COURT FILE NO.: FC-17-FO000286-0000

DATE: October 25, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE, FAMILY COURT

BETWEEN: )

Anna McLellan )

Applicant ) Candice Pilgrim, for the Applicant

– and – )

Ryan Birbilis )

Respondent ) Cheryl Lean, for the Respondent

) HEARD: November 30, December 1, 2, 3,

) 4, 2020, February 1, 2, 3, 4, 8, 9, 2021

) with supplementary submissions received ) February 24 and March 3, 2021

REASONS FOR DECISION

Nicole Tellier J.

OVERVIEW

Nature of the Case and Parties’ Positions

1This bi-furcated trial concerns the parenting plan for A.S.B. (“A.”), now age 6. A. attends Deseronto Public School. She is a socially engaged child who enjoys a variety of activities. She is asthmatic and uses a puffer but she is physically active and healthy. The mother believes that she has suffered emotionally from her exposure to parental conflict and the father’s psychological and physical mistreatment of her mother. She arranged for A. to attend child therapy with Anastasia Burns on a regular, as needed basis. Father strongly objects to this therapy.

2Currently A. lives with her mother. She is in her father’s care every Wednesday from 4:15 p.m. to 7:30 p.m. and on weekends either on Saturday or Sunday from 9:00 a.m. to 4:00 p.m. Father has additional parenting time on holidays on an ad hoc basis. None of his parenting time occurs overnight.

3Mother seeks sole decision-making responsibility based on the parents’ poor communication as well as their mutual mistrust. She asserts that in her role as the primary parent, she has made sound decisions that promote A.’s best interests. Father seeks an order for joint decision-making responsibility. In the alternative, he asks for an order for parallel decision-making responsibility, with mother having responsibility for A.’s education and father having responsibility for all health decisions.

4Mother proposes father’s parenting time include a weekly mid-week visit throughout the school year, centered around an activity chosen and paid for by him. She also proposes an expansion of father’s care of A. during all major holidays. Mother currently opposes any expansion of father’s parenting time which includes overnight time.

5Father concedes A. should live primarily with her mother, for now. Father’s position changed following the trial’s conclusion. He seeks an immediate expansion of his parenting time to include one overnight weekly. He asks for this first phase of his expanded parenting time to include every Wednesday evening from 4:00 p.m. until 7:30 p.m. and every weekend from Saturday at 9:00 a.m. until Sunday at 7:00 p.m.

6Father’s proposal contemplates two further expansions of his parenting time. The phase 2 expansion would occur once he initiates working with the Canter for Abuse and Trauma in Kingston. During this phase, his parenting time would expand to alternate weekends commencing Friday at 4:00 p.m. until Sunday at 7:00 p.m., to be extended to Monday at 700 p.m., if Monday is a PD day or statutory holiday.

7The third phase of expansion would occur once he has successfully completed therapy at the Kingston Trauma Centre, if such therapy is recommended, and he has obtained a psychiatric assessment report and formulated a plan with his family physician, Dr. Glatt, in accordance with that assessment. This third phase would expand Wednesday's midweek visits to overnight and his alternate weekly parenting time would commence on Thursday at 4:00 p.m. until Monday at 9:00 a.m., extending to Tuesday a.m. if the Monday is a PD day or statutory holiday. Since the Wednesday parenting time would occur weekly, this effectively means that every other week the child would be in his care from Wednesday after school until Monday am or possibly Tuesday a.m., a stretch of 5 or possibly 6 days when Monday is a not a school day. In both phases 2 and 3, father proposes an equal sharing of vacation time, during the winter break and in the summer months of July and August, but A. would always spend the March break in his care.

8Father’s revised proposal attempts to align his expanded parenting time with steps taken to address his mental health challenges but there is no condition precedent in that regard to his request for immediate overnight parenting time. He asks that the entire parenting plan be “fully reviewed” in June 2024 when A. turns 9 years old. Mother proposes that father’s parenting time only be reviewed for possible further expansion to include overnight time after he has provided a psychiatric diagnosis and treatment plan and has demonstrated his full and sustained participation in his own mental health management, with observable improvements in his emotional regulation.

9The Children’s Lawyer was appointed under section 112 of the Courts of Justice Act, R.S.O. 1990, CHAPTER C.43. Ms. Karen Poole, MA, MSW, RSW, was the appointed clinician. In her Report dated December 5, 2018 at page 12, Ms. Poole recommends, among other things:

Mr. Birbilis is to engage in a psychiatric assessment and follow through with all recommendations for treatment. Upon the provision of the outcome of this assessment along with evidence of continued follow through and successful response to any treatment recommendations including medication, parenting time with Mr. Birbilis may increase to include overnight and eventually graduate to alternate weekend access from Friday-Sunday at 5 PM or other time that is consistent with the hours of SASAC.

Disposition Summary

10For reasons elaborated below, I find that it is in A.’s best interests that mother have sole decision-making responsibility. Father’s current parenting time shall be restructured so that it occurs on alternate weekends. This gives both parents a full weekend to plan activities with A. and will make for an easier transition if and when overnights are introduced. Father’s parenting time shall be expanded during holidays as detailed below. At this time, it shall not include overnight parenting time; this is reviewable, on terms. Father must demonstrate that he has obtained a current diagnosis and that he has developed and followed a mental health treatment plan, in a sustained manner, with positive results, before the court will consider any request by him to expand his parenting time. Other provisions regarding the selection of A.’s activities are set out detailed below.

BACKGROUND

The Family Circumstances

11The parties lived together for 9 years from 2008 until they separated in January 2017. There was a brief period of separation in 2015/2016 following father’s assault of the mother, which led to criminal proceedings. Their reconciliation lasted approximately six months.

12Their child, A., was 18 months old at the time of separation and is now 6 years old. Mother has always been her primary caregiver. A. lives with her mother and her new partner Joel and his two children. Mother’s family, that is, her parents Linda and Gary McClellan and her brother Sean live together, a few blocks away. Mother and A. lived in that household for about 3 years following the separation until she and her partner commenced cohabitation in August 2020. Mother, now aged 37, was previously employed in the field of pet care. She currently has a permanent part time position at the local public library.

13The father, aged 38, lives with Rachel Fox. When mother relocated to Deseronto following their separation, father followed her there shortly thereafter. His mother, Cindy Brizard, has remarried. Their contact, and therefore A.’s contact with her paternal grandmother and step-grandfather is infrequent. The father is a self-employed musician who plays at social events such a weddings and teaches music lessons.

History of Proceedings

14The mother commenced proceedings in December 2018. There have been various parenting arrangements since the parents’ final separation. On April 9, 2018 Malcolm J. requested the involvement of the Office of the Children's Lawyer and on June 22, 2018, the matter was assigned to a clinician, Ms. Karen Poole. On April 26, 2018, Malcolm J. ordered, on consent, that father's parenting time would occur weekly at the Salvation Army Supervised Access Centre in Napanee, the duration and frequency of which would be determined by that facility.

15Six months later, on August 28, 2018, Malcolm J. made a temporary order stipulating that commencing September 28, 2018 the father would have access every Friday from 3:00 p.m. to 5:00 p.m. with the exchanges to occur at the Salvation Army, with the last half hour of the visit to be supervised. Commencing in November, father’s access was to occur every Saturday from 9:15 a.m. until 3:45 p.m. with the exchanges to continue to occur at the Salvation Army, with the last 30 minutes being supervised. The order prohibited father from questioning the child about the mother or from making negative comments about the mother. Lastly, he was ordered to immediately return to the to the supervised access facility with the child, if she showed any signs of distress.

16The OCL report was completed on December 5, 2018. The parents subsequently agreed to an amended parenting schedule, without taking out a fresh order.

ANALYSIS

The Legislative Framework: A Threshold Question about which Act Applies

17The parties were not married so provincial legislation governs their parenting dispute. Mother urges the court to make its determination under Bill 207, An Act to Amend the Children’s Law Reform Act, the Courts of Justice Act, the Family Law Act and other Acts Respecting Various Family Law Matters, 2020 S.O. c.25, which came into effect on March 1, 2021, after the matter was heard but before the court’s disposition. The Children’s Law Reform Act, R.S.O. 1990, CHAPTER C.12, as amended, (the “CLRA”), changes the parenting terminology in relation to custody of and access to children; these terms are replaced with the language of decision making responsibility and parenting time.

18Mother’s main focus is on PART III of the new Act and section 24(4) which directs the court to consider a list of enumerated factors when determining the impact of any family violence on outcome. Father objects to the application of the new CLRA but concedes that even under the old Act, the court is not precluded from considering additional best interest factors to those specifically enumerated in section 24.

19The analysis for this threshold question must begin with the transition provisions of any relevant statute or companion regulations. Section 76 of the Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25 – Bill 207, stipulates that commencing March 1, 2021 operative custody orders are deemed to be decision making responsibility orders and operative access terms are deemed to be either parenting time or contact orders.

20This transition provision supports the use of the new parenting lexicon for any parenting order made here, whatever legislative scheme applies to this disposition. That approach was adopted in White v. Kozun, 2021 ONSC 41, where Kraft J. uses the language of decision-making responsibility and parenting time under the new Divorce Act, even when that proceeding was both heard and adjudicated under the old Act, months before the passage of its successor legislation. Indeed, some courts have been encouraging and adopting this parenting language for some time.

21Although many of the parenting provisions in the new CLRA are identical to the parenting provisions in the new Divorce Act, the latter statute has clear transition provisions, whereas the CLRA does not. In the absence of any transition provisions in the CLRA or a regulation, the court’s analysis is guided by the well-established principle that, presumptively, legislatures intend new procedural provisions to apply to pending and future proceedings. By contrast, where legislation affects substantive rights, it is presumed to have a purely prospective effect, unless there is a clear legislative intent that it applies retrospectively. See Ruth Sullivan, Sullivan on the Construction of Statutes 6^th edition. 2014, Markham Ontario, Lexis Nexis, chapter 25. This principle is embodied in section 52 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched F.

22The new CLRA contains both procedural and substantive changes. Arguably some provisions, such as those in relation to relocation, are a hybrid of both. The narrower question here is whether any new CLRA provisions which are potentially applicable to this case are procedural or substantive in nature and, therefore, whether they have a corresponding retrospective or prospective effect. This question is readily resolved by a comparison of the section 24 provisions, old and new, employing a purposive approach to the interpretation of the two schemes.

23Under both the old and the new CLRA schemes, the court is mandated to consider a list of enumerated factors in determining the best interests of the child. In both instances, no factor is determinative or given priority over another. Notably, the list of enumerated factors is a non-exhaustive list. The court may and ought to consider any relevant factor in its determination of the ultimate issue, namely, the parenting order that is in the child’s best interests. Thus, both legislative schemes acknowledge that any best interests’ determination is informed by an array of potential considerations, some enumerated, others not.

24The enumerated factors in the old and new sections are either identical or very similar. The old section 24(4) directs the court, when assessing a person’s ability to parent, to consider whether that person committed violence or abuse against a spouse, the child’s parent, a member of the household or a child. The terms violence and abuse are not defined elsewhere in the Act.

25Under the new scheme, subsection 24(3)(j) directs the court to consider any family violence and its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child and the appropriateness of making an order that would require persons to cooperate on issues affecting the child. Under the new scheme family violence and family member are defined under sections 18(1) and 18(2).

26While the language is slightly different, and more elaborate under the new Act, the substantive meaning of these section 24 provisions and the task for the court is essentially the same. Under both schemes, the court is directed to consider and make findings about whether family violence has occurred and, if so, what impact it has on the best interests of the child and how that ought to be addressed in the pending parenting order. These provisions share the premise that the presence of family violence impacts parenting abilities, the safety of family members and the best parenting arrangement for the child.

