ORILLIA COURT FILE NO.: FC-17-049

DATE: 20211126

CORRECTED DATE: 20220110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kevin Southorn

Applicant

– and –

Chantelle Ree

Respondent

Linda Paterson-Kelly, for the Applicant

Fay McFarlane, for the Respondent

HEARD: May 21, 22, 23, 24, 27, 28, 30, 31, June 20, July 2, 3, 4, 5, October 1, and December 19, 2019, January 6, 7, 8, 10, 14, February 7, November 19, 30, and December 2, 9, 10, 14, 17, 18, 2020, and January 11, 12, 19, 20, 21, 2021

Corrected decision: the text of the original endorsement was corrected on January 10, 2022, and the description of the correction is appended

REASONS FOR JUDGMENT

Justice F. Graham

Introduction

[1] Mr. Southorn and Ms. Ree started living together at Mr. Southorn’s parents’ home in 2011. P was born in January 2012. L was born in November 2013. The family moved into their own home in November 2014.

[2] The parties separated in August 2016. P was 4 ½ and L was 2 ¾ years old.

[3] Mr. Southorn is now 33, Ms. Ree is 31, P is 9, and L is 8 years old.

[4] The issues to be determined at trial are decision-making responsibility for the children, parenting time, and child and spousal support after April 27, 2018 (when support arrears were set at zero by way of a consent order). Property issues were settled prior to trial.

[5] Mr. Southorn seeks joint decision-making responsibility, equal parenting time, child support based on an imputed income of $50,000 for himself and an imputed income of $30,000 for Ms. Ree, and termination of spousal support effective March 31, 2021.

[6] Ms. Ree seeks sole decision-making responsibility, continuation of the current parenting schedule, child support and spousal support based on an income of $150,000 imputed to Mr. Southorn and an unspecified but substantially lower income for Ms. Ree.

[7] The current parenting schedule is that the children are in the care of their father alternate weeks from Thursday evening to Sunday evening, alternate Fridays for several hours, two non-consecutive weeks in the summer, part of the Christmas and March school vacations, and any other time to which the parties agree. Otherwise, the children are in the care of their mother.

Assessment of Witnesses’ Credibility and Reliability

Douglas Barnard

[8] Mr. Barnard is a private detective hired by Ms. Ree to observe whether Mr. Southorn was misleading her about the amount of time he was spending with the children. Mr. Barnard was formerly a detective at the Toronto Police Service. He retired in 2010, after 32 years of service as a police officer. His resume is Exhibit 64.

[9] Although Mr. Barnard testified that his role as a private investigator was to be impartial and factual, and that he would not give opinion evidence, given that he was retained by Ms. Ree, it is likely that he had some bias, whether conscious or not, in her favour.

[10] In fact, during cross-examination, a basic part of the trial process to which one would expect an experienced police detective to be inured, he became noticeably irritated and disputed Mr. Southorn’s counsel’s implication that he had not been present outside Mr. Southorn’s workplace on December 27, 2018 for an uninterrupted period of nine hours. He responded that he was at the workplace for the “whole nine hours” and maintained that position during re-examination when counsel for Ms. Ree gave him an opportunity to change that testimony which was internally inconsistent with his evidence-in-chief that he was at Mr. Southorn’s workplace that day from 7:46 a.m. until 2:15 p.m., which was 6 hours and 29 minutes. Although he testified that the entire period he conducted surveillance that day was from 7 a.m. until 4:04 p.m., which was about nine hours, he also specified that during that period he spent 46 minutes in the morning, and one hour and 49 minutes in the afternoon, following and carrying out surveillance of Mr. Southorn’s vehicle away from his workplace.

[11] Additional concerns are raised by Mr. Barnard’s testimony concerning December 28, 2018. He testified that Mr. Southorn left home in his vehicle at 8:22 a.m., leaving his life partner’s vehicle and Mr. Southorn’s father’s vehicle at the residence. Mr. Barnard’s next recorded observation was that, at 10:14 a.m., Mr. Southorn’s father’s vehicle was the only vehicle in the driveway. His next recorded observation was that at 12:11 p.m. no vehicles were in the driveway. His next recorded observation was that Mr. Southorn’s vehicle, his life partner’s vehicle, Mr. Southorn’s mother’s vehicle, and his father’s vehicle, were all parked at the home at about 2 p.m. Based on these observations, Mr. Barnard’s report (Exhibit 65) concluded that Mr. Southorn was away from the children for about 5 hours and 40 minutes that day. He testified that this period was between 8:22 a.m. and 2 p.m. One difficulty with this evidence, however, is that his claim about the length of time Mr. Southorn was away from his children was not an observation; it was a conclusion, or an opinion, based upon his recorded observations. Second, it was a faulty conclusion or opinion. Based upon his limited observations, Mr. Barnard could not have known whether, for example, Mr. Southorn’s partner left the home with the children to meet their father sometime between 8:23 a.m. and 10:13 a.m. As another example, according to his recorded observations, Mr. Barnard could not have known where the children were at 12:11 p.m. when there were no vehicles at their home. The absence of vehicles suggests that no adults or children were in the home at that time. It is highly unlikely that the last of the adults to leave the home would have driven away, leaving a then 5-year-old and 4-year-old alone. However, for Mr. Barnard’s conclusion or opinion to be correct, he must have made that assumption or some other assumption (e.g. the children were away from the home with Mr. Southorn’s father) that went beyond his observations. In short, contrary to his report’s conclusion, his observations do not preclude the possibility that the children were away from their home and with their father between 8:22 a.m. and 2 p.m.

[12] His evidence was not significantly externally inconsistent or evasive.

[13] Overall, the court finds that some caution should be exercised with respect to his evidence and any conclusions or opinions he expressed should be given no weight.

Nancy Battaglia

[14] Ms. Battaglia is a psychotherapist and art therapist who assessed P in early 2018 and in the summer and fall of 2019. Her resume is Exhibit 68. P was referred to her by the Enaahtig Mental Health Outreach programme.

[15] Although her initial contact was with Ms. Ree in December 2017 and early 2018, she also met with Mr. Southorn during the initial assessment in March 2018.

[16] She gave her testimony in a straight-forward manner and without significant internal or external inconsistencies. She did not demonstrate bias. She was not evasive. None of her testimony was inconsistent with common sense.

[17] The court finds that no caution is required with respect to her evidence.

Chris Edwards

[18] Mr. Edwards is a contractor who employed Mr. Southorn as a subcontractor electrician.

[19] Given that he employed Mr. Southorn, and Mr. Southorn’s life partner, Ms. Young, it is likely that he had at least some bias, whether conscious or not, in favour of Mr. Southorn.

[20] The court has considered Ms. Ree’s closing submission that no weight should be given to Mr. Edwards’ testimony, and that his testimony that he had not employed Mr. Southorn during the three weeks immediately prior to May 30, 2019, should not be believed. The submission was based, in part, upon Mr. Edwards’ testimony that, despite having ten in-house employees, he contracted out all his hydro work to Mr. Southorn. The submission was also based upon the suggestion that the evidence established that Mr. Southorn worked for Mr. Edwards’ company often, and that Mr. Southorn earned a lot from that work. The submission was also based upon the evidence that Mr. Southorn’s partner, Ms. Young, was an employee of Mr. Edwards. Having considered all the evidence, including that Mr. Southorn worked for other clients, the court does not find that Mr. Edwards’ testimony was internally or externally inconsistent.

[21] The court finds that Mr. Edwards’ brief testimony was without significant internal or external inconsistencies and did not demonstrate bias. He was not evasive, and his testimony was not inconsistent with common sense.

[22] The court finds that only limited caution should be exercised with respect to his evidence.

Alex Harris

[23] Ms. Harris is a child protection worker at Simcoe-Muskoka Family Connections which is a children’s aid society (CAS).

[24] Although her initial involvement was the result of a call made by Ms. Ree in March 2019, she spoke with both parties early in her investigation.

[25] She gave her testimony in a straight-forward manner and without any significant internal or external inconsistencies. She did not demonstrate bias. She was not evasive. None of her testimony was inconsistent with common sense.

[26] The court finds that no caution is required with respect to her evidence.

Cassidy Hill

[27] Ms. Hill is a child and youth mental health support worker with Enaahtig.

[28] She performed an assessment in September 2018 to determine whether Enaahtig’s earlier referral of P to Ms. Battaglia should continue. She remained involved with the children in 2019. Her almost exclusive source of information from the start was Ms. Ree.

[29] She could not explain why she did not seek Mr. Southorn’s consent for further service when his consent was required in March 2019. When asked why she only contacted Ms. Ree about possible steps to address P’s sleeping issue, her reply was that she was in contact with Ms. Ree only, and that it was not her job to reach out to another parent when she was already in contact with Ms. Ree.

[30] Given that Ms. Hill’s main source of information was Ms. Ree, and that she could not explain why she did not seek Mr. Southorn’s required consent, it is likely that Ms. Hill had some bias, whether conscious or not, in favour of Ms. Ree.

[31] There were no significant inconsistencies in her testimony. She was not evasive.

[32] Her testimony that she did not ask P about waking up at night, she did not know why she raised the subject of frightening dolls with P, and that she knew the dolls involved were porcelain because P had said they were glass, was not believable. The court finds that it is likely that Ms. Ree told her that P was waking up due to a fear of porcelain dolls.

[33] The court finds that caution should be exercised with respect to her evidence.

Jason Millward

[34] Mr. Millward, M.S.W., R.S.W., is a clinical investigator with the office of the Ontario Children’s Lawyer (OCL). When he testified in May 2019, he had completed over one hundred assignments as an OCL investigator.

[35] Ms. Ree’s closing submissions suggested that no weight should be given to his recommendations for various reasons. Some of those arguments do not relate directly to his credibility or reliability as a witness and will be considered later.

[36] Some of Ms. Ree’s submissions suggested bias on the part of Mr. Millward.

[37] She noted that Mr. Millward asked Ms. Battaglia whether she thought that Ms. Ree might be manipulating the police and the CAS, to which Ms. Battaglia replied no. Ms. Ree submitted that his question showed bias because he apparently did not ask the same question about Mr. Southorn. The difficulty with that argument, however, is that Mr. Southorn alleged to Mr. Millward that Ms. Ree was trying to prevent or limit his parenting time by calling the police and the CAS without verification – in other words, he alleged that she was manipulating the police and the CAS. Ms. Ree did not make the same allegation about Mr. Southorn – i.e. that he was trying to prevent or limit her parenting time by calling the police and the CAS without verification. It is likely that Mr. Millward was simply gathering additional information about Mr. Southorn’s allegation.

[38] Ms. Ree also submitted that Mr. Millward demonstrated no interest in any history of domestic violence by Mr. Southorn. But Mr. Millward set out, at page 8 of his report (Exhibit 1), that when he asked Ms. Ree about the history of the parties’ relationship she told him that there had not been any “direct physical violence” but there had been incidents of “indirect physical violence” which he recorded. His report set out that Ms. Ree alleged that on one occasion Mr. Southorn intentionally swung a door open so hard that she sustained bruising on her arm, and that around Christmas 2015, after both parties shoved each other in the presence of the children, Mr. Southorn became so angry that he damaged their vehicle by punching a side mirror, ripping off the insect screen, and jumping on the truck while the children were present. She also alleged that Mr. Southorn once spanked L with his hand with sufficient force that he left marks. Mr. Millward elucidated in his testimony that Ms. Ree said that Mr. Southorn was angry when he hit L, who was then less than one year old. Mr. Millward also set out Ms. Ree’s allegation that Mr. Southorn controlled her ability to visit her friends away from the parties’ residence.

[39] In her testimony and closing submissions, however, Ms. Ree made three allegations not mentioned in Mr. Millward’s report. They were that: Mr. Southorn once ripped the shower curtain off while she was taking a shower and yelled at her about her credit card usage, which embarrassed her; he once angrily punched and damaged the headboard of their bed because he was angry at his father (she was not present); and she sustained a cut near her eyebrow when the door hit her as described above (although she was unable to say whether Mr. Southorn hit her intentionally or not). No allegation was made, however, that Ms. Ree told Mr. Millward any of these three allegations and that he did not report them. Nor was it alleged that he prevented Ms. Ree from telling him these allegations. In fact, given that the allegations in the previous paragraph were set out in detail in the report, the court infers that Ms. Ree was given an opportunity to report any allegations she wished to make. The court finds that the absence of these allegations in the OCL report does not indicate bias on the part of Mr. Millward.

[40] Ms. Ree noted that Mr. Millward did not interview Samantha Rose or Holly Whiston about a sexual abuse allegation made against Mr. Southorn’s father. Nor, she stressed, did he interview Mr. Southorn’s father. Mr. Millward’s report and testimony explained, however, that he did not believe that it was his proper role to re-investigate an allegation that had already been investigated by the police and the CAS who determined that the evidence was inconclusive. The court finds that Mr. Millward had no obligation to re-investigate the sexual abuse allegation in the circumstances of this case and that he did not demonstrate bias by declining to do so.

[41] Ms. Ree complained that Mr. Millward’s report did not list her boyfriend, Mr. Whittaker, as a significant person in the lives of the children. The court, however, was not provided with evidence about the precise nature of her relationship with Mr. Whittaker when Mr. Millward was doing his investigation and writing his report in 2018. Although she testified, in January 2020, that she started dating Mr. Whittaker about two years earlier, and, at the time she testified, Mr. Whittaker was staying at her home two or three nights per week, she also testified that he did not live with her in 2020, some months she did not “see him for weeks at a time”, she represented him to others as her “boyfriend”, and she described their relationship as “dating.” The court finds that there is no evidential basis upon which to find that Mr. Millward’s 2018 report should have listed Mr. Whittaker as a significant person in the children’s lives in 2018. Mr. Whittaker was not called as a witness at the trial.

[42] Ms. Ree suggested that Mr. Millward should have referred to the pleadings to determine the parties’ positions about custody, rather than asking each of them about their position when he interviewed them. The court does not agree. Their positions during their interviews are relevant.

[43] Ms. Ree stated in her submissions, “Mr. Millward goes on to say [in his report] that ‘despite the CAS/Police investigation proving no abuse occurred, and despite the pediatrician and art therapist stating there was no evidence to support the allegations, Ms. Ree continued to severely restrict Mr. Southorn’s parenting time.’ ” Ms. Ree then took issue with those statements. Mr. Millward testified, however, that at that point in his report he was setting out Mr. Southorn’s positions, not his own.

[44] Ms. Ree complained that Mr. Millward stated in his report that Mr. Southorn told him that his time with the children was “increased by the courts”, without clarifying that the change occurred by way of a consent order. In that part of his report, Mr. Millward was simply setting out Mr. Southorn’s version of the parties’ history. He also set out Ms. Ree’s version of the parties’ history in the report.

[45] Ms. Ree suggested that Mr. Millward interviewed P improperly, because Ms. Battaglia would not have interviewed P in the same manner. The evidence did not indicate, however, that Ms. Battaglia’s approach was the only appropriate approach to interview P. The court finds that there was nothing improper about Mr. Millward’s interview of P, during which, like Ms. Battaglia, he found that P was careful about what she said; she was forthcoming with some information, and she was guarded about other information.

[46] Ms. Ree argued that Mr. Millward should have observed Mr. Southorn’s parents at the home visit at Mr. Southorn’s residence because Mr. Southorn and Ms. Young were living at Mr. Southorn’s parents’ home at the time. The court agrees. The fact that the home visit occurred in a separate playroom for the children does not mean that the children should not have been observed wherever and with whomever they normally spent time in the home, including Mr. Southorn’s parents. Further, it is the court’s view that, although Mr. Millward told Mr. Southorn that he wanted Mr. Southorn’s parents present at the home visit, Mr. Millward should have insisted they be present, so that Mr. Millward could observe the interactions and dynamics of all the people in the living unit where the children were spending time while in their father’s care. This was particularly apt given that Mr. Southorn’s father had been accused of sexually abusing P - even though the police and CAS investigation was inconclusive, no charge was laid, and the CAS did not object to the children staying with Mr. Southorn at his parents’ home at that time. Mr. Millward’s failure to insist upon Mr. Southorn’s parents’ presence would have been of great significance if Mr. Southorn and Ms. Young had not moved into their own home after the OCL report was written but before the trial commenced. Serendipitously, however, due to that move, Mr. Millward did observe the interactions and dynamics of all the people in the children’s eventual living unit while in Mr. Southorn’s care. Although the court is of the view that not insisting upon Mr. Southorn’s parents being present was not an indication of bias, the court finds that it was an error in judgment by Mr. Millward, which is relevant to the reliability of his report and testimony.

[47] Ms. Ree also suggested that Mr. Millward should have interviewed Mr. Southorn’s father. The court agrees for essentially the same reasons set out above regarding the home visit. Mr. Millward testified that it would have been helpful to interview Mr. Southorn’s father, but Mr. Southorn’s father worked often so an interview was difficult to schedule, and, in any event, the CAS had not verified any of Ms. Ree’s complaints against Mr. Southorn’s father concerning alleged alcohol abuse, sexual abuse, and poor condition of his home. As with the home visit, Mr. Millward’s failure to interview Mr. Southorn’s father would have been of great significance if Mr. Southorn and Ms. Young had not moved. This failure was also an error in judgment by Mr. Millward which is relevant to the reliability of his report and testimony.

[48] Mr. Millward interviewed both parties, and observed both parties, Ms. Young, and the children.

[49] He did not appear to have any bias. His testimony was not internally or externally inconsistent in any significant way. He was not evasive. His testimony was consistent with common sense, except that he failed to observe any dynamics between the children and their paternal grandparents, and he failed to interview Mr. Southorn’s father.

[50] Overall, the court finds that some caution is required with respect to his evidence.

Daria Pool

[51] Ms. Pool, M.S.W., R.S.W., is a clinician with the OCL. She provided the court with a Voice of the Child Report dated December 22, 2020 (Exhibit 154).

[52] Ms. Ree’s closing submissions suggest that no weight should be given to Ms. Pool’s report for various reasons. Some of those arguments do not relate directly to Ms. Pool’s credibility or reliability as a witness and will be considered later.

[53] One of Ms. Ree’s submissions seemed to suggest possible bias on the part of Ms. Pool.

[54] She took issue with Ms. Pool’s report mentioning P’s comments that sometimes Ms. Ree gets angry and that most recently she had yelled at L because he did not want a submarine sandwich for supper while travelling to a parenting time exchange. Ms. Ree suggested that there was no context to the statement, and that it should not have been in the report, nor be considered by the court. The court finds that the context is readily inferred from the report; it is likely that both children were asked to describe what they liked and what they did not like about time spent with their mother and time spent with their father, or a similar question. In any event, as noted in Ms. Ree’s submissions, Ms. Pool also reported that L said that his mother, his father, and their partners yell at him when he gets in trouble. The court finds that this aspect of the report did not demonstrate bias.

[55] Ms. Ree also submitted that Ms. Pool’s evidence was internally inconsistent.

[56] First, Ms. Ree suggested that Ms. Pool’s statement in her report that P consistently said that she wanted to spend equal time in both parents’ homes, was inconsistent with Ms. Pool’s statement in the report that P said that she would like to spend approximately equal time in both parents’ homes. The court finds that this evidence was not significantly inconsistent.

[57] Second, Ms. Ree submitted that Ms. Pool’s testimony that Ms. Pool could not recall whether there were toys in P’s room during the interviews, was inconsistent with Ms. Pool’s testimony that there were no dolls in P’s room. In fact, however, Ms. Pool’s testimony was that she could not recall whether there were dolls in P’s room.

[58] The court finds that Ms. Pool’s evidence demonstrated no bias. Her evidence was not significantly internally or externally inconsistent. She was not evasive during her very brief cross-examination by counsel for Mr. Southorn. She was not cross-examined by counsel for Ms. Ree. Her evidence was consistent with common sense.

[59] The court finds that no caution is required with respect to her evidence.

David Ree

[60] Given that Mr. Ree is Ms. Ree’s father, it is likely that he had some bias, whether conscious or not, in her favour.

[61] He did not demonstrate bias and his testimony was not significantly internally or externally inconsistent. He was not evasive. His testimony was consistent with common sense.

[62] Overall, the court finds that only limited caution should be exercised with respect to his testimony.

Samantha Rose

[63] Given that Ms. Rose is in a relationship with Ms. Ree’s brother, it is likely that she had some bias, whether conscious or not, in Ms. Ree’s favour.

[64] Her testimony was externally inconsistent with Ms. Ree’s testimony regarding what P said when Ms. Rose asked P where she learned the inappropriate behaviours Ms. Rose alleged occurred in the bathroom. Ms. Rose testified that P responded with a single word, “Papa.” Ms. Ree, on the other hand, testified that Ms. Rose told her that P’s response was that she did this “at Meemaw’s house with Poppa during bath time.”

[65] Ms. Rose did not demonstrate bias and her testimony was not significantly internally inconsistent. She was not evasive.

[66] Overall, the court finds that some caution should be exercised with respect to her testimony.

Reg (Randy) Scott

[67] Given that Mr. Scott is a friend of Mr. Southorn, it is likely that he had some bias, whether conscious or not, in his favour.

[68] He did not demonstrate any bias. His brief testimony was not internally or externally inconsistent. He was not evasive, and his testimony was not inconsistent with common sense.

[69] Overall, the court finds that only limited caution is required with respect to his testimony.

Linda Southorn

[70] Given that Ms. Southorn is Mr. Southorn’s mother, it is likely that she had some bias, whether conscious or not, in his favour.

