the father. The child was taken into another room to shield him from his father’s behaviour.

[176] The father was heard swearing at the security guard at the entrance to the Society parking lot. The father was angry because he was behind a car waiting to get through security. He told the access supervisor that the “fucking bastards cocksuckers” were holding him up because they were chatting with the driver in the car ahead of him. The security guard would not let that father enter. Ms. Sadinsky, the Society manger on the family’s file, became involved. The guard told her that the father was completely out of control and had become quite verbally abusive. Ms. Sadinsky called the father and put him on the speaker phone. It was clear from speaking to the father that he had lost control. They heard him cursing and using vulgar language. She heard the security guard swearing at the father and the father then laughed.

[177] Ms. Sadinsky told the father that she was cancelling his visit. In response, the father then threatened to drive through the parking lot gate. He continued swearing and said that he would not leave. The Security Director was called, and a decision was made that the father would not be allowed on the Society premises. The incident was documented in a Serious Occurrence report.

[178] The mother was called to pick up the child at a back door so the child would not see his father’s behavior. Unfortunately, the mother misunderstood the pick-up directions. When she arrived at the gate, the father’s car was blocking the entry. When he saw the mother, he started yelling at her that it was “all a set-up”. The mother called Ms. Sadinsky and eventually she was able to safely pick up her son. When the mother and child left, the father was still parked near the entrance. Given the father’s history, the mother was very unsettled by the father’s escalated state and what had happened.

[179] The father was cross-examined about the evidence that he threatened to drive his car through the security gate when security would not allow him through. The father replied, “no not correct, I asked him, what, do I have to drive through this thing to get into my appointment?” The father said that the security guard apologized to him. There is no corroborating evidence of an apology. As usual, the father denied that he did anything wrong, and stated that those who claim he did are liars.

[180] The father admits that he asked the guard if he had to “drive through this thing” to get into the building. There is no evidence from the guard as to whether he perceived these words as a threat. What the guard said to Ms. Sadinsky is hearsay.

[181] I find as fact that the father threatened to drive his car though the security gates because he made this threat directly to Ms. Sadinsky. She heard the father’s anger, vulgar language, loss of control and threat and cancelled the father’s visit.

[182] I reject the father’s evidence that seeks to minimize his behaviour. The father’s threatening conduct as described by Ms. Sadinsky is consistent with what the Society workers frequently observed.

[183] On July 10, 2019, the Society was notified that the father had completed four anger management sessions with Rabbi Chemel. Despite these sessions, the father’s anger problem continued.

[184] The same day, the father was late for a 4:00 p.m. access visit. The Society cancelled the visit at 4:25 p.m. because the father had not arrived. He finally arrived at 4:35 p.m.

[185] Ms. Chodos interviewed the child privately on July 17, 2019. The child reported that his father did get angry, but said his father was “one of a kind” and that he still wanted to spend time with his dad without the Society’s interference. He stated that his parents deserved a divorce because they argued when he was little, and that he wasn't sure why God didn't get involved because if God existed, God would be getting his parents back together without arguing.

[186] From July 18 to August 21, 2019, the mother and child were in Israel visiting her parents, siblings and cousins. During this time, the child had telephone access with his father, monitored by the mother or her family members, twice a week for ten minutes. The child had the right to end the call early if he wished to do so. The call monitor could also end calls if the conversation was inappropriate. Despite the clear Society guidelines, both parents complained to Ms. Chodos about the telephone calls, accusing each other of wrongdoing. The father accused the mother of not facilitating or allowing calls, while the mother accused the father of harassing her and not allowing the child to exercise his discretion to end calls.

[187] When Ms. Chodos visited the father’s home on August 15, 2019, she noted that the home remained cluttered in the eating and work areas, and boxes still covered the child’s bed.

[188] On August 22, 2019, the mother completed the intake interview for the child to begin play therapy through Regesh Family and Child Services. The purpose of this therapy was to follow through on the school's recommendation that the child receive counselling to work on emotional regulation and conflict resolution. The therapy would also provide the child with emotional coping strategies to deal with the adult conflict he was exposed to. Play therapy took place on Saturdays, beginning on September 21, 2019, and continued until June 2020.

[189] In September 2019, Ms. Chodos and Ms. Sadinsky decided to try unsupervised access, even though the father had not complied with the court-ordered mental health assessment and his behaviour remained a serious problem.

[190] Ms. Chodos explained that by this point, the Society realized the father was not going to cooperate with the mental health assessment, order or no order. Since the child was attending counselling, the Society decided to move forward with unsupervised access and assess how the child managed.

[191] The father argues that the Society went ahead with unsupervised access because Justice Sager decided that a mental health assessment was no longer necessary. The father’s view is not supported by any evidence. There is no endorsement from Justice Sager that removed the necessity for a mental health assessment. Justice Sager ordered the mental health assessment on March 29, 2019 and confirmed her order with more details on May 29, 2019.

[192] The father relies on part of Ms. Sadinsky’s October 16, 2019 Contact Log note to support his view that the Society and the Court withdrew the need for his mental health assessment. This note recorded the 6-week review meeting. In part, the note stated “JFCS will no longer be seeking a mental health assessment for the father as he has continued to resist any treatment. Given that there does not appear to be an impact on [the child], this condition is no longer being sought”.

[193] Ms. Chodos was cross-examined about this note. She stated the father was misrepresenting what happened. At this point, the Society had made every effort to help the father understand the advantage of having a mental health assessment, but the father had “made it very clear that [he] was not going to cooperate with any such request”. Ms. Chodos went on to say that when they were in court before Justice Sager, “it was never said that the father did not need a mental health assessment”. Rather, the Society “was encouraged to accept that the father was never going to cooperate” with a mental health assessment and the Society had to find a way to move the file forward without one.

[194] Recently, in February 2021, the parties attended before Justice Sager on a status review. The outstanding mental health assessment was discussed and Justice Sager recorded the following in her endorsement: “[The Society] wants to be able to speak to the doctor doing the mental health assessment but the father won’t agree to that. This will be an impediment to the completion of the mental health assessment which was explained to the [father]”. If, as the father states, Justice Sager decided that the mental health assessment was no longer required, why did she review the status of the father’s compliance? This endorsement confirms that the order for a mental health assessment has not been withdrawn.

[195] When the Society decided to try unsupervised access, Ms. Chodos “definitely” had concerns based on the father’s inability and unwillingness to refrain from highly negative comments about the mother.

[196] During the trial, Ms. Chodos acknowledged that it is hard for one to understand why the Society agreed to move to unsupervised access in the absence of the father’s mental health assessment. She explained that they were putting the child’s wishes and preferences above all else. At this point, the child was seven years old. They decided to try unsupervised access and assess if it was a harmful or positive experience for the child. The Society made it clear that nothing was carved in stone and they were prepared to “go backwards” if needed.

[197] When the father cross-examined Ms. Chodos, she described her concerns about him as follows: “your outbursts and escalation of behaviour that impacted [the child’s] consistent access to you”; “the way you express yourself when angry”; the “words you would use, the types of words you would use when referring to the [mother] or the Agency”; “the degree of [the child’s] exposure to adult conflict”; “a complete lack of respect for boundaries” and a lack of “temper control”; “constantly testing the limits”; and “you never missed an opportunity to yank [the mother’s] chain”. When the father gets angry, he “has no filter”. He uses “highly derogatory language when speaking about the mother in front of the child”. While the mother made every effort not to speak badly about the father in front of the child, the father did “not make the same effort”. These concerns continued throughout Ms. Chodos’ involvement and still existed when she retired and transferred the file to Ms. Moses.

[198] Ms. Chodos saw the child “using every ounce of his energy to stay out of the conflict”. She tried to help the child understand that it was not his responsibility to resolve this conflict. This was a “very difficult situation” for a young child to grow up in and “all he wanted was peace”.

[199] The Society’s decision to move to unsupervised access without the mental health assessment gave the father the opportunity to demonstrate that he could control his harmful behaviour and show that the child would be safe in his unsupervised care.

[200] Going forward, there were short periods of time when the unsupervised access was positive, but overall, the father’s concerning conduct continued. His actions demonstrated that the Society could not support unsupervised access.

[201] The father did not always follow the access schedule and return the child on time. The father had a one-hour unsupervised visit each week. The child enjoyed the time with his father and stated, for example during a private visit with Ms. Chodos on September 16, 2019, that his father did not talk about his mother during visits.

[202] In balancing the issues, Ms. Chodos and Ms. Sadinsky believed that access should continue because the child valued the relationship with his father. They monitored the situation closely.

[203] The father continued to ask for telephone access. He was told repeatedly that this form of access would not be allowed because it resulted in a serious escalation in adult conflict between the parents.

[204] On September 20, 2019, the mother emailed Ms. Sadinsky and Ms. Chodos to report what the child had told her the previous night: “So my dad said that you spanked me and he also said that you said too much lies about him. He said that all of the lies are wiping away my memory but I do not trust him at all”. The child also said that his father told him that when he was older, he would be on his father’s side.

[205] The mother reported similar comments from the child after a visit with the father on September 25, 2019. On that day, the father called the mother a liar and told the child he did not have a brother because of her.

[206] Ms. Chodos spoke to the father about these allegations the next day. He denied making such statements. The father was reminded to refrain from further exposing the child to any adult conflict. As I stated at the outset, where the father’s evidence differs from that of the Society and mother, I reject the father’s evidence.

[207] During a home visit on October 7, 2019, Ms. Chodos observed an improvement in the state of the father’s apartment. However, areas of the kitchen, living room and the child’s room still required decluttering. During this visit, the father repeated his view that the only people the child needed protection from were the Society, the Society’s lawyer and the mother.

[208] On October 16, 2019, the child told Ms. Chodos that his father did not respect his mother. At this point, the Society was aware that there were some problems with the unsupervised access, though nothing “horrible”.

[209] While the mother never obstructed the access that the Society allowed, she did not agree with the decision to allow unsupervised access when the father refused to have a mental health assessment. In her view, the Society was rewarding the father when he refused to comply with the court-ordered assessment. Nevertheless, she cooperated.

[210] The Society considered an expansion of the father’s access. Ms. Chodos spoke to the child’s counsellor on October 28, 2019 to see how the child was doing. The counsellor suggested that it might help the child and alleviate some of his stress if visits were longer and his activities with the father were not rushed.

[211] In late October 2019, the father requested access on Halloween. Ms. Chodos told the father that the mother had already made plans for the child. The father’s reaction was typical. He told Ms. Chodos that going forward, he would no longer drop the child at the Society’s office after visits and the mother would need to pick him up instead. Ms. Chodos and Ms. Sadinsky decided that his access visit on October 30, 2019 would go forward as scheduled. They also decided to split Halloween between the parents. The father was told if he failed to return the child to the Society’s office at 5:00 p.m. as scheduled, his access would be suspended until he agreed to follow the Society’s conditions. Ms. Chodos reminded the father that any expansion of access was contingent on his ability to shield the child from adult conflict.

[212] On October 30, 2019, the Society confirmed with the Family Responsibility Office that the father’s licence had been suspended and as a result, the father could not do access exchanges himself. His licence was suspended because he had not paid any court-ordered child support and owed arrears of about $40,000.

[213] When Ms. Chodos spoke to the father about the licence suspension, he proposed that his father and brother would help him with access transportation. During this call, the father told Ms. Chodos that the suspension was illegal and was an additional debt that the mother owed him if she wished to receive a Get.

[214] On November 13, 2019, Justice Spence issued an order finding the child in need of protection. He continued the March 29, 2019 order of Justice Sager that placed the child in the care of the mother and required that access between father and child be at the discretion of the Society “as to location, duration, frequency, level of supervision and whether access is to take place at all”.

[215] Justice Spence also issued the s. 98 order requiring the father to have a mental health assessment conducted by one of the five doctors listed in the order.

[216] The s. 98 order sets out the objectives of the mental health assessment as follows:

(1) To identify/diagnose mental illness/disorder, personality disorder, issues and/or challenges, if any, that [the father] suffers from;

(2) To determine whether [the father] poses current and/or future risk of emotional harm to his [child] with continued access as a result of any mental health issues identified in (1), and if so, what those risks are in relation to access that may vary from short-term access to overnight access, and how these risks are currently manifesting;

(3) To determine if there are any programs that may be available to the child to support his relationship with [the father] and address any risks identified in (2);

(4) To recommend any treatment plan, if available, for [the father] to manage his mental health challenges, if identified in (1), including but not limited to counselling or pharmacotherapy, as would be assistive in addressing/mitigating the risks identified in (2);

(5) If [the father] is identified as having a mental health issue in (1), to ascertain whether that mental health issue would limit or prevent his ability or insight to follow through with the recommendations for treatment as set out in (4), and if so, what assistance may be required and/or available to him to connect him to an appropriate treatment plan.

[217] The s. 98 order also set out the questions to be answered by the assessor as follows:

(1) If risks are identified to the child, can those risks be mitigated through supports to [the father] and/or [the child], and if so, what would this require?