27The words violence and abuse under the old Act have been elaborated under the new one. The inclusion of a new definition of family violence under the current CLRA is an important addition to this part of the best interests’ inquiry. But its inclusion, and the conduct contained within it, do not bestow any new substantive rights or obligations on either party. The new definition provides a non-exhaustive list of conduct that constitutes family violence. This assists the court in identifying the nature and extent of the family violence. The definition does not preclude the court from finding that other conduct fits withing its meaning, such as cyber-bulling for example. ¹

28Section 24(4) of the CLRA is entirely new. It provides a list of factors for the court’s consideration, when crafting its parenting order in the context of family violence. While this section gives added and helpful structure to the court’s inquiry, it does not, in my view, create a new substantive scheme for family violence cases. Under the old Act, when determining best interests, courts were directed to assess the nature and the severity of the family violence and consider its impact on the postseparation parenting arrangement. The new Act demands the same analysis but provides more guidance.

29An example of this can be gleaned from the court’s reasons in Whitten v. Ellwood, 2016 ONSC 6938 decided under the old Act. At paragraph 187, the court declines to grant father overnight parenting time, on the basis that he had failed to address and manage his anger and aggression. This is precisely the inquiry the court is directed to make under the new CLRA section 24(4)(g). It directs us to examine whether the person engaging in family violence shows insight and has taken steps to cease the harmful conduct, thereby mitigating the risk of future harm to the child.

30In my view, what the new CLRA does in relation to family violence is clarify and codify the existing jurisprudence developed under its precursor legislation. This includes what courts have learned, not only from litigants and child’s counsel but from admitted expert evidence, evidence from health professionals and academic and social science literature, about the nature of family violence and its role in crafting appropriate parenting plans and orders.

31The father seeks a joint decision-making regime or, alternatively, parallel parenting or divided decision-making. These remedies are available under subsection 28(1)(a) and (b) of the old Act but this relief also fits squarely within the new subsection. 28(4). Hence, for consistency I will apply the new CLRA provisions to this aspect of my disposition.

32Having concluded that relevant provisions of the new CLRA can govern the court’s disposition here, the applicable excerpts from Part III are set out below.

PART III

DECISION-MAKING RESPONSIBILITY, PARENTING TIME,

CONTACT AND GUARDIANSHIP

Definitions and interpretation, Part III

18 (1) In this Part,

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

a) health,

b) education,

c) culture, language, religion and spirituality, and

d) signifiant extra-curricular activities; (“responsabilité décisionnelle”)…

“family member” includes a member of a household of a child or of a parent, as well as a dating partner of a parent who participates in the activities of the household; (“membre de la famille”)

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”) “parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child; (“ordonnance parentale”)

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time;

(“temps parental”)…

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child. 2020, c. 25, Sched. 1, s. 2….

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2….

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child. 2020, c. 25, Sched. 1, s. 2.

Parenting order, application by non-parent

(2) Any person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child. 2020, c. 25, Sched. 1, s. 2.

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

Primary consideration

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

Factors

(3) Factors related to the circumstances of a child include,

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

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

(c) each parent’s willingness to support the development and maintenance

of the child’s relationship with the other parent; (d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule. 2020, c. 25, Sched. 1, s. 6.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child. 2020, c. 25, Sched. 1, s. 6.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so. 2020, c. 25, Sched. 1, s. 6.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information. 2020, c. 25, Sched. 1, s. 6.

The Allocation of Decision-Making Responsibility

33By all accounts the parties had a turbulent relationship, leading to several attendances to their home by local law enforcement and other interactions with the police. They separated when their daughter was only 18 months old. Following separation, the conflict continued. Father’s parenting time was initially supervised. Child exchanges had to be supervised until recently, to protect A. from potential parental conflict. In sum, the parties do not have a history of communicating in a calm or co-operative manner; the evidence is to the contrary.

34The law is clear that effective, co-operative, communication about the child is essential to the success of a joint decision-making regime. In rare circumstances, where communication is poor, the court has granted a so-called parallel parenting order, whereby each parent is ascribed an exclusive area of decision-making authority. The oft quoted decision in Kaplanis v. Kaplanis, 2005 ONCA 1625 is instructive here. At paragraph 11, Weiler J.A., writing for a unanimous court, states:

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

35Applying the Kaplanis principles here, I conclude an order for joint decision making is unworkable and not in A. best interests. Further, I decline to grant an order allocating decision-making responsibility between the two parents, with father having responsibility for Abby’s health decisions for three reasons.

36First, the domains of education and health related decisions are often intertwined rather than discrete. An example of this might be a child who is discovered to have ADHD and whose educational professionals believe the child's behavior is so unmanageable and unsafe in the school setting that consideration should be given to medicating the child. The parents disagree about whether to medicate the child during the school year. Does this decision fall under the rubric of education decision-making authority or health? Clearly it is both. Given A.’ s young age, such overlaps may well arise and, if they do, based on the history of conflict here, this could all too easily lead to acrimony and renewed litigation. That is contrary to the child’s best interests.

37Second, father has no track record of making good health decisions either for himself or for A. The evidence, which is elaborated in the court’s consideration of father’s mental health status, demonstrates that father has struggled to manage his own health challenges. Mother arranged for A. to engage in play therapy with Anastasia Burns from Dr. Gowthorpe’s office. In his affidavit sworn November 20, 2020, father states “I can only conclude that the counselling is directed at making A. think she has been a victim of abuse.” During his oral testimony months later, he scoffed at the notion that play therapy might be helpful to a young child in distress. His objection was, in part, related to his concern this would negatively impact his position in these proceeding, suggesting he puts his interests ahead of A.’s.

38Mother testified that she feared discussing A.’s health issues with father because when he receives serious information, he can be reactive and his behaviour is unpredictable. She worried he might act out in A.’s presence at a health facility. The father has generally been uninvolved in managing

A.’s overall healthcare.

39Third, the evidence is that mother has always made good decisions in A.’s best interests, including her relocation to her new community, her choice of school and child care providers, her selection of activities, her selection of health care professionals and, importantly, securing therapy for her daughter when she believed it would be helpful. Other than the objection to therapy for A., father did not question the soundness of mother’s decisions either at the time they were made or at trial.

40Lastly, section 24(3)(j)(ii) of the CLRA directs the court to consider the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child in the context of family violence. My findings regarding the family violence and its impact, elaborated below, also support the conclusion that joint decision making is unworkable and is contrary to the child's best interests. Accordingly, mother shall have sole decision-making responsibility, subject to father’s limited role in selecting an appropriate activity for A. during his midweek parenting time.

Residence

41Father concedes that A. should continue to live primarily with her mother, for now. He hopes to work towards a parenting arrangement whereby A. resides with both parents equally or almost equally.

The Best Interests Factors

42Father’s concerns regarding mother’s parenting abilities relate to her alleged mental health issues and his view that she is an “alienator”, who has unreasonably withheld A. from his care. Father accuses mother of exaggerating and lying about the extent of his aggression towards her. Mother’s main concerns are A.’s safety based on the family violence perpetrated by father, father’s longstanding untreated psychiatric problems and his inability to manage his emotions in front of A.

43As stated above, the factors enumerated in section 24 of the CLRA are not exhaustive and no single factor is given pre-eminence. The factors which figure more prominently or are given more weight in any given case depends on the unique factual matrix of each family. Here the alleged family violence and father’s mental health challenges occupied much of the trial. These concerns as well as mother’s alleged unwarranted withholding of the child are the most important considerations in determining A.’s best interests.

Family Violence

44I begin my consideration of the best interest factors with section 24(3)(j), the provision which applies to family violence. The mother’s testimony included an account of multiple incidents of verbal and physical attacks, over several years. The conflict in the parties’ household led others, including neighbours, to call the police. The evidence includes numerous police records from all four jurisdictions where the parties resided, namely Thunder Bay, Kingston, Toronto and Napanee, spanning the entire length of their 9-year relationship, with the Napanee OPP records being generated following their separation.

45The verbal denigration, which was misogynistic in nature, started prior to their cohabitation, and included comments like “women are bitches”, “you’re a c- - t.” Mother recalled that the first physical assault, a hard punch to her leg, occurred within a few months of the parties living together in Thunder Bay. Another argument ensued between them in the early days when mother questioned father after he had stayed out all night. A neighbour called the police to report the disturbance but no charges were laid.

46Mother testified about their first trip to Deseronto together to meet her parents. Just before the trip, while mother was on the phone to her father, the father was yelling loudly in the background, so that her father could also hear, calling her father stupid. The family conflict escalated during that visit.

47The mother testified that the father, who was wanting to make a pizza for everyone lost his temper when he was asked by her mother to stay out of the kitchen in the early morning as she prepared for work. She described him as moody, aggressive and yelling at her all day about this and her parent’s lack of gratitude. When the mother’s mother returned from work, she could hear the father yelling at her daughter and firmly told him to stop. The mother’s evidence was that he stormed out of the house and left. She was worried that he might harm himself as he frequently threatens suicide. She then became upset herself and decided to pack up and leave herself. She testified that while alone in the bedroom, she was banging drawers and threw a shoe. Her father called the police. Again no one was charged.

48The police came to the parties’ home in Kingston in June 2010, in response to an anonymous call. Mother testified that while the parties were having a discussion about their strained finances, father, whose employment was unstable, grew angry and was yelling at the mother and calling her names. The relevant excerpt from the Kingston Police Service record indicates the officers attended, observed no injuries, calmed the situation down and left.

49The anonymous caller is noted by the police to have said she could hear yelling, she heard a female crying and she heard the female say “Ouch, you're hurting me, you're bigger than me” and that this went on for about 10 minutes until it became quiet. This document also states that a constable observed some empty recycling stuff on the kitchen floor and the male advised he'd thrown it out of anger. The mother testified that she told the police it was a verbal dispute only, omitting the assault of being pinned down by the father or being physically hurt. No criminal charges ensued.

50Mother described another incident while they were living in Kingston. She was asleep after a long day at work. She recalled the father being angry that day and she woke up to his hand on her mouth and him shaking her saying “I'm going to kill you.” She testified that he reached over and crushed her glasses and kept holding her mouth closed, while repeating this death threat over and over again. She said it was not the first time he had held her mouth closed like that. In this moment, she came to believe that he is capable of acting on his threats to kill her. She explained that his outbursts are always worse at the end of the day or at night-time.

51Mother testified about another verbal and physical assault which occurred in Toronto in early 2013. At the time, she was working and the father was going to school. There continued to be financial pressure on the couple due to his lack of employment. Yet according to mother, the father blamed her for their predicament, and began yelling and name calling. She pleaded for him to stop. She described being pinned to the bed and testified that he had pinned her down “more than several times” during their relationship.

52When asked under cross-examination whether she would characterize these arguments as two-sided, mother responded that there were only a handful of times near the end of the relationship where she stuck up for herself and told him to “ f—k off” or “shut up.”

53It was mother’s evidence that following A.’s birth, father’s yelling was directed at criticizing her parenting abilities. She described a situation early on when she was changing A.’s diaper who was crying at the time and the father came into the room yelling at her asking “What are you doing to her?” The tone was clearly accusatory, implying that it was her fault the infant was crying and that she was somehow causing her harm or distress.

54Mother testified father’s criticism of her parenting abilities continued relentlessly. She described “walking on eggshells” to avoid angering him. She and the baby slept in the living room, leaving the only bedroom to the father as he grew angry when the baby disturbed his sleep. If he had music students over during the day, she decamped to the bedroom.

55The mother’s evidence is that he repeatedly told her he was worried she would turn out like his mother. The father testified he was mistreated by his mother in childhood. Mother elaborated that throughout their relationship he repeatedly threatened suicide and threatened to kill her. She said that things were at their worst after A.’s birth. She quoted him as saying “I'm going to kill you if you ever do anything to hurt her”; “Don't be like my mother.” “You are going to be like my mother.” She described feeling terrified.

56The mother testified that when father's mother, Cyndi Brizard, and her partner came for a rare family visit in August 2015, it was horrible because the father fought with his mother the entire time. This conflict occurred in the presence of A., which troubled her. Following the paternal grandmother's return home, she sent the parents an email imploring her son to cease criticizing mother, to assist more with the domestic labour and to act more safely around the child. The grandmother shared with her son that she told mother while there that it might be wise for her to refuse to get in the car with A. when he is driving. This was based on her own experience of his “road rage” and “reckless driving”, with A. on board, during that visit. She expressed her concern for A., if she grows up witnessing her mother being mistreated by her father in this way. She warned him, if he did not change, he stood to lose it all.