[71] Ms. Ree suggested that Ms. Southorn’s evidence should be given no weight, in part because Ms. Southorn demonstrated bias by not saying anything positive about Ms. Ree’s parenting during her testimony. In fact, Ms. Southorn testified that Ms. Ree was a “fine Mom” except when she kept P up late at night watching television and then slept in the next morning. She also criticized some other aspects of Ms. Ree’s parenting.

[72] Ms. Southorn’s testimony was externally inconsistent with Ms. Ree’s and Ms. Rose’s testimony about the condition of her home and how much effort Ms. Southorn expended on domestic duties.

[73] Her testimony was externally inconsistent with Ms. Ree’s testimony about how involved Mr. Southorn was with domestic duties after P was born, whether Ms. Ree left the children in the care of Ms. Southorn on various weekends during the summer, how Ms. Ree cared for the children while living in Ms. Southorn’s home, about the exchange at Ms. Ree’s home in February 2017 when the police were called, and whether Ms. Ree may have showed P frightening movies.

[74] Ms. Southorn’s testimony was externally inconsistent with Ms. Ree’s testimony, and photographs filed by Ms. Ree, about the condition of the Dodge Avenger when it was left by Mr. Southorn for Ms. Ree’s use. Ms. Southorn testified that the Avenger was cleaned and detailed before being dropped off by herself. Ms. Ree testified that the vehicle was left in poor condition. Some of the photographs of the Avenger taken by Ms. Ree (Exhibit 15), which she testified showed her personal items that were removed from the truck, are inconsistent with the vehicle having been cleaned and detailed. In particular, page 603 shows that the front console and passenger’s seat were dirty and stained, page 609 shows that part of the vehicle floor contained trash and was dirty, page 610 shows that the floor in front of the front passenger’s seat was dirty, and page 613 shows that the floor in front of the driver’s seat was very dirty.

[75] Her testimony was externally inconsistent with Ms. Battaglia’s testimony about P’s statements that she watched frightening movies with Ms. Southorn. P, however, was quite young when she made those statements, and P was internally inconsistent in various statements regarding the location where she watched frightening movies.

[76] Ms. Southorn’s testimony about the chair incident involving P in early 2019, discussed later, was externally inconsistent with a medical report concerning the incident (Exhibit 61). The author of the report, however, was not present at the incident and likely relied upon Ms. Ree’s verbal report, even though she was not present at the incident, and, she likely, in turn, relied upon, or altered, P’s verbal report. It is unclear whether the author of the medical report relied upon P’s statements as well, but P was quite young, and the event described in the report differed from the testimony of the adults who were present.

[77] Ms. Southorn’s testimony was not internally inconsistent. She was not evasive. Her testimony was not inconsistent with common sense – although it was externally inconsistent with the photographs of the Avenger.

[78] Overall, the court finds that caution is required with respect to her testimony.

David Watt

[79] Given that Mr. Watt is a friend of Mr. Southorn’s parents, it is likely that he had some bias, whether conscious or not, in favour of Mr. Southorn.

[80] Ms. Ree submitted that Mr. Watt’s testimony should not be believed.

[81] She submitted that his testimony about what occurred on an occasion when Ms. Ree picked up the children at the paternal grandparents’ home did not make sense. The court finds, however, that his testimony was not inconsistent with common sense and, although it differed from Ms. Ree’s testimony about an incident which may have been the same incident, it is not clear that Ms. Ree’s version of events was accurate.

[82] Ms. Ree noted that Mr. Watt’s testimony differed from Ms. Ree’s testimony about what P told her about the chair incident. Although there is an external inconsistency between his testimony and Ms. Ree’s testimony, Ms. Ree was not present at the incident, P was quite young at the time, and it is not clear that P’s alleged version of events was accurate.

[83] The court finds that Mr. Watt’s testimony did not demonstrate bias and was not internally or significantly externally inconsistent. He was not evasive, and his testimony was not inconsistent with common sense.

[84] Overall, the court finds that only limited caution is required with respect to his testimony.

Uwynn Wood

[85] Given that Mr. Wood is married to one of Mr. Southorn’s cousins, and is Mr. Southorn’s business partner, it is likely that he had some bias, whether conscious or not, in favour of Mr. Southorn.

[86] His testimony was externally inconsistent with Ms. Ree’s testimony regarding her behaviour as a parent, and her behaviour as Mr. Southorn’s partner. His testimony was externally inconsistent with Ms. Battaglia’s conclusions, based on statements made by P, about how the children were exposed to frightening movies. His testimony about the ownership of Mr. Southorn’s current truck was inconsistent with the subsequent stipulation by the parties that the truck was owned by Mr. Southorn, rather than P and L Electrical Inc. as Mr. Wood testified.

[87] Mr. Wood’s initial testimony, during cross-examination on June 20, 2019, that he did not know the location shown in a photograph of himself and Mr. Southorn (Exhibit 20), was internally inconsistent with his later testimony that the photograph was taken on May 11, 2019, Mr. Southorn did not have care of his children that day because it was Mother’s Day weekend, and the reason he was at that location was to hold a ladder so that Mr. Southorn could fix two ceiling fans.

[88] He was not significantly evasive, but his inability to answer many questions about the company’s financial affairs significantly affected his reliability as a witness.

[89] Overall, the court finds that significant caution is required with respect Mr. Wood’s testimony.

Kevin Southorn

[90] Mr. Southorn is a party to the proceeding and likely has a bias, whether conscious or not, in his own favour.

[91] Mr. Southorn’s testimony that he “signed the kids up to run around a field” in 2017 was internally inconsistent with his subsequent admission that he signed them up for soccer. In the court’s view, he was attempting to minimize the fact that he signed them up unilaterally.

[92] Mr. Southorn’s testimony that he did not attend the children’s gymnastics in 2018-19 because of his work schedule, and to avoid conflict with Ms. Ree, was internally inconsistent with his testimony that the only reason he did not attend was his work schedule, and that avoiding conflict with Ms. Ree was not a reason.

[93] His testimony in chief that his business expenses for 2018 included the purchase of a trailer, was internally inconsistent with his testimony that he did not know whether his 2018 business expenses included the purchase of the trailer.

[94] His testimony that he did not do any work for the new company in 2018 was internally inconsistent with his testimony that he could not recall whether he did work for the company in December 2018.

[95] Mr. Southorn’s initial testimony that he was paying $1,350 per month for a one-half share of the rent for the home he shared with Ms. Young, was internally inconsistent with his testimony later that $850 was his share of the rent and $500 was his share of a $1,000 per month payment they were making towards purchasing the property.

[96] Mr. Southorn’s testimony that he was “pretty sure” a deposit of $9,009.22 on December 21, 2018 into P and L Electrical Inc’s bank account was money transferred from a previous business account, was internally inconsistent with his testimony that he “believed” that the deposit was for electrical work at a cottage.

[97] His testimony in chief that he never heard back from Ms. Ree whether L was okay after being in a motor vehicle accident a few weeks earlier, was internally inconsistent with his subsequent testimony, under cross-examination, that he had forgotten that he read a letter from L’s doctor stating that the doctor had seen the children and they were both okay.

[98] Mr. Southorn’s testimony that he “thought” that the company’s ledgers for 2018, 2019, and 2020 were created in 2020, and that he and Mr. Wood did not refer to the ledgers “often” for information about the company’s expenditures because that information was accessible on Mr. Southorn’s cell phone, was internally inconsistent with his later admission that the ledgers were handwritten solely for court purposes, by simply copying entries from the company’s bank account records, although sometimes credits and debits were mistakenly put in the wrong column.

[99] His testimony was externally inconsistent with Ms. Hill’s testimony about what P told her when P was taken to speak to her by Ms. Ree, and with Ms. Battaglia’s testimony about what P told her when taken to see her by Ms. Ree. His testimony was also externally inconsistent with Ms. Ree’s testimony in many respects.

[100] Mr. Southorn was evasive during cross-examination on May 27, 2019, when he was asked questions about a photograph of himself and Mr. Wood, which Mr. Wood later testified was taken when they were working together on May 11, 2019 (Exhibit 20). Mr. Southorn testified that he did not know the location or what was going on in the photograph. He was then asked whether he was working. He replied that he was drinking a coffee. He was then asked whether he was at a job. He replied, “We hang out a lot.”

[101] He was also evasive during cross-examination when he was asked whether he told Ms. Ree that he received $620 for each child from the children’s Band around Christmas 2020. His initial response was that the money went into the children’s RESPs. When the question was repeated, he replied that Ms. Ree knew that he received money for himself from the Band at Christmas while they were together. He eventually admitted that he did not tell her that he had started receiving money from the Band at Christmas for the children.

[102] He was also evasive when he was asked during cross-examination whether he had taken the children to their dentist or doctor. His first response was that Ms. Ree had misled him about the identity of the dentist. His next response was that he had contacted the doctor. He then said that he had taken the children to the doctor, but when asked when, he replied that he was at the hospital on three occasions when L was taken there. He then stated that he had filled out paperwork for the dentist. At that point, he admitted that he had seen a letter from the children’s doctor that stated that Mr. Southorn had never attended with the children. He was asked again whether he had ever been with the children and Ms. Ree at the children’s doctor or dentist, and he admitted that he had not, but he blamed Ms. Ree for not informing him about the appointments.

[103] He was also evasive when he was asked whether Ms. Ree helped him with his work when they were together. His initial response was that it was so long ago. He then said that it was possible that she helped pull a wire if he was in a jam, but he could not remember.

[104] He was also evasive when asked whether all the funds deposited into P and L Electrical Inc.’s bank account in 2019 came from jobs. Mr. Southorn’s first reply was that he was not sure because he was still working at the casino in 2019, and if the company’s account became low, he might have transferred his own money into it. Then he testified that most of the deposits looked like they came from jobs. He concluded by saying that to the best of his knowledge all the deposits came from jobs.

[105] Mr. Southorn was also evasive by qualifying his answers about recent deposits his company’s bank account. For example, “I’m going to say” that $5,506.56 deposited on June 8, 2020 was from a cottage job, “I believe” but “I’m not sure” that $5,365.05 deposited at an ATM on June 15, 2020 was one of two cottage jobs, “I believe” $1,200 e-transferred in on July 20, 2020 related to paying bills, “I believe” $2,500 deposited on July 22, 2020 was for a boat port, $5,376.10 deposited by ATM on July 31, 2020 “could be” for multiple boat house jobs for Crew Docks, $2,270.05 deposited on August 4, 2020 was for “another job”, “I believe” $3,197.01 and $2,900 e-transferred on August 19, 2020 were for a boat port and a sewage pump, respectively, “I think” $3,448.10 deposited by ATM on August 31, 2020 was for Jane Lane “if I recall right”, “I believe” $1,000 deposited on September 8, 2020 was for a septic bed at a cottage, “I’m pretty sure” $5,500 deposited on October 2, 2020 is for the Jane Lane cottage, an ATM deposit for $610.10 on October 21, 2020 was “likely” for pot light materials, “I’m pretty sure” $572 and $400 e-transferred on October 26, 2020 were for a hot tub, and “I believe” $2,848.46 e-transferred on November 9, 2020 was for a boat port on an island on Gloucester Pool.

[106] Finally, as discussed below, the court is of the view that Mr. Southorn likely attempted to conceal, from Ms. Ree and the court, several business-related payments into his personal bank account in 2020.

[107] Overall, the court finds that considerable caution is required with respect to Mr. Southorn’s testimony.

Chantelle Ree

[108] Ms. Ree is a party to the proceeding and likely has a bias, whether conscious or not, in her own favour.

[109] Her testimony that it was necessary for her to apply to Ontario Works (OW) each month she wanted to receive support from OW, and that she did not claim $482 from OW every month in 2019, was internally inconsistent with her testimony that she received the equivalent of twelve $482 payments from OW in 2019.

[110] Her testimony on January 12, 2021, that she could not recall whether there were any months in 2020 that she did not accept a payment from OW, was internally inconsistent with her testimony on the same date that she had not decided yet whether to apply for OW support for November or December 2020.

[111] Her testimony that Ms. Southorn was not telling the truth when Ms. Southorn testified that Ms. Ree would hold P’s bedroom door shut while P screamed at bedtime, and that, actually, Ms. Ree would lie down in bed with P in those circumstances, was internally inconsistent with Ms. Ree’s testimony that when P cried at bedtime, Ms. Ree would let her cry for fifteen minutes, although sometimes Ms. Southorn would get up and take P into bed with her, rather than letting P cry.

[112] Her testimony that Mr. Southorn spanked L inappropriately around ten to twelve months after he struck Ms. Ree with a door, was internally inconsistent with her testimony that L was about six months old at the time of the door incident and that he was around ten to twelve months old at the time of the spanking.

[113] Her testimony that during the garage exchange incident, she said to Mr. Southorn, “Don’t push me” or “Get off me” and “Leave me alone”, was internally inconsistent with her testimony that she said, “Kevin, leave me alone, go.”

[114] Her testimony about the same incident, that she put her forearm up to protect herself, but she did not hit Ms. Southorn, was internally inconsistent with her testimony that it was possible that she hit Ms. Southorn.

[115] Her testimony that she did not believe that she had two business names, was internally inconsistent with her testimony that she sold dogs under the names Chantelle’s Dalmatians and CR Dalmatians.

[116] Ms. Ree’s testimony, during cross-examination on January 14, 2020, that roughly ten to thirteen pups were born in 2019, was internally inconsistent with her testimony the same day that she would have to check her records to determine whether more than twenty, or twenty-two, pups were born that year. It was also inconsistent with her testimony on January 19, 2021 that twenty-four pups were born and sold in 2019.

[117] Her testimony on February 7, 2020 that she did not recall whether there was a litter of ten pups born on April 26, 2019, was internally inconsistent with her testimony moments later that that suggestion was correct.

[118] Her confirmation on January 19, 2021, that ten pups were born in the April 2019 litter, was internally inconsistent with her testimony moments later that she could not remember the number of pups born per litter, “particularly as far back as then.” Nevertheless, she was able to state that there were three litters born in 2019 and that the other two litters were born on August 26 and September 15.

[119] Her subsequent testimony on January 19, 2021, that she did not know how many pups were born on September 15, 2019, was internally inconsistent with her testimony that she assumed there were ten, based on her records showing that ten pups were sold from that litter.

[120] Her testimony that Mr. Whittaker did not discipline the children was internally inconsistent with her testimony that he disciplined the children in the same way that she did, by giving them a timeout.

[121] As noted above with respect to Ms. Rose, Ms. Ree’s testimony about what Ms. Rose told her that P said, in response to Ms. Rose’s question to P about where had she learned such inappropriate behaviour, was externally inconsistent with Ms. Rose’s testimony.

[122] Ms. Ree’s testimony that Mr. Southorn was a “no show” at an exchange at 12 noon on Sunday, November 4, 2018, was externally inconsistent with their Ontario Family Wizard (OFW) emails earlier that day, which show that after receiving an email from Ms. Ree (at 10:12 a.m.) agreeing to an exchange at 12 noon, Mr. Southorn advised her by two emails (at 10:18 a.m. and 10:28 a.m.) that he was no longer agreeable to move the exchange time up to 12 noon instead of 6:30 p.m.. Ms. Ree did not reply until 12:16 p.m., when she emailed that she was waiting for him at the exchange location (Exhibit 81).

[123] Her testimony indicating that Mr. Southorn might have hit her with the door unintentionally was externally inconsistent with Mr. Millward’s report that Ms. Ree told him that Mr. Southorn hit her with the door intentionally. Her testimony that she was cut near her eye by the door was externally inconsistent with Mr. Millward’s report that did not mention such an allegation. Furthermore, her allegation, mentioned in Mr. Millward’s report, that Mr. Southorn jumped on the family’s truck when he was enraged at her, was externally inconsistent with her testimony which described the incident without that allegation. Furthermore, her testimony that Mr. Southorn pushed her at the start of that incident was externally inconsistent with Mr. Millward’s report that Mr. Ree told him that the parties shoved each other at the start of the incident.

[124] Mr. Ree’s testimony about her application for membership at the Georgian Bay Native Friendship Centre was externally inconsistent with her completed application form and the attached copy of her membership card (Exhibit 100). She testified that she did not say or “put down” on the form that she was “native” and that she only marked the children as “natives” on the application. She said that she checked the only box that was available. The application form has a line near the top for the name of the “Applicant”. Ms. Ree’s name is printed on that line. Immediately underneath are the words “Type of Membership”. To the right of those words are two check boxes, one underneath the other, from which to select. To the immediate left of the top box is the word “Regular”. To the immediate left of the bottom box is the word “Associate”. To the right of the top box is the following, “(At least 18 years of age & self-identifies as Aboriginal)”. To the right of the bottom box is the following, “(At least 18 years of age & does not self-identify as Aboriginal)”. Ms. Ree checked the top box. Located underneath “Type of Membership”, is an area labelled “Children” clearly intended for the names of the applicant’s children. P and L’s names are printed in this area. Attached to the application is a copy of a membership card issued in Ms. Ree’s name which states, “Type of membership: Regular”.

[125] Ms. Ree’s initial testimony that Mr. Southorn informed her by email on October 11, 2019 that she would not have the children at all on Hallowe’en, was externally inconsistent with the email chain (Exhibit 82) wherein the parties attempted but were unable to reach a compromise exchange time, so Mr. Southorn returned the children to her at 6:30 p.m. which gave her time to take the children trick and treating, but she chose not to do so.

[126] Ms. Ree’s testimony that she knew that P’s reading skills were not “zero”, was externally inconsistent with a message P’s teacher sent to both parties in late 2019.

[127] Ms. Ree’s testimony was externally inconsistent with Mr. Southorn’s testimony in many respects.

[128] Ms. Ree was evasive by qualifying some testimony that, by its nature, would not normally be qualified. For example, she testified, “I believe” that the children spent two weeks with Mr. Southorn in the summer of 2019. When asked whether she did not know, she responded that she was “pretty sure”. When asked again whether she did not know, she replied, “Two weeks.”

[129] Ms. Ree’s testimony was evasive when she was asked on January 19, 2021 whether ten pups were born on September 26, 2019. Her answer was that she had contracts for four sales from that litter. She was then asked how many pups were born that day, and she replied that she assumed there were four. She added that she did not remember the number of pups per litter, particularly as far back as 2019. It must be borne in mind, however, that she was cross-examined closely on this very topic in January and February of 2020 and gave equally unsatisfactory replies at that time. It must also be borne in mind that she admitted in January 2021, that only three litters were born in 2019.

[130] Her testimony was evasive when she was asked, during cross-examination, who sells her pups. She replied that she was the only one who signed the contracts and received the money. Moments later she testified that she was not the only one who sold her pups. She said that some of her clients get referral fees. She also testified “I believe” Mr. Whittaker posted advertisements on the internet. When it was suggested to her that Mr. Whittaker’s name, and not her name, was on a Kijiji ad, she said that she would have to see the ad. When she was then asked whether she gave him two pups to sell, her reply was that anyone could advertise for her.

[131] Her testimony was evasive when she was asked, during cross-examination, whether she told Mr. Southorn that she had informed the children’s school that Mr. Whittaker was permitted to pick up the children. She replied that it was on the form that she filled out for the school.

[132] Ms. Ree’s testimony about Exhibit 53, a photograph of a vehicle apparently belonging to Tyler and Jennifer Watson, parked between Ms. Ree’s vehicle and Mr. Southorn’s vehicle at an exchange at Foodland was not believable. There is also a photograph of the Watsons entering Foodland. Ms. Ree testified that these photographs proved that Mr. Southorn had brought the Watsons to the exchange even though a previous requirement for each parent to be accompanied by a third party was no longer in place. In the court’s view, however, all the photographs show is that the Watsons were likely customers at Foodland.

[133] Ms. Ree’s testimony about Exhibit 13, photographs apparently taken on May 4, 2019, did not make sense for the reason discussed below.

[134] Ms. Ree testified that she took the photographs. She said that she saw Mr. Southorn driving and then they both turned onto Moonstone Road. She testified that she made the turn because she was going to a friend’s house. She stated that Mr. Southorn then pulled over, got out of his truck, and yelled at her, asking why she was following him. She said that she stayed in her car, instead of driving on, even though she could have done so, because she was afraid of him, and because she did not understand the reason he pulled over and was yelling at her. She testified that she replied, “I’m not following you; I’m just driving”, and then she drove away.

[135] Some of the photographs were taken after the vehicles pulled over on Moonstone Road. These photographs show that the road was sufficiently open for Ms. Ree to have continued past when Mr. Southorn pulled over; there was no apparent reason for her to have stopped, blocking at least part of the roadway, while taking photographs, if she was truly on her way to visit a friend. Furthermore, one of the photographs of his truck (and trailer) was apparently taken while the vehicles were driving on Highway 12, before they turned onto Moonstone Road. If Ms. Ree was not following Mr. Southorn, and was “just driving” as she said, it does not make sense that she took the photograph of the truck and trailer on Highway 12, before the parties turned onto Moonstone Road where he pulled over and got out of his vehicle. She provided no explanation for taking that photograph. Ms. Ree did testify, at another time, however, that a lawyer told her early in this litigation, to document everything that might be important, so she took photographs, some of which were entered into evidence. Given the nature of the issues at trial, there were various logical reasons for Ms. Ree to have taken the photograph on Highway 12, but the explanation she gave was not one of them.

[136] Ms. Ree’s testimony about an incident involving adults yelling at each other in the presence of P was not believable, as discussed immediately below.