(2) Are there programs available for the child to support his relationship with his father in a healthy and safe manner and manage any risks that may be arising out of any identified mental health issues[?]

(3) Can you recommend a treatment plan for [the father] for the management of any identified mental health issues, for the benefit of his relationship with his son?

[218] The s. 98 order requires the professional to provide a resume with the assessment report that outlines the assessor’s academic and professional qualifications. Each party was permitted to provide the assessor with additional documentary evidence in addition to what the Society provided. The Society was ordered to pay for the cost of the assessment. The father has repeatedly refused to comply with the s. 98 order.

[219] The father’s access was expanded effective November 16, 2019. He had visits once a week alternating between Wednesdays, from 3:45 p.m. to 5:30 p.m. after school, and Saturdays, from 10:30 a.m. to 6:00 p.m. after the child’s play therapy sessions. While the child continued to report that his father engaged in conflict, the child was happy with this change in access.

[220] Almost weekly, the mother reported that the father was late returning the child to her home. The father blamed it on traffic or the child, who he claimed was slow getting ready to return to his mother's home.

[221] In November 2019, the mother commenced her application in this Court to vary the Paisley order and relocate to Israel. The mother had to return to this Court to vary the Paisley order because it could not be varied in the OCJ.

[222] As Ms. Chodos explained, the mother’s new application started a period of escalated anger for the father. The child told Ms. Chodos that his father should get a punching bag and dress it up as his mom so when he got mad, he could take it out on the bag.

[223] On December 9, 2019, Ms. Chodos had a private visit with the child. The child reported what his father was telling him: that “these people and your mom are trying to take you from me”. The child was aware of his parents’ ongoing conflict and that his father was not always a “good person”. He said that his father used bad words like “stupid or fuck”. The child told Ms. Chodos that sometimes he felt like he wanted to punch his dad in the face as “payback for the divorce”. However, the child continued to request more time with his father.

[224] On December 17, 2019, the Society told the parents that if there was any further non-compliance with the access plan that was intentional, access would be restricted to supervised and only on Wednesdays, until the father could meet with Ms. Sadinsky or Ms. Chodos and affirm his commitment to abide by the access schedule.

[225] After these instructions were communicated, problems with access continued almost weekly. For example, on December 28, 2019, the child was dropped off 52 minutes after the scheduled time, and on January 1, 2020, one hour after the scheduled drop-off time. During a private visit on January 9, 2020, the child told Ms. Chodos that the lateness was his father's fault. The child also told her that if she spoke to his father, he would get really angry and there would be consequences for Ms. Chodos.

[226] To avoid conflicting reports of lateness, Ms. Chodos and Ms. Sadinsky told the parents to take pictures of the child at pick-ups and drop-offs so they would have physical evidence when disputes arose about non-compliance with the schedule. The pictures would have dates and times. While the access issues continued, after this plan went into effect, the allegations of egregious delays in transfer times seemed to decrease in both frequency and duration.

[227] The child wanted to see his father regardless of the father’s negative behaviour. But as Ms. Chodos explained, it is not just about what the child says, the Society must also look at what the conflict is doing to the child. In this case by January 2020, the child started to shut down with Ms. Chodos and did not want to talk about his access visits with her. For Ms. Chodos this was a real concern.

[228] During monthly home visits on January 14, 2020, February 6, 2020 and March 5, 2020, Ms. Chodos continued to note clutter in the father’s home, including in the living space and the child’s room.

[229] The father continued to fixate on his issues with the Court, Society and mother as the cause of all his problems.

[230] During a home visit on February 6, 2020, Ms. Chodos cautioned the father not to involve the child in the adult conflict and not to use him as a messenger to communicate his frustrations towards the mother. The father’s response to Ms. Chodos was that “[the mother] mind fucks [the child] in between visits” so he would be speaking up as well.

[231] During a call on February 27, 2020, the father told Ms. Chodos that he would begin calling the mother every day to demand telephone access with his son, stating “[y]ou people, your organization are all fucking pieces of shit … Utter shitbag fraud organization and you are going to cost [the mother] even more”. He referred to the mother as “neurologically damaged”.

[232] The father’s conduct continued to escalate. He followed through on his threat to contact the mother. He called her incessantly from a blocked number, despite the Society’s cautions not to further engage himself in conflict. On March 3, 2020, the child told Ms. Chodos in a private visit that his father came to his school and surprised him. His father told him that he was going to call him at 6:00 p.m. that day and if he did not get to speak to him, it was his mother's fault and the child should call him.

[233] While the mother fully cooperated with the Society’s decisions, Ms. Chodos explained that “the conflict was escalating dramatically”. The Society was receiving emails from the mother pleading for them to deal with the father’s repeated and deliberate breaches of the Society’s decisions around his access. The father was “openly” saying “I no longer recognize the authority of the agency to make these decisions and I’m going to do what I want to do”. Ms. Chodos stated that the escalation of the father’s conduct was “concerning” and “nothing was working”.

[234] While Ms. Chodos saw the father as a “loving father” who tried to create positive memories for the child when they were together, the level of his anger interfered. The Society tried to persuade the father to seek help so he could understand how his words and behaviour impacted the child. As Ms. Chodos stated, the Society efforts were a “complete fail”.

[235] It was clear that once again the father was involving the child in adult conflict. Due to renewed concerns for the child’s exposure to adult conflict, Ms. Chodos and Ms. Sadinsky told the father that effective March 9, 2020, his access on Wednesdays would have to be supervised and his Saturday access was cancelled.

[236] When this decision was communicated to the father by email, he responded stating that the Society was acting in a fraudulent manner and that access would continue.

[237] To ascertain if access should remain supervised, Ms. Chodos and Ms. Sadinsky decided to make some inquires. First, Ms. Chodos would connect with the child, his school and play therapist to determine if there were any concerns for the child’s emotional well-being. Second, Ms. Chodos and Ms. Sadinsky would meet with the father to ascertain if he could commit to abiding by the access schedule without further escalation.

[238] The child’s school and play therapist both reported to Ms. Chodos their concern for the child’s well-being if access reverted to being supervised, as this could impact upon the child’s emotional dysregulation.

[239] The parties had a scheduled appearance before the OCJ on March 10, 2020. On that day, the father brought a motion seeking various relief: equal parenting time, reinstatement of his telephone access, end of the Society’s communications with the child’s school, removal of the order that he undergo a mental health assessment and appointment of the Office of the Children’s Lawyer for the child. Justice Sager would not hear the motion without notice to the mother. The motion was adjourned and ultimately dismissed.

[240] On March 11, 2020, the child spoke to Ms. Chodos who was about to retire. The new case worker, Ms. Ashley Moses, was present. The child understood that his father could not control his anger or his efforts to see the child at school. The child expressed his wish that the Society and divorce did not exist. He told Ms. Chodos that during the previous weekend, his father told him that his mother was stealing him away from his dad. The child said that he was not upset by his father's comment. He confirmed that his father said bad things about his mom.

[241] The same day, Ms. Chodos and Ms. Moses met with the father for a transfer visit. The father told them that he did not recognize the Society’s authority concerning his telephone calls with the child. Ms. Chodos told the father that he cannot decide when to have access without the Society’s approval. Despite this warning, the father said he would continue calling the mother until the Society reinstated his telephone access. He denied exposing the child to any conflict and repeated his refusal to have a mental health assessment.

[242] Ms. Chodos explained that she “had tried everything [she] could to bring about change”. As she left her role at the Society, she was concerned with how “entrenched” the father’s anger was and his “determination not to be dictated to by anyone else”. This was “definitely having and was going to have an impact on [the child], on his development, on his social development on his emotional development”.

March 2020 to December 2020 – Ms. Moses

[243] Ashley Moses was the Society worker for the family from March to December 2020. After Ms. Moses took over the file, the Society decided to resume unsupervised visits on alternating Wednesdays and Saturdays. The Society weighed the concerns of the father’s conduct against the risks to the child’s well-being should his access with his father be restricted. They decided it would be in the child’s best interests to try unsupervised visits again. This decision was communicated to the parents on March 20, 2020, with the repeated caution that any exercise of access outside of these parameters would again result in the Society revisiting the reduction of access.

[244] When this decision was made, the COVID-19 pandemic was developing. The mother expressed concern for in-person access resuming and refused to release the child to the father’s care on Saturday, March 21, 2020. To address the growing concern with COVID-19, the father proposed video chat access any time from 10:00 a.m. until 6:00 p.m. and allowing the child to decide the duration of calls. The Society approved three one-hour video calls every Monday, Wednesday and Friday. On April 23, 2020, the Society approved an additional 30 minutes of access on weekdays to support the child with his homework. This change was effective April 27, 2020.

[245] The mother explained that problems once again started. The father demanded that the child spend the entire eight hours (10:00 a.m. to 6:00 p.m.) on video call with him. This was not what the Society allowed. On the video chats, the father told the child that “if you hang up, you're dead”. The father used the chat time to berate the mother and the Society in the child’s presence. This was extremely distressing for the child who was put under tremendous pressure by his father not to end the chat. As the mother stated, this was an impossible situation for a seven-year-old child. When the mother tried to end the video call (because the child was clearly in distress, or it had lasted for several hours), the father became enraged and would start calling the mother’s phone non-stop.

[246] While there were calls that the child enjoyed, the father was undermining the Society's access plan and refusing to follow the conditions for access. This eventually led to a noticeable emotional impact on the child.

[247] On April 3, 2020, during a private interview between the child and Ms. Moses, the child disclosed that it was “offending” him when his father told him to choose whether to end the call at the scheduled time.

[248] On April 13, 2020, the mother reported that the child terminated his virtual call with his father voluntarily. The father then called the mother to ascertain why the child had ended the call. The father had been previously cautioned against contacting the mother when the child chose to exercise his discretion to end calls.

[249] On April 15, 2020, the father contacted the Society’s Emergency After Hours Service, demanding that a worker conduct a well-being check on the child because the mother had ended the call at 5:00 p.m. The Society later learned that the father was 20 minutes late for his scheduled 4:00 p.m. virtual visit. He had only told the child and expected the one-hour visit to be adjusted to end at 5:20 p.m.

[250] The father demanded that the Emergency worker, Ms. Michelle Cukier, check in on the child to ensure his safety because, in his words, the mother was “erratic” and ended the video call.

[251] Ms. Cukier spoke to the Emergency Supervisor, Ms. Heather Shimkovitz. Since there was no imminent safety concern identified, Ms. Cukier was directed to check in with the mother and tell the father to follow-up during business hours with any access concerns. Ms. Cukier spoke to the mother. There was no safety concern. She then called the father and relayed this to him.

[252] The father demanded that Ms. Cukier speak directly to the child and threatened to contact the police to conduct a well-being check if she did not comply. Since there was no cause for concern about the child’s well-being, the father was told that they would not further disrupt the child by interviewing him that night.

[253] As a result, the father followed through on his threat and contacted the police, who attended the mother’s home. Fortunately, when the police arrived, the child was in the washroom. The mother was able to explain the situation to the police so the child would not become concerned or question their attendance at his home.

[254] Ms. Moses cautioned the father against utilizing the police to engage in further conflict with the mother when the child exercised his discretion over access. She advised the father to be respectful of the child’s wishes to end video calls, even when the child does not formally express that he will be ending the call.

[255] On April 18, 2020, Ms. Moses completed a private interview with the child who advised her of the following: his father told him his mother has “a big butt”; his parents disagree when video calls are scheduled to end; when his mother attempts to end calls as scheduled, his father will look to him and say “it’s up to you” whether the conversation ends; he will end the call when his parents disagree in his presence “to teach them a lesson”; and he knows that if he exercises his discretion and ends his video call with his father, then his father will incessantly call his mother to get the child to call him back.

[256] Based on the child’s comments, Ms. Moses was concerned that the child was being pulled into his parents’ conflict. She was further concerned that the child would not be willing to exercise his discretion to end a video visit even when he wished to do so, for fear of the repercussions and escalation in his father’s behaviour.

[257] On May 1, 2020, the child ended a call with his father. The father then called the mother approximately 98 times. The mother testified that the father has no ability to control his anger or impulse. He calls her repeatedly and incessantly. As the mother explained, he does this to exert control over her. If she attempts to stop a conversation or terminate a phone or video call, his behavior escalates.

[258] The father also called the police on the mother and child that day. The police attended for a well-being check. The child later disclosed to Ms. Moses that he felt unsafe when the police came to his door as he thought there may have been a thief in his building. He said he did not understand why his father called the police.

[259] By May 1, 2020, the father’s abuse had become so bad that the mother reported it to the police. The father was arrested and charged with criminal harassment.

[260] On May 2, 2020, there was a scheduled Saturday virtual access visit. The mother told the father that the child did not wish to contact him on time because he was tired from the previous evening’s events. While the child did not wish to have access, the child eventually initiated a video call and later terminated the call because he did not want to proceed.