57Mother testified that on October 10, 2015, she was assaulted by the father in front of A., who was 4 months old at the time. According to mother's evidence, the father’s anger had been getting worse. She stated he was always comparing her to others. At this time, he was constantly comparing the mother to one of his female students in a negative way. During a meal which she prepared, she asked him to stop doing this. He lost complete control and went into the bedroom and started smashing things. He was screaming at the mother and calling her names.

58She picked up A. because she was afraid and warned him that she was going to call the police. He grabbed her phone out of her hand, smashed it on the floor and broke it. He went back into the bedroom and came back out with his boot. Mother was by the door because she wanted to flee but A. was wearing only a diaper. He yelled at her to move so she backed up into the kitchen where he attacked her with his boot, hitting her on the arm, back and legs. A chair was broken. Mother was able to escape and once in the apartment hallway, she asked a neighbour to call the police.

59The Toronto Police Service Occurrence Report for this assault notes that when the father was interviewed he disclosed that he had been suffering from deep depression for a long time, he had attempted suicide at the age of 15 and had been struggling with sleep deprivation for months on end. PC Linney’s notes recommend that if the court found the accused to be a candidate for release while his charges were pending, a condition for release ought to be that “he seek and maintain [emphasis added] mental health counselling.”

60Mother testified that when she was questioned by the police, it was the first time she admitted to law enforcement that the father was physically abusive to her. She even told them about an historical attack which occurred in New Orleans. This event led to criminal charges and the parties’ first separation.

61The mother and A. moved in to live with her parents for a few months. According to mother's testimony, during this time, she was under relentless pressure from father to reconcile, contrary to his release conditions, which included a no contact order. The father initiated contact with mother by email. These emails reveal that father was drinking and that he was feeling suicidal. Mother was worried and tried to respond by pacifying him and encouraging him. She said he always made her feel responsible for his mental health and that if she left him, he would commit suicide; if she told about the abuse, he would either commit suicide or come after her. She testified that she did not wish to reconcile but felt pressure to do so because of his suicidal threats. She didn't know what to do. As she put it, she felt stuck.

62The mother eventually acceded to his request to waive the no contact conditions. She conveyed her consent to the Crown that father could see his daughter publicly and that her mother would take the child for those visits. She testified that he pressured her to call the Crown and inform him that they were reconciling as he wanted the criminal charges dismissed. The constant background was his threats of suicide and pleas for help. Father admitted in cross-examination that he pressured mother, and also acknowledged that she was more interested in him getting help than him going to jail. As a result, the criminal matter ultimately resolved with some charges being withdrawn, a guilty plea to an assault and a 12-month peace bond.

63It was mother’s evidence that she eventually agreed to reconcile, on terms. The first condition was that the parties engage in couples’ therapy. By the third session, the father was complaining and unwilling to continue, despite the fact that mother was covering the entire cost. As part of a safety plan, mother demanded that when his anger got out of control, if she asked him to leave, he would respect her request. When father's anger predictably manifested itself, he refused to leave the household when asked. When father ceased participating in the couples’ counseling, the mother sought therapeutic help for herself. Within about six months of the attempted reconciliation, mother left the relationship permanently, coincident with the parties’ eviction. She returned to live with her family.

64The maternal grandmother testified. She had many opportunities to observe the father in a variety of contexts both prior to her grandchild's birth and afterwards. She observed the verbal abuse, which she described as being intense and upsetting. Several times she and her spouse implored the father to stop or to leave their property when his behaviour escalated in their presence. It scared her and she feared for her daughter.

65The maternal grandmother gave evidence about a series of incidents occurring between December 16 and December 23, 2017. On December 16, 2017 when the father came to pick up their daughter for his visit, he asked the mother for more time than their agreed schedule. He was holding the child in his arms at the time and would not leave the premises until she acceded to his request. He was yelling at her. The paternal grandfather, who was convalescing from a month-long hospital stay and was wheelchair bound, yelled back at the father to leave his property. Instead the father walked into the foyer of their home with their crying child in his arms. By this time the mother had called the police. They attended, spoke to the parents, then left.

66It is her evidence that on December 19, 2017, the father became agitated again when the mother refused his renewed request for extra parenting time. Once again, he raised this request while yelling at mother, with their child in his arms, while they were outside. A neighbor happened to walk past and observing the father’s display of anger towards the mother and grandmother, asked if they needed help. The neighbor testified that she intervened. She observed that mother was shaking and visibly upset. Mother called the police again. The grandmother believes the father was told by the police not to return to the property.

67The grandmother states that during this conflict the father set the child down in a puddle and she got her feet wet. Father responded with more yelling that the mother should change her boots and that he was going to call the Children's Aid Society. Indeed, two days later a worker from the Children's Aid Society came to their home to investigate his complaint. And two days after that, the father reattended at the home, contrary to the directive of the police. Thereafter the mother insisted the exchanges to occur at the OPP station until the parties wisely moved their exchanges to the supervised access service.

68In his written sworn testimony, the father accuses the mother of making many false, misleading or exaggerated allegations against him. He states that he cannot address them all except for the facts that he acknowledges in his affidavit. He goes on to state they had an unhealthy and toxic relationship and they both would engage in verbal arguments, hurling insults at one another. He acknowledges that, at times, his behavior towards the mother was “inappropriate”. In this affidavit, his singular admission of any physical assaults is in relation to his assault on mother in October 2015, for which he was charged.

69The hearing proceeded with the benefit of written affidavits, significantly supplemented and elaborated by evidence in-chief and cross-examination. During the trial, father admitted to calling the mother profane names. In answer to some of the questions about the family violence, he could not recall, or gave a partial concession that it could have happened. He admitted to threats of suicide. Apart from father’s blanket denial in his affidavit in answer to mother’s affidavit, much of mother’s subsequent, more detailed oral testimony about the family violence went unchallenged. Some of it is admitted to health care providers as set out in my review of those records.

70Throughout the mother’s oral testimony about the family violence, the father was noticeably agitated at the counsel table, making gestures and constantly whispering to his counsel. He glared at the mother. A couple of times, he laughed out loud inappropriately. Counsel for the mother objected that this conduct was distracting to her focus on her examination-in-chief of her witness. Initially the court declined to interfere with father’s ability to communicate with his counsel.

71Father remained unable to control his reactions quietly. Sometimes he communicated to his counsel so loudly he could be heard by the court, while the court reporter was contending with father's running commentary to his counsel coming through the microphone, simultaneously with the witness’s testimony. The court directed that he communicate with his counsel solely by passing notes. His disruptive conduct continued during his own counsel's cross-examination such that he interrupted the flow of her questions too and the whole exercise was taking much longer. So, I directed that they use the mid-day recess to ensure that upon court resuming, this disruption would finally cease.

72On cross-examination, the mother was asked about why she did not leave the relationship. That verbatim exchange went as follows:

Q. And this total control - you were not able to exercise your will? You were, and this, you know continued for a very long, long time. And there were different exit points that you could have taken, right? A. There were.

Q. And you never did?

A. I never did.

Q. You're an educated woman?

A. I am.

Q. You are seeing mental health counselors?

A. I am.

Q. And somehow during this whole period, you weren't able to find a way to separate from what you said was like a lifetime of terror?

A. It was a lifetime of terror. I couldn't break free. Ryan was extremely dangerous. He constantly threatens suicide and every time he does, I felt responsible. I felt if I left, was he going to commit suicide? If I left, was he going to kill me? There was never- I- there was never a way for me to describe what it was like to be with Ryan except for the fact that I was afraid of those two things.

The inference underlying this line of inquiry is that if the abuse was truly so terrifying, the mother would have left sooner. There is a myriad of understandable reasons why victims of family violence do not or cannot leave their abusive relationships and fear is certainly one of them.

73The cross-examination continues:

Q. You didn't actually even start a court proceeding right?

A. I started looking for lawyers pretty much right away and I retained a lawyer in August.

Q. That was a considerable time when you-I mean at that point, you were free of him right?

A. I don't think I was ever free of him until the court process started. I still don't feel free.

Q. Right. And is this something that might be- you know, this sort of frame of mind of losing one’s will in relationships, is this something that you know- you're vulnerable to that? It could happen again.

A. You know, I have always had amazing relationships before Ryan and I have an incredible relationship now. Ryan was the only abusive partner I have ever had and I waited quite a long time before getting into a new relationship as well, to change that mindset.

This exchange, along with her evidence about her therapeutic supports, leads me to conclude that mother does not demonstrate a pattern of vulnerability or poor choices in relation to intimate partners that potentially exposes her or their child to excessive adult conflict or family violence.

74The mother's account of the family violence was compelling and forthright throughout. Her oral evidence was consistent with her prior written sworn testimony. When she thought she had slightly mis-stated something in her narrative, she corrected herself or elaborated. She described at least one assault in the witness stand that was not detailed in her earlier affidavit. Father was asked about it in-chief and he denied it.

75I do not conclude from this that mother is now fabricating new events. Rather any previous omission is likely emblematic of her suppression from memory of every single traumatic event she endured as a psychological defence or survival mechanism. This phenomenon of memory repression as a means of avoidance and denial of past trauma is recognized by the Supreme Court of Canada in relation to victims of sex assault. See M.(K.) v M.(H.), 1992 SCC 31. In any event, mother explained that her affidavit material and oral evidence did not include each and every assault. Nor do these reasons reference every incident the court heard about.

76In sum, I find the mother’s testimony to be credible. I accept father’s evidence that she too manifested moodiness and became angry, at times. But where her evidence regarding numerous outbursts and attacks directed at her conflicts with that of the father, I accept her account of the material facts. I conclude that she suffered sustained family violence at the hands of the father, including verbal abuse, coercive and controlling conduct, physical assaults and threats of physical harm, including death threats. All too frequently father’s attacks took place in the presence of their child.

77Following a finding that family violence has occurred, section 24(4) of the CLRA directs the court to consider its impact on the parenting order. Under section 24(4)(g), this entails an assessment of father’s insight into his conduct and any steps he may have taken, or ought to take, to mitigate the future risk of harm. Father's lack of impulse control and angry attacks are part and parcel of his mental health issues and, accordingly, must be considered in tandem with those findings when crafting a parenting order that serves A.’s best interests. Therefore, my consideration of the impact of the family violence on remedy is laid out after my findings about father’s mental heath. Their impact on my determination of the appropriate parenting arrangement is considered together at paragraphs 118 and 125 to 134 below.

The Parents’ Mental Heath and Ability to Meet the Child’s Needs

78Section 24(3)(h) of the CLRA directs the court to consider each parent’s willingness and ability to meet the needs of their child. A parent’s mental health status may adversely impact his or her ability to parent and meet those needs. As part of father's explanation about the parties’ relationship conflict, he testified that mother was moody and could be volatile. Mother acknowledges she used to experience anxiety, some sadness and irritability around the time of her menses when the parties were together. She denies being hostile or the instigator of their constant conflict. She was originally treated by Dr. Stewart at Lakehead University and prescribed paxil for this anxiety. She denies telling the father she was diagnosed with borderline personality disorder (“BPD”) and testified that BPD was her own working hypothesis to explain her anxiety and moodiness and father has ceased on this alleged diagnosis.

79Mother testified that she consulted a psychiatrist following separation because she knew she needed help with her menses and the impact of father’s abuse. Dr. Stakheito formally diagnosed her with premenstrual dysphoric disorder (“PMDD”). This is an endocrine disorder and its symptoms may include irritability, anxiety and depression. Mother is prescribed wellbutrin, to be taken in the morning, and seroquel for nighttime use, if required. She explained that she is compliant with her medication regime and the medications are successfully managing her hormone imbalance.

80Mother has also been diagnosed with post-traumatic stress disorder (“PTSD”), which she says arises from the father’s mistreatment of her. She engaged in counselling for this, including cognitive behavioural therapy (“CBT”). Apart from suggesting that mother’s alleged BPD was as much to blame for the parties’ conflict as his own mental health issues - a suggestion that I reject - father did not provide any examples of troubling parental conduct by mother that relates to any perceived or actual mental health disorder. His central complaint is that her efforts to limit his parenting time are unjustified.