[137] She said that she told Mr. Southorn that P could stay with him overnight, but because P had a parent-teacher interview the next day, she went to his home to get P for the interview. She stated that Mr. Southorn gave P to her, but his older sister started yelling and screaming that Ms. Ree and P should not be there and to get off the property. Ms. Ree also alleged that Mr. Wood’s wife told Ms. Ree to get off the property and that “we” were not wanted. It does not make sense to the court, however, that Mr. Southorn’s sister would yell or scream that P should not be on the property, nor does it make sense that Mr. Wood’s wife would say that P was not wanted.

[138] Ms. Ree testified that she yelled at the two women to go back inside. She said that they were still yelling and “cussing at us”. Again, it does not make sense to the court that Mr. Southorn’s sister and Mr. Wood’s wife would yell and swear at P in the situation described by Ms. Ree.

[139] Ms. Ree testified that Mr. Southorn then grabbed his sister and pulled her toward the house. Ms. Ree said that P was confused and crying in her vehicle, and that she had to calm P and herself. Ms. Ree testified that after the parent-teacher interview, she informed Mr. Southorn that she and P would not be subjected to verbal harassment by his family, and that she would only meet him alone when she returned P. She explained that her reason for that stipulation was that she did not want P to hear all the “cuss” words the women had said to “P and I”, although she qualified, at that point, that the invective had been directed “mainly” at Ms. Ree. Again, it does not make sense that Mr. Southorn’s sister or Mr. Wood’s wife would have been swearing at P in the context described by Ms. Ree – in other words, if there was any screaming by the two women in the manner Ms. Ree described, it would have been obvious to her that all of the yelling, screaming, and swearing was directed exclusively at her.

[140] Ms. Ree’s testimony, during cross-examination on February 7, 2020, that she would have to review her emails with Mr. Southorn to be able to say whether he told her that his Band had approved $2,000 in funding for tutoring for P, was not believable given that he told her that in an email on January 20, 2020 (Exhibit 105). Eventually she conceded “I think” Mr. Southorn received $2,000 from a “slush fund”, but she unbelievably maintained that she did not know whether it came from his Band. His email stated, “As for the band tutoring – this year they had around $2,000 left from a slush fund they use for funding like tutoring towards P’s tutoring while she is with me…After the funding runs out the money will come out of my pocket.” His email was a response to her email, sent less than hour earlier, asking him, “How much [P’s] native band is covering towards the cost of her tutoring.”

[141] Ms. Ree’s testimony that she took photographs post-separation because a lawyer advised her to document everything, but she took the photographs for her own use only, and not for court, was not credible given the nature of the photographs presented as evidence. The nature of the photographs, and Ms. Ree’s testimony, made it obvious that they were taken for the purpose of this litigation.

[142] In addition to being internally inconsistent, as noted above, Ms. Ree’s testimony on January 14, 2020 that she would have to check her records to determine whether more than twenty or twenty-two pups were born in 2019 was not believable. Given that her only earned income was from breeding dogs, it was not credible that in January of 2020 she did not know how many pups were born in 2019. The fact that she later testified, during her cross-examination on January 19, 2021, that only three litters were born in 2019 (April, August, and September) confirmed that her earlier testimony was not credible.

[143] It was also not believable when she testified on January 14, 2020 that Riley’s pups were born “around” September 2019. Again, given that dog breeding was her only source of earned income, it was not credible that a she would not know, with certainty, which month one of her dogs gave birth only a few months earlier. For the same reason, it was not believable when she testified on the same date, “I believe” Lexi had two litters in 2019, but she would have to check her records to make sure.

[144] It was evasive and not believable when she testified on February 7, 2020 that she would have to check her records to be able to say how many litters were born in 2019. Her testimony was also evasive and not credible, when it was suggested that three or four litters were born in 2019, and she responded “I think” two litters were born in 2019, but she would have to check her records. When she was asked whether ten pups were born on April 26, 2019, her initial answer that she did not recall was evasive and not credible. Similarly, her testimony was evasive and not believable when she was asked whether six pups were born on September 15, 2019, and she replied that she would have to check her records. The same was true of her answer that she would have to check her records to determine whether a litter of six pups were born after September 2019, or in November 2019.

[145] Moreover, her testimony on January 19, 2021, that three litters were born in 2019, and that they were born in April, August, and September, and that Lexi had the litters on April 26 and August 26, 2019, underlined that her testimony on February 7, 2020 was not credible or reliable.

[146] Additionally, it was evasive and not believable when she testified on January 19, 2021 that Lexi “probably” had a caesarean section in August 2019. Moments later, during cross-examination, she agreed that Lexi had an emergency caesarean section at that time and one or two of the pups were stillborn. She also testified that she assisted the veterinarian with the births. Incredibly, she continued to maintain that she did not know how many pups were born in that litter.

[147] Her testimony on January 19, 2021 that she could not recall whether Mr. Whittaker had stayed at her home for more than three weeks at the start of the provincial stay at home order in March 2020, was not credible.

[148] From 2011 to 2016, Ms. Ree falsely claimed on her income tax returns that she was single and residing at her father’s home in Barrie. She testified that she knew that was wrong when she filed her returns.

[149] In summary, Ms. Ree’s testimony was at times internally inconsistent, externally inconsistent, evasive, inconsistent with common sense, and simply not credible.

[150] Overall, the court finds that considerable caution is required with respect to her testimony.

Detailed History – Parenting and Financial

[151] The court has carefully reviewed and considered all the evidence. The parties raised various issues that may have seemed significant when considered in isolation but lose significance when considered in the context of all the evidence. Some examples are the incidents involving L’s broken wrist, an overnight spent in a Walmart parking lot, L shooting at a turkey, and P’s cold sore. It would serve no useful purpose to repeat all the evidence. Instead, the court will set out the most salient aspects of the evidence which provide a factual context for the court’s analysis. Unless indicated otherwise, what follows are findings of fact by the court.

2010 to August 2016

[152] The parties met in the spring of 2010. Ms. Ree, age 19, was living at her father’s home. Mr. Southorn, age 21, was living at his parents’ home.

[153] Prior to meeting, both parties had completed grade 12. Ms. Ree attended grade 12 a second time to improve her math grades. She also attended the first semester of a dental hygienist programme at Georgian College, before withdrawing when she realized that she did not want to work in that field. Mr. Southorn attended an electrician apprenticeship programme at Georgian College.

[154] When they met, Mr. Southorn was an apprentice electrician working at Wallwin Electric. He was working long hours, and at times he had to work some distance from his home, requiring overnight stays. Ms. Ree was an employee of a pet store in Barrie where she had worked part-time since starting high school. As part of her duties, she cleaned and groomed dogs.

[155] In February 2011, Ms. Ree was offered a position in the Police Foundations course at Georgian College commencing in the Fall 2011, which she accepted.

[156] Ms. Ree became aware that she was pregnant in April 2011.

[157] She testified that although she was advised that she could postpone the physical requirements of the policing programme for a year due to her pregnancy, she decided, before the acceptance deadline of May 2, 2011, to withdraw her acceptance because Mr. Southorn did not want her to attend, particularly since she was pregnant. She testified that he was not comfortable with her attending because there were men taking the programme, so, “I gave up my dream of going through Police Foundations.” Mr. Southorn did not deny this evidence.

[158] She started a full-time six-month contract as a waitress and occasional hostess at a restaurant inside Casino Rama that summer. She testified that, for a while, she was working part-time at the pet store in Barrie, part-time at a pet store in Alliston, and full-time at Casino Rama. She left the Casino Rama job in November so that she could visit her brother in South Carolina who had been injured in an accident.

[159] When she returned, she continued working part-time at the pet store in Barrie.

[160] There is a discrepancy in the evidence about when the parties started living together.

[161] Ms. Ree testified that they started living together in July 2010, because she stayed at Mr. Southorn’s parents’ home more than she stayed at her father’s home. She also testified, however, that she lived at her father’s home while she worked at Casino Rama. Ms. Rose testified that Ms. Ree and Mr. Southorn “got together” in July 2011. Mr. Southorn said that they started living together at his parents’ home in November 2011. His mother said that they started living together in her home in November 2011. Mr. Wood said that he met Ms. Ree shortly before P was born (P was born in January 2012).

[162] The court finds on a balance of probabilities that the parties started cohabiting in November 2011.

[163] Mr. Southorn’s parents did not require the parties to pay rent so that they could save for their own home.

[164] Ms. Ree testified that until a week before P’s birth she was working part-time at the pet store in Barrie.

[165] P was born January 12, 2012.

[166] Ms. Ree testified that she did not pursue attendance at the Police Foundations programme after P was born because Mr. Southorn remained opposed to her attending. Mr. Southorn did not deny this evidence.

[167] Ms. Ree testified that she did all the did the domestic work, including caring for P, making meals, and doing the dishes, while Mr. Southorn worked long hours away from his parents’ home.

[168] She testified that because she did not like clutter, and because Mr. Southorn’s parents were working full-time outside their home, she maintained the tidiness and cleanliness of the entire home so that she was comfortable living there. She testified that she also initiated and contributed to repairing some drywall, repainting, replacing a ceiling fan, repairing some flooring, replacing some trim, putting in a set of French doors, and decluttering the home so that she would feel that the environment was be clean, tidy, and safe. Ms. Rose testified that the home was very cluttered and that she helped Ms. Ree with decluttering and cleaning.

[169] Ms. Ree testified that she felt that it was unfair when Mr. Southorn went away for work when P was about 2 ½ months old because she felt that they were supposed to raise P together. She testified that he told her that he believed it was her responsibility to care for P, which she did not expect.

[170] She testified that Mr. Southorn came back home after she spoke to him about being away. She said that she expected him to help with the domestic work, including caring for P, while he worked long hours outside the home. She said that he would come home from work, lie on the couch, and not help her, which made her angry. Ms. Rose also testified that Mr. Southorn would lie on the couch at home.

[171] Mr. Southorn became a journeyman electrician in 2013.

[172] The parties purchased their own home in August 2013. It required extensive renovations which the parties and some relatives took on. The parties did not move in until just before L’s first birthday on November 1, 2014.

[173] L was born November 1, 2013.

[174] Ms. Ree testified that P and L woke up a lot during the night. She said that she asked Mr. Southorn to get up during the night to help, but he would not.

[175] Ms. Ree testified that she learned how to multi-task to care for the children, the family pets, and the home. She said that she did most of the cooking because Ms. Southorn worked a lot and was not always available to cook. She stated that Mr. Southorn cooked sometimes, but not often.

[176] Ms. Southorn testified that she cooked for everyone except the two nights per week that she worked nights. She testified that when Mr. Southorn got home, Ms. Ree would tell him that it was his turn to do domestic work. Ms. Southorn testified that she would take care of the children four mornings per week while Ms. Ree slept in. Ms. Ree denied sleeping while the children were awake.

[177] Mr. Southorn testified that he and Ms. Ree agreed that when he got home from work, he would feed and care for the children, so she could relax. He testified that Ms. Ree would help when he cooked and bathed the children, but he did most of the work around the house. He also testified that if he had a day off or got home early, he would help Ms. Ree.

[178] The court finds, based on the assessment of the credibility and reliability of the witnesses and a consideration of all of the evidence, that, on a balance of probabilities, Ms. Southorn’s testimony about the division of household labour, including childcare, was accurate. The court is not persuaded on a balance of probabilities that Ms. Ree’s or Mr. Southorn’s accounts about the division of household labour were entirely accurate. In particular, the court is not persuaded on a balance of probabilities that Ms. Ree did most of the cooking while the parties lived with Ms. Southorn, that Ms. Ree never slept while the children were awake, or that Mr. Southorn did most of the work around the house.

[179] Ms. Ree described an incident when she was trying to get Mr. Southorn to put P to bed. She said that when Mr. Southorn refused angrily, she shut the French doors to prevent him from leaving the room they were in. She testified that he opened the doors forcefully and, whether intentionally or not, a door hit her arm and head and caused her to fall. She said that Mr. Southorn stepped over her and put P to bed. She said that her head was bleeding, so she quickly gathered the children and the family dog and left in her vehicle. In 2018 she told Mr. Millward that Mr. Southorn hit her with the door intentionally. The court is not persuaded on a balance of probabilities that Mr. Southorn intended the door to strike Ms. Ree. Nor, given that there is no reference in the OCL report to Ms. Ree being struck on the head, is the court satisfied on a balance of probabilities that she was. The court is satisfied on a balance of probabilities that the door accidentally hit her arm and caused bruising.

[180] Ms. Ree testified that when L was between ten to twelve months old, Mr. Southorn inappropriately and angrily spanked him so hard that he left hand marks and welts. She testified that she quickly gathered the children and the family dog and left in her vehicle. Mr. Southorn denied ever spanking either of the children. Given Mr. Southorn’s denial, Ms. Ree’s internally inconsistent testimony about when this alleged incident occurred, as discussed above, and the court’s concern about the credibility and reliability of Ms. Ree’s testimony generally, the court is not satisfied on a balance of probabilities that this incident occurred as she described.

[181] Ms. Southorn testified that on more than one occasion she discovered that Ms. Ree had left the children alone in a bathtub. She said on one occasion, Ms. Ree was helping her lift something, when it occurred to her to ask Ms. Ree where the children were, and Ms. Ree told her they were in the bathtub. Ms. Southorn said that she ran upstairs and found the children in the bath. On another occasion, Ms. Southorn testified, Ms. Ree was outside the home visiting the next-door neighbour when Ms. Southorn discovered the children in the bathtub. She took the children out of the bath. She said that Ms. Ree did not return for another fifteen minutes. Ms. Ree testified in response that, although she did not recall leaving the children alone in a bathtub for “ten minutes”, if she had done so and left the home, Ms. Southorn would have been present in any event. Given the absence of a denial by Ms. Ree, the court finds on a balance of probabilities that Ms. Southorn’s testimony was accurate about both incidents.

[182] Mr. Southorn testified that Ms. Ree started going out frequently, sometimes for days at a time, with her friends in 2014. He testified that was fine with him, and that he stayed at home with the children. He said that their relationship took a turn for the worse in late 2014 when Ms. Ree told him that she had been intimate with someone else. Although Ms. Ree did not directly deny the latter statement, she testified that Mr. Southorn objected to her going out with friends and that he insisted that any time she spent with friends be spent at the parties’ home. The court is unable to determine on a balance of probabilities whether Mr. Southorn objected to Ms. Ree spending time with friends outside their home or, if so, whether she complied. The court does accept, however, Mr. Southorn’s latter statement, although it is of limited relevance, i.e. as part of the narrative leading to the following paragraph which relates to the children.

[183] Mr. Southorn left Wallwin and became an electrician at Casino Rama in early 2015. His income at the casino was tax-free because he is a member of the Beausoleil First Nation. He testified that his income was higher at Wallwin, but the casino job was eight hours a day, five days a week, so he took the job to be able to work on his relationship with Ms. Ree and to spend more time with the children. Ms. Ree did not dispute this evidence, which the court accepts.

[184] Ms. Ree testified that, on one occasion, Mr. Southorn ripped down the shower curtain while she was showering and cut up her credit card in front of her because he believed that she was using it too much. She testified that this was embarrassing for her. Given the absence of a denial by Mr. Southorn, the court finds on a balance of probabilities that this occurred.

[185] Ms. Ree also testified that on one occasion Mr. Southorn shoved her, put his fist through their truck mirror, and tore the reflector off the truck and threw it at the windshield, while the children were present. As noted earlier, however, this testimony was externally inconsistent with the OCL report in two respects. The court finds that this allegation was not proven on a balance of probabilities.

[186] There was contradictory evidence about whether Ms. Ree spent all summer long weekends and some other summer weekends away from home without taking the children. Ms. Ree testified that when she went away for a weekend, she would take the children. Mr. Southorn testified that she would not take the children. Ms. Rose supported Ms. Ree’s testimony. Ms. Southorn and Mr. Wood supported Mr. Southorn’s testimony. The court is unable to determine, on a balance of probabilities, which account is true.

[187] Mr. Southorn testified that he asked Ms. Ree to work when the children were old enough. He said that she made one attempt to make jewelry, she tried baking cakes but quit, and next they got a female dog so they could breed dogs but, in his opinion, that was not full-time work because the female dog feeds the pups, cleans them, and cares for them.

[188] In March 2016, Mr. Southorn obtained his master electrician licence and started doing some electrical work for P and L Electrical (P and L), a sole proprietorship he created at that time, while still employed full-time at Casino Rama.

[189] Ms. Ree testified that she helped Mr. Southorn with two jobs in 2016: one in Sunderland and one in Victoria Harbour, by purchasing and taking materials like wire, boxes, and marrettes to the job site, and by passing tools to him. She testified that, on these occasions, she left the children with Ms. Southorn or Ms. Rose. During cross-examination, however, she testified that the longest period she spent at the Victoria Harbour site was three hours, on one day. On some other days, she delivered some material to the worksite, accompanied by the children. She also clarified that total time she was at the Sunderland job was about three hours.

[190] Mr. Southorn testified that Ms. Ree brought him lunch sometimes, and material sometimes, and possibly pulled a wire to help, but he could not say that with certainty because of the passage of time.

[191] Ms. Ree testified that she had a power of attorney and signing authority at the bank for the new business account. She testified that she never wrote a cheque on the account, but she deposited cash into the account a couple of times. She testified that she also kept a book listing the business’ jobs and she made notations about payments received. She testified that Mr. Southorn created the invoices.

[192] Mr. Southorn testified that the business received cash for one job prior to his separation from Ms. Ree. He testified that Ms. Ree was not involved in the bookkeeping although she made some deposits at the bank.

[193] Ms. Ree testified that Mr. Southorn damaged the headboard and a post of their bed when he punched it in anger after a telephone conversation with his father. She testified that she was not present when this occurred, and that Mr. Southorn told her. Mr. Southorn testified that in 2015 he hit the headboard panel with the back of his hand when he was upset, which caused some damage. He testified that more significant damage was caused later, when he was playing with P on the bed and he fell back and hit the headboard. Exhibits 21, 74, and 90 are photographs of the damage, taken by Ms. Ree after the parties separated. Exhibit 74 shows that the headboard panel was made from very thin material. Exhibit 74 also shows that there was no apparent damage to the drywall behind the headboard. It also shows that the most damaged area is roughly in the centre of the headboard panel. Similarly, Exhibit 21 shows that the damage is roughly in the centre of the headboard. The court finds that the location of the damage, the apparent thinness of the panel material, and the absence of damage to the drywall are more consistent with Mr. Southorn’s version of what occurred. Furthermore, he was present, and Ms. Ree was not. The court finds on a balance of probabilities that Mr. Southorn’s testimony was accurate.

[194] Mr. Southorn proposed to Ms. Ree in July 2016, and she accepted. The engagement lasted until the end of August when she accused him of having been intimate with someone else. He testified that the next day, she failed to deposit some cash earned by the business into the business account that was needed to cover the next truck payment. He testified that, at that point, he considered the relationship over. Ms. Ree testified that Mr. Southorn ended the relationship.

[195] From 2011 to 2016, Ms. Ree falsely claimed on her income tax returns that she was single and residing at her father’s home in Barrie. She testified that she knew that was wrong when she filed her returns.

Detailed History - Parenting

September 2016 to December 2016

[196] P started school in September 2016. Mr. Southorn testified that he was unable to attend the first day of school with her because he had low seniority at the casino and had to work.

[197] Mr. Southorn, on the advice of a lawyer, tried to sleep in the basement of the parties’ home off and on, while also sleeping at his parents’ home, in September and early October.

[198] He testified that Ms. Ree agreed to him having parenting time for a few hours before his grandmother’s funeral, and for an overnight for his sister’s wedding, in September. Ms. Ree testified that, starting sometime in September, Mr. Southorn had parenting time on alternate weekends, which were his days off.

[199] Mr. Southorn testified that on October 9, 2016, he left the house locked and secure in the morning, but when he returned, the door was ajar, a window was open, and a new printer, still in the box, was missing. He testified that he understood that Ms. Ree was in Orangeville with the children, so he called the police. He testified that when the police pointed out that more valuable items were not missing, it occurred to him that possibly Ms. Ree’s brother took the printer because Ms. Ree had recently given her brother a dresser belonging to Mr. Southorn. Ms. Ree testified that she removed the printer and some other items, including some of Mr. Southorn’s files. She said that she removed these items because Mr. Southorn had been taking items from the home, including a tractor that he sold later. Mr. Southorn stayed at the house that night, but he never stayed there again. Ms. Ree continues to reside there with the children. As part of the parties’ property settlement, she became the sole owner of the residence.

[200] After the printer incident, Ms. Ree allowed Mr. Southorn parenting time with L from Tuesday to Thursday every week, which coincided with his time off work, and with P from about 5 p.m. until 8 p.m. on Tuesdays and Wednesdays. Her rationale for different schedules for each child was to maintain a routine for P during the school week, i.e. sleeping at Ms. Ree’s home and taking the school bus to and from Ms. Ree’s home.

[201] Ms. Ree testified that for a while, at exchanges at her home (which was jointly owned at that point), Mr. Southorn would push by her and search the house to see whether a man was present. Mr. Southorn did not deny this evidence.

[202] Mr. Southorn testified that sometime around that point in time, at an exchange, he asked Ms. Ree whether he could use their truck for some work. He testified that she called her father, then said no, and then her father attended the exchange and put a club locking device on the truck’s steering wheel so that Mr. Southorn would not be able to operate the truck. The ownership for the truck was in both parties’ names. The financing for the truck was in Mr. Southorn’s name alone.