[261] On May 5, 2020, the child told Ms. Moses that he does not want to directly tell his father when he is terminating video calls because “it’s weird”. When he ends calls the police get called which he does not like. The child acknowledged that he was in a difficult position and agreed it would be better for another adult to be present to initiate and terminate calls.

[262] Because of the level of conflict that the child was exposed to between his parents and the impact this appeared to be having on his emotional well-being, Ms. Moses consulted with the Child Protection Manager, Cilla Archa, who was covering for Ms. Sadinsky. They decided it would be in the child’s best interests for the Society to supervise access moving forward, until the father could demonstrate his ability to respect the child’s wishes to end calls.

[263] On May 6, 2020, Ms. Moses called the father to tell him that the Society had decided to reinstate supervision of all access. During the call, Ms. Moses asked the father what led him to request the police to complete a second well-being check despite being previously cautioned against this type of extreme response. The father blamed the mother for withholding the child from seeing him. When Ms. Moses told the father about the child’s concerns and fear when the police attended the home, the father did not acknowledge there was a demonstrated emotional impact on the child. He believed the child was excited to see police at his home.

[264] The father told Ms. Moses that if the Society changed his access, he would call the police regularly and ask them to go to the mother’s home and the Society’s office. He demanded to see the child in person moving forward. The father’s tone of voice began to escalate, and he started using profanities as he spoke with Ms. Moses.

[265] During this call with Ms. Moses, the father made threats against the Society workers. Ms. Moses recorded what the father said in her contemporaneous Contact Log for May 6 as follows:

I will fuck you people up. Fucking COVID is over. I demand face to face contact. I’ve had enough with you fucks. You are scum. This fucking cunt has been working to ruin my relationship with my son. Your workers lied and perjured like the lying whores they are. I will name everybody, to the media every piece of shit. You think Jody won’t hide in Barrie, and I will make you. There will be no supervision. I will start hunting all of you down and come to your houses. I will be coming.

[266] Based on this significant escalation and threatening behaviour, Ms. Moses told the father that she could not continue the conversation, and if he did not agree to supervised access, visits would not occur.

[267] The father continued to tell Ms. Moses that he would go to the Society’s office to “fuck shit up” and go to the homes of Society workers. Ms. Moses ended the call due to concern for the father’s conduct and threats. She felt it would not be helpful to continue to engage him in his heightened state.

[268] The father then proceeded to call the mother repeatedly until her voice mailbox was full.

[269] Due to the threatening nature of the call, Ms. Moses consulted with Ms. Archa and the Child Welfare Director, Ms. Breslin. They decided that Ms. Moses should file a police report because the father had directly threatened the safety of Ms. Moses and her colleagues. That same day, Ms. Moses contacted Toronto Police Service, but told a detective that she did not intend to file charges against the father.

[270] The mother asked Ms. Moses to help explain to the child that his visits with his father were suspended until his father was willing to de-escalate his behaviour and engage in supervised visits. Ms. Moses spoke with the child on May 6, 2020, and the child said that he understood. The child told Ms. Moses that his father would not allow supervision and the child would not like another person listening to his phone conversations. Ms. Moses acknowledged the child’s feelings but noted that unsupervised calls were leading to conflict and putting the child in an uncomfortable position.

[271] On May 7, 2020, the Society was notified that the father had been arrested and charged with criminal harassment as a result of the mother’s complaint. The father was released with bail conditions not to contact the mother except in accordance with a family court order, not be within 250 metres of her residence or any place where she is known to be except for court appearances and not possess any firearms.

[272] During the trial, the father testified that the charges had been withdrawn. He provided the Court with a copy of the Information. This document includes a handwritten notation that charges are “withdrawn”. The mother had not been notified and questioned if this was true. The father insists that the charges were based on lies and therefore they were withdrawn. I reject the father’s evidence. If the charges were withdrawn, this does not mean that the threatening behaviour that led to the charges is a “lie”. I accept that the conduct that resulted in charges happened as reported. It is consistent with the father’s long-standing uncontrollable behaviour.

[273] Despite the severity of these events, the father tried to contact another police division to have them complete a wellness check on the mother and child. The police told the father that he cannot use police to contact the mother and advised him to work with the Society.

[274] After the May 6, 2020 conversation with the father, Ms. Moses did not receive any phone calls or emails from him. After giving him time to calm down, Ms. Moses called him on May 13, 2020 to revisit the possibility of resuming access with supervision.

[275] During the May 13 call, the father denied making threats against workers and the Society. The father explained that on May 6, he was tired and getting ready to leave. He said he should not have had the conversation because he was out of it and had just woken up 20 minutes before. He said it was very bad timing. The father believed that if Ms. Moses had called him at another time to deliver the information, it would “all be okay” and he would have responded differently. As stated at the outset, I do not accept the father’s evidence. His threats are real and are part of his uncontrollable behaviour.

[276] Ms. Moses described this call as strange because during this same phone conversation, the father stated in an emotionally charged tone that he “didn’t give a shit about supervised, because [he] didn’t do anything or say anything wrong”. The father called the mother a “degenerate” who is being informed by a “pig”, a person who works for Act to End Violence Against Women. He said that the mother lied to the police. He stated his belief that there was collusion between Ms. Moses and the Act to End Violence Against Women organization.

[277] The father displayed minimal insight into his extreme actions and threats that had led to criminal charges being laid against him. He minimized the escalation of his behaviour. Referring to his bail conditions, the father told Ms. Moses that he does not contact the mother anyways because “who wants to talk to a neurologically damaged, brain retarded person”.

[278] Ms. Moses redirected the father to the purpose of her call: was he willing to resume access? Despite her concerns regarding the father’s lack of accountability for his behaviour, he acknowledged the child’s feelings and agreed to speak to Ms. Moses after she spoke to the child to make sure the child was okay resuming supervised visits.

[279] On May 14, 2020, Ms. Moses interviewed the child on video chat to understand his views and preferences with respect to access with his father. Though the child at first said he did not wish to resume access, he then clarified he would like to speak with his father once a week and have the option to speak with him again a few days later.

[280] Ms. Moses consulted with Ms. Sadinsky. A decision was made to resume an hour of supervised access twice a week on video chat. When this decision was communicated to the father on May 22, 2020, he expressed his disappointment and his anger escalated. He insisted on access three times per week, accused Ms. Moses of stealing his time with the child and stated that he was owed access time for the period when access was suspended. Once again, the father focused on the Get. He said the mother owes him money and as a result, he will continue to withhold a Get from her. Ms. Moses reminded the father that his actions led to this restriction of his access. The father refused to acknowledge his actions. He agreed to proceed with the supervised access.

[281] Ms. Moses supervised the first virtual access visit on May 25, 2020. During the visit, no concerns were noted except that the child asked the father to “call me back when Ashley is gone”. The father responded that no one is supposed to know that the child calls him, suggesting to Ms. Moses that they had already spoken to one another outside the allowed schedule.

[282] A second virtual access visit was held on May 28, 2020. The child was in a silly mood and purposefully turned his camera on and off, frustrating the father who remained patient. Aside from technical issues, the visits proceeded without problems until June 11, 2020.

[283] On June 11, 2020, Rachel Pomer, a Society Case Aide who also assisted with supervising the access, contacted Ms. Moses because the father had not attended and was 15 minutes late. Ms. Pomer was instructed to cancel the visit due to the father’s absence and no prior notification from him that he would be late. The father then left two voicemails for Ms. Moses and emailed her and Ms. Sadinsky. He told them that he expected to be called by a Society worker even if he failed to show up on time. He demanded that his virtual call occur that day and accused Ms. Moses of harming the child by “stealing meetings from him”. He threatened to call the police to complete a wellness check on the child if he did not see the child that day because he feared for his safety “when in his neurologically damaged mother’s care”.

[284] Ms. Moses called the father. His tone of voice was emotionally escalated, and he demanded to speak with the child. He insisted that it was the Society’s responsibility to contact him if he was late. Ms. Moses explained that it is not the Society’s role to organize parents and ensure they are on time for scheduled visits. The father again threatened to contact the police. Ms. Moses told the father that this was not an appropriate response to his dissatisfaction with the access call being cancelled due to his own tardiness. The father continued to yell and use profanities. Ms. Moses ended the call because the conversation was not productive.

[285] Out of concern that the father would unnecessarily call the police while the child was home, Ms. Moses contacted the Toronto Police Service. She told the police that the child was safe and they should not respond to any request from the father to complete a wellness check.

[286] Ms. Sadinsky called the father about 15 minutes later. He told her that he had a work emergency that prevented him from attending his scheduled visit on time. Ms. Sadinsky said a make-up visit would occur, acknowledged a breakdown in communication and advised that the father needed to take accountability for his role in escalating this issue to the level it had. Visits resumed with no significant concerns with the father’s conduct.

[287] On June 23, 2020, the Society decided to resume supervised in-person, socially distanced visits at the Society’s office on Mondays for two hours from 1:00 p.m. to 3:00 p.m., and supervised video calls on Thursdays for one hour from 4:00 p.m. to 5:00 p.m.

[288] During Ms. Moses’ involvement with the family, she gathered input from the child’s therapist and school. The child had bi-weekly contact with his therapist, Ms. Fal Desai, at Regesh Family and Child Services. Despite extreme escalation in the father’s behaviour that led to access restrictions, the child continued to express his preference to maintain contact with his father. At this point the therapist told the Society it would be more damaging for access to be permanently suspended. While this evidence from the therapist is hearsay, it is information that the Society received and considered when making decisions in the child’s best interests.

[289] During Ms. Moses’ interactions with the child, the child consistently expressed his wish to remain in contact with his father, though the frequency and manner of contact he preferred varied based on his father’s conduct.

[290] The child attended school virtually. There were no concerns identified with the child’s coursework or his demeanour during virtual classes.

[291] During the summer of 2020, the mother enrolled the child in some summer programs at the school and the Society provided funding for the child’s attendance.

[292] From September through December 2020, Ms. Moses met with the child in his home each month. The child stated that he enjoyed his weekend visits with his dad. The child agreed that while in the past he had not always liked having a supervisor present for access, it was now helpful and necessary to have supervision when his father would make inappropriate comments or become upset and the child did not know how to respond.

[293] The child continued to attend play therapy at Regesh Family and Child Services. However, the sessions ended in September when the therapist left the organization. At this point, the therapist told Ms. Moses that while a lot of work had been done with the child, further progress to help the child manage the conflict was not possible until the dynamics between the parents changed or the father sought his own therapy.

[294] The father started to attend some programs to address his behaviour. He became involved in the Mindful Achievements Program but would not give his consent to allow the Society to communicate with the professionals running the program. In August 2020, the father agreed to participate in appropriate family workshops that the Society offered. The Society agreed to share the cost of the workshops that would take place in the fall. However, the father then chose to enrol in an external parenting workshop called “Planning for the Children after Parent Separation” through Dalhousie Place. Whatever programs the father actually attended, his harmful behaviour continued.

[295] During the summer of 2020, the Society started to require the father to use a private supervision service, at his expense. The Society had provided supervision services at no cost to the family for some time. It was reasonable for the Society to expect the father to pay for supervision given that his behaviour necessitated the supervision.

[296] The Society initially supervised Wednesday visits and Brayden Supervision Services (“Brayden”) supervised Saturday visits.

[297] When the Society supervised the visits in 2020, generally the child was happy to see his father and they enjoyed spending time playing games and watching videos together. The father had difficulty ending visits on time, even when the Society worker provided him notice that there were only a few minutes left and that the visit should be wrapped up.

[298] Towards the end of August 2020, the Society told the father he must find an alternative supervisor for Wednesday visits. It was no longer necessary for the Society to be directly involved in supervision because the Society was receiving access notes from Brayden.

[299] The Society followed up with the father serval times to see if he had retained a supervision service. The father did not propose any new options other than Calvary Child and Family Services, which was not a viable choice because it was not free as the father believed.

[300] The last visit that the Society supervised was on October 28, 2020. When Ms. Moses told the father that there was one minute left in the visit, he began to escalate his behaviour in the child’s presence. He stated that two minutes were left and the Society was taking away his time and kidnapping his child. Ms. Moses redirected him and walked the child out of the room to end the visit. The father continued to raise his voice and Ms. Moses had to call security to intervene and escort the father out of the premises. At this point, the father called Ms. Moses “useless” and a “worthless piece of shit”.

[301] The Society terminated visits on Wednesdays as of the first week of November 2020, after giving the father sufficient notice to make alternative arrangements. Notice was provided to the father through his counsel. Despite this notice, the father still attended at the Society office the following Wednesday, November 11, 2020, and waited for access.

[302] Ms. Moses called the father. She told him that his lawyer was notified that the Society was no longer supervising Wednesday visits. He responded in anger. He said it was “bullshit” and if the Society was no longer supervising, he could now go to the child’s school. The father called Ms. Moses a “liar”, “fraud” and “lying piece of shit” before she unilaterally terminated the call.