81Mother has accessed a variety of therapeutic services for both herself and their child. She received some counselling from Michelle Rivet. She participated in a group program based on an inter-generational trauma treatment model that she testified was designed to help abused women learn how to parent without fear. She described it as being very helpful. At the time of trial, she was in therapy with Maggie Hogan, who she had seen immediately following the parties’ separation. She completed a parenting program aimed at assisting parents to cope with toddlers.

82Contrary to father’s assertions, I conclude the mother’s mental health status is stable. Her family violence victimization provides important context to her approach to parenting and her interactions with the father. Mother shows insight into the emotional and psychological issues that she and A. have faced and may continue to face and accesses appropriate services to promote the well being of herself and her child.

83When the parents first met, the father shared with mother that he suffered trauma in his childhood family life, that he was hospitalised at age 15 because he was feeling suicidal and that he was diagnosed with bipolar disorder. The mother, the maternal grandmother and the paternal grandmother collectively gave evidence about father’s irritability, impatience, moodiness, depression, sleep disturbance, suicidal ideation, mistrust, verbal abuse, angry outbursts, physical aggression, unpredictability, volatility and general inability to regulate his emotions and control his conduct. Both mother and the father's own mother have felt compelled to call the police for a wellness check when concerned about father’s mental health status, When it was put to the mother on cross-examination that she made false reports to the police she replied: “I have never made a false report. I could not manage Ryan's emotions on my own.” This begs the question, how A., a 6 year old child, can be kept safe and secure during father’s parenting time, when he is so emotionally dysregulated.

84The mother is not the only target of father’s anger. His relationship with his own mother, who father describes as abusive to him during childhood, is fraught with conflict, although they have minimal contact. The court heard evidence about several harrowing incidents of road rage, one which occurred when the paternal grandmother and A. were in the vehicle. There is evidence that father lashed out at professionals who were trying to help him or his family, including a staff person at the supervised access centre and his own criminal lawyer.

85A report of the Children’s Lawyer dated December 5, 2018 was authored by Karen Poole, MA, MSW, RSW. She reported and also testified that the collateral information she received and reviewed from CAMH reveals that the father has been diagnosed with bipolar disorder but is not taking medication.² She notes that a referral to Kingston General Hospital was not followed through by father.

86Denial and minimization are commonly manifest where a parent engages in family violence. Mother testified that father used his diagnosis of bipolar disorder with the Crown as a mitigating factor in his assault on her. She remarked that he has consistently denied or rejected the accuracy of this diagnosis; this is borne out by his own oral testimony. She testified that she believes his participation in the Partner Assault Response Program (PARS) was to satisfy the criminal court but that he shared with her that he did not believe in it, he was not deriving any benefit from it and he did not like or respect the instructors, one of whom he called derogatory names.

87By contrast, father’s affidavit evidence is that he gained a great deal of insight from the PARS program and learned ways to better manage his behavior. He points to the report which confirms that he was a good participant, willing to share and question, that he made an excellent effort in his homework and that his letter of acknowledgment was extremely insightful. In the PARS Completion Report, which was prepared for the Crown, father is given the highest score of four for his homework completion and attendance. He was given a score of three, which is satisfactory, for his acceptance, that is, admitting the violence and identifying its effects; self- disclosure, that is focusing on himself rather than the victim; and group participation. The author of the report recommends that father participate in a Caring Dad’s program to assist him in learning healthy interactions with his child. Father did not follow through on this recommendation.

88In this affidavit evidence, father states that he was deeply remorseful for his actions that led to the charge, that he has made valiant efforts to learn to first identify the core issues that cause this behavior and ultimately deal with his emotions in a positive way. I accept that father was engaged and learning while participating in PARS back in 2017, but any insights he may have gained or feelings of remorse appear to be short lived, based on his presentation and all of the evidence received during the trial. His inability to regulate his emotions, including anger, is far from resolved. He assaulted the mother again following the resolution of his criminal charges and their reconciliation. He continues to engage in minimization and denial. Perhaps this reflects the shortcomings of a 12-session program in addressing a chronic anger management problem, in any sustained way.

89The father tendered the clinical notes and records generated by Addington Mental Health Services (AMHS) from February 2017 to November 2020. The referral to this service was made by Dr. Martin, the doctor on duty, when father attended in a state of crisis at the Lexington and Addington Hospital. Although the parties were separated at the time, the record indicates that the mother was also in attendance at the hospital in a supportive role.

90Father had intermittent phone and in-person contact with various workers at AMHS. The notes appear to have been made contemporaneously with the entries dated, and the workers’/record keepers’ names. These records reveal that father described growing up in a critical and invalidating environment and that his childhood experiences have resulted in his emotional distress and poor coping. He is noted as presenting with emotional dysregulation and distress intolerance and a reluctance to follow through with recommendations for psychiatric assessment or treatment. His presentation is variously described by workers as aggressive, angry, apathetic, anxious, defensive, and depressed. He self-reports low motivation, poor diet and using marijuana to escape his emotional pain. He describes living a transient life and lacking income security or steady employment.

91There are notations for some missed appointments, without prior cancelation, including one to assist him in finding housing. Lastly, the notes indicate that in August 2020 an anonymous male caller contacted the AMHS crisis line and informed the worker he had been temporarily housing Mr. Birbilis for the last two weeks, after he had broken up with his girlfriend. The caller reported that father was being disrespectful, he was not keeping the house clean, and he was “escalating” to the point where he was asked to leave, which he did. The caller was worried because he left without his belongings or his car. According to this record, the worker discussed potential risks with the caller and advised him to contact the police, if necessary.

92A parent’s insight and corresponding willingness and ability to reduce the risk of harm during parenting time is a central question in any case involving family violence. This inquiry is directed by section 24(4)(g) of the CLRA. As there was little current, independent evidence about father’s post-separation treatment, I directed that father call his former therapist, Jeff Posterski, as a witness. And since father testified he was unable to follow Ms. Poole’s recommendation that he be psychiatrically assessed due to systemic barriers in accessing a referral, I also directed that he call his family physician, Dr. Glatt, as a witness. The evidence from these two participant experts assisted the court in assessing father’s participation in and commitment to therapy and in formulating future diagnostic and treatment requirements, as part of this family’s overall parenting plan.

93Jeff Posterski, BA, BEd. Med, RMFT, RP, is a psychotherapist with some 30 years of experience. Father was referred to Mr. Posterski by AMHS. He provides a therapy called Eye Movement Desensitization Reproceesing (EMDR). He engaged in EMDR therapy with father for a total of 13 sessions between November 30, 2018 and April 23, 2019. He explained this therapy was first developed to assist war veterans with PTSD. It entails a process of setting goals with a checklist that identifies targets, that is, things which cause the client to be “stuck”. These could be memories, thoughts or behaviours. The therapist must assess the client’s readiness for the actual EMDR. The client is then helped to access traumatic memories while simultaneously focussing on external stimuli, namely therapist facilitated rapid eye movements. The ultimate aim is to access traumatic memories and then forge new more adaptive memories to alleviate the trauma.

94Mr. Posterksi testified that their therapy sessions were focussed on two of father’s childhood abuse memories. Their therapy ended because the funding for it from AMHS ran out, not because the therapeutic work was determined to be complete. He explained he offers on-going therapy on a sliding scale but had no recollection of father asking about whether their therapy could continue.

95Dr. Daniel Glatt is the father's family physician. He provided his clinical record and gave oral evidence. His record contains a consultation report dated December 16, 2015 prepared by Dr. Imraan Jeeva, a psychiatrist at CAMH. This report notes that father was referred for “diagnostic clarification around a history of depression with antisocial personality traits.” This referral arose in the context of father's criminal proceedings.

96The assessment report by Dr. Jeeva reveals father's self-reporting that he feels largely irritable and angry. He experiences some sadness and a lot of anxiety. He has experienced multiple episodes of depression throughout his life, some lasting longer than others. He also reports periods of elevation in mood. During these episodes, father experiences inflated self-esteem, irritability, racing thoughts and pressured speech. He only sleeps three to four hours nightly. Father reported to Dr. Jeeva that he experiences chronic anger. He described conflict in relationships and reported a history of being verbally and at times physically abusive towards his partners. He reported an increased use of alcohol when he is feeling anxious; there is a notation about a previous charge of “drunk and disorderly.”

97There is no discussion of father's childhood abuse in this report although father shared that his mother and maternal grandmother both suffered from depression. There is no diagnosis of PTSD. Dr. Jeeva’s report provides a provisional diagnosis of bipolar II disorder and anti-social personality traits. Even though Dr. Jeeva comes to the same diagnostic conclusion, albeit provisionally, as the psychiatrist who treated father in his teens, the father rejected this diagnosis in his testimony, as he has to various health care practitioners, with whom he shared this diagnosis.

98The discussion about treatment in this report reveals that previous medications include paxil, luvox and wellbutrin, and, further medications provided no benefit. We know from father's testimony that the last time he tried taking medication he was 18 years old. The report goes on to say he denies medical issues, does not take any medications and wants to avoid any medication if possible. Nonetheless, Dr. Jeeva set out a treatment plan that suggests two different medications, and includes recommendations for dosage, including initial dosage levels and dosage increases overtime. Dr. Jeeva also told father that omega-3 fatty acid may be helpful in managing some features of the bipolar II disorder and gave him an OHIP based resource for CBT.

99Both parties asked the court to make a finding about father's efforts to secure a psychiatric assessment. The OCL report notes that the father agreed to get a family doctor and request a mental health assessment. The father submits that he was unable to obtain such a report for trial because of difficulties in accessing psychiatric assessment services. In his oral testimony, father gave little detail from which the court could draw this conclusion, as he could not provide a cohesive narrative about his efforts. He tendered a handwritten note which includes three notations, one for November 3, 2019 and November 8, 2019 which both say “Dr Glatt – refused.” The next notation is for November 22, 2019 which says “Dr. Moynes to sent.” Mother questions his diligence.

100Father became a patient of Dr. Glatt on September 15, 2020. Dr. Glatt obtained the records from Lennox and Addington County General Hospital. From this and the balance of the health records submitted, I was able to reconstruct father's attempts to access psychiatric services. The question of whether father was diligent in seeking out an assessment and whether he pursued treatment is important to the required determination of his insight into his mental health issues and, specifically, the impact of his emotional dysregulation on the future parenting arrangement, particularly if he rejects medical advice. It is relevant to the assessment of future risk of harm.³

101Father had seen Dr. Glatt on November 3, 2019 when he attended at the Lennox and Addington General Hospital seeking a psychiatric assessment for these family court proceedings. He had no family physician at the time; nor did Dr. Glatt become his family physician at that time. This was almost a year after the OCL report was released, which contained that recommendation. Father is described as “upset ++”, yelling and angry, with a labile affect. Dr. Glatt informed father that the Kingston General Hospital chart included a referral to mental health services, with a notation that he needs an assessment through CAS or via court order of family court clinic at Hotel Dieu Hospital. The clinical record reads that this information was provided to the patient.

102The subsequent clinical note dated November 11, 2019 from the Lennox and Addington County General Hospital is authored by Dr. Nathaniel Hart. He notes that father misplaced the information previously given to him by Dr. Glatt so he was again provided with contact information for these services.

103The next clinical note dated November 22, 2019 is authored by Dr. Derrick Moynes who suggested a psychiatric referral would be helpful to clarify his history and to explore a possible PTSD diagnosis. Dr. Moynes arranged a referral to Ontario Shores, a mental health facility in Whitby. The last clinical note in this sequence is authored by Dr. Kimberly Morrison who records a letter was received from Ontario Shores indicating the file would be closed as they do not provide assessments when the patient is primarily concerned with applications for ODSP insurance, legal proceedings, or CAS assessments.