[203] Mr. Southorn testified that he attended P’s Christmas school assembly.

[204] Ms. Ree agreed to both children having some overnight stays with Mr. Southorn during the Christmas school vacation.

2017

[205] On January 10, Mr. Southorn informed Ms. Ree by text that, having parented both children for overnights during the Christmas school vacation, and because P cried on the preceding school days she could not stay overnight with him and L, he had decided to keep both children overnight on Tuesdays and Wednesdays going forward. Ms. Ree called the police because the change had not been discussed and she did not believe that it was in P’s best interests to have exceptions to the routine of taking the school bus every day to and from her home. The police did not intervene.

[206] On February 2, in response to an enquiry from Mr. Southorn, a police officer advised him to leave the truck with Ms. Ree pending a court decision about property, but the officer also told him that the police would not enforce the division of property, and would only stand by to keep the peace if Mr. Southorn chose to collect the truck.

[207] On February 6, 14, and 16, P had bodily function accidents at school. Ms. Ree implied that these incidents were a result of P spending overnights with her father during the school week. The court is not satisfied on a balance of probabilities that Ms. Ree’s conjecture was correct.

[208] On February 16, there was an incident at an exchange at Ms. Ree’s residence when the children were being returned. Ms. Ree called the police and alleged that she had been assaulted by Mr. Southorn’s mother.

[209] Ms. Ree’s testimony about the incident was as follows. Mr. Southorn and his mother came into the garage. Mr. Southorn was carrying P. Ms. Southorn was carrying L, who was asleep. Ms. Southorn gave L to Ms. Ree and whispered into her ear, “This is not happening anymore.” Mr. Southorn gave her P. As Ms. Ree headed toward the door, Mr. Southorn asked her what she and her boyfriend ate, because his cousin saw her having lunch with a male friend on February 1. She did not respond. As she reached for the door handle, Mr. Southorn tried to shove her and grab P away from her. Ms. Ree told him, “Don’t push me” or “Get off me” and “Leave me alone”, or “Kevin, leave me alone, go.” She then fell to the ground with L. At that point, Mr. Southorn’s mother “ripped” L from her arms and started putting her forearm to Ms. Ree’s neck while Ms. Ree was on the ground, and started hitting Ms. Ree’s neck repeatedly with her forearm, which made Ms. Ree unable to breathe for “a bit.” Ms. Ree put her forearm up to protect herself and possibly hit Ms. Southorn. After Ms. Ree got up, Ms. Southorn said that Ms. Ree had hit L. Ms. Ree opened the basement door to the house, her father and brother came to the garage area, and they were given P and L by Mr. Southorn and his mother.

[210] Mr. Southorn’s mother’s account follows. The exchange took place in the garage. Both children were asleep. Mr. Southorn gave P to Ms. Ree, and Ms. Southorn gave L to Ms. Ree. There was some discussion about the truck. Then P slipped down Ms. Ree’s arm and Ms. Ree was dragging her by her arm. Mr. Southorn yelled at Ms. Ree not to drag P. Ms. Ree was yelling and dropped L onto some bags. Ms. Southorn reached down to pick up L. Mr. Southorn tried to pick up P. Ms. Ree tried to push toward Ms. Southorn but pushed into L. Then Ms. Ree pushed at Ms. Southorn again and Ms. Southorn’s hat fell off. Ms. Southorn said to Ms. Ree, “Don’t hit me.” Then Ms. Ree jumped back and said, “Don’t hit me, don’t hit me.” Then Ms. Ree’s father and brother came into the garage, and Ms. Southorn told Ms. Ree, “This has got to stop.” Ms. Southorn passed L back to Ms. Ree. At that point, P was half awake and holding on to Ms. Ree.

[211] Mr. Southorn testified that during the exchange he picked up P, Ms. Ree dropped L on a pile of bags, Ms. Southorn picked up L, and Ms. Ree knocked off Ms. Southorn’s hat.

[212] Ms. Ree’s father testified that Mr. Southorn and his mother came into the basement; he could hear heated words right away. Then he heard a scream and, “Stop pushing.” He told his son to go downstairs and he followed. Ms. Ree was holding the children when he arrived.

[213] Ms. Ree’s brother did not testify.

[214] Both Ms. Ree and Mr. Southorn testified that they audio-recorded the exchange but neither recording was presented as evidence.

[215] The court finds that there was no reason for Ms. Southorn to whisper, “This is not happening anymore” at the start of the exchange as alleged by Ms. Ree. On the other hand, Ms. Southorn’s testimony that she made a statement of that nature to Ms. Ree after the exchange had gone badly awry, makes sense. Ms. Ree’s account was externally inconsistent with her father’s evidence. Ms. Ree testified that Mr. Southorn and his mother handed the children to her father and brother when they arrived in the garage area. Her father testified that Ms. Ree was holding both children when he arrived in the basement. The court does not accept Ms. Ree’s account which was internally inconsistent about what she said to Ms. Southorn, was externally inconsistent with her father’s account, did not make sense, and had an exaggerated quality. Mr. Southorn’s account was lacking in detail. The court accepts Ms. Southorn’s account on a balance of probabilities, despite the external inconsistency with Mr. Ree’s account about whether she entered the basement from the garage which, considered in context, of is quite limited significance.

[216] Since that event, at the suggestion of the police, all exchanges have been at a neutral location.

[217] On March 21, the children’s doctor changed a prescription medication dose from 5 ml. to 7 ml. The physician handwrote the change on the container. Although Mr. Ree tried to explain this to Mr. Southorn at an exchange, Mr. Southorn would not listen or accept what Mr. Ree was saying. Mr. Southorn called the CAS and reported that the prescription was changed by Ms. Ree.

[218] On April 7, at about 1 a.m., without notice to Ms. Ree, who had just fallen asleep, Mr. Southorn and his mother attended Ms. Ree’s residence and took the parties’ truck, leaving his Dodge Avenger in exchange. Mr. Southorn testified that his lawyer advised him to take the truck. Ms. Ree testified that she had previously offered, through her lawyer, to exchange the truck for the Avenger if Mr. Southorn had the Avenger certified and the loan on the truck was paid off. Mr. Southorn testified that he had been using the Avenger to drive to and from work and that it was running well. He and his mother moved Ms. Ree’s personal items that were in the truck to the Avenger. They left two child seats in the Avenger. Ms. Ree testified that she was awakened by the family dog barking, she saw that the truck was gone, so she called the police and reported a theft of the truck. She testified that she was upset and hysterical. She testified, that while she was on the telephone, she saw the truck pull into the driveway followed by the Avenger. She said that Mr. Southorn got out of the Avenger and got into the truck which left. She reported this to the police. She testified that P asked her why Mr. Southorn took the truck and she calmed her. She told the police that she would not be comfortable driving the Avenger because Mr. Southorn could accuse her of theft. The police spoke with Mr. Southorn and assured Ms. Ree that she could drive the Avenger because Mr. Southorn consented. Mr. Southorn sent her a text advising her that the key for the Avenger was in her mailbox (Exhibit 15). Nevertheless, Ms. Ree decided that she would not drive the Avenger because she had nothing in writing from Mr. Southorn saying that she could do so, and because the Avenger was not as safe and reliable for the children as the truck. Instead, she started driving a vehicle owned by her father. The Avenger remained in her driveway for two or three days; Ms. Ree testified that it sat there because she was afraid to move it in case it was reported stolen. Ms. Ree and her father then took the Avenger to a repair shop for an estimate for certification. A list of recommended work was provided (Exhibit 57). Ms. Ree testified that she decided not to have the work done because the Avenger was not in her name. She testified that her father took the Avenger to a safe location. She testified that she did not return it to her driveway because Mr. Southorn could take it and leave her without a vehicle. Mr. Ree took it to, and left it in, the fenced gravel pit where he worked.

[219] Mr. Southorn testified that, on his lawyer’s advice, he traded in the parties’ truck for another truck, with the hope of avoiding conflict that might arise if he took the original truck to exchanges.

[220] Several months later, in mid-July, when the Avenger ownership was due for renewal, Mr. Southorn, with police assistance, retrieved some of his personal papers from Ms. Ree’s residence and retrieved the Avenger from the gravel pit. It had been sitting; the battery was dead, and the brakes were seized and rusting.

[221] On May 9, Ms. Ree contacted the police to allege that Mr. Southorn’s father had engaged in sexual misconduct with P. At that time, Mr. Southorn was still residing at his parents’ home. The allegation originated from Ms. Ree’s friend, Ms. Rose, who alleged that she witnessed inappropriate behaviours by P at bath time, and that when she asked P where she had learned the behaviours, P replied with a single word, “Papa.” Ms. Ree, on the other hand, testified that Ms. Rose told her that P said that she did this, “at Meemaw’s house with Poppa during bath time.” Ms. Ree also testified that she spoke with P privately at that time, and P told her directly that she engaged in the behaviours, “during bath time at Meemaw’s house with Poppa.” The allegation was investigated by the police and the CAS. The police and CAS joint investigation was inconclusive. P did not make a disclosure to the police and CAS during a first interview, nor during a second interview when her mother was present. Ms. Ree testified, however, that P had acted out in a sexual manner more than once prior to the behaviour witnessed by Ms. Rose, and P made significant disclosures privately to Ms. Ree in between the first two interviews by the police and CAS. Ms. Ree alleged that the police and the CAS did not interview P properly. After the interviews, Ms. Ree took P for a physical examination at the Regional Sexual Assault Centre in June. P pulled down her pants on her school bus in October 2017. P was eventually taken to see a psychotherapist and play therapist, Ms. Battaglia, during several months in early 2018, and during about nine months in 2019, but she did not disclose any sexual issues. Mr. Southorn did not believe the allegations against his father because, he said, his father was never in caregiving role alone with P, and, he testified, the police did not find that there had been a sexual assault.

[222] The court finds that it was not proven on a balance of probabilities that P was subjected to inappropriate sexual misconduct by Mr. Southorn’s father nor, contrary to the suggestion made by Mr. Southorn at trial, by Ms. Ree’s father.

[223] On May 15, 2017, Mr. Southorn texted Ms. Ree that his work schedule had changed, and because they had agreed earlier that he would have the children on his days off, he requested a change in the parenting schedule, but she did not agree.

[224] Around this time, according to Mr. Southorn, he signed up the children “to run around a field” without consulting Ms. Ree. According to Ms. Ree, he signed one child up for soccer and the other for T-ball. She testified that she signed up each child for the other activity, so that both children were enrolled in both activities. She became a coach of their soccer teams.

[225] On June 6, the CAS wrote a letter to Ms. Ree stating that they had verified that the children were being negatively affected by exposure to post-separation adult conflict (Exhibit 6). The CAS also told both parents to ensure that the children were not exposed to frightening movies.

[226] Based on the sexual allegations, Ms. Ree did not permit Mr. Southorn to have parenting time that summer until the end of August.

[227] On August 31, Ms. Ree agreed to Mr. Southorn having three hours of parenting time per week.

[228] On October 4, Justice Wood made a consent order that Mr. Southorn would have parenting time during alternate weeks from Saturday at 5 p.m. until Monday at 6 p.m. and alternate Mondays from 3 p.m. to 6 p.m.

[229] Mr. Southorn introduced his current partner, Ms. Young, to the children that Fall. He testified that they get along well with her.

[230] That October, on one occasion, P pulled down her pants on her school bus.

[231] Mr. Southorn informed Ms. Ree that he started working Sundays in the late Fall.

[232] In late 2017, Enaahtig referred P to Ms. Battaglia with respect to the sexual allegations and P’s behaviour on the school bus. Ms. Battaglia met with P six times from January to April 2018. She also met with P occasionally between January and October 2019.

2018

[233] Ms. Ree testified, in January 2020, that she had been dating Mr. Whittaker for about two years. Mr. Whittaker worked at a dog food factory in Bolton. He had joint custody of his daughter, A, age six in 2020, and he usually had parenting time on alternate weekends. Mr. Whittaker speaks French.

[234] Ms. Ree testified that, without telling Mr. Southorn, she applied in February or March 2018 for P to be transferred into grade one French Immersion at a different elementary school in the Fall of 2018.

[235] Ms. Battaglia testified that P did not disclose any evidence of sexual abuse during six play therapy sessions from January to April. Ms. Battaglia formed the opinion that P is an introverted thought processor who is careful about what she says. Ms. Battaglia suggested a follow up session in about six months in case P was repressing any memory of sexual abuse.

[236] Ms. Battaglia was concerned to learn from P, nevertheless, that she had been watching Goosebumps, which is intended for older children. She advised the parties that P was too young to watch Goosebumps. Her report is Exhibit 7.

[237] In response to a question from Ms. Ree, Ms. Battaglia told her that P might benefit from the challenge of the French Immersion programme.

[238] Ms. Ree requested an update from the school board in June and learned that P had been accepted into the French Immersion school. She said that she then asked Mr. Millward, who was carrying out his investigation at that point, for advice about the best way to raise the subject with Mr. Southorn. She testified that he suggested communicating by email.

[239] Exhibit 94 is the email exchange between the parties about P transferring to the French Immersion elementary school. Ms. Ree’s undated email, which was likely sent at the end of June, asked Mr. Southorn for his opinion about P starting at the French Immersion school in September. She informed him that she believed that the programme was a great opportunity for P, that it was necessary to start in grade one, and that L could start the following year. She finished by stating, “Please let me know your input about this great opportunity for our children so we can work together to make a decision about our children’s futures and schooling” [emphasis added].

[240] Ms. Ree did not inform Mr. Southorn that; she had applied to the programme, P had been accepted, and that Mr. Whittaker spoke French.

[241] Mr. Southorn replied, on July 4, that he received her email the previous week, and that he did not support enrolling P into French Immersion because the children, “went through a lot over the last two years and I think they should stay at [their school at that time].” He also stated that the bus trip to the new school would be too long for P. He also expressed concern that neither he nor Ms. Ree, nor their parents, spoke French so it would be difficult to help P with her homework. He said that he would agree, however, to hiring a tutor to teach French to both children. He also stated that he would like the children to learn his “Aboriginal” language and that he would explore that if Ms. Ree was agreeable. He asked her to let him know about the latter idea and thanked her for her email.

[242] On August 3, Mr. Southorn requested a week of parenting time during his holidays commencing August 17. Ms. Ree agreed on August 8.

[243] Ms. Ree replied to Mr. Southorn’s July 4 message, on August 28, a week before school started, that she had taken time to consider his email and to do more research about the French Immersion programme. She said that she recently spoke with Ms. Battaglia “to get her professional opinion on what is best for [P]” and that Ms. Battaglia, “strongly believes that [P] will succeed with this program and do very well at it…and thinks [P] would strive at being introduced to a new language.” She said that P’s teachers for the previous two years, “both think [P] will do fantastic with the French Immersion program.” She added that teachers at the French Immersion school had assured her that most the parents of most of the students did not speak French. She concluded, “Due to the multiple professional opinions I have received from [P’s] play therapist, teachers, and [the French Immersion school], combined with my own research and investigating…the French Immersion program, I feel strongly that our daughter [P] will fully succeed with this program. Our daughter is very extraordinary and should have every positive opportunity in life that she can…I think we owe it to our daughter to see how she does at it before we just say no. With that in mind and all the reasons stated above, I will be sending [P] to [the French Immersion school] starting September 4, 2018. I hope you will understand how and why I have come to this decision” [emphasis added].

[244] Again, she did not inform him that she applied to the programme in February or March, that she learned that P was accepted in June, or that Mr. Whittaker spoke French. Nor did she respond to his July 4 request for her input about the children learning their “Aboriginal” language.

[245] Ms. Ree testified that she did not respond sooner to Mr. Southorn because she wanted to do more research before making an informed decision. She said that she did her research on-line and by speaking to others about Mr. Southorn’s concerns. She admitted that Mr. Millward told her that a change of schools for P was a major parenting decision, but, she added, after making that decision, she had not made any major parenting decisions without Mr. Southorn’s consent.

[246] Mr. Southorn testified that Ms. Battaglia told him that she was not qualified to recommend that P attend French Immersion. Ms. Battaglia testified that she told Ms. Ree that French Immersion might be good for P because it would be more challenging, and because P would enjoy playing with her own friends without interference from L.

[247] On September 6, Ms. Ree informed Mr. Southorn by email via the OFW that she re-enrolled the children into extracurricular gymnastics starting September 18. She informed him that the cost was $1,360.75 and that she would appreciate him paying one-half.

[248] On September 12, Mr. Millward, the OCL investigator had a disclosure meeting with the parties and their counsel.

[249] Ms. Ree testified that Mr. Southorn signed passport applications for the children in front of the OCL investigator and the parties’ counsel on September 12, but, she alleged, based entirely on hearsay, Mr. Southorn later told the passport office that his signature was forged, which meant that he had to attend personally at the passport office, which he had not done. Ms. Ree was asked, at court, whether she would agree to Mr. Southorn’s mother being the emergency contact on the children’s passports instead of Ms. Ree’s mother; Ms. Ree replied in the affirmative upon the condition that Ms. Ree would have possession of the passports. She added that she would not sign the passport applications unless she would be the custodian of the passports, and that she would not agree to herself keeping one passport and Mr. Southorn keeping the other, because the passports should be kept together.

[250] Ms. Ree testified that she had repeatedly asked Mr. Southorn for copies of the children’s Native Status cards, but he had not provided them to her. He testified that his counsel provided them. It was stipulated by counsel that Mr. Southorn’s counsel’s position was that she sent the copies to Ms. Ree’s counsel, and that Ms. Ree’s counsel’s position was that she did not receive them. The court finds that there was a communication difficulty between counsel about the status cards.

[251] On September 22, Ms. Ree agreed to the children staying with Mr. Southorn until 6:30 p.m. on Sundays because he told her that Sunday was his day off.

[252] Since then, Mr. Southorn’s regular parenting time has been alternate Thursdays at 5 p.m. to Sunday at 6:30 p.m., and several hours on alternate Fridays, starting at 5:30 p.m.

[253] At about the same time, Ms. Ree tried to persuade Mr. Southorn to change his alternate week three-hour parenting time from Friday, when he was on a day off, to Wednesday, when he was not on a day off.

[254] Mr. Millward’s report is dated October 3, 2018 (Exhibit 1). Mr. Millward has been a social work clinician with the OCL since 2014. When he testified, he had completed more than one hundred assignments as an OCL investigator. He is a registered social worker and has a Master’s degree in social work. He interviewed each child privately at each parent’s home.

[255] His report noted that, at the beginning of his investigation, both parties were in favour of joint decision-making. They disagreed, however, about how much parenting time Mr. Southorn should have. They each accused the other of poor communication. The CAS had verified conflict between the parties.

[256] His report noted that Ms. Ree unilaterally decided to change P’s school and enroll her into French Immersion. The report said that Ms. Ree said that she did this, despite Mr. Southorn’s objections, because she had always been the primary caregiver and decision-maker for the children, and because Mr. Southorn disagrees with her just for the sake of disagreeing. The report noted that Ms. Ree had decided to seek sole decision-making for these reasons. Mr. Millward testified that Ms. Ree “understood the implications” about making a unilateral decision about P’s schooling, but she was convinced that any further discussion would be an inconclusive battle. He testified that he told her that it is usually better for both parents to agree to such a major decision.

[257] The report noted that Ms. Ree said that P misses her father, P said that she would like to spend more time with her father, and she expressed no concern about spending an entire week with him. The report also noted that L said that he would like to see his father more often and longer, and that he would be happy to spend an entire week with him. Mr. Millward testified that he received strong and independent information from both children, and that P’s views were very independent. He testified that neither child mentioned frightening movies.

[258] The home visits were both positive and the children related well to both parents.

[259] The report recommended the use of OFW for communication.

[260] The report recommended joint decision-making, with a mediator or parenting co-ordinator to assist when the parties were unable to reach a decision together. Two reasons cited for recommending joint decision-making were that the school decision appeared to be the only example of unilateral decision-making, and it appeared that the parties’ conflict level had decreased with the passage of time since separation. Mr. Millward testified that joint decision-making is possible in some high conflict situations and that he felt that it was important in this case for both parents to have input into decisions. He testified that the parties’ decision to move exchanges to a neutral location, as recommended by police, was an example of them reaching a decision together, as they were not forced to change the location. He agreed, during cross-examination by Ms. Ree’s counsel, that joint decision-making would not be healthy for the children, however, if parents were in “warring” households and could not communicate, but he did not agree with the suggestion that that “warring households” was the situation in this matter. He testified that there are ways to address conflict such as a detailed parenting schedule, with terms around exchanges, and that shared parenting could work in this case.

[261] The report recommended equal parenting times and shared vacations, including up to nine days uninterrupted with each parent during the summer.

[262] The report recommended that both parents engage in individual counselling to assist their ability to co-parent. As far as the court is aware, neither party has done so. The report also recommended that P continue to see Ms. Battaglia. Mr. Millward testified that the latter recommendation was to keep open the possibility of a subsequent disclosure of sexual abuse.

[263] On October 18, Ms. Ree informed Mr. Southorn by OFW that she had purchased the children memberships at the Georgian Bay Native Friendship Centre for a year to learn their “Native” culture and language through fun activities and games. She said that, in this manner, the children would have the advantage of learning French and their “Aboriginal” language. She advised him that he could take the children to the Centre at no cost [because she had paid the $5 fee to become a member]. Presumably, this was her response to his July 4 email that he would like to discuss enrolling the children in an “Aboriginal” language programme.