[303] In December 2020, Ms. Moses emailed the father twice to set up a transfer visit with the new worker, Ms. Alana Persaud. The father did not respond.

December 2020 to Present – Ms. Persaud

[304] Alana Persaud is the Society worker who took over the family’s file when Ms. Moses left the Society. She attended a virtual transfer visit with the mother and child in December 2020. A transfer visit with the father could not be scheduled because he did not respond to Ms. Moses’ emails.

[305] Ms. Persaud tried to schedule a meeting with the father on December 17, 2020, January 29, 2021 and February 11, 2021, but he did not respond. Ms. Sadinsky also reached out to the father on January 5, 2021 and received no response.

[306] When Ms. Persaud took over the file, the father’s Saturday access was being supervised by Brayden. In total, the father had six in-person supervised visits with the child through Brayden. On December 19, 2020, Brayden terminated its services because the father violated the court orders and Brayden's policies. In particular, he denigrated the mother during a visit, exposed the child to inappropriate conversation and required constant redirection. The father disregarded the supervisor's direction multiple times. As a result, Brayden concluded that they could not control the access environment safely.

[307] On January 6, 2021, Ms. Persaud learned that Brayden had unilaterally terminated its services.

[308] The father blames Brayden for cancelling the service. The father says that he told his lawyer (who he later fired) that the Brayden supervisors were lying about him. After he fired his lawyer, he called the manager at Brayden and told her that her workers’ notes about him were a lie. He denies that his behaviour caused the cancellation. To support his evidence, he testified that Brayden refunded the money he paid them for the supervision. In fact, this is not what happened. The father used his Visa card to pay Brayden. He called Visa and challenged the Brayden charges, alleging that they had breached their contract with him. According to the father, Visa investigated his complaint and reversed the charges.

[309] There is no evidence from Visa about their investigation. The father’s Visa statement shows that the charges were reversed. Brayden may well have decided not to engage in disputing the father’s claim. Given the father’s behaviour, they likely decided it was not worth engaging in a dispute with the father about $1,381.34. There is extensive evidence that the father engages in high conflict behaviour and frequently acts against the best interests of the child. I accept as fact that the father’s behaviour led to Brayden terminating the supervision service. Such behaviour is consistent with the rest of the evidence.

[310] On February 1, 2021, the parties attended a case conference in the ongoing child protection proceeding. Justice Sager urged the father to connect with Ms. Persaud to move the matter forward.

[311] On March 16, 2021, Ms. Persaud and Ms. Sadinsky were finally able to speak to the father. At this point, the father was in the midst of a mental health assessment with Dr. Jonathan Rootenberg. The Society was not involved in this assessment process. Ms. Persaud described what transpired during the call:

[The father] said he would not sign a consent for the [Society] to speak to Dr. Rootenberg as he felt the activities and actions of the [Society] thus far made him question what we would have to say and stated that the Society had directly and blatantly caused harm. Though Ms. Sadinsky noted that there remains an open and ongoing child protection proceeding, [the father] indicated that the Society were liars and that this was not a legitimate case. As such, I advised that as had been stated in the case conference before Justice Sager, the [Society] would not pay for an assessment where its input was not being provided and incorporated.

[The father] then began to state that he wanted to speak about parental alienation and spoke negatively of Ms. Ashley Moses, calling her a “cancer”, specifically with the job of stealing his son. He further stated that a previous worker, Ms. Gene Chodos, had qui[t] because of what her management was telling her to do.

[The father] stated that the Society owed him hundreds of hours of access, further stating that the Society had cut off his visits to “fuck [him]”.

He asked that the Society pay for services through Calvary, another third-party supervisor; however, I have spoken to this service and they have indicated that they do not take on any private matters, only providing supervision where referred through the Society directly. I have since provided alternative supervision services to be explored; however, the Society would not pay for this.

[The father] continued to make negative remarks and as such, Ms. Sadinsky attempted to wrap up the call and asked that he engage with me instead moving forward. [The father] noted that he would not work with me until his access was reinstated fully. As he continued to make negative remarks, the call was ended at that point.

[312] Ms. Persaud completed home visits with the child and his mother on January 6, 2021, February 2, 2021 and March 3, 2021. During these visits, Ms. Persaud observed that the child continued to do well in his mother’s care. He was a happy child and enjoyed tending to plants and making crafts.

[313] The child was aware that he had not seen his father in a long time. Visits ended when Brayden cancelled its supervision because of the father’s conduct. The child told Ms. Persaud that he was upset when his father told him he was a “brainwashed child”. The child acknowledged that having a supervisor during the visits helped. He missed his father.

[314] The mother reported that the father attempted to gain an interview at the child’s school by accessing the child’s email account and schoolwork. She also reported that the father contacted the child in a private message during a Tu B’shvat Zoom event. While the Society was made privy to these concerns through forwarded emails, the mother was able to address these issues on her own, with the assistance of her legal counsel.

[315] On March 3, 2021, the mother reported that the child was having crying attacks and expressing concerns about his mother dying. Due to the significant nature of this report, the Society arranged for more counselling services for the child.

[316] Aside from the unauthorized contact on Zoom, the father has not seen or spoken to the child since Brayden terminated its service.

[317] As they have done in previous summers, the mother and child made plans to visit her family in Israel for a month. The mother’s plan to travel to Israel with the child was known to the father because the Court asked the mother’s counsel on June 24, 2021 when she was leaving. The next day, the father filed an emergency motion. He did not tell the Court that he planned to bring this motion.

[318] To support his motion, the father filed an affidavit and lied to try and stop the mother’s trip. He stated in his affidavit that the mother was “kidnapping” the child, she did not have his “permission” to travel with the child and it was dangerous to go to Israel.

[319] I released an endorsement immediately and stated in part:

The father is fully aware that the final order of Justice Paisley dated October 22, 2018 gives the mother sole custody of the child and the right to travel outside Canada without the father’s permission. A copy of Justice Paisley’s Order is attached to this endorsement.

Currently because of child protection proceedings the father has no access to the child unless it is supervised.

The mother and child travel to Israel every summer to spend a month with her family. This is what she is doing this summer and she has the right to do so. The father offered no evidence that there is a danger to the child in the area where her family lives.

The father is in breach of numerous court orders. He has no custody or parenting rights. He has no right to interfere with the mother’s planned trip to Israel. His permission to travel is NOT required in the order of Justice Paisley. The father is fully aware of these facts.

[320] The father’s motion is yet another example of what the father will do to interfere with the mother and child’s well-being.

The Status of the Father’s Mental Health Assessment

[321] As explained above, Justice Sager ordered the father to undergo a mental health assessment on March 29, 2019 with a registered mental health professional approved by the Society. The Society gave the father the names of three approved mental health professionals, but he refused to cooperate.

[322] On November 13, 2019, Justice Spence issued the s. 98 order under the Child, Youth and Family Services Act for a mental health assessment.

[323] The father refused to follow the orders of Justices Sager and Spence. He testified that he will never do a mental health assessment that has anything to do with the Society. He testified that Justice Sager said his assessment was not necessary. I have rejected this evidence. He said that Justice Spence did not know what he was doing when he issued the s. 98 order. The facts are clear that this detailed order was made as part of the child protection order and was required because of the father’s behaviour and the emotional harm that this has caused the child.

[324] During the summer of 2020, the father testified that he started a mental health assessment with Dr. Rootenberg. The father refused to sign a consent to allow the Society to have any contact with Dr. Rootenberg because he was certain that the Society would bias the doctor against him. According to the father, this doctor stopped the mental health assessment before it was completed because the father’s lawyer at that time told him he was not going to be paid.

[325] Ms. Persaud followed up to see what steps the father had taken to comply with the court-ordered mental health assessment. While the Society had agreed to pay for the mental health assessment, the Society had no information about the nature of the sessions with Dr. Rootenberg. Furthermore, they were not going to pay for a mental health assessment that the father controlled. The assessment had to be done properly following the terms of the s. 98 order.

[326] On February 4, 2021, the father sent an email to the Society’s counsel, requesting an interim payment for Dr. Rootenberg. He attached a note detailing the current charges and requested that the Society pay him and then he would pay Dr. Rootenberg. The Society’s counsel told the father that the Society could not provide payment through the father and the Society would need to communicate with Dr. Rootenberg before proceeding. This concern was also voiced before the OCJ on February 1, 2021, at which time Justice Sager urged the father to cooperate and sign a consent.

[327] The s. 98 order set out the purpose of the mental health assessment, the questions that the assessor was directed to answer and the right of the Society and the parties to contact the assessor. It was understandable that the Society was not willing to pay for Dr. Rootenberg’s assessment when it was not being carried out pursuant to the s. 98 order.

[328] After the mother issued her current application in this Court, Justice Kristjanson heard the mother’s urgent motion on August 12, 2020. An interim order was made to vary the Paisley order pending trial. The father was allowed access if supervised. On consent, the court ordered the father to have a mental health assessment completed by a licensed mental health professional and to provide the mental health assessment to the mother’s counsel by December 15, 2020. The father was ordered to provide a copy of Justice Kristjanson’s endorsement to the mental health professional conducting the assessment. The father did not comply with Justice Kristjanson’s order.

[329] During the trial, the father said that he had completed a mental health assessment. He produced a one-page letter, dated June 2, 2021, from Kaylee Downey, a Mental Health and Substance Abuse Worker at Unison Health and Community Services. The letter stated that the father had a therapeutic relationship with Ms. Downey and had attended six sessions with her to receive “mental health support as he navigates the process of seeking custody of his son”.

[330] The father did not produce Ms. Downey’s resume. I issued an endorsement explaining that a voir dire would be conducted to decide if Ms. Downey had the expertise to testify about what the father called a “mental health assessment”. I explained that her file and resume had to be produced. A copy of the endorsement was sent to Ms. Downey. It then became apparent to the father that Ms. Downey was not prepared to testify as an expert and that she was not a licenced mental health professional.

[331] I accept that Ms. Downey provided the father with support over the course of six sessions. Her letter was accepted as evidence for this purpose and not to prove that the father complied with the court orders that he have a mental health assessment.

The Status of the Society’s Involvement

[332] The Society has been involved with the family since 2016. The Society has exhausted all avenues to try to resolve the conflict that the father creates and the emotional harm that the child is exposed to because of his conduct.

[333] The Society initially offered voluntary services to the family, but the father refused to cooperate. The father was given every opportunity to prove that he could safely engage with the child. He was even given unsupervised access.

[334] Competent, trained child protection workers at the Society have not been able control the father and effectively shield the child from emotional harm, despite their best efforts.

[335] The father has clearly demonstrated on numerous occasions that he cannot control himself. He has repeatedly exposed the child to emotional harm. His anger and inappropriate conduct continue. In contrast, the mother has acted cooperatively with the Society and always in the best interests of the child.

[336] Ms. Sadinsky explained the Society’s current position. The concerns that she set out in her July 17, 2020 affidavit continue:

[T]he Society’s concern for [the child’s] wellbeing have arisen from [the father’s] continued inability to self-regulate and insulate the child from the adult conflict [he] continues to engage in with [the mother].

While he has had periods of time where he has been calm and able to exercise access with [the child] without involving him in conflict, court appearances in both this child protection matter and the domestic matter flare up his anger and result in escalations that often lead to resulting restrictions in access, to ensure [the child’s] emotional wellbeing.

While [the mother] has kept the conflict away from [the child], [the father] has continued to express to the Society that he will continue to act in contravention of Court Orders, refuse to abide by access schedules that he feels are too restrictive and therefore outside the Agency's authority to enforce, and continually uses derogatory and inflammatory language in reference to [the mother], the JF&CS and the Courts, whom he blames for any negative emotional impact on [the child].

However, throughout this involvement, [the child] has been consistent in expressing his desire to maintain his relationship with his father, in spite of his faults, which [the child] has acknowledged. The Society has made its best efforts to respect [the child’s] wishes in honouring access where possible without increased risk to [the child’s] emotional wellbeing, including with additional support through play therapy.

[337] The Society has concluded that the father’s access to the child must be supervised to protect the child from the emotional harm caused by the father’s conduct. The child must remain in his mother’s care.

[338] If this Court orders that the father’s access must be supervised, the Society will close its file. As Ms. Sadinsky stated, the Society will no longer have a child protection concern because the Paisley order will be varied to require supervision. Ms. Sadinsky explained that the Society cannot remain involved with this family forever. As Ms. Chodos and Ms. Sadinsky testified, the Society has tried everything to control the father and there are no more “tools left in their box” to use.

The Current Status of the Family

[339] The father is adamant about what he will and will not do. He will not comply with any court orders, he will never agree to have a mental health assessment as the court has ordered, he will never give the mother a Get and he will never pay the mother any child support or cost orders.

[340] The father has not worked for some time. Early in his working life, he was a computer consultant and web developer. He left that to work in his family paint store because he needed more income. The father testified that he quit working in the store because he is too busy with the litigation. Nevertheless, he has found time to do volunteer work on the Board of a daycare.