104I reviewed Dr. Glatt’s clinical record from September 15, 2020 to January 17, 2021. On November 24, 2020. Dr. Glatt notes that the father wonders whether he has PTSD related to a history of child abuse at the hands of his mother. Dr. Glatt notes that he was to obtain a court ordered mental health assessment and that Dr. Moynes referral was declined due to legal issues. Dr. Glatt advised the father to go back to his lawyer. The note goes on to say he is relatively stable at this time and not requiring meds today. The patient is to self- refer to the Centre for Trauma Therapy. The patient is to ask his lawyer why he is not being referred. He notes he will request CAMH and other psychotherapy records and that his patient is to follow up with him to consider meds once received. The next notation on December 7, 2020 is: “CAMH received. Bipolar disorder. Recommended quetiapine.”

105The December 8, 2020 notation indicates that the father called to cancel his scheduled appointment that day and rescheduled it to December 10, 2020. On that same day, December 8, 2020, father's counsel contacted the doctor’s office and left a message asking if a psychiatric assessment could be arranged for him on an urgent basis. On December 10, 2020, father cancelled his appointment again and rescheduled to February 17, 2021. On December 14, 2020, Dr. Glatt sends a note to his assistant which reads “Please contact patient per psych recommendations. If he would like to see me for mental health, not related to legal issues book him a follow-up”. On December 21, 2020, Dr .Glatt sends his assistant another note informing her he had reviewed the psych notes and says “They suggest bipolar disorder and a similar treatment for this and PTSD which we can certainly start if patient wants to book follow-up.”

106On January 11, 2021 the father finally sees Dr. Glatt in person. This notation attributes a statement to the father that there are “multiple false allegations against and his current GF.” The notation states that father disclosed a history of childhood abuse, describing his childhood environment as volatile and violent. He experiences emotional instability, feelings of panic and activation of fight and flight response. He experiences triggers and feeling confined when people are walking behind him. This section of the notation ends by saying: “We need to continue to explore possible dx”. The notation includes insomnia having been reported and Dr. Glatt reviewing sleep hygiene, CBTicoach with the patient. Under the heading PSTD there is a notation: “given info for centre for abuse and trauma therapy again; [emphasis added] encouraged to refer. Declines meds today, declines psych referral for dx clarity”.

107On January 17, 2021 Dr. Glatt responds to a letter from father’s counsel dated January 11, 2021 trying to explain the psychiatric referral process. The letter states: “Several referrals were made by my colleagues previously all of which were refused.” Having read every clinical note presented in evidence, from 2015 to the present, there appear to be two referrals. One was to mental health services in Kingston, which required a court order, as explained to the father repeatedly. The only other doctor who appears to have made a referral was Dr. Moynes. Dr. Glatt notes his own call to the psychiatry department at Kingston Health Sciences who indicated they required a court order. There was no evidence the father contacted the psychiatry department at Kingston Health Services himself, to receive this information directly. In fact, the notes reveal he was provided with this phone number more than once. Father was urged to self-refer to the Center for Abuse and Trauma Therapy. He did not do that. Dr. Glatt testified that their fee structure is a sliding scale geared to income and the service providers are social workers.

108The clinical notes reveal, as set out above, that Mr. Birbilis was informed multiple times he needed a court order in order to get this assessment. This would have been easy enough to obtain on consent. The OCL recommended a psychiatric assessment at the end of 2018; mother certainly wanted it done. A request for the court to order the psychiatric assessment as recommended could easily have been made on consent. The court has the jurisdiction to make such an order under section 105 of the Courts of Justice Act as well as under section 28 of the CLRA, both old and new.

109The court has no doubt that there were and are barriers to accessing both psychiatric assessment services and psychiatric treatment. The mental heath care system can be dauting to navigate. That said, based on my review of the evidence, I conclude that the father did not make the effort he could have and should have to follow this recommendation as he indicated he would to Ms. Poole back in December of 2018. He was not without professional supports, including his counsel, who could have obtained the order he was told he required.

110Further, there was always the option that the father could have sought a psychiatric referral for his own treatment, and not for the purposes of litigation. In 2015, the year of the assault which led to criminal charges, the father went to CAMH. A provisional diagnosis and treatment recommendations were made. He rejected the diagnosis and did not follow the recommended course of treatment.

111On September 26, 2018, Malcolm J. released her decision arising from an interim motion in these proceedings when they were in the OCJ, prior to the Family Court unification. Malcolm J. remarks on father’s rejection of the diagnosis from CAMH. At paragraph 88 of the ruling the court states:

The father clearly had or has issues of aggression and emotional dysregulation. The father may benefit from a parenting program and a program to help him better understand the impact of domestic violence on families and children and to have better communication with the mother. If his family doctor can make a referral to a psychiatrist to review his previous diagnosis of bipolar disorder these issues of whether the father is addressing his mental health needs could be better addressed.

Clearly father did not heed the court’s recommendation made in the fall of 2018 either. Notably this was prior to the OCL recommendation that he obtain a psychiatric assessment and follow through with treatment recommendations as a condition to overnight parenting time.

112More recently, the clinical notes of his own family physician indicate treatment would be helpful if the patient wants to follow up and that he believes a psychiatric referral would be beneficial for diagnostic clarity but this was declined by the father, who at the time, was in the middle of this trial.⁴ In his letter dated January 17, 2021 to father’s counsel, Dr. Glatt says it is difficult for him to respond to her query about whether the father needs an independent psychiatric assessment at this time for ongoing mental health conditions. He cites the early stage of their physician-patient relationship and notes there is no clear indication of an emergent psychiatric assessment, such as a form 1. He goes on to say that a decision about whether a psychiatric assessment is warranted is determined collaboratively with the patient and physician, based on a diagnosis of a mental health condition that is challenging to manage in primary care.

113Father does not accept his diagnosis of bipolar II disorder. He is unwilling to consider or try a course of medication that might regulate his moods and offer him some relief from his obvious suffering as recommend by Dr. Jeeva, Dr. Glatt and the OCL clinical investigator. He rejects western medicine as a means to resolve his mental health issues. The father is very willing to share his past and current symptoms as well as his own views about their genesis to various health professionals. But he is unwilling to follow their treatment recommendations. He believes he suffers from PTSD but no such diagnosis has been made; indeed he declined his current family physician’s recommendation that he obtain diagnostic clarity. There may well be comorbidity. Father has undertaken 3 short courses of counselling or psychotherapy, including PARS in 2017 as part of his criminal proceedings, 13 sessions of EMDR therapy in late 2017 and early 2018; and a 6-session CBT group therapy in 2018.

114Dr. Glatt provided helpful general opinion evidence that relates to father's mental health presentation. He explained that sleep deprivation can affect one's cognitive abilities, reflexes, sense of judgment and executive functions. He testified about the importance of getting the diagnosis right, as the diagnosis informs the recommended treatment. For example, if father does not have a bipolar aspect to his mental health disorder but rather is depressive or has PTSD, this might lead to entirely different treatment recommendations. Dr. Glatt also testified it is fairly common for persons with mental health disorders to deny they need help.

115Father's mental health challenges clearly adversely impact his ability to parent. He is easily frustrated and quick to anger. Examples of his many outbursts and assaults in front of A. when the parties were together, are detailed in the section on family violence. There is ample evidence that A. has witnessed her father's angry outbursts toward members of her family, on both sides, as well as others in the community. Father's inability to manage his emotions, particularly his anger, continues to manifest.

116Father’s mental health disorder, whatever it is, impedes his overall functioning. He does not enjoy family relations or support. He does not have any longstanding friendships. His relationship to his girlfriend Rachel, who has her own mental health challenges, appears unstable. His housing and residential history post-separation shows instability. He is not engaged in full-time employment, despite his limited parenting responsibilities.

117The court recognizes that stigmatization of those who suffer from mental health challenges remains a societal problem. It may be difficult for someone with a mental health disorder to seek out, much less accept, a mental health disorder diagnosis. And as noted by Ms. Poole, in her report:

It is understood that medication may have some unwanted side effects in some people that may lead some to choose not to take it. However, stability is the goal here for A. and there must be evidence that Mr. Birbilis is able to maintain this and not engage in angry behavior before he can increase his parenting time.

I concur with this observation and the recommendation.

118Based on Dr. Glatt’s testimony, I am confident he can assist father in a referral for a psychiatric assessment as it will now be court ordered. I am also confident that Dr. Glatt can provide appropriate referrals arising from any new diagnostic findings, and perhaps be part of his therapeutic team, whether in an oversight role or more directly. But this will require the father’s active participation. To his credit, father has agreed that this ruling shall be provided to Dr. Glatt. This is the key to any expansion a father's parenting time. He must not only present a comprehensive mental health treatment plan but must demonstrate his commitment to it with positive observable behavioural outcomes. Hopefully, this time father will be more motivated to follow recommendations with the goal of enhancing his relationship with his daughter. As importantly, it is hoped father's full participation in a mental health plan, will provide some relief to his obvious long-standing suffering and improve his overall functioning and well being.

119There is no doubt that the father loves A. deeply and wants to be a bigger part of her life. Prior to her birth he handmade all of her cloth diapers. When she was only a few months old he knit her a mermaid costume for Halloween. A few years later he knit her a beautiful sweater with pink horses on it. The photograph of A. wearing that sweater was submitted in evidence with father’s note that A. likes the colour pink and loves horses. These creations were clearly a labour of love. Father enjoys various activities with A. including making crafts, playing music and taking part in community activities.

120The observation notes from the supervised access facility were quite voluminous. There were many notations made by the family monitors that the father was affectionate, playful and engaged during his supervised visits. A. is observed as responding in kind with play, laughter and hugs. Apart from the refusals in January of 2019, A. is observed to go willingly, to be comfortable in her father's presence and to part from him without any difficulty. This is not to say the observations of father at the supervised access centre are all positive. Indeed there were some problems referenced elsewhere in this decision.

121Three of father's witnesses, in addition to his mother, testified about their observations of the father's parenting abilities. Rachel Fox, father’s partner, testified that he was attentive to A. when they were all together. She believes she also has a good relationship with A.

122Following father’s relocation to Deseronto he lived with different people he met in the community. He met Kim Pollard, a chaplain at the Waterfront Pub one night. She learned that he was living in is car and took him in for about a month. She admitted on cross-examination that he got into some conflict with her partner, who he yelled at.

123Father started attending the Morning Star Mission, a grass roots Christian organization focused on food insecurity. Sometimes father would help out in the kitchen or volunteer at the Women’ s breakfast group. He took A. there sometimes. He met Evelyn Wannamaker and Kevin Alkenbrack at the Mission, who both testified. Ms. Wannamaker testified that father and A. were “very good together.” She observed that the father was affectionate with A. and that he disciplined her properly. Mr. Alkenbrack testified that father was attentive and that he encouraged her to eat her vegetables.

124Rachel introduced father to the Hay Bay Evangelical Church, where he met Maurice and Wanda LaRose. They also took father into their home on Big Island from August 2019 to January 2020, when he appears to have been separated from Rachel. Father testified that he was struck by their kindness towards each other and the lack of conflict in their relationship. Father also said that he turned to alcohol when depressed and said that while living with them he abstained from alcohol for five months, noting that they had a positive influence on him. Wanda and Maurice observed father’s parenting of A. Wanda described father as a very loving, doting father. Maurice testified that the father was vey affectionate and playful with A. They both knew about the investigation into Rachel. It became apparent from their cross-examination they were unaware of father's past history of family violence. Oddly, from the time each of these two witnesses entered the courtroom until their departure, father avoided all eye contact with them. While father was sitting at the counsel table during their testimony, he turned his body away for them to face the outside window and kept his gaze outside. When they came out of the witness box and walked past him at the counsel table, he again moved to avert any eye contact. There were other times during the hearing where father was obviously disengaged. Sometimes he appeared to be asleep and other times his body was partially turned away from the bench while he looked outside, seemingly oblivious to the testimony being given.

The Impact of the Family Violence on Remedy

125Section 24(3) frames the inquiry into the impact of the family violence in crafting any parenting order. Sections 24(3)(e) and (f) specifically invite consideration of provisions that not only shield a child from potential exposure to conflict or other harm, but protect other family members, including the person against whom the family violence was directed. The language in section 24(4)(f) clearly encompasses emotional safety. In practical terms this means the court must carefully consider provisions about when and where family members can be together. Provisions relating to the exchanges of the child from one parent to another, who can be present at the child's activities or lessons, whether parents should attend parent teacher interviews together or separately and whether parents should attend medical appointments together or separately should all be detailed, having regard to the safety concerns.