[264] On November 4, there was an OFW exchange between the parties, described earlier, after which Ms. Ree attended the exchange location at 12 p.m. despite having been informed, almost two hours earlier, by Mr. Southorn that the exchange would take place at 6:30 p.m. as regularly scheduled.

[265] Mr. Southorn testified that he had to work on December 27, 2018 because of his low seniority at the casino. He said that the children were with his partner, Ms. Young, and his mother while he was at work.

[266] He testified that on December 28, he left home at 8:22 a.m. to get a food wrap for P. He testified that he and the children went to Orillia later. He denied Mr. Barnard’s testimony that he was away from his children for five hours and forty minutes that day.

[267] He also denied the implication of Mr. Barnard’s testimony that he was away from his children for significant periods on December 29 and 30

[268] He testified that he never left the children alone with his father during the period of December 25 to 31.

2019

[269] Ms. Ree testified that, in January 2019, Mr. Southorn carried P at an exchange after P fell on some blocks during his parenting time at his parents’ home. She said that the children both told her that P fell because Ms. Southorn pulled a chair away. Ms. Ree said that there were no marks, but she iced P’s back that night and the next night because P was in pain. She testified that she took P to the hospital the next day and was told by a physician to continue to ice P’s back. The court accepts Ms. Southorn’s testimony, corroborated by Mr. Watt, that it was an accident.

[270] On Thursday, February 14, 2019, Mr. Southorn emailed Ms. Ree asking why P was not in school. She replied that P was sick. The next day, he emailed her the same question. Ms. Ree replied again that P was sick. She did not mention that she had taken P to a clinic, or that she had given P children’s Tylenol and Gravol and would be giving P another dose after Mr. Southorn’s three-hour parenting time that day. During his brief parenting time, Mr. Southorn advised Ms. Ree that P was not eating and was vomiting. He asked to be updated after he returned the children to Ms. Ree. She took P to the hospital where P was x-rayed, diagnosed with pneumonia, and prescribed an antibiotic.

[271] Ms. Ree’s testimony about this email chain (Exhibit 81) was that it showed that she let Mr. Southorn know why P was not at school, and that it showed that Mr. Southorn was at fault for not taking P to the hospital during his three-hour parenting time.

[272] On February 21, a motion brought by Mr. Southorn for increased parenting time, three months before trial, was dismissed.

[273] On February 26, Mr. Southorn emailed Ms. Ree through OFW asking whether she had filled out an application for L to attend the French Immersion programme in the Fall. Ms. Ree did not open the email for two weeks. At that point, she told him that she had applied for L and would not hear back until April.

[274] On March 7, Ms. Ree emailed Mr. Southorn through OFW that P had recently been having nightmares, sleepwalking, and “panic attacks” at night. Ms. Ree informed him that P was terrified of porcelain dolls at his parents’ home. Ms. Ree said that P was afraid of the dolls because of horror movies and games to which she had been exposed. Ms. Ree said that P thought the dolls were alive, out to kill her, and that she saw them when they were not there. Ms. Ree said that P pleaded with her repeatedly not to send her to Mr. Southorn’s home at his parents’ residence. Ms. Ree asked Mr. Southorn to hide the dolls when P was there. Ms. Ree testified that P started scratching her head on the way to school in Ms. Ree’s vehicle, saying, “Get them away from me” because she thought dolls were jumping on her in the car. Ms. Ree testified that the purpose of her email was to motivate Mr. Southorn to ensure that P was not exposed to horror movies at his home.

[275] Mr. Southorn testified that, although P never had nightmares at his home, he removed the dolls to the garage as soon as he learned that P was afraid of them. He said that, later the same day, P said she was afraid of the dolls, so he told her, and showed her, that they had been removed.

[276] On March 8, Ms. Ree emailed Mr. Southorn through OFW to let him know that P’s school had called regarding P being sick at school. Because P would be with Mr. Southorn after school, Ms. Ree notified him and told the school to contact him. Ms. Ree asked Mr. Southorn to update her. Mr. Southorn did not open Ms. Ree’s email until the weekend was over. At that point, he told her that P was fine all weekend.

[277] On March 18, Ms. Ree took P to Enaahtig to speak with Ms. Hill about dolls. Ms. Hill brought up the subject with P. Ms. Hill’s note of the meeting (Exhibit 31) states that P said, “…I had a panic attack…” Ms. Hill testified that “panic attack” was P’s expression. At that time P was 7 years old.

[278] On March 24, Mr. Southorn advised Ms. Ree by OFW email that he had made dream catchers for the children and he hoped that Ms. Ree would hang them up at her home. He told her that he explained to the children that bad dreams would be caught in the webs, only nice dreams get through, and in the morning, when the sun rises, the dream catcher gets rid of the bad dreams. He said that he hoped this would address the bad dreams Ms. Ree was reporting at her home. Ms. Ree testified that this email was an example of Mr. Southorn failing to accept responsibility for what was happening at his home.

[279] Ms. Southorn testified that L told her that Ms. Ree showed him a horror movie involving a doll, and P told her that Ms. Ree showed her another horror movie.

[280] On April 3, Ms. Harris of the CAS advised the parties in writing that Ms. Ree’s allegation that the children were being exposed to horror movies and games at that time, while in the care of Mr. Southorn, and that Ms. Southorn pulled a chair out from P, were not verified (Exhibit 3). Ms. Harris noted that L said that he heard “scary” movies being watched by Ms. Ree on at least one occasion. Ms. Harris advised Ms. Ree to ensure that the children were not exposed to such movies and to keep the volume low. Ms. Harris advised Mr. Southorn that his action of punishing the children for falsely alleging that he forced them to watch horror movies was appropriate. Ms. Harris also advised, however, that her investigation established that there was a risk of the children being emotionally harmed from exposure to ongoing post-separation conflict between their parents.

[281] On April 11, Ms. Ree enrolled the children into a programme entitled Choices for Children. It was a ten-week programme for children exposed to abuse directed toward their mother. Ms. Ree testified that Ms. Harris of the CAS recommended the programme. Ms. Harris testified that she referred Ms. Ree to the programme because she believed that it was appropriate for separated families with a high level of parental conflict. Ms. Ree did not consult with or inform Mr. Southorn about enrolling the children into the programme. She testified that she assumed that Ms. Harris told Mr. Southorn.

[282] On April 12, Mr. Southorn and Ms. Young moved into their current home. They are renting with an option to purchase after five years. It is a short drive from the French Immersion school.

[283] The court reviewed the children’s reading logs (Exhibit 16). Ms. Ree testified that almost every entry is signed by her because the children always read with her due to Mr. Southorn not reading with them. Mr. Southorn testified that he reads with the children, but when he received the logs, they were already signed by Ms. Ree for the time the children were to be with him. He said that he did not see any point to adding his signature. In the absence of independent evidence, the court is unable to determine which of these accounts is true on a balance of probabilities.

[284] On July 5, Ms. Battaglia testified that P told her in early 2019 that she had watched frightening movies with Mr. Wood’s daughter, A, and that Mr. Southorn’s mother forced her to watch frightening movies. She did not say when. P told her in early June, however, that she was still watching frightening movies, but when she did, her father would sternly tell her to go to her room. Ms. Battaglia testified that P also expressed a related and significant fear of porcelain dolls, but that concern was reduced when her father moved away from his parents’ home that spring. Mr. Wood testified that children never watched horror movies at his home. Ms. Southorn gave the same testimony about her home.

[285] Ms. Battaglia expressed concern about a possible negative impact upon P due to Mr. Southorn punishing P for lying about him forcing her to watch frightening movies. Ms. Battaglia testified that she had the concern regardless whether P lied. As noted earlier, Ms. Harris was of the view that it was appropriate for him to punish P, if P had lied. The court agrees with Ms. Harris. The court finds on a balance of probabilities that P did lie, because, based on all the evidence, it is highly unlikely that Mr. Southorn would have punished her otherwise, and obviously he knew whether the allegation was true.

[286] Mr. Southorn had parenting time with the children for two weeks that summer.

[287] In August, according to Ms. Battaglia’s testimony on October 1, 2019, Mr. Southorn told her that P had a nightmare at his home, and that he took P around his entire home to show her that there were no dolls there.

[288] On September 1, Ms. Ree emailed Mr. Southorn through OFW that the children were interested in playing hockey. She asked about enrolling them and whether he would take the children to games and practices on his alternate weekend parenting time. She offered to take them if he could not. Mr. Southorn replied that he thought registration was over. He added that he did not think hockey would be beneficial while the trial was continuing. He suggested that the children should learn to skate in a non-hockey environment, particularly since L was born with one kidney and might be at risk at a later age when body contact is introduced into hockey. Mr. Southorn said that he would rather concentrate on the children’s educational needs and retain tutors.

[289] Ms. Ree replied that the hockey group was still accepting applications and the children did not need tutors because they were both doing well at school. She said that regular hockey equipment would protect L and that she had already taught both children how to skate and she played hockey with them as well. She said that the continuing trial was irrelevant and that hockey, which the children really wanted to do, would only take an hour a week.

[290] Mr. Southorn responded that the result of the trial could affect the children’s routine and that there was no “off the shelf” protection for L’s kidney. He suggested meeting with the L’s doctor for advice. He repeated that he would like to focus on the children’s education “as court unfolds.” He suggested that they could revisit hockey once the children were doing better educationally and stated that P’s teacher supported a tutor for P’s reading in English. He said that they could each teach the children skating, and repeated that that non-hockey skating alternatives were available.

[291] Ms. Ree replied that the children did not require extra educational support at that time; P’s English reading was “excellent”, and L was “amazing” at reading as well. She informed him that throughout the summer she made the children worksheets for English and math and read with them. She said that she had taught skating to the children since they had been three years old and they were very good skaters, which is why they wanted to play hockey. She said that the children were very excited about playing hockey and she repeated that it would only require one hour per week. She stated that she was waiting to hear from L’s doctor and that she hoped Mr. Southorn would reconsider.

[292] Ms. Ree testified, in January 2020, that the children were not enrolled into hockey in the Fall of 2019 due to Mr. Southorn’s objection, but they were enrolled into soccer instead. She also stated that the children were not in tutoring at the time she testified.

[293] On L’s first day at the French Immersion school, Mr. Southorn went to the children’s bus stop to wish them well, but Ms. Ree drove the children to school without informing him. In an ensuing OFW email chain, they each blamed the other for not communicating well.

[294] Soon thereafter, Ms. Ree advised Mr. Southorn via OFW that she had re-enrolled the children in gymnastics and asked him to pay one-half of the $1,436 cost.

[295] She testified that he had not contributed financially to any extracurricular activities she signed the children up for during her parenting time.

[296] On October 1, Ms. Battaglia testified that P had expressed a fear of porcelain dolls because of watching frightening movies prior to their session on August 29, but not since. She said that P’s only remaining issue was coping with her parents’ separation; she recommended that she attend the Rainbows programme for that reason. She testified that P had not shown any indication of sexual abuse.

[297] Between October 6 and 11, there was an exchange of OFW emails about Thanksgiving and Hallowe’en (Exhibit 82). Ms. Ree testified that she offered Mr. Southorn an overnight with the children on the Friday night of the Thanksgiving weekend in exchange for being able to take the children trick or treating at 5:30 p.m. Ms. Ree testified that Mr. Southorn eventually rejected her offer and said that she would not get the children on Hallowe’en “at all”. When the court asked where he said that in the emails, Ms. Ree replied that she “misspoke” and that the children were exchanged at 6:30 p.m. but she decided not to take them out for more trick and treating at that time. Mr. Southorn had offered a compromise of a 6 p.m. exchange on Hallowe’en at one point.

[298] Ms. Ree took Mr. Whittaker to the children’s school’s open house.

[299] On November 27, Mr. Southorn advised Ms. Ree by OFW email that at a parent-teacher meeting that day, P’s teacher told him that P’s reading in French was at “zero” and she was not progressing. He said that P’s progress in math was well behind as well. He stated that the teacher was worried and so was he. He said that he was reaching out to different options for a tutor for P, including through his Band. He said that he would update Ms. Ree about options. Ms. Ree replied that she met with P’s teacher as well and the teacher was not worried about P but recommended more reading and more work on math. Ms. Ree said that P was starting to progress in reading and math because Ms. Ree helped P with her homework in these subjects “every night.” Ms. Ree said that she told P’s and L’s teachers that she would like the children to be in the reading programme before school that P had attended the previous year. She told Mr. Southorn that he was not reading with the children and asked that he start doing reading and math homework with the children when they were in his care.

[300] Two days later, Mr. Southorn replied that he contacted a tutor and discovered that Ms. Ree had completed intake for the same tutor the previous week. He said that surprised him because Ms. Ree had advised him that P was doing “fine” in reading. He said that he was trying to set up a French tutor for an hour every Friday when P was in his care. He said that he would let her know when lessons started. He said that once P “gets on track” he would set up a tutor for L in the summer to prepare him for grade two. He said that he was receiving extra reading work for L from L’s teacher. Ms. Ree responded that she did not say that P was doing “fine.” She said that the Tutor Doctor would benefit both children. She said that since he said that it would be covered by the Band [he did not say that], the children should each have two-hour sessions twice a week at the Tutor Doctor at the Orillia library on Mondays and either Thursdays or Fridays, so that both parents were involved. She said that she disagreed with only P getting tutored at first because that would single P out. She asked him to advise her about funding with the Band so tutoring could be set up for both children.

[301] Mr. Southorn replied that L was doing well, and he did not want to overwhelm him. He said that he wanted to see how well tutoring worked for P before deciding whether L should be enrolled. He said that home tutoring would be preferable to a library. Ms. Ree responded that it would not be overwhelming for L to be given the same opportunity as P; it would help him strive to reach his fullest potential. She said that L’s teacher said he “could use” more practice with reading, writing, and math and that is what a tutor is for. She repeated that neither child should feel singled out and that the Tutor Doctor recommended that both children could benefit. She concluded, “I strongly believe that we should be giving both children equal opportunities…” and asked him to include L in any application to the Band for funding.

[302] On December 1, Mr. Southorn replied that he expected to update her the following week.

[303] On December 3, he replied that he was looking into Band funding and would find out more later that week. He also said that he was waiting for the tutor to provide a start date for P. Ms. Ree responded that the tutoring should be for both children on the schedule she proposed earlier.

2020

[304] On January 5, Mr. Southorn sent an OFW email to Ms. Ree advising her that he gave the children medicine an hour earlier because P was not feeling well, and L had a small cough and runny nose (Exhibit 84). He said that they would need medicine at bedtime. Ms. Ree responded within five minutes that P had vomited and said that she had been vomiting for several days while with Mr. Southorn. Ms. Ree said that L also said he had been vomiting while in his father’s care. Ms. Ree asked Mr. Southorn whether he had taken the children to see a physician.

[305] Mr. Southorn replied that L vomited the evening he arrived at Mr. Southorn’s home and a couple more times during the night, so Mr. Southorn gave him some medication. He said that L was fine after that except for a cough and runny nose. He said that P said she had a headache and wasn’t feeling well so he gave her some medicine as well. He said she had no fever. He said she was sick the next evening but still did not have a fever. He said they were running around the next day and ate every meal while with him. He said that just before the exchange, P said she was not feeling well again and did not want to go to school the next day.

[306] Ms. Ree emailed about seven hours later that L had woken up vomiting and coughing and his temperature was 104.5. She said that she was taking him to the hospital and would update Mr. Southorn. The “re:” line on the email was “hospital L”. Mr. Southorn did not open the email until about 19 hours later. In the interim, Ms. Ree emailed him to inform him that L had been x-rayed, diagnosed with bronchitis, and prescribed antibiotics. She also advised that P also woke up during the night vomiting with a fever of 103. Ms. Ree said that the children were very sick, Mr. Southorn should have taken them to a physician, and he should have been honest with her.

[307] When Mr. Southorn opened Ms. Ree’s emails, he thanked her for the information and said that he wished she had telephoned him to let him know that she was going to the hospital. He said that he thought they had agreed to telephone if a child was taken to hospital. He denied having been dishonest. Ms. Ree testified that she did not telephone Mr. Southorn when she took L to the hospital because it was late, and the email went to his cell phone.

[308] Ms. Ree testified, in early January 2020, that P was not at “zero” for reading, but she admitted later that both parents received a message from P’s teacher stating exactly that. She said that both children should be in tutoring, but she could not access funding without copies of the children’s status cards. She testified that there had been no communication about tutoring since December 3, 2019. She testified, during cross-examination, that P was doing poorly in reading at the end of 2019 and that L’s teacher told her that L had a weakness in reading. She said that neither P’s nor L’s teachers recommended tutoring.

[309] She also testified that the conflict between the parties had not subsided since separation. She said that they could not agree about anything. She said they could not discuss the children because Mr. Southorn would not talk with her. She said that he would downplay the children’s illnesses and not tell her the complete truth. She said that when she tried to talk with him, it always turned into an argument.

[310] On January 16, Ms. Ree advised Mr. Southorn by OFW email (Exhibit 105) that she could not wait any longer to move ahead with tutoring, so she had enrolled both children in tutoring for an hour twice per week at a cost of $897 per month and that she would appreciate him paying one-half the fees. She asked for the children’s native card information so that she could apply for Band funding.

[311] Mr. Southorn replied that she had not heard from him because he had not been contacted by the tutor until January 15, and he had enrolled P in tutoring starting Friday, January 17, and every Friday thereafter, during his parenting time. He said that he had spoken with both children’s teachers that morning, and L’s teacher said he was doing well, but if L fell behind, F would arrange tutoring for him as well. He said that L’s teacher would be sending him an extra copy of L’s reading log so that both parents could read with L and sign his log. He said that the Band funding had a limit, but he was working to get funding to permit tutoring of P during Ms. Ree’s parenting time as well. He said that he would ask them whether they could fund the Oxford Learning Centre (OLC) or, if she preferred, she could contact the funding source. He said that he would pay the cost for tutoring P on Fridays if the funding ran out.

[312] On January 19, Ms. Ree responded that she would like to know whether he applied for one or two days per week tutoring for P. She stated that she did not understand why he was “depriving” L of “the same learning opportunities.” She said that she would be paying for L’s tutoring herself because Mr. Southorn had not applied for funding for L. She said that she would continue to take the children for tutoring at the OLC.

[313] Mr. Southorn replied that he did not specify a tutor in his funding application which was not in writing. He said that the Band agency contacted the tutor directly and arranged payment. He said that Ms. Ree’s wish for both children to be tutored twice a week required a longer process and that he was engaged in that process. He said that he was not depriving L of anything because L was doing well. He said that he worked with L while P was being tutored.

[314] On January 23, Ms. Ree responded by suggesting that Mr. Southorn should take the children to the OLC on his parenting time, on Thursdays or Saturdays, so that both parents would be taking the children to the same tutor rather than each taking the children to different tutors. She said that it was not in the children’s best interests to have separate tutors and she was concerned that the children would be overwhelmed and, as a result, dislike tutoring.

[315] On January 31, Ms. Ree emailed Mr. Southorn asking for a reply to her January 23 email. She said that P had stated “multiple times’ that she did not understand why she “has to do” tutoring on Fridays during Mr. Southorn’s parenting time and L does not. She stated, “She is finding it very unfair and frustrating…” and “[P] has cried to me saying that she feels so stupid now and that L is so much smarter than her.” She also stated that P told her that other children are so loud in the library that she can’t do her work. She also stated that P said that Mr. Southorn’s tutor is “hard” and “she only wants to go to my tutor because it’s easier and she can understand it.” She stated that that morning P told her that she did not want to go to Mr. Southorn’s tutor later that day. She said that P wanted to write a letter to him to tell him how she feels, and that Ms. Ree helped P with the spelling. She said that P wanted to read the letter to Mr. Southorn that evening and she asked that Mr. Southorn “be very sensitive towards her feelings when you two do have this conversation as she is very nervous about how you will react and she is working up the courage to express herself to you.” Ms. Ree continued,

“This is exactly what I was afraid might happen with you only enrolling P into tutoring and not L and having separate tutors. At the Oxford Learning Centre part of their assessment is self-confidence and they have found that P is lacking in this. They work on building this back up…With P finding your tutoring hard and not being able to understand…is not helping her build back that self-confidence and esteem. I strongly believe that having separate tutors is starting to affect P in a negative manner and is discouraging her from wanting to do tutoring. I want both of our children to enjoy their tutoring sessions…I am starting to see the opposite effect in our daughter. I highly recommend that you start bringing our children to the Oxford Learning Centre instead of having separate tutors. I do not want our daughter to continue feeling this way…I feel it would be in our children’s best interest if you brought them on your Thursdays rather than Saturdays as this is still maintaining having tutoring during the week…” [emphasis added].

[316] Mr. Southorn replied, on February 2, that he spoke with P about her letter. He said that she was not nervous or discouraged. He stated that he and P have a very solid and honest relationship. He said that he told her that he was tutored in grade two in English and math. He then asked Ms. Ree what her tutor was teaching if it was easy compared to his tutor because his tutor was using material provided by P’s teacher for the tutor to cover. He stated that P’s teacher gave him two books for P and the tutor to review and that P’s teacher intended to review the books with P later. Mr. Southorn said that he and P were attending the sessions together and that he explained to P that this was her “special learning time” and that he would be learning from the tutor as well. He said that he believed that if both parents were positive about P’s tutoring, P would be positive as well. He noted that both P and L knew that L would be in tutoring in the summer to prepare him for the same grade two programme that P was in then. He said that he reminded P that when she was in grade one, as L was then, she did not have a tutor. He said that grade two is harder – particularly with a language “barrier.” He said that P’s tutor was a substitute teacher hoping to become a full-time teacher, who worked through Smart Tutor based in Barrie. He offered to speak with the OLC about whether their programme followed P’s curriculum like his tutor did.