[341] While the father has sought some help by attending various courses and programs, his concerning behaviour continues. It is relentless. There is minimal evidence about the courses and programs the father says he has taken.

[342] The father accepts no responsibility for the chaos he creates and the emotional harm that he exposes the child to. This behaviour continued through this trial. The father has no filter or respect for any orders or even simple directions from the Court. During the trial, the father was abusive and threatening to the witnesses, the mother’s lawyer and the Court. He repeatedly refused to follow the simple rule not to speak when someone else is speaking and that he must wait for his turn.

[343] The father is fully aware of his conduct. During cross-examination, he stated that “what you see today, my aggression, or anger, or flippant attitude or disagreement is situational. It is based on, not three years of lies and fraud and being attacked, but multiple years. It started from the beginning with the first illegal divorce order with false claims made in it, harassment from rabbis and community people”. Before that, he says that he was a “calm individual”. According to the father, everyone else is lying and he is telling the truth.

[344] On July 4, 2018, the father attended a meeting with Ms. Wall and Ms. Archa, the Child Protection Manager. In that meeting, he told them that “this court case will go on for 20 to 30 years as I will play games with [the mother] forever”. During the father’s cross-examination, he denied making this statement. I find as a fact that he did make this statement. This is exactly what he continued to do throughout the Society’s involvement.

[345] The father has tried to sabotage the mother’s full-time teaching job. He has approached her school trying to get her fired. He is fixated on some bizarre story that the mother is involved in a cover-up involving another teacher. The father’s threat to her job is extremely concerning. The father has never paid the mother any child support and she needs her income to support herself and the child.

[346] The mother is “really scared” of the father’s harassing telephone calls, his refusal to follow court orders and his willingness to breach any order that seeks to restrict his access to the child. If the Society is no longer involved, she is worried because there will be no one to try and control the father.

[347] The mother provided an update on the child. He is attending counselling once every 10-14 days at the Jewish Community Centre. He is happy at school and doing well.

[348] The child is externally frustrated and upset with his father. He is also sad. The child wants to see his father, but he has been exposed to so much conflict that he is scared to see his father now. He has seen his father get very angry. During the last visit that Brayden supervised, the child did not want to go in the kitchen with the father. The father was yelling at the supervisor about how he was paying for the visit. The child stayed in his room with the supervisor and told the supervisor how uncomfortable he felt. As the mother explained, the child “is just scared of all the things he’s exposed to”.

[349] The mother wants finality and closure. She wants to feel safe and be able to safeguard the child’s emotional and physical well-being.

[350] The mother wants to return to Israel with the child because she does not feel safe in Toronto and cannot protect the child from the father’s conduct on her own. She has had to install a camera outside her door. Every time there is an escalation in the father’s behaviour, she must leave with the child and stay with a friend until the father settles down.

[351] The mother is constantly looking over her shoulder. Regardless of court orders, the father always finds a way to harass her. Simply put, she is “really scared to stay here”, to “always look over [her] shoulder and not know what he will do next”. She explained “he always finds a way to contact me” no matter what the court order says. He has promised that he “will make [her] life miserable”.

[352] The mother was born in Israel. She lived there until she met the father and then moved to Toronto to get married. Her parents, siblings and their children all live in Israel. Almost every summer the mother and child return to Israel for a month.

[353] The child has a very close bond with his family in Israel and loves spending time there. In Israel, the mother says that the child will be happier, safer and the mother’s close and warm family will help “boost [the child’s] confidence”. If they live in Israel, the mother hopes the child will not need as much therapy and will not have so much “anger, sadness and fears in him”.

[354] The child attends a Hebrew immersion school in Toronto and the mother speaks to him in Hebrew. The child watches cartoons in Hebrew as well. The child is always happy to see his family in Israel and wants to know every year when they will go back. The mother explained that the child is “just so happy there and this is something I cannot give him here”.

[355] The mother has good job prospects in Israel. She has an Honours BA in Linguistics and a BA in Education, with many years of teaching experience. The mother speaks English and Hebrew. Her sisters are teachers in Israel. The mother knows that teachers are needed in Israel, especially those who speak English. She will not have a problem finding a job. Her parents will support her and the child until she finds a job. They have a separate apartment in their home for the mother and child to use.

[356] In Israel, the mother will have the “love and support” of her family and “instead of running away from something [they] will have something to look forward to”.

[357] If the mother is allowed to return to Israel with the child, she will support the child seeing the father and will follow whatever order this Court makes to give the father parenting time. However, the mother insists that the father’s parenting time must be supervised because this is the only way that she can keep the child safe. The father can have supervised time with the child on Zoom or in person if the father comes to Israel.

[358] The mother is fully aware that even when the father’s parenting time is supervised, the child has been exposed to harm because the father always finds a way around the orders. She explained that he does not follow or care about the rules. As she explained her request to live in Israel with the child, she testified:

He will use whatever tools he has to persecute me to make sure I know that he is there to cause harm or some distress in my life.

I want to live a peaceful life. I want to be able to feel safe for both me and [the child] and feel like we are surrounded with family and friends. And I will feel a lot safer. There will be a lot more stability. I won’t have to always be concerned that someone is trying to get us or do something to create chaos in our lives and I won’t have to be scared anymore because [his] behaviour has been escalating for the past five years constantly.

Procedural Fairness

[359] During the trial, the father complained that the Court has not treated him fairly. This complaint generally focused on Justice Kimmel’s denial of his adjournment request; lack of assistance as a self-represented party; and insufficient time to prepare for trial and subpoena and arrange for his witnesses to testify on his behalf. The father’s complaints have no merit.

[360] The primary objective of the Family Law Rules, O. Reg. 114/99, is to “enable the court to deal with cases justly”. The Court applied the rules to promote this objective. Rule 2(2)-2(5) states:

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with all or any part of the case without requiring parties, witnesses or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order under clause 1 (7.2) (i) or (i.1).

[361] When the mother returned to this Court to seek relief, Justice Hood appointed a judge to case manage the application. In a time of limited resources, this is a benefit that is not routinely provided. Justice Sossin was appointed to act as the case management judge. When he was appointed to the Ontario Court of Appeal, Justice Kimmel assumed this role. Orders were made by Justices Sossin and Kimmel to move the application forward and promote the primary objective of the Family Law Rules.

[362] At the request of the parties, an order was made allowing the parties to file the affidavits that were filed in the child protection proceeding in the OCJ, as evidence at trial. This order was intended to save time and expense. The mother followed this order and the father did not.

[363] On November 24, 2020, Justice Sossin issued an endorsement after his case conference with the parties. This endorsement reviewed the status of three important matters: the father’s outstanding mental health assessment, his non-payment of cost orders and his refusal to provide the mother with a Get.

[364] On February 18, 2021 Justice Kimmel reviewed the status of theses items as follows:

1. The respondent was to undergo a mental health assessment, that was expected to be completed by the end of December 2020. This has not been completed.

2. The respondent was to make meaningful and reasonable efforts by the end of December 2020 to address the significant outstanding costs awards against him (in excess of $14,000.00). No costs have been paid to date.

3. A deadline was imposed of the end of December 2020 for the resolution of the issue of the “Get” that the respondent has refused to provide. No “Get” has been provided by the respondent.

[365] At this conference, Justice Kimmel scheduled a two-day trial for June 14, 2021. She issued orders that set deadlines for exchanging all affidavit evidence and expert reports and gave directions for summonsing a witness for trial who would not swear an affidavit.

[366] On March 17, 2021, Justice Kimmel held another case conference “to provide both parties with some further directions that may assist them in the lead up to the trial.” Justice Kimmel explained the process for filing material electronically and the use of CaseLines. She also provided links to access if technical difficulties arose or a party had questions. Details are set out in her endorsement. Justice Kimmel attached “for [the father’s] reference the Guide that the court makes available to parties representing themselves at a Family Law Trial.”

[367] Justice Kimmel held another case conference on April 14, 2021. In her endorsement, she urged the parties to familiarize themselves with CaseLines and dealt with some disclosure issues. The father complained about the sufficiency of the Society’s disclosure. He was directed to send the Society’s counsel a letter with particulars of his concerns and if it was not resolved, Justice Kimmel directed that he would have to bring a motion before her. If there was a disclosure issue, there is no evidence that the father followed Justice Kimmel’s direction.

[368] On April 27, 2021, Justice Kimmel expanded the allotted trial time to five days.

[369] On May 25, 2021, Justice Kimmel held a case management telephone conference. The father did not attend. His non-compliance with the earlier orders is noted in Justice Kimmel’s endorsement as follows:

I convened a case management teleconference this morning with the purpose of ensuring that the time between now and June 7 is used effectively so that the necessary trial materials and the trial scheduling forms have been completed in advance of that trial management conference. Counsel for the applicant appeared, but the self-represented respondent did not.

In my February 18, March 17 and April 14, 2021 endorsements I provided/confirmed directions regarding the filing of material in advance of the trial and scheduled a joint settlement/trial management conference. My previous endorsements regarding timetabling and other pre-trial matters remain in effect.

As I indicated in my April 27, 2021 endorsement, the parties can expect that time limits for the evidence and submissions of each side will be set at the trial management conference so as to ensure that the trial can be completed within the allotted time of five days. I have encouraged the parties to come [to the] trial management conference prepared to work on a trial schedule within the limits of the five days that are available. Provision was made in my earlier endorsements for summons to be issued to any witnesses who are not willing to swear affidavits in chief for the party who will be calling them.

I understand from counsel for the applicant that all materials that the applicant is responsible for pre-filing for the trial have been delivered to the respondent. However, the respondent has not met his filing deadlines, nor has he contributed to the draft trial scheduling endorsement form that applicant’s counsel has sent to him.

The court expects parties to adhere to timetables that are set and to come prepared to conferences and to the trial ready to proceed. The respondent is encouraged to prepare his evidence in chief as previously directed and come prepared to the June 7, 2021 conference to discuss the witness schedule and other scheduling matters for the trial that will be starting the following week.

[370] On June 7, 2021, Justice Kimmel held another conference with the parties and the mother’s counsel. The mother had complied with the previous orders and the father had not. Justice Kimmel’s endorsement states in part as follows:

I am making various procedural orders in respect of that trial, pursuant to Family Law Rules 1(7.2) and 17. The evidence in chief of the trial witnesses shall be filed by affidavits, subject to my directions below. I have provided directions for a timetable for the exchange of affidavits in advance of the trial. All affiants will need to be available, if requested by the opposing party, to be cross-examined at the trial. Time limits will be imposed on the cross-examinations to ensure that the matter can be completed in two days, with allowance for time for openings and closing arguments. The time allotments for the openings, closings and witness examinations at trial will be settled at the trial management conference.

This timetable also provides for a combined settlement and trial management conference to be scheduled before another judge after the exchange of affidavits, and allows for the parties to request further case conference(s) before me if further steps or directions are sought in respect of the process I have put in place for the final adjudication of the issues raised in this application on the merits.

[371] While the father claims he was not given time to get ready for trial nor any assistance as a self-represented litigant, the case management orders demonstrate that this is not accurate. The endorsements set out what the parties had to do and when the tasks had to be completed.

[372] At the start of the trial, the father remained in default of the case management orders that were made. He filed voluminous material on CaseLines that included affidavits that he had filed in the child protection proceeding. The mother’s counsel did not know if the father was relying on his affidavits or not, and the father had not disclosed any witnesses he intended to call.

[373] Although the father had not complied with the orders, he was given an opportunity to choose how he would present his evidence: by affidavit, viva voce evidence or both. He chose not to rely on his previously filed affidavits.

[374] Before and during the trial, the father was repeatedly told that the hundreds of documents he had filed on CaseLines were not considered evidence at trial unless properly introduced. This was explained to him many times. The father was reminded that witnesses he wished to rely upon should be served with a summons to attend. In the end, the father never called any witnesses even though he had been given clear directions on many occasions.

[375] The trial time was extended from five to six days for evidence. The parties then had two days off to prepare for closing submissions.

[376] Finally, it is important to note that the father was given the opportunity to participate in this application and request a variation of the Paisley order even though his pleadings were struck by Justice Stevenson on June 20, 2018. As a consequence of striking his pleadings, Justice Stevenson ordered that the father “has no right to participate in any way in this proceeding”.

[377] As explained above, the father’s pleading was struck because he refused to provide the mother with the Get. Today, the father continues to refuse to give the mother the Get. Pursuant to Justice Stevenson’s order, he should have had no right to participate in this proceeding that seeks to vary the Paisley order. As the trial judge, I did not raise this concern at the start of trial because it appeared never to have been raised or considered before trial. Instead, the father enjoyed a right of participation without restriction.

[378] In summary, the father’s complaints about procedural unfairness have no basis in fact.

Analysis

[379] Both parties seek to vary the Paisley order and seek new relief.

[380] The mother seeks a change that will require the father’s parenting time to be supervised and allow her to relocate with the child to Israel.