126In the family violence context, exchanges of the child are commonly required to occur at the child’s school, at a supervised access service or some other neutral, safe location. Such provisions were in place here for over 3 years, until the summer of 2020. Mother gave evidence about her efforts to manage her own fear and emotions in father's presence at transfers. She works hard to be cordial and appear calm for A.’s sake. If father escalates, mother placates. Both parents testified their interactions at transfers had improved when mother moved in with her partner and the exchanges occurred in her driveway. But after father listened to mother’s testimony at the trial, he became quietly hostile at the subsequent exchange. Should father revert to discussing parenting issues or behaving in a hostile or disrespectful manner at these exchanges, they shall return to a supervised setting.

127Similar attention must be given to any provisions about the parents’ participation at the child's activities or lesson. A child would certainly prefer to see both of their separated parents attending their sporting or other activities together. That said, children are highly sensitive to their parents’ feelings and the dynamic between them. If an abused parent feels anxious, tense or fearful in the presence of their former intimate partner, then it is the abusive parent who ought to be restricted from attending the child's activities or events in the presence of the other parent. This protects the child, while acknowledging that the impact of family violence on the family member at whom it was directed is often long lasting. In this sense, sections 24(4)(e) and (f) invite a trauma informed, risk reduction approach to the provisions in parenting orders where family violence has been found.

128In light of mother’s understandable anxiety and fear in father’s presence and his inability to manage his emotions and behavior, I find it is in A.’s best interests that they not attend A.’s activities at the same time, unless the mother feels safe doing so. Therefore, the parenting order is structured so that mother is in control of when the activities are scheduled. If she schedules activities on the weekend, which may fall on father's parenting time, it will be her choice whether to attend or not. But if A. is engaged in an activity during mother’s parenting time, father shall be prohibited from attending. Mother shall have sole decision-making authority for all activities and lessons, subject to father’s authority to select an activity to occur during his mid-week parenting time, in consultation with mother.

129The parenting order will not prohibit mother from scheduling an activity for A. on father's parenting time, despite that it is relatively limited. In my view, a child’s participation in athletic, artistic, musical or other community activities or lessons is an important aspect of childhood development, if it is available and accessible. A child’s participation should not be sacrificed simply because it occurs on someone’s designated parenting time. To the parent this may feel like an intrusion on their parenting time. In reality, it is the child’s time. A parenting order which supports this important aspect of a child's development by requiring both parents to be responsible for the child’s attendance and engagement, is child focussed. Parental consensus and co-ordination about activities and lessons is obviously the preferred approach. But when parents cannot agree, or where there is high conflict, an approach which permits activities that are suited to the child to be scheduled when the are offered ensures the focus remains where it should be, namely, on what is best for the child. Companion provisions which stipulate whether parents can attend together or not, will likely be needed in many family violence contexts.

130The expectation is that father will be responsible for researching and selecting an activity for A. that suits her interests and skills, to occur during his mid- week parenting time, during the school term or the summer, or both. Father testified that he wanted to be more involved in A.’s activities He should consult with mother about this, in writing. He shall also be responsible for any registration fees. Currently father's parenting time is unstructured. He is seeking to expand it considerably. Thus far most of his parenting time has occurred in the presence of or with the support of others. Father’s approach to selecting and engaging A. in a structured activity will provide the court with the opportunity to assess his parenting skills as well as his interactions with his daughter’s service providers. This assessment is relevant to any contemplated expansion or review.

131At mother’s election, the parties may attend parent-teacher interviews together or separately. The advantage to the child when parents attend together, where there is high conflict or poor communication, is that this ensures both parents receive the same information at the same time. It limits the possibility for different interpretations or disagreements about the teacher’s comments regarding their child’s educational progress. This minimizes the possibility for parental conflict about the child's educational needs and how they can each assist. This does not preclude either parent from seeking one on one contact with their child's teacher. By October of every school year, mother shall convey her election so that if she chooses for these parent-teacher interviews to occur separately, it will be up to the father to make his own arrangements directly with the school.

132Mother shall be solely responsible for making all A.’s health related appointments and decisions. A. should not be exposed to any disagreements regarding her health care. The court received ample testimony that father can be reactive. Mother shall attend these appointments with A. alone.

133As already noted, section 24(4)(j) entails an inquiry into any steps taken by the person engaging in family violence to prevent further family violence from occurring and improve the person's ability to care for and meet the needs of the child. Father’s participation in the PARS program only lasted a matter of weeks and any lessons he may have learned from it were not manifested in his written or oral testimony. While father attributes his own mental health struggles to his mistreatment as a child, he does not seem to recognize the same connection between his mistreatment of A., by exposing her to constant conflict and aggression, and how it has caused and could continue to cause her emotional harm, if he does not learn to manage is emotions. Sadly, father is both a victim and a perpetrator of family violence.

134Having considered all of the evidence before me, I conclude the parenting order here must provide concrete ways in which father can improve his ability to care for and meet the needs of his child. Given the complexities of his mental health challenges, this will likely require sustained therapeutic work. Therefore, pursuant to section 28 of the CRLA, father shall be required to participate in a mental health assessment and develop a comprehensive mental health management plan. Until such a plan is in place, there shall only be a minimal expansion of his existing parenting time, during holidays. And overnight access shall not be considered until father can demonstrate a sustained commitment to this plan, with corresponding improved conduct. There is no factual or legal basis for imposing an automatic review when A. turns 9; this requested relief by father is dismissed.

The Parents’ Willingness to Promote a Relationship with the Other Parent.

135Section 24(3)(c) requires the court to consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent. Father asserts the mother is unreasonable and withholding in relation to his parenting time with A. He believes she is engaging in “parental alienation.” Both parents testified about the various parenting arrangements following their separation and the expansion of father’s parenting time. While mother has, at times, restricted father’s parenting time, a finding of alienation is not supported by the evidence.

136According to mother's testimony, immediately following her relocation to Deseronto in February 2017, she arranged for Skype calls between father and A. to occur every day. These calls lasted between 15 minutes to an hour. A. was only 20 months old. When describing her final departure from the relationship, mother testified that: “It wasn't about taking her away; it was about protecting her from all the chaos.”

137Mother gave evidence that after about a month, the father just showed up in Deseronto without prior notice at a play group he knew they attended. He expected mother would allow him to move in with her and her family. In the face of their refusal, father was living in his car, despite mother having paid for hotel accommodation for him. She testified that during this time all of his visits were on demand as she was too fearful to say no. These visits initially occurred daily and then every other day as father began to focus on securing accommodation. Mother was always present. They went on walks or to the park.

138The mother located a Daddy and Me program that was taking place at the same time she was participating in a course called Coping with Toddler Behavior. This program ran weekly for a couple of hours. Mother explained that the aim was to give father time with A. in her absence, in a supportive environment, while she was nearby. During one such attendance at the Daddy and Me program, the father left the building, with the child, without notifying mother that he had done so or where he had gone. When she discovered they were gone, he refused to answer her telephone calls. She looked nearby and eventually found them in a grocery store parking lot. She recalled that when they were together, father had sometimes refused to let her leave the house to go to a play group or go for walks with A. During this same time frame, father had threatened to take A. from her. Father’s impulsive departure from the program, without notifying mother, frightened her, as she believed he was acting on his threat to take A. away. Mother testified that father was often hostile towards her during these visits.

139When mother started working, she was no longer able to arrange parenting time on demand. The parties agreed to a schedule whereby father's parenting time with A. took place in two to three- hour blocks but mother was still present. If they were in the community, mother would go off to the side and read, giving father and daughter some space. A.’s maternal grandmother testified the she facilitated some of these visits. Mother came along as she was still breast-feeding but they would stay apart until it was time for a feeding. The maternal grandmother joined them at times, to act as a go between when the child was brought from the father's care to mother, for that purpose. It was the mother, not the father, who brought the diapers, snacks, sunscreen, extra clothing and anything else that A. needed.

140From approximately October 2017 to April 2018, father had A. in his care, for unsupervised visits that had increased to four-hour time slots, in addition to the Skype contact. Mother described the Skype contact as being quite problematic. Father complained to A. that he didn't see her enough. This prompted mother to increase the frequency of the Skype contact. But father demanded that the Skype calls continue until he was ready to end them. This meant these calls would last two, three and sometimes four hours. Mother testified that the child would often leave Skype and the room after about 45 minutes to an hour into the call but the father would stay connected and until the child returned. Mother testified that sometimes it was obvious that A. wanted to go but her father would pressure her by saying “You can see your mom anytime.” So long as the Skype call was ongoing, mother was housebound.

141This approach to the Skype contact is more controlling than it is child focused. Mother testified that following these Skype calls A. exhibited poor behaviour; she was frustrated and exhausted. Yet for some months, mother continued to facilitate father's virtual parenting time, even when his demands in this regard were unreasonable and not developmentally appropriate, by virtue of their length and the child’s age.

142Mother testified she was troubled by a number of issues that arose in relation to father's unsupervised parenting time. She initially hoped that if she removed herself from the equation, and the visits were of short duration, the father would be less likely to get frustrated or yell in A.’s presence. She hoped A. would also be spared the hostility father exhibited towards her, although he continued to be hostile at the transfers. During exchanges father sometimes yelled at her in A.’s presence, causing A. to be distressed and cry.

143Mother testified that father developed a pattern of requesting last minute changes, accommodations or extensions to their agreed schedule; she experienced this as a form of control over her. Mother gave examples. On October 24, 2017 when she was still present during father's visits with A., he yelled at her loudly accusing him of cheating on her. On October 31, 2017 he insisted at the last minute that he would join them on Halloween. She tried to say no but he became aggressive and so she agreed to let him come along. On November 10, 2017, father showed up at mother’s home and asked for a visit immediately even though he was scheduled to see A. the next day. He was yelling and causing a scene. Her parents were about to call the police but she agreed to talk to him if he would stop yelling. She says that they went into his car to have a conversation. He accused her of being jealous about his new girlfriend and grabbed her by the arm when she tried to get out of the car. According to father’s testimony at trial, he believes mother’s stance on restricting his parenting time is partially motivated by this jealousy.

144Mother’s affidavit evidence states that on December 5, 2017, A. came back from her visit crying. Her father returned her without saying a word or kissing her goodbye. A week later, when mother brought A. to father for a visit he approached her without any greeting and simply threw her bag in the front seat of the car. Less than a week after that, on December 16, 2017, father asked the mother to extend his visit and when she refused, he picked the child up in his arm arms and began yelling. The child was calling out for the mother. The maternal grandparents got involved to persuade the father to be reasonable. He called Rachel but would not leave. Mother called the police and when they came, he calmed himself. Father's behavior over the next few days in late December 2017 is are already set out at paragraphs 65 to 67.

145Around this time, the mother was no longer comfortable exchanging A. directly for her father's parenting time. She said she insisted the exchanges occur at the OPP station because father had reacted so strongly at her parents’ home. Her father is very ill and she did not want to expose him to the ongoing conflict or further police involvement. She testified that when they arrived for the fist exchange at the police station A. threw herself on the floor and refused to go with the father. A police officer approached the mother and the crying child on the floor. Mother testified that she informed the police she had been trying to arrange exchanges at the Salvation Army Supervised Access Center but that the father would not agree. She felt she needed the safety afforded by the presence of the video and audio surveillance. Father tried to coax A. by playing her favorite song on his phone but she hid behind a chair. Father scooped up the child and left with her.

146It was the mother’s evidence that following the introduction of father’s unsupervised parenting time, A. would act out after she had been in his care. She would hit herself, she regressed in her potty training, she regressed in her sleeping and breastfeeding routines, and she started having nightmares. Mother started to keep notes about A.’s distress. This part of mother's narrative, both in her affidavit evidence and oral testimony, about events from January 2018 until early January 2020, entails utterances or statements made by A. I digress from my discussion of the section 24(3)(c) best interests’ factor to consider their admissibility.