[317] Ms. Ree replied, on February 4, providing Mr. Southorn with the name and telephone number of the children’s tutor at the OLC. Mr. Southorn responded with a thank you. The same date, Ms. Thompson of the OLC contacted Mr. Southorn by email (Exhibit 153). She informed him that the children had been assessed at levels 1 and 2 for reading in French and that the programme was designed to cover the basics and build their self-confidence.

[318] Mr. Southorn testified that he has only worked alone since the first COVID-19 stay at home order in Ontario.

[319] Mr. Southorn testified that at the time of the stay at home order, Ms. Ree denied Mr. Southorn his parenting time for two weeks unless he would sign a document stating that if the children needed to be quarantined, they would stay with Ms. Ree. He testified that she took the children to the exchange location, but she refused to let them out of her vehicle unless he signed the document. When he refused to do so, she left with the children. He also testified that during that period, Ms. Ree advised him that Mr. Whittaker and his daughter would be staying with her and the children during the stay at home order.

[320] Ms. Ree testified that she refused to exchange the children on a Thursday one week, and on the Friday the following week, because Mr. Southorn would not sign the document. She testified that she gave him the children later the Friday, and that she extended his next parenting time until Monday at 6:30 p.m., as make up time. She testified that she was initially terrified about COVID-19 and the children’s safety.

[321] During the time that Mr. Southorn’s parenting time was being withheld, Ms. Ree informed him, on one occasion, that P could not speak to him by telephone because she was sleeping. Later, P told him that she was baking at the time and that anything that occurred was “none of [his] beeswax.” When he enquired further, she told him that Mr. Whittaker had grabbed her roughly by the ankle when she was fighting with L on a trampoline, and she was sent to her room by Ms. Ree. Because L sustained some bruising on his arm at about the same time, Mr. Southorn informed the CAS. Ms. Ree testified that P had fallen asleep during her time out. The CAS found that Mr. Whittaker’s conduct was appropriate.

[322] Mr. Southorn had a week of parenting time in July and a week in August.

[323] Mr. Southorn testified that he was concerned about a male named Tyler staying at Ms. Ree’s home during COVID-19. Ms. Ree testified that her friend, Tyler, stayed with her while her vehicle was not working so that she could use his vehicle to get the children to school.

[324] Mr. Southorn testified that he did not continue tutoring for the children that Fall because the children’s grades were better. He also testified that he knew that Ms. Ree had been approved for funding for tutoring through the Band.

[325] He testified, in early 2021, that throughout 2020, he was with the children during his parenting time, except once when he was called out for an emergency electrical job for less than an hour while Ms. Young cared for the children.

[326] Mr. Southorn testified that Ms. Ree has her father designated as the secondary contact at the children’s school – to be contacted before Mr. Southorn. He testified that he is also noted as a contact but with Ms. Ree’s cell number as his number. Ms. Ree did not deny this allegation. The court finds that it was likely accurate.

[327] Ms. Ree testified that Mr. Southorn spun his tires on several occasions, at exchanges or when he saw Ms. Ree and the children in her vehicle. Mr. Southorn testified that he did not do so intentionally. Ms. Ree also testified that Mr. Southorn tailgated her on one occasion. The court finds that these allegations were not proven on a balance of probabilities.

[328] Neither parent uses physical discipline. Both parents use timeouts. Mr. Southorn also uses the withdrawal of privileges.

[329] The court requested a Voice of the Child report (VOCR) in late 2020, because it had been over two years since the children’s views had been set out in the OCL report and the children’s views might have changed. Ms. Pool’s report is Exhibit 154. She was very briefly cross-examined by Mr. Southorn’s counsel. Ms. Ree’s counsel declined to cross-examine her.

[330] Ms. Pool is a registered social worker who has a Master’s degree in social work. She interviewed each child via Zoom at each parent’s home in December. She was satisfied that the interviews were held in private. Each child gave her a virtual tour of their bedroom in Mr. Southorn’s home and it appeared that no one else was present. She did not have a virtual tour of the room at Ms. Ree’s home, but she did not believe anyone else was present.

[331] The VOCR states that P is an intelligent and serious child. P was shy at first but warmed up. P had excellent eye contact with Ms. Pool throughout and talked for about a half hour during the first interview. P said that no one was listening, and no one told her what to say. P appeared more comfortable with Ms. Pool during the second interview. She showed Ms. Pool her pet gecko and ate a snack. Ms. Pool stated that there was no indication of coaching.

[332] The VOCR states that L was intelligent and articulate for his age. He was very talkative and expressive. He seemed to speak openly and freely. During the first interview, he showed Ms. Pool toys, sang a French song, and told her a joke. He spoke with her for more than forty minutes. He said that no one could hear them, and no one had told him what to say. During the second interview, they had about twenty-five minutes of focused conversation. Ms. Pool stated that there was no indication of coaching.

[333] P told Ms. Pool that when she is at her mother’s home, she liked to cuddle with her mother and play with L and A [Mr. Whittaker’s daughter]. She enjoyed having dogs and puppies around. She said that [Mr. Whittaker] was at her mother’s home a lot but did not live there. She said that he took the family on bike rides. She said that her mother was usually happy but got angry sometimes. Most recently, her mother yelled at L in the car on the way to an exchange because L did not want a submarine sandwich for dinner. She said that she felt afraid when her mother yells.

[334] She told Ms. Pool that she liked to play video games at her father’s home, and that she enjoyed cooking supper with [Ms. Young]. She said that her father looked after her there and he was usually happy.

[335] She consistently said that she wanted to spend more time at her father’s home, and that she would like approximately equal time at each parent’s home. She said that she had not told anyone that that was what she wanted, and she did not know how her parents would react.

[336] P told Ms. Pool that she is disciplined by timeouts at both homes, and that she had never been physically disciplined by her parents or their partners.

[337] She said that she liked the French Immersion school and wanted to stay there. She said that she did not like going to tutoring after school on Mondays and Tuesdays because they did the same thing as at school, so it was boring.

[338] P did not know what “First Nations” or “Native” mean. She did not know where “Beausoleil First Nation” was. She said that she visited a First Nation community once with her father, but she did not know why.

[339] P said that she can speak with her mother or her paternal grandmother (“Meemaw”) when she is afraid or sad. She said that she would like to spend more time with her cousins on both parents’ sides.

[340] L told Ms. Pool that he liked going to [Mr. Whittaker’s] home where there was a hot tub and a pool. He said that [Mr. Whittaker] was at his mother’s home often but did not live there. He said that A came with her father sometimes.

[341] L said that he liked to hug his father and he liked that his father “hangs out” with P and L. He liked to play video games and play with his toys at his father’s home. He wished his father would stop smoking for the sake of his father’s health.

[342] L said that he is disciplined with timeouts at both homes. Sometimes, any one of the four adults in the two homes yell at him when he got in trouble.

[343] He said that he enjoyed schoolwork, but he would prefer to return to his former school instead of staying in his French Immersion school. He said that [Mr. Whittaker] spoke French and his mother was learning French, but his father did not speak French. He said that he liked going to tutoring twice a week because it helped him with French, but P did not like the tutoring.

[344] He understood that he stayed at his father’s home for “three sleeps” one week and stayed “only for a bit” the next week. He said that he wanted to spend more time at Mr. Southorn’s home and that he would like to spend equal time at each parent’s home. He said that he had not told anyone that was what he wanted. He thought his father would be fine with that, but he did not know whether his mother would agree. He also said that he would like to spend more time with his cousin, A.

[345] He said that while he is with one parent, he speaks with the other parent by telephone.

[346] He did not know what “First Nations” or “Native” mean. He said that he had never heard of “Beausoleil”. He did not recall ever visiting a First Nations community.

2021

[347] Ms. Ree testified on January 11, 2021 that the children’s grades had improved because they were continuing tutoring at OLC, except in the summer.

[348] She complained that Mr. Southorn did not do homework with the children on alternate Fridays when they were with him for a few hours, and that he refused to take homework from her on those Fridays.

[349] She said that their only communication was through OFW.

[350] Ms. Ree testified that the previous night, P cried after she was put to bed, and told Ms. Ree that she was upset and cried in bed at Mr. Southorn’s home over the previous weekend because nothing would protect her from the dolls in her room, or all the scary movies Mr. Southorn’s mother let her watch that were running through her mind. Ms. Ree said that P told her that she did not mention the dolls to her father on the weekend. Aside from the last sentence, the court does not accept this testimony. It had been about a year and half since the last mention of dolls by P, and about two years since any suggestion that Ms. Southorn let her watch frightening movies.

Parenting

Law

[351] The Ontario Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), was amended effective March 1, 2021. Both parties submitted that the court should apply the amended statute in this case. The court is of the same view.

[352] Subsection 19 (a) requires that applications respecting decision-making responsibility with respect to a child shall be determined based on the best interests of the child.

[353] Subsection 20 (1) stipulates that, except as otherwise provided in Part III of the CLRA, a child’s parents are equally entitled to decision-making responsibility.

[354] Subsection 20 (4) stipulates that if the parents of a child separate and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

[355] Subsection 24 (1) stipulates that when making a parenting order, a court shall only take into account the best interests of a child in accordance with section 24.

[356] Subsection 24 (2) provides that 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 an psychological safety, security and well-being.

[357] Subsection 24 (3) provides that 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 person,

(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, 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 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.

[358] Subsection 24(4) provides that in considering the impact of any family violence under clause 3 (j), the court shall consider,

(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 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.

[359] Subsection 24 (5) stipulates that in determining what is in the best interests of a 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 or parenting time with respect to the child.

[360] Subsection 24 (6) provides that 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.

[361] Subsection 18 (1) stipulates,

“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) significant extra-curricular activities;

“family member” includes a member of a household of a child or of a parent, as a dating partner of a parent who participates in the activities of the household;

“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; [emphasis added]

“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.

[362] Subsection 18 (2) provides that, for the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessities of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[363] Judicial decisions concerning decision-making responsibility indicate that, generally, joint decision-making responsibility may be appropriate where it is in a child’s best interests for more than one person to have that responsibility, and all persons with decision-making responsibility are able to communicate appropriately with each other and make decisions together, based on the best interests of the child.

[364] The court’s role in a decision-making responsibility and parenting time case is to decide what is in the child’s best interests at that time. While historical information may be of assistance, it is the present time that matters, with an eye to the future, but keeping in mind that the future cannot be predicted with certainty. If circumstances change in a material way over time, then a motion to change is available to bring the issue of the child’s best interests back before the court.

Positions of the Parties

Mr. Southorn

[365] Mr. Southorn seeks joint decision-making responsibility and equal parenting time.

[366] He submitted that, despite differing views, the parties have been able to co-parent effectively, with very little conflict, since separation. He also submitted that Ms. Ree should not be permitted to rely on any conflict or communication issues she created, to support her position against joint decision-making.

[367] He suggested that Ms. Ree contacting Mr. Whittaker, rather than Mr. Southorn, after Ms. Ree drove into a ditch with the children in her vehicle, was an example of her sometimes-poor communication. He suggested that there had been no conflict in front of the children since separation, and he highlighted Mr. Millward’s finding that there had been no direct physical violence between the parties. He also underlined that he had not denigrated Ms. Ree since separation. He suggested that only a few communication issues were established by the evidence, and that the court should, therefore, infer that the balance of the parties’ communication has been, as he testified, without significant difficulty. He submitted that, in any event, the appropriate standard for assessing the suitability of joint decision-making responsibility is not perfect co-operation or perfect communication between the parents; it is the best interests of the children.

[368] He submitted that the children are physically, emotionally, and psychologically safe and secure in his care, and that he meets their needs and promotes their well-being. He highlighted that both children have consistently asked to spend more time with him.

[369] He underlined Mr. Millward’s finding and recommendation, at page 12 of his report, that, “Ms. Ree historically has a pattern of restricting the children’s access and even to date was only willing to increase it marginally. This in addition to the unilateral decision regarding school: joint custody is necessary to preserve the balance of power between the parties.”

[370] He submitted that Ms. Ree had not supported his relationship with the children by refusing to allow them more time with him, despite their consistent wishes, and by making unilateral decisions about them.

[371] He expressed concern about his mother’s testimony that Ms. Ree left the children in the bath unattended; he suggested that conduct demonstrated a failure to keep the children safe. Similarly, he underlined that Ms. Ree allowing her friend Tyler to be inside her residence during the COVID-19 pandemic was not safe. He made the same observation about Mr. Whittaker, sometimes with, and sometimes without, his daughter, spending considerable time in Ms. Ree’s residence, while also spending significant time living elsewhere.

[372] He submitted that Ms. Ree has a history of stalking and photographing him and Mr. Wood. He suggested that Mr. Whittaker took inappropriate physical disciplinary action against P by grabbing her leg while she and L were fighting on a trampoline. It was also submitted that Mr. Whittaker was “not honourable” because he did not contribute to Ms. Ree’s domestic expenses despite staying at her home at least half the time.

Ms. Ree

[373] Ms. Ree seeks sole decision-making responsibility and a continuation of the current parenting time schedule.

[374] She submitted that the parties are in a high conflict post-separation relationship, involving the police, the CAS, and other professionals, with ineffective communication and a significant mutual lack of trust. She noted that the CAS verified the risk of harm to the children due to adult conflict. She submitted that Mr. Southorn has continued a pattern of aggressive behaviour toward Ms. Ree. She suggested that, although there may have been a reduction of conflict leading up to, and during the trial, that once “the spotlight” of continuing litigation and active judicial oversight fades, Mr. Southorn will revert to his previous negative behaviours which are contrary to the best interests of the children.

[375] Ms. Ree suggested that, time after time, when she tried to communicate with Mr. Southorn about the children, he ignored her or created conflict, sometimes in front of the children.

[376] She submitted that her history of being a stay-at-home parent means that she has time available to devote to the children and has, and will continue to, meet all their needs. On the other hand, she submitted, Mr. Southorn works full-time and has not had, and does not have, adequate time available to devote to the children. She conceded that Mr. Southorn made some contribution to the care of the children before separation, but she suggested that she shouldered most of those responsibilities – particularly with respect to the children’s well-being. She submitted that Mr. Southorn did not challenge evidence showing that she did the household chores, including cleaning, grocery shopping, laundry, outside work, repairs to the home, and cooking. She submitted that it was proven that Mr. Southorn did not take the children to medical appointments or help them with their homework. Furthermore, she underlined that although he set up tutoring for P, that tutoring did not last long, and he was unaware that the children were still in tutoring in early 2021. She submitted that the long-established status quo is her devoting her life to the children’s needs.

[377] She submitted that Mr. Southorn tried but failed to prove that she had a history of having fun rather than caring for the children.

[378] She submitted that she was subjected to domestic violence and control during the relationship and post-separation. She submitted that the evidence of abuse by Mr. Southorn was unchallenged. She submitted that their relationship since separation has been riddled with conflict and bad behaviour, including intimidation, physical altercation, outbursts, and verbal disagreements.

[379] She submitted that Mr. Southorn denigrated her by ripping open the shower curtain and yelling at her on one occasion, and that he isolated and controlled her by not permitting her to have friends over to Mr. Southorn’s parents’ home. She suggested that he put his fist “through the truck” and ripped the mirror off their truck in the presence of the children. She suggested that Mr. Southorn put his fist through their headboard while they were arguing.

[380] She suggested that Mr. Millward failed in his duty as an OCL investigator by not independently investigating the allegation of sexual abuse of P, and Ms. Ree’s allegations of domestic abuse, and by not eliciting more details from Ms. Ree about incidents she reported. She also suggested that Mr. Millward failed to interview P in the manner recommended by Ms. Battaglia who is a trained professional and, therefore, his reporting of P’s views and preferences should be given no weight. She submitted that L was too young at that time for his for his views and preferences to be given any weight. She argued that Mr. Millward failed by not interviewing Mr. Southorn’s father and by not having Mr. Southorn’s parents present during a home visit. She suggested that Mr. Southorn will leave P alone with his father because Mr. Southorn does not believe that any sexual abuse occurred.

[381] She submitted that Mr. Millward lost focus on the best interests of the children when he recommended joint decision-making responsibility to correct an alleged power imbalance between the parents, and she criticized him for recommending joint decision-making responsibility in the face of a high level of parental conflict.

[382] She submitted that Mr. Millward’s testimony and report should be given little or no weight and she highlighted that Mr. Millward testified that if he knew that there was still ongoing conflict when he testified, his position in favour of shared parenting would likely change.

[383] She suggested that the court should draw an adverse inference from the fact that Mr. Southorn’s father did not testify at the trial.

[384] She submitted that her testimony established that she protected the children by removing them from Mr. Southorn’s presence when he was being abusive to her or to a child. She submitted that his squealing of tires in the community during the trial, not signing the children’s passport applications, and not providing her with copies of the children’s Native status cards, demonstrated his continuing controlling behaviour.

[385] She underlined Ms. Battaglia’s testimony that P told her in early June 2019 that she was still being exposed to frightening movies. She submitted that the court should not accept Mr. Southorn’s testimony that he showed P that there were no dolls in his home, because P did not report that to Ms. Battaglia.

[386] She suggested that one example of the parties continuing to disagree about what is in the children’s best interests, was Mr. Southorn forcing L to shoot at a turkey when he did not want to do so and was not wearing ear protection. Other examples, she submitted, were L injuring his wrist, P’s cold sore, P hurting herself on a trampoline, and P hurting her back at Mr. Southorn’s parents’ home in the chair incident.

[387] She submitted that the police reports, CAS reports and witnesses proved that almost all the communication issues were not Ms. Ree’s fault. In addition, she submitted, when Ms. Ree tried to address these issues with Mr. Southorn, he ignored her or changed the subject, resulting in conflict. Another example of conflict, she submitted, was Mr. Southorn not believing Ms. Ree that P was afraid of dolls.

[388] She submitted that another example of poor communication was Mr. Southorn not mentioning, before he testified, that the children will receive $25,000 from their Band when they turn twenty-one years old.

[389] She submitted that due to a lack of communication, the parties were unable to reconcile different child-related structures in their homes to provide consistency.

[390] She submitted that the only evidence of Ms. Ree restricting Mr. Southorn’s parenting time was during the summer of 2017 while the sexual abuse allegations were being investigated and she highlighted that she agreed to increase his parenting time in the Fall of 2018.

[391] She submitted that the children’s statements to Mr. Millward and Ms. Pool that they wanted more time with their father could mean that they wished he was more present during his parenting time.

[392] She suggested that, based on the evidence, a shared parenting time regime would mean sending the children back and forth between “warring” households, which would not be in their best interests.

[393] She submitted that Ms. Pool’s report should be given no weight because Ms. Pool was unaware of the evidence at trial, and her interviews were brief, virtual, and superficial. She suggested that the reference in the report to Ms. Ree being angry sometimes was prejudicial and had no probative value, and, therefore, should not have been in the report. She submitted that the report demonstrated that P was too young to express her own views and preferences because she said that she had not told anyone that she wanted about equal time with each parent, when, in fact, she told Mr. Millward she wanted equal time in 2018. She submitted that L’s statements that he wanted equal time with his father should be given no weight because it was unclear whether the word “equal” was explained to L. She added that L’s statements that he wanted more time with his father were also unclear because he also said that he wanted to spend more time with A (Mr. Wood’s daughter). She submitted that L was too young for his views and preferences to be given much weight.

[394] She submitted that the court should rely on the police incident reports filed in evidence.

[395] She submitted that P’s bodily function accidents at school in February 2017 resulted from Mr. Southorn’s unilateral decision to start keeping P overnight during the week.

[396] She suggested that Mr. Southorn continued not to acknowledge that P is afraid of porcelain dolls or frightening movies, which meant that he would not protect her from either.

[397] She submitted that P’s and L’s views and preferences reported by Mr. Millward and Ms. Pool should be given little or no weight because of the children’s young ages and because their views lacked strength, independence, and consistency. She submitted that P was interviewed improperly, because neither Mr. Millward or Ms. Pool followed Ms. Battaglia’s recommendations, and both the children’s interviews were too short and not confirmed by third interviews.

[398] She submitted that Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (O.C.A.) stands for the proposition that it would be an error in principle for the court to order joint decision-making responsibility in the present case, in the absence of evidence of historical co-operation and appropriate communication between the parties, in the hope that joint responsibility would improve the parties’ parenting skills. She added that the case also stands for the proposition that there must be some evidence of historical and current communication between the parents for joint decision-making to be appropriate. In the present case, she argued, there continues to be a severe absence of effective communication. In addition, she suggested, “at every turn” the parties have conflict over the simplest things, including tutoring, sports, homework, as well as major things such as French school, passport applications, and status cards.

[399] She submitted that the mutual lack of trust between the parties is serious and that it would not be in the best interests of the children to go back and forth between “warring” households. Therefore, she argued, the court must choose between two “warring” households, and the evidence is clear that Ms. Ree has always been the primary caregiver, she has been the parent who tries to communicate, and she has been the parent who was disparaged during the trial even though she gave no disparaging testimony about Mr. Southorn or his mother. She added that the court should not disrupt the children’s current parenting time routine given that Mr. Southorn will not ensure that they do their homework, attend extracurricular sports, or attend tutoring because he does not believe that they need tutoring. Furthermore, she argued, he will not foster a healthy relationship between Ms. Ree and the children. Finally, she submitted that Mr. Southorn will not ensure that P does not become “re-traumatized” by sexual abuse, or exposure to dolls or scary movies.