[381] The father seeks wide-sweeping relief that would give him full parenting rights without any supervision. He also seeks miscellaneous relief: an order striking Justice Stevenson’s order, the Paisley order and any order that requires him to give the mother a Get; an order that he has completed a mental health assessment; and an order that the mother share with him all of her medical records for the last ten years. All this relief is denied. The father seeks to relitigate orders that he never appealed and the parenting relief he requests is not in the child’s best interests because of his harmful behaviour.

[382] The mother has met the threshold to vary the Paisley order. For the following reasons, I find it is in the best interests of the child that the mother be allowed to relocate with the child to Israel. The father’s parenting time must be supervised. If his harmful behaviour continues to expose the child to emotional harm, the parenting time shall be terminated.

The Divorce Act Amendments Apply

[383] The Paisley order was made pursuant to the Divorce Act. The Divorce Act was amended on March 1, 2021. Section 35.3 of the amended Divorce Act provides a transitional provision stating that the amended provisions apply to matters that were commenced prior to the amendments coming into force on March 1, 2021 but were not finally disposed of before March 1, 2021.

[384] The matter before me was commenced on November 26, 2019 but was not heard until June 14, 2021, after the amendments came into force. Accordingly, my consideration of this matter will be governed by the Divorce Act as amended on March 1, 2021.

Variation of a Final Order – Legal Framework

[385] Section 17(1) of the Divorce Act provides that “[a] court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively … (b) a parenting order or any provision of one, on application by (i) either or both former spouses”.

[386] Before a parenting order is varied, s. 17(5) states that “the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order”.

[387] A change alone is not enough to seek a variation. The change must be material, as explained in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13. The threshold test requires the moving party to prove the following:

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

[388] If this threshold test is met, the Court must then conduct a fresh inquiry into what relief is in the best interests of the child.

The Threshold for a Variation is Met

[389] The party who seeks to vary the final order must satisfy the threshold test. The mother has done that.

[390] After the Paisley order was issued, the Society commenced child protection proceedings. On March 29, 2019, Justice Sager placed the child in the care and custody of his mother, subject to the Society's supervision. The father’s access to the child was at the discretion of the Society “as to location, duration, frequency, level of supervision and whether access is to take place at all”. As well, he was ordered to undergo a mental health assessment.

[391] On November 13, 2019, Justice Spence found the child is “[a] child in need of protection” pursuant to ss. 74(2)(f) and 74(2)(h) of the Child, Youth and Family Services Act and the temporary Order of Justice Sager, dated March 29, 2019 was continued. The father’s behaviour that justified this order has continued and the child remains exposed to emotional harm. The child cannot be sufficiently protected unless the father’s parenting time is supervised.

[392] These facts show that there has been a change in the condition, means, needs or circumstances of the child and the ability of the father to meet the needs of the child. This is a change that materially affects the child. When the Paisley order was made the depth and seriousness of the father’s behaviour could not have been reasonably contemplated by Justice Paisley.

The Best Interests of the Child – Legal Framework

[393] The Court must now conduct a fresh inquiry into what relief is in the best interests of the child.

[394] A parenting order is an order made under s. 16.1(1) of the Divorce Act and provides for the “exercise of parenting time or decision-making responsibility”. Section 16(1) states that “[t]he court shall take into consideration only the best interests of the child … in making the parenting order”. Section 16 goes on to set out the considerations and factors that “shall” be considered as follows:

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(h) any other relevant factor.

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

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

What Variation of the Paisley Order is in the Best Interests of the Child?

[395] As stated in Gordon, at para. 49, “[e]ach case turns on its own unique circumstances”.

[396] In accordance with s. 16(5), only past conduct of the parties that is relevant to their parenting of the child may be considered. In this case the father’s past conduct is highly relevant.

[397] Given the facts, there are only two options to consider: no parenting time or supervised parenting time. This child has been found to be a child in need of protection. After almost four years of working with the family, the Society has concluded that the child will not be safe unless the father’s parenting time is supervised. However, there is a real risk that a supervised parenting time order will not protect the child from the father’s harmful conduct.

[398] The mother has not requested termination of the father’s parenting time because the child has at times expressed his wish to see his father. The Society acknowledged the child’s wish to see his father. The case workers struggled to respect the child’s wish and did their best to protect the child from the father’s harmful conduct. However, his conduct was relentless. The child continued to be exposed to emotional harm and harm resulted.

[399] During the Society’s involvement, the father’s harmful conduct occurred whether the father’s parenting time was supervised or unsupervised. The trained and experienced Society workers have reached the point where they have exhausted all strategies, ideas and tools to control the father and minimize the harm to the child.

[400] The Society workers have given the father multiple opportunities to seek help and demonstrate his ability to care for the child. He has shown on numerous occasions that he is not able to control his harmful behaviour. He exposes the child to his outbursts, temper and vulgar and highly derogatory language about the mother and others. The father has a complete lack of respect for boundaries, court orders and rules. He has no appreciation for the seriousness of his conduct and the harm he causes. The father always blames others and takes no responsibility for his conduct. He is fixated on conspiracy theories.

[401] The father may have a mental illness that explains his conduct. It may be treatable and if so, the father could possibly enjoy parenting time without exposing the child to emotional harm. However, there are no answers to these questions because the father refuses to undergo a court-ordered mental health assessment. An assessment that he controls, that does not follow the terms of the s. 98 order is unacceptable. If the father controls the assessment, he will manipulate the truth and will not fully disclose the necessary information to the doctor.

[402] The father has refused to follow three court orders directing him to have a mental health assessment and he aggressively stated during the trial that he will not comply with a court-ordered mental health assessment.

[403] If trained Society workers cannot control the father and protect the child from his harmful behaviour, how can the mother manage this risk? This question is at the heart of the best interests analysis.

[404] The Society will close its file when the Paisley order is varied. The safety net of the Society will be gone. On the facts, there is no reason to believe that the father’s harmful conduct will stop. The father’s harassment of the mother will continue with vulgar and threatening language and excessive telephone calls and emails. The father’s harmful conduct will continue in the presence of the child. There is a real risk that the father will try to contact the child outside of supervised parenting time. He has threatened this in the past and followed through with his threats. While the mother can call the police, this is a solution that exposes the child to more conflict. As well the past has shown that the father’s harmful conduct will continue even if the police are involved.

[405] Typically, supervised parenting time is used to remediate the problem that necessities supervision. In this case, the problem is the father’s behaviour and it was not remediated with supervision.

[406] The father argues that the law does not support supervised parenting time as a long-term solution. This is his response to the mother’s request for supervision. The father fails to understand that this is not a case about how long he should be supervised or whether there should be any supervision. The question is whether long-term supervision is enough to protect the child and if not, should his parenting time be terminated on a final basis.

[407] An order that terminates parenting time or requires long-term supervision is rare because it is an extreme remedy. In some cases, such orders are necessary to protect the child.

[408] In Jennings v. Garrett (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), Justice Blishen provided a list of the factors that have led courts to terminate access. Most of these factors are also relevant to the question of long-term supervision. At para. 135, the Court states:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M. (B.P.) v. M. (B.L.D.E.), supra; Stewart v. Bachan, [2003] O.J. No. 433 (Ont. C.J.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S. Fam. Ct.); Dixon v. Hinsley, 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707 (Ont. C.J.).

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B. Q.B.); Abdo v. Abdo (1993), 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d) 1 (N.S. C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay (1987), 1987 CanLII 147 (AB KB), 10 R.F.L. (3d) 166 (Alta. Q.B.); Reeves v. Reeves, [2001] O.J. No. 308 (Ont. S.C.J.).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man. Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M. (B.P.) v. M. (B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Ont. C.J.).

[Emphasis added.]

[409] Based on the factors emphasized above, there is a compelling case for termination of the father’s parenting time. I add to this the father’s refusal to follow court orders that seek to protect the child.

[410] In Jennings, at paras. 137-140, the Court went on to consider the termination of access and the use of long-term supervision as follows:

Most of the factors listed above would also be relevant to a consideration of supervised access. As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

Supervised access is seldom viewed as an indefinite order or long term solution. In M. (B.P.) v. M. (B.L.D.E.), supra, Abella J.A. states at para. 33:

The purpose of supervised access, far from being a permanent feature of a child’s life, is to provide “a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used ... as a long-term remedy”: Norris Weisman, “On Access after Parental Separation” (1992), 36 R.F.L. (3d) 35 at 74 . . . .

There may be occasions, however, where medium or longer term supervised access is in the child's best interests. Professor Martha Bailey of the Faculty of Law at Queen's University questions what she considers to be the doctrinaire approach which assumes that long term supervised access is not in the best interests of the child and notes that this approach may undermine the child's right to maintain personal contact with the parent except where contrary to the child’s best interests. In her article, “Supervised Access: A Long Term Solution?” 37 Family and Conciliation Courts Rev. 478 (October 1999), she states the following at p. 480:

The issue of whether long term supervised access is in the best interests of the child must be determined on a case by case basis, taking into consideration all circumstances relevant to the best interests of the child. The question then is whether there are any circumstances under which long term supervised access will be in the best interests of the child, even where unsupervised access is not a future option.

In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship. Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See Studley v. O'Laughlin, supra; Worthington v. Worthington (2000), 2000 CanLII 22469 (ON SC), 13 R.F.L. (5th) 220 (Ont. S.C.J.); Lacaille v. Manger, 1994 CarswellOnt 2089 (Ont. Prov. Div.); Dixon v. Hinsley, supra. If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be viable option. See Pavao v. Pavao, supra; Gorgichuk v. Gorgichuk, supra.

[Emphasis added.]

[411] I agree with the law as stated by Justice Blishen and now turn to the best interests analysis.

The Best Interests Factors

[412] As I consider the factors related to the circumstances of the child, the primary consideration is the child’s physical, emotional and psychological safety, security and well-being.

1. Family Violence

[413] I start with the family violence factor and specifically the father’s uncontrollable behaviour that the child and mother have been exposed to since the Society’s initial involvement in 2016.

[414] While the father has spanked the child on occasion, it is his non-physical behaviour that primarily creates “family violence”. The father’s behaviour consists of uncontrollable anger, denigrating comments, threats and harassment aimed at the mother, child, Society workers, teachers and others. It is behaviour that the child has witnessed on many occasions. The behaviour is relentless and continued during the trial.

[415] The father directly exposes the child to this harmful behaviour. He gets angry and yells at the child. Often the father will not respect the child’s right to end a telephone or video call early. If a call ends early, the father becomes enraged and calls the mother’s phone non-stop. The father lashes out and threatens the child that telephone calls will be cancelled if the child wants to end a call early. He once told the child “if you hang up, you’re dead”. The child knows that if he chooses to end a call early that his father will repeatedly call his mother to try to get the child to call him back. The child fears repercussions if he ends a call early. Ms. Moses observed the father’s conduct during these calls and confirmed that it had a noticeable emotional impact on the child.

[416] In the presence of the child, the father accused the Society of kidnapping the child. The child was upset when his father called him a “brainwashed child”. He screams at the child for no reason and uses vulgar language. This makes the child angry at the father.

[417] The father’s behaviour that is aimed at the mother is threatening and denigrating. The father has exposed the child to this conduct. The child is aware of the father’s excessive and harassing telephone calls to his mother. He is also aware of the denigrating and threatening words that the father directs at the mother. The child does not want his father to go “crazy on him” or “freak out”. He sees his father getting mad at “very little problems”.

[418] The turmoil and emotional harm to the child that results from the father’s conduct is obvious. The child has shown signs of emotional distress, difficulty expressing his emotions, a lack of self-esteem and unhappiness. Bed wetting has also occurred. He knows that his father is not good to his mother. His mother and Ms. Chodos have reported that the child has “shut down” after calls and visits with the father. Recently, the child has had crying attacks and expressed concern about his mother dying.

[419] Ms. Chodos explained that the father’s conduct is “definitely having and was going to have an impact on [the child], on his development, on his social development on his emotional development”.

[420] Counselling with Regesh Family and Child Services provided the child with some help to manage the conflict. The child expressed his wish to maintain contact with his father and at that point the therapist believed that it would be more damaging to the child if access was permanently suspended. When the counselling ended in 2020, the therapist reported that further progress was not possible until the dynamics between the parents changed and/or the father received therapy. The dynamics have not changed.

[421] The child sees his mother crying after telephone calls with the father. He knows that his father says “not nice things” about his mother and that he swears. The child told Ms. Wall he was trying to “forget these things in [his] head”. The child feels like he is being ripped in half. The child is sick of his father telling him that his mother broke up the family and is brainwashed. The child told Ms. Chodos that sometimes he feels like he wants to punch his dad in the face.

[422] The seriousness of the emotional harm is captured in the following evidence of Ms. Chodos:

[The child] tried to solve the problem himself, even though he had given up hope that he could ever solve it. … I was hoping that working with Regesh [Family and Child Services] would help [the child] to understand that this was not his responsibility to solve.