147These statements can be categorized as: (1) statements made in relation to events which may have occurred while A. was in the care of her father; (2) statements made in relation to her reluctance to see her father and (3) statements made in relation to A.’s understanding of her family members. The parties consented to father tendering 3 audio recordings, two of which record the child, one with Constable Nick Todd of the Napanee OPP and one with an unidentified nurse. The third audio recording was Constable Todd’s interview of the mother. A voire dire was held to determine the admissibility of these statements and it was agreed the evidence on the voire dire would be applied to the trial, subject to admissibility rulings.

148In The Children’s Aid Society of St. Thomas and Elgin v. A.H, 2017 ONCJ 852 Justice Parry frames the staring point for the analysis in this way at paragraph 36:

The identification of hearsay is determined by the identification of the purpose for which the evidence is tendered. Hearsay is the out- of- court utterance of a person tendered by a party to prove the truth of the assertions made in the utterance. An out- of- court statement does not constitute hearsay if it is not tendered for the purpose of proving the truth of the contents of the statements. Sometimes the probative value of the statement comes solely from the fact that it was made, not from its truth.

149The first category includes statements made by A. that mother interpreted to mean she may have been touched or harmed sexually. Here I refer to A.’s statements that her vulva is a “diamond”, that “Rachel scratched me here” and “Rachel held me hard down here.” A.’s statements made to Constable Todd also falls into this category. This evidence was offered by mother to provide the context for the involvement of the Children’s Aid Society, and steps she took in relation to the parties’ parenting arrangement during this time frame. The court was not asked to accept these utterances for the truth of their contents or make any findings of fact that there was any sexual interference. Therefore, it is not necessary to consider what exception to the exclusion of the hearsay might apply.

150Mother sought to tender a statement made by A. to her on August 28, 2018 that she did not want to live with her Daddy and also that on January 3, 2021, on the eve of father’s scheduled parenting time, A. said she did not want to visit her Daddy. Mother asks that these utterances be admitted under the state of mind exception. In Farmer v. Farmer, 2021 ONSC 5913 Justice Finlayson explains the legal principles for this exception at paragraphs 175 and 176:

The state of mind or present intentions exception is a traditional exception to the rule against hearsay. The exception may apply when a statement is adduced to demonstrate that present intentions, or state of mind, of the declarant at the time the statement was made, to infer that the declarant acted in accordance with the stated intention

The burden rests on the person seeking to adduce the hearsay evidence under this traditional exception to prove its admissibility on balance of probabilities. Once a judge (or an arbitrator) determines that the evidence falls within one of the traditional common law exceptions, the finding is conclusive and the evidence will be admissible subject to a challenge of the kind set out below….

151Finlayson J. goes on to explain that the traditional exceptions to the rule against hearsay must operate harmoniously with the principled approach exception developed in R. v. Khelawon, 2006 SCC 57) and R v Bradshaw, 2017 SCC 35. Evidence admitted under a traditional exception might still be challenged to determine if it meets the twin criteria of necessity and reliability under the principled approach.

152In Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 1249, Justice Sherr considers the state of mind hearsay exception in the context of child hearsay at para 19:

The state of mind hearsay exception includes a child's wishes and preferences and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statements and should not be made under circumstances of suspicion.

153A.’s statement about her reluctance to see her father falls within the state of mind exception. The statements asserted a contemporaneous emotional state of the child. These statements are corroborated by the child’s refusal to accompany the family monitor to be taken into the care of her father at the supervised access centre on 3 successive occasions, As recorded in their observation notes. The mother did not attempt to introduce evidence about why the child was feeling this way. Nothing elicited during the voire dire suggests the statements were made under circumstances of suspicion. It was not otherwise challenged.

154Mother sought to tender evidence that one day A. referred to Rachel as Mummy and was calling mother by first name, as spontaneous utterance. These statements, even if made, are not relevant to the issues that I need to determine. Given their lack of probative value, I shall not engage in any hearsay exception analysis in relation to them.

155Mother testified that she noted on January 27, 2018 A. was upset when her father dropped her off after his visit. A. was crying and would not settle until they got home. During their bedtime routine on January 28, 2018, A. said: “Rachel scratched here” and pointed to her genital area”. Mother testified that she repeated this a second time.

156On January 31, 2018 A. said to her mother: “Diamond”, pointing to her genital area. “I won't touch it” and started to cry. She reported this to CAS worker Drew Robinson as the parties had an open file at the time. Nothing came of it. On February 6, 2018, A. cried inconsolably when she was brought to her father for his parenting time and he took her away in that state. On February 17, 2018, A. was adamant about not wanting to visit her father that day. While outside, A. ran away from father while crying. Mother testified that the crying carried on for a very long time, some 20 minutes while the father waited in his car with Rachel as mother tried to convince the child to go. Eventually father came out of the car and according to mother he said: “This is the way she is with me the entire time. She just asks for you. I am not even her father”. Mother continued to try to coax the child and she ran away from them again. Eventually A. went for the visit but was still crying when she left with her father.

157On March 3, 2018, mother attended at the Napanee Children’s Aid Society parking lot to drop A. off for parenting time with her father. She initially resisted going into her father's care but eventually did. Following the return of her parenting time with her father on March 10, 2018 A. got into her car seat, hit herself in the head and continued hitting herself over and over again while being driven home. As a result of this resistance, and A.’s behavioural regression at home, in early April 2018, mother suspended father’s parenting time. It was restored under the temporary consent order of Malcolm J. dated April 26, 2018.

158Mother testified that on February 9, 2019, when she picked up A. from the supervised access centre, she was crying and reaching for her as soon as they got home. She testified that A. asked to go potty and wanted her mother to go with her. When she was sitting on the potty, she started to cry and said “I am hurting. Rachel held me hard down here” and then pointed to her genital area.

159This prompted mother to contact her lawyer who recommended she call the police. They directed her to take the child to the hospital. A., who was then three and half years old, was interviewed at the hospital by Constable Nick Todd of the Napanee OPP. I was provided with three audio recordings of interviews on that date beginning with the interview of mother during which she was asked about what precipitated her attendance there. Mother responded by describing what A. said to her in the bathroom. She volunteered that she was not making any accusations. She shared that A. had previously called her vagina a diamond a couple of times which she wondered about. Constable Todd asked the mother about Rachel to which she replied I have never met her and know nothing about her. I only know what I read in the OCL report. Mother did not elaborate or share that the OCL report notes that Rachel Fox gave a history of a delusional disorder for which she takes medication, that she is stable and that she has a daughter who lives with her father and visits with her mother regularly. Mother was asked if A. had ever complained about Rachel previously to which mother replied “No” and added that A. has said positive things about Rachel. She elaborated that A. had told her about what Rachel has given her or done with her.

160Constable Todd interviewed A. When she was asked about her time with her father earlier in the day, A. said that she brought a book from home but that Daddy didn’t read it to her. His efforts to get her to elaborate about her day were not very successful. At one point she said it was loud. Then she said something that was inaudible.⁵ Then she held her own thumb. Constable Todd asked her a few times why she was holding her thumb. She replied I don't want to tell you right now I just want to see my mom. He asked her if she knew where she was, and she replied that she was in the hospital. He asked her if she knew why she was in the hospital and she said because her vagina was hurting. She repeated I just don't want to talk about it right now. I will talk about it tomorrow. She was asked if anybody told her what to say or what not to say before coming. A. answered no. She then said she would like to get checked by the nurse. The third audio recording is between the nurse and the child. It is incomplete; it does not contain any discussion about the events surrounding the reason for A.’s attendance.

161Mother testified that CAS worker Justin Voskamp told her father’s parenting time should resume or she would be held in contempt of court. She understood from discussions with the police officers that these kinds of investigations were conducted jointly by the police and the CAS. It was her understanding and expectation that someone from the CAS would also interview the child in her home and that father would also to be interviewed before the investigation was complete. Mother suspended father’s parenting time, for the second time.

162On February 25, 2019, CAS worker Mr. Voskamp came to the mother’s home to interview A. She had asked a support worker to attend as well since their prior interactions had made her uncomfortable. She testified that he was abrupt with her and left the house after slamming his notebook. The CAS supervisor became involved, in part, because mother was wanting a female worker to interview A. Father tried to make much of the tension between mother and Mr. Voskamp. The previous CAS worker was not well enough to testify, although one of his observation notes of a visit with father and A. notes that he was sleeping during the observed visit. Mother was upset by what she heard and wanted to ensure the matter was fully explored by the CAS, in addition to the police investigation.

163On March 5, 2019 mother took A. to the Sexual Assault Domestic Violence Unit (SADV) at Hotel Dieu. She had been referred there when she first took A. to the emergency department. She testified that she shared with them the child’s most recent statement about Rachel hurting her but also shared A.’s previous statements and the behaviors that she observed and described as regressive. This interview took place while A. was playing in a separate room. The clinical record from this attendance reveals that a physical examination was offered but not completed. The clinical note indicate the mother and the SADV team felt that because there was no acute disclosure, there had been a normal physical examination by the emergency room physician and because the last contact between A. and her father and Rachel was February 9, 2019, a physical examination would not add any further information and could possibly be traumatic for the child. A social worker, Jennifer Beaver offered mother counselling services for further support.

164On March 6, 2019, the parents attended court for another conference. They agreed to resume father's parenting time, so long as Rachel was not present. Because the CAS investigation was ongoing the supervised access centre would not allow the exchanges to take place there so the order specified the exchanges had to be at the OPP station. Mother testified that while this order was in place and prior to the conclusion of the CAS investigation, she observed father with Rachel and A. together, in breach of this provision in the order. The supervised access centre records reveal that father expressed frustration to the staff at the policy suspending this service during the CAS investigation. The same records reveal that mother’s counsel called the centre and tried to advocate for them to make an exception for this family so that they could continue to be serviced there, even while the CAS investigation was ongoing.

165On March 22, 2019, the CAS requested a change to father’s parenting time schedule so they could observe him and mother agreed. On April 15, 2019, mother started therapy through SADV with Jennifer Beaver. That same month the CAS concluded its investigation, did not verify any inappropriate sexual touching and closed the file.

The exchanges resumed at the supervised access centre.

166About a month later, on May 14, 2019 A. started counselling with Anastasia Burns. Mother testified that she accepted that no sexual impropriety was verified and wanted to put it behind her. During father's testimony about this day, mother learned for the first time that Rachel actually may had done something that inadvertently hurt A., but to the upper part of her torso. Father testified that he recalled on that day Rachel was holding A. in her arms and A. struggled and asked to be put down. And father learned for the first time, that this explanation offered by him to the CAS had never been shared with mother.

167Mother testified about information she received from Ms. Cassidy, A.’s teacher on December 17 and December 19, 2019. It included Ms. Cassidy’s statement about what A. allegedly told her happened in her father's care and therefore is inadmissible double hearsay. The balance of Ms. Cassidy’s account to mother related to the father and Rachel's unannounced attendance at A.’s Christmas concert. This too was inadmissible hearsay. But the court did hear father's testimony about this incident. Although the court order is clear that his parenting time is restricted to weekends and the school has a copy of the order, father did not think it was poor judgment to attend at the school with Rachel, when he had not attended before, no one was expecting them and they might encounter the mother. The principal decided remove A. from the communal gathering. Father testified that when he left the school, he saw a police car nearby and assumed the school had called the police. He was offended by this.

168Mother testified that A. had a Christmas visit with her father on December 24, 2019 and she seemed fine when she returned home. But starting in January 2020, A. again began to demonstrate resistance to seeing her father. She said that on January 3, 2020 as she was getting her ready for bed, A. said she did not want to go for her visit with Daddy. At the scheduled visit on January 4, 2020 A. was refusing to see her father even with the coaching of the supervised access centre staff. It was mother’s evidence that when the staff were trying to explain to father that the child was refusing to join him, he grew angry and was loud enough to be heard by mother and child in the adjoining room.