Analysis

The Needs of the Children, given their Ages and Stages of Development

[400] The court is satisfied that Ms. Ree has been the primary parent for the children since birth. Although Mr. Southorn’s mother did most of the cooking and early morning care while the children lived in her home, and Mr. Southorn contributed to household labour, including childcare (likely more often while he lived in his parents’ home than after the parties moved into their own home), Ms. Ree, despite some difficulty getting up in the morning when the children were quite young, and despite some significant lapses of attention at that time, has been the main caregiver throughout the children’s lives, and the children are apparently thriving. It is clearly true that during more than five years since separation, Ms. Ree has been the primary caregiver due to the parenting time schedules that have been in place. Five years is a long time for children the ages of P and L.

[401] Children need stability and consistency, particularly when they are young. Nevertheless, as pointed out in the Parenting Plan Guide published by the Association of Family and Conciliation Courts – Ontario (AFCC-O) in 2020, as they get older, and become the ages of P and L, they can more easily manage different parenting styles and blocks of time away from each parent due to a better developed understanding of time. In situations of conflict between parents, it is important to protect the children from the conflict by having exchanges at neutral locations. Nevertheless, children at this stage of development are more flexible than older children and better able to manage transitions between hostile parents. Generally, children at this age should have significant involvement with both parents. If the children have mainly been with one parent prior to, or since, separation, a gradual increase of time with the other parent post-separation might be appropriate. Sometimes, however, it is important for children to have a “home base” with one parent and perhaps alternate weekends and a mid-week dinner or overnight with the other parent, even if the parents had about equal involvement in parenting before separation. Exchanges at school are helpful if the parents have communication difficulties. Each situation is different.

[402] Both P and L have been consistently interested in spending more time with their father. The court does not accept the submission that they may have meant that they wished their father spent more time with them during his parenting time. It is apparent from the OCL report, Mr. Millward’s testimony, and the VOCR that they meant that they want to spend more time in his care. They both told Mr. Millward in 2018, when they were younger in terms of development, that they wanted more time with their father, and that they would be fine spending an entire week with him. They both told Ms. Pool in 2020, that they wanted to spend about equal, or equal, time with him. The court does not accept the argument that P’s views should be given less weight because she told Ms. Pool that she had not told anyone that she wanted to spend about equal time with her father, because she previously told Mr. Millward that she wanted more time with her father. First, “about equal time” is clearly different than “more time”. Second, it is unreasonable to expect an almost 9-year-old to remember with exactitude what she told an OCL investigator when she was 6 years old. Third, in any event, the court interprets what she said in 2018 as meaning that she would be fine with occasional vacation weeks with her father - not every alternative week – in other words, her views and preferences had evolved since 2018. Nor does the court accept the argument that because L said that he would like to spend more time with his cousin, A, he was too young to understand what equal time meant and, therefore, his views should not be given much weight. First, “equal time” with his father is clearly different than “more time” with his cousin. Second, the court finds that L’s views and preferences have evolved as did P’s. Third, the court is satisfied from the OCL report and the VOCR that L’s views were independent and consistent at those times. Furthermore, the court does not accept the submission that Mr. Millward and Ms. Pool did not interview the children appropriately or that third interviews were required. That having been said, the children’s ages and apparent maturity must be considered. Mr. Millward observed, however, that the children’s views and preferences appeared to be independent and consistent. And Ms. Pool observed that both children were intelligent, P was serious, and L was articulate for his age. Ms. Pool also stated that there was no evidence of coaching.

[403] There is an issue about whether Mr. Southorn does homework with the children. Ms. Ree testified that he does not. He testified that he does. The court is not persuaded on a balance of probabilities that he does not. It is worth noting, however, that it is important for many children to have some educational support at home. It is not ideal that the children are in French Immersion and Mr. Southorn does not speak French. Although he might be able to assist the children at their current ages, as they get older it will likely become more difficult for him, if they remain in French Immersion. Fortunately, however, they are both receiving tutoring in French. As a result, they can ask their tutor for help if needed while in Mr. Southorn’s care, assuming he takes them to tutoring. Given, however, that Mr. Southorn was the first parent to raise the idea of tutoring in French, the court finds that he will likely be supportive and take the children to tutoring while they are in his care – and he should do so, unless tutoring becomes counter-productive – which could happen for P, for example, given that she said that she is bored. The court does not agree with Ms. Ree that if one child requires tutoring, that means that both children must attend. The children are old enough to understand an explanation about why one of them is attending and the other is not – as Mr. Southorn explained to P. Nor does the court agree that tutoring is necessarily advantageous for children who are doing well academically – generally speaking, young children need some unstructured time to play after school – as well as adequate time to complete their school homework.

[404] The children need an environment that is conflict-free as much as possible. They need stability and security. Conflict between the parties is contrary to their needs. Both parties have caused unnecessary conflict; some of the conflict has been the result of poor communication between the parties.

[405] Mr. Southorn caused unnecessary conflict by not listening to the explanation about the medication dosage change at the exchange and then reporting the change to the CAS. He also caused unnecessary conflict by retrieving the parties’ truck from Ms. Ree’s home late at night, while the children were present, regardless whether Ms. Ree’s possession of the truck was unreasonable. He also did so by not fully informing Ms. Ree about L’s illness.

[406] Ms. Ree caused significant unnecessary conflict, including physical conflict, in the presence of the children, at the last exchange in the garage in 2017. She also caused unnecessary conflict by not fully informing Mr. Southorn about P’s illness. She also did so by taking the children to the exchange location but refusing to let them go to their father unless he signed a document that restricted his parental rights. Although her concern was understandable in the early stages of the COVID-19 pandemic, taking the children to exchanges and, in effect, holding them hostage in her vehicle, within sight of their father, unless Mr. Southorn agreed to her demand, and then taking the children away, was not in their best interests.

[407] Nevertheless, both parents can meet the basic needs of the children. They both provide adequate shelter, clothing, meals, and other necessities. They are both interested in the children’s education and their extra-curricular activities.

[408] For some reason, unexplained by the evidence, however, Mr. Southorn has done very little, or effectively nothing, to promote the children’s sense of their Indigenous identity. Ms. Ree, on the other hand, signed the children up at the Georgian Bay Native Friendship Centre and invited Mr. Southorn to access centre with the children. She also accessed Enaahtig for services and pursued funding for tutoring from Mr. Southorn’s Band. It concerns the court that the children apparently understood nothing about their Indigenous heritage when they were interviewed by Ms. Pool. Nevertheless, the court must exercise caution in drawing any conclusions about this area of potential need of the children because the subject was not explored in any depth with Mr. Southorn at trial and he may have a reasonable explanation that was not elicited. The court notes, however, that he stated in an email to Ms. Ree that he was interested in tutoring for the children regarding their Indigenous language, but there was no indication of any follow up on his part.

The Nature and Strength of the Children’s Relationships

[409] Both children have a very strong bond and meaningful relationship with both parents and with each other.

[410] The children also have a significant bond and relationship with their grandparents, Ms. Young, Mr. Whittaker, his daughter, and their cousin, A.

Each Parent’s Willingness to Support the Children’s Relationship with the other Parent

[411] Ms. Ree has not demonstrated a strong willingness to support the development and maintenance of the children’s relationship with their father.

[412] She unreasonably restricted the children’s time with their father’s care before the OCL report and afterward, despite a clear indication from Mr. Millward that the children would like to spend more time with their father, and despite P telling her that she missed her father. Even after a re-visitation of the children’s wishes two years later by Ms. Pool, which indicated that their interest in spending more time with their father had strengthened, in a manner consistent with their ages and stages of development, she continued to maintain that there should be no change to the parenting schedule.

[413] She also unilaterally enrolled P into the French Immersion school without informing Mr. Southorn of her application, the date of P’s acceptance, or that Mr. Whittaker speaks French. Despite Mr. Southorn’s reasonable concerns expressed in his email, it is apparent that Ms. Ree’s email requesting his input was merely for show. The court does not accept her statement that the reason she did not reply to him until just before school commenced was that she was carrying out lengthy research about his concerns. The court infers that she waited until just before school started so that he would not be able to do anything about her unilateral decision. She was informed by Mr. Millward that this was a major decision but, with that knowledge, she made the decision on her own, belittling, at trial, Mr. Southorn’s reasonable concerns. French Immersion is not appropriate for every child. Parents should carefully consider, and then carefully reconsider as time passes, whether French Immersion is, or remains, the right choice for a child.

[414] It is understandable why Mr. Millward was concerned about a power imbalance between Ms. Ree and Mr. Southorn as parents. The court interprets his concern as referencing Ms. Ree’s limited willingness to support the development and maintenance of the children’s relationship with their father. After all, he advised Ms. Ree that changing schools was a major decision before he finalized his report, yet Ms. Ree pushed through her wish to enroll P into the French programme regardless of Mr. Southorn’s views.

[415] Ms. Ree’s listing of her father as the secondary contact at the children’s school – to be contacted before Mr. Southorn (for whom Ms. Ree’s cell number is listed) - is another example of her lack of support for Mr. Southorn’s role as a parent.

[416] While it should also be noted that Mr. Southorn unilaterally increased his parenting time in January 2017, it would be irrational to suggest that by doing so he was showing resistance or indifference to Ms. Ree developing and maintaining her relationship with the children; it is clear that his only concern was the development and maintenance of his own relationship with the children due to restrictions unilaterally put into place by Ms. Ree.

The History of Care of the Children

[417] As noted above, Ms. Ree has always been the primary caregiver for the children. Mr. Southorn likely had significant involvement in the children’s care while the parties resided with his parents, but less involvement while the parties resided in their own home. Since January 2017, both parties have had regular and consistent care of the children, although Ms. Ree has been the primary caregiver.

The Children’s Views and Preferences

[418] The court has found that Mr. Millward appropriately canvassed the children’s views and preferences in 2018. At that time, they both wanted to spend more time with their father and would have been fine with a full week with their father – perhaps, for example, during school vacations. The court also found that Ms. Pool appropriately canvassed the children’s views and preferences in late 2020. At that time, they both continued to want more time with their father and wanted approximately equal time with each of their parents. The court finds that the children’s views and preferences were independent and consistent and that the children are mature for their ages. Accordingly, the court finds that their views should be given significant weight.

The Children’s Cultural, Linguistic, Religious and Spiritual Upbringing, including Indigenous Upbringing and Heritage

[419] Based on the VOCR, it is apparent that the children had, in late 2020, virtually no familiarity with their Indigenous heritage. As noted above, however, the court does not have an evidentiary foundation to permit further comment. No evidence was led about their cultural, linguistic, religious, or spiritual upbringing, other than their enrollment in French Immersion school.

Plans for the Children’s Care

[420] Neither parent provided specific plans for the children’s care.

The Ability and Willingness of Each Parent to Care for and Meet the Children’s Needs

[421] As noted above, both parents meet the children’s basic needs.

[422] That said, the court was unable to determine whether Mr. Southorn helps the children with their homework. It is important for him to at least ensure that the children do their homework while they are in his care. The court has no doubt that Ms. Ree ensures this. The court has some doubt whether Mr. Southorn does. Nevertheless, as noted above, the court was unable to find, based on the contradictory uncorroborated evidence of the parties, that he likely does not. In the court’s view, Ms. Ree’s signatures on the reading logs were not independent evidence.

[423] As noted above, the court also has a concern about the children’s needs with respect to their Indigenous heritage. Despite expressing an interest in enrolling the children in Indigenous language learning, it seems that Mr. Southorn did not follow through.

[424] Yet, Mr. Southorn did set up a tutoring programme for P on January 17, 2020, perhaps in effort to do so before Ms. Ree, but he did not follow up during the next school year. On the other hand, Ms. Ree did follow up. When Mr. Southorn testified in early 2021, he apparently did not know that the children were still in tutoring as arranged by Ms. Ree, although he knew that funding for tutoring both children had been approved by his Band. Mr. Southorn testified, however, that the children did not need to continue tutoring because they were then doing well at school. The court was not presented with sufficient evidence to determine whether the children were doing well academically at that time, or whether they needed continued tutoring in French. In the VOCR, P said that she was bored with the tutoring because it mirrored what she was doing in school. L, on the other hand, said that he appreciated the help because he was having some difficulty with French Immersion.

The Ability and Willingness of Each Parent to Communicate and Co-operate, in Particular with One Another, on Matters Affecting the Children

[425] The examples of parental conflict mentioned above speak to a level of poor communication and co-operation.

[426] Another example is Mr. Southorn’s decision, some years ago, to enroll one child in soccer and the other in T-ball, without consulting Ms. Ree, who then enrolled the children in the other sport, so that they were both enrolled in soccer and T-ball, and then volunteered as a coach for both children.

[427] A similar sequence of events occurred with respect to tutoring. Mr. Southorn said he wanted to enroll P into tutoring. Ms. Ree thought both children should be enrolled. Mr. Southorn enrolled P. Ms. Ree enrolled both children with a different tutor. Then Mr. Southorn’s involvement ended, and Ms. Ree continued to support tutoring for both children.

[428] Ms. Ree testified that Mr. Southorn always disagrees with her for the sake of disagreeing. Their emails show, however, that when he disagreed, he articulated why, and his reasons were not specious or devoid of merit. It appears more likely, from the evidence, that Ms. Ree simply finds it frustrating that Mr. Southorn does not always agree with her, and that she cannot make all the decisions about the children by herself, without having to engage with him. On the other hand, the medication dosage issue did provide an example of Mr. Southorn being unnecessarily difficult. Yet, Ms. Ree’s attendance at the exchange location when she must have known that the exchange would take place later, at the usual time, provided an example of Ms. Ree being unnecessarily difficult (and perhaps trying to create a helpful record for litigation purposes). Moreover, Ms. Ree’s testimony that Mr. Southorn told her in an email that she would not have the children for Hallowe’en in 2019, when, in fact, he said no such thing, and gave her the children at 6:30 p.m., having previously offered 6 p.m., indicated that Ms. Ree’s uncorroborated testimony about Mr. Southorn’s lack of co-operation is not reliable.

[429] Overall, the court finds that the nature and number of discrete, and often quite detailed, examples of communication and co-operation difficulties, although significant, were not exceptionally serious or high for post-separation conflict extending over a period of over four years. It is likely, as Mr. Southorn suggested, that the parties agreed about many other matters that were not entered into evidence because they were simply mundane examples of reasonable compromise and consideration.

[430] Overall, the court finds that, on a balance of probabilities, the evidence does not support Ms. Ree’s submission that the parents reside in “warring” households.

The Impact of Family Violence

[431] The court is not persuaded, on a balance of probabilities, that any physical family violence occurred. The court found above that the incident with the French door hitting Ms. Ree was likely accidental, the allegation that Mr. Southorn struck L inappropriately was not proven, and the allegation about Mr. Southorn damaging the parties’ truck was not proven. Further, the court does not accept Ms. Ree’s submission that the breaking of the headboard occurred in her presence – in fact, she testified that she was not in the bedroom at the time, and that Mr. Southorn told her that the damage related to Mr. Southorn’s anger with his father. Moreover, as discussed above, the court does not accept Ms. Ree’s testimony about the final exchange in the garage.

[432] While the court did not find, on a balance of probabilities, that Mr. Southorn intentionally squealed his tires, even if he did do so, that would not have amounted to controlling behaviour as alleged by Ms. Ree. The court hastens to add, however, that Mr. Southorn should ensure that he does not squeal his tires, even accidentally, in the presence of the children.

[433] The court is not persuaded on a balance of probabilities that Ms. Ree was stalked at any time, including by Mr. Southorn tailgating or by Mr. Edwards. The court does find, on a balance of probabilities, that Ms. Ree followed Mr. Wood and Mr. Southorn to take photographs for evidential purposes, but those incidents did not amount to harassment or psychological abuse.

[434] The various reports to the police and the CAS by both parties were either unfounded or did not amount to harassment or psychological abuse.

[435] The court finds that Mr. Southorn acted appropriately with respect to P’s stated fear of dolls and frightening movies; he did not engage in any psychological abuse of P or L.

[436] Although the court found that, on one occasion, Mr. Southorn pulled off a shower curtain, while Ms. Ree was showering, and cut up a credit card in front of her, the court finds that that this isolated incident did not amount to psychological or financial abuse. Nor does the court find that Ms. Ree’s intentional closing of the French doors amounted to an unlawful confinement.

[437] There was no evidence of any of the other types of family violence set out in Section 24 (3) of the CLRA.

Any Civil or Criminal Proceeding, Order, Condition, or Measure that is Relevant to the Safety, Security and Well-being of the Children

[438] There are none. The allegation made against Mr. Southorn’s father was not verified by the CAS and no charge was laid by the police.

Any Other Relevant Circumstance

[439] The test under subsection 24 (3) of the CLRA is inclusive, so any other circumstance relevant to the children’s best interests should be considered.

[440] As noted above, the court found that Ms. Ree left the children unattended in the bath on two occasions when the children were quite young. Although these incidents may have been relevant at that time, the children are significantly older now and there is no cogent evidence of Ms. Ree endangering the children recently. There is, however, the evidence of her driving into a ditch with the children in her vehicle, but the evidence did not indicate that this was the result of carelessness or dangerous driving on her part, nor did Mr. Southorn suggest otherwise.

[441] The court is not persuaded that Mr. Whittaker acted inappropriately when he grabbed P’s ankle on the trampoline. The court is also not persuaded that Mr. Whittaker somehow has acted “dishonourably” by not supporting Ms. Ree, P, and L financially.

Discussion and Decision – Decision-making Responsibility

[442] The most significant issue identified during the trial concerning decision-making is conflict between the parties.

[443] The parties’ positions are polarized with respect to the degree of their conflict since separation. Mr. Southorn argued, for example, that there had been no conflict in front of the children since separation. The court does not agree. Ms. Ree argued, for example, that the parties lived in “warring” households. Again, the court does not agree. Nor does the fact that the parties’ positions about the degree of conflict are polarized amount to significant conflict; polarized positions are common in family law trials.

[444] Certainly, there were some significant incidents of conflict during more than four years since separation: Mr. Southorn’s retrieval of the parties’ truck at night while the children were present (even though he likely waited until he thought everyone was asleep), Ms. Ree’s inappropriate conduct during the final garage exchange while the children were present (but they were likely asleep or almost asleep), Ms. Ree twice taking the children to exchanges and not letting them to go to their father (early in the pandemic), and various unfounded reports to the police and CAS made by both parties. None of the specific events will likely recur; the truck is sold, exchanges are at a neutral location, and the pandemic is no longer as frighteningly an unknown. Additionally, most of the police and CAS involvement occurred early during the separation.

[445] There has also been some minor conflict since separation: Mr. Southorn’s enrollment of the children into different sports on one occasion, Mr. Southorn’s failure to update Ms. Ree about L’s illness on one occasion, Mr. Southorn calling the CAS about the medication dosage change on one occasion, Mr. Southorn’s limited willingness to allow Ms. Ree to be with the children early for Hallowe’en on one occasion, Ms. Ree’s failure to update Mr. Southorn about P’s illness on one occasion, Ms. Ree’s unnecessary early attendance at an exchange on one occasion, and Ms. Ree’s following of Mr. Southorn and Mr. Wood. While these incidents are of some concern, and ought not be repeated, the court finds that it is unlikely that they will be repeated. Both parents are intelligent and have shown, in their emails, that they are capable of appropriate discourse.

[446] There have also been some significant disagreements which did not result in conflict: Ms. Ree’s unilateral decision to enroll P into French Immersion which Mr. Southorn apparently accepted, Mr. Southorn’s view that the children should not be enrolled into hockey which Ms. Ree apparently accepted, and Mr. Southorn unilaterally increasing the children’s time in his care which Ms. Ree apparently accepted after the police would not intervene.

[447] There have also been incidents of Ms. Ree not supporting Mr. Southorn’s role as a father: unduly restricting his parenting time, unilaterally enrolling P into French Immersion, listing her father as the secondary contact at the children’s school, and giving her cell number as the means for the school to contact Mr. Southorn. The court is satisfied, however, that Ms. Ree will respect any court order about Mr. Southorn’s parenting time going forward, the enrollment into French Immersion for P and L has been accepted by both parties (although, as any parent should do, they should regularly re-assess whether French Immersion continues to be in each child’s separate best interests), and the court is satisfied that Ms. Ree and Mr. Southorn will ensure that the school’s contact information is corrected.

[448] Despite some conflict and disagreements, Mr. Southorn seeks joint decision-making responsibility. He says time has shown that he and Ms. Ree can communicate and co-operate adequately, and he asks the court not to consider any conflict created by Ms. Ree when assessing her position to the contrary.

[449] Ms. Ree, as noted above, says that she and Mr. Southorn cannot communicate and co-operate adequately to be able to make major decisions about the children jointly, so she seeks sole decision-making responsibility.

[450] In the court’s view, the history of conflict between the parties, while not in the best interests of the children, has been relatively limited, and was, in some respects, a function of temporal proximity to separation which diminishes with the passage of time. Furthermore, the history of conflict would be significantly less without consideration of conflict caused by Ms. Ree.