I was an adult, I was the worker on the file, and it was exhausting to deal with [the family], exhausting to deal with the constant complaints, emails, your occasional outburst … and I’m an adult. I cannot begin to imagine what this would be like for a child with no power, no voice and no ability to hang up. This was a very difficult situation for [the child] to grow up in.

The context of a child stuck in a situation like this has bearing. It’s not only about [the child’s] words. It’s what this is doing to him … By January of 2020, [the child] started shutting down with me. He didn’t want to talk about visits … by February 2020, [the father] was far more escalated than in the recent past.

[423] The father has no insight into the emotional and psychological harm that his behaviour causes. He also has no ability to regulate his emotions and reactions when others disagree with him or he does not get his way. For short periods of time the Society was able to manage and minimize the father’s harmful conduct. However, the short periods of calm never lasted.

[424] The father has shown a pattern of coercive and controlling behaviour aimed at the mother. This includes relentless and repetitive telephone calls, messages and emails with threats and pressure to get the parenting time he wants. The father shows up unannounced in the mother and child’s presence, in breach of court orders. He has made numerous threats against the mother’s safety and well-being including: “I am going to get you”, “she will pay for everything she is doing”, “I will never give her a get”, “I will make no [child support] payment … she should be in jail”, “I will play games with [the mother] forever” and “she is stuck to me for life”. The father has contacted the school where the mother works trying to get her fired. The mother is “really scared” and worried about her financial security.

[425] It is in a child’s best interests that his caregiver is physically and emotionally safe (A. (I.) v. Z. (M.), 2016 ONCJ 615, at para. 61). As a result of the father’s violence, the mother is not safe.

[426] The father has not taken any useful or meaningful steps to prevent the family violence from occurring. He attended some anger management sessions with Rabbi Chemel and testified that he attended some other courses. However, his harmful behaviour has continued with no improvement. The father refuses to comply with the court-ordered mental health assessment as well.

[427] The father has proven that he will not follow court orders and has no intention to do so going forward. This creates a significant challenge: what orders will protect the mother and child from the father’s harmful conduct? I will address this below.

2. The Other Best Interests Factors

[428] The child is now eight years old. He needs stability and to feel safe and secure. The mother and the Society have done their best to protect the child, but the father’s behavior constantly interferes with the child’s needs and safety.

[429] The child has a loving relationship with his mother and their family who live in Israel. The child has developed a close bond with his mother’s family and spends a month with them most summers. In contrast, there is no evidence that the child has a meaningful relationship with the father’s family, aside from occasional contact with the paternal grandfather.

[430] The child has a complicated and conflicted relationship with his father. He loves his father and misses him. He is angry with his father and often does not want to see him. He is worried that his father will not behave. At times, the child does not like it when a supervisor is present, but he knows that he needs a supervisor. As Ms. Chodos explained, the child’s comments about his father “were never consistent”.

[431] The mother has consistently cared for the child without raising any concerns. She has been the child’s primary caregiver since 2018. The mother has always cooperated with the Society, even when she disagreed with the plan to allow the father to have unsupervised access. She has always complied with the court orders, which leads me to find that she will comply with the orders in this matter as well. Her plan of care will continue the child’s cultural, linguistic and religious upbringing in the Jewish faith. Her plan going forward is to relocate to Israel. This is dealt with below.

[432] The father’s plan is to share parenting time and decision-making equally with no supervision. There is no evidence to suggest that this is even remotely in the best interests of the child.

[433] The mother is willing to support the child’s relationship with the father if the parenting time is supervised at the father’s expense. This assumes that the child will not continue to be exposed to emotional harm. The father has not supported the child’s relationship with the mother. To the contrary, his conduct seeks to destabilize their relationship.

[434] The father is not capable of safely caring for the child. His threatening and abusive behaviour continues regardless of court orders. What Justice Sager found in her March 29, 2019 reasons, at para. 55, remains true today:

The father is unable at this time to identify not only the cause of his anger but the actual existence of his anger. He does not believe that he has any difficulty controlling his emotions and that what he has said and done has a negative impact on [the child]. As a result, he is incapable of curtailing the offending behaviour because he has not been able to identify any of his behaviour as offensive or harmful to [the child].

[435] During the trial, the father complained that his request for a Voice of the Child Report had been refused and he insisted that one should have been provided. The record suggests that such a report was not ordered or provided because the child’s wishes were conveyed by the Society workers. Those wishes are reflected in the evidence that I have reviewed and accepted as fact.

[436] The Court must consider the views and preferences of the child “giving due weight to the child’s age and maturity, unless they cannot be ascertained”, as per s. 16(3)(e) of the Divorce Act.

[437] In Decaen v. Decaen, 2013 ONCA 218, at para. 42, the Court set out the factors to consider when assessing a child’s wishes:

In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.

[438] The Society workers met with the child and documented his views and preferences.

[439] When Ms. Wall first met the child on August 30, 2017, he was four years old. He is now eight and will be nine years old in the fall.

[440] Ms. Chodos explained that she always tried to keep the focus on the voice of the child “despite all the noise around it”. There “was influence on the voice but it was still the child’s voice”. However, Ms. Chodos was concerned. The child wanted to please both parents. Ms. Chodos did not think he felt free to “say anything … he was very aware that he didn’t want to anger anyone”.

[441] More recently, the child has revealed an understanding that it is helpful and necessary that his time with his father be supervised. The child has expressed his view that it is difficult for him to end a call or video chat with his father, even if he has the right to do so. He is acutely aware of his father’s anger that will result and how his mother will be harassed with telephone calls and emails. The child has expressed his preference not to be left in this position.

[442] The child is generally happy to see his father whether in person, by FaceTime or by Zoom. However, on several occasions the child has not wanted to see his father. This usually follows parenting time when the father’s behaviour is out of control. The child has never expressed a wish to live with his father. The child has often expressed his upset and anger with his father’s conduct.

[443] When Ms. Persaud met with the child this year, he was happy in his mother’s care and doing well. The child was aware that he has not seen his father in a long time. Visits ended when Brayden cancelled its supervision because of the father’s conduct. The child told Ms. Persaud that he was upset when his father told him he was a “brainwashed child”. The child acknowledged that having a supervisor during the visits helped. He missed his father.

[444] The child is very young. His views have not been consistent, and he has been subjected to his father’s anger and influence. With caution, I place some weight on the child’s evidence. I recognize the child’s wish to have parenting time with his father. It is this wish that the Society workers struggled to respect, while trying for several years to control the father’s harmful conduct to no avail. The child’s wish to see his father is important, but it is one factor and must be weighed against the primary consideration in s. 16(2) of the Divorce Act.

The Child’s Best Interests Require Supervised Parenting Time

[445] Based on the best interests analysis, I find that the child’s physical emotional and psychological safety, security and well-being will be at risk unless the father’s parenting time is supervised and only if the mother and child are allowed to relocate to Israel.

[446] It is abundantly clear that if the mother and child remain in Toronto, the mother will not be able to shield the child from the father’s harmful conduct. The father will not comply with a final court order for supervised parenting time. He felt free to breach court orders when the Society was involved. When the safety net of the Society is gone, the father’s harmful behaviour will continue and will likely increase. The child will be exposed to his father’s chaos and continue to suffer emotional harm.

[447] This is not a situation where there is any reasonable hope that the father will seek professional help and remediate his behaviour. As Ms. Chodos frankly stated, the Society efforts were a “complete fail”. If the mother was required to remain in Toronto, I would terminate the father’s parenting time. To do otherwise would expose the child to ongoing emotional harm.

[448] Section 16(6) of the Divorce Act requires the court to “give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child”. The parenting time that I am ordering is consistent with the best interests of the child.

[449] I recognize that the father’s harmful conduct continued even when Brayden was supervising his parenting time. This cannot continue going forward. It is not in the child’s best interests that he continue to be exposed to his father’s harmful behaviour. And so, the orders will provide a safety net for the child. The father will have supervised parenting time, but if he continues to expose the child to his harmful conduct, he will no longer have any parenting time.

[450] The orders provide for professionally supervised parenting time every other week. It is the role of the professional supervisor to ensure that the parenting time is safe for the child. Like Brayden, the professional supervisor will set rules and boundaries. If the father breaches the rules and boundaries and exposes the child to his harmful behaviour, then it is up to the professional supervisor to assess the situation: Is the parenting time safe for the child? If not, can the parenting time continue or should it be terminated on a final basis. If the professional supervisor ends its service because the parenting time is not safe for the child because of the father’s conduct, then the father’s parenting time shall be terminated. There can be no more chances for this father.

[451] This family has reached a breaking point where the father can no longer be permitted to expose his child to such harmful conduct. The child deserves to live in a safe, respectful and non-threatening environment, without emotional harm. If the father cannot act in the child’s best interests, then he will no longer have any parenting time with the child.

[452] The mother asks this court to make yet another order requiring the father to have a mental health assessment. I decline to do so. Not because the father doesn’t need one, because he does. There are three court orders that require the father to have a mental health assessment. This litigation has come to an end and the Society will close their file. The father cannot be trusted to undergo a proper mental health assessment that meets the needs of the s.98 order. The father had a chance to seek help and he repeatedly refused. Issuing a fourth order will not help the child because the father will not comply.

[453] I now turn to the mother’s request to relocate to Israel and why this relocation is allowed.

Relocation of the Mother and Child to Israel

[454] Relocation requests made before the March 2021 amendments to the Divorce Act, were decided using the two-step test in Gordon. First has a material change in circumstances been proven. If yes, then there is a fresh inquiry into the best interests of the child.

[455] The March 2021 amendments to the Divorce Act include for the first time, sections that deal with relocation. A material change in circumstances is still required to vary a final parenting order (this has been proven in this case), as well as a fresh inquiry into what order is in the best interests of the child. However, the Divorce Act now sets out a specific framework for deciding a relocation request. Sections 16.9-16.93 and 16.95 are relevant in this case.

1. The Notice Requirement

[456] The obligation to give notice of an intent to relocate is dealt with in s. 16.9 as follows:

(1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

(2) The notice must set out

(a) the expected date of the relocation;

(b) the address of the new place of residence and contact information of the person or child, as the case may be;

(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and

(d) any other information prescribed by the regulations.

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

(4) An application referred to in subsection (3) may be made without notice to any other party.

[457] The mother gave notice of her intent to relocate with the child to Israel when she issued her application on November 26, 2019. This was well before the 2021 amendments to the Divorce Act. In her application, the mother requested “[a]n order that the Applicant Mother shall be permitted to relocate with the child to Israel” and set out the following in support of this relief:

The Applicant Mother is the sole caregiver to the child, but she has minimal support in Canada. The Applicant Mother's extended family, her parents and siblings all reside in Israel. The Applicant Mother is Israeli, and the child is closely bonded with his family in Israel.

The Applicant Mother has far better career prospects, living arrangements and support systems in Israel than she does in Canada. The Applicant Mother is qualified as an English teacher in Israel, and Hebrew is her first language.

The Applicant Mother's family also has a self-contained unit for the Applicant Mother and the child to reside in, in Israel, completely free of charge. Israel is the child's ancestral homeland, and the child speaks Hebrew fluently and has travelled to Israel many times; the move would be seamless for the child and in his best interest.

Despite the order of Justice Paisley, the Respondent Father has not paid any child support whatsoever; the Respondent Father's driver's license has been suspended by the Family Responsibility Office. The entire financial responsibility for the care of the child has fallen to the Applicant Mother, and the Applicant Mother has far better financial opportunities in Israel, not the least of which, is because the cost of living will be significantly lower for her.

[458] The mother’s application satisfies the notice requirement in s. 16.9. She intends to relocate when allowed to do so by the Court. She hopes to time the relocation so the child can start school in Israel this fall. The father knows where the mother’s family lives because he has visited her family. They live close to Tel Aviv. The mother made it clear during her application that the father may have supervised parenting time with the child at his expense. It can take place on Zoom or FaceTime or in person if the father wishes to travel to Israel.

2. The Burden of Proof for Relocation

[459] Section 16.93 sets out who has the burden of proof when relocation is requested:

(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

[Emphasis added.]

[460] In this case s. 16.93(2) applies. Under the Paisley order the child spent the “vast majority of [his] time” in the mother’s care. The father’s access under this order was alternating weekends (Saturdays at 10:30 a.m. until Sundays at 6:00 p.m. or Mondays at 6:00 p.m. if it was a statutory holiday). As well, the father had some holiday time. While the father saw the child on alternating weekends, there were no overnights with the child.

[461] The parties substantially complied with the Paisley order until November 1, 2018 when Justice Sager made the first order in the child protection proceedings. That order placed the child in the temporary care of his mother, subject to the Society’s supervision, with access to the father at the Society's discretion. The parties substantially complied with the orders made in the child protection proceeding, as the child spends the vast majority of his time in his mother’s care.

[462] Based on these facts, the father has the burden of proving that the relocation would not be in the child’s best interests. The father has not met this burden of proof.