169There were three successive missed visits in early January. Mother brought A. to the centre each time but A. refused to go with the family monitor to join her father despite the family monitors efforts. Their notes indicate that mother What is sharing with staff what she thought might be the source of A.’s resistance to the visits. Mother explained that father had knit A. a sweater as a gift, but when she opened the gift there was some kind of reaction from father. The staff member inquired of father whether there was an incident around this sweater that might have upset A. according to their notes he explained that when A. opened the box he noticed the neck was too small and so she did not even try it on. Father asked the staff person to convey the message that A. did not need to have any worries about the sweater.

170According to the detailed notes taken at the supervised access facility, around this same time, A. lost a bracelet her father had given her. Mother shared with the family monitor at the supervised access centre that A. told her she was afraid to tell her father that she had lost it. The family monitor communicated this to father who in turn asked her to convey to mother that he would not be angry at A. over the bracelet. According to the supervised access centre notes, father blamed A.’s resistance to seeing him on the mother. There were other notations where father talks about the court proceedings and shares his troubles. They are consistent with father’s narrative to others; he is always the victim and mother is always the villain.

171The voluminous supervised access notes show that on several occasions father asked for changes to the schedule and mother always obliged, with one exception when it was on short notice. The same notes show that on a few occasions the family monitors needed to redirect father to cease talking negatively about mother during his parenting time with their child. He told the family monitor that mother was alienating A. in front of the child. This corroborates mother's evidence that father engages in criticism about her in the presence of the child.

172The family monitors at the supervised access centre also had to become the messengers in relation to father's accusation that A. had lice and mother was not looking after it. Their notes show that the family monitor did not notice any nits. Mother noticed A. had a lot of dandruff and had checked her head. Ever on the defensive, mother conveyed to the family monitor that she would take the child and get a medical note to satisfy the father that their daughter did not have any lice.

173There is another notation about an occasion when mother was late at the commencement of the visit. She apologized to the family monitor and explained A. was not feeling well and had a rash. She asked her to communicate to father that she had this rash and that if A. wasn't feeling well, he could bring her back into mother’s care. The note indicates that the father was so angry about mother being late that he left before the family monitor had an opportunity to convey the reason for mother’s tardiness and, more importantly, convey the information about his daughter's condition.

174Mother first insisted that the exchanges take place at the OPP station around the time the father had reacted so strongly at her parents’ home. Her father is very ill and she did not want to expose him to the ongoing conflict or further police involvement. The exchanges were eventually moved to the supervise access center, except with when this was impermissible because of an ongoing CAS investigation. Once the mother moved into the home of her partner with his two children, in the summer of 2020, she felt safe enough to offer that the exchanges take place there. She testified that she was trying to create a more positive exchange environment, while maintaining safety.

175The father testified that he read the book Divorce Poison by Dr. Richard Warshak and he believes that mother’s restrictive approach to his parenting time is evidence of parental alienation. He read about a concept called “stripping” whereby a parent removes objects and reminders of the other parent from the child's environment, in a deliberate effort to marginalize the other parent. He cited mother’s refusal to bring the child's harmonica to a visit as an example of this behavior. Father enjoys music with his daughter. Mother explained she simply forgot to bring the harmonica on a couple of occasions but brought it subsequently.

176Mother has been protective of A. in her approach to father’s parenting time. In my view this is appropriate having regard to father's conduct from A.’s birth to the present. For her entire life, A. has been exposed to considerable adult conflict instigated by her father, including yelling, erratic driving, criticisms of her primary parent and witnessing her mother being physically attacked by him. From a very young age, she has seen and heard her father harm her mother. She has been in his presence when he has been angry with her, including in the presence of both the maternal and paternal side of her family. It is both understandable and warranted that mother wants to limit their child's exposure to father’s emotional distress and dysregulation which all too often manifests with unpredictable angry outbursts.

177Mother initiated virtual parenting time for father immediately following the separation. When father moved to her new home community, he had regular contact with his daughter while mother was present. She was still breast-feeding, and father had no experience of parenting A. alone. Mother moved to unsupervised parenting time for father, until she became concerned by what A. was saying and how she was behaving. Supervised parenting time began on consent. It became necessary for exchanges to occur under supervision as well because of father's hostile conduct towards mother at transfers. Mother suspended father’s parenting time twice because she believed it was not safe for A., once in the spring of 2018 and again in February of 2019. Both times father’s parenting time was reinstated within about a month. By the time this matter was tried, the parents had expanded father’s parenting time on their own beyond what was provided in the operative order and the exchanges were happening at mother’s home. I conclude that mother’s position regarding father’s parenting time is not malicious or punitive. Rather it is borne out of her genuine concern for A.’s emotional and physical safety in the presence of an unstable and volatile father.

178Mother gave evidence about her belief that it is important for their child to have a healthy and positive relationship with her father. She knows he loves their daughter very much and observed that when he is in a good mood, he can be very good with A. It was evident when she testified about the family violence, that she understood his aggression is a function of his mental health challenges, including his traumatic childhood experience. She expressed genuine compassion for his suffering but understandable frustration at his refusal to get the help he needs, so that he can become a better-and safer-parent.

CONCLUSION

179The mother provides A. with a safe, secure child- focused environment. She ensures all of her physical and emotional needs are being taken care of, with the assistance of professionals when necessary. Despite the history of family violence and the challenges father’s conduct presents, mother tries to resolve problems around A.’s relationship with him in a constructive way. Her communication with father about regular health appointments and participation in activities is minimal and this is addressed in the terms of my order.

180Father is creative, playful, affectionate, and loving with A. Regrettably his inability to regulate his emotions, particularly his anger, continues to pose a risk of emotional, and perhaps even physical, harm to her. I concur with the recommendation of the OCL clinician, that it is not in A.’s best interests for father’s parenting time to be expanded unless and until he obtains a mental health assessment, develops and commits to a mental health treatment plan and demonstrates improved behaviour.

ORDER

181Based on the foregoing, I make the following parenting order with paragraphs 7, 8, part of 19 and 20 being on consent:

Decision-Making Responsibility and Access to Information

1. The mother shall have sole decision making-authority for all major decisions, including those related to health, education, religion, and activities for A. (the “child”). Therefore, father’s consent to A.’s enrolment in school or activities or his consent for A.’s access to any health care or other services shall not be sought or required.

2. Should mother change A.’s current family physician, Dr. Kylesa, her current counsellor Ms. Burns, or her current school, she shall notify the father of the change in writing, within 7 days of making the change. If she seeks new services for A. from other health care providers, she shall notify father in writing within 7 days.

3. When mother enrols A. in any activity or lesson, she shall inform father of the details, including the name of the program or activity, the location, and the service provider(s), within 7 days of any enrolment or registration.

4. Father shall be entitled to receive information about A.’s heath, education, and activities directly from any service providers.

5. By October in every year, the mother shall advise the father if the parents will attend A.’s parent/teacher interviews separately or together.

Documents and Passport

6. The mother shall be the custodian of A.’s identification and heath related documents. She shall provide father with a copy of A.’s health card.

7. Mother shall be entitled to apply for a passport for A. without the father’s consent, at her expense.

Change of Name

8. The child’s name, that is A., shall not be changed by either party, unless such change is on consent.

Residence and Relocation

9. A. shall reside with her mother in Deseronto. Mother shall notify the father in writing of any change to her residence.

10. If mother intends to relocate, she shall give father 60 days written notice setting out the date on which the relocation is expected to occur and the new address and any new contact information. The written notice shall provide a proposal

for any possible changes to father's parenting time arising from the proposed relocation.

Parenting Time, Transfers and Father’s Mental Health Plan

11. A. shall be in the care of her mother at all times other than those stipulated below for father’s parenting time.

12. Fathers’ parenting time shall be gradually expanded, to include overnight parenting time, provided he is compliant with the mental health assessment and treatment requirements stipulated below and he can demonstrate that he has done so.

13. Father shall have parenting time on alternating weekends, on Saturdays and Sundays from 9:00 a.m. to 4:00 p.m.

14. Additionally, father shall continue to have parenting time one evening per week in the child’s home community from 4:15 p.m. until 7:30 p.m., with the expectation that he shall, at his expense, select an activity or lesson suited to A.’s skills and interests for her pursuit during this evening parenting time. Father shall be responsible for providing all clothing, equipment or gear required for the child’s participation in the chosen activity.

15. Should A. be enrolled in an activity or lesson that occurs during his weekend parenting time, father shall ensure A. is in attendance.

16. Father shall refrain from attending any activity or lesson in which A. is participating, that falls on mother's parenting time.

17. Additionally, father shall have holiday time with A. as follows:

a. If Thanksgiving falls on a weekend that is not father’s scheduled weekend, A. shall be in his care on Thanksgiving Monday from 9:00 a.m. to 4:00 p.m.

b. A. shall be in her father's care on Halloween from 4:30 p.m. to 7:00 p.m. in alternating years.

c. In even numbered years A. shall be in the care of her father on Christmas Eve from 9:00 a.m. to 4:00 p.m. In odd numbered years A. shall be in father's care on Christmas Day from 11:00 a.m. to 7:00 p.m.

d. A. shall always be in the care of her father on December 29th and December 30th from 9:00 a.m. to 4:00 p.m. He shall commence his regular alternating Sunday Saturday and sending parenting time on the last weekend of the holiday school break, that is the first weekend in every calendar year.

e. If A. is not in the care of her father on the weekend preceding Family Day, then A. shall be in her father's care on Family Day from 9:00 a.m. to 4:00 p.m. if A. is in father’s care the weekend preceding Family Day then A. shall be in her mother's care on Family Day.

f. If Easter falls on a weekend that is not father's scheduled weekend, A. shall be in father's care on Easter Monday from 9:00 a.m. to 4:00 p.m.

g. A. shall be in her mothers’ care on Mothers Day and in her father's care on Father's Day regardless of the regular schedule. Father's parenting time on Father's Day shall be from 9:00 a.m. to 4:00 p.m.

18. Father shall be entitled to initiate telephone or Skype contact with A., on the weekend she is not in his care, as prearranged by the parents.

19. All transfers shall occur at mother’s home. Should any conflict or hostility arise is the future, at these transfers, their location shall change to the Salvation Army Supervised Access Centre, and the parenting schedule shall be modified, if necessary, having regard to their hours of operation.

20. Father shall forthwith obtain a mental health assessment, including a diagnosis. Based on the result, the father shall develop a mental heath management plan and provide a copy to the mother.

21. Father shall forthwith provide a copy of this order to his family physician, Dr. Glatt, who it is anticipated shall be involved in the development, oversight and perhaps treatment aspects of this plan.

22. Once father can demonstrate with objective reporting from his treating mental healthcare provider(s) that he is fully compliant with treatment recommendations and has sustained the management of his mental health care, with positive outcomes, his parenting time shall be reviewed, with a view to expanding it, to include overnight parenting time.

23. Father shall enroll in a parenting course such as Caring Dads, as soon as one is open for registration and shall provide proof to mother that he has done so.

Communication and Parental Conduct

24. The parties shall communicate with each other by using a free or inexpensive parenting app such as Talking Parents, AppClose, FamCal or Family Core.

25. Neither party shall criticize or denigrate the other party in the presence of the child. Neither party shall discuss adult issues including these court proceedings with the child or in the presence of the child.

Footnotes

1. 1See: Yonovkian v. Gulian 2019 ONSC 7279 for a discussion of internet-based aggression or bullying.
2. 2Ms. Poole’s report refers to Dr, Shwe, who was the referring physician. The actual author of the psychiatric assessment was Dr. Jeeva
3. 3Given the central importance of this evidence in this case, counsel ought to have provided the court with a detailed summary in their closing arguments of the relevant notations in the various health records. As explained above at paragraph 92, it was the court who directed these records be submitted in the first place since neither counsel sought to do so, despite their significance to the determination of the child’s bests interests. Further Dr. Glatt’s letter of January 17, 2021 is inadmissible hearsay; hence the necessity of having him testify.
4. 4The trial commenced in December 2020 and continued in February and March of 2021
5. 5Parties seeking to introduce and rely on audio recordings are expected to provide the court with a transcript. This was not done.