[451] The court does not accept Ms. Ree’s submission that there is a history of Mr. Southorn controlling her or being abusive to her or the children. The one incident, before separation, of him ripping off the shower curtain and cutting up a credit card did not amount to a pattern of controlling or abuse. Nor was the court persuaded on a balance of probabilities that, before separation, Mr. Southorn forced Ms. Ree to stay at home and to have her friends visit her there as she alleged. Nor does the court accept that her complaint about the squealing of tires, if true, would amount to controlling behaviour. Her evidence about the passports was based on hearsay, and counsel, not Mr. Southorn, were responsible for the status card misunderstanding, as stipulated at trial. Both parties made unfounded complaints about each other to the authorities; not just Mr. Southorn. The court does not accept Ms. Ree’s submission that Mr. Southorn did not accept that P was afraid of dolls. The court finds that, upon hearing about P’s fear, he immediately removed any dolls that might bother P and, later, showed her that there were no dolls in the home. The court also finds that it was not proven on a balance of probabilities that Mr. Southorn exposed the children to frightening movies.

[452] Nor does the court find, as alleged by Ms. Ree, that Mr. Southorn disagrees with her just for the sake of disagreeing. In general, there is a range of reasonable parenting decisions that can be made about a child. It is not the case that there is always only one correct decision. Mr. Southorn provided reasonable explanations when his views differed from Ms. Ree’s.

[453] Nor does the court find, as suggested in Ms. Ree’s submissions, that Mr. Southorn disparaged her during the trial while she did not do the same regarding him or his mother. In fact, she accused him of being controlling, physically and emotionally abusive to her and the children, conflictual and non-communicative in nature, wilfully ignorant, not supervising the children’s reading or other homework, and being a poor decision-maker. And she accused his mother of maintaining a home that was extremely cluttered, in effect a hoarder’s home, and filthy with mold, and she falsely accused his mother of physically attacking her at the last garage exchange.

[454] Based on all the evidence, the court finds that the parties are capable of communicating and co-operating adequately with appropriate terms and conditions in place in case of disagreement, for example, if the parties cannot agree about a major medical decision about a child, they should follow the written recommendation of the child’s family doctor.

[455] Additionally, based on all the evidence, including the OCL report and the VOCR, the court is satisfied that the children are physically, emotionally, and psychologically safe and secure in the care of both parents, with the current de facto status quo of joint decision-making responsibility.

[456] Ms. Ree has demonstrated unwillingness to strongly support the children’s relationship with their father. This consideration significantly militates against her having sole decision-making responsibility.

[457] Overall, the court finds, on a balance of probabilities, that it is in the best interests of the children for the parties to continue to have joint decision-making responsibility for the children, upon the conditions and terms set out in the court’s final order below.

[458] The court does not accept Ms. Ree’s submission that Mr. Southorn’s behaviour will deteriorate once he is no longer in the “spotlight of litigation”, but if the court is mistaken, and time proves otherwise, a motion to change parenting time responsibility can be made.

Discussion and Decision – Parenting Time Schedule

[459] Mr. Southorn seeks equal parenting time. He is of the view that Ms. Ree has unreasonably restricted his parenting time. The court has already expressed agreement with that view.

[460] Ms. Ree seeks adherence to the status quo. The children are with their father alternate weeks from Thursday after school until Sunday evening and for several hours on the alternate Friday. Any additional time is as agreed between the parties and Ms. Ree agreed to the children spending two weeks with their father this past summer. The parties have reached other agreements concerning Christmas school vacation and other special dates.

[461] Ms. Ree submitted that Mr. Southorn is very devoted to his work as an electrician and will not spend any additional parenting time he may be given, with the children, particularly since he is self-employed. The court is satisfied that he is a hard worker who is willing to work long hours and that he has not attended the children’s medical appointments in the past – likely because Ms. Ree has been the primary caregiver. The court is also satisfied, however, that he gave up his job at Wallwin to work shorter hours at the casino for the sake of his family. Although that job provided a better balance, he still had to miss certain events involving the children due to his lack of seniority. One effect of him being self-employed is that he now has the flexibility to spend as much time as he can with the children. The court does not expect, however, that he will not work at all while the children are in his care. Most parents work in today’s socio-economic context and are good parents. The children would be deemed to be in his care whether he is at work or not during his parenting time. He would be expected to make safe and suitable arrangements for the care of the children while he is working and, given that he is self-employed, the court expects that he would make an effort to work less while the children are in his care, compared to when they are not.

[462] Ms. Ree, as a stay-at-home parent who runs a dog breeding business at her home, is more available to be the children than Mr. Southorn. Although that is a significant consideration regarding how much time the children should be with her, it does not mean that the children must therefore spend less time in their father’s care. Every parenting time determination depends upon all the circumstances.

[463] As discussed above, the children expressed an interest in spending more time with their father to Mr. Millward in 2018 – and P said that she missed her father. Both children expressed an interest in spending equal or about equal time with their father and mother to Ms. Pool in late 2020. The court has already addressed Ms. Ree’s concerns about Mr. Millward’s and Ms. Pool’s reports and testimony. As stated previously, the court is satisfied, on a balance of probabilities, based on the evidence, that the children’s views and preferences provided to Mr. Millward and Ms. Pool were independent, strong, and consistent, and that the children are sufficiently mature that their views should be given significant weight.

[464] Perhaps oddly, neither party called their life partners as witnesses. Accordingly, the court has very little information about Ms. Young or Mr. Whittaker. Nevertheless, Ms. Young was present during Mr. Millward’s home visit, and the children currently view her as a caregiver according to their interviews with Ms. Pool. Mr. Whittaker was not present during Mr. Millward’s home visit, but Ms. Pool’s interviews establish that the children view him as a caregiver as well. The children had the opportunity to make negative comments about Ms. Young and Mr. Whittaker to Ms. Pool, but they did not. The court finds, on a balance of probabilities, that both Ms. Young and Mr. Whittaker are appropriate caregivers for the children. In so finding, the court is aware that Mr. Whittaker and his daughter, A, only live part-time with Ms. Ree and the children. Nevertheless, the court can find no reason that P and L should not be cared for by Ms. Young or Mr. Whittaker when Mr. Southorn or Ms. Ree are not available.

[465] Ms. Ree suggested that Mr. Southorn will not protect P from being sexually abused by his father because he does not believe that P was already sexually abused by his father. If that is correct, then P has been unprotected by her father for the more than two years that she has been staying with her father during alternate weeks from Thursday after school until Sunday evening. The fact is that the allegation of sexual abuse of P came only from Ms. Ree and Ms. Rose who gave inconsistent testimonies. No one else says that P indicated to them that she was sexually abused. She did not disclose sexual abuse to the police or to the CAS, with and without her mother present. She did not disclose sexual abuse to Ms. Battaglia, the play therapist and psychotherapist, over a period of almost two years. Nor, apparently, has she made such a disclosure since. Although non-disclosure is not proof that sexual abuse did not occur, as already indicated, the court is not satisfied on a balance of probabilities that P was sexually abused by Mr. Southorn’s father (or Ms. Ree’s father). Nevertheless, the court expects that Mr. Southorn (and Ms. Young) likely have a heightened awareness about the safety and the security of both children in Mr. Southorn’s father’s presence or any other situation where a heightened awareness is appropriate. The fact that Mr. Southorn does not believe that his father sexually assaulted P, which may or may not be correct, does not mean that he is not concerned about her safety when potential risks are present.

[466] Ms. Ree has been the primary parent for the children since birth. Nevertheless, the children are at an age and stage of development when a change to more time, and perhaps equal time, with their father could be in their best interests.

[467] The court finds, on a balance of probabilities, that Mr. Southorn understands that more time with the children means more responsibility, i.e. ensuring: that they do, and are supported with, their homework; that they always do, and are supported with, their reading; that they are taken to, and supported with, tutoring (if tutoring is appropriate); that they are taken, and are supported at, extra-curricular activities in the manner determined by the court, below; and that there is sufficient co-ordination between the parents that the children’s schedule will not vary dramatically – in other words, that there is some consistency between the parents’ households, even if the parents have different parenting styles.

[468] Additionally, based on all the evidence, including the OCL report and the VOCR, as stated previously, the court is satisfied that the children are physically, emotionally, and psychologically safe and secure in the care of both parents.

[469] Ultimately, the court finds, on a balance of probabilities, that it is in the children’s best interests to transition to an equal time parenting schedule during the children’s upcoming Christmas school vacation, as detailed below.

Detailed Financial History – Mr. Southorn

2016

[470] Mr. Southorn’s 2016 T4 from Casino Rama (Exhibit 10) shows that he earned $50,800 tax-free.

[471] His 2016 income tax return (Exhibit 10) shows that his gross business income from his sole proprietorship was $18,139 and his net business income was $1,902. The court reviewed the tax return and the deductions appear reasonable. The cost of material used was $7,076. Mr. Southorn testified that he was not proficient at taxes, so his accountant prepared the tax returns for the proprietorship.

[472] Mr. Southorn set up a personal TD Visa credit card account with a $3,000 limit to be used for the proprietorship in May (Exhibit 131). He testified that he did not use it for personal expenses.

[473] The same month, he set up a TD chequing account for the business with a $1,000 deposit which, he testified, was likely his personal money being used to open the account (Exhibit 134). He testified in chief that the $6,000 deposit on July 21 came from a job. He testified that two deposits in August for $500 and $700 were likely his personal money to cover his truck payments. It also appears likely that additional deposits of $430 and $500 in June were to cover truck and truck insurance payments. A deposit of $85 in July was likely to cover an overdraft of about $82. There were no other deposits in 2016. Mr. Southorn testified that Ms. Ree was supposed to deposit $4,000 in August but did not. There was one cash withdrawal of $1,440. The was one ATM withdrawal of $440. There were two transfers out totalling about $265.

2017

[474] Mr. Southorn testified in chief that the deposit of $1,500 into the business account on January 5 likely came from Crew Docks, the deposit of $450 on March 2 was likely personal money to cover his truck payment, the deposit of $3,000 on March 9 was likely for a job, two deposits of $100 on April 9 were likely personal money, the deposit of $800 on the same date may have been for a small job, and the $2,000 deposit on May 16 would have been for a job.

[475] He testified that the $807.37 deposit on June 19 and the $800 cash withdrawal the same day related to a job. He testified that the deposits of $310, $614.53, $10, $50, $150, $60, $321.43, $370, $300, $800, $300, $300, $400, $135.60, and $650 during the balance of the year were likely deposits of personal money because the business was not doing well. Those were all the deposits in 2017 except $80 and $140 in December and a transfer in of $1,000 in March which were not explained. The business account was so low in December that two payments out were returned as NSF. One returned payment was his truck payment. Cash withdrawals for the year totalled $3,920. The account was mainly used for truck and truck insurance payments.

[476] Mr. Southorn testified that he did three jobs in 2017.

[477] Mr. Southorn’s 2017 T4 from Casino Rama (Exhibit 10) showed that he earned $51,300 tax-free.

[478] His income tax return (Exhibit 10) showed that his gross business income from P and L was $18,122 and his net business income was a loss of $6,003. Mr. Southorn testified that the loss was the result of some bad debts. The court reviewed the tax return and the deductions appear reasonable, although no bad debts were claimed. The cost of material used was $17,418. The motor vehicle expenses were reasonable.

2018

[479] The TD Visa credit card for the use of P and L was “maxed out” in February. At that point, the credit limit was $3,500. The card was not used again until the end of November, when charges of about $640 were processed for a rental vehicle because Mr. Southorn’s truck was in an accident. On December 5, the balance owing on the Visa card was $4,000.10.

[480] With respect to the bank account for the proprietorship, Mr. Southorn testified in chief that the deposits of $285, $190, $200, and $300 in January were likely his personal money to cover truck payments. An insurance payment out of $118 that month was returned as NSF. He testified that the deposits of $500, $280, $20, and $300 in February were likely personal funds because he had no work that month. He testified that he did not recall the source of the $1,135 deposit in March, but the $500 deposit was likely personal money. He testified that the deposits of $3,668.67 and $2,808.57 in April were for cottage jobs in Bala. He did not explain the deposits of $280 and $20 earlier that month but the court finds that they were likely personal money to cover the truck payments. Mr. Southorn had personal funds available due to his full-time employment at Casino Rama.

[481] He testified in chief that the $8,000 deposit in May was for a generator job and the $1,300 transfer in was from a customer. He said that he did not recall the source of the $2,200 deposit in early August. He said that the $4,500 deposit that month was for a generator job and $6,000 deposited in August was for the same job. He testified that $2,660 deposited in August was a cheque for wire from a customer but, as the records show, the cheque was returned as NSF. He testified that he did not recall the source of the $1,955.55 deposit in September but that was around when he had to move a panel on Quarry Road. He said that the $2,686 deposit in October was for a boat port. He said that he did not recall the source of the $9,050.77 deposit that month but that it might have been for spotlights on Quarry Road. He testified that the $2,500 deposit in October was likely for a temporary service, but he was not sure. He said that the $2,197.62 deposit in November might also have been for the temporary service, but he was not sure. He testified that the $16,918.77 deposit in November was for a house on Quarry Road.

[482] There were no other deposits into the proprietorship account in 2018. Cash withdrawals totalled $24,300. Transfers out totalled about $350. Drafts out totalled $9,419.75.

[483] Mr. Southorn’s 2018 T4 from Casino Rama (Exhibit 10) showed that he earned $51,700 tax-free.

[484] His income tax return (Exhibit 10) showed that his gross business income from P and L was $61,036.61 and his net business income was $347.83. He testified that he had some bad debts that year. He said that one bad debt was $309.17 owed by Shockwave Electrical (Exhibit 115, page 33). He said that it was not worth suing for that amount. Another was $4,723.28 for a commercial marijuana business that went bankrupt (Exhibit 115, page 35). The court reviewed the tax return and the deductions appear reasonable. The cost of material used was $56,823. The motor vehicle expenses were reasonable. Mr. Southorn testified that he claimed fifty percent of his vehicle expenses. He said that he did not expense gas because he did not realize that he could do so.

[485] Mr. Southorn testified that his proprietorship business expenses for that year included the purchase of a trailer, the rental and purchase of a trencher, and HST on $27,000 worth of repairs on his truck. He also testified that he still owned, and was paying for the trailer and trencher personally, until they could be transferred to P and L Electrical Inc. (P and L Inc.) (“the company”) at fair market value.

[486] On November 22, Mr. Southorn paid off his TD personal line of credit balance in the amount of $13,799, using $25,000 he received for his part of a land claim (Exhibit 133).

[487] Mr. Southorn and Mr. Wood incorporated P and L Inc. on November 26. They each own one-half of the shares. Mr. Wood is the Secretary Treasurer. Because Mr. Southorn was the holder of a master electrician licence, they could employ other electricians through the company. Mr. Southorn’s role was to do electrical work himself and to be the licence holder for any electrician employees. Mr. Wood’s role was to help Mr. Southorn as needed at jobs, including delivering materials, doing quotes for jobs, and handling the administrative aspects of the business, such as ensuring that the corporate taxes were filed, workmen’s compensation payments and filings were made, etc.

[488] Mr. Southorn testified that Mr. Wood paid nothing for his one-half ownership of P and L Inc. because the company had no assets, Mr. Southorn said that he was in debt, and he did not know how to do the administrative paperwork. He testified that he needed help, but he had no equity in the company to sell to Mr. Wood.

[489] Mr. Southorn testified that P and L Inc. received $9,009.22 on December 21 for a job. Mr. Southorn also testified that he did not do any work, or receive any wages or payment for work done, from the company in 2018. He also testified he could not recall whether he did any work for the company in December. He testified that any money he received personally from the company in 2018 was for the purchase of some of his used tools.

[490] A TD chequing account was opened for P and L Inc. on December 20 (Exhibit 119). Mr. Southorn and Mr. Wood have access to the account. As just stated, $9,009.22 from a job was deposited into the company account the next day.

[491] Mr. Southorn testified that the only cash payment he received in 2018 was for a generator, and that he did not accept any cash payments after the company was formed.

[492] Mr. Southorn testified that the company makes his monthly $800 truck payments when it has funds available. Otherwise, he makes the truck payments personally because he continues to own the truck until the company can afford to buy it from him at fair market value. The debt on the truck was over $50,000 at the time he testified. The company also paid his truck insurance. He said that he paid his cell phone bills, which were about $170 per month, because the company could not afford to pay them. He testified that he owed all the business’ debts personally. He testified that he did not receive a T4 from the company for 2018, and that he did not understand how Mr. Wood and the company’s accountant handled the company’s legal and financial matters.

[493] He testified that Mr. Wood’s monthly truck payments were made by the company for the months Mr. Wood used his truck for company business.

[494] Mr. Southorn testified that he charged for houses by the square foot, not cost plus. As a result, he purchased the materials, and if a job lasted longer than thirty days, he had to pay the bill for the materials before being paid for the job by his customer.

[495] He testified that when he gave an invoice to a customer, he kept a copy on his computer.

[496] He testified that the company had never had a credit card.

[497] At the end of the year, Mr. Southorn owed $9,650 on his RBC Visa (Exhibit 130).

2019

[498] Mr. Southorn was not asked detailed questions about the company bank account in 2019.

[499] There were deposits of $10,046.49 in January, $1,626.93 in February, $6,000 in March, $1,950.70 in April, $7,331.13 in May, $2,331.28 and $7,371.93 in June, $4,895.78 and $4,647.12 in July, $12,433.94 in August, $6,203.06 in September, $5,000 in October, $2,000 in November, and $2,641.94 in December (Exhibits 119 and 135). There were also transfers in of $1,495 in March, $1,809.27 in April, $2,423.48 in October, $3,000 in November, and $600 in December. The deposit total was about $74,480. The total of transfers in was about $9,325. The cash withdrawal total was about $5,780. The total of transfers out was about $9,700.

[500] He testified that the deposit of $1,626.93 in February came from a job, and that the July deposits came from a job in Lindsay and a boat port with a lift, to the best of his recollection.

[501] Mr. Southorn testified that he used his personal TD Visa credit card obtained for the proprietorship to keep the corporation going in 2019.

[502] On January 2, he paid $2,000 of his $25,000 land claim settlement to reduce his TD Visa credit card balance which allowed payments of roughly $1,500 to the Electrical Safety Authority to be processed through the credit card in January and February. He used his remaining land claim settlement funds of $8,714, to bring his TD line of credit balance to zero.

[503] On January 7, Mr. Southorn took a cash advance of $1,500 on his RBC credit card. His balance owing became $19,462. The interest rate on the cash advance was 22.99 percent.

[504] On February 2, Mr. Southorn opened a personal TD bank account to receive income from the company (Exhibit 147). No deposits were made into the account which was closed in August.

[505] On February 19, Mr. Southorn paid Dunlop Plumbing $110.74 from his personal bank account (Exhibit 121). On March 29, Mr. Southorn paid Ideal Supply $179.65 from his personal bank account (Exhibit 144).

[506] The last use of the TD Visa credit card for the proprietorship was in May. At that point, it was “maxed out” again.

[507] The TD business chequing account was last used in January. There was a cash withdrawal of $240. A truck payment on February 1 was returned as NSF. The balance was then $2.18. Mr. Southorn testified that that account was then closed.

[508] Mr. Southorn testified that he and Ms. Young each paid one-half the rent and certain utility payments for the home they moved into in around April. Mr. Southorn said that he paid all the heating costs. He testified that the rent was $1,750 per month and that they paid an additional $1,000 per month towards an option to buy the house in 2024 for a fixed price. Over the five-year period of the option to buy, they would each pay $36,000 towards the purchase. Ms. Young worked at Crew Docks. The amount of her income was not mentioned during the trial.

[509] On April 12, he used his TD personal line of credit to make a $12,000 down payment on the house he shared with Ms. Young. After making a deposit of $3,650 to the line of credit on the same date, his balance owing was $9,843 at the end of the month.

[510] That spring, the company hired a second electrician for a short while, but he was eventually let go because the partners felt he worked too slowly. In the meantime, Mr. Southorn testified, his own workload for the company was reduced to about three to seven hours per week.

[511] Mr. Edwards testified, in May, that Mr. Southorn last worked for Crew Docks around late March. He testified that he liked to hire P and L Inc. when they are available because they were very competitive in pricing. He testified that they bought their own supplies and were repaid out of the job total at the end.

[512] In June, Mr. Southorn obtained a draft for $4,007.50 from his TD line of credit, making the balance owing $13,948 at the end of the month, which remained about the same at the year’s end. The limit on the line of credit was $14,500.

[513] On July 2, the date of one of his financial statements (Exhibit 62), Mr. Southorn personally owed $44,000 on his RBC line of credit, for which he said he made payments of $925 per month, and about $13,900 on the TD line of credit, for which he paid about $130 per month to cover interest and insurance. He also owed $8,000 on his personal Visa card, about $3,500 on the Visa card for the sole proprietorship, about $52,000 for his truck loan, and about $20,000 for legal fees.

[514] Mr. Southorn quit his job at Casino Rama in August. He testified that his reason for leaving was that the new owners had been laying off a lot of staff, which his union had been unable to stop, and the new owners were illegally requiring him to do plumbing, for which he was not qualified. He said that he had complained to the Human Resources department a couple of times but received no response. He observed that, as it turned out, he would have been laid off anyway due to the provincial COVID-19 shutdown in March 2020.

[515] He testified that, due to leaving his job, and an unexpected early winter which affected his business, he had no income during the period of September to December.

[516] He said the only money he got that Fall was through selling assets to the company for half the fair market value because he was a half owner of the company. He said that he received Mr. Wood’s share of the company’s payment according to the company’s accountant. He testified that he did not know how much he received because he was “in a jam” to pay some bills