[463] For the reasons that follow, I find that the mother’s request to relocate with the child to Israel is in the best interests of the child.

3. The Best Interests Factors – Legal Framework

[464] Section 16.92 sets out the best interests factors relevant to relocation. The Court shall consider these factors, in addition to those in s. 16 (analyzed and set out above):

(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[465] The facts that I have accepted strongly support the mother’s request to relocate to Israel. The father has not proven on a balance of probabilities that a relocation to Israel is not in the child’s best interests. In fact, his behaviour proves that if the child and mother remain in Toronto, the child will continue to suffer emotional harm and the mother will not be able to shield the child from the father’s harmful conduct. I find as a fact that this will be so whether the father has supervised parenting time or no parenting time at all.

4. The Reasons for Relocation

[466] The growing and unresolved serious concerns about the father’s behaviour have triggered the mother’s relocation request. The father’s behaviour has negatively impacted the child’s emotional well-being for several years.

[467] The mother wants to relocate to Israel to protect the child from the ongoing emotional harm caused by the father’s behaviour. In Israel, she and the child will be safe and supported by the love of her family.

[468] Sadly, there is no end in sight to the father’s harmful behaviour. The father does not recognize that he needs professional help and he has repeatedly refused to comply with the court-ordered mental health assessment.

[469] The mother fears for the safety and well-being of herself and the child. These fears are not exaggerated. Ms. Chodos validated the fears in her evidence:

I was working so hard to keep things peaceful and balanced for this child and I became very concerned about what would happen when there was no one else involved to do that …

No [Society], no outside person to moderate, mediate, referee … what was going to happen because this – if this was as good as it was going to get, it was not good enough and this child was always going to be in the middle of a war zone.

[470] The mother fears that in Toronto, the father will continue to try to undermine her financial stability. He has tried to get her fired at work and he pays no child support.

[471] On the facts, the fears are real and justified. I find that the father’s behaviour will continue, and the child will continue to suffer emotional harm if the mother and child remain in Toronto. Without the safety net of the Society, the mother will be left alone to try to shield the child from further emotional harm. If the Society could not control the father, there is no reasonable prospect that the mother can manage this burden.

[472] During the father’s final submissions, he presented a copy of a Government of Canada travel advisory for Israel advising against travel to certain parts of Israel. He did not present this evidence during the trial and as a result, the mother had no opportunity to respond.

[473] Nevertheless, the father asks the Court to take judicial notice of the travel advisory. He argues that this advisory shows it is not safe to relocate to Israel. The Court may take judicial notice of a travel advisory (Kelada v. Labib, 2016 ONSC 7737).

[474] The current travel advisory for Israel, the West Bank and the Gaza Strip was last updated on July 7, 2021.

[475] This travel advisory system defines four levels of risk: “Exercise normal security precautions”; “Exercise a high degree of caution”; “Avoid non-essential travel”; and “Avoid all travel”.

[476] The travel advisory states that Canadians are to “[a]void all travel to the Gaza strip”. They are to avoid non-essential travel to the West Bank and the border with the Gaza strip. The warning states that in these specific areas “the safety and security of Canadians travelling or living in the country may be compromised”. The Tel Aviv area where the mother seeks to relocate is not part of this warning.

[477] In areas other than the Gaza strip, the West Bank and the border with the Gaza strip, the current travel advisory states that travellers to “Israel” are told to exercise a “high degree of caution”. This covers the Tel Aviv area. The advisory states what it means by this warning for travel to the rest of Israel: “There are identifiable safety and security concerns, or the safety and security situation could change with little notice. You should exercise a high degree of caution at all times, monitor local media and follow the instructions of local authorities.”

[478] The mother and child are seeking to relocate to the Tel Aviv area and have travelled to her family home in this area of Israel for many years. During their summer visits they have always been safe. The parties were married in Israel. The father provided no evidence that they will not be safe if they relocate as requested. I find that the mother will at all times exercise the necessary high degree of caution in Israel as she has done during her summer visits.

5. The Impact of Relocation on the Child and Other Factors

[479] When Ms. Chodos was the worker for the family, she was aware of the mother’s connection to Israel and their regular summer visits. In the summer of 2019, the child thought that his father might not allow him to go to Israel, though the mother has the right to travel without his permission. Ms. Chodos knew that the child “loved going to Israel” and was “very excited” to go. He told Ms. Chodos that if his father would not let him go “he would crawl out a window” to get there.

[480] The father agrees that the child enjoys Israel and his family who live there, but he believes that the child does not want to live there. He relies on a conversation with the child in the summer of 2019 just before the child turned seven years old. After the child and mother returned from their summer trip to Israel, the child apparently said to the father “it is a great place to visit but I wouldn’t want to live there” and that he wouldn’t get along with the Israeli people. The father is not a reliable witness. Assuming this is a view that the child expressed to him, I am concerned that it is a view influenced by the father. As well, the child was six years old at the time. It is not credible to suggest that such a young child could appreciate and articulate this preference as the father states.

[481] The father has “no problem” with the mother’s parents. He says that they are “great” grandparents. The father says that he got along with her parents until the mother lied and turned them against him. The father does not think that the child will “fit in” because his Hebrew is not that good, and because the Israelis are “very rough” people. He did not explain his view of the Israeli people.

[482] A relocation generally has an impact on the child that moves. To the extent that this child has challenges adjusting to life in Israel, I am satisfied that he will have the necessary support to help him settle into his new home. His mother and aunt are teachers and he will have the support of loving grandparents. The child has a bond with his family in Israel and is familiar with where he will live. He also speaks Hebrew and this will improve with time after the relocation.

[483] The mother and child will have their own apartment in her family home. The mother has Israeli citizenship and will be able to secure a teaching job. The child will be eligible for Israeli citizenship due to his heritage. The mother’s plan of care will help the child transition into his new community.

[484] The relocation will not impact the father’s parenting time in a meaningful way. He has not had any overnight parenting time with the child for many years. His parenting time from 2017 forward has mostly been supervised or suspended. The father had some limited unsupervised parenting time, but this was revoked when the father could not control his harmful behaviour. He has not had any parenting time since Brayden terminated their supervision services on December 19, 2020. It is the father’s obligation to retain and pay for a professional supervision service so his parenting time can resume. He has not done so.

[485] The mother wants the child to have safe supervised time with the father. She suggests FaceTime or Zoom that is supervised by a professional supervision service at the father’s expense. If the father travels to Israel, she agrees that he can see the child if professionally supervised. The mother’s proposal is reasonable in light of the circumstances, including the need to ensure the child’s safety and the already restricted parenting time the child has with his father.

[486] The father has not complied with many court orders. He has paid no child support, has not provided the mother with the Get and has refused to have a mental health assessment. He has made it clear that he will never comply with these orders. In contrast, the mother has complied with her legal requirements.

[487] I find that the mother’s request to relocate with the child to Israel is in the child’s best interests. There is no reasonable chance that the mother can protect the child from the father’s harmful conduct if she must remain in Toronto. If she remains in Toronto, the father will continue to threaten her emotional and financial stability. A relocation to Israel will provide the mother and child with the necessary stability and will decrease the risk of harm from the father’s conduct.

conclusion

[488] In summary I make the following final orders that are in the best interests of the child:

1. The Applicant mother’s request to relocate with the child to reside in Israel, is granted.

2. Neither party shall speak negatively, or permit others to speak negatively, about the other or their family in the presence of the child.

3. Neither party shall discuss the litigation in this case with the child.

4. The Respondent father shall not come within 500 meters of the Applicant mother, or of the Applicant mother’s home, place of work, or any other location where the Applicant mother may reasonably be expected to be. The Respondent father shall not communicate with the Applicant mother either directly or indirectly, by email, telephone or any other form of communication, except through counsel assuming the mother continues to have counsel or through the professional supervision service as specified in these orders.

5. The Respondent father shall not attend at the child's school and shall not otherwise attempt to contact the child in any way, except as allowed during supervised parenting time in this order or unless agreed to in writing by the parties.

6. Paragraphs 2,3,4,5,6 and 7 of Justice Paisley’s order dated October 22, 2018 are varied as set out below. Save and except as modified in this final order, the October 22, 2018 order of Justice Paisley shall remain in full force and effect.

7. Paragraphs 3,4,5, 6 and 7 of Justice Paisley’s order dated October 22, 2018 are struck.

8. Paragraph 2 of Justice Paisley’s order dated October 22, 2018 order is struck and replaced with the following orders:

(a) The Respondent father shall have supervised parenting time with the child. The parenting time shall be supervised by a professional supervision service (“supervisor”).

(b) This supervised parenting time is subject to the orders below.

(c) The Applicant mother shall provide the Respondent father with the name and contact information for one or two supervisors that offer supervision of parenting time. The names of two supervisors should be provided if available. This shall be done through the Applicant mother’s counsel and shall be emailed to the Respondent father.

(d) If the Respondent father is provided with two choices, he shall choose one of the names and communicate his choice to the Applicant mother’s counsel within 30 days of being notified. If only one supervisor is identified, then that supervisor shall be used to supervise the Respondent father’s parenting time.

(e) The Respondent father’s parenting time shall only proceed after he has retained the supervisor and agreed to pay for that service. The supervisor shall confirm the retainer with the Applicant mother and her counsel if she still has counsel.

(f) The parenting time shall be every other Saturday for up to three hours. The parenting time shall be done virtually by FaceTime or Zoom. The start time for the parenting time shall be fixed by the supervisor and shall be consistent with the best interests of the child.

(g) If the child has a commitment that interferes with the parenting time, a makeup time shall be offered. Every effort shall be made to ensure that a makeup visit is not required. The supervisor shall arrange the makeup visit.

(h) The child shall have the right to ask the supervisor to end the visit before the three-hour limit and the Respondent father shall respect that decision.

(i) The Respondent father shall order the notes/report of the supervisor following each visit and the supervisor shall provide a copy of the notes to both parties (and to their respective counsel, if applicable). If there is a fee for the notes/report, the Respondent father shall be responsible for payment.

(j) The Applicant mother shall provide the supervisor with a copy of these Reasons for Decision and the issued an entered court order.

(k) If the supervisor determines that he/she cannot maintain a safe parenting time environment for the child and as a result terminates the supervision service, then the Respondent father’s parenting time shall be terminated on a final basis and he shall have no more parenting time with the child.

(l) The father may exercise his supervised parenting time in-person in Israel, subject to the following conditions:

1. There has been supervised virtual parenting time for a period of at least 12 consecutive months with the majority of the visits taking place.

2. There shall be no in-person parenting time if the supervisor has at any point determined that he/she cannot maintain a safe parenting time environment and as a result has terminated the service.

3. The Respondent father shall pay for all expenses associated with his travel to Israel and the cost of the supervision of his parenting time.

4. The in-person supervised parenting time shall be limited as follows: In a calendar year, a maximum of two alternating Saturdays to take place within a 30-day period, each lasting no more than three hours.

5. The Respondent father shall give the supervisor 45 days written notice of his request to have in-person parenting time in Israel and the supervisor shall notify the Applicant mother. The Respondent father’s notice shall provide the dates and times that he requests in-person parenting time in Israel.

6. The in-person parenting time is subject to the availability of the Applicant mother and child and the availability of the supervisor. Unless this availability is confirmed in writing by the supervisor, it shall not proceed.

7. If the Respondent father wishes additional in-person parenting time in Israel during the 30-day period in (l) 4 above, his request shall be directed in writing to the supervisor, along with the 45 days written notice that is required in (l) 5 above. The Respondent father’s request shall set out what additional time is requested with specific date(s) and times. The supervisor shall provide the Applicant mother with a copy of the Respondent father’s request. The Applicant mother shall consider the request and provide her answer in writing to the supervisor. The supervisor shall inform the Respondent father of the Applicant mother’s answer. The Applicant mother shall not refuse a request for additional parenting time assuming the request is reasonable and in the best interests of the child, as determined by the Applicant mother. The Respondent father’s request is subject to the availability of the Applicant mother, the child and the supervisor.

8. If either party seek costs of this application, they shall serve and file costs submissions and bills of cost by August 30, 2021. The Respondent father shall serve the Applicant mother by emailing a copy to the Applicant’s counsel of record. The Respondent father shall be served with the Applicant mother’s submission by email. Cost submissions filed after the August 30, 2021 deadline shall not be considered. The submissions shall be limited to 15 pages with a Bill of costs attached and filed through the JSO portal https://www.ontario.ca/page/file-family-court-documents-online and through Toronto.SCJ.FAMILYINTAKE@ontario.ca. A copy shall also be uploaded onto CaseLines.

9. The Applicant mother shall provide the court with a draft order for the court’s approval and to be signed. The Respondent father’s approval of the draft order is waived.

C. Horkins J.

Released: July 30, 2021

COURT FILE NO.: FS-19-00014030

DATE: 20210730

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.S. Applicant

– and –

A.N.S. Respondent

CORRECTED REASONS FOR JUDGMENT

C. Horkins J.

Released: July 30, 